Page:Federal Reporter, 1st Series, Volume 5.djvu/292

 280 PBDBEAL EEPOBTEE. �proper course is to plead the misnomer in abatement, for, if she pleads over, she cannot take aclvantage of it. She must aver her marriage in her plea, and prove it affirmatively." 3 Whart. Cr. Law, (7th Ed.) § 70. If, as is now argued, this means to apply only to the plea of misnomer, the paragraph is misleading, for the mere erroneou3 statement of the defend- ant's name in an indictment or information must be corrected by plea in abatement, whether the defendant be man or woman, married or single, and tho status of the woman, as regards her being married or single, h, it seems to me, wholly immaterial, exoept as a matter of evidence on the plea. Id. §§ 636, 537. �I think the C"thor — and I say this with the utmost diflS- dence of one se eminent and learned in this department of the law — has confused somewhat two analogous but distinct things, namely, pleading a misnomer and pleading a wrong addition of estate, mystery, or place. Advantage is to be taken of either in the same way, but the failure to plead in abatement does not, perhaps, have the same effect; at least, not as to this matter of the addition describing a woman as married or single. The failure to plead a misnomer in abate- ment cures the defect if the defendant pleads not guilty, and for the purposes of that case the prisoner has the name given in the indictment. 3 Whart, Cr. L. supra; 1 Whart. Cr. L. § 238; 1 Bish. Cr. Proe. (2d Ed.) § 791; State v. Thompson, Cheves' E. 31 ; People v. Smith, 1 Park. Cr. Cas. 329 ; State v. Hughes, 1 Swan, 261; Lewis v. State, 1 Head. 329. �The addition of estate, or degree, or mystery required by statute 1 Henry V.c. 5, if omitted or wrongfully stated, should also be correoted by Emotion to quash, or plea in abatement. 1 Whart. Cr. L. §§ 2^3, 248; Whart. Prec. (Ed. 1849,) 7, note e; 1 Bish. Cr. Proc. §§ 671, 675, 772. By statute 7 Geo. IV. c. 64, and 14 and 15 Vict. c. 100, no indictment shall be now abated by reason of any plea of misnomer, or for want of or im- perfection in the addition of the defendant. Id. ; 1 Arch. Cr, PI, (by Waterman, 6th Ed.) 78, 110, 111. I do not find that we bave any such statutes ia Tennessee, but I am informed by ����