Willard against Missani

Willard against Missani. The declarat10n must agree with the parties. procesgr ¡s a£ °f B.W. and the declaration is in the name of C. W. stating that the defendantwas arrested at his suit, by the name of G. B. W. the declaration was set aside for irregularity. Where the .defendant is sued by a wrong name, but appears by his right one, he may be declared against by the latter. Davis, moved to set aside the declaration, for irregular!-717-7 ty. The capias ad resp. was at the suit of George B. Willard against John Theodore De Missani, who put in special bail the 23d January last, at the suit of George B. Willard, The declaration commenced thus : “ Charles Willard, at whose suit, by the name of George B. Willard, John Theodore De Missani was arrested in this suit,7 &c. Russell, contra, referred to Murray v. Hulbart, (1 B. & P. 645,) Symmers v. Wason, (id. 105,) and to 1 Chitty's Pl. 251-2, which, in terms, sanctions this mode of declaring. He said, the defendant is not entitled to oyer, in order to plead this matter in abatement ; and ought not to be permitted to take advantage of the variance in this summary way. (Tidd, 404. Spalding v. Mure, 6 T. R. 363.) Davis, said that for this very reason the objection should be allowed. Here was an attempt to charge a man, by declaring in a cause wherein no writ ever issued, and in which neither party are in Court. No case can be found to sanction such a proceeding. The authorities referred to, in Bosanquet fy Puller, are where the defendant is misnamed. [MAJORITY — Curia.] 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,