Cornes v. . Harris

Bronson, J. If this is the old assise of nuisance, there is no doubt But that the declaration is insufficient and the judgment erroneous. But if it is an action on the case, it is equally clear that the declaration is sufficient and the judgment right. On the motion in arrest of judgment the Supreme Court held, and we think very properly, that it ivas an action on the case. The defendant insists that it is a writ of nuisance because the plaintiff has given the action that name in the commencement of the declaration; and because a writ of nuisance seems to have been issued to bring the defendant into court. It is not necessary to mention the form of the action in the commencement of the declaration; and if the pleader gives it a wrong name it will do no harm. The form of the action is determined by the matter set forth in the declaration, and not by the name which the plaintiff may give it. (Seneca Road Comp. vs. Auburn R. R. Comp. 5 Hill 177 ; Ander *227 son vs. Thomas, 9 Bing. 678 ; Lord vs. Houston, 11 East 62; 2 Chit. Pl. 12 note (e.) Ed. of ’37 Grah. Prac. 202.) Disregarding, as we must, the misnomer, this is a very good declaration in an action on the case. Now as to the writ. It is not a matter of any importance how the defendant came into court—whether he was served with a writ, capias, or declaration; or whether he appeared voluntarily without process of any kind. It is enough that he appeared and pleaded to the declaration in an action of which the court had jurisdiction. He cannot afterwards object, not even by motion, that he was not regularly brought into court, or that the declaration varies from the process. The principle is a familiar one. If the defendant had moved, be fore pleading, to set aside the declaration for variance from the original, the motion would probably have been denied. (Mc Farland vs. Townsend, 17 Wend. 440.) And clearly the Supreme Court had nothing to do after verdict, .when the motion in arrest was made, with the manner in which the defendant was brought into court, or with any supposed variance between the writ and the declaration. ' We are all of opinion that the judgment should be affirmed. Judgment affirmed.