School District No 1 v. Blaisdell

Richardson, C. J. delivered the opinion of the court.* The question is, whether, as the pleadings in this case stood, the plaintiffs were bound, in order to maintain the action, to show, that there was a school district, No. 1, in Orange, legally established ? The general issue is, in its nature, a plea in bar with full defence, and is a waiver of all exceptions to the per [198] son of the plaintiff. 1 Chitty’s Pl. 465, and 412—414; 2 Saund. 209, c; Coke Littleton, 127, b; Carthew, 229, Jentreer v Jenkins. A plea, that there is no such person as the plaintiff, in rcrmu natura, is in abatement. Com. Dig. “ Abatement,” E, 16; 1 Chitty’s Pl. 435; 1 Wilson, 302. But a plea, that there is no such corporation in existence as the plaintiffs, is in bar. 1 Saund. 340, b; 2 Starkie’s Ev. 425; 1 B. & P. 40, The Mayor and Burgesses of Carlisle v. Blamire; 1 B. & A. 703. A mistake in the name of the corporation must be pleaded in abatement. Gilbert’s Rep. 248; I B. & A. 703; 10 Mass. Rep. 362. It may be difficult to see, wiry a plea of no such person in existence, should be in abatement, and a plea of no such corporation in existence, should be in bar. But there are cases in which the matter of a plea may be pleaded either in bar or in abatement. 1 Chitty’s Pl. 435; and a plea of no such person, or corporation, as the plaintiff, in existence, seems to be of this description. 1 B. & P. 44; 1 B. & A. 703; 10 Mass. Rep. 91. Upon principle, then, it seems, that the general issue is, in a case like this, an admission of a corporation capable of suing. 4 Peters, 501 ; ditto, 450. But, in New York, it has been held, that even on the general issue the plaintiffs, suing as a corporation, must prove, that they are a corporation. 8 Johns. 378; 19 ditto, 300; 2 Cowen, 378. The authorities, cited to sustain that decision, are, 2 Ld. Raymond, 1635; Hobert, 211, Morris and Stayes’ case; Buller’s N. P. 107, Peters v. Mills. And all the cases, bearing upon the point, are collected m Angel & Ames on Corporations, 377. But the cases do not seem to sustain the decision. Some instances have occurred where the suit was in the name of a foreign corporation, in which, proof of the ex [199] istence of the corporation has been required. The case in Lord Raymond was of that description. In the case of The Bank of St. Charles v. D. Bernales, 1 C. & P. 569, evidence of the existence of the corporation was offered on the general issue. But that was a foreign corporation. These cases seem to ns to be exceptions to the general rule. Instances have also occurred, in which a corporation has been compelled to show a charter, under the general issue, in order to show a title to maintain the action. But it is believed, that the rule which requires a corporation, in every case, on the general issue, to prove that it is a corporation, in order to maintain an action, is sustained neither by principle nor authority. In general, when a defendant intends to insist that there is no such corporation, he must plead it either in bar or in abatement. In this case the action is trespass, by a school district, in a town, for breaking and entering a school house. School districts are public corporations, with power to build, repair, and hold school houses. And in such a case a plea of the general issue seems to be clearly an admission, that there is such a corporation as is described in the writ. We are therefore of opinion that there must be, in this case, Judgment on the verdict, Footnotes [*] Parkes.. J. been of Counsel, -did not sit.