Parkman v. Sherman

The Court, in this cause, determined that when both notice and affidavit are wrong titled by reversing the parties and putting the defendant in the place of the plaintiff, the error is fatal; and this case was distinguished from that of Ryers v. Hillyer, (ante, 112,) because there, though the parties were reversed in the title of the notice, yet in that of the affidavit they were rightly named; so that, independent of the object of the notice in that suit, there was a proper . title to rectify the mistake; but in this, where, in every paper the action was as if by the defendant against the plaintiff, there was not anything by which the mistake could be cleared up, and the notice might, therefore, be in a cross suit, where the parties actually were reversed. [2] Footnotes [[2]] See 2 Cow. 581; 1 Wend. 22; 11 Wend. 178; 3 Caines, 140 4 Cow 60; Code of Procedure, see. 406.