Hawley v. Castle

The declaration is ill. — The counting is of a joint tenancy, or tenancy in common. The conclusion and demand is — “ That the defendants refuse to make partition thereof, and prevent the same being done — to the plaintiff’s damage £70 — and for the recovery thereof, with cost, this suit is brought,” etc.— Here is no demand of partition, without which the action is nugatory and vain. This omission is not cured by verdict.

The defendants then moved, that cost might be taxed in their favor. But,

By the Ooubt. It cannot; for the defendants might have taken this advantage, by demurrer, at the beginning of the suit; and after having led the plaintiff through a trial, on the merits of the cause, if the defendants will then defeat him, by a defect which they might have availed themselves of at an early stage of the suit, they shall not be allowed their cost. — This rule has been settled on full deliberation.