Willard v. Missani

1 Cow. 37 | N.Y. Sup. Ct. | 1823

Curia.

The 1 Chitty on Pl. 251-2, is an authority for this mode of declaring ; but the case to which he refers is Murray v. Hubbart, (1 B. & P. 645.) This case does not bear him out. It is where a defendant, sued by a wrong name, appeared, and was declared against by his right one. The case here is directly the reverse. The capias is at the suit of George B. Willard, according to which the defendant appears. Charles Willard then comes in and declares in his own name. The declaration must correspond with the process in the names of the parties. (Tidd, 402.) The case of a defendant, sued by a wrong name and appearing in his right onp, is an exception to this rule. The plaintiff may, in such case, declare against him, by the name in which he appears, stating that he was arrested or served with process by the other: for, by appearing, the defendant admits himelf to be the person sued, and so the variance is immaterial. (Tidd, 402. Hole v. Finch, 2 Wils. 393.)

And the motion was granted,