Wilcox, & Co. v. Hawkins

Tayror, Chief-Justice. This suit was brought in the name of the three persons specified in the writ, viz. *85 Wilcox, Johnson and Drinkard, under the firm and description of “ John V. Wilcox & Co.;” but tiie Plaintiffs shew, from their own evidence, tiiat "John v. Wilcox & Co.” was a firm composed of John Y. Wilcox and Thomas Wilcox, consequently one of the persons, with whom the contract was entered into, was not made a party Plaintiff. Whenever it appears on the face of the pleadings, that there are other parties to the contract, who are not joined in the action as Plaintiffs, it may bo demurred to, or taken advantage of, in arrest of judgment. And if the objection do not appear on the faccojf the pleadings, but is shewn forth in evidence, it is a proper cause for nonsuit on the general issue. — Sound. 153, n. 1.) Further, to give the Plaintiffs a cause of action against the Defendant, it was necessary for them to shew, that John V. Wilcox & Co. as described in the writ, had prosecuted a suit against Banks,* whereas, they shew a suit prosecuted against him by John Y. Wilcox and Thomas Wilcox, under the firm of John V. Wilcox & Co. which appears,to have been correct, according to the contract, but altogether variant from the shape in which the Plaintiffs have described themselves in this action. It is an evident mistake in filling up the writ, and might have been amended, on a seasonable application, in the proper Court,* but we have no power to do so here, however we may regret that the justice of the case should be entangled in form. The nonsuit was properly awarded, and the judgment must be affirmed.