Page:Federal Reporter, 1st Series, Volume 5.djvu/364

 353 FEDEBlIi lœPORTEIt, �first part, except what is exempt from execution, and ail prop- erty whatsoever in whieh they have any right, title, or interest, upon thë trusts usual in general assignments. The paper ia signed "Henry Lawrence & Sons, by Seabury Lawrence, attorney in fact;" also by three of the partners, James, Sea- bury, and George W. Lawrence, and by Bell, the proposed assignee. A seal is afSxea to each signature. It was duly acknowledged on its date by James, Seabury, and George W. Lawrence, individually, and by Bell. The notary also certi- fies as follows : "Before me, personally, came Seabury Law- rence, the attorney in fact of Henry Lawrence & Sons, known to me to be the individual described in, who, as such attor- ney, executed the foregoing instrument, and who acknowl- edged that he executed the same as the act and deed of said Henry Lawrence & Sons therein described, and for the pur- poses therein mentioned." There is no evidence, except what appears on the paper itself, that the two copartners who did not execute the assignment consented to it or authorized its execution by Seabury Lawrence, on their behalf, or on behalf of the firm. �Upon this state of facts it is objected by the assignee in bankruptcy that the judgment was not docketed against the bankrupts individually or as an existing firm, but was recov- ered and docketed against them as survivors of a former firm ; that, inasmuch as the real estate was not the real estate belonging to them as survivors, but real estate which they owned in their own right, the judgment is not a lien. I think there is nothing in this objection. The description of the plaintiffs in the complaint and in the judgment is mere description, and nothing more. Calling them survivors did not make them, and them alone, any the less plaintiffa in their individual right and capacity. It is unlike the describ- ing of a plaintiff as an executer, which purports to defihe the capacity in which he sues, and therefore is inconsistent with his prosecution of the action in his own right and individual capacity. Describing a person as survivor is merely describ- ing, not the capacity in which he sues, but the mode in which his title is derived. As a description it is immaterial and ����