12 Wend. 271
Decided February 19, 1835
New York Supreme Court · decided 1835-02-19
In an action of replevin commenced by writ, the plaintiff declared for a quantity of household furniture. The defendant put in a plea, in which he craved oyer of the writ and set it forth, and as set forth by him, it appeared that the officer was commanded to replévy as well a barouche waggon and harness as household furniture; and then, after setting forth the writ, the defendant pleaded the variance between the writ and declaration in abatement.
Cited by 2 later decisions — most recently June 1893
2 state decisions
Good law ✅— No negative treatment on recordhow we know
Decided 1835-02-19
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¶1By the Court,
¶2A variance between the writ and declaration is now pleadable in abatement; such variance could in no case be pleaded without craving oyer of the writ, in respect to which the practice is settled that the defendant cannot have such oyer. 1 Chitty’s Pl. 438, 9, and the cases, there cited.
¶3Motion granted.