Hyperlawhypertext legal databasebeta Cronly v. Brown 12 Wend. 271

← Cases

Cronly v. Brown

12 Wend. 271 Court N.Y. Sup. Ct. Decision date 1835-02-19 English

Delivered by Sutherland, J.

Contents

Majority

p. 271
Cronly vs. Brown.

Headnote

A variance between the writ and declaration is not pleadable in abatement.
In an action of replevin commenced by writ, the plaintiff declared for a quantity of household furniture. The defendant put in a plea, in which he craved oyer of the writ and set it forth, and as set forth by him, it appeared that the officer was commanded to replévy as well a barouche waggon and harness as household furniture; and then, after setting forth the writ, the defendant pleaded the variance between the writ and declaration in abatement. The plaintiff moved to strike out the plea. The defendant, in opposition to the motion, read a certified copy of the writ, in which the barouche and harness were specified, as well as that mentioned in the declaration.
February 19.

By the Court,

A variance between the writ and declaration is now pleadable in abatement; such variance could in no case be pleaded without craving oyer of the writ, in respect to which the practice is settled that the defendant cannot have such oyer. 1 Chitty’s Pl. 438, 9, and the cases, there cited.

Motion granted.