OPINION OF THE COURT. The writ in this case was issued against Valentine B. Holmes, and it was served on Vivian B Holmes, against whom the declaration was filed.
The defendant did not appear, but Mr. Baker, his counsel, suggested to the court, that the service of the writ, having been made on a person different from the one named in the writ, the plaintiffs could not proceed in the case. That if the defendant fail to appear, the writ must have been regularly served on him, before he can be considered in court, so as to authorize a judgment against him.
This motion was opposed by Davis & For-man, who appeared for the plaintiffs; but the court held that the proceedings were irregular, and that the question might be brought before the court, in the mode adopted, or by a plea in abatement, for a variance between the declaration and the writ In England, a plea in abatement for such a variance cannot be filed, as a copy of the writ is refused.
On suggestion of the court, the plaintiffs, by consent, were permitted to amend the writ on the payment of all costs, and a continuance of the cause.