Wooster v. Lyons

5 Blackf. 60, 1838 Ind. LEXIS 36

• Court: Indiana Supreme Court
• Decided: November 30, 1838
• Status: Published

Opinion

Dewey, J.

Assumpsit. The declaration alleges that the defendant, “ by the name and description of Moses Ons,” executed his promissory note, &c. General demurrer to the declaration, and joinder. The Circuit Court sustained the demurrer, and rendered judgment for the defendant.

This decision was right. If a person execute a written promise by a wrong name, he must be sued in that name.

To declare against him in his true name, averring that he executed the instrument by the untrue description is erroneous. If to a suit against him in his assumed name he plead a misnomer, the replication may state the facts, and it will be sustained by the production of the instrument executed in the name in which he is sued. Field v. Winlow, Cro. Eliz. 897.—Gould v. Barnes, 3 Taunt. 504.—1 Chitt. Pl. 279.—1 Stark. Ev. 413.

C. H. Test, for the plaintiff. J. Perry, for the defendant.

Per Curiam.

The judgment is affirmed with costs.