Morgan v. Thrift

2 Cal. 562 | Cal. | 1852

The opinion of the Court was delivered by

Heydenfeldt, Justice.

The Practice Act permits a party defendant, whose name is unknown, to be sued by any name. It follows, as a consequence, that where a bond has to be executed by the plaintiff, and is executed to the defendant by a wrong name, the latter has his remedy on such bond, and may describe it as given to him. And in such a case he may show by the record of the suit in which the bond was given, and by extraneous facts, that he was the person intended as the obligee.

In this case the record discloses that the parties were at trial; that the bond on which the suit was brought was excluded by the Court; and that on the motion of the defendant, a nonsuit was ordered. Now, although it is not explicitly stated, that the non-suit was granted on any particular ground, it is yet an undeniable inference, that it resulted from the opinion of the Court below, holding the bond inadmissible, because it was not made to the parties plaintiff, by their proper names. This, as appears from what we have above declared, was erroneous.

The judgment is reversed, with costs, and the case remanded.