Blythwood v. Everingham

*286Curia, per

Johnson, J.
The question made in the case, is whether, under the state of the pleadings, the plaintiff was bound to show that defendant was a sole trader.

The general rule is, that every thing necessary to the plaintiff’s right to recover is admitted, which is not put in issue by the defendant’s plea; and it has been accordingly often held, that a plea to the merits admits both the right of the plaintiff to sue in the character which he assumes, and the liability of thq defendant to answer in the character in which he is sued, as in the common case of actions by and against executors and administrators and others, suing or sued in a representative character. Trapier vs. Mitchell, 2 N. & McC. 64. Here the defendant is sued as a sole trader. In that character she was capable of binding herself by contract, and having pleaded to the merits, she admitted her liability to answer in that character; and, according to the rule, the plaintiff was not bound to prove it.

Motion dismissed..

O’Neall, J. concurred.