The sufficiency of the declaration in this case is called in question, for the first time, by the assignment of errors in this court. — If, therefore, a substantial cause of action is stated therein, the objection can not prevail.
The suit is prosecuted by McNeil, as the survivor of Martin. The allegation in the declaration is, that the defendant below was indebted to the plaintiff, for goods, wares and merchandise, by the said Martin & McNeil, before that time, sold and delivered. This indebtedness could alone arise to the plaintiff, by the death of Martin; and after verdict, we must connect the statement at the commencement of the declaration, as to the character in which the plaintiff sues, to his name, wherever mentioned in the declaration.— The-averments would then be in accordance with the most approved precedents.
The judgment must be affirmed.