Fritz v. Commissioners

The opinion of the court was delivered by Lewis, J. An action was brought in this case in the name of “The Board of Commissioners of Montgomery county,” upon a bond purporting to be executed by the defendant below, in that form. The bond was executed also by Jacob S. Sands, and was given to secure the faithful performance of his duty as collector of taxes. Issues were joined in the court below, upon the pleas of non est factum and payment; ,and the cause ought to have been tried upon those issues. These pleas admitted the legal capacity of the plaintiff to maintain the action, in the name set forth in the declaration. That right being thus admitted upon the record, it was not material to inquire whether it was founded upon an actual existence as a natural person, or upon a legal existence as a corporation thus named. It was sufficient that the [135] plaintiff was thus “nominated,’’not only “in the bond” but on the record, by consent of the party now seeking to raise' an objection upon the ground of misnomer. Conceding that the plaintiff was not properly described, the objection is available only on a plea in abatement. A verdict for the defendant on such a plea affects only the action, and leaves the plaintiff at liberty to commence a new suit in the proper form; but a decision in favor of the defendant, on non est faotwm, or payment, bars the right for ever. To permit a defendant to obtain a verdict on a plea which extinguishes the right, by means of formal objections of misnomer, which go only in abatement of the particular action, would be to sanction the most glaring outrage upon justice, by means of a violation equally palpable of the plainest principles of pleading. There is a time for all things. Every plea must be pleaded in the order prescribed by law ; and every trial must be confined to the issue joined. In this case it was entirely out of place to urge the misnomer complained of, and it was also too late to make the objection in any form of pleading. 1 Saund. Pl. & Ev. p. 1-2; 2 W. & Ser. 156; 5 W. & Ser. 215; 4 Rawle 9; 10 Ser. & R. 257. The objection to the competency of Samuel H. Graff is without foundation. He never was a party to the contract, nor had he at any time any further interest in the recovery than that which is common to every tax-payer of Montgomery county. It is not material to inquire whether he was Commissioner of the county at the time the bond was executed, or at any other time, inasmuch as it does not appear that he has been guilty of any neglect which should make him liable for the matter in controversy in any event. His holding, at one time, the office of Commissioner does not affect his interest; and if it did, the objection is removed by the Act of 16th April, 1840, which takes away all objections by reason of being “ an officer, or rated citizen, or inhabitant of the county.” The court below did but conform to the well settled rule of law in permitting the plaintiff, after the recollection of the subscribing witness failed, to establish the execution of the bond by other testimony. Burr. 2224; 7 Taunt. 251; Douglass 206; 2 Camp. 635; Skin. 79, 413, 637; 1 Saund. Pl. & Ev. 939. The objection that the bond is destroyed by reason of N. Wagonhurst’s name being attached as an attending witness, is destitute of an essential ingredient to make it available. It does not appear to have been done at the request of the plaintiff, or even with the knowledge of any of the Commissioners or officers of the county that it was without the consent of the obligors. On the contrary it appears affirmatively to have been done at the request of at least one of the obligors, ih the absence of the obligee, and whether in the presence or absence of the party who now makes the objection does not distinctly appear, owing to a failure of [136] recollection on the part of the witness. In these material circumstances the case is widely different from Marshall v. Gougler, 10 Ser. & R. 169; Foust v. Renno, 8 Barr 378, and Henning v. Werkheiser, 8 Barr 518, on which the plaintiff in error relies. Under the circumstances of the case before us it would have been error in the court below to have decided as matter of law that the bond was void. It was proper to admit it in evidence; and this objection is therefore at an end, as we do not review the decision of the jury, and no complaint is made of improper instructions in the charge of the court below. Judgment .affirmed.