{
  "id": 5269895,
  "name": "Nixon, Ellison & Co. v. The Southwestern Insurance Company, of Cairo, Illinois",
  "name_abbreviation": "Nixon, Ellison & Co. v. Southwestern Insurance",
  "decision_date": "1868-06",
  "docket_number": "",
  "first_page": "444",
  "last_page": "446",
  "citations": [
    {
      "type": "official",
      "cite": "47 Ill. 444"
    }
  ],
  "court": {
    "name_abbreviation": "Ill.",
    "id": 8772,
    "name": "Illinois Supreme Court"
  },
  "jurisdiction": {
    "id": 29,
    "name_long": "Illinois",
    "name": "Ill."
  },
  "cites_to": [],
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  "last_updated": "2023-07-14T21:11:57.354715+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [],
    "parties": [
      "Nixon, Ellison & Co. v. The Southwestern Insurance Company, of Cairo, Illinois."
    ],
    "opinions": [
      {
        "text": "Mr. Justice Walker\ndelivered the opinion of the Court:\nThis was an action of assumpsit, brought by plaintiffs in error, in the Alexander Circuit Court, against defendants in error, on a policy of insurance. Service was had to the April term, 1868; and at that term defendant below filed this plea in abatement:\n\u201cSTATE OF ILLINOIS,) g0T Alexander County. j\nIn the Alexander Circuit Court, of the April Term, 1868.\n\u201c The Southwestern Insurance Company,\u201d' sued by the name of Southwestern Insurance Company, of Cairo, Illinois, ads.\nRichard G. Nixon, William Ellison and Thomas Block, partners, doing business under the firm name of Nixon, Ellison & Company.\nAnd, \u201cthe Southwestern Insurance Company,\u201d against whom the said plaintiffs have issued their said writ and declared thereon, by the name of \u201c Southwestern Insurance Company, of Cairo, Illinois,\u201d by its President and Secretary, comes and says, that it is named and called \u201cThe Southwestern Insurance Company,\u201d and by the said name has hitherto been\" called since it was so named by the act of the General Assembly of the State of Illinois, approved March 7th, 1867. Without this, that \u201c The Southwestern Insurance Company \u201d now is or ever was named or called, or known by the name of \u201c Southwestern Insurance Company, of Cairo, Illinois,\u201d as by said writ and declaration is supposed, and, this, it, \u201c The Southwestern Insurance Company,\u201d is ready to verify; wherefore, it prays judgment of the said writ and declaration, and that the same may be quashed.\nThe Southwestern Insurance Co.,\n\u201c By D. Hurd, President,\u201d and James S. Rearden, Sec\u2019y. Green & Gilbert, Attorneys for Defendant.\nSTATE OF ILLINOIS, 1 Alexander County, j T\"\nJames S. Rearden, Secretary of the Southwestern Insurance Company, being duly sworn, deposes and says the foregoing plea is true.\nJames S. Rearden.\u201d\nSworn to and subscribed before me this ) 29th day of April, A. D. 1868. )\nJohn Q. Harman, Clerk.\u201d\nTo this plea plaintiffs below filed a demurrer, which the court overruled, and plaintiffs failing to reply, the writ was quashed and a judgment rendered against plaintiffs for costs. The cause is brought to this court, and the decision of the court below, in overruling the demurrer is assigned for error.\nFrom the earliest period in the history of the common law, pleas in abatement have not been favored by the courts, and hence, great precision has been required, both in the substance and structure of such pleas. And the rules governing them have been less relaxed in modern practice than in other branches of pleadings, or in the practice which obtains in common law courts. And it is for the reason that such pleas tend to delay justice, and hinder parties from recovering .their rights. They do not go to the merits of the controversy, but simply to form in the proceeding.\nWe find that as early as Lord Coke\u2019s time it was the recognized doctrine that a corporation aggregate could not appear in person to an action. 1 Coke Litt. 66 b. And we find the same rule announced in Comyn\u2019s Digest, Pleader 2, B. 2, where it is said, speaking of a corporation aggregate: \u201c But the corporation must appear by attorney, appointed under their common seal.\u201d And Chitty, vol. 1, p. 551, lays down the rule, that \u201cA plea by a corporation aggregate, which is incapable of a personal appearance, must purport to be by attorney.\u201d This plea does not purport to be by attorney, but by the president and secretary of the corporation. The plea says the company, \u201c by its president and secretary, comes and says,\u201d &c. In this, the plea was defective and in violation of the rules of pleading. The demurrer should, therefore, have been sustained to the plea. For this error the judgment of the court below must be reversed and the cause remanded.\nJudgment reversed.",
        "type": "majority",
        "author": "Mr. Justice Walker"
      }
    ],
    "attorneys": [
      "Messrs. Mulkey, Wall & Wheeler, for the plaintiffs in error.",
      "Messrs. Green & Gilbert, for the defendants in error."
    ],
    "corrections": "",
    "head_matter": "Nixon, Ellison & Co. v. The Southwestern Insurance Company, of Cairo, Illinois.\n1. Plea in abatement\u2014by a corpm-ation. A plea in abatement by a corporation aggregate must purport to be by their attorney. A plea which says that the company, \u201cby its President and Secretary comes and says,\u201d &c., is defective, and obnoxious to a demurrer.\nWrit of Error to the Circuit Court of Alexander county; the Hon. John Olney, Judge, presiding.\nThe opinion states the case.\nMessrs. Mulkey, Wall & Wheeler, for the plaintiffs in error.\nMessrs. Green & Gilbert, for the defendants in error."
  },
  "file_name": "0444-01",
  "first_page_order": 452,
  "last_page_order": 454
}