Niblock v. Wright

2 How. Pr. 251

Opinion

Plaintiff’s counsel insisted that the irregularity complained of—that the cause of action was laid in the body of the declaration after the suit was in fact commenced—should be taken advantage of by demurrer, (1st Paine & Duer Pr. 422; 2 Saund. 1 n 1; 10 John. 219.) The defendant could not be prejudiced by the omission of the “term.” The time when the writ was issued might be proved. (1 P. & D. Pr. 423 ; 10 John. 219.) It might be otherwise, if the declaration was entitled of a term subsequent to that in which the writ was returnable. (12 Wend. 293.)

Bronson, Chief Justice.

If the declaration had been properly entitled the defendant might have demurred, because the suit was commenced before the cause of action arose; but as no term was mentioned, the defendant could not raise the question on demurrer. Omitting to entitle was an irregularity for which this motion was the only remedy. (12 Wend. 293; 9 id. 263.) Motion granted with costs.