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Ball v. President

6 Cow. 70 Court N.Y. Sup. Ct. English

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p. 70
Ball against The President, Directors and Company of the Bank of Utica.
UTICA,
Aug. 1826.

Headnote

A declaration will not be set aside on the ground that it varies from the original writ; though that original be a «pedal one.
G. C. Bronson
moved to set aside the amended declaration, on the ground of variance from the special original. The writ was in assumpsit; and had four counts on special agreement. The first declaration followed the writ; but the plaintiff amended of course ; omitting all the special counts of the writ, and inserting the general ones in as-sumpsit.
B. D. Noxon, contra,
relied on 1 Saund. 318, a. note (3), and the cases there cited; with what this court said in Rogers v. Rogers, ( 4 John. 485 ,) and the cases there cited.
Bronson, in reply,
said these authorities sanctioned the variance only in cases of general originals; as the original guare clausum fregit, which is used in the English C. P.

This does not appear to be the distinction. In general, now, variance from the original cannot be pleaded in abatement, whether- the original be general or special. There is hardly an exception to this rule. Even on error for the variance, this court will suffer the plaintiff to amend the original, so as to conform to the declaration ; and that may be done at any time in this case, provided it becomes necessary. (1 Chit. Pl. 246, 249.)

Then the defendant shall not be permitted to do that by motion to set aside the proceedings, which he could not do in any other way. We will not look into the original to sustain such a motion. (1 Saund. 318, a. note (3).)

Spaulding v. Mure, (6 T. R. 363,) is in point. That was a specal originial with 4 counts in assumpsit; 2 against the defendants as surviving partners; the others in their own right. They having given bail, the plaintiff declared against them in their own right only. The court agreed

p. 71
that this was a variance in subatance ; and they discharged the bail. But they refused to set aside the declaration.

Motion denied.