School District No 1 v. Blaisdell

6 N.H. 197

Opinion

Richardson, C. J.

delivered the opinion of the court.

*

The question is, whether, as the pleadings in this case stood, the plaintiffs were bound, in order to maintain the action, to show, that there was a school district, No. 1, in Orange, legally established ?

The general issue is, in its nature, a plea in bar with full defence, and is a waiver of all exceptions to the person of the plaintiff. 1 Chitty’s Pl. 465, and 412—414; 2 Saund. 209, c; Coke Littleton, 127, b; Carthew, 229, Jentreer v Jenkins.

A plea, that there is no such person as the plaintiff, in rcrmu natura, is in abatement. Com. Dig. “ Abatement,” E, 16; 1 Chitty’s Pl. 435; 1 Wilson, 302.

But a plea, that there is no such corporation in existence as the plaintiffs, is in bar. 1 Saund. 340, b; 2 Starkie’s Ev. 425; 1 B. & P. 40, The Mayor and Burgesses of Carlisle v. Blamire; 1 B. & A. 703.

A mistake in the name of the corporation must be pleaded in abatement. Gilbert’s Rep. 248; I B. & A. 703; 10 Mass. Rep. 362.

It may be difficult to see, wiry a plea of no such person in existence, should be in abatement, and a plea of no such corporation in existence, should be in bar. But there are cases in which the matter of a plea may be pleaded either in bar or in abatement. 1 Chitty’s Pl. 435; and a plea of no such person, or corporation, as the plaintiff, in existence, seems to be of this description. 1 B. & P. 44; 1 B. & A. 703; 10 Mass. Rep. 91.

Upon principle, then, it seems, that the general issue is, in a case like this, an admission of a corporation capable of suing. 4 Peters, 501 ; ditto, 450.

But, in New York, it has been held, that even on the general issue the plaintiffs, suing as a corporation, must prove, that they are a corporation. 8 Johns. 378; 19 ditto, 300; 2 Cowen, 378.

The authorities, cited to sustain that decision, are, 2 Ld. Raymond, 1635; Hobert, 211, Morris and Stayes’ case; Buller’s N. P. 107, Peters v. Mills.

And all the cases, bearing upon the point, are collected m Angel & Ames on Corporations, 377.

But the cases do not seem to sustain the decision. Some instances have occurred where the suit was in the name of a foreign corporation, in which, proof of the existence of the corporation has been required. The case in Lord Raymond was of that description. In the case of The Bank of St. Charles v. D. Bernales, 1 C. & P. 569, evidence of the existence of the corporation was offered on the general issue. But that was a foreign corporation. These cases seem to ns to be exceptions to the general rule.

Instances have also occurred, in which a corporation has been compelled to show a charter, under the general issue, in order to show a title to maintain the action.

But it is believed, that the rule which requires a corporation, in every case, on the general issue, to prove that it is a corporation, in order to maintain an action, is sustained neither by principle nor authority.

In general, when a defendant intends to insist that there is no such corporation, he must plead it either in bar or in abatement.

In this case the action is trespass, by a school district, in a town, for breaking and entering a school house. School districts are public corporations, with power to build, repair, and hold school houses. And in such a case a plea of the general issue seems to be clearly an admission, that there is such a corporation as is described in the writ.

We are therefore of opinion that there must be, in this case,

Judgment on the verdict,

Parkes.. J. been of Counsel, -did not sit.