Peck v. Cowing , 1 Denio 222 ( 1845 )

By'the Court, Bronson, Ch. J.

If the defendant intended to object on the writ of error to the sufficiency of the declaration in matters of form, he should have stood upon his demurrer. But instead of doing so, he put in a plea, and thus virtually withdrew and abandoned the demurrer. If the proceeding had been in a court of record, the demurrer would not have appeared as a part of the case. So too, the defendant withdrew and abandoned his demurrer to the replication, after it had been overruled, by proceeding to trial and giving evidence upon the issue of fact made by the plea and replication. As pleadings in a justice’s court, the declaration and replication were both well enough in matter of substance.

The justice may well have found from the evidence, that the defendant sold the pump and made the warranty for himself, and in his own name alone; and that the plaintiff never heard of Malay, or any other joint contractor, until he was met by the plea in abatement. It does not appear that the defendant and Malay had any particular place of business, or that they were ever together in peddling pumps. The plaintiff had no means of knowing of this private partnership, and I think the justice was right in his judgment. (Baldney v. Ritchie, 1 Stark. R. 269; Stansfield v. Levy, 3 id. 8. And see Hudson v. Robinson, 4 Maule & Sel. 475.) I see nothing in the other objections, and think the judgment of the C. P. should be reversed, and that of the justice affirmed.

Ordered accordingly