
    * Silas Bullard versus the President, Directors and Company of the Nantucket Bank.
    Where a bank has issued its notes by a wrong corporate name, and is sued on its notes by such name, the Court of Common Pleas ought to permit the plaintiff to amend after demurrer without costs ; and if they refuse it, this Court will grant the amendment on the appeal.
    Original writs against aggregate corporations of every description must be served thirty days at least before the return day, by statute of 1785, c. 75. § 8.
    In this action, which was similar to the two immediately preceding, the defendants, at the return term in the Common Pleas, filed a plea of misnomer in abatement, averring their true corporate name to be The President and Directors of the Nantucket Bank. To this plea the plaintiff replied, by way of estoppel, that the defendants, in issuing their notes, acted by the corporate name by which they were sued. To the replication there is a demurrer and joinder. Upon these pleadings, the Court of Common Pleas gave judgment for the defendants. The plaintiff appealed, and entered his appeal at the last November term of this Court, whence the action stood continued to this term, to a full Court, as an issue in law was joined.
    Before argument, the plaintiff moved to amend without costs, as he was misled by the blunder of the defendants in assuming a wrong corporate name; and, to excuse himself from the imputation of loches, suggested that the same motion having been made at the Court of Common Pleas, in another action against the -defendants and by that Court overruled, it was useless to repeat the motion there before the same judges. The truth of this suggestion was admitted by the defendants.
   Parsons, C. J.

We are all of opinion that the plaintiff’s motion ought to have been granted in the Court of Common Pleas. The defendants ought not to have opposed it, as the plaintiff was led into the mistake by the fault of the defendants in issuing their notes by a wrong name, which the plaintiff, supposing to be their true name, sued them by it. And we are of opinion that the [*100] plaintiff, under the circumstances of this case, *is not chargeable with loches in not making the motion in the Common Pleas.

But the motion might have been made in this Court at the last term, and by the plaintiff’s delaying to malee it, the defendants have incurred expense. The plaintiff may therefore amend the misnomer in the writ, paying the defendants their costs for attendance, after the first day of the last term, and for their travel and attendance this term.

The Common Pleas probably supposed that they had not power to grant an amendment after demurrer, and before joinder, but on payment of costs or granting a continuance, at the election of the defendants. By the rule the Court are obliged to allow an amend ment, after demurrer, and before joinder, on the terms of the rule • but they are not restrained from granting it on any terms which they may think reasonable and equitable .

Afterwards the defendants moved that the writ might be quashed, because it appears from the test of the writ, that it ought by law to have been returned at the then next July term of the Common Pleas, and not at the then next October term, as in fact it was. The writ was tested the 16th of June, 1808, more than fourteen, but not more than thirty days before the next July term.

Parsons, C. J.

If this writ need not have been served more than fourteen days before the return, the motion must prevail; but, if it must have been served thirty days at least before the return, the writ is good.

By the statute of 1783, c. 39. §6., it is provided that in actions against towns, precincts, parishes, villages, or the proprietors of real estate holden in common, the writ shall be served thirty days at least before the return day. This provision is an exception to the statute of 1782, c. 11., which enacts that all original processes sued out of the Common Pleas shall be served fourteen days before the return day. And it is very clear that an incorporated bank is not within the exception.

*But by the statute of 1785, c. 75. <§> 8., a further [*101 ] provision is made, that a writ against any town, or other body corporate, shall be served thirty days before the return day, by leaving a copy with the clerk or some principal inhabitant of the town, or some principal member of the corporation.

The defendants insist that the words in this section ought to be confined to the bodies corporate enumerated in the statute of 1783.

The words other body corporate, in our opinion, include, in this section, all aggregate corporations. No exception is made in the statute, and no reason is assigned that any exception ought to be made by construction, except of sole corporations.

The writ is made returnable on the right day. 
      
      
         Perkins vs. Burbank, 2 Mass. 83. — Haynes vs. Morgan, 3 Mass 208 -Holbrook vs Pratt, 1 Mass. 96.
     