In-an action before a justice, the plaintiff declared by a different name from the. one mentioned in the summons, but the identity of the person was ascertained ; the defendant did not appear, but suffered judgment by default; it was hey, that he should have appeared and taken the advantage of the variance before the justice,, but could not avail himself of it afterwards.
On certiorari from a justice’s court.
Emott, for the plaintiff in error,
relied on the objection, that the plaintiff below declared before the justice by a name different from that in the summons, to wit, by the name of Carner.
Woodworthfor the defendant,
answered, that it appeared by the return, that the plaintiff below, as named in the declaration, was in fact the same person named in the summons, and that the return described him as such.
The defect is thereby cured. The identity of the plaintiff below being ascertained, it was the duty of the defendant there to have availed himself of the variance before the -justice, instead of which he did not appear, and suffered judgment by default, (a)
Judgment affirmed.
1 Johns. Cas. 243
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