Caroline Hanford sued upon a judgment rendered by a Justice of the Peace in favor of William Faulkner, against William Gilbert, upon default of appearance. The files show an acceptance of service of a summons purporting to be by William Gilbert. The declaration avers that Mrs. Hanford’s name was formerly Caroline Faulkner; that the judgment was rendered on a note executed to her by the name of Mrs. Faulkner, 'and never transferred to any one, and that the judgment was rendered in her favor by the name of William Faulkner by mistake, instead of in her true name. This declaration was demurred to on the ground that a judgment in the name of William Faulkner as alleged was not a judgment in favor of Caroline Faulkner. The demurrer being overruled and issue joined, Mrs. Hanford testified *43to the facts stated in her declaration, and similar objections being made on the proof, they were overruled.

There seems to be confusion in the' books upon the effect of the misnomer of a plaintiff, and when, if ever, it must be pleaded in abatement. But we think where a defendant is sued before a Justice of the Peace in the name of any person he has a right to suppose that no claim can be made out against him,' if he does not appear, except such as that person will be able to substantiate. A defendant- who does not appear in a'Justice’s Court waives nothing, as the plaintiff is in all cases bound to prove his cause of action as upon appearance. But it is well settled that where a written contract is sued upon, a variance in name can be taken advantage -of.under the general issue, and the misnomer need not be pleaded in abatement. 4 T. JR., 611. It is not alleged in either cause -that the note was given to William Faulkner by the name of Mrs." Faulkner, nor that •she was ever known by the name of William. The declaration showed no cause of action in William Faulkner whatever, and Caroline Faulkner’s name was not used and did not appear. We do not think Gilbert was bound to appear and assume that he was called on to respond to her in such an action; and as she did not •see to it that the suit was in her name, she cannot sue upon the judgment. It is difficult to perceive how the pendency of the suit, or the judgment in favor of William Faulkner, could have been pleaded in abatement or bar of an action in Caroline Faulkner’s name upon the note. The judgment, if valid, in favor of the plaintiff named, is not valid as a ' cause of action in favor of ■ any one else, and whether he is a real or fictitious personage, the present plaintiff is a real and a different -one.

We think the declaration • fatally defective, and the *44judgment below must be ‘ reversed with costs of both Courts.