¶1The action in this cause was brought by B. A. Weems and L. H. Weems as late co-partners under the firm name of B. A. Weems & Co., for the price of goods alleged to have been sold by plaintiffs to defendants. And there was nothing in the complaint to show that one of them had any more interest in the sum sued for than the other. Therefore, upon the death of B. A. Weems, the right to prosecute the suit dovolved upon L. H. Weems alone, as the surviving partner. According to law, and the statement of facts contained in the complaint, no other person was then entitled to maintain the action.
¶2But the making of the executor of B. A. Weems as his representative, a co-plaintiff with L. H. Weems, was not a discontinuance of the suit, and the motion to have it so ordered was properly overruled. By the change there was only a misjoinder of parties plaintiff, for which, if not corrected, a demurrer would lie. Nor was the alteration subsequently effected by the striking out of the complaint the *190name of L. H. Weems as a party and leaving that of B. A. Weems as the sole original plaintiff, now represented by bis executor, a discontinuance of' the action. There were parties in court and a claim prosecuted. If, as appellants’ counsel argue, the complaint then showed that the right to sue for this claim was not in the executor of B. A. Weems, but in L. H. Weems, as surviving partner, a demurrer for that cause might have been sustained, but not the motion for an order that plaintiff had discontinued his suit. Non constat that the complaint would not be amended so as to show a right of action in the executor alone. This might have been done in such a case, by an averment that at the time of bringing the suit, B. A. Weems was the person really interested in the sum sued for and solely entitled to have the same. — §§ 2523 et seq. of the Revised Code of 1867.
¶3The judge of the City Court erred, however, in not giving the charge asked, to the effect that under the allegations of this complaint, the plaintiff was not entitled to recover in this action, for goods sold by the firm of B. A. Weems & Co., of which L. H. Weems was surviving partner. To authorize a recovery by the executor in such a case there should have been an averment that B. A. Weems was the owner of the claim sued on, when the suit was brought, and the party really interested therein. — Browder v. Gaston, 30 Ala. 677; Douglass v. Beasley, 40 id. 242.
¶4This court cannot consider an amendment as made, which counsel decline or omit to ask leave to make, when their attention is regularly directed to the- matter of it by objections made on account of the defect, in the course of the proceedings at the trial.
¶5Let the judgment of the City Court be reversed and the cause be remanded.