
    John M’Lure, and others v. Alex. Vernon.
    
      Before Mr. Justice Richardson, at Spartanburgh, Spring Term> 1834.
    where a decía-in^ther respects perfect,misstates name for that of setting3out^t'hat the chattels sued sedbythePde/ere' tíre^’iaintuF^he mutate can only tagc'ot'by^spw «¡ai demurrer¡ but not even in that way, if there has been order forjudgementby default, which can only be set asido on the dc* fendantpleadiiig issuably.
    
      [Note by tho Court.] Tho right of appeal is supposed to be derived from the Act of 1833, referred to.
    This was an action of trover for negroes. The declaration commenced in the usual form, by stating that the defendant was attached to answer to tho plaintiff “ of a plea of trespass on the case, - &c. but m setting out the cause oí action, it states that “ whereas the said Alexander (instead of naming the plaintiffs) heretofore, to wit, on the-day of &c. at &c. was lawfully possessed of their own property of certain negroes, tnam'n§ *-tiem] ar*d being so possessed, the said plaintiffs, <Szc. &c.” An order for judgement had been taken, -which was set aside on the usual terms, and the defendant pled the general issue. After tho plaintiffs closed their evidence, the counsel for 
      the defendant moved for a nonsuit, on the ground that the declaration stated the negroes to be the property of the defendant, and therefore contained no cause of action. His Honor sustained the motion, and the plaintiffs appealed, and now move to set the nonsuit aside, on the ground that under the state of the pleadings, the defendant could not take advantage of a mere mistake of form.
    
      Bobo, for the motion,
    cited I Chitty’s PI, 640,642 ; lb. 257 ; Com. Dig. tit. case, H. 2.
    
      Henry, contra.
   Harper, J.

This is evidently a mere formal defect, which could only be taken advantage of by special demurrer, under the statutes 27 Eliz. c. 5, and 4 Ann, c. 16, and which would be cured by a verdict. It is said in Chitty’s Treatise on Pleading, vol. 1, p. 257: “ But when the plaintiff’s name has by mistake been inserted in place of the defendant’s, or vice versa, the declaration will be bad upon special demurrer, though it is aided by verdict, general demurrer, by the statute of Jeofails.” So in Comyn’s Digest, tit. Action upon the case, Assumpsit, H. 3. “ So if it be-said that the defendant, being indebted for money received to the use of the defendant, (for the plaintiff) it is good after verdict.”

“So-if it be said the plaintiff assumed, (where it should bo the defendant) it shall be aided after verdict as a mistake of the clerk, where the plaintiff and defendant were well named before.”

In this case the plaintiffs and defendant were well named before. The declaration sets out that “ Alexander Vernon was attached to answer John M’Lure, Thomas M'Lure and Adam Cooper, of a plea of trespass on the case, and so forth, and" thereupon the said plaintiffs complain, for that whereas the said Alexander, &c.”

In Morgan v. Sargent, one of the bail of Owens, (1 Bos. & Pal. 58,) the declaration, after reciting the writ, &c. proceeded, “ by reason of which premises, and by force of the statute, &c. an action hath accrued to the said T. Morgan, as assignee, &c. to demand and have of the saidT. Owen the said sum of £40, above demanded: Nevertheless the said T. Owen, although often required, hath not paid, &c.” — inserting Owen’s name for that of the defendant. There was a special demurrer. Chief Justice Eyre said, “you must argue it as a mere point of form; if you attempt to argue it on the substance, you must fail. This is a slip in form ; but it is always the best way to made the party pay for this kind of slip, if advantage is taken of it by special demurrer.” See also Harvey v. Stokes, Willes, 8, 9.

In this case, however, the defendant could not have demurred specially. There had been an order for judgement by default against him, which he could only sot aside by pleading issuably, and the rule is that where the defendant is under terms of pleading issuably, no formal defect can be assigned as cause of demurrer'. 1 Chit. Pl. 642.

The motion is granted.

Johnson and O’Neall, Js. concurred.  