De Witt, moved for a mandamus to the Judges, &c. of Washington County, commanding them to modify a rule setting aside the declaration and all subsequent proceedings, and staying all proceedings, till a prochein ami should be appointed, on payment of costs, in á cause there, between Knight, plaintiff, and Scott and others defendants.
Knight was an infant, and appeared by attorney. The cause had gone to issue ; and a motion had been heard for judgment as in case of non-suit. This was refused, on payment of costs: after which, the defendants informed their attorney that the plaintiff was an infant ; not knowing before that this was material. On these facts, the Common Pleas granted the above rule.- The object of this motion was to get rid of the condition in the rule, which required the payment of costs. This motion was opposed by Russell, but the Court granted
A rule to shew cause.(b)
6) Vid. Schermerhorn v. Jenkins, 7 John. Rep. 373. That the infancy of the plaintiff is not a ground of non-suil at the trial, but may be pleaded in abatement, 1 Chilly on PI. 436.