President of the Union Bank v. Tillard 26 Md. 446

The President and Directors of the Union Bank of Maryland vs. E. E. Tillard and William Ireland.

Pleading; Demurrer; Assignments Misnomer.- — A plaintiff, as assignee, sued E. E. Tillard and William Ireland, trading under the name of Tillard & Ireland. The declaration contained the usual counts in assummit, in the forms of the new system of pleading of the Code, each count alleging the assignment, but not that the same was in writing. The defendants appeared by -the names of Edward E. Tillard and William Ireland, and filed a general demurrer to the declaration. — ^Seld :

1st. That although the omission to aver that the assignment was in writing would, according to the general principles of pleading at the common law, haye been fatal on demurrer, under the rule as changed by Art. 75, sec. 22 of the Code, the declaration must be held sufficient.

2nd. That the alleged misnomer of one of the -defendants, yiz: the insertion of the name E. E. Tillard for Edward E. Tillard in the writ' and declaration, under Art. 75, sec. 25 of the Code, was not a good ground of demurrer.

Appeal from the Circuit Court for Anne Arundel county.

This was an action by the appellants against the appellees to recover the amount of an account for goods bargained and sold to the appellees by Lanier Brothers & Co., which account had been assigned by them to the appellants. The facts of the ease are stated in the opinion of this Court.

The cause was argued before Bowie, C. J., and Bartol, Goldsborough, Cochran and Weisel, J.

Frank H. Stockett for the appellants.

It will in this Court he contended, that the counts in the -'declaration were sufficiently explicit and formal, as required by our system of pleadings ; see Article 75 of Code, secs. 2, 3, 5, 22, and the sub-secs, under same, and sec. •38. There was no error on the face of the pleadings on which to base a demurrer, which is only for matters ef law, -and -conc-ed-es all the facts.

*447The defendants were sued as partners under their partnership name of <!Tillard & Ireland,” and as such, were duly summoned, hoth hy their individual names, and they appeared by their counsel. In the argument of the demurrer, the only point raised hy their counsel below was, that one of the partners was sued as E. E. Tillará, instead of Edward E. Tillará, and no evidence was offered to prove that Ms first Christian name was Edward.

Upon that ground alone the Court sustained the demurrer, and upon that ground alone, it is presumed the appellees will seek the affirmance of the judgment, as no other lias been suggested or is apparent from the record.

The real matter in controversy in the case, though not apparent on the record, was the desire on the part of the defendants to get in the plea of limitations. The defendants had omitted to have that plea filed in time under the rules of the Circuit Court, and unless they could compel the plaintiffs to amend their declaration, they would be exclued from the benefit of that plea. The same reason prevented the plaintiffs from amending their declaration, for then the plea of limitations would be let in.

The appellants will now insist, that there was no error or fault in the pleadings by the omission of the full Christian name of one of the defendants, which would justify the judgment below.

Firstly. Because the parties were sued as a firm, hy the proper name of the firm, and were duly summoned and appeared as such. They were not sued as individuals, or in their separate capacity, or by their individual names. The names given them were the names by which they were known in the trade and to the world. Their individual names were only employed to designate who the partners were, and for this purpose were given with sufficient particularity to point out who they were — what persons or individuals constituted the firm — and there is nothing in the *44875th Article of the Code, to show that greater particularity or certainty in pleading was required. To sustain such judgment would be against the entire theory of our system of pleadings and practice. See 3cZ sec of Aré. 75. The 25th sec. of Article 75, under the head of “Practice,” expressly states that no writ or action shall abate or be discontinued because of the misnomer of any defendant named therein, but the Court, on suggestion, supported by the affidavit of the plaintiff or other proof, to the satisfaction of the Court, that the party summoned in said writ of action is, in fact, the party intended to be sued, may, at any time before judgment, direct the writ, &c., to be amended, &c.

In this case it was not contended, but on the contrary conceded, by their appearing and demurring, that the parties summoned were the parties intended to be sued, and it is submitted that this was proof which should have been satisfactory to the Court; besides, there was no proof offered to show that the parties summoned were not the persons composing the firm.of Tillard & Ireland, who were the parties intended to be sued, nor any offer made to produce such proof, and yet against this proof and directly against the words of this 25th sec., the Court below discontinued the action by giving judgment for the defendants.

Nor was there any proof that the defendant’s name was Edward, or that he had any other name than E. E. Til-lard, as he was called by plaintiffs, or that he had never been called or known as E. E. Tillard, and did not so write and call himself.

Secondly. It will be contended that if the failure to give one of the defendants his full Christian name, was an error which, under our forms and rules of pleading, would entitle the party to a judgment in his favor, it was not the subject of demurrer, but must have been taken advantage of by plea in abatement, being only a misnomer. Stephens *449on Pleading, 319, 320. 1 Chitty on Pleading, 244, 245. Id., 451. 5 Mass. Rep., 97. By such plea he was also obliged to give the plaintiffs a better writ or declaration by supplying them with his correct name. Steph. on Pl., 240, 241. Id., 435.

Eor the foregoing reasons the appellants contend the judgment rendered by the Court below was erroneous, and will not be sustained by this Court.

A. Randall and A. B. Hagner for the appellees.

Under the general demurrer filed by the appellees, it will be insisted that the declaration is insufficient upon several grounds :

1st. It is not alleged in the declaration that the chose in action, upon which the suit was brought, was assigned in writing by Lanier, Brothers & Co., to the plaintiffs, and for valuable consideration.

At the common law, diosas in action were not, in general, assignable, and the assignee could not suo in his own name. 1 GMtty’s PI., (15.) By the Act of 1829, incorporated in the Code, (Art. 9, sec. 1.) the assignee of a chose in action, hy assignment in writing, was authorized to maintain the action in his own name. But only such assignee, i. e,, in writing, can sue in his own name, and his right of action must be shown by the declaration. Kent vs. Somervell, 7 G. & J., 270. This particularity is required by the general principles of pleading at the common law, and under the Code. Lawes’ Plead., ch. 4, p. 68. Bo., ch. 8, j?. 168.

Whatever is necessary to be proved by the plaintiff at the trial, must be alleged in the nar. Code, Art. 75, secs. 2 and 3. 1 Ghiity’s PI., ( 295,) (298,) (237.) If a statute made a writing necessary to a common law matter, where it was not necessary by the common law, the thing need not be pleaded to be in writing, but it might bo given in *450evidence ; but where the statute which originally required the Act, declares it shall be in writing’, it must be pleaded with all the circumstances required by the statute. ( 2 Salk., 529 ; 1 Sid., 142 ; 1 Levin, 81,) cited in 1 Bos. & Pul., 74.

That advantage can be taken of this defect by demurrer, see Lawes’ Pleading, ch. 8, p. 168. 1 Bos. & Pul., 74. 1 Ch. Pl., 221, 222. In this case, the declaration does not set out properly an assignment, even by parol.

2nd. That the declaration must set out the Christian and surname correctly, is clear. 1 Chitty’s PI., (256,) (244.) Stephens on Pl., (302.) 3 Chitty’s Gen’l Prac., 163, 174, 183, 185, 468. Gould’s Pl., (302.) Miller vs. Hay, 3 Excheq., (W. H. & G.,) 14.

3rd. If the holder can’t recover on a note for want of title or authority to sue in his own name, he can’t recover on the common counts. Olcott vs. Rathbone, 5 Wend., 490.