Benjamin's Ex'x. v. Boyce

Superior Court of Delaware

Benjamin's Ex'x. v. Boyce

2 Del. 316

DecidedJuly 5, 1837

StatusPublished

This text of 2 Del. 316 (Benjamin's Ex'x. v. Boyce) is published on Counsel Stack Legal Research, covering Superior Court of Delaware primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Benjamin's Ex'x. v. Boyce, 2 Del. 316 (Del. Ct. App. 1837).

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Opinion

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 administratrix of William, instead of Wolf, Benjamin. Then does the principle cover this.

The defendant has given special bail. What would be 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)

(a)

Collins et al. vs. Townsend. Com. Pleas, Sussex, April Term, 1797. in this case the court, on motion of Miller for the plaintiffs, permitted the writ and declaration to be amended by striking out the names of two of the plaintiffs, on payment of the costs of the term. Chief Justice, J. M. Clayton’s MS. notes, p. 19.

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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 administratrix of William, instead of Wolf, Benjamin. Then does the principle cover this.

The defendant has given special bail. What would be 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)

(a)

Collins et al. vs. Townsend. Com. Pleas, Sussex, April Term, 1797. in this case the court, on motion of Miller for the plaintiffs, permitted the writ and declaration to be amended by striking out the names of two of the plaintiffs, on payment of the costs of the term. Chief Justice, J. M. Clayton’s MS. notes, p. 19.

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Bluebook (online)

2 Del. 316, Counsel Stack Legal Research, https://law.counselstack.com/opinion/benjamins-exx-v-boyce-delsuperct-1837.