2. to be threefold: 1. They are the holders of the legal title. The defendant, by making the promise to them, estops himself from alleging and proving that he made it to some one else. 3. A trustee having the legal title may sue in his own name in a court of law, and such a court has no concern with the trust upon which he holds the title, or with his application of the trust fund. If this is the correct principle, it is only the real beneficiary that can intervene, and show that the promise was in fact made to him, under the principles of the preceding sections. Upon this principle, where the promise is made to the treasurer of a corporation, he may maintain an action thereon in his own name, although the corporation is really the beneficiary. So, where a promise is to pay to the trustees of an incorporated company or their successors, it has been held that an action thereon may be prosecuted in the name of the trustees, although other persons may have succeeded them. Upon the same principle it has been held promissory note to show that the beneficial ownership is in some one other than the plaintiff, unless the defendant can likewise show that he has a valid defense on the note in the hands of such other person. Newton v. Turner, 5 La. 46; s. c. 25 Am. Dec. 173. It may be added here that a recovery upon a note payable to a named person, with the addition of "cashier or order," cannot be defeated by the fact of the expiration of the charter of the bank at which the note was negotiable and payable. Horah v. Long, 4 Dev. & Bat. L. (N. C.) 274; 8. c. 34 Am. Dec. 378. 1 Thus, where a note was made payable to the treasurer of a parish, it was held that it would support a suit in the name of the treasurer, though it was given for funds of the parish. Fisher v. Ellis, 3 Pick. (Mass.) 322. Compare Commercial Bank v. French, 21 Pick. (Mass.) 486; s. c. 32 Am. Dec. 280, 283, where this case is commented on. So, where a promis sory note was made payable to "A. 2 Binney v. Plumley, 5 Vt. 500; that the cashier of an incorporated bank may maintain an action in his own name against the acceptor of a bill of exchange, drawn payable to the plaintiff as cashier, the promise being in form made to the cashier as an individual, and the addition being simply descriptive of the person, as on a bill of exchange payable to the order of "M. Johnson, Cashier," as such bills are often drawn when payable to banks. In like manner, it is held that the cashier of an incorporated bank may recover upon the common counts for money had and received, the amount of a bill of exchange, drawn to him as cashier and accepted for value, although he holds the same in trust for the bank. The rule of law which we are considering vests the legal title in the cashier personally, rejects the word "cashier" as descriptio personæ, and vests the right of action in him in virtue of his legal title, without regard to the equitable right of the bank.' R. Co. v. Benedict, 5 Gray (Mass.), 561; 8. c. 66 Am. Dec. 384), that an agent may also sue on a written agreement made by him in his own name in behalf of his principal. In Elkins v. Boston &c. R. Co., 19 N. H. 337; 8. c.51 Am. Dec. 184,-it was held that the agent of an undisclosed principal may maintain an action in his own name against a carrier for damages for loss of property he has agreed to carry. In Pearce v. Austin, 4 Whart. (Pa.) 489; s. c. 34 Am. Dec. 523, - it is held that an agent may sue in his own name upon a negotiable note indorsed in blank. This is in pursuance of a general rule that the holder of negotiable paper can maintain an action on it in his own name without showing title to it, and that the court will not inquire into his right to the paper, or his right to maintain a suit upon it, unless circumstances appear showing that his possession is mala fide. Ibid.; Dean v. Hewit, 5 Wend. (N.Y.) 257; Talman v. Gibson, 1 Hall (N.Y.), 308; Livingston v. Clinton, cited in 3 Johns. Cas. (N. Y.) 263. In Ogilby v. Wallace, 2 Hall (N. Y.), 553, the right to sue, even by a fictitious person, when the name of the real party was disclosed, unless some question arose as to the bona fides of the plaintiff's possession, was asserted. 1 Johnson v. Catlin, 27 Vt. 87; 9. c. 62 Am. Dec. 622; Van Ness v. Forrest, 8 Cranch (U. S.), 30. Compare Arlington v. Hinds, 1 D. Chip. (Vt.) 431; s. c. 12 Am. Dec. 704, where the note was given to "Luther Stone, Town Treasurer." So, it has been held that a note indorsed to "S. S. Fairfield, Cashier," will sustain an action in the name of Fairfield. Fairfield v. Adams, 16 Pick. (Mass.) 381. See also Little v. Obrien, 9 Mass. 423; Brigham v. Marean, 7 Pick. (Mass.) 40. Johnson v. Catlin, supra. ' Rose v. Laffan, 2 Speers L. (S. C.) 424; 8. c. 42 Am. Dec. 376; Campbell v. Humphries, 2 Scam. (Ill.) 478; McHenry v. Ridgely, 2 Scam. (Ill.) 309; 8. c. 35 Am. Dec. 110; Horah v. Long, § 7594. Doctrine that Action may be Brought either in the Name of the Corporation or Agent.—It does not at all follow, from the preceding decisions, that the action may not be maintained in the name of the corporation, especially in those States which have abolished the distinction between legal and equitable actions, and which allow an action to be brought by the real party in interest. On the contrary, there are many judicial expressions in favor of the proposition, that, in the case of a note made, for instance, to A. B., Cashier, an action thereon may be brought in the name of the cashier, or in the name of the bank.1 4 Dev. & Bat. L. (N. C.) 274; s. c. 34 Am. Dec. 378. This view was carried so far in one early case in the United States Circuit Court for the District of Vermont, that a right of action was denied to the bank upon a note payable to "Samuel Jaudon, Esq., Cashier, or order." Bank of United States v. Lyman, 20 Vt. 666. That actions by boards of commissioners, upon statutes, are properly brought in the individual names of the members, - see Hait v. Benson, 18 How. Pr. (N. Y.) 302. 1 See the discussion in Fairchild v. Adams, 16 Pick. (Mass.) 381; Baldwin v. Bank of Newbury, 1 Wall. (U. S.) 234, 242; Shaw v. Stone, 1 Cush. (Mass.) 228, 254; Trustees . Parks, 10 Me. 441. "The above cases," said Morton, J. (referring to some of the cases cited to the preceding section), "seem to show that, upon such paper, when made in the name of an agent or officer, though the beneficial interest be in the corporation, they may be sued by him; but they do not show that an action might not also be maintained in the name of the corporation." Commercial Bank v. French, 21 Pick. (Mass.) 486; s. c. 32 Am. Dec. 280. There is an early judicial expression in Vermont to the effect that where a note is given to A. and B., as trustees of a corporation, it must be § 7595. Promise Made to Trustees of Unincorporated Concern Suable by Trustees. But if the concern or enterprise is not incorporated, but trustees are appointed to put the same on foot, and they open subscriptions to the shares, one who subscribes to the same and becomes thereby liable to pay for them on an express promise, is suable by the trustees.1 So, the trustees of a voluntary benevolent association, whose funds are raised by the voluntary contributions of its members, may maintain an action upon a note, although the makers thereof were members of the association. In such a case the words "trustees," etc., added to the names of the promisees, are rejected as mere descriptio personarum. This conclusion is supported by the analogy of many cases which hold that where a note, bond, or other writing obligatory, is payable to a person with the addition of "guardian," or "executor," it is suable by him individually; or, in case of his death by his personal representative, in either case for the use of the real beneficiary." 3 Whenever § 7596. When Successors in Office may Sue. the promise is made to an officer of a corporation, or unincorporated association, and his successors in office, then his official successor may sue to enforce the promise, if, under the rules of procedure in the particular jurisdiction, he might 1 Townsend v. Goewey, 19 Wend. (N. Y.) 424; 8. c. 32 Am. Dec. 514; Cross v. Jackson, 5 Hill (N. Y.), 478, 480. Pierce v. Robie, 39 Me. 205; 8. c. 63 Am. Dec. 614; Clap v. Day, 2 Me. 305; 8. c. 11 Am. Dec. 99. Ibid. To the same effect, see Innell v. Newman, 4 Barn. & Ald. 419; Potter v. Yale College, 8 Conn. 52, 60. Compare Garland v. Reynolds, 20 Me. 45; Ewing v. Medlock, 5 Port. (Ala.) 82; Alston v. Heartman, 2 Ala. 699; Harper v. Ragan, 2 Blackf. (Ind.) 39; Crawford v. Dean, 6 Blackf. (Ind.) 181; Southern Ex. Co. v. Craft, 49 Miss. 480; s. c. 19 Am. Rep. 4. Thornton v. Rankin, 19 Mo. 193; 8. c. 59 Am. Dec. 338; Jeffries v. McLean, 12 Mo. 538; Nickerson v. Gilliam, 29 Mo. 456; 8. c. 77 Am. Dec. 583. On the other hand, an administrator is liable upon a promissory note which he signs as administrator, but this is on the ground that he cannot bind the estate of the decedent by new contracts. Davis v. French, 20 Me. 21; s. c. 37 Am. Dec. 36; and see the cases cited in the note, 37 Am. Dec. 37. "Turnbull v. Freret, 5 Mart. (N. 8.) (La.) 703. • Buffum v. Chadwick, 8 Mass. 103. have sued instead of the corporation,'-as where a promissory note was made to the president of the board of police of a county, and his successors in office. So, where a note is given, in terms, to certain persons, as trustees of an unincorporated association, or their successors in office, such successors may, at the request of the association, maintain a suit upon it in the name of the former trustees, and such former trustees have no power, as plaintiffs of record, to dismiss the suit; but they may demand indemnity against the payment of costs. 7597. Corporation Party to Contract in Wrong Name, Suable by It in Right Name.-Closely allied to a principle already discussed, is the principle that where a promise is made to a corporation by a wrong name, the corporation may maintain an action thereon by its right name. On this principle where, in drawing a contract with a corporation, a name 1 Haynes v. Covington, 18 Smedes & M. (Miss.) 408. 2 Ibid. Pierce v. Robie, 39 Me. 205; 8. c. 63 Am. Dec. 614. • Commercial Bank v. French, 21 Pick. (Mass.) 486; s. c. 32 Am. Rep. 280, per Morton, J.; Melledge v. Boston Iron Co., 5 Cush. (Mass.) 158, 176; s. c. 51 Am. Dec. 59; Gifford v. Rocket, 121 Mass. 431. "A contract," says Morton, J., "may be made to or with a person as well by description as by name, and where the party can be ascertained, it will be valid, although their names be mistaken or their description be incorrect. It cannot be doubted that a note to the Commercial Bank would be valid and might be declared on as a promise to the plaintiffs, although their legal name is, 'the President, Directors and Company of the Commercial Bank.' So, a contract with the stockholders, or with the president and directors, or with the directors of the Commercial Bank, would doubtless be, in its legal effects, a contract with the |