#### Owen Williams et al. Justices of Pasquotank, v. John C. Ehringhaus et al.

From Pasquotank(

Dec. 1830.

In an action upon a bond made to a number of persons as a class, by the name of their class', as with the Justices of a County, all who • belong to the class must join, and upon non est factum pleaded, it must be averred and proved that the Plaintiffs do belong to that class.

Where a bond was given to “ the Justices of the Court of Pleas and Quarter Sessions,” and sundry persona joined as Plaintiffs, averring themselves to be Justices, but offered no evidence of their character, it was held, Husiiehsojc, Chief-Justice dissentiente, that they could not recover, although the Defendant had not, by any special plea, denied that they were Justices.

Per Ilcpritr, Judge, arguendo. In actions of debt upon endorsed bonds, the general issue does not put the endorsement in issue — but it is different in assumpsit upon endorsed promissory notes, because in the first case, the debt is created by the execution, and is not affected by the subsequent endorsement; but in the last, the making of the note and the endorsement does not constitute the promise, being only a circumstance proving the existence of a debt, from which a promise is inferred.

Per Hexdeksox, Chief Justice, arguendo. The delivery of the bond, and the character of the Plaintiffs, are distinct averments ; and the latter not being denied by the plea of non est factum, need not be proved.

Debt upon the following bond : “ Whenever the Court “ of Pleas and Quarter Sessions for the county of Pas- “ quotank sliall require, we the undersigned jointly and « severally promise to pay to the Justices of said Court, “ or theh order, the sum of, &c. In witness whereof, (C we have,” &c.

- The writ and declaration set forth the names of the Plaintiffs, twenty-one in number, and averred them to be the survivors of the Justices, who were in office at the execution of the bond.

After oyer, the Defendants pleaded non est factum, oa which the cause was tried before his Honor Judge Nor-wood. After proof of the execution of the bond *512by the Defendants, it was objected that the Plaintiffs had not proved that they were Justices of the Court of Pieas and Quarter Sessions, at the time the bond was exccut,'d. But his Honor held this to be urine-cess ary, and under his directions, a verdict was returned for the Plaintiffs, and the Defendants appealed.

Kinney, for the Defendants,

urged that the plea of non estfaclum put in issue not only the delivery of the bond, but the identity of the obligee, where an averment of his identity was necessary ; as in the case of a bond payable to a copartnership. He urged that an averment of the capacity of ¡he Plaintiffs was necessary, and if necessary, ought to be proved. He cited Scott v. God-win (1 B. & F. 67) ami Ord v. Portal (3 Camp. 239).

Gaston, contra,

admitted tire correctness of the. rule as contended for, in actions of assumpsit and debt on simple contract^ but contended that in actions on specialties, the plea of non est factum put in issue only the execution of the deed.

Ruffin, Judge.

In actions on contract, if it appear on the pleadings, that too many or too few persons are Plaintiffs, advantage may be taken of it on demurrer, or in arrest of judgment. If it do no; so appear, but a variance appear at the trial, the Plaintiff may be non-, suited, or a verdict taken for the Defendant on the gene-, ral issue. No advantage can be taken of a variance, unless the general issue be pleaded; because the contract is admitíed as stated in the declaration. I mention this, because it shows that the general issue denies the Plaintiff’s whole case, so far as it rests upon the existence, terms and effect of the contract. There are cases however, in which the variance may not appear upon the pleadings, nor upon «he face of i.he contract itself, when produced. This is one of them, and a contract with par ners, under the ñame of their firm, is another. When a contract is thus made with, a class of persons, by their *513description as a class, or by the name of office, it is to be sued on by them in their natural capacities, and each person composing the class must be a Plaintiff, in the same manner as if each was mentioned nominatim in the contract. Yet it cannot be declared on, as thus mentioning them, because when given in evidence, it would not appear to be the instrument declared on. It must be stated truly, as it reads, and the declaration must then aver, that the Plaintiffs are the persons thus described. The effect is, that it shows them to be the persons to whom, by the contract, the Defendant has come under an obligation to pay money, or to do any other act. Surely, a most material part of the contract, ami. of the description of a contract is, the designation of the person or persons between whom it is made, and on whom it confers an advantage. To identify it as thus described, it would seem that the Plaintiffs must show themselves to be, in fact, the persons meant by the terms of general description. It is admitted by the Counsel for the Plaintiffs, that such is the rule in actions of assumpsit, or debt on simple cmlir&ct. But it is contended, that this is because, non assumpsit or nil debet go to the whole case in the declaration ; and therefore, not only denies any promise, but also the promise to these Plaintiffs. I agree to that, and the rule seems to me to be the same upon non est factum to debt on specialties. This is denied, upon the supposition that this plea only denies the execution of the deed, and its continuing validity. I think it also extends to the legal effect and substance of the deed, as stated in the declara-1 ion. The rule is thus expressed in respectable text writers. (2 Phil. Ev. 88). As an instance however of the distinction contended for between non est factum and non assumpsit, tli- case of debt by the assignee of a bond is put, in which non est factum, would not go to the assignment, though in assumpsit «he general issue would. St is said, this is because in debty the *514general issue extends only to the execution and validity of the deed. I admit the difference, but not the reason assigned. It is owing to the different mode of declaring. case> *be ,t0^e and assignment are not stated as containing the promise to the Plaintiff, but as creating a debt which formed a consideration, upon which an express promise was made, or is supposed to have been made to the Plaintiff. In debt, no contract between the Plaintiff and Defendant is alleged. The debt to the obligee is ■shown to be created by the bond ; that debt is transferred to the Plaintiff by virtue of the assignment, and by force of the statute j and upon this right alone he founds his action. In assumpsit, the general issue goes to the assignment, because it denies the promise; and that can only be commensurate with the consideration from which it is implied: in debt it does not, because neither the execution, nor continuance, nor effect of the deed depends upon the assignment, which is a subsequent and •independent thing. In debt therefore, the assignment must be denied by a special plea. But this is not like the present question, which turns on the meaning of the deed originally. Why in assumpsit must the Plaintiffs .prove themselves as stated iti the declaration ? Because it is of the substance of the contract alleged. JVbit as-sumpsit denies a promise to these Plaintiffs. So non est factum denies the sealing and delivery of the deed to these Plaintiffs, and to them alone. It puts in issue, whether the Defendant entered into a contract, whereby he became obliged to pay a sum of money to the particular persons who sue him. They say he did : if they say so# they must prove it so. In what other mode can the Defendants protect themselves against a suit brought by too many Plaintiffs. They cannot plead in abatement, because they could not give the intruding Plaintiffs a better writ. The defence, if true, bars them altogether. Besides, how can he know them ? If it be specially pleaded, it will amount to non est factum, and be bad ; *515fop it puts in issue, whether the deed be such in effect, as described. There is no precedent of such a plea. If indeed the bond be payable to certain persons by name, and others site on it, and it be spread on the record upon oyer, the Defendant may demur or plead in abatement the apparent variance. But if the variance bo not apparent, I know not of any method of taking advantage of it, but by (he general issue. The execution of the deed must be proved to be by the Defendant to the Plaintiffs. The identity of the parties is of the essence of the issue. It will not do, says Mr. Justice Butler, that one who called himself B, executed the deed $ the witness must know him to be the Defendant. (Law of JV*. p. 171). And so I think it is of the Plaintiffs also. The Defendant cannot plead that another person in his name executed the deed, and so it is not his 5 nor can he plead, that he executed it to other persons, and so not to these Plaintiffs. Both would amount to the general issue, and such pleading is not allowed. I think, therefore, that there must he a new trial.

HaiIi, Judge, concurred.

Henderson, Chief-Justice,

disscniicnte.-'t'he plea of non est factum does not necessarily deny* and put in issue all the allegations in the declaration. As where an assignee of a reversion brings an action on a covenant contained in the lease, and which runs with the land, as annexed to the estate in the land. Oran action is brought by an assignee ©f a reversion upon some covenant made assignable by the Slat, of Hen. 8, as passing with the estate. In these cases, non est factum only denies the execution of the lease or deed, on which the action is brought, as containing the covenant sued on. The assignment is not thereby put in issue, and of course need not be proven on the trial. It is a separate and distinct averment from the making of the deed. So here, this bond is given to the *516Justices of Pasquotank County. The action is brought by A, B, &c. with an averment, that they are or were J i Justices of Pasquotank. This is a distinct and separate airmen! from the one, that the Defendant made the bond to the Justices of Pasquotank| and not being denied, as said above, need not be proven. The plea of non est factum here goes to the making of the bund to the Justices of Pasquotank ; not to the averment, that A, B, etc. are Justices. It is unlike the case to which it was compared in the argument; that is, where a bom! is made to J. S. and another J. S, gets possession of and sues on it. Here J. S. who sues must show, on the plea of non est factum, that he. is the J. S. named in the bond. For in such case, there is but one averment, to-wit, that the Defendant made the bond to him J. S. which the plea of non est factum denies. On the trial the Plaintiff must prove, that he is the J. S. named in the bond. And so of all other obligees. But this passes unnoticed most commonly, because possession of the bond is at least primafacie evidence, that the Plaintiff is the J. 8.meant. It is therefore non est factum to you But, as was said before, this arises from its being all one allegation.— But the case now under consideration contains two distinct allegations; first, that the Defendant made the bond to the Justices of Pasquotank; and secondly, that A, B, &c. the Plaintiffs are the Justices. Mon est factum is therefore confined to its appropriate denial, that is, that of making the bond to the Justices, and not to the allegation that A, B, &c. are the Justices. Being a distinct fact, and not denied, I think it need not have been proven on the trial, and that the judgment ought to be affirmed ; but as my brethren think differently, the judgment must be reversed.

Per Curiam. — Let the judgment below be reverse^ tod a new trial granted.