Mumford v. Fitzhugh

SrENCER, Ch. J. delivered the opinion of the court. The demurrer is to the whole declaration, and if either count be good, the demurrer cannot be sustained. The objection that the plaintiffs sue for a public nuisance, in the obstruction of a highway, is not applicable to the second count*, for it does not allege any obstruction of the highway. On the second ground, however, the demurrer is well taken, for Carroll is made a defendant, although he has not 'been brought into court. This would be cured after verdict, as was decided in Rose v. Oliver and others ; (2 Johns. Rep. 367 ) but the objection is fatal on special demurrer. The case of Henly v. Broad, (1 Leon. 41.) is in point, and [459] it is not overruled by the cases in 1 Salk. 32. and 6 Term Rep. 766. Judgment for the defendants, with leave to the plaintiffs to amend, on payment of costs.