JOHN GRAHAM, Adm'r of JOHN TRAVERSE, deceased, defendant below, plaintiff in error vs. JOHN CAIN, an infant, &c., by WIILLIAM SIPPLE, his guardian, plaintiff below, defendant in error, 2 Harr. 97

By the Court: Layton, Justice. The question in this case is one of pleading, which, however, involves no very important principle. It appears from the record of the cause, that an action of debt was brought on a guardian bond, to the October term 1835, of the Superior Court, in Kent county, by John Cain, an infant under the age of twenty-one years, by his guardian, William Sipple, against John Graham, administrator of John Traverse, deceased, the former guardian of said minor. The guardian bond is dated the ninth day of August, eighteen hundred and twenty-four.

The defendant below, pleaded “ Non est factum, payment, discount, and the act of limitations.” Replications and issues were entered to all the pleas, except to that of the act of limitation, as to which the plaintiff below replied his infancy. To this replication there was no rejoinder, or issue entered of record. The parties went down to trial, and a verdict was found for the plaintiff, on which the court entered judgment generally. The plaintiff in error, who was defendant below, assigns this for error.

The point of objection is, that the parties went on to trial, and that a general verdict and judgment thereon were entered, without issue having been joined on the replication of infancy, to the plea of the act of limitation. It is argued by the counsel for the plaintiff in error, that the judgment in this cause was final, on a plea on which no issue was joined; that there being other pleas and issues, this judgment is erroneous ; and that an immaterial issue, orwhere there is no issue, can’t be cured by a verdict.

The court do not consider this to be a case of an immaterial issue; nor is it necessary to consider the question whether the error, if anv, be amendable. The first

section of the act of assembly “ concerning defects in legal proceedings” 8 vol..Del. L. p. 44, declares that “judgment shall not be arrested nor reversed, for any clerical misprision, or formal defect whatever, if upon the whole record there appears substantial ground for the judgment.” The only material question in the cause, is whether the defendant can plead the act of limitation to an action of debt by an infant, who is recognized as such by the court, for whom a guardian ad litem has been appointed, and whom the defendant, himself recognizes as such, by his appearing to the action and pleading over.

It is one of the qualities of a plea in bar “that it must be adapted to the nature and form of the action, and also be conformable to the count.” I Chit. Pl. 509 ; Co. Lit. 303, a. 285 b; Bac. Ab. Pleas I; 1 Rol. Rep. 216. Frame, for plaintiff in error. J. M. Clayton and Bates, for defendant in error. Thus “ if a defendant plead a plea not adapted to the nature of the action, as nil debet in assumpsit, or non-assumpsit in debt, the plaintiff may treat it as a nullity, and sign judgment.” Barnes 257; 6 East 549.

And if an assignee of a bankrupt declare that the defendant was indebted to the bankrupt, and promised the plaintiff, as assignee, to pay him, the defendant cannot plead that the cause of action did not accrue to the bankrupt within six years, because the plea does not answer the promise in the declaration, and precludes the plaintiff from proving a promise to himself, and is bad therefore on demurrer. 2 Stra. 919; 2 Hen. Bla. 581; 2 Saund. 63, a.; 1 Rol. Rep. 216.

And “it hath been holden, that if an infant, during hisinfanoy, by his guardian, bring an action, the defendant cannot plead the statute of limitation; although the cause of action accrued six years before, and the words of the statute are, that after his coming of age, &c. 2 Saund. Rep. 121. In the case now under consideration, the plaintiff need not have replied his infancy, the plea would have been had on demurrer, or he might have treated it as a nullity.

The statute has expressly excluded him from its operation, and secured his interests, and he may commence his action, by his guardian or next friend, at any time during his infancy. The only way in which a defendant can except to the capacity of the plaintiff to sue, is by a plea in abatement. If the defendant in this cause, had entertained any doubt as to the character or capacity of the plaintiff, he should have filed his plea in abatement, by which he could have tried the question of infancy.

He has not availed himself of this plea, but has entered one which the court think is not applicable to the case, or in conformity to the plaintiff’s declaration. It appears from the issues in the cause, that this case has been tried upon its merits, and judgment having been rendered for the plaintiff below, the court are of the opinion that, “ upon the whole record, there appears substantial ground for the judgment,” and that the judgment below must be affirmed. Judgment affirmed,