Opinion
Spring Sessions, 1842
J. A. Bayard, for plaintiff.
Rodney, for defendant.
CERTIORARI to a justice of the peace in an action on a judgment note, at the suit of Huffman Donoho vs. M'Namee. The note was given to plaintiffs by the name of Huffman Donoho, with a warrant of attorney authorizing any justice of the peace to enter judgment thereon "at the suit of Huffman Donoho," for $24 70, with interest,c. Judgment entered accordingly and note filed.
The exception was, that the action was brought by, and judgment entered for, several persons as partners, without setting out their individual names; and
Mr. Rodney contended that this objection was within the principle of Roberts vs. Rowan ct ah, 2 Harr. Rep. 314.
J. A. Bayard, contra. — The party is here estopped to deny the right to sue in the name according to which he has authorized the plaintiff to enter judgment. The judgment is confessed on a warrant of attorney, and in conformity with it. If a suit was brought on this note, it would have to be in the name of Huffman Donoho, and not by other persons trading under that name; and the seal estops the defendant from objecting to the suit, in the name of which he has given his bond. (3 Taunt. Rep. 505; 3 East's Rep. 111, Scott vs. Soans.) This judgment is in conformity with the warrant of attorney; it could not have been otherwise.
Rodney. — Both of the cases cited are cases of misnomer of the defendants, and of the christian names of defendants. This is for an error in the plaintiff's own names. They surely knew their own names. The act does not require the judgment to he in the same names with the warrant, but at the suit of the plaintiff in such note. We could not have taken execution against Huffman Donoho.
Bayard. — If judgment be confessed, in no case can the party confessing object to it the want of formality in stating his own name.
By the Court:
The rule as to joint defendants is, that they must be joined; but advantage can be taken of the non-joinder only by plea in abatement, unless the pleadings show that there are other parties jointly liable. (1 Chit. Plead. 32; 1 Saund. Rep. 291, b. note 4.)
As to actions by one of several persons jointly entitled, all the obligors or covenantees in bonds or deeds ought to join in the action if alive; and if dead, that fact ought to be averred. (5 Rep. 18; 1 Saund. Rep. 291, b. n. 4; 1 Chit. Plead. 7.) If one only sues, the defendant may crave oyer and demur, or plead non est factum, and take advantage of it under that plea; or if it appears on the face of the declaration, it would be fatal in arrest of judgment. In actions of assumpsit, if only one of several persons who ought to join bring the action; the defendant may take advantage of it on non-assumpsit, according to the settled decisions, though contrary to the principle of the case of Rice vs. Shute, 5 Burr. Rep. 2613. In actions of tort the defendant must plead such non-joinder in abatement. (1 Saund. Rep. 291, b. 4; 1 Chit. Plead. 8, note 32.)
But this case does not fall within any of these principles. The objection is here taken not by plea in abatement or even by plea to the action. The question for us is, whether the judgment in favor of Huffman Donoho is sustained by the note and power of attorney authorizing the confession, both of which are in the name of Huffman Donoho. On this point we do not see that there is any error in the entry of the judgment. Even after verdict, it would be presumed that Huffman Donoho was the real name of the party plaintiff. (See Morse vs. Chase Co., 4 Watts' Rep. 456; and Porter ct al vs. Cresson, Wistar Co., 10 Serg. Rawle 257,) in the former of which the court presumed after verdict that Joseph L. Chase Co., and in the latter Cresson, Wistar Co., were the real names of the parties plaintiff. (See also 5 Gill Johns. Rep. 412.) The latter case goes further and attacks the distinction between plaintiffs and defendants in reference to the mode of objecting the want of proper parties, as having "no principle for its foundation, and time and good sense will finally prevail, and require equally in both cases, that defendant should take advantage of it by plea in abatement." The argument of the learned editor of Saunders' Reports, before referred to, has a strong tendency the same way; though it admits the distinction to have been established by numerous cases.
If, however, after verdict in an action of assumpsit by Huffman Donoho, the court would presume this to be a real name, we must on stronger grounds presume in favor a judgment authorized by the defendant in this form, and confessed upon a note given to the plaintiff by that name.
Judgment affirmed.