Curry & Co. v. Paine

COLLIER, C. J. 1. It is insisted for the plaintiffs in error, that their demurrer should have been sustained by the County Court, because the writ is at the suit of Magee, administrator of Goodwin, and against James Curry and Charles W. Gazzam; and the declax-ation is at the suit of Magee, in his own right, and against Curry and Audley H. Gazzam. The variance between the writ and declaration, is certainly such as is supposed; but it has been repeatedly held, that a variance between the writ and declaration, cannot be reached by general demurrer, but must be brought to the view of the Court by plea in abatement. The word “administrator,” which follows the name of Ma-gee in the commencement of the declaration, is a word to which no definite meaning can be attached, in the connection in which it is found. It does not show of what, or of whose estate he is administrator, and cannot even be regarded as descriptio per-sones. The declaration then, was at the suit of Magee, individually. This being the title which the declaration had given to the action, it was irregular to substitute as a plaintiff, Wm. S. Paine, administrator, do bonis non of James Goodwin, deceased. Thtf cause of action as disclosed by the declaration, was the indorsement of Curry & Co. of a promissory note to Magee, and on that, the administrator of Goodwin could [156] not recover. If the declaration had followed the writ, then the substitution of Paine would have been proper. But as the cause is shown by the- record, it is clearly erroneous. It is nothing less than this, the bringing in of a new party as plaintiff, when there has been no'abatement by death or otherwise; and this too, although it does not appear that the party coming in, has any interest in litigating the matter in controversy. 3. If the suit could have been revived in the name of Paine, the defendants might, before plea, have insisted to the Court, that the plaintiff should have produced the letters of administration under which he acted; but having pleaded the general issue, he could not be required to produce them as evidence before the jury. But for the second objection here taken by the plaintiffs, the judgment of the County Court is reversed, and the cause remanded, that it may, if practicable, be regularly proceeded in by the plaintiff below.