Hyde v. Watson

1 Denio 670 | Court for the Trial of Impeachments and Correction of Errors | 1845

By the Court, Jewett, J.

The plea is clearly bad on special demurrer. By using the words “ and the said Basil Watson ” he admits himself -to be the person sued. It should have commenced “ And Basil Watson, against whom the said plaintiffs have exhibited their said declaration by the name of Baswell Watson, comes and defends,” &c. (2 Saund. Rep. 209, b. note ; Roberts v. Moon, 5 T. R. 487; 1 Chit. Pl. 411, ed of 1812; Haworth v. Spraggs, 8 T. R. 515.)

The plaintiffs’ attorney supposes he had a right to treat this plea as a nullity, and refers to Bray v. Haller, (2 Moore, 213,) and 1 Dowl. Pr. Cas. 693. These cases do not sustain that position. When the plea is filed without an affidavit to verify it, or where the affidavit is insufficient, the plaintiff may treat it as a nullity and sign judgment. This is all that is shewn by these cases. (Grah. Prac. 2d ed. 230.) In this case the plea was verified by a sufficient affidavit. The defendant’s default and all subsequent proceedings must be set aside as irregular.

Motion granted.