Slocum & Collins v. McBride & Lord ( 1848 )

Birchard, C. J.

The defendants in error sued the plaintiffs in error, in assumpsit, and declared upon a promissory note, thus: “ McBride & Lord, partners, using the name of McBride & Lord, .complain of C. C. Slocum, J. A. Collins, &c.,” in a plea, &c. The note is set forth in the count as executed by C. C. Slocum and J. A. Coffins, &c.

To this declaration Slocum & Collins demurred, specially, 1st, for that the Christian names of McBride & Lord were not stated; 2d, for that J. A. Collins has the “ &c.” appended to his name, and for general vagueness. The demurrer was overruled, and judgment rendered upon default of plea, for the sum due upon the note. It is said the Court erred in overruling the demurrer, and entering judgment. We are not of this opinion. For anything that appears upon the face of the declaration, or demurrer, neither McBride or Lord has any Christian name. Nor does it appear but that the “ &c.” is a part of the sir name of J. A. Collins. Names are arbitrary — as the name of “ John Smith T.”— so that a Court can only take notice of a misnomer, of either plaintiff or defendant, when the fact is properly put in issue, and proved or admitted. A demurrer can never be employed to bring upon the record a new fact. That is not a part of its office. In this case, there is no ground for prosecuting the writ of error, and the judgment will be affirmed, with statutory damages.