Atkinson v. Clapp

Decided August 15, 1828

New York Supreme Court · decided 1828-08-15

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.

Good law ✅— No negative treatment on recordhow we know

Decided 1828-08-15

How this case has been cited

Cited by 4 later decisions — most recently April 1934

1 federal appellate · 3 state decisions

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

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¶1By the Court,

Savage, Ch. J.

¶2Under 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.