#### Philander Salisbury and Charles Collins, plaintiffs in error, v. Daniel O. Gillett and Dudley Avery, defendants in error.

Error to Morgan.

A mistake in the Christian name of a plaintiff can be taken advantage of only by plea in abatement.

Where an action was brought against the makers of a note, by the payees, who were described in the note by the name of their firm, “ Salisbury & Collins ” : Held, that it was not necessary, under the general issue, to prove the Christian names of the plaintiffs, or that they were partners.

This cause was heard in the Court below, at the March term, 1838, before the Hon. Jesse B. Thomas, who rendered a judgment for the defendants. The plaintiffs brought the cause to this Court by writ of error.

W. Thomas, for the plaintiffs in error,

cited 3 Campbell 239 ; 13 Petersdorff’s Abr. 130 ; 3 Stark. R. 362, 407 ; 3 Stark. Ev. 1167 ; 3 Missouri 227.

M. Leslie, for the defendants in error.

Lockwood, Justice,

delivered the opinion of the Court:

This was an action of debt commenced by Salisbury & Collins against Gillett Avery, by petition and summons.

The defendants pleaded nil debet, and the cause was, by consent of parties, tried by the Court without a jury. On the trial of the cause, the plaintiffs produced and read a note, of which the following is a copy, to wit:

> “St. Louis, March 29th, 1837. — Six months after date, we promise to pay Salisbury & Collins, at the agency of the Commercial Bank of Cincinnati, in St. Louis, two hundred and forty-nine dollars, without defalcation, and for value received.

> “ Gillett & Aveby.”

The plaintiffs proved, that defendants were partners in trade, and doing business under the name of Gillett & Avery, and also proved by a witness, that he had heard Charles Collins say, that he had a partner in St. Louis named Salisbury, in a shoe-store, and that he had seen a notice of a partnership in a newspaper. He believed he had been in their store in St. Louis; but witness did not know the Christian name of Salisbury. Upon this testimony, the Court below gave judgment for defendants.

If the note had been payable to Collins & Co., and the action brought in the names of Collins & Salisbury, proof would have *291been necessary, to show that Salisbury was one of the firm of Collins & Co. (1)

In the case at bar, however, the action is brought in the names of the payees, and if there is any thing wrong, it must be in the Christian names of one or both of the plaintiffs. Such a mistake, however, can only be taken advantage of by a plea in abatement.(2) The Court below consequently erred in giving judgment for the defendants. The judgment below is reversed, with costs, and judgment rendered in this Court for the amount of the note and interest.

Judgment reversed, and judgment rendered in this Court.

Note. See Vance et al. v. Funk, Ante 263.

(1)

McGregor et al. v. Blanchard, 5 Wend. 475.

(2)

1 Chit. Plead. 440.