
    BRASHEARS AND BARR vs. STOTHARD AND STARKEY.
    Dec. 6.
    
    Whether a person has two names, to wit, a christian and surname, is a matter of fact, not a matter of law; and if he sues by only one name, the court will not presume that he has any other.
    In a declaration it is sufficiet to allege a deed or other instrument by way of recital, though in a plea it is not.
    
      
      From the General Court.
    
   Opinion of

the Court.

THIS was an action of debt, upon a prison bounds bond taken by the jailer and assigned by him to the plaintiffs. The defendants pleaded that they had not broken the condition; and issue being thereupon joined, a verdict and judgment were given against the defendants, from which they have appealed to this court.

The points made by the assignment of error are, in substance, 1st, that the plaintiffs are not duly named in any part of the record; 2dly, the jailer is not authorised by law to assign such a bond as that declared on; and 3dly, the assignment of the bond is not positively averred, as it should be, but by way of recital only.

The first point is evidently not available in this court. The plaintiffs sue by the names of Stothard and Starkey, and whether both or either of them have any other name, is not matter of law, but matter of fact; for we know of no law which requires a person to have two names, and if he has but one, he may certainly sue by that.

As to the second point, it is sufficient to remark, that by the 15th section of the act to amend the law of proceeding in civil cases, passed the 4th of February 1815, which is prior to the date of the bond in this case, the jailer is expressly authorised to take a prison bounds bond, and to assign it to the creditor at whose suit the prisoner is in custody. 4 Litt. 387.

The third point is clearly not sustainable. It is well settled, that in a declaration it is sufficient to allege a deed or other instrument by way of recital; and though in a plea it is otherwise, yet it would be aided by verdict, or on a general demurrer. Com. Dig. Pleader, E. 3; 1 Saund. 275, note 1.

Judgment affirmed.  