#### Totty’s Executor v. Donald and Co.

October, 1815.

i. Assumpsit* — Nonjoinder of Issue — Effect, † — In an action of assumpsit *the*pleas were non assumpsit, and the act of limitations : the plaintiff replied generally to the first plea, and specially to the second; hut no rejoinder was put in by the defendant. It was said in the transcript of the record, that a jury was impanelled to try the issues joined. But it was decided by this court, that no issue was joined on the second plea; and therefore, that a verdict for the plaintiff be set aside, and a new trial directed.

a. Partnership — Action against — Declaration in Firm Name — Effect.‡—It seems, that a declaration in behalf of a mercantile company, by the name of the firm, (omitting to mention the names of partners.) is good, after verdict.

See Murdock and others v. Herndon’s Executors, 4 H. & M. 209, 207.

In the year 1803, a company of merchants, styling themselves “Thomas & Alexander Donald & Co.” brought an action of assumpsit, in the District Court holden at Richmond, against Daniel Totty, William Totty, and Edward Totty, executors of Thomas Totty, deceased.

The writ, being returned “executed on Daniel Totty, and the other defendants, no inhabitants,” was abated as to them.(a) The plaintiffs having filed their declaration, (in which the names of the partners in the firm were not set forth, except Thomas and Alexander Donalds,) the defendant Daniel Totty appeared, and pleaded non assumpsit *195by the testator, and the act of limitations. To the first of these pleas, the plaintiffs “replied generally —to the second, they tiled a special replication, which, in September, 1807, they had leave to amend ; whereupon they filed an amended replication ; to which there was neither demurrer nor rejoinder. The transcript of the record farther states that, at a Superior Court of law for Chesterfield County, (to which the suit was transferred under the act of assembly,) a jury was impanelled to try “the issues joined,” who found a verdict, “that the defendant’s testator, in his lifetime, did assume upon himself, in manner and form, &c. within five years next before the time of suing out the writ of capias in this suit, *and assessed the damages of the plaintiffs, by occasion of the non performance of that assumption, to 501. 12s. 7j¿d. with legal interest thereon, to be computed after the rate of five per centum per annum, from the 3d day of September, 1782, till payment, besides their costs.” Judgment was rendered accordingly; to which the defendant obtained a supersedeas from a judge of this court; stating, in his petition, that the judgment ought to be reversed ; 1st, because, there being no demurrer or rejoinder to the general replication to the first plea, no issue was joined on that plea ;(a) 2dly, Because there was no issue, in fact, or law, on the second plea, there being no demurrer or rejoinder to the special amended replication ;(b) 3dly, Because the declaration shews that there were parties, plaintiffs to the suit, who are not named therein, (c)

*

Assumpsit. — See monographic *note*on “Assumpsit” appended to Kennaird v. Jones, 9 Gratt. 183.

†

 PIeadíng and Practice — Nonjoinder of Issue — Effect. —On this subject, *see foot-note*to Rowans v. Givens, 10 Gratt. 250, where the principal cases on the subject are collected. The principal case is cited to the point in Griffie v. McCoy, 8 W. Va. 206; Shrewsbury v. Miller, 10 W. Va. 122. The plea of the statute of limitations, which concludes with a verification, and in which an issue could not be made by the addition of a similiter, should be replied to before trial, and the want of replication is not cured by 'the verdict. Baltimore, etc., R. Co. v. Faulkner, 4 W. Va. 184, citing principal case.

‡

Partnership. — See monographic *note*on “Partnership” appended to Scott v. Trent, 1 Wash. 77.

(a)

 See Rev. Code, 1st vol. p. 132, sect. 15.

(a)

 Stevens v. Taliaferro and others, 1 Wash. 155. (1)

(1) Note. But see Brewer v. Tarpley, 1 Wash. 364; Walden’s Executor v. Payne, 2 Wash. 7. 8; and Turberville v. Self, 2 Wash. 71, 72.

(b)

 Mangum v. Flowers, 2 Munf. 205.

(c)

 Scott & Co. v. Dunlap, Pollock & Co., 2 Munf.

October 11th, 1815. The president pronounced the court’s opinion, that “there being no rejoinder, the special replication to the second plea was no issue on that plea, to wit, the act of limitations.”

Judgment reversed; verdict set aside; and cause remanded for further proceedings.