| Ind. | Mar 24, 1837

Blackford, J.

The Muskingum Manufacturing Company brought an action of debt against.Harris,- The declaration is, substantially, as follows:—

The Muskingum Manufacturing Company complain of Elisha Harris, otherwise Elisha B. Harris, in custody, &c. of a plea that he render to the plaintiffs the sum of 1,274 dollars and 87 cents, which he owes, &c. For that whereas the plaintiffs, on, &c., at, &c., recovered against said Elisha B. Harris 1,274 dollars and 87 cents above demanded, adjudged as their damages, and the sum of 11 dollars and 49 cents for their costs. Whereby an action has accrued to the plaintiffs to demand of the defendant the said sum of 1,274 dollars and 87 cents, as also the sum of 11 dollars and 49 cents costs,. above demanded. And it is averred, that -the defendant in that cause is the defendant in the present suit. Damages 1,500 dollars.

The defendant pleaded five pleas:—1st, payment; 2dly,-ac-cord and satisfaction; 3dly, that Nathaniel Wilson, one of The Muskingum Manufacturing Company, in consideration of a farm, &c. released the defendant from the debt; which release is lost; 4thly, that since the judgment, the corporation was dissolved by the consent and acts of its members; 5thly, mtl tiel record. To the first and second pleas there are replications in denial. The third and fourth pleas were demurred *268to, and the demurrers were sustained. To the fifth plea, the plaintiffs replied that there was such a record as stated in the declaration. The issue on the plea of nul tiel record was tried by the Court and decided in favour of the plaintiffs. On the " , , . , , . „ . r other issues, the delendant made default.

The final judgment in favour of the plaintiffs is for 1,286 dollars and 36 cents in debt, and 1,086 dollars and 95 cents in damages for the detention of the debt, amounting in all to the sum of 2,373 dollars and 31 cents, together with costs.

The first objection to these proceedings is, that the declara-' tion is insufficient. It is said that the declaration. ought to have averred that the plaintiffs were a corporation, and to have shown how they were incorporated. There is no ground for this objection. The name itself implies that the plaintiffs are a corporation. Norris v. Staps, Hobart, 211. If .the plaintiffs were not authorised to sue by the name which they have assumed, the defendant could have denied their existence by a special plea. The Guaga Iron Company v. Dawson, decided at this term. The declaration-before us, so far as regards the objection in question, is in the usual form. Dean and Chapter of Rochester v. Pierce, 1 Camp. 466.— United States Bank v. Haskins, 1 Johns. Cas. 132" court="N.Y. Sup. Ct." date_filed="1799-07-15" href="https://app.midpage.ai/document/president-of-the-bank-of-united-states-v-haskins-5474654?utm_source=webapp" opinion_id="5474654">1 Johns. Cas. 132.

The judgment sustaining the demurrer to the third plea is objected to, but without cause. The circumstance that the person named in the plea was one of the company, gave him no authority to release.a debt due to the corporation.

It is contended, that the demurrer to the fourth plea should have been overruled, but we are - not- of'that opinion. The plea, that since the judgment declared on the corporation had been dissolved, is an affirmative plea, and the Causes and manner of the dissolution ought to have been shown. To say merely, as this plea does, that the 'corporation had been dissolved by the consent.and acts of its members, is not sufficient.' A corporation cannot be dissolved by the consent of its members, except it be by the surrender' of their franchise to the government, and an acceptance by the government of the surrender. But this plea shows no such surrender and acceptance, and is consequently bad. 2 Kent’s Comm. 310.

On the trial of the issue on the plea of nul tiel record, the plaintiffs offered in evidence' a transcript of the judgment on which the suit was founded. The evidence was objected to *269on the ground of variance, but the objection was overruled. The present suit is brought against Elisha Harris, otherwise Elisha B. Harris, and the judgment given in evidence is against Elisha Harris. It is said that there is a variance here as to these names, but we do not think the objection is tenable. It is also said, that th’e judgment given in evidence does not agree, as to the amount of the débt, with the judgment declared on. In this, the defendant is mistaken. The body of the declaration shows the amount recovered in Ohio to be 1,274 dollars and 87 cents damages, ancí 11 dollars and 49 cents costs. The transcript admitted in evidence agrees with that statement. The circumstance that the sum demanded in the queritur of the declaration is for a less amount, is not material. Lord v. Houstoun, 11 East, 62.

C. W.- Ewing, J. S. Newman, and D. H. Colerick, for the plaintiff. H. Cooper and S. C. Sample, for the defendants.

There is, however, an error in these proceedings for which the judgment must be reversed. There are two pleas to the action, viz. payment and accord and satisfaction—upon which issues were joined by the plaintiffs. These issues have , not been tried. A judgment could not be taken by default over these pleas. When the defendant was called and failed to appear, the only course for the plaintiffs to take was, to have a jury impanelled to try the issues on these pleas, in the same manner-as if the defendant had .appeared and defended the cause. 2 Arch. Prac. 28.—Graham’s Prac. 631.

Per Curiam.

The judgment is reversed, and the proceedings subsequent to the entry of the defendant’s, default set aside, with costs. Cause remanded, &c.