tially answering the appellation, the declaration is holden good.' The rule is well settled, that if the name given sufficiently designates the corporation, the contract, whether scaled or not, cannot be avoided for the misnomer. Where a promissory note was given to the "president, directors and company of the Newport Mechanics Manufacturing Company," instead of the "Newport Mechanics Manufacturing Company," which was the true name of the corporation, to which the note was designed to be given, it was held, that the variance was not such as to preclude recovery in the name of the corporation." Upon a promise to pay the "president, directors and company of the Milford and Chilicothe Turnpike Company," a suit may be maintained by the "Milford and Chilicothe Turnpike Company," the latter being the true name of the corporation." If the undertaking be to the corporation, whether a right or wrong name be used, or that of some of its officers, it should be declared on and treated as a promise to the corporation. Thus, where a promissory note was made payable "to the cashier of the Commercial Bank, or his order," and the consideration proceeded, from the bank, an action on the note was maintained in the name of the bank as the promisee." A declaration upon a promissory note to the Medway Cotton Manufactory, by the name of R. M. and Co. was holden good upon demurrer in Massachusetts. The declaration charged the defendants upon a note made by them; with an averment, that it was made to the corporation, by the name of R. M. and

1

Mayor, &c. of Malden v. Miller, 1 B. & Ald. 699.

African Society v. Varick, 13 Johns. (N. Y.) R. 38; Middletown v. McCormick, 2 Pen. (N. J.) R. 500; 1 Ibid. 115; Inh. of Alloways Creek v. String, 5 Halst. (N. J.) R. 323; Medway Cotton Manuf. Co. v. Adams, 10 Mass. R. 360; Berks & Dauphin Turn. Co. v. Myers, 6 Serg. & Rawle (Penn.) R. 16; Hagerstown Turnpike v. Creeger, 5 Har. & Johns. (Md.) R. 122; see ante, Chap. III. § 4, Chap. VIII. § 6.

3

123.

Newport Mechanics Manuf. Co. v. Starbird, 10 N. Hampshire R.

• Milford and Chilicothe Turn. Corp. v. Brush, 10 Ohio R. 111. • Commercial Bank v. French, 21 Pick. (Mass.) R. 486.

Co. The court said, "Upon the demurrer, we have only to determine, whether the declaration is in itself absurd and repugnant, and incapable of proof. We think it is not, upon the authorities respecting misnomers of corporation, or upon the reason of the thing." In debt on bond to the committee or trustees of a corporation, solvendum to the corporation by its true name, the corporation may declare in their own name, and may allege, that the bond was made to them by the description of the committee, &c.2

Mr. Kyd lays it down, that where a deed is made to a corporation, by a name varying from the true name, the plaintiffs may sue in their true name, and in their declaration aver, that the defendant made the deed to them by the name mentioned in the deed; or, if the plaintiffs in the declaration take no notice of the variance, and the defendant trusts to the advantage he may have of it at the trial; then if a special verdict be found, "that the defendant made and sealed the writing in question, and delivered it to the corporation (describing them by their true name) by the name mentioned in the deed, this will entitle the plaintiff to judgment." So, if a deed be made by a corporation, by a name different from the true name, the plaintiff may sue them by their true name, and aver, that "by the name mentioned in the deed," they made such a deed to him; or if he take no notice of the variance in his declaration, he may have the same advantage from a special verdict as the corporation may have when they are plaintiffs. Mr. Kyd feels no hesitation in saying, that in all cases, where, by express averment, or by the finding of the jury, it is made apparent, that the corporation sued is the same, that made the deed, whether the name in the deed be the same in

Medway Cotton Man. Co. v. Adams et al. 10 Mass. R. 360; and see Dyer, 279; Dance v. Girdler, 1 Bos. & Pul. (N. R.) 40; 1 Chitty Pl.

252.

* New York African Society v. Varick et al. 13 Johns. (N. Y.) R. 38.

* 1 Kyd, 287, who cites 10 Co. 125, b.

• Ibid.

• Ibid. 288.

effect or not with the name of incorporation, or whether the difference between them be seeming or real, that judgment ought to be given in favor of the deed.1

In a suit against "the president and trustees of the Savings Bank in the county of Strafford," to recover payment for serving a writ of execution for them, a copy thereof in the name of the "Savings Bank of the county of Strafford," was held to be inadmissible in evidence. In another case in an action against an incorporated bank, the writ described the defendants by their corporate name of the president and directors of the Marine Bank of Baltimore. The declaration was, against "the said Marine Bank;" and the plea was that the Marine Bank did not assume, and the verdict and judgment used the corporate name. It was held, on objections made to the declaration, that it was sufficient."

If a corporation sue or be sued by a wrong name, or one not sufficiently certain, to take advantage of the misnomer, it should be pleaded in abatement, and not in bar. In a suit by a corporation it was objected, that the charter given in evidence varied the name of the plaintiff so much from the declaration, as to form good ground of nonsuit, and the plaintiffs were nonsuited; but on a rule to set it aside, the court said, the objection taken would operate in bar, if the plaintiff had

1 Ibid.

* Burnham v. President, Trustees, &c. 5 N. Hamp. 466.

* Marine Bank of Baltimore v. Blays, 4 H. & Johns. (Md.) R. 338. 26 H. 8, 1 b.; 1 Kyd, 283. It was once doubted if a mistake of the plaintiff's Christian name 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. 1 Chitty, Pl. 440; Bank of Utica v. Smalley, 2 Cowen (N. Y.) R. 778; Medway Cotton Man. Co. v. Adams, 10 Mass. R. 360; Burnham v. President, Trustees, &c. 5 N. Hamp. R. 449; and see 7 Ibid. 309. To make the mistake of the name of a corporation pleadable in bar, it should appear, that there is no such corporation. Debts due to a corporation in N. Carolina must be sued for in the name of the body corporate, and cannot be recovered in the name of A. B., President, &c., and directors of such company; Britain v. Newman, 2 Dev. & Bat. (N. C.) R. 363.

declared so that they could not be identified with the persons entitled to the tolls claimed; but the objection taken only abates the suit, being a mere formal variance; the plaintiffs were therefore improperly nonsuited.' A corporation defendant cannot take advantage of a misnomer, in arrest of judgment, but must plead it in abatement."

Where a bank issued notes by a wrong corporate name, and was sued on its notes by such name, the plaintiff was permitted to amend without costs, as he was led into the mistake by the fault of the defendants.3 The plaintiff brought an action by the name of "The Proprietors of a Bridge over Connecticut River, between Montague and Greenfield, late in the county of Hampshire, and now in the county of Franklin." On motion to the court, the plaintiff was permitted to amend his writ by altering the name of the defendants to that of "The Proprietors of Connecticut River Bridge." The defendants objecting to the said amendment, the question was reserved for the consideration of the

Mayor, &c. of Stafford v. Bolton, 1 Bos. & Pul. 40.

Gilbert and another v. Nantucket Bank, 5 Mass. R. 97. It is said where a mayor and commonalty, or other corporation aggregate, are sued by a wrong name, they may make an attorney by special warrant, by their true corporate name, who may plead the misnomer. 22 Ed. 4, 13 b. Bro. Corpor. 65. But this it seems must be by special application to the court. 1 Ld. Raym. 118. Mr. Kyd says, "it is true, indeed, that in most of the cases where the question of misnomer of a corporation has been agitated, it has arisen on special verdict; " but he apprehends, "that where a corporation have taken no advantage of a variance from their name, either by plea or at the trial, they cannot arrest the judgment, or reverse it on that account." 1 Kyd, 285. If, however, there be a variance in the name apparent in the entry of the judgment, that may be error; a judgment in the common pleas was thus, "that the mayor and commonalty and citizens of London should recover the debt for which they sued, and £6 costs to the same mayor and commonalty adjudged; and it was held, that this was error, there being no such corporation as the mayor and commonalty, without citizens, but it appearing on the docket roll, that it was well entered, it was awarded by the Common Pleas to be amended. Cro. Car.

3 3 Bullard v. Nantucket Bank, 5 Mass. R. 99.

court. The court said, "that, the first corporation was dead, and the new one was created for the same purpose and object. The writ was served on the clerk of the existing corporation, by which regular notice was given to the real proprietors of the bridge. This is then the common case of a misnomer. The amendment may be made, on the common rule of an election by the defendants of the costs of the action to this time, or a continuance.1

8. By the civil law a member could not be a witness in a cause where a corporation is a party, if the particular members may have any advantage. But if the profit redounds to the community in general, a member of the body may be admitted a witness. In a case in the Court of Chancery in the State of New York, Chancellor Walworth said, that he believed it was now the practice of all the courts to admit corporators to testify in behalf of the corporation, where they have no personal interest in the controversy; and against the corporation, where the witness does not object; but that corporators were excluded from testifying where they have a direct personal interest in favor of the party calling them, in virtue of the corporation or otherwise. This, as a general rule of law, is so well established, that it is necessary merely to refer to it.1

1 Sherman v. Proprietors of Connecticut River Bridge, 11 Mass. R. 338. 2 Wood's Civil Law, 308.

3 In the matter of Kip, 1 Paige (N. Y.) Ch. R. 613. The Chancellor cited Hartford Bank v. Hart, 3 Day (Conn.) R. 491; Magill v. Kauffman, 4 S. & Rawle (Penn.) R. 317.

A person, who has acted in breach of an alleged corporate custom, is not a competent witness to disprove the existence of the custom. The witness is clearly interested. If the company had failed in establishing the custom, he would have been discharged from actions to which he was liable for the breach of it. Company of Carpenters v. Hayward, 1 Doug. 373. A stockholder cannot be a witness for the corporation in Louisiana. Lynch v. Postlethwaite, 7 Martin (La.) R. 69. An inhabitant of a place is incompetent to prove a common right of fishery in all the inhabitants. Jacobson v. Fountain, 2 Johns. (N. Y.) R. 179; Lufkin v. Haskell, 3 Pick. (Mass.) R. 357.