McMahon v. Webb

Chalmers, J., delivered the opinion of the court. The amended declaration was in the name of Kate McMahon, with whom was joined her husband, for conformity, upon an injunction bond jointly made to the said wife and husband and one O’Hara. Tlie declaration undertook to account for the non-joinder of «O’Hara as a plaintiff by sotting forth special circumstances to show that he had no interest. On the trial the bond was ruled •out, because payable to three and sued on by but one. There was judgment for defendants. The error assigned is "the exclusion of the bond as testimony. There was no error, in this. An action by one obligee cannot be supported by the proof of a bond pajmble jointly to three, nor is it admissible to escape this rule by the mode of declaring here adopted. The suit should have been by all the obligees, or in the name •of all for the use of one. O’Hara could not refuse or prevent the use of his name. 1 Chit. PL, §§ 8, 9, 10. [426] The judgment here, caused by a variance, will not bar a. suit properly brought hereafter. Affirmed.