
    George H. Harden, and Mary Harden, administrators, ads Ira J. Harden, for another.
    The note was described in the count, and copied on the declaration, as if made payable to Ira Harden, when in fact it had been made payable to Ira II. Harden,, Held, to be a fatal variance, because it operated as a description of the bill. But the plaintiff might have recovered if he had set out the note as made to Ira Harden, and had averred and proved that he was the same person as the plaintiff.
    Tried before Mr. Justice Wardlaw, at Chester, Fall Term, 1840.
    This was an action of assumpsit on a note made payable to Ira H. Harden, but copied on the declaration and described in the count as made payable to Ira Harden. The presiding Judge ruled the omission of the middle letter in the plaintiff’s name immaterial. The defendant desired also to plead the Statute of Limitations, but his Honor refused to allow him to do so, as the case had been on the issue docket for the previous term, and he was not aware of any understanding between the council.
    These were the grounds upon which the defendant moved the Court of Appeals for a non-suit and a new trial.
    Eaves & Thompson, for the motion.
    Gregg, contra.
    
    In 1 Chit. Plead., 248, 8th Am. Ed., from 6 Lon. Ed., it is laid down, “A misnomer of the plaintiff could only be pleaded in abatement, and was no ground for setting aside the proceedings; or for a motion in arrest of judgment, or of non-suit at the trial.”
    In Morley v. Land, 2 Brod. & Bing., 34, (6 Eng. C. L. Rep., 9,) it was held, that a misnomer of the plaintiff can only be taken advantage of by plea in abatement; and the Court, refer-ing to several authorities, said, “that a misnomer of the plaintiff would only be taken advantage of by plea in abatement.” In that case the plaintiff had sued as Mary Morley, when her name was Martha Morley.
    In 2 W. Black's Rep., 1120, (Sir Wm.) The Clerk of the Trustees of Taunton Market, v. Kimberley, it was held, that misnomer of plaintiff should be pleaded in abatement, and can not be moved either for a new trial or in arrest of judgment. And at page 451 of Chitty, it is said, “it was once doubted if a mistake of the plaintiff’s Christian or surname were not a ground of non-suit, but it is now settled that the mistake must be pleaded in abatement;” citing several authorities which will be found to sustain the position.
    In 2 Phil. Ev., 4, it is said, “when the names of the parties to an action upon a bill or note are misdescribed in the plaintiff’s declaration, the misnomer ought to be pleaded in abatement; and a variance between the names, by which they are described in the instrument which is the subject of the suit, and the names by which they sue, or are sued, is immaterial;” citing Boughton v. Frere, 3 Camp. N. P. Rep., 29.
    In 3 Starkie’s Ev., 1579, it is laid down, “If the plaintiff allege that a promissory note was made payable to him, and on proof of the instrument or contract, it appears to have been made to another, it is no variance, if the plaintiff prove that he was the person really meant, for that is the legal effect;” citing Willis v. Barrett, 2 Starkie’s Cases, 29, (3 Eng. C. L. Rep., 229.) and other cases. Even if the omission of the letter II. in the plaintiff’s name, as described in the declaration, would be considered as a variance from the signature to the note, so that the note would not be given in evidence under the special count on the note, it might still be- given in evidence under the general count-See 2 Phil. Ev., 14, &c.
    In 3 Starkie’s Ev., 160, it is laid down, “where a fact is simply alleged, without vouching any instrument, and the instrument is used as mere evidence, a variance will not be fatal if the substance of the allegation be proved.”
   O’Neall J.

delivered the opinion of the Court.

In this case the due bill is to Ira II. Harden, and the description of it in the declaration, is, that it was to Ii'a Hai’den; and the question is, whether this is such a variance as can be taken advantage of, on a motion for non-suit. In general, if there be a mistake in the name of the parties, it must be taken advantage of by plea in abatement. Such is the case of Morley v. Law, 6 Eng. C. L. R., 9. This too is the rule stated by Chitty in his 1st vol. of Plead., 248. So too, if there be a mistake in the name of the plaintiff, and he declare upon a bill as drawn by him in the name in which he sues, when in truth it was drawn by him in his proper name, it seems that it is enough if it be shewn that the bill was drawn by the plaintiff, and that the defendant knew by whom the action was brought. Boughton v. Frere, 3 Camp. N. P., 29. That case approaches very near to the case before us. Still there is this material distinction, that Aero there is no mistake in the name of the plaintiff, and which might have been pleaded in abatement. The mistake here, is, that the due bill does not correspond with the description in the declaration; and hence, instead of being the subject of plea, is a defect arising out of the proof. If the plaintiff had set out the due bill as made to Ira Harden, and averred that he was the same person as the plaintiff, and had sustained Iris averment by proof, I have no doubt he could have recovered on it. But as it stands, the allegata el prohala do not agree: and the rule, that “a variance as to the name of the parties is in general fatal when it operates as a description of the bill,” (Chit. on Bills, 560,) must have effect. Nor can the money count help the plaintiff. For notwithstanding the Judge below says, in speaking of the clue bill, “it appears to have been in fact made payable to Ira H. Harden,” yet he states to us, that this expression was merely to shew, that notwithstanding the due bill was made to Ira Harden, it was claimed by Ira H. Harden. For in fact there was no proof whatever about the matter. The objection was taken in argument, and was therefore wholly unexpected by the plaintiff, and attempted to be met by proof. To make the money count available, it was necessary to be shewn that the due bill, though payable to Ira Harden, was, in fact, made and deliv ered to Ira H. Harden, and was intended for his use. Under such proof, I have no doubt, the p’aintiff could have recovered on the money count. For then ihe due bill would have been a plain admission of so much money in the hands of the defendant for che use of the plaintiff. But in the absence of such proof the money count is not sustained. Under the circumstances of this case a non-suit will not be ordered; the case will be sent back with leave to both parties to amend their pleading. The motion for a new trial is granted: the plaintiff has leave on or before the 1st of March next, to amend his declaration; and the defendants on or before the same day have leave to plead the Statute of Limitations; the proper rules to plead or reply to be posted by the parties respectively.  