Wilson Shober v. . Moore .
Supreme Court of North Carolina
This was a motion to set aside a complaint, heard by his Honor, Judge Tourgee, at Spring Term, 1874, of Guileoed Superior Court.
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This was a motion to set aside a complaint, heard by his Honor, Judge Tourgee, at Spring Term, 1874, of Guileoed Superior Court. At the return term of the summons and before answer filed, the counsel for the defendants moved to set aside the complaint filed by the plaintiffs in the cause, upon the following grounds: 1. For a variance between the summons and complaint, in that the summons commanded the defendant to answer the complaint of Wilson & Shober alone, while in the complaint they sue for themselves and in behalf of all others, the creditors and note holders of the Bank of the State of…
1Opinion of the CourtBxnum, J.
If this were an action at common law, began by general process, the plaintiff might have declared qui tam or the defendant might have been declared against, in his representative character. But the role does not hold econverso, for if the process is, to answer the plaintiff qui tam and the declaration is in his own name only, the variance would be fatal. The rule was, that where the process was special, that is to answer the plaintiff suing in a particular capacity or calling upon the defendant to answer in some particular capacity, the declaration must conform thereto. But where the process…
2Cited by5 opinions
- Bobbitt v. . StantonSupreme Court of North Carolina · 1897
- Long v. Bank of YanceyvilleSupreme Court of North Carolina · 1879
- Barneycastle v. . WalkerSupreme Court of North Carolina · 1885
- Staton v. . WebbSupreme Court of North Carolina · 1904
- Staton v. WebbSupreme Court of North Carolina · 1904