Nichols v. Nichols

9 Wend. 263

• Court: New York Supreme Court
• Decided: October 15, 1832
• Status: Published

Opinion

By the Court,

Nelson, J.

In Paul v. Graves, 5 Wend. 76, the court passed upon the subject of entitling a declaration, when the suit is commenced by the filing and service of a declaration, and the cause of action arises in vacation. The practice there settled shews that the declaration in this case is erroneously entitled. But there is no principle, or reason, or analogy, upon which this error can be taken advantage of by plea; it is matter which belongs exclusively to the practice of the court, and as such, under its control. It is a well settled and salutary rule, and should be rigidly adhered to, that the practice of the courts is not a matter available by way of plea. 1 Chitty’s Pl. 460, and cases there cited. If this rule should be relaxed or departed from, courts would be inundated with issues in law and fact, not involving the merits of the case, but simply presenting questions of practice.

Judgment of respondeas ouster.