Page:United States Reports, Volume 24.djvu/297

Rh The body of the amended declaration here, speaks of “the plaintiffs,” not of the persons mentioned or named in the recital. Besides, even the recital does not say that Maria Desportes was sued by the name of Maria Bonfils, but only mentions the circumstance of her “being called” so at the bringing of the suit, as it would insert an alias for her name.

The variance occurs in an amended declaration, filed after leave had to amend. The statute of Maryland of 1809, ch. 153. authorises any amendment to be made “to bring the merits of a suit to issue.” This amendment was justified by that act of the legislature; and the Court might have made the writ to conform to the alteration, as in England an original writ is made to suit the declaration. The writ, in Maryland, is sometimes altered from debt to case to suit the narr. The husband, here, was joined to the wife only for conformity, and not by reason of a new interest, or as interested; since the suit, if no objection had been made before general issue, might have proceeded in the single name of the wife. One suing by guardian in the first instance, and afterwards becoming of age during the suit, may, and must, appear then by attorney. If the variance could have been, and had been, pleaded in abatement, the Court would, under the statute of Maryland, have allowed the declaration to be amended and cleared of the variance. This declaration may be assimilated to a declaration by the bye, by the husband and wife, though