Northumberland County Bank v. Eyer

• Decision Date: 04 February 1869
• Citation: 60 Pa. 436
• Parties: Northumberland County Bank <I>versus</I> Eyer.
• Court: Pennsylvania Supreme Court

60 Pa. 436

Northumberland County Bank versus Eyer.

Supreme Court of Pennsylvania.

January 26, 1869.

February 4, 1869.

January 26th 1869.

Before THOMPSON, C. J., AGNEW and SHARSWOOD, JJ. READ, J., absent. WILLIAMS, J., at Nisi Prius.

Error to the Common Pleas of Northumberland county: to January Term 1869, No. 258 J. M. Linn and J. W. Comly (with whom was J. B. Linn), for the plaintiffs in error.—The plea is in effect a plea in abatement, which it was too late to put in: 1 Chitty's Pl. 441, 451, 479; Smith v. Bowker, 1 Mass. 76; Gilbert v. The Nantucket Bank, 5 Id. 97; Jewett v. Burroughs, 15 Id. 469; Porter v. Cresson, 10 S. & R. 257. Pleading over admits the capacity to sue, and the existence of a corporation can be put in issue only by plea in abatement: Lehigh Bridge Co. v. Lehigh Nav. Co., 4 Rawle 9; Rheem v. Naugatuck Wheel Co., 9 Casey 358; Tams v. Hitner, 9 Barr 446; Chamberlin v. Hite, 5 Watts 374; Wilson v. Hamilton, 4 S. & R. 240; Porter v. Cresson, 10 S. & R. 258; Wilson v. Wallace, 8 Id. 55; Fritz v. Commissioners, 5 Harris 134; Zion Church v. St. Peter's Church, 5 W. & S. 215. The entry of judgment here would extinguish the plaintiffs' right when there can be a recovery in some shape. The judgment should have been arrested merely: Kauffman v. Kauffman, 2 Whart. 147. To reserve a point there should be on the record a statement of the facts on which it arises: Winchester v. Bennett, 4 P. F. Smith, 513; Clark v. Wilder, 1 Casey 314; Irwin v. Wickersham, Id. 316; Wilson v. Steamboat, Id. 317.

A. C. Simpson and J. B. Packer (with whom was W. J. Greenough), for defendant in error.—The charter of a corporation must be proved on the trial of the general issue: Bank of U. S. v. Haskins, 1 Johns. Cas. 132; Jackson v. Plumbe, 8 Johns. R. 378; Dutchess Cat. Man. v. Davis, 14 Id. 238; Grubb v. Mahoning Nav. Co., 2 Harris 304; Christian Society v. Macomber, 3 Metc. 237. A plea in abatement must give a better writ; here the plea went to the foundation of the action. The same matter may sometimes be pleaded in abatement and bar: Duppa v. Mayo, 1 Saund. 284 n. 4; Evans v. Stevens, 4 Tenn. R. 227; Sandback v. Quigley, 8 Watts 460; Hurst v. Fisher, 1 W. & S. 441; Seaton v. Jamison, 7 Watts 540; Casporus v. Jones, 7 Barr 121; Langdon v. Potter, 11 Mass. 316; Rheem v. Naugatuck Wheel Co., supra; Gray v. Monongahela Nav. Co., 2 W. & S. 162; Fritz v. Commissioners, Zion Church v. St. Peter's Church, Christian Society v. Macomber, supra; Brooke's Ab., Misnomer, 73; Mellor v. Spateman, 1 Saund. R. 340, note 2. The corporate name must be strictly used: Berks & D. Turnpike v. Myers, 6 S. & R. 17. The point reserved appears on the record, and the judgment therefore was regular: Clark v. Wilder, Irwin v. Wickersham, Wilson v. Steamboat, supra. Arrest of judgment must be for error appearing on the record: 1 T. & H. Pr. 549; 2 Tidd 825; Hartzhorne v. Patton, 2 Dall. R. 252; Archb. Pr. 280; 2 Impey's Pr. 412, 414; Skinner v. Robeson, 2 Yeates 375.

The opinion of the court was delivered, February 4th 1869, by SHARSWOOD, J.

The judgment of the court below on the 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; but 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 Franklin Mill Co., 30 Id. 157; Proprietors of Sanapee v. Eastman, 32 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....