Palin v. . Small

63 N.C. 484

• Court: Supreme Court of North Carolina
• Decided: June 5, 1869
• Status: Published

Opinion

Settle, J.

Had the writ in this case been issued in the firm name of “ Palin & Brothers,” without reciting the individual names of the persons composing the firm,, the defect would have been fatal; for it is well settled,that the writ must set forth accurately the name of each plaintiff and defendant;

But here the writ does set forth the full names of all the plaintiffs, with the addition that they are “ partners trading under the firm and style of Palin & Brothers.”

It is not pretended that the contract was not made with the plaintiffs William Palin, John Palin and Joseph Palin, but the defendant insists that as the writ recites that they were “partners trading under the firm and style of Palin & Brothers,” the fact of partnership under such name should have been proved upon the trial.

His Honor held this to be unnecessary, and was of the opinion that these words in the writ should be regarded as surplusage. In this we concur. The addition of the firm name to the individual names composing the firm was not necessary, but being added it can do no harm, and will not subject the plaintiffs to any additional proof.

Per Curiam. Judgment affirmed-