Blythwood v. Everingham

Court of Appeals of South Carolina

Blythwood v. Everingham

37 S.C.L. 285

DecidedMarch 15, 1832

StatusPublished

This text of 37 S.C.L. 285 (Blythwood v. Everingham) is published on Counsel Stack Legal Research, covering Court of Appeals of South Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Blythwood v. Everingham, 37 S.C.L. 285 (S.C. Ct. App. 1832).

Pincite

Opinion

[286]*286Curia, per

Johnson, J.

The question made in the case, is whether, under the state of the pleadings, the plaintiff was bound to show that defendant was a sole trader.

The general rule is, that every thing necessary to the plaintiff’s right to recover is admitted, which is not put in issue by the defendant’s plea; and it has been accordingly often held, that a plea to the merits admits both the right of the plaintiff to sue in the character which he assumes, and the liability of thq defendant to answer in the character in which he is sued, as in the common case of actions by and against executors and administrators and others, suing or sued in a representative character. Trapier vs. Mitchell, 2 N. & McC. 64. Here the defendant is sued as a sole trader. In that character she was capable of binding herself by contract, and having pleaded to the merits, she admitted her liability to answer in that character; and, according to the rule, the plaintiff was not bound to prove it.

Motion dismissed..

O’Neall, J. concurred.

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[286]*286Curia, per

Johnson, J.

The question made in the case, is whether, under the state of the pleadings, the plaintiff was bound to show that defendant was a sole trader.

The general rule is, that every thing necessary to the plaintiff’s right to recover is admitted, which is not put in issue by the defendant’s plea; and it has been accordingly often held, that a plea to the merits admits both the right of the plaintiff to sue in the character which he assumes, and the liability of thq defendant to answer in the character in which he is sued, as in the common case of actions by and against executors and administrators and others, suing or sued in a representative character. Trapier vs. Mitchell, 2 N. & McC. 64. Here the defendant is sued as a sole trader. In that character she was capable of binding herself by contract, and having pleaded to the merits, she admitted her liability to answer in that character; and, according to the rule, the plaintiff was not bound to prove it.

Motion dismissed..

O’Neall, J. concurred.

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Bluebook (online)

37 S.C.L. 285, Counsel Stack Legal Research, https://law.counselstack.com/opinion/blythwood-v-everingham-scctapp-1832.