#### Wilcox, & Co. v. Hawkins.

J-From Warren.

Whenever it appears on the face of the pleadings, that there are other parties to the contract, who are not joined in the action as Plaintiffs, if may be demurred to, or taken advantage of, in arrest of judgment; and if the objection do not appear on the face of the pleadings, but is shewn in evidence, it is a proper cause for nonsuit on the general issue.

The omission in the writ of the name of a party Plaintiff, may be amended on seasonable application to- the Court below, but this Court has no power to amend in such case.

This was an action of assumpsit, brought in the name of John V. Wilcox, Arthur Johnson and Major Drunkard, merchants, under the firm of «John Y. Wilcox, and Co.” and the Plaintiffs declared, 1st, as assignees, upon a special promise of Defendant, at the time of his assignment of a bond, drawn by one Banks, for $ 1050. 2nd. Upon a general assignment. — They then offered in evidence, the bond of Banks, payable to the Defendant two days after 2d October, 1819, with the following endorsements, which were proved:

“ Nov’r 6th, 1819,1 assign the within to Hinton & Brame.

(Signed) “ J. H. HAWKINS.”

“Pay to CJ. V. Wilcox, & Co.’

(Signed) « HINTON & BRAME.”

And on the trial of the cause below, it was shewn, that the present Plaintiffs composed the firm of “ Wilcox, Johnson, Co” and that the firm of “ J. Y. Wilcox, & Co. was composed of John V. Wilcox and Thomas Wilcox. Whereupon, on motion, the Plaintiffs were called, and non-suit; and motion for new trial having been overruled, the Plaintiffs appealed to this Court.

Tayror, Chief-Justice.

This suit was brought in the name of the three persons specified in the writ, viz. *85 Wilcox, Johnson and Drinkard, under the firm and description of “ John V. Wilcox & Co.;” but tiie Plaintiffs shew, from their own evidence, tiiat "John v. Wilcox & Co.” was a firm composed of John Y. Wilcox and Thomas Wilcox, consequently one of the persons, with whom the contract was entered into, was not made a party Plaintiff. Whenever it appears on the face of the pleadings, that there are other parties to the contract, who are not joined in the action as Plaintiffs, it may bo demurred to, or taken advantage of, in arrest of judgment. And if the objection do not appear on the faccojf the pleadings, but is shewn forth in evidence, it is a proper cause for nonsuit on the general issue. — Sound. 153, n. 1.) Further, to give the Plaintiffs a cause of action against the Defendant, it was necessary for them to shew, that John V. Wilcox & Co. as described in the writ, had prosecuted a suit against Banks,* whereas, they shew a suit prosecuted against him by John Y. Wilcox and Thomas Wilcox, under the firm of John V. Wilcox & Co. which appears,to have been correct, according to the contract, but altogether variant from the shape in which the Plaintiffs have described themselves in this action. It is an evident mistake in filling up the writ, and might have been amended, on a seasonable application, in the proper Court,* but we have no power to do so here, however we may regret that the justice of the case should be entangled in form. The nonsuit was properly awarded, and the judgment must be affirmed.