
    E. A. Johnson & Co vs. Jer. Smith.
    Partnerships are persons in law. And it is not necessary in action by partners to set forth the individual names composing the firm. But it is sufficient for the plaintiff to make his legal demand under the very name by which the credit was given.
    This was an action of assumpsit brought in the name and style of JE. A. Johnson Co., plaintiffs', for goods, wares and merchandize. General issue; and joined.
    In this stage of the feuit it was removed to this court by agreement of parties, for a determination of the following points:
    Are the plaintiffs entitled to maintain this suit in the name of their mercantile firm? On the trial of the general issue of this cause, ought the defendants to be precluded from objecting to a misjoinder, non join-der, or disability of the plaintiffs to sue in their mercantile name?
    
      
      July, 1841.
    If said points are decided in the affirmative, then the defendant is to be defaulted. If in the negative, them the plaintiffs to become nonsuit.
    Grimes for plaintiffs.
    If advantage could at any time be taken of the misnomer of the plaintiffs, it is now too late. Tidd’s Practice, 448.
    “At no time, even in the ease of a corporation, was misnomer of the plaintiff pleadable in bar. A misnomer of the plaintiff could only be pleaded in abatement, and was no ground for setting aside the proceedings, or for a motion in arrest of judgment or of nonsuit at the trial.” 1 Ch. PI. 281. It is true, the name of a third person will sometimes prove fatal an the trial, as a variance in writing declared on; but not of the plaintiffs. 1 Ch. PI. 281.
    This rule applies equally to actions in assumpsit as in debt. Porter et al. vs. Cresson et at. 10 Serg. <S' Rawle, 257, was a case analagous to this — saving that that suit was in debt on a single bill, and the plea non est factum. But that fact does not change the principle which is applicable to both. Says Duncan, Jus., “The fact was not put in issue that this was a bill given to A. B. & Co., but that defendant did not execute the deed to Cresson, Wistar & Co.” The plea of non assumpsit to an account, puts in issue the fact of an indebtedness. If the contract has been complied with, or if the defendant has a legal excuse for non-compliance, or if it was never assumed, then the piea of non assumpsit will avail him. 1 Ch. PI. 511. But objections to the person of the plaintiff cannot now be made. 12 Petersd. Jib. 660, and cases cited, lb. 667.
    Browning for defendant.
    In all actions where a plaintiff sues by a wrong name, or in cases of misjoinder, it can be taken advantage of at any time, either by special plea or at the trial of the cause under the general issue — because it is not to be presumed that a plaintiff would sue by a wrong name, or that the defendant would know it if he did. If the misnomer appears at any stage of the proceedings, either by evidence or by plea, the defendant can take advantage of the same.
    All misnomers of the defendants must be specially pleaded, so as to give the plaintiff a better writ. — for the knowledge of the true name is alone with the defendant. Not so in case of nonjoinder or misjoinder of the plaintiff. There the defendant cannot know, and it may only appear in evidence on the trial.
    Misjoinder may be taken advantage of either by plea in abatement or as ground of nonsuit on the trial, whether on a specialty or any other contract. 1 Ch. PI. 14,15; 8 Serg. & Rawle, 308; 5 Serg. & Rawle, 537j 6 Mass. R. 460; 10 Mass. R. 379; 3 Johns. 384; 1 Wash. R. 9; 15 Johns. R. 482; 16 Johns. R. 34, 146; 18 Johns. R. 459.
    The advantage can be taken on the trial either for misjoinder or non-joinder.
   nv THB COURT.

This was an action of assumpsit brought by the plaintiffs, who aré a mercantile firm in St. Louis, against the defendant, lor goods sold and delivered. The plea was non assumpsit, and the only question to be de-iermined is, whether, under these circumstances, a suit may be sustained in the name of the firm. Our statute, enabling plaintiffs to bring suits in this manner, is limited in its operation to those brought on promissory notes, bonds, bills or other instruments of writing, and would not reach a case of this kind: and the whole case, therefore, turns upon the construction of what should be the law, independent of statute.

The authorities cited by the counsel for the defendant, are all eases of misnomer of the plaintiff. There is no doubt but this may be taken advantage of under the general issue. But in the present instance there is no allegation that the name of the firm is not correctly set forth. We must, therefore, look in a different direction for reasons on which to found a decision of this ease.

No very weighty argument against allowing suits to be brought in this manner can be drawn from any other source than that of precedent. The defendant dealt with the plaintiffs in their partnership capacity and under their partnership name. He could not, therefore, be surprised by the suit being commenced by them under that name. A recovery in the present action would be quite as effectual a bar to a subsequent suit for the same demand as though the names of the partners had been particularly set forth.

Formerly the courts were fastidious in requiring the names of the partners to be particularly set forth and proved, and in regarding a failure in this respect as a fatal defect at any stage of the proceedings. But this strict rule has been continually undergoing modifications, in order to encourage and facilitate the operations of mercantile traffic. If this could become a new question in the States of the Union, or even in England, we believe the courts would regard mercantile partnerships as persons in law, capable of sustaining or defending suits when brought by or against them in that capacity. We are now in that very situation, and we think it better to lay down such a rule in the commencement as will not require continual alteration. This rule will be to permit the plaintiff to make his legal demand for payment under the very name by which the credit was given.

Judgment will therefore be rendered for the plaintiffs, pursuant to the stipulation filed in this case.  