
    Tryon and another v. Butler.
    "Where the defendant was cited to answer the petition of Jonas Butler and .George Butler, merchants, trading under the name of (ieorgo Butler & Brother, and the defendant failing to appear, the plaintiffs amended by striking out the name of Jonas Butler and inserting the name of L. 1VI.H. Butler, and then took judgment by default: Held, There was no error. (Note MO.)
    Note 100. — Tousey v. Butler, ante, 525.
    Error from Walker. Facts same as in Tousey ». Butler, ante, 525, together with the fact that Tryon was a co-defendant who did not appear and against whom judgment went by default.
    
      Yoakum Campbell, for defendant in error.
   Wheeler, J.

Our opinion in the case of Tousey v. Butler et al. [ante) meets the objections to the judgment in this ease as to the defendant Tousey. And as a misnomer of. parties must always be' pleaded in abatement, or the right to (he exception is lost, (1 Mass. R., 76; 5 Id., 97; 10 Id., 205; 16 Id., 146; 6 Munf. R., 219; 4 Cow. R., 148; 10 S. & R., 257,) the other defendant, Tryon, can bo in no better condition than his co-defendant, in consequence of having suffered judgment to go against him by default. Even if the petition had not been amended, this defendant, not having pleaded the misnomer in abatement, could not take advantage of it on error. The amendment having been properly allowed, cannot afford a ground for reversing the judgment.

Judgment affrmed.  