
    
      James H. Barry & Co. vs. John H. Carothers.
    
    In debt on judgment, plaintiffs averred that the plaintiff called in the judgment S. G. is the same person called in this action Samuel G.} and that the plaintiff called in the judgment Samuel G. is the same person called in this action Andrew G.; that the plaintiffs herein truly named are the same persons called in the judgment by the names of £>. G. and Samuel G. Plea, nul tiel record. The judgment when produced was found to answer the description, and plaintiffs proved their true names as alleged, and their identity with the plaintiffs in the judgment: Held, that there was no variance for which plaintiffs could be non-suited.
    
      Held, also, that it was admissible for the plaintiffs to prove, under the pleadings, that they were in fact the plaintiffs in the judgment — misnamed therein.
    
      Before Glover, J., at York, Spring Term, 1853.
    The report of his Honor, the presiding Judge, is as follows :
    
      “ This was an action of debt on a judgment recovered in North-Carolina. Plea, nul tiel record.
    “ At the Fall Term of the Court an order was passed granting leave to the plaintiffs ‘ to amend their declaration by adding a count, setting forth such names and allegations as may serve to show that there is no variance between the plaintiffs now suing and the plaintiffs in the former recovery.’
    “ By virtue of this order a count was added, alleging that Andrew J. Gingles constituted a member of the firm of J. H. Barry &■ Co., and not Samuel Gingles, as was recited in the exemplification of the record. The defendant objected to the introduction of evidence to sustain this allegation; but the objection was overruled, because the amendment ordered was within the discretion of the Court, and to exclude the evidence would defeat the object of the amendment.
    
      “ May proved, that the firm of J. H. Barry & Co. consisted of James H. Barry, Samuel D. Carothers and Andrew J. Gingles : that he sold his stock of goods to that firm, and knows the persons who constituted it; that he was present at the trial of the cause in North-Carolina, and that Andrew J. Gingles is the person intended, and not Samuel Gingles named in the proceedings.
    
      “ The defendant then moved for a non-suit, on the ground of variance in the statement of the record, which motion was refused, because the amendment, which had been allowed, made the names in the original record correspond to the true names of the copartnership, and such amendment being within the discretion of the Court, removed the objection of variance under the issue of nul tiel record.
    
      “ The defendant gavo notice of his intention to renew the motion for a non-suit on the grounds annexed.”
    The defendant appealed and now renewed his motion for a non-suit, on the grounds
    1. Because of the variance between the names of the plaintiffs in this action and the names of those appearing as plaintiffs in the exemplification of judgment offered in evidence.
    2. Because his Honor erred in permitting evidence to be offered, that Andrew J. Gingles was in fact a plaintiff in the foreign action, in contradiction of the record offered in evidence.
    
      Smith, for appellant.
    
      Williams, contra.
   The opinion of the Court was delivered by

Wardlaw, J.

Under the leave of amendment granted to them the plaintiffs (J. H. Barry, Samuel D. Carothers and Andrew J. Gingles, partners trading under the style of J. H. Barry & Co.) added a count, wherein it was alleged, that the plaintiffs, in a County Court of North-Carolina, recovered judgment against the defendant, John H. Carothers — the said plaintiffs being therein called James H. Barry, S. D. Carothers and Samuel Gingles j of whom the person therein called S. D. Carothers, is the same person who in this action is called and known as Samuel D. Carothers; and the person therein called Samuel Gingles, is the same who is herein called and known as Andrew J. Gingles; to which a separate and distinct averment was subjoined, that the plaintiffs herein truly named, are the same persons called in the said judgment by the names of James H. Barry, S. D. Carothers and Samuel Gingles.

The judgment is found, upon inspection, to be exactly conformable to the description of it contained in the count — there is, then, no variance, and upon nul tiel record, the only plea, the plaintiffs must prevail. If the defendant desired to deny the identity of the plaintiffs with the persons who recovered the judgment, he should have traversed the averment of identity. If he meant to insist that the averment could not reconcile the apparent disagreement between the plaintiffs in this action and the persons who recovered the former judgment, he might have demurred : He however moved a non-suit for variance, thereby in effect contending, that the averment, (although its truth was established,) was insufficient to overcome the discrepancy of names. A name is however but the designation of an individual. When it is proved that the individual here is the same who was there, a seeming diversity has been removed, which arose from a difference of the names given to him at the two places. The judgment in North-Carolina establishes the defendant’s indebtedness to the plaintiffs in that judgment; — no death, assignment, nor other change, supervening that judgment, could be shown by the plaintiffs here, to maintain their action ; and if proof under proper allegations, that they in fact were the persons who recovered that judgment, should be held not to suffice for the plaintiffs here, the result would be, that the defendant, in an action on a judgment, would make an impenetrable shield of a misnomer, which he waived in the first action when he failed to plead it in abatement.

The motion is dismissed.

O’Neall, Fjrost, WhitNer and Glover, JJ., concurred.

Motion dismissed.  