Atkinson v. Clapp

1 Wend. 71

Opinion

By the Court,

Savage, Ch. J.

Under a rule to amend, the_ plaintiff was not authorized to insert in his declaration the name of a person as defendant, who had not been arrested or named in the capias. (4 Cowen’s R. 148.) Evans, named in the writ, had not been arrested, nor is he in court to take advantage of the variance; and Atkinson cannot avail himself by plea in abatement of a misnomer of a co-deferidant. (Lutw. 36.) The defendant is, therefore, correct in his application to set aside the narr. The motion is granted, with costs.