Chappell v. Proctor ( 1823 )

The opinion of the Court was delivered by

Mn Justicá Johnson.

There can be no doubt that the first ground of the present motion would have been a good objection, if the defendant had taken advantage of it at the proper time and in the proper way; for it is necessary that the parties to a suit should be as certainly designated as may be conveniently practicable: but it is equally clear that the objection, in this case, came too late; for it is a well settled rule of practice, that a mistake in the name -of the plaintiff, can only be taken advantage of by plea in abatement; unless indeed, in cases where the contract given in evidence, differs from the name of the plaintiff, set forth in the declaration. But in this case, they correspond precisely: vide 3 Chitty on pleading, 256.

In the case of “ Ash and wife as, executors of Smith,” decided in Charleston, at Jan. term, 1823, it was determined, that since the statute, a note for the payment of money pre-suppps.es a good consideration, with or without the words “ value re® ceived;” and if this be correct, the note itself was sufficient evidence of a consideration.

The motion is refused. —

Johnson, JYott, Ilichardson^ Huger, Colcoclc and Gantt, Justices, concurred-.