
    *Dabneys v. Knapp, Preston & Co.
    October Term, 1845,
    Richmond.
    1. Assumpsit — Immaterial Variance between Writ and Count. — in assumpsit, the writ lays the damages at 500 dollars; the count lays them at 600 dollars; and there being a judgment by default for want of appearance, the jury assess the damages at 455 dollars 16 cents. Held. The variance between the writ and the count is immaterial.
    2. Same — Account—Verdict.—The account filed with the declaration is dated the 30th September 1835. The jury give interest from the 1st of January preceding. No error.
    3. Same — Name of Plaintiff — Variance between Writ and Count. — The writ states- the -first. Christian name of a plaintiff by the initial letter, and the count states the name in full. No variance.
    4. Same — Same—Same.—The writ states the initial letter of the middle name of one of the plaintiffs to be P, and the count states it to be B; but in both the writ and the count, the partnership name is given. Held. The variance is immaterial.
    This was an action of assumpsit brought in the Hustings Court of the City of Richmond, by Knapp, Preston & Co. against Benjamin F. and George H. Dabney. The writ was issued in the name of F. W. Knapp, A. B. Preston, and Samuel P. Christian, merchants and partners under the name and style of Knapp, Preston & Co.; and laid the damages at 500 dollars. The declaration was in the name of Frederick W. Knapp, A. B. Preston, and Samuel B. Christian, merchants and partners under the name and style of Knapp, Preston & Co., and laid the damages at 600 dollars; and the account filed with the declaration, was dated the 30th of September 1835.
    The defendants not appearing, judgment was rendered against them by default, and upon a writ of enquiry of damages, the jury assessed the plaintiffs’ damages at 455 dollars 16 cents, with interest from the ist day of January 1835 till paid; and the Court gave judgment accordingly.
    From this judgment the defendants obtained an appeal to the Superior Court of Daw and Chancery for the *county of Henrico, where it was affirmed and they then obtained an appeal to this Court.
    Daniel, for the appellants.
    This being a judgment by default for want of appearance, it is open to any objection which might have been taken at any stage of the proceedings in the Hustings Court, whether by motion, plea, or demurrer. Green, J., in Cole v. Pennell, 2 Rand. 174. And for this purpose the writ is a part of the record. Wainwright v. Harper, 3 Heigh 270; Na-denbush v. Hane, 4 Rand. 413; Payne v. Britton, 6 Rand. 101; Ming v. Gwatkin, Id. SSI.
    1. The first error in this record is, that the writ lays the plaintiffs’ damages at S00 dollars, and the count claims 600 dollars. Upon a judgment by default for want of appearance, this is a fatal variance. Bar-gamin v. Poiteaux, 4 Heigh 413; Cabell’s opinion; and Hatcher v. Hewis, 4 Rand. 152.
    2. In the writ, one of the plaintiffs is named F. W. Knapp, and another Samuel P. Christian, and in the count, they are Frederick W. Knapp, and Samuel B. Christian. On this point Ming v. Gwatkin, 6 Rand. SSI, is directly in point. See also 1‘ Corny. Dig. Abatement, letter G, 8.
    3. Interest is given from the 1st of January 1835, -when the account is dated on the 30th of September 1835.
    Morson, for the appellee.
    The damages assessed by the jury, are less than are claimed in the writ or declaration, and therefore even at common law the variance is immaterial. Rardley v. Turnock, Croke James 629. At common law there is no distinction between a judgment by default and on a verdict, and therefore, if this was not error at common law after verdict, it was not error on judgment by default.
    Starling v. Hong, Id. 128.
    *'But if this variance was error at common law, it is cured by the statute of jeofails. Hook v. Turnbull, 6 Call 85 ; Palmer v. Mill, 3 Hen. & Munf. 502; Stephens v. White, 2 Wash. 203. The earlier cases held that the statute did apply to judgments by default; and of this opinion was Green, J., in Baker v. Roe, reported in a note to Bargamin v. Poiteaux. There are some dicta in the later cases in opposition to this doctrine; but in these cases there was a variance in substance. Such was the fact in the cases cited by the counsel on the other side.
    As to the second error relied on, the writing Frederick for F. cannot be considered a variance; it is a mere writing out the name. The other name is correct in the writ, and the judgment; and the error in the count may be amended by the writ. Indeed the plaintiffs were partners dealing under a particular name. In that name they sue; and the judgment is in their favour as constituting the firm.
    It is not necessary to state, either in the count or in the bill of particulars, from what time the interest runs; but the jury are directed by the statute to fix the period when it shall commence. 1 Rev. Code, ch. 128, l 80, p. 508.
    
      
      Tbe principal case was cited íd Long v. Campbell, 37 W. Va. 667, 17 S. E. Rep. 198.
    
   By the Court.

Affirm the judgment.  