Teer v. Sandford

GOLDTHWAITE, J. — The mistake of inserting the name of a cestui que use in the writ, seems as much beyond the reach of an amendment as a mistake in the name of any other party. Under our statute the cestui que use is liable for costs, [Aikin’s Digest 262 S. 22,] therefore, if for no other reason, the defendants had an interest in preventing and might be affected by a change of parties. The discharge of the cestui que use from the suit is stated in the amended declaration, and thus it became unnecessary for the defendants to disclose this matter by plea in abatement. The cases of Frierson et al. v. Blakely 3 Stew. 267: Moffit et al. v. Wooldridge, Ibid. 322: and McLean v. Erwin, supra, are similar in principle and decisive of this case. Let the judgment be reversed and the case remanded.