Cherry v. Fergeson ( 1841 )

Curia, per

Earle, J.

Whether the omission of the surname, of the defendant, was such a defect, as would avail him,"in any form, it is immaterial to consider; when he appeared by attorney, and pleaded to the action, he waived the objection. The other ground of the motion is of more weight. He who brings his action, on a written instrument, must set it out correctly; and that which he offers in evidence, must correspond ■ with that which he has described. It was necessary for the plaintiff to set out in his process the note, from which he derived his right of action, that the defendant might know the nature of the demand, to which he was called upon to answer. The name of the original payee was an essential part of the description. And a misrecital was fatal. Goodnight is a different name from Goodwright; and there was nothing to obviate, or remedy the variance between the process, and the proof. The plaintiff, therefore, could not recover, and should have been non-suited. The decree for the plaintiff is set aside, and the motion for non-suit is now granted,

Wright & McMidlan, for the motion. Eaves & Thompson, contra. We concur. J. S. Richardson, J. B. O’Neall, J. J. Evans, A. P. Butler.