Lash v. . Arnold

53 N.C. 206 | N.C. | 1860

The plaintiffs declared against the defendants, as the sureties of one Matthew Mabe, on his bond given as the administrator of one Abner Mabe, and the breach assigned was the nonpayment of two judgments which the relators had recovered against the administrator, Matthew. The judgments were produced in evidence, and appeared to be in the name of "Lash Moore" on warrants in favor of "Lash Moore" against the administrator. The plaintiffs in these warrants were William A. Lash and Edward H. Moore, trading under the name and style of Lash Moore, and this suit is brought in their names, set out in full as trading under that commercial style. These judgments were objected to as evidence: first, upon the ground that they were null and void; secondly, because they were no evidence in a suit brought by William Lash and Edward H. Moore. The evidence was admitted, and the defendants excepted. Verdict and judgment for the plaintiffs. (207) Appeal by the defendants. We concur with his Honor upon both the points made by the defendants in the court below. The judgments obtained by the plaintiffs before a single magistrate in the name of "Lash Moore" were by no means nullities, as is clearly shown by Wall v. Jarrott, 25 N.C. 42. When the warrant was served upon the defendant in those judgments he might have availed himself by a plea in abatement, or by an exception in the nature of a plea in abatement, of the defect in the warrant, that it was not brought in the proper names of the plaintiffs; but not having done so, the imperfection was cured after judgment by our statute of amendments. See Revised Code, ch. 3, sec. 5.

The second objection is equally untenable. If the plaintiffs had brought suit on the judgments, they would have been at liberty to set forth in their declaration, their true names of William A. Lash and Edward H. Moore, trading under the name and style of Lash Moore, and in support of that declaration might have given in evidence the judgments in favor of Lash Moore. Such would undoubtedly have been the case in an action of debt on a bond made payable to Lash Moore, and we cannot perceive any difference between such an action and one upon a judgment obtained in the name of Lash Moore. See Wall v. Jarrott,ubi supra.

Our attention has been called to Cohoon v. Morton, 49 N.C. 256, in which the court refused to permit the plaintiffs, P. A. R. Cohoon and R. H. McIntosh, partners in trade, trading under the firm and style of "Cohoon McIntosh," to take judgment upon a bond given for his appearance by an insolvent debtor, and made payable to "Cohoon McIntosh."

We are free to confess that the case is in direct opposition to the previous one to which we have alluded, Wall v. Jarrott, and we think that upon principle it cannot be supported. In the argument (208) of it, Wall v. Jarrott was not referred to by the counsel for the plaintiffs, and we were led into a mistake by not adverting to the rule which allows the plaintiffs in such cases to aver and prove that they are the same persons who, as partners, are known and called by the name of the firm.

PER CURIAM. No error.

Cited: Daniels v. R. R., 158 N.C. 427; Rosenbacher v. Martin,170 N.C. 237.