Zion Church v. St. Peter's Church

5 Watts & Serg. 215

• Court: Supreme Court of Pennsylvania
• Decided: March 15, 1843
• Status: Published

Opinion

Per Curiam.

No precedent of an averment of incorporation, or of a proferí of the charter, has been produced in any declaration by a corporation; nor is there a reason why there should be one. Unlike a bond or a grant of administration, it is no part of the title to sue, any more than an act of baptism is part of such a title. Nothing but a deed or grant of administration is pleaded with a proferí, and oyer cannot be demanded of a private statute even when a proferí has been made of it. The name, in this instance, imports that the plaintiff is a body politic; and had the fact been otherwise, the defendant might have pleaded the want of an act of incorporation in abatement, or perhaps more properly in bar. But the parties went to issue on.another fact, and it was after-wards too late to inquire into anything else.

Then the question of service is an immaterial one, as the defendant thought proper to enter a general appearance to the action, which, were it necessary, would be considered a waiver of both summons and service; but the sheriff’s return was conclusive. If it were bad on the face of it for specifying that only the minister was served, of which we know nothing, it was the business of the defendant, in place of appearing and taking general defence, to have' ruled the sheriff to amend it; and, failing to do so, the irregularity, if there was one, was waived.

Judgment affirmed.