General

Henderson against David Ballantine and Alexander Johnson

4 Cow. 549·New York Supreme Court·1825·NY

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Opinion

Henderson against David Ballantine and Alexander Johnson. Default against the defendant, for want of a plea, set aside, for varianco between the writ and count in the Christian name of one of the defendants, the writ being Alexander and the count Andrew. In replevin, the writ was against the defendants by their true names of David and Alexander; their attorney gave notice of retainer to the plaintiff’s attorney; but had not otherwise taken any steps in the cause; and no appearance was entered. The count filed, and the copy served on the defendants’ attorneys, were in the name of Andrew instead of Alexander Johnson, as one of the defendants; upon which the plaintiff’s attorney took judgment by default. A motion was now made to set the default aside as irregular, for this variance. " S. R. Hobbie, for the motion, cited Dunl. Pr. 236, 291, 400, 436; 1 Chit. Pl. 241, 249, 439 ; 12 John. Rep. 430; 1B. & P. 105 ; 1 Dunl. Pr. 134, 163, 331, 2 id. 876, 882; 1R. L. 92, 324; 1 Cowen’s Rep. 210 ; 6 John. Rep. 328 ; 3 Caines’ Rep. 96. S. Sherioood, contra. [MAJORITY — Curia.] Curia. The motion must be granted for the variance between the writ and count. Motion granted.