
    Cain and others vs, Kersay & M’Mahon.
    Sparta,
    September, 1830.
    If the Christian name of a plaintiff is omitted in a declaration, such declaration is defective and may be demurred to.
    The supreme court will not remand a cause for amendment, which amendment might have been asked for and obtained in the court below.
   Opinion of the court delivered by

Judge Catron.

The capias in this cause commands that the defendants be taken to answer Cain and Coffee and William Edmondson, of a plea, &c.

The declaration alleges that defendants covenanted to pay to Cain, Coffee and Wm. Edmondson, without giving the Christian name of Cain or Coffee. For this reason, the declaration was demurred to, but the demurrer overruled. If we abandon most of the forms of pleading, at least we must attempt to retain the substance. Were we to adjudge that a suit can be brought without even stating the Christian name, without any further description than the sirname, a precedent would be set of a most dangerous character. As was urged very properly in argument; suppose a judgment had been rendered against the defendants, as must here be the case, how is the sheriff to know which of the Cains or which of the Coffees is liable to have his property or person seized upon to satisfy the execution? By the ancient English law, a description was necessary, as yeoman, gentleman, clerk, &c. beside the Christian and sirnames. 1 Ba. Ab. 10, Abatement!). Act of 1 Hen. V. ch. 5.. In populous cities, as London, or even in New York or Philadelphia, this is necessary, and is daily becoming more so. According to the settled rules of pleading, this declaration is clearly bad. (1 Chitty on pleadings 254, 255.) The court have no inclination to violate the settled law of pleading, to aid such culpable negligence and which defect could have been so easily amended by inserting the Christian names of the plaintiffs. This court will not remand a cause for an amendment, which might or might not, be asked below. We therefore, sustain the demurrer, and order judgment that ' the defendants go hence without day.

Haggard Rucks, for the plaintiffs in error.

Or. W* Gibbs, for defendant in error.  