
    Cozens and Brothers v. Daniel House.
    On the joint and several note of a man and his wife, a writ was issued against both, as separate persons. It seems that the declaration against husband alone, suggesting the relation of the parties, would have been good; ’ but, for want of such suggestion, it was bad on special demurrer.
    
      Quaire, whether on special demurrer, such variance would defeat the action, or, only-put the plaintiff to amend.
    Such variance is not the subject of a motion for nonsuit after plea ; for the plea has denied the declaration without reference to the writ.
    Before Butler, J., at Columbia, March, Extra Term, 1840.
    Action on a joint and several note made by the defendant and his wife. The writ was against both; the declaration, against the husband alone. Defendant moved for a nonsuit, which was overruled; and plaintiff took judgment against the husband.
    Defendant renewed his motion in the Court of Appeals, on the ground that the plaintiff had sued on a joint contract, whereas the note offered in evidence was the separate note of Daniel House; the signature of the wife being a nullity.
   Curia, per Butler, J.

By our law, according to approved decisions, the writ may be referred to as part of the record, and hence, the declaration should conform to and be consist-exit with it. A material variance between them would be fatal to the action. As a general rule, the declaration should retain the names and the-relation of the parties, as they are stated in the writ. But there are cases where the name of a party may be dropped from the declaration, that had been included in the writ; as in Coldwell v. Harp, (2 M’C. R. 275,) where the plaintiff had brought an action against two, on a joint and several demand, and had declared against one. By looking at the writ it appeared that but one of the parties had ben served, so that but one, in fact, was sued. In such case, it was held that the plaintiff might discontinue as to one and proceed against the other, without making different parts of the record inconsistent. If it had appeared in the case under consideration, either by the writ, or by suggestion in the declaration, that the defendants were husband and wife, the declaration against the husband alone would have been good; because the record would have explained itself. This, however, does not appear, and there is a departure, in the declaration, from the writ.

See 2 McM. 346. An.

Be Scmssure, for the motion;

Black and Arthur, contra.

It is unnecessary for us to say what would have been the precise legal effect of the variance, if it had been properly taken advantage of. There is no doubt that advantage of it could have been taken by special demurrer. Young v. Gray, (1 M’C. R. 211.) This might not have defeated the action; but only have arrested it, so as to enable the plaintiff to amend his proceedings. We think the defendant was properly denied the right of excepting to the defect, on a motion for a nonsuit, after having pleaded to the declaration; for the plea denied the defendant’s liability according to the allegations of the declaration, without reference to the writ.

Motion dismissed; Gantt, Eyans and Earle, JJ., concurring. 
      
       See ante, 185 ; 3 Strob. 282. An.
      
     