Northumberland County Bank v. Eyer

tfke opinion of the court was delivered,

by Sharswood, J.

The judgment of the court below on the *439 reserved point not having been excepted to, is not before us for review. The 5th section of the Act of Assembly passed March 28th 1835, Pamph. L. 90, entitled “ An act to establish the District Court for the city and county of Philadelphia,” and extended to the Courts of Common Pleas of the several counties of this Commonwealth by Act of April 22d 1863, Pamph. L. 555, after giving the power to reserve questions of law on the trial of a cause for the consideration and judgment of the court in banc, provides “ that either party shall have the right to a bill of exceptions to the opinion of the court, as if the point had been ruled and decided on the trial of the cause.” It is evident that without a bill of exceptions the facts admitted or found, on which the question was reserved, are not properly on the record. This disposes of the three first errors assigned.

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 *440 Franklin Mill Co., 80 Id. 157; Proprietors of Sanapee v. Eastman, 82 New Hamp. 473; 1 Saund. Rep. 340, n. 2, by Serjeant Williams. There are authorities however from which it can be inferred that it may also be pleaded in abatement: Anon., 1 Wils. 302; 1 Com. Dig. tit. Abatement, E. 16; Doe v. Penfield, 19 Johns. 308 ; Zion Church v. St. Peter’s Church, 5 W. & S. 215 ; 1 Chitty 435, and authorities there cited; and in the state of Indiana it is the established doctrine, that it must be so pleaded: Jones v. The Cincinnati Type Foundry Co., 14 Indiana 89; Neaston v. The Cincinnati Railroad Co., 16 Id. 275 . See also Conard v. The Atlantic Insurance Co., 1 Peters S. C. Rep. 450; Society for the Propagation of the Gospel v. The Town of Pawlet, 4 Id. 480.

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 *441 that plea, it is an erroneous judgment. On a writ of error, whatever defect would have been available on general demurrer or in arrest of judgment, may be well assigned. As this case necessarily again goes back in consequence of there having been no bill of exceptions taken to the judgment on the reserved point, it may be well for the plaintiffs to consider whether all difficulty cannot be obviated by an amendment in the name of the plaintiffs under the 2d section of the Act of May 4th 1852, Pamph. L. 574, and also in the declaration by alleging the contract to have been made with the “ Shamokin Bank” by the name of “The Northumberland County Bank.”

Judgment reversed, and venire facias de novo awarded.