Proprietors of Sunapee v. Eastman , 32 N.H. 470 ( 1855 )

Eastman, J.

As we understand the plaintiffs’ position in this case, it is this, that, the name of the town having been changed by the Legislature, the aetion is correctly brought in the new name; or, at most, that the error is but a misnomer, and should be pleaded in abatement.

It is no doubt true that, as a general rule, misnomer is plead-able only in abatement. Bacon’s Abr., Misnomer, E; Carth. 124 ; 1 Bos. & Pul. 40; 6 Maule & Selwyn 46 ; Burnham v. Savings Bank, 6 N. H. 446.

It is no plea in bar, because it does not deny the cause of action; nor can it be assigned for error, unless it has been pleaded in abatement and overruled; for if it is not thus pleaded the exception is waived. 6 Term 766-; 2 H. Blackstone 267, 299; 1 Salk. 2 ; Gould’s Pld., chap. 5, § 79.

To a plea of misnomer, it is a good replication that at the commencement of the suit the plaintiff was known as well by the name by which he sues as by that set forth as the true name in the plea. Gould’s Pld., chap. 5, § 80; 1 East 542; 1 Bos. & Pul. 60 ; 2 Wilson 367 ; 2 Chitty’s Pld. 590 ; Willes 554.

Although no advantage can be taken of misnomer as such, except by plea in abatement, yet, when it occasions a variance between the declaration and the proof, it may be taken advantage of under the general issue. As, for instance, A, having executed a bond by his true name, is sued upon it and declared against by the name of B. This would be a variance that could be taken advantage of on the trial. 4 Term 611, 612 ; 3 Bos. & Pul. 559; 1 Camp. 195; Gould’s Pld., chap. 5, § 100.

A plea of no such corporation, is a plea in bar ; and such a plea, or a brief statement to that effect, puts in issue the fact whether there is any such corporation as the plaintiff. School District v. Aldrich, 13 N. H. 189; School District v. Blaisdell, 6 N. H. 198. And the defendant having with the general issue filed a brief statement that there is no such corporation as the proprietors of Sunapee, the issue is properly presented without any plea of misnomer. Is there, then, upon the facts agreed, any such corporation as the proprietors of Sunapee who can maintain this action ?

The Legislature may change the names of individuals and corporations without affecting the liabilities of either. Such acts have always been treated by our courts as public, and consequently are not necessary to be pleaded. As public acts they will be taken notice of by the court.

By the grant of November 7,1768, spoken of in this case, it was declared that the territory granted should be known by the name of “ Saville.” Prior to 1804 the name of the town of Saville was changed to that of Wendell, and in 1850 it was again changed to that of Sunapee. In 1804 a part of the town of Wendell was annexed to New-London.

Had the limits of the original grant never been changed, perhaps there would be no great difficulty in holding that the action could be maintained under the new name, on the ground that it is the same territory, the name of which has been changed by the Legislature. But a part of it having been annexed to New-London, the proprietors of Sunapee are not the proprietors of Saville, but only the proprietors of a part of it; and where towns are divided into two or more, or where portions of them are taken off and annexed to adjoining towns, as has been the fact in many instances in this State, it would evidently lead to much confusion, if not to difficulties that could not easily be remedied, to hold that actions like the present should be brought in the name of the new town. If the town be equally divided, in which name should the action be brought ? The grant being to the proprietors and their heirs, it would seem that the action must, in such a case, be brought in their original name, or in both.

So far as the Reports of this State show, or the court are advised, the practice with us has been uniform, to bring similar actions in the name given to the original grantees; and this, whether the towns have been divided or not. And we think it will be better to adhere to this practice rather than undertake to lay down any new rules upon the question. Proprietors of Cardigan v. Page, 6 N. H. 182; Proprietors of Concord v. McIntire, 6 N. H. 527.

This was an agreed case, and according to its provisions

The plaintiff must he nonsuited.