Cherry v. Fergeson

Court of Appeals of South Carolina

Cherry v. Fergeson

27 S.C.L. 15

DecidedDecember 15, 1841

StatusPublished

This text of 27 S.C.L. 15 (Cherry v. Fergeson) 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

Cherry v. Fergeson, 27 S.C.L. 15 (S.C. Ct. App. 1841).

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Opinion

Curia, per

Earle, J.

Whether the omission of the surname, of the defendant, was such a defect, as would avail him,"in any form, it is immaterial to consider; when he appeared by attorney, and pleaded to the action, he waived the objection. The other ground of the motion is of more weight. He who brings his action, on a written instrument, must set it out correctly; and that which he offers in evidence, must correspond ■ with that which he has described. It was necessary for the plaintiff to set out in his process the note, from which he derived his right of action, that the defendant might know the nature of the demand, to which he was called upon to answer. The name of the original payee was an essential part of the description. And a misrecital was fatal. Goodnight is a different name from Goodwright; and there was nothing to obviate, or remedy the variance between the process, and the proof. The plaintiff, therefore, could not recover, and should have [17]*17been non-suited. The decree for the plaintiff is set aside, and the motion for non-suit is now granted,

Wright & McMidlan, for the motion. Eaves & Thompson, contra. We concur. J. S. Richardson, J. B. O’Neall, J. J. Evans, A. P. Butler.

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Curia, per

Earle, J.

Whether the omission of the surname, of the defendant, was such a defect, as would avail him,"in any form, it is immaterial to consider; when he appeared by attorney, and pleaded to the action, he waived the objection. The other ground of the motion is of more weight. He who brings his action, on a written instrument, must set it out correctly; and that which he offers in evidence, must correspond ■ with that which he has described. It was necessary for the plaintiff to set out in his process the note, from which he derived his right of action, that the defendant might know the nature of the demand, to which he was called upon to answer. The name of the original payee was an essential part of the description. And a misrecital was fatal. Goodnight is a different name from Goodwright; and there was nothing to obviate, or remedy the variance between the process, and the proof. The plaintiff, therefore, could not recover, and should have [17]*17been non-suited. The decree for the plaintiff is set aside, and the motion for non-suit is now granted,

Wright & McMidlan, for the motion. Eaves & Thompson, contra. We concur. J. S. Richardson, J. B. O’Neall, J. J. Evans, A. P. Butler.

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Bluebook (online)

27 S.C.L. 15, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cherry-v-fergeson-scctapp-1841.