HANNAH BENJAMIN, Executrix of WILLIAM BENJAMIN, deceased, vs. ANDREW BOYCE, 2 Harr. 316

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. Collins et al. vs. Townsend. Com. Pleas, Sussex, April Term, 1797. in this case the court, on motion of Miller for the plaintiffs, permitted the writ and declaration to be amended by striking out the names of two of the plaintiffs, on payment of the costs of the term. Chief Justice, J. M.

Clayton’s MS. notes, p. 19.