
    Parish v. Gray.
    [April, 1806.]
    Suit for Freedom — Declaration—Surplusage.—If the plaintiff, in a suit for freedom, declare for the benefit of herself and children, naming them, that part which relates to the children is unimportant, and the mother is the only plaintiff.
    Same — Same—Not Guilty — Waiver of Objection to Condition of Plaintiff. — in such a case, if the defendant pleads not guilty, he cannot afterwards object, that the condition of the plaintiff was not put in issue.
    Transfer of Cause from County to District Court — flu-tual Consent. — The parties may, by mutual consent, transfer a cause from a county court into Ithe district court.
    The appellee brought an action of assault and battery and false imprisonment on behalf of herself and several of her children, against the appellant in the county court. Plea not guilty, and issue. Pive successive juries were sworn, but neither of them rendered a verdict. In consequence of which, the parties, by consent, transferred the cause to the district court, where it was docketed and tried. The jury found that the plaintiff was free, and assessed her damages to $30 : which she released. The judgment of the court was, that she should recover her freedom with costs of suit: And Parish appealed to the court of appeals.
    Randolph, for the appellant.
    The district court had not jurisdiction ; for the cause originated in the county court, and was docketed in the district court by consent of counsel, who could not transfer jurisdiction. 2 Wash. 300; 1 Call, 54. The plea is not guilty generally, and does not state whether the plaintiffs were bond or free; which is error ; *for the condition of the plaintiff in a suit of this kind ought to be alleged in the pleadings. The verdict is uncertain, as it does not distinguish which of the plaintiffs are free.
    Botts, contra.
    All that relates to the children is surplusage ; for one person cannot sue for another. The court had jurisdiction ; because the plaintiff may appear to a declaration without a writ; and, if he does so, he is rectus in curia, and cannot object after-wards that he has not been properly called into court. 1 Wash. 379. This, in fact, was no more than that ; for it is, in effect, the filing of a declaration by the plaintiff, and an appearance by the defendant. The cases cited by the appellant’s counsel only prove that consent cannot give jurisdiction to a court which has not original cognizance of the subject; and not that the parties are unable to waive the form of citation, and come into court without process. Thus, in M’Call v. Peachy, 1 Call, 55, it was decided, that the very essence of the jurisdiction of this court was, that there should be an appeal, as the court had not original cognizance. Of course, one of the main ingredients of jurisdiction was wanting in that case; because there was no appeal. But the case would have been different, if the court had had original cognizance. 2 Wash. 214. It was the defendant’s own fault, that he did not put the condition of the plaintiff in issue ; and therefore, if any inconvenience results to him from the omission, he has no right to complain ; especially as the plaintiff could not compel him to plead that she was a slave. But it was not necessary that the point should be specially stated ; for any form of pleading will do, and the merits may be examined at large, although the issue be not technically regular. Coleman v. Dick and Patt, 1 Wash. 238. The finding of the jury is, in substance, a general verdict for the plaintiff, as all the irrelevant matter may be rejected as surplusage.
    Cur. adv. vult.
   *EYONS, President,

delivered the resolution of the court, as follows :

The only real plaintiff in the cause is Jenny Gray ; and the mention of her children has no other effect than as serving- to shew, that a verdict in her favour would enure to their benefit. It was therefore a mere redundancy, without any operation, as the same consequence would have followed from the verdict, whether those words were inserted or not. Of course, they may be disregarded; and then it is a suit brought by the mother only ; which obviates the objection, that the verdict has only found for the plaintiff, without saying which of them, or any how disposing of the others.

With respect to the exception, that the plaintiff’s condition is not put in issue, the answer is, That it was the defendant’s own fault; since he had his choice to plead it, or not: And, if he has failed to do so, he certainly has no right to complain. But how is he injured ? There is nothing which looks that way ; for it appears by the verdict, that a full enquiry into the plaintiff’s right to freedom was allowed ; and therefore, he had the same benefit upon this, that he would have had upon the other issue.

The objection to the jurisdiction of the district court is altogether unfounded. Tor the cause was docketed by consent; and it was no more, in effect, than a dismission of the suit in the county court, and filing the same pleadings, by mutual consent, in the district court; where both parties appeared, and as the court had jurisdiction over the subject, neither could afterwards object to the mode of bringing the cause into court.

The judgment is therefore affirmed.  