Hyde v. Watson — 1 Denio 670

Majority

p. 670

Hyde and wife vs. Watson.

Headnote

A plea in abatement setting up the misnomer of the defendant commencing “ And ike said Basil W., against whom the said plaintiff has exhibited his declaration by the name of Baswell W-, comes and says,” is bad on special demurrer. It should commence “ And Basil W.” &c. Per Jewett, J.

But the plaintiff cannot disregard the plea and enter the defendant’s default.

Motion to set aside a default for irregularity. The defendant, within the time allowed for that purpose, put in a plea in abatement, commencing as follows: “ And the said Basil Watson, against whom the said plaintiffs have exhibited their said declaration by the name of Baswell Watson, in his own proper person comes and says,” &c. setting up the misnomer in abatement. The plea was duly verified by affidavit. The plaintiffs, disregarding the plea, at the expiration of the notice to plead entered the defendant’s default, and subsequently executed a writ of inquiry of damages.

John Percy, for the defendant.

C. A. Pugsley, for the plaintiffs.

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

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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.