President of the Union Bank v. Tillard

Bartol, J., delivered the opinion of this Court. This action was instituted by the appellant against the appellees, as partners trading under the name and firm of Tillard and Ireland. The declaration contains five counts, viz: 1st. Por goods sold and delivered to the defendants by Lucius L. Lanier, Robert T. Lanier, Robert M. Spiller and John W. Selby, partners, trading under the name and firm of Lanier Brothers & Co. 2nd. For money lent to the defendants by said Lanier Brothers & Co. 3rd. For money paid by the said Lanier Brothers & Co., for the defendants, at their request. 4th. For money received by the defendants for the use of said Lanier Brothers & Co. 5th. For money found to be due from the defendants, to [451] said Lanier Brothers & Go,, on accounts stated between them. The plaintiff sues as assignee, and in each count of the declaration an assignment by Lanier Brothers and Company to the plaintiff is alleged. The defendants appeared ( by the names of Edward E, Tillard and William Ireland,) by their attorneys, and filed a general demurrer to the declaration, and the plaintiff having joined in the demurrer, the Circuit Court ruled the demurrer good and gave judgment for the defendants, from which this appeal was taken. The only questions presented by the record are, first, whether the declaration is defective; and secondly, whether the defects may be taken advantage of upon demurrer. By the 0ode, Art. 9, sec, 1, “the assignee of a chose in action entitled thereto by assignment in writing, signed by the person authorised to make the same, is authorized to maintain an action in his own name. The declaration in this case does not aver that the assignment is in writing ; and the want of such averment is alleged to be a fatal defect. According to the general principles of pleading at the common law, we think this objection would be fatal on demurrer. At the common law, assignees could not maintain an action in their own names, this right is conferred only by the statute which declares that the assignment must be in writing ; in such case the rule is well settled, that if an assignee proceeds under the statute, he must cover in his pleading everything which the statute requires. See Chitty’s Pl., 222, ■and authorities there cited. But this rule has been changed by the system of pleading adopted by the Legislature, and contained in the Code, Art. 75. By the 22nd section of that Article it is enacted, that “the forms of pleadings which follow shall he sufficient, and the like forms may be used with such modifica [452] tions as may be necessary to meet tbe facts of tbe case then in section 38, ( page 515,) is given the form of a de= claration in a suit by an assignee, in which an assignment to the plaintiff is alleged, without any averment of its being in writing. The declaration in this case being in this respect according to the form prescribed in the Code, must be held to be sufficient. The other ground alleged in support of the demurrer is, that the Christian name of Tillará, one of the defendants, is not stated. The rule is that the declaration ought to set out the Christian name and surname of the parties correctly. “A mistake in the name of a party to the suit was ground for plea in abatement only at the common law, and could not be objected to as a variance at the trial.” Stephens on Pleading, 353. See 3 Gill, 443. 1 Md. Rep., 503. “A plea in abatement must give the plaintiff a better writ or bill.” Stephens on Pl., 483. “The meaning of this rule,” says the author, “is that in pleading a mistake of a form, in abatement of the writ or bill, the plea must, at the same time, correct the mistake so as to enable the plaintiff to avoid the same objection in framing his new writ or bill.” * * * * * “For these pleas, as tending to delay justice, are not favorably considered in law, and the rule in question was adopted with a view to check the repetition of them.” The alleged misnomer of the defendant was not a good ground of demurrer. By the Code, Art. 75, sec. 25, ( page 524,) it is provided, that “no writ or action shall abate or be discontinued because of the misnomer of any defendant named therein,” and the Court, in its discretion, is authorized to allow the writ or any of the proceedings to be amended at any time before judgment by inserting therein the true name of the defendant. [453] ( Decided March 8th, 1867.) Being of the opinion that the Circuit Court erred in its ruling upon the demurrer iu this case, the judgment will be reversed and aj■procedendo ordered. Judgment reversed, and procedendo,