Tryon v. Butler

Wheeler, J. Our opinion in the case of Tousey v. Butler et al. [ante) meets the objections to the judgment in this ease as to the defendant Tousey. And as a misnomer of. parties must always be' pleaded in abatement, or the right to (he exception is lost, (1 Mass. R., 76; 5 Id., 97; 10 Id., 205; 16 Id., 146; 6 Munf. R., 219; 4 Cow. R., 148; 10 S. & R., 257,) the other defendant, Tryon, can bo in no better condition than his co-defendant, in consequence of having suffered judgment to go against him by default. Even if the petition had not been amended, this defendant, not having pleaded the misnomer in abatement, could not take advantage of it on error. The amendment having been properly allowed, cannot afford a ground for reversing the judgment. Judgment affrmed.