
    *Ozwald, Deniston, & Co. v. Dickinson’s Ex’rs.
    [October Term, 1799.]
    Factor — Name of — Declaration.—where goods are sold by a factor in Virginia for merchants in Britain, it is necessary to state the name of the factor in the declaration.
    Same — Same—Same.—So if some of the partners reside in G-r. Britain and some in Maryland in America.
    Same — Same—Same—Dismissal of Suit. — And a suit of this kind will he dismissed after issue joined upon the merits, if the fact appear on the trial of thd cause.
    Same — Same—Same—Same.—And it will not prevent the dismission, that there are money counts in the declaration.
    This was indebitatus assumpsit brought, by Ozwald, Deniston and Company, against Dickinson’s executors in the county court. The declaration contained four counts 1. For goods, wares and merchandizes sold and delivered to the testator. 2. A quantum valebat for the same. 3. For money paid and advanced for the use of the testator. 4. For money had and received by the testator to the use of the plaintiffs. Plea non assumpsit; and- issue. Upon the trial of the cause the court, on the motion of the defendant’s attorney, ordered the jury to be discharged from giving a verdict, and the suit to be dismissed, at the costs of the plaintiffs. To which Opinion of the court the plaintiffs filed a bill of exceptions, stating, that “on the trial of the cause, it was given in evidence, that the goods, wares and merchandizes mentioned in the declaration were sold and delivered to the defendant’s testator, by John Murray factor for the plaintiffs; and that at the time of said sale or delivery, the house of Ozwald, Deniston & Co. consisted of George and Alexander Ozwald. Deniston who resided in Great Britain, and Robert Dick who resided' in the state of Maryland; and at the time of bringing the suit all the surviving partners of the said house resided in Great Britain. That thereupon the defendant’s counsel moved the court to dismiss the suit, because it was not stated in the declaration that the goods, wares and merchandizes were sold and delivered to the defendant’s testator, by John Murray as factor for the plaintiffs; and that the court accordingly ordered the suit to be dismissed, and the jury to be discharged.”
    *There is an account which the clerk of the County Court has copied into the record and certifies was filed in the cause; but which was not made part of the record, by any act in the County Court; in this account the plaintiffs charge the testator, with various articles of merchandize, and several sums in cash, (the whole account, of debits for cash and merchandizes amounting to ,£245. 11,) and give credit for sundry hogsheads of tobacco and a few small sums in cash ; the whole amount of credits, for cash and tobacco, being £121. 10. 3. ; thus leaving a balance due the plaintiffs of £124. 0. 9.
    The plaintiffs appealed from the judgment of the County Court, to the District Court; where the judgment was affirmed, and from the judgment of affirmance, the plaintiffs appealed to this court.
    Call, for the appellant.
    The District Court in affirming the judgment of the County Court erred in two respects. 1. Because the act of Assembly only relates to cases, where all the partners lived in great I Britain and Ireland; but here the bill of exceptions states that one resided in the state of Maryland; and this being a mere positive law, relating only to matter of form will be construed strictly. 2. Because there were two money counts in the declaration, and the exhibits copied into the record shew that there was a demand for cash advances: Therefore at most, the court ought only to have directed the jury to disregard the counts for merchandize, and to confine themselves to those for money only. Instead of which, they have dismissed the whole suit; which they had no authority to do; as the plaintiffs had a right clearly, to proceed upon the money counts.
    Wickham and Botts, contra.
    The act of 1755, chap. 2, Sect. 7, is express, that the name of the factor shall be inserted, under pain of having the suit dismissed with costs; and of course the plaintiffs, by omitting to insert it in the present *case, subjected themselves to the inconvenience of a dismission. That the objection was not taken till the trial of the issue makes no difference; because the defendant could not tell for what the suit was brought, until it was made known upon the trial of the cause? and therefore it is within the reason of the case of Corrie’s exrs. v. Campbell, 1 Wash. 153. That one of the partners lived in Maryland will not alter the case; because he might have been a secret partner only, and in point of fact it does not appear that he was known to the defendant, until the trial of the cause. So that if this construction should prevail, the law which was beneficial to the citizens might be totally evaded. What we contend for has been decided in the.Federal Court, upon a serious argument, in a case where a verdict was found subject to the opinion of the Court upon this very point. The objection that there are counts for money, as well as merchandize, has no weight in it. Because by reference to the exhibits it appears that there were payments in tobacco and other things equal to the money advances; and therefore, setting those against each other, the remainder will be goods and merchandizes only; and so, the case will be a suit for goods actually sold and delivered here, by the factor of the plaintiffs; which brings it precisely within the words of the act of Assembly. Besides the whole scope of the record shews evidently, that to have been the true nature of the suit; and that the money counts were not intended to be relied upon. The declaration does not recite the names of all the partners; and therefore the evidence, which went to shew that the debt was due to others, as well as those actually named in the declaration, was irrelevant and improper.
    Call and Warden, in reply.
    Either the exception should have been taken by motion, before plea pleaded, or it should have been pleaded in abatement. For it was too late to insist upon it, after issue had been joined upon the merits, and the *cause was actually under trial. It is no excuse to say, that the defendant could not foresee what would be the charges against her, and therefore could not be prepared to make the objection, until she was informed thereof upon the trial; because she might have refused to plead until the pláintifl's furnished her with a sight of the account; in which case the court would have staid proceedings until it was done, or else she might have admitted that these articles were sold to her testator, and averring that they were sold by a factor, have denied that the plaintiffs sold any other goods to the decedent. By both which methods, the objection, might have been made, at an earlier stage of the cause; and consequently ought to have been urged before : Especially as the exception is but a mere dilatory, tending to delay justice; and therefore not to be favored. At any rate, the plaintiffs had a right to go to trial upon the money counts. This was a right which the county court could not take from them; although they had not produced a title of evidence to support these counts. Eor still, they had a right to submit their case to the jury; who could only find a verdict against them, in case they had no evidence. Therefore the County Court, by arresting the proceedings and dismissing the suit, exercised a power which did not belong to them. But, in point of fact, it appears that there was testimony upon those counts; and the motion, contended for on the other side, that as there had been payments, which if opposed to the cash advances, would counterbalance them and leave only the goods, ought not to influence the case in the slightest degree. For why garble the account for the sake of operating injustice and delay? and, if it was to be garbled at all, why not oppose the payments to the goods, as well as to the cash? For there is surely as much reason for the one as the other. No such attempts however should be made; but the account should stand as it was; and then there was a clear demand for cash advanced; which applied to the *money counts: And therefore the plaintiffs ought to have been heard upon them. The act does not in terms, provide for a case like this, where some of the partners lived in Great Britain, and some in America: Therefore, as it is a law, whose operation tends to prevent the speedy attainment of justice, upon a mere matter of form, it ought not to be taken by equity; so as to affect cases not within the express letter of the statute.
    Cur. adv. vult.
   PENDLETON, President,

delivered the resolution of the court as follow's.

Much unnecessary time was employed in the argument of this plain case.

1.'The time and mode of making the objection are excepted to; and it was said that the defendant should either have Xffeaded in abatement, or demurred, or moved for the dismission at an earlier period.

Whereas it is obvious that the Legislature did not intend there should be any pleading on the occasion, but that when the case appeared, a dismission should take place.

A plaintiff could scarcely be supposed to state a case in his declaration which would subject his suit to a dismission on view of it. But on the trial he must prove the real case, which then, and not before, appearing to be within the act, it was the proper and only time to move for the dis-mission.

2. It was said the account was of mixed articles consisting of cash and goods; that the declaration has two counts for goods, and two, for money lent, and for money received to the use of the plaintiffs; and therefore that the court should not have dismissed the suit entirely, but suffered the plaintiffs to give evidence as to the cash articles, which are not within the act of Assembly.

In answer to w’hich, it was said by the counsel *for the appellee, and perhaps correctly, that if the declaration was for goods sold by a factor here, for a resident in Great Britain, and the factor was not named, the dismission must take place, although there were ever so many other demands in the declaration.

But suppose a partial dismission admissible, and the goods be taken from the declaration and account, then the plaintiffs will be found indebted 11. 9. for so much the credits exceed the other articles. However the plaintiffs themselves consider their demand to be for goods, and so they state it in their bill of exceptions.

3. A third objection was that all the partners do not reside in Britain, but Dick, one of them, in a sister state in America. The name of this partner does not appear in the ostensible firm of the company; but he is what is called a latent or secret partner, unknown to be one perhaps by every person, but the company themselves, and therefore not usuallj' to be regarded in questions of this sort, between the company and others.

Again a factor dealing for a resident in Maryland is equally within the mischief intended to be remedied, by considering it as a dealing with the factor himself. Among others, one important effect is to take the case out of the saving, in the act of limitations, in favour of persons out of the country; which extended to the partner in Maryland as well as to those in Britain.

And since the exceptions state, that at the time of commencing the suit all the surviving partners resided in Great Britain, it is strictly within the letter of the act, which describes the residence of the person or persons in whose names the suit is brought.

The judgment is unanimously and without difficulty affirmed.  