Legal Opinion

Hyde v. Watson

Court for the Trial of Impeachments and Correction of Errors

Decided December 15, 1845PublishedCited by 1 opinion

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.

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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.

1Opinion of the Court

By the Court, Jewett, J.

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 *671commenced “ 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.…

2Cited by1 opinion

  1. Feasler v. SchrieverIllinois Supreme Court · 1873

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