Welch v. Vanbebber ( 1807 )

Tilghmañ, C. J.

It must be admitted that the declaration is drawn very inartificially ; but it exhibits a substantive cause of action, though drawn informally. None of the objections go to the merits, and on them a jury have decided. If judgment had been rendered against James Welch, there would have been error apparent on the record. It appears however, that John Welch only entered his appearance and was declared against; he only pleaded non est factzim, which was the issue tried, and the judgment, though entered generally, can refer to him alone.

Yeates, J.

If the defendant below wished to avail himself of any variance between the writ and count, he should have pleaded it in abatement. If he insisted on want of form, he should have demurred specially. But he has pleaded in chief, and a trial has been had on the merits. Most of the objections are cured by the statutes of J eofaile after verdict. 1 Dali. 461-2. The only difficulty which presented itself to me was, as to the entry of the judgment on the general return of summons served; but I fully concur with the chief justice in that particular for the reasons he has assigned.

Smith, J. concurred.

Beackenridge, J.

The defendant below should have shewn the variance by plea in abatement. He shall not be permitted to have a hearing on the merits, and then urge an informality by way of defence, which he ought to have availed himself of in an early stage of the cause.

Judgment against John Welch affirmed.