Zimmerman v. Wead

Caton, J. This was an action of assumpsit, brought by Wead, as assignee of a promissory note, made by defendant to Kellogg, and by him indorsed to the plaintiff. The declaration sets forth that the defendant made his promissory note, promising to pay Kellogg or order, etc., and that Kbllogg assigned the note to the plaintiff, and avers the non-payment, etc. The declaration alleges that the action is brought for the use of the Illinois Central railroad company. We think the declaration is sufficient. According to the ancient strictness in pleading, it may be that the averments are insufficient, but the more enlightened com-se adopted by modern courts, which looks to the substance of the pleading, for the purpose of seeing that the defendant is duly apprised of the complaint against him, that he may not be taken by surprise upon the trial, conduces more to the substantial ends of justice than those technical rules upon which ancient jurists seemed to pride themselves. We think the averments sufficient. That part of the declaration which declares the use to the Illinois Central railroad company is not for the benefit of the defendant, nor has he anything to do with it, nor is he in any way interested in the declaration of use. That is allowed solely for the benefit of the cesttd que use, and, as between the parties to the action, it need not have been inserted. The objection that the declaration, is signed by “ Wead and Williamion,” attorneys for the plaintiff, omitting their proper names, is not tenable. The judgment must be affirmed. Judgment affirmed.