This case does not present the question of liability of an officer for arresting on mesne process, a party whose true name does not correspond with the name set forth in the process. The cases cited by the plaintiff’s counsel were generally of that character. That of Cole v. Hindson, 6 T. R. 234, and which is the strongest case cited in behalf of the plaintiff, was however an action of trespass for taking and carrying away the plaintiff’s goods under a distringas to compel an appearance to an action, the “ party having neglected to appear on a summons served upon him, but describing him by a wrong Christian name,” and it was held the action of trespass might well be maintained. The distinction to be taken between that case and the case of Crawford v. Satchwell, 2 Strange, 1218, seems to have passed unnoticed in the case of Smith v. Bowker, 1 Mass. 80, viz; that in the case in Strange, the party who was sued by his wrong name had appeared and pleaded to the writ, and thus waived all objections that might have been taken by plea in abatement.
That distinction materially affects the case of Crawford v Satchwell, as an authority in cases of judgment by default.
The present case has these elements, viz : the demand sued in the original action, upon which this execution was issued, was the debt of the present plaintiff, and the writ was in fact duly served on him, and the proceeding was intended to be against him, and the only error was in giving him a wrong Christian name. The present plaintiff did not appear, and *112judgment was rendered by default, and the execution was issued against the plaintiff by the wrong Christian name inserted in the writ.
Treating the case as a mere misnomer in a writ properly served upon the party, the objection is one that should have been taken by plea in abatement. In the elementary books it is said that misnomer is pleadable only in abatement. Gould Plead. 260; 1 Chitty Plead. 440.
The view heretofore taken, by this court, of mistakes like ihe present, has, it is quite obvious, been that if the party permitted the case to proceed to judgment and execution, without luch plea in abatement, it was a waiver of the error, and the execution might be enforced against the party upon whom the original process was served. Thus in the case of Smith v. Bowker, 1 Mass. 76, where the party was described as Aaron ■/Smith, of Orange, in the writ, but the same was duly served on Aaron Smith, of Athol, it was held that the officer might properly levy the execution on a judgment rendered by default thereon, upon the property of Aaron Smith, of Athol. The ground there taken was, if the party is not properly described in the v.Tit, he should take advantage of the mistake by a plea in abatement.
In American Bank v. Doolittle, 14 Pick. 123, where the Christian name of a trustee was misdescribed, the court said if he had appeared, the process would have been amendable, and if he had not, he might be charged. upon a scire facias, setting forth the facts.
In Fitzgerald v. Salentine, 10 Met. 437, which was an action brought on a judgment, it was said by Mr. Justice Hubbard in delivering the opinion of the court, that if the case turned merely “ upon the question of misnomer of the defendant in the original action, we should think he could not successfully defend against the suit, because a mere misnomer must be pleaded in abatement.” The real objection there was, that the party intended to be made such, was not actually served with process at all. In Root v. Fellows, 6 Cush. 29, which was an action on a judgment against Fellows and-Day, omitting his'Christian name, the court say the omission of the *113Christian name of Day was a matter which he might have pleaded in abatement, but as he suffered judgment to go against him without objection to the misnomer, an execution on that judgment issued against him on the same defective description, would have been valid and might have been legally enforced. Such seems to be the current of judicial authority as to the time and mode of taking exceptions to a misnomer where the service is actually made on the proper party.
It may be difficult to draw the line with precision between cases which are to be held of no validity by reason of entire failure to describe the party, and those which are properly cases of misnomer, or erroneous description of a part of the name of the defendant.
The present case, it seems to us, falls clearly within the cases of mistake in the Christian name of a party, and ii relied upon as a defence, should have been taken by a plea in abatement to the action, and if not taken, is waived.
If it be not so, then no occasion can exist for a plea in abatement for misnomer, for the party may always safely omit to enter his appearance and suffer judgment to go by default, knowing that the judgment cannot be enforced, and that the levy of the execution will be a trespass upon his property or person.
The cases of omissions of the middle name, which may more frequently occur, would, upon the ground taken by the counsel for the plaintiff, be fatal to the validity of a judgment by default, and if levied on the party intended to be sued, would subject the officer to an action foi trespass.
The cases of Commonwealth v. Perkins, 1 Pick. 388, and Commonwealth v. Hall, 3 Pick. 262, both held that the middle name is an essential part of the name, and its omission a misnomer, and a fatal defect, if properly objected to.
In cases, like the present, of mere mistake in the Christian name, where there has been an actual service upon the party intended, and the debt sued for was the proper debt of the person upon whom such service was made, we think the rule a reasonable and proper one, that the party must object to the *114misnomer by a plea in abatement of the writ, or be taken to have waived that objection.
Any party who has been really misled by the mistake in the name set forth in the writ, and has been prejudiced thereby, may always apply to the court for a review, and a supersedeas of any execution that may have been issued on a judgment on such process.
The ruling of the court of common pleas was correct, and a verdict was properly rendered for the defendant.
Exceptions overruled