
    
      BOYER & WIFE vs. AUBERT & AL.
    
    Eas't District.
    Jan. 1823.
    Appeal from the court of the second district.
    A mistake in a name, by the omission of a letter, can only be taken advantage of, by a plea in abatement.
   Porter, J.

delivered the opinion of the court. This case is brought up by the appellees, who pray that the judgment of the court below should be affirmed, and with damages. There is no difficulty in acceding to the first part of the prayer; the only question is, as to the second.

The suit was instituted on a promissory note. The petition is in the name of Derie Boyer and Celeste Barras, his wife, and states, that the defendants made their note, which is annexed to the petition, and makes a part of it, by which they promised to pay unto Desiré Boyer the sum claimed.

The note, when produced on the trial, appeared to be made payable to Desiré Boyer, at least it is so written in the copy transcribed on the record, filed in this court. But in the bill of exceptions taken to its introduction, it is stated, that the plaintiffs having offered a note payable to Derié Boyer, the defendants opposed its being read in evidence, because it did not support the petition.

There was judgment for the plaintiffs, and the defendants moved for a new trial, on the ground, that the note which had been proved, was payable to Desiré Boyer, a statement in direct contradiction to that contained in the bill of exceptions, which declares that the note was executed in favour of Derie Boyer. The judge, in refusing this application, acts upon the idea that it is payable to Derie, but says it is sufficiently described in the body the petition.

It is somewhat difficult to imagine how so much confusion could be created on a matter which must have been extremely simple in itself. The allegations, made in moving for a new trial, are in direct opposition to those contained in the bill of exceptions. As the party, therefore, who might claim the benefit of them, contradicts himself, we shall alone consider the statement contained in the petition, and the expressions used in the note ; and see whether there is such a variance between them as gave the defendants just and reasonable grounds to appeal from the judgment of the district court.

The note, as set out in the petition, corresponds exactly with that produced on the trial; the allegata and probata concur, and the defendant was apprized on what suit was brought, and protected against another demand for the same cause of action. The only ground then for the defence, was a mistake in regard to a letter in the name of the plaintiff; and it is clear that such an error cannot be taken advantage of on the general issue; it must be pleaded in abatement. Curia Phillipica, 1, § 13, n. 1. Febrero, 2, l. 3, c. 1, § 4. n. 176. Partida 3, 3, 9.

Workman for the plaintiffs,3——for the defendants.

The judgment bears interest at ten per cent, and we think it sufficient to affirm it with damages at five per cent.

It is therefore ordered, adjudged and decreed, that the judgment of the district court be affirmed with five per cent. damages.  