Majority
p. 421Edward W. Lapham and Isaac L. Lapham, trading under the firm name of E. W. Lapham & Son vs. The Philadelphia, Baltimore and Washington Railroad Company, a corporation of the State of Delaware. (November 2, 1903.) Lore, C. J., and Grttbb and Pennewill, J. J., sitting.
Headnote
Pleading—Demurrer—Plea in abatement—Misnomer of DefendantCorporation—“ Philadelphia, Baltimore and Washington
Railroad Company”—“ The ” used as part of title—■
Demurrer to plea in abatement overruled.
The corporate title of defendant being, “ Philadelphia, Baltimore and Washington Railroad Company,” and being sued as “ The Philadelphia Baltimore and Wash-t ington Railroad Company,” hild to be a misnomer, and demurrer to plea in abatemen overruled.
Henry Ridgely, Jr., and William M. Hope for plaintiff.
George M. Jones for defendant.
p. 422Superior Court, Kent County, October Term, 1903. (No. 46, April Term, 1903). Henry Bidgely, Jr. and William M. Hope, counsel for demur-rants argued as follows: This theory of the identity as the touchstone of decisions on pleas of abatement for misnomer has been recognized and acted upon from the earliest times. The reiterated si idem sonans oí the early cases had its bads here. Legal process, of necessity, dealt with persons by and with their names; the name was the means of the identification of the person. This was quite as true of individuals as of corporations. The process knew nothing more of the substance or body of the one than the other. In either case, therefore, the identification of the defendant, so far as the process was concerned, lay entirely in the name. If identification had not been the sole question in such matters, then we could have looked for technical strictness being required. This, however, was not the case. Even in the early
Action on the case
Demurrer to plea in abatement.
Defendant filed a plea in abatement alleging that the use of the word “ The ” as a part of the defendant’s corporate title was a misnomer, said corporate title being simply “ Philadelphia, Baltimore and Washington Railroad Company,” etc.
1. The whole and sole question involved in a plea of abatement for an alleged misnomer of a defendant, is a question of identity. Is the person, natural or artificial, who is served with the summons, the same person whom the writ commands to be served ? If yes, then the plea is bad, otherwise, it is good. The reason is manifest. A writ is ineffectual if not served ; it can only be served in pursuance of its mandate; the command being to serve a certain person, a service upon any different person is bad, and no one at all is properly before the Court.
p. 423days of technical refinement, no literal error availed to abate the suit, provided only the sound was there. Thus in 2 Taunton, 401; 2 Price, 328; 18 English Common Law, 194, note A.; 3 Chitty’s Gen. Practice, 171. 2. Now the only distinguishing points in names consist either (so far as natural persons are concerned) in spelling or in sound; and it is equally true that names which do not sound alike can never be spelt alike; but names which do sound alike may be spelt differently. Here then we have the reason that leads the Courts from the very beginning to hold that sound would answer and make the writ good. To hold to the literal spelling would have been the technical ruling, but the Courts have always held that the idem sonans was sufficient, for by it the identification could be assured. Take now the case of artificial persons. Is the reason and the rule the same ? It may be contended that these bodies are given a name by law. It is replied that their baptism by statute is no higher than the baptism of the individual. It may be contended again that corporations having no physical body must depend for identification upon their names. To this it is replied (as already stated) that in legal process the name of the natural person is likewise the sole test of identity. The writ commands John Jones to be served ; not John Jones of a certain presence and appearance. As a matter of fact, legal process of itself gives more means of identifying the corporation than the individual, for in the former it gives its place of existence, thus The A B Co., a corporation of the State of Delaware, whereas in the case of the individual, the John Jones might be anyone of a thousand anywhere in the United States. But further: Individuals have names which in themselves convey no impression of the identity of the person named;. with corporations the name often itself gives some description; thus as in the present case, Philadelphia, Baltimore and Washington Eailroad Company, at once describes a railroad corporation, and the further
p. 424description “ existing under the laws of the State of Delaware,” identifies it as one of the railroads incorporated by this State. The individual name gives no description, conveys no idea of the identity of the person. 1 Thompson Corporations, Sec. 285; 1 Morawetz Corporations, Sec. 354; Angel & Ames, 3d Edition, 77; 1 Barn. & Alderson, 699-701; 10 Coke Report, 124; 1 Bos. & Puller, 40-44; 30 Alabama, 663. 4 Ency. P1. and Pr., 204; Ohio vs. Bell Telephone Co., 36 Ohio St., 296 ; Pa. Co. vs. Sloan, 125 Ill., 72 .
Janes, for defendant, replied ; citing
Demurrer overruled, (Pennewill J., dissenting).