
    Garland against Chattle and Clough.
    .After, pie» too late’to take advantage .of a fiance between the detiierwri° and
    sued against a!¡-7romnuÍe tbu accrued.ac" attorneyvfinding was on a part-against A.^and ciáration gainst of the ’day which the wit was returnable, ¡íxyearaShadepleaded t^tidá. declaration nonassumpsit, and, rouastton“!efhia commencement* AvandB.withia bis years.
    for.:thedefendáh]t,mp.ved tpset aside the verdict in this, cause,, on the-, grounds of irregularity and* surprise. From .the . . . ? _ °J - , , ' . 1 ... atiidavits which. were read, it appeared that a writ was issued . '7 rr against Chattle alone, at the• suit of the plaintiff, on.the 9th- of ^ anuaryy 1.815,. returnable On Saturday, the last, day oí January tern*» i The'plaintiff’s attorney being afterwards informed^ that the demand was against Chattle and Clough, for money paid to the defendants On the 12th of Janv.ary, 1809, as partners in trade, and that Clough had, absconded and gone to Canada ; in order to save the statute of limitations,, he declared ágainst both defendants, as if Clough had.been .named in the writ, and served a copy of the declaration entitled of Saturday, the í 4th dáy of January,, in the téríií of January* on the defendant, Chaitle, who pleaded thereto . \ . 1 ,' non .assumpsit, ■ And the statute of limitations,, and the plaintiff replied to the second plea, generally, and issue was joined fliiappnn • . . " i-nereon# r •. ' -f ■
    At. the trial, at the last Orange circuit, thes plaintiff proved, money paid by him, for the use of the defendants, on the 12th of January, 1809, The chief justice, before whom the cá'Use wás tried, being of opinion that the plaintiff ’s demand was barred hf 
      the statute of limitations, called on him for further proof: the plaintiff’s counsel then produced the nisi prins record, from which it appeared, that the declaration was entitled generally of January term, 1815. The chief justice then said, as he could not look beyond the nisi prius record, the commencement of the suit must be considered, by relation, as of the first day of the term, which was the second day of January, and so being Within six years, the jury, under the direction of the judge, found a verdict for the plaintiff, for 2,154 dollars. The defendant, Chattle, not being apprized of the variance between the nisi prius record, and the copy of the declaration, relied wholly on the plea of the statute of limitations, and had not so pleaded as to enable him to avail himself of a set-off, and other defence, and was thus completely surprised.
    
      P. Ruggles and D. Ruggles, contra,
    read affidavits, to show that the plaintiff was entitled to recover his demand, independent of any plea or matter of defence set up by the defendants.
   Per Curiam.

The variance between the declaration and the writ, should have been taken advantage of in the proper time; but after plea pleaded by the defendant, Chattle, it is too late for him to make the objection. The writ was issued within the six years, and the declaration is to be considered as a continuance of the same suit, so that the statute was no bar. The motion: must be denied.

Motion denied*  