Baker v. Dumbolton

10 Johns. 240

• Court: New York Supreme Court
• Decided: May 15, 1813
• Status: Published

Opinion

Per Curiam.

There was no well founded objection to joining a count for the trespass damage feasant with the count for the pound breach or rescous ; and it is usual to join them. (2 Chitty’s Pl. 297. n.) If the variance between the summons and declaration wrould have been fatal, (which we do not concede,) because the one was trespass on the case, and the other trespass, yet the objection was waived by the defendant, when he consented to postpone it until the jury were sworn on the trial. The plaintiff also had a right to discontinue the action against the wife, and to proceed against the husband alone. The trespass and'the rescue were fully proved, and the jury assessed single damages. The merits of the cause were fairly tried, and,are entirely in conformity with the verdict. The objections made by the defendant were frivolous in their nature, and went merely to matters of form, which are always liberally regarded in proceedings before a justice.

The judgment below must be affirmed.

Judgment affirmed.