KELLEY V. MISSISSIPPI OENÏ. B. 00. 569 �might make the defence either by such plea, or by suggestion of counsel. In Quarrier v. Peabody Co, 10 West Va. 507, it is said that a plea in abatement, by a corporation, should not be by attorney, but by the president, individually, to avoid the effects of appearance by the corporation ; that a corpora- tion should never plead in abatement in its corporate name. �Persons sued in a representative capacity, as executors, trustees, and the like, may plead that they hold no such rela- tion. 1 Danl. Ch. 631 ; Story's Eq. PI. 732. This is quite analogous to the situation of the parties here. It is true executors are parties to the writ, but ouly in their represent- ative capacity; and where they plead "no such executor," it is their individual plea. So the head officer of the corpo- ration, sued as such, may deny that he sustains that relation. Stewart v. Dunn, supra. And in Stevenson v. Thorn, supra, it was said that a person served with process is, for some purposes, at least, to be considered the defendant. And there is another analogy in the case of a judgment of outlawry, where, if the outlaw dies, the death may be pleaded by any person to release his property. 1 Tidd, 144. The defence of the non-existence of a corporation, sued as such, may also be made by an attorney in his own name, suggesting it on the record. Greeley v. Smith, 3 Story, 657 ; Mumma v. Potomac Co. 8 Pet. 281; Pomeroy v. Bank, 1 Wall. 23. Whether he be the attorney of the corporation must depend on whether it exists or not. If not, he must be the attorney of some one else having an interest in the matter ; for a non-existing cor- poration cannot, in the nature of things, appoint an attorney under a common seal, and the dissolution would revoke any appointment already made. �The objections suggested against any method of making the defence corne from pressing too far the doctrine that a cor- poration has an independeut existence. This ens rationis called a corporation is, after ail, only an incorporeal defend- ant, and it cannot, till its existence is established, have any independent status separate and apart from the personality of those composing it. To speak of it as dying is a somewhat false analogy. The law provides heirs, executors, or admin- ��� �
