Bull v. Traynham

Curia, per

Frost, J.

According to the English practice before the statute 3 and 4 Wm. 4, c. 42, a misnomer of the plaintiff could only be pleaded in abatement, and was no ground for setting aside the proceedings. When the name of the plaintiff was mistaken in the process, it was permitted to the plaintiff to set out in the declaration, that the plaintiff, by his real name, had arrested the defendant, by the name set out in the process, and then proceed to charge the defendant by the real name of the plaintiff. 1 Ch. PI. 225. But it having been decided, that in our practice, the writ is part of .the record, and that a variance between it and the declaration may be pleaded in abatement, or made the subject of a special demurrer, a mistake in the name of the plaintiff in the process cannot be amended according to the English practice. Since the plaintiff cannot obviate the objection, it is convenient in practice, and saves expense to the parties, that it should be made at the earliest stage of the proceeding. When the writ or service of it is irregular, the practice is to set it aside on motion ; and that practice is suitable to the present case.

The motion is granted.

Richardson, O’Neall, Evans and Butler, JJ. concurred..