Opinion
Fall Sessions, 1837.
NARR. in assumpsit. Application to amend the pleadings.
Macbeth, for plaintiff.
Hamilton, for defendant.
The plaintiff sued and declared in the above name; defendant appeared and pleaded to the suit. Issue was joined, and the case set down for trial. Macbeth now moved to amend the narr. by substituting Wolf Benjamin for William Benjamin, and thus make the suit stand Hannah Benjamin, executrix of Wolf Benjamin vs. Andrew Boyce.
The amendment was resisted. It was said by Mr. Bayard, as amicus curiæ, that chief justice Taney, in the last circuit court for the Delaware district, had decided that this was not a cause of nonsuit, but the objection could only be taken on a plea in abatement. The case he referred to was Shewell Shewell vs. McCabe. See Saund. Pl. Ev. Abatement, Misnomer; 2 Brod. Bingh. 34; 6 Serj. Lowb. 9; 10 Mass. Rep. 252; 1 Chitty Plead. 440.
The Court. — It was once doubted if a mistake of the plaintiff's Christian or surname were not ground of nonsuit, but it is now settled that the mistake must be pleaded in abatement, even in the case of a corporation.
But this is not the case of a misnomer of plaintiff's Christian or surname, but a misdescription of the character in which she sues, to wit, as administrator of William, instead of Wolf, Benjamin. Then does the principle cover this.
The defendant has given special bail. What would he the effect of the amendment as to the bail? Undoubtedly a discharge. And on what principle? That the parties in the action are changed — that it is now another suit. And if so, is the defendant bound to answer on his present appearance to this new suit? We will think of it.
The Court afterwards (chief justice hesitante) permitted the amendment, and the cause was continued. See act Jeofails, 8 Del. Laws, 44. (a)