Clark v. Benton Farmer's Woollen Manufacturing Co.

Headnote

In a suit against a corporation, the defendants are not entitled to set aside the proceedings for a variance between the writ and declaration in the cause of action, or because the venue is changed in the declaration from what it was in the writ.

In this case, an original writ was issued and served upon the treasurer of the company; the cause of action set forth in the writ was the malting of a promissory note by the defendants, alleged to have been made at Milo in the county of Yates. The writ was returnable on the 19th of July. On the 22d July, the plaintiff filed a declaration, laying the venue in

Tates. On the sixth day of August, notice of retainer of an attorney by the defendants was served. On the next day, the plaintiff filed an amended declaration, laying the venue in Onondaga county, and stating the note déclared upon to have been made at Milo, in the county of Yates, to wit, at Onondaga, in the county of Onondaga, and on the eighth day of August served a copy of the amended declaration on the defendant’s attorney. The defendant moved to set aside the amended declaration and all subsequent proceeding for irregularity, on the ground of variance between the writ and declaration. For the plaintiff, it was insisted, that the only effect of a variance in the cause of action between the writ and declaration is, that in a bailable case, the defendant is entitled to be discharged on common appearance, but that the proceeding will not, for that cause, be set aside; and that the same consequence, and no other, flows from a change of venue. 1 Chitty’s Pl. 249, 255. That here no bail being demanded, the defendants were not entitled to ask any thing.