
    [Philadelphia,
    April 4, 1825.]
    The Overseers of the Poor of ROXBOROUGH Township against BUNN.
    IN ERROR.
    After pleading to a declaration, charging them as a corporation, ami going to trial as such in the Common Picas, the defendants cannot, on a writ of error, take advantage of the suit having been commenced against them, before the justice, in their individual characters.
    If a healthy stranger, who meets with an accident, which renders it impossible for-him to be removed, be received into the plaintiff’s house, and taken care of aS the desire of the overseers of the poor, who- employ a physician to attend him, the township is bound to pay &r his board, and other reasonable expenses incurred by the plaintiff', without a previous order of maintenance.
    The right of the plaintiff to recover under such circumstances, is not affected by his not having given notice, that he had in his house such a person, agreeably to-the 25th section of the act of the 9th of ■March, 1771; nor by the circumstance of the pauper’s name not having been entered in the books of the township.
    Error to the Common Pleas of Philadelphia county.
    This suit was originally brought before Justice SinJeett, by George Bunn, against 11 Charles Right er and Charles Levering, overseers of the poor of Roxhorough,” for the boarding of lJugald M'- Gill, for articles furnished to him, and for his funeral expenses, paid by the plaintiff below, at the request of the defendants. In the Common Pleas, it was by Bunn against i{ the overseers of the poor of Roxhorough township, summoned by the names of Charles Righter and Charles Levering, overseers of the poor of Roxho-rough township.” The declaration was against the defendants in their corporate capacity.'
    It appeared, on the trial, that the pauper, M(Gill, while working at a-mill race, met with an accident, when he was taken to the boarding-house of the plaintiff, where, after having remained eleven days, he died of his wounds. lie had never lived in any other bouse in the township, than that of the plaintiff. One of the overseers, who was called upon to see the pauper at the time the accident took place, spoke to the plaintiff about taking care of him, and sent a physician to him, who was of opinion that he could not be removed. The overseers paid the physician^ bill and the funeral expenses of the pauper, part of which was repaid by the sale of his clothes. One of the overseers informed the physician, that they had taken the man in charge. One witness swore, that he saw an order of maintenance, but another swore that there never was an order of maintenance, and that the only order given was an order of removal. The name of M(Gill was never entered in the books of the township.
    The counsel for the defendants requested the court to charge the jury, that the action could not be sustained, but the court charged, that <{it could be sustained; that it appeared by the disposition of 
      Sinkett, that an order of maintenance was obtained, and that although the name of the pauper was not entered in the books of the township, that was a matter between the overseers and the township, and was of no consequence to third persons; that the township was liable, whether the 9th section of the act of the 9th of March, 1771, was complied with or not, and that the 25th section of the same act did not prevent the plaintiff from recovering; that the court doubted whether it was necessary to report every healthy person, such as MiGitt, who might come into the township, but that the section had no operation in this case; that whether the plaintiff could sustain this action in its present form, was the greatest difficulty, but, as the merits of the ease were with the plaintiff, a majority of the court directed the jury to consider it as their opinion, that the plaintiff, on the record and pleadings, as they .■stood, was entitled to recover.”
    
      Randall, for the plaintiffs in error.
    ■ 1. The 16th section of the act of the 9th of March, 1771, Purd. Pig. 654, constitutes the overseers of the poor a body politic or corporate in law, and exempts them from individual liability. To sue them therefore in their private capacities, was error. The addition of overseers to their Christian names, did not make the judgment a judgment against the corporation. A judgment against a corporation, by a wrong name, is void. Britton v. Gradon, 1 Lord Raym. 117. Turvilv. Jlynsworth, 2 Id. 1515. Rex v. Croke, Coiop. 86, 29. Kyd, 258. A bond from A., B., and C., trustees, &e., is in their individual characters, and the addition of “ trustees, &c.,” is but a description of the persons. Taft v. Brewster, 9 Johns. 334.
    2. The plaintiff sued the defendants before the justice in their •individual capacities, and afterwards declared against them in the Common Pleas as a body corporate. This variance was fatal. Stehley v. Harp, 5 Serg. & Rawle, 544. Owen v. Shelmaher, 3 Binn. 45. M‘Laieghlm y. Parker, 3 Serg. & Rawle, 144.
    3. The same variance existed in the manner in which the suit was prosecuted and the jury were sworn.
    4. The 9th section of the act of assembly already referred to, provides, that no person shall receive relief from the overseers of the poor, until an order has been obtained from two justices of the •peace for that purpose. The evidence in relation to such an order was contradictory, one witness having sworn to the existence of an order of maintenance,, and another, that there was no other than -an order of removal. But the-error was, in the opinion of the court, that such an order was not necessary, by which they took the question entirely from the jury.
    5. The 25th section of the act of assembly requires that the plaintiff should have given notice to the oversoei’s of .the township, of the taking and entertaining the person who subsequently became chargeable, afid, in Cáse of neglect to gave such notice, iras-poses upon him a fine or penalty. The court erroneously instructed the jury, that this section had no operation on the case before them.
    
      Millet', for the defendants in error.
    1, 2, 3. This suit was not originally brought against the defendants as individuals, but as a corporation. Their names were mentioned, but they were sued as the overseers of the poor of Roxbo-rough township. In the Common Pleas, where the proceedings are die novo, the suit was prosecuted against them expressly as a corporation. They are so declared against, and to the declaration we must look for the character of the parties. The proceeding before the justice is to be considered as the writ, and such a variance between the writ and the declaration would not be fatal. If, however the objection could have been taken at all, it was too late to ■ take advantage of it after plea pleaded. If there was any thing in the objection, it should have been pleaded in abatement. 1 Saund. 318, note 3. Grats v. Phillips, 1 Binn. 588, 4 Yeates, 130. 12 Johns. 430. Dillman v. Shultz, 5 Serg. & Rawle, 35. Gilbert v. Nantucket Bank, 5 Mass. R. 97. 1 Kyd on Corp. 283.
    
      4. The opinion of the court below was, that the entry of the pauper’s name in the books, was immaterial. As to the order of the two justices, they took that fact for granted, and gave no opinion about it. But the overseers had an undoubted right to bind the corporation, to pay a third person for the maintenance of a wounded man, whose case admitted of no delay.
    5. The pauper, we contend, came from Europe immediately , into this state, a healthy person, and was therefore within the exception of the act, and the court charged, “ that the case was not within the act.” Besides, the act requires that the person offending shall be convicted, which the plaintiff never was. There was no plea or notice that defence was to be taken on this section' of the act.
   The opinion of the court was delivered by

BuhcAN, J.

The first three specifications of error may be considered together, as they embrace the same object; and, if there be error, but one and the same error. That is, that the plaintiffs in error were sued before the justice in their individual characters, and not as a body corporate, which undoubtedly, to this purpose, overseers of the poor are, — and declared against, in the Court of Common Pleas, in their corporate character. Whether the overseers could have taken advantage of this in an earlier stage of the proceedings, it is not necessary for me now to decide. But after they have admitted they were in court, and pleaded to the declaration, and gone to issue and to trial, in their character of overseers of the poor of Roxborough, I do not think it the duty of the court now to go back, and see how and by what name the suit before the justice was commenced. It is but a technical objection. The cause went to trial on its merits, and if they chose to avail themselyes of this objection; they ought to have done it in limine, and not have exposed the plaintiff to the expenses of a tedious suit, when they knew they had a formal objection, which could have put him out of court, whatever the merits of his claim or the justice of his cause might be. 1 do notsay how it would have been, if a different cause of action had been substituted, in the room of that decided by the justice; but no- one who examines these proceedings, with an unprejudiced eye, but must see that the parties before the justice and in the Common Pleas were in fact the same. Their Christian and surnames were used before the justice, their individuality. That was not certainly informal; but if the case had been taken up by certiorari, the Court of Common Pleas ought not to have reversed the judgment for this informality. Then if instead of taking that course, the defendants chose to appeal, for the purpose of trial on the merits, and if they plead to a declaration, in which the overseers were made defendants, using their names merely as descriptions, the objection is abandoned. For even had the whole proceeding been in the Court of Common Pleas, the summons issued, as it did before the justice, but a declaration against them in their corporate chai'aeter, as overseers, and issue and trial, the summons could not be resorted to, in order to establish the variance. After plea pleaded, it is too late to take advantage-of a variance between wx'it and narr. 12 Johns. 438. Indeed, in England, a judgment is never reversed in any court of record, for any variance in any writ, original or judicial, from the declaration or other proceedings. 2 Salk. 701. Thei’e the court held, that a defendant cannot take advantage of a variance between a writ and count, without craving oyer of the writ. In Ford v. Barker, Barnes, 349, the court, as px'aying oyer of the original, had been much «secuto delay, came to a resolution not to grant oyer of the original in future; and, so far have the courts discouraged this dilatoiy course, that with respect to a writ of error for a defective original, as it would be a hard case to set aside a judgment for a mere slip, the master of the rolls would defeat the writ of error by ordering the original to be amended, or, if necessary, granting a new one. Hole v. Finch, 2 Wils. 395. Redman v. Edolph, 1 Saund. 318, a. No. 3.

This, however, is not the rule where the variance is in the nature of the action; but if a plaintiff sue a defendant by a wrong Christian name, and the defendant appear by his right name, the plaintiff may declare against him by such right name. Now, the naming of the individuals who here appeared in the proceedings before the justice, but stating them to be overseers of the poor of Roxborough, and omitting their names in the declaration in the Court of Common Pleas, and the overseers appearing by their right corporate names, cannot be taken advantage of in error.

The justice of Bunn’s claim, for the reasonable support of the pauper, is so apparent, the liability of the township so clear, that unless there is the want of some document required by positive law, some immovable legal obstruction in the way of his recovering, the court would support the verdict and judgment.

The fourth error, is because the 9th section of the act for the relief and maintenance of the poor, providing that no person shall receive relief from the overseer, until am order has been obtained from two justices, and the court declared such order was not necessary. That casual poor may be relieved by the overseers of the poor, without a previous order of maintenance, cannot be doubted. The evidence was, that the poor person was a stranger-■who received an injury in the township, which rendered it impossible to remove him to a distance; that he was taken to Bunn's lodging-house; Charles Levering, one of the overseers,- directed Bunn to take care of him; he employed the physician to attend him, and paid his bill and the funeral expenses; his clothing was taken possession of, sold by the overseers, and the proceeds applied towards his funeral expenses. The doctor testified, that the overseers informed him they had taken the wounded man in charge; the overseers employed him and paid him. The testimony of Michael Levering, the other overseer, was, that he never saw an order of maintenance. In sueh case, the township would be liable, without any order, either of maintenance or removal. They took the man, as it was their duty to do,- under their charge; they directed Bunn to take care of him; they employed a doctor to attend him, and they paid his funeral expenses. The man ought not to be suffered to lie in the road, until first the overseers had notice, and then consulted the justices, and obtained an order of maintenance. It was the duty of the overseers to take immediate care of him; they did take him into their charge. There was evidence sufficient to prove, that they employed the defendant in error to take care of him. This raised a promise which bound the township. It is no objection to the plaintiff’s action, that he did not give notice that he had in his house this healthy person, after having entertained him for ten days. If even that subjected him to the prescribed penalty, it did not exonerate the overseers. This contract-, cither express or implied, for taking care of this dying stranger, was not forbidden by any law. The order of maintenance ought to have been obtained by the overseers; it would be their voucher in the settlement of their accounts with the township. The act likewise directs an entry in the poor books, and the overseers who relieve without sueh orders, forfeit all the money they pay; but the order for relief, and the entry in the poor-books, cannot, in sueh emergency as this, precede the relief; and- the pauper, who never recovers from the injury — never rises from his bed — cannot obtain the order. 13ut the evidence was most conclusive, that the order was one of mainlenanee; the witness who testified this, had the best means of information, — the thing itself, most probable. But still, if it was 'an order of removal, which would be most urv warrantable, as no one could tell where to remove him to, and he was not in a state to be removed. The order, whether of removal or relief, of a casual pauper, gave the overseers authority to take the pauper into their keeping, and to provide for him. This likewise answers the fifth specilication.

I am therefore of opinion that the judgment should be affirmed.

Judgment affirmed.  