Ball v. President

6 Cow. 70

• Court: New York Supreme Court
• Decided: August 15, 1826
• Status: Published

Opinion

Curia.

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

Motion denied.