Lash v. Arnold, 53 N.C. 206, 8 Jones 206 (1860)

Dec. 1860 · Supreme Court of North Carolina

53 N.C. 206, 8 Jones 206

LASH AND MOORE v. ANDERSON ARNOLD, et al.

A judgment, in favor of “L. & M.,” trading as a firm, is valid, and is competent evidence in a suit brought by the constituents of such firm, in their individual names set out in full.

(The case of Wall v. Jarrott, 3 Ired. Rep., cited and approved, and Cohoon v. Morton, 4 Jones’ Rep. 250, overruled.)

This was an action of debt, tried before Saunders, J., at the last Fall Term of Stokes Superior Court.

The plaintiff declared against the defendants, as the sureties of one Matthew Mabe, on his bond, given as the administrator of one Abner Mabe, and the breach assigned, was the non-payment of two judgments, which the relators had recovered against the administrator Matthew. The judgments were produced in evidence, and appeared to be in the name of “ Lash & Moore,” on warrants in favor of “ Lash & Moore,” against the administrator. The plaintiffs in these warrants were William A. Lash and Edward II. Moore, trading under the name and style of Lash and Moore, and tin’s suit is brought in their names, set out in full as trading under that commercial style. These judgments were objected to as evidence.— 1st. Upon the ground that they were null and void. 2ndly. Because they were no evidence in a suit brought by William Lash and Edward IT. Moore. The evidence was admitted, and the defendants excepted. Yerdict and Judgment for the plaintiffs. Appeal by the defendants.

Fowls, for the plaintiffs.

J/Lovohottdj, for the defendants.

Battle, J.

We concur with his Honor, upon, both the points made by the defendants, in the Court below. The judgments obtained by the plaintiffs, before a single magistrate in the name of “Lash and Moore,” were by no means nulleties, as is clearly shown by the case of Wall v. Jarrott, 3 Ired. Rep. 12. When the warrant was served upon the defendant in those judgments, he might have availed himself by a plea in abatement, or by an exception in the nature of a plea in abatement, of the defect in the warrant — that it was not brought in the proper names of the plaintiffs; but not having done so, the imperfectiou was cured after judgment by our statute of amendments ; see Revised Code, ch. 3, sec. 5.

The second objection is equally untenable. If the plaintiffs had brought suit on the judgments, they would have been at liberty to set forth, in their declaration, their true names of William A. Lash and Edward H. Moore, trading under the name and style of Lash & Moore, and in support of that declaration, might have given, in evidence, the judgments in favor of Lash and Moore. Such would, undoubtedly, have been the case in an action of debt on a bond made payable to Lash & Moore, and we cannot perceive any difference betwmen such an action, and one upon a judgment, obtained in the name of Lash & Moore. See Wall v. Jarrott, ubi supra.

Our attention lias been called to the case of Cohoon v. Morton, 1 Jones’ 256, in which the Court refused to permit the plaintiffs, P. A. R. Cohoon and R. H. McIntosh, partners in trade, trading under the firm and style of “ Cohoon & McIntosh,” to take judgment upon a bond, given, for his appearance, by an insolvent debtor, and made payable to “ Cohoon & McIntosh.”

We are free to confess that the case is in direct opposition to the previous one, to which we have alluded, of Wall v. Jarrott, and we think that, upon principle, it cannot be supported. In the argument of it, Wall v. Jarrott was not referred to by the counsel for the plaintiffs, and we were led into a mistake by not adverting to the rule, which allows tho plaintiffs, in such cases, to aver and prove that they are the same persons, who, as partners, are known and called by the name of the firm. There being no error, the judgment is affirmed.

Per Curiam,

Judgment affirmed.