Jarvis v. Blennerhasset
New York Supreme Court
Motion to set aside a declaration as irregular. A capias was issued in an action of assault and battery, and an order to hold to bail was obtained. Blennerhasset only was taken, and the plaintiff declared against both defendants, as in an action againstjowii debtors, stating Blennerhasset to be in custody, &c., and that the sheriff had returned Trotter not found, and then alleging the assault and battery to have been committed.
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Motion to set aside a declaration as irregular. A capias was issued in an action of assault and battery, and an order to hold to bail was obtained. Blennerhasset only was taken, and the plaintiff declared against both defendants, as in an action againstjowii debtors, stating Blennerhasset to be in custody, &c., and that the sheriff had returned Trotter not found, and then alleging the assault and battery to have been committed. The defendant who was arrested moved to set aside the declaration as irregular.
1Opinion of the Court
By the Court,
Cowen, J.
[628] The declaration follows the process. It admits that one of the original defendants is out of court; as to him it is void. It may be informal, and therefore the subject of special demurrer, but nothing more. (Rose v. Oliver, 2 Johns. R. 365.) Such a declaration can work no substantial prejudice to the defendant taken. It is such a perfect nullity as to the other that nc might yet be a witness on the trial, against the plaintiff. (Stockham v. Jones, 10 Johns. R. 21.) On special demurrer, I suppose the plaintiff would amend, as lie might do, of course ; but…
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