Waterbury v. Mather
New York Supreme Court
Error from the superior court of the city of New-York. The plaintiff declared against the defendants by the names of Thomas W. Mather and John Maurin, stating Mather to have been arrested, and that Maurin was returned not found. The plaintiff counted upon a note made by the defendants in the name of Thomas W. Mather fy Co., which he alleged to be the name under which they transacted business. The declaration contained also the common money counts.
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Error from the superior court of the city of New-York. The plaintiff declared against the defendants by the names of Thomas W. Mather and John Maurin, stating Mather to have been arrested, and that Maurin was returned not found. The plaintiff counted upon a note made by the defendants in the name of Thomas W. Mather fy Co., which he alleged to be the name under which they transacted business. The declaration contained also the common money counts. Mather put in the plea of the general issue, that he did not undertake and promise in modo et forma, &c. On the trial of the cause, it was proved…
1Opinion of the Court
By the Court, Cowen, J.
This nonsuit is entirely susGained by Gordon, v. Austin and others, 4 T. R. 611. That was an action on a promissory note made by Austin, Strobed ^ Shirtliff, who were declared against by the names of William Austin, Robert Strobed and William Shirtliff, the two last of whom were stated to be outlawed. The defendant Austin pleaded non assumpsit. The note was signed Austin', Strobed and Shirtliff, the name of the firm ; but Strobell’s name was Daniel and not Robert. It was held that the plaintiff should have been nonsuited for the variance. Austin alone having pleaded,…
2Cited by17 opinions
- First National Bank v. JaggersCourt of Appeals of Maryland · 1869
- Kavanagh v. HamiltonSupreme Court of Colorado · 1912
- Roberts v. MosierSupreme Court of Oklahoma · 1913
- In re SnookNew York Court of Common Pleas · 1859
- Alabama & Vicksburg Railway Co. v. BoldingMississippi Supreme Court · 1891
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