Opinion
11-01-1828
Ming and Green v. Gwatkin
Johnson, for the Plaintiff in Error. No Counsel for the Defendant.
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 Law for Prince William County. It was returned " No 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.
OPINION
JUDGE CABELL
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. & M. 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, Mary G., 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 any other, the Court is of opinion to reverse the Judgment, and to set aside all the proceedings subsequent to the Writ and Bail-Bond.
Note by the Reporter. The rule in New-York seems to be different. See the case of Franklin & al. v. Talmadge, 5 Johns. 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.