
    Tousey v. Butler.
    A mistake in stating the names of the members of a partnership, plaintiffs, may be corrected by amend m ent after plea in abatement filed. (Note 93.)
    Note 93. — Tvyon v. Bailer, post, S53.
    Error from ’Walker. The plaintiffs were a mercantile firm, doing business under the name of George Butler & Brother. In setting out the names of the members of the linn tile petition stated them as George Butler aud Jonas Butler.
    The defendant pleaded in abatement that the names of the members of the firm were not George and Jonas, but were George and E. M. II. Butler. The plaintiff thereupon amended his petition, conforming to the plea, to which the defendant excepted. The exception was overruled; there was judgment for the plaintiffs, and the defendant appealed.
    
      A. P. IViley, for plaintiff’ in error.
    I. The court erred in permitting the plaintiffs below to amend their petition, thereby adding new parties, whose complaint defendant below was not cited to answer. Neither the non-joinder nor tho misjoinder appearing on the face of the pleadings, it was proper matter in abatement. (1 Chilly PL, m. p. 13, 453.) Besides the pica was a denial of the partnership under the statute.
    II. The amendment admitted the truth of tho plea and should not have been allowed. If the objection bad been a mere misnomer of the defendant, then ihe amendment might have been made according to the case of Cartwright v. Chabert, (3 Tex. B., 2lil,) which accords with the common-law mode of pleading in this particular; for by the 3 and 4 W., 4 c. 42, sec. 11, tho plaintiff might by tho, plea amend on payment of costs. (1 Chitty Pi., in. p. .452.) But this has never been held to apply to a non-joinder or misjoinder. The plaintiff, from his knowledge of the persons in whom the legal interest vests, is expected to bring into court all necessary and proper parties, and lienee should not be allowed to come carelessly into court wrong, and put himself right at defendant’s cost.
    
      Yoakum fy Campbell, for defendants in error.
    The error assigned is that plaintiffs below could not amend by correcting the Christian name of one of the partum of the firm. The defendants in error rely upon the statute and the case of Cartwright v, Chabert, 3 Tex. K., 201.
   Wheeler. J.

The mistake in stating the Christian name of one of the parties plaintiff is tho common case of a misnomer; and it is well settled that after misnomer pleaded in abatement, the plaintiff may correct the mistake by amendment: (Cartwright v. Chabert, 3 Tex. R., 261.) It can malee no difference whether the misnomer pleaded be tho Christian or surname; the rule is the same.

Judgment affirmed.  