Bank of the Metropolis v. Orme

3 Gill 443

• Court: Court of Appeals of Maryland
• Decided: December 15, 1845
• Status: Published

Opinion

Spence, J.,

delivered the opinion of this court.

We deem it unnecessary in this case, to decide, whether the corporate name of the bank be, The Bank of the Metropolis, or, The President and Directors of the Bank of the Metropolis; for the reason, that the decision of this question can have no influence on the conclusion to which we come.

The second point raised by the counsel for the appellant, is, that the objection, (if a good one,) raised by the defendant’s prayer, could only have been made successfully by a plea in abatement.

The name of the plaintiff, both in the writ and declaration, is, “ The Bank of the Metropolis.” If the corporate name of the bank be, The Bank of the Metropolis, the judgment of the court was manifestly erroneous.

But, suppose the corporate name of the bank is, The President and Directors of the Bank of the Metropolis, the objection is not, that there is no such corporation, but, that the name used in the declaration and writ differ, partially, from the true name of the corporation; and the point upon which the decision must turn, is, whether this variance can be taken advantage of by pleas in bar, or only by plea in abatement.

It was once a question, whether a mistake of the name of a corporation, could be successfully pleaded in abatement. Mr. Chitty says, it was once doubted, but that it is now settled, that the mistake must be pleaded in abatement. 1 Chit. PI. 391.

“A mere misnomer of a plaintiff, whether a body politic or natural, is pleadable only in abatement; for a new writ may be taken out by the right name; but, if the existence of the person or corporation be denied, the plea is in bar : for if there be no such person or corporation, there is an end of the action.” 1 Bac. Abridg., 33, (Edit. 1842.)

We are, therefore, of opinion, that the court erred.

JUDGMENT REVERSED AND PROCEDENDO AWARDED.