HANNAH BENJAMIN, Executrix of WILLIAM BENJAMIN, deceased, vs. ANDREW BOYCE.
Plaintiff having declared in the name of H. R, executrix of William E. instead of Wolf B., was permitted to amend after issue joined.
Nark, in assumpsit. Application to amend the pleadings.
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.
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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 curies, that chief justice Taney, in the last circuit court for the Delaware district, had decided that this was not a cause of non-suit, but the objection could only be taken on a plea in abatement. The case he referred to was SheireU Sy Shewed vs. McCabe. See Saund. PI. ¿y Ev. Abatement, Misnomer; 2 Brod. Sy Bingh. 34; 6 Serj. ¿y Lowb. 9 ; 10 Mass. Rep. 252 ; 1 Chitty Plead. 440.
Macbeth, for plaintiff.
Hamilton, for defendant.
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.