Decision—judgment affirmed, unanimously.

Note.—Bronson, Judge, delivered the opinion of the court, and held, that it Was an action on the case. That it was not necessary to mention the form of the action in the commencement of the declaration; that was determined by the matter contained in the declaration—not by the name which the plaintiff might give it.

As to the writ. It was of no importance how the defendant came into court. It was enough that he appeared and pleaded to the declaration in an action of which the court had jurisdiction. He could not afterward object, that he was not regularly brought into court, or that the declaration varied from the process.

Reported 1 Comstock, 223.