
    
      Chancy Cherry, (bearer,) vs. Jonathan Fergeson.
    
    He who brings an action, on a written instrument, must set it out correctly; and that which he offers in evidence, must correspond with that which he has described. The name of the original payee, to a promissory note, is an essential part of the description. And a misrecital is fatal.
    
      Before Gantt, J. Chester, Fall Term, 1841.
    This was a summary process, tried before his Honor, Judge Gantt, at Chester, Fall Term, 1841, of which his Honor reports, as follows:
    “ S. Process on note of hand, purporting to be payable to John Goodwright, or bearer, for the sum of $28 50, signed Jonathan Fergeson, and dated 24th June, 1840, on which is a credit of $3, of the 11th December, 1840. A regular appearance had been entered for the defendant; on the case being called for trial, the Counsel for the defendant, relied on a variance between the original and copy process, in this, that the name of Fergeson was left out in the copy, the statement in the copy being, that “Jonathan, the defendant, is indebted, &c.
    
    “ It was urged, also, that the person, to whom the note was made payable, was “Goodnight, and not Goodwright” as' stated in the process ; as the said Jonathan had appeared by attorney, and as the note was made payable to bearer, in which character the plaintiff sued out the process. I overruled the objection, and decreed for the plaintiff.”
    The defendant renewed his motion in the Appeal Court, for a non-suit, and to set aside the decree of his Honor, in this case, upon the ground :
    That the note sued on, and the one offered in evidence, were different. The note sued on, purported to be made payable to “John Goodwright,” and the note offered in evidence, was payable to one “ John Goodnight.” The allegata and probata, not corresponding, the Court should have sustained the defendant's motion for a non-suit.
   Curia, per

Earle, J.

Whether the omission of the surname, of the defendant, was such a defect, as would avail him,"in any form, it is immaterial to consider; when he appeared by attorney, and pleaded to the action, he waived the objection. The other ground of the motion is of more weight. He who brings his action, on a written instrument, must set it out correctly; and that which he offers in evidence, must correspond ■ with that which he has described. It was necessary for the plaintiff to set out in his process the note, from which he derived his right of action, that the defendant might know the nature of the demand, to which he was called upon to answer. The name of the original payee was an essential part of the description. And a misrecital was fatal. Goodnight is a different name from Goodwright; and there was nothing to obviate, or remedy the variance between the process, and the proof. The plaintiff, therefore, could not recover, and should have been non-suited. The decree for the plaintiff is set aside, and the motion for non-suit is now granted,

Wright & McMidlan, for the motion.

Eaves & Thompson, contra.

We concur. J. S. Richardson, J. B. O’Neall, J. J. Evans, A. P. Butler.  