Smith v. Hunt

2 Stew. 222

Opinion

By JUDGE PERRY.

It is contended that the plaintiff was bound to prove that he was one of the firm of George Wilkinson & Co. and also the death of his copartner. The position assumed by the counsel for the plaintiff in error cannot be applied to the plaintiff below, inasmuch as it would have formed a good defence for the defendant; and if he wished to avail himself of it, it was incumbent on hjm to shew that there’were other parties to the contract who were not joined as plaintiffs in the-action. This he could have done if the objection appeared upon the face of the pleadings, by demurrer, by motion in arrest of judgment, or on error; and though the objection may not appear on the face of the pleadings, the defendant in the court below could have availed himself of it either by plea in abatement, or as a ground of non-suit on the trial, upon the plea of the general issue.

a The principle here laid down clearly shews, that the want of proper plaintiffs in actions on contract, is an exception to the merits, which may be taken advantage of by the defendant to defeat the plaintiff’s recovery. He may shew that the agreement was under hand and seal, for then the form of the action was mistaken; that the action has not been brought by the proper parties, the promise having been made to the plaintiff jointly with others, &c. b The case is too clear for argument. It is therefore the opinion of the Court, that the judgment' be affirmed.

1 Chitty PI. 6.

2 Starkies Ey. 127.