
    John K. Stone, vs. Aaron Van Curler, in Error.
    Bennington,
    
      February, 1829.
    That a material defect in a writ is cured, by the defendant’s appearing, and pleading to the merits.
    Thatthe neglect to add the similiter, when there is a verdict, and judgment upon that verdict, is not a cause for reversing that judgment, on a writ of error.
    Neither is the omission of the word plaintiff, in the ad daimum.
    
      ^18 1,ecorci brought up in this case showed that the parties both lived in Manchester ; that Van Curler had his writ in tro-ver signed by a justice of the peace in Sandgate, and it was made returnable before him at his dwelling house in Sandgate, at a time certain. The writ was duly served upon Stone, and at the time therein set for trial, the court was called at Manchester, where both parties appeared and had a trial upon the merits, with out any plea in abatement being interposed by the defendant, Stone. Van Curler recovered judgment, and Stone appealed to the County Court, and there entered his appeal, and put in a formal plea of the general issue to the country. Van Curler’s counsel neglected to add the similiter. No notice was taken of this; but the cause was tried by the jury, on the original declaration, and Van Curler obtained a verdict, and recovered judgment thereon. There was, also, a defect in the writ; it concluded “ to the damage of the thirty dollars;” the word “ plaintiff” being omitted. There was no motion in arrest, nor were these difficulties, in any way, brought to view, in the'County Court. Stone now brought his writ of error, assigning these several matters, and perhaps others, for error. Van Curler pleaded in nullo est erratum, and issue was joined thereon.
   Hutchinson, J.

delivered the opinion of the Court. The original writ in this case, being made returnable in Sandgate, when both parties resided in Manchester, furnished a good cause of abatement, had it been so pleaded. But it appears that both parties appeared, and had a trial upon the merits in Manchester; and nothing appears hut what they both supposed the writ returnable there. The Justice had jurisdiction of the parties and over the cause of action : but Stone had a right to be sued in Manchester only, as Van Curler resided there also. But Van Curler had a right to have the objection raised in season, or never. After two trials upon the merits, this objection cannot be reached by a writ of error.

The objection to the want of venue in the declaration, also to the defect in the ad damnum, ought to be raised by a special demurrer to avail the party : so also, the not filing anew declaration in the County Court. The rules of the County Court do not require anew declaration — they permit one to be filed within certain periods ; but if the plaintiff considers the declaration, that comes up with the record, to be a good one, he may rest upon it.

The want of adding the similiter, would have been bad before any statutes oí jeofails, but now, such matters of formare amendable, at any time, on motion; and, after verdict and judgment, are considered as amended. The plaintiff in Error has raise his objections at too late a period.

S. Sivift, for plaintiff in Error.

h. Sargent, for defendant in Error.

The judgment of the County Courtis affirmed.  