
    *Ming and Green v. Gwatkin.
    November, 1828
    Pleading and Practice — Suit in One Name — Judgment in Another — Effect.—A suit instituted in one name, will not justify a Declaration and Judgment in another; therefore, when a Plaintiff has two baptismal names, and a mistake is ma.de in the second or middle name, it is a misnomer it is a fatal error, not only on a plea in abatement, but on a Judgment by default.
    Note by the Reporter. The rule in New-York seems to be different. See the case of Franklin & al. v. Talmadge, 5 Johns. Rep. 84. In that case, the question arose on a motion to exclude a Deed from going in evidence, on the ground of its being variant from the Declaration.
    Mary G. Gwatkin sued out a Writ of Capias ad Respondendum, in debt, against Amos Hoff and Charles Ming, from the Office of the Superior Court of Las for Prince William County. It was returned !lNo inhabitant,” as to Hoff, and the suit abated as to him. It was executed on Ming, who gave Jesse Green as his appearance bail. The Bail-Bond was copied into the Record, by which the Plaintiff was called Mary G. Gwatkin.
    The Declaration was in the name of Mary S. Gwatkin, and the Judgment, which was an office Judgment, not set aside, was rendered in behalf of the Plaintiff, without naming her. The Bill penal, which was filed with the Declaration, had also the S., and not the G.,in the middle name.
    One of the Defendants being taken in Execution, a Writ of Error was awarded by this Court, without requiring security except for the costs, under the Act of Assembly, passed at the Session of 1824-5, ch. 21, p. 20.
    Johnson, for the Plaintiff in Error.
    No Counsel for the Defendant.
    
      
      PleadiuguudPractice — Variance as to Name — Effect, —If there be a variance as to the middle name of the pavee of a note, between the description of the note in the declaration and the note itself, and such variance would even be deemed material, and it is not taken advantage of in some way before judgment, it will not be ground for reversal of the judgment, being-cured by § 3, ch. 131, of the Code. This is so, though the judgment was rendered upon defendant's demurrer to the plaintiffs evidence. Long v. Campbell, 37 W. Va. 665. 17 S. E. Rep, 197. In delivering the opinion of the court, Judge Brannon said: “In Ming v. Gwatkin, 6 Rand. (Va.) 551. a variance between writ and declaration as to initial of middle name was held fatal. The case is doubtful. Just the contrary was held in Dabneys v. Knapp, 2 Graft. 355. as to difference in names of Samuel P. and Samuel B. Christian. The Miruj (lane was cited, but not followed. Besides, the Mina Case was under a statute which did not cure a, defect in judgment by deiault. Hatcher v. Lewis. 4 Rand. (Va.) 152; Wainwright v. Harper, 3 Leigh 270.”
    
   November 1.

JUDGE CABELL

delivered the opinion of the Court.

Many objections were made to the Judgment, but it is unnecessary to notice more than one of them.

The Judgment was by default for want of appearance, and consequently the Writ and Bail-Bond are parts of the Record. Shelton v. Pollock & Co., 1 Hen. & Munf. 423; Quarles v. Buford, 3 Munf. 487.

*The Writ is in the name of Mary G. Gwatkin, as Plaintiff, and the Bail-Bond states the suit as being in the same name. But, the* Declaration and Judgment are in the name of Mary S. Gwatkin, The baptismal name, MaryG., in the Writ and Bail-Bond, is essentially different from the baptismal name, Mary S., in the Declaration and Judgment. A suit instituted in one name, will not justify a Declaration and Judgment in another. On this ground, without noticing anj' other, the Court is of opinion to reverse the Judgment, and to set aside all the proceedings subsequent to the Writ and Bail-Bond.  