R. A. & G. H. Wilthaus vs. F. Ludecus, sole trader, and E. Ludecus, her husband

R. A. & G. H. Wilthaus vs. F. Ludecus, sole trader, and E. Ludecus, her husband. It is no ground for special demurrer that the Christian names of the parties, plaintiffs and defendants, are represented in the declaration by initial letters only, even though the letters be consonants : the Court will not assume, without proof, that R, A, G, H, P and E are only initials and not the proper names of the parties: the objection should be made by plea in abatement, ( ) A feme sole trader is bound to a third person by her indorsement to him of a note drawn by her husband payable to herself. In declaring on a promissory note against an indorser, it is not necessaiy to allege that the liability arose by virtue of the statute of Anne. () The concise forms of declarations on promissory notes now used in England are good at the common law; semble, () On the execution of a writ of inquiry, the only question is as to the amount of damages, and evidence irrelevant to that question is inadmissible. Before Evans, J. at Charleston, Fall Term, 1851. The report of life Honor, the presiding Judge, is as follows: “ The declaration stated that one E. Ludecus made a certain promissory note, payable to F. Ludecus or order, and that F. Ludecus endorsed it to the plaintiffs, who are called throughout by the name of R. A. & G. H. Wilthaus. There were common counts for goods sold and delivered. In the conclusion, it is said the defendant, by reason thereof, became liable to pay, and being liable, promised, &c. omitting the usual reference to the statute of Anne. “ To this declaration there was a demurrer, and for causes of demurrer, the following were assigned : “ 1. That only the plaintiffs’s surnames were stated and the initials of their Christian names. “ 2 and 3. That only the initials of the drawer’s and of the endorser’s Christian names were mentioned. “ 4. That the contract of the husband and wife was void. . “ 5. That it was not stated that the defendant became liable to pay by force of the statute. “ I overruled the demurrer on all the grounds. “ 1. There was no doubt the omission to insert, as well the Christian as the surname, was fatal, if pleaded in abatement, but ^ demurrer I could not assume the plaintiffs had any other •es than those which were given. 2 and 3. The same remarks apply to these grounds. The ,-note was signed E. Ludecus, and endorsed P. Ludecus, and I could not assume they had other names than such as they had adopted. “ 4. The declaration furnished no evidence that the drawer and endorser were husband and wife. But even if that be so, the defendant’s liability arose as endorser, and she would be bound by her endorsement, even if the note had been void, as a contract between husband and wife. “5. The allegation that'the defendant’s liability accrued by force of the statute, is the usual form of declaring, but I thought where the facts stated imposed a legal liability, it was not necessary to state whether it accrued by force of any statute, or by the common law. “ On the overruling the demurrer, the plaintiffs proceeded to execute their writ of inquiry,. when the defendant proposed to offer evidence that F. Ludecus was the wife of E. Ludecus. This I refused, as well for the reason before stated, as that it was contrary to the practice of the Court. The only question was, as to the damages of the plaintiffs, which might have been referred to the Clerk, but they had to execute a writ of inquiry to get a verdict for an open account.” The defendant appealed, and now moved in arrest of judgment, upon the several grounds set forth in the demurrer; and failing in that motion, for a new trial, on the ground, that the Court refused to allow the defendant to offer evidence to the jury that the maker of the note sued on was the husband of the defendant, against whom the action had been brought as payee and first endorser. ' Northrop, for appellant, cited Miller vs. Hay, 3 Exchr. Rep. 14. Memminger, contra, cited 1 Chit. Pl. 441, 643; Chit, on Bills, 291. (a) Vide next case, Kinloch vs. Caersten. (b) Vide Chit, on Bills, 352, 490, note q. (7 Amer. Ed.) (c) Prof. Greenleaf assumes (and beyond question correctly) that the concise forms, now used in England under the Rule of Trinity Term, 1st wm. IV. (Henn. Forms, 131), are good at the common law. (2 Green. Ev. § 155, note 1. See also Chit, on Bills, 489, and notes.) By the new rules of practice in England, the common counts are consolidated into one. This, says Prof. Greenleaf, may be done “ by the general principles of the law of pleading.” (2 Green. Ev. § 105, note 5.) [MAJORITY — Evans, J.] The opinion of the Court was delivered by Evans, J. It is admitted, that if one sues, or is sued, by a wrong name, it would be fatal if pleaded in abatement, unless the jury should find that the party was known as well by one name as the other. But it is said that P, E, R, A and G, H are not names, but the initial letters of names, and that the use of them is not a misnomer, but a misdescription apparent on the face of the record, and, therefore, the proper subject of a special demurrer. It may be true, as alleged, that these are but the initials of names, but how can that be known ? May not one be baptized by the name of F, as well as the name of Frederica, or G H, as well as George Henry? The argument is, that the names should be spelled out, and because F, G and H are consonants, therefore not simple sounds, instead of the letter, which represents the compound sounds of those letters, the name of the letter should be spelled, so that if the name be F, it should be spelled out Ef. I am aware there are some recent cases in England which sustain this' notion, as Miller vs. Hay, (3 Exchr. Rep. 14), and Nash vs. Calder, (57 Eng. C. L. R. 177), the substance of which is, that, because E is a vowel and a simple sound, that may be a name ; but because B is a consonant and a compound sound, it is no name unless you spell it, Be. Now this, to my mind, has no sensible meaning. Letters are the representatives of sounds, and I am wholly unable to see any reason why a simple sound may be represented by a letter but a compound sound may not. The one conveys as clear an idea to the mind as the other. Since the argument of this case, a friend has pointed my attention to the case of Regina vs. Dale, decided in the last year, and reported in the 5 English Law and Equity Reports, 360, which was a sci. fa. on a recognizance of bail taken before Sir B. Townsend and J. H. Harper. Speaking of the initials of these parties, Lord Campbell said: “ But I do not know that these are initials. I do not know that they were not baptized with these names, and I must say that I cannot acquiesce in the distinction made in the cases referred to, that a vowel may be a name but a consonant cannot. I allow that a vowel may be a Christian name, and why may not a consonant be? Why may not parents, for a reason good or bad, say, that their children should be baptized by the' name B, C, D, F or H ? I am just informed by a person of most creditable authority, that within his own knowledge a person has been baptized by the name of T.” I might add to this, that in all our cases, the use of initials has been treated as misnomer and pleaded in abatement; such was the case of A. O. Norris,. (4 Strob. 32); The City Council vs. A. W. King, (4 McC. 437), and all the other cases which have been decided on this subject. We think, therefore, there is nothing which can avail the defendant in his first, second and third grounds of demurrer. If these letters be, as is likely, but initials of names, it should have been pleaded in abatement as a misnomer. It might be sufficient to say, on the fourth ground, that it does not appear from the declaration that the defendant, F. Ludecus, the endorser, is the wife of E. Ludecus, the drawer of the note. But if it did, that could make no difference. The defendant, even if she could make no binding contract with her husband, was capable in law to bind herself to a third person: she endorsed the note to the plaintiffs, and in doing so incurred the liability of an endorser. As such she would be bound, even if the note was void as between the maker and the payee. In an action by the endorsee against the endorser, the genuineness of the note need not be proved. It is unnecessary to prove the signature of the drawer. It is sufficient to prove the endorsement by the defendant. The fifth ground assumes that the plaintiff was bound to aver that the defendant’s liability arose by virtue of the statute. It is not certain that the defendant’s liability does depend on the statute. There is authority for saying she would have been liable on the law merchant independent of the statute of Anne. But whether this be so or not, I think there is no doubt that the source of her liability, whether by statute or the common law, need not be stated. Jt is sufficient for the plaintiff to set out a sufficient cause of action in his declaration, and whether that arises out of a statute, or by the common law, is very immaterial. The declaration in this case was according to the concise form now used in England, and this we think sufficient. As to the ground for a new trial, the defendant can take nothing by that. It was, as before stated, wholly immaterial whether the defendant was the wife of E. Ludecus. When the demurrer was overruled, the plaintiff had a right to execute a writ of enquiry, on which the only question was the amount of damages, and to this point the questions proposed were wholly irrelevant. The motion is dismissed, on all the grounds. Wardlaw; Frost, Withers and Whitner, JJ. concurred. O’Neall, J. absent at the argument. Motion dismissed.