60 Pa. 436 | Pa. | 1869
tfke opinion of the court was delivered,
by
The judgment of the court below on the
The 4th assignment of error is, “ that the court erred in allowing the defendant to file the plea of nul tiel corporation, &c., after issue joined and trial had upon the plea of non assumpsit and payment with leave, &c.” Besides the short plea there was filed also the plea extended in form, “ that there is not, nor on the day of the purchase of this writ, nor ever since, was there any such corporation as ‘the Northumberland County Bank,’ as by the said writ is above supposed.”
The better opinion seems to be that such a plea is in bar and not in abatement. A plea in bar impugns the right of action altogether: a plea in abatement only the form or names in which it is brought: Stephen on Plead. 432. Hence the misnomer of a corporation as well as of a natural person must be pleaded in abatement. But the defence that there never was such a natural person as the plaintiff in rerum natura, or that such a corporation as that named as plaintiffs never existed, which are pleas of precisely the same nature, go to the right of action altogether, and are therefore pleadable in bar: Rheem v. Naugatuck Wheel Co., 9 Casey 363. One reason is, that in the latter case the defendant cannot give the plaintiffs a better writ, which must generally be done in abatement, though perhaps not always. In a case reported in the Year Book, 22 Edw. IV. 34, it was held that, “ in an action by a corporation or natural person, misnomer of the one or the other goes only to the writ; hut to say that there is no such person in rerum natura, or no such body politic, this is in bar; for if he is misnamed he can have a new writ by the right name, but if there be no such body politic, or no such person,, then he cannot have the action.” Brooke’s Abr. tit. Misnomer 73, fol. 80, b. This decision has been recognised and followed in subsequent cases both in England and this country: Mayor and Burgesses of Stafford v. Bolton, 1 Bos. & Pul. 40; Doe d. Malden v. Miller, 1 B. & Ald. 704; Bank of Metropolis v. Orme, 3 Gill. 444; Town of Lewiston v. Proctor, 27 Illinois 414; Nocreth
It is evident, however, that there must be something to distinguish such a plea from the ordinary plea of misnomer; for a party may well plead when sued by a natural or artificial person by a wrong name that there is no such person in existence, especially as to a plea in bar no affidavit is required. The plea must show when in bar that it goes to the cause of action alleged in the declaration, and not to the form or name in the writ. It has been settled therefore from the earliest period that it is not enough in such a plea in a suit by a natural person to aver that there was no such person in rerum natura at the time of the impetration of the writ, but it must allege that there never was such a person. The same rule applies to the plea of nul tiel corporation, for the same reason exists in both cases. Ubi eadem ratio, ibi idem jus. A man or corporation may change his or their name between the time the cause of action arose and the bringing of the suit; and a corporation certainly loses none of its franchises or rights by such a change when authorized by law; and they can recover by their pew name a debt due before: Brooke’s Abr. tit. Corporation 38, fol. 183 b; Moor 581, 582; The Mayor, &c., of Scarborough, v. Butler, 3 Lev. 237; Mellor v. Spateman, 1 Saund. Rep. 844, note 1. The decision to which I refer is reported in Brooke’s Abr. tit. Briefe 25, fol. 102 a. “ Appeal against several, and one says that there was no such John in rerum natura the day of the writ purchased, and held to be no plea; but he ought to say that he was dead the day of the writ purchased, or that there was never such a John in rerum natura.” Lord Chief Baron Comyn on this authority so states the rule, “ that there was no such person at the day of the original purchased is ill:” Com. Abr. tit. Abatement, E. 16.
If then for this reason and on, this authority the special plea filed by leave of the court under exception in this case was no plea — was bad on general demurrer — it was error in the court to allow it to be filed; or what amounts to the same thing, as the record shows that the judgment was entered for the defendants on
Judgment reversed, and venire facias de novo awarded.