Atkinson, impleaded, &c. ads. Clapp.
Under a rule to amend, the name of a person not arrested cannot be inserted in a declaration. In a suit against two defendants, is arrested, the defendant in court may complain of such irregularity on motion.
Motion to set aside declaration and subsequent proceed-The plaintiff issued a capias against Atkinson and John Evans. Atkinson only was arrested, a declaration was served, and the general issue plead. Within 20 days after plea, the plaintiff amended his declaration by inserting the name of William, instead of John Evans, and served such amended declaration.
G. C. Sherman, for defendant.
L H. Bronson, for plaintiff.
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.