Binfield against Maxwell
| Jurisdiction | England & Wales |
| Judgment Date | 08 February 1812 |
| Date | 08 February 1812 |
| Court | Court of the King's Bench |
English Reports Citation: 104 E.R. 804
IN THE COURT OF KING'S BENCH
binfield against maxwell (a)1. Saturday, Feb. 8th, 1812. The defendant, having given a bail-bond to the sheriff on his arrest, and been afterwards served with notice of declaration; if he do not plead in abatement for a misnomer within the four first days, the Court will not afterwards (though before pleading in chief) set aside the proceedings, upon motion, on the ground that he had been arrested and declared against by a wrong Christian name. A rule was obtained by the defendant, calling on the plaintiff to shew cause why the process on which the defendant had been arrested, the bail-bond given thereon, and proceedings (if any) had against him, should not be set aside, on the ground that he had been arrested by the name of James, whereas his name was John. Taddy now shewed cause upon an affidavit, which stated that the notice of declaration was served on the 23d _ of January upon the defendant in the name of James Maxwell, and that this rule was not obtained until the 29th of January. He contended therefore that the party came too late with his objection, having [160] suffered the time for pleading in abatement, in which mode he might have'availed himself of the misnomer, to pass by; and that the Court would not give him the effect of such a plea by way of motion, where there was no doubt of the identity of the party. He cited the ease of Oakley v. Giles (a)3. Marryat, contra, relied on Wilks v. Lorck (b), where other cases in this Court subse- (a)1 Note of M. and S. (a)2 3 East, 167. (J) 2 Taunt. 399. In addition to Delaney v. Cannon, 10 East, 328, Shadgett v. Clipson, 8 East, 328; and Dring v. Dickenson, 11 East, 225, there cited, see Clarke v, Baker, 13 East, 273. 15 EAST, 161. KEEN V. DORM AY 805 quentfto that of Oakley v. Giles were referred to : there the defendant was...
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