SECTION CHAPTER CLXXXIII. PLEADINGS IN SUCH ACTIONS. 7608. Variance in respect of corporate name. 7609. What variances immaterial. 7610. Misnomer and identity in case of corporations having similar names. 7611. Variance created by using names of the trustees. 7612. Misnomer in actions by or against joint-stock companies and unincorporated associations. 7613. Misnomer must be pleaded in abatement. 7614. Misnomer amendable. 7615. Effect of amendment where corporation is sued in wrong name. 7616. Declaring on obligations issued by corporations. 7617. Not necessary to aver that corporation had power to make the contract sued on. 7618. Qualifications of the foregoing. 7619. Pleading the defense of ultra vires. 7620. Not necessary to aver election, qualification, appointment, etc., of officer or agent. SECTION 7621. Charter, when a private act, to be pleaded and proved. 7622. Declarations upon statutes other than charters. 7623. Statements before justices of the peace. 7624. Pleading in actions on by-laws. 7625. Declarations against corpora tions for improper or abusive exercise of statutory powers. 7626. Corporations plead and answer, how. 7627. Non- joinder of corporation 7628. Corporation may plead to the 7630. Plea of the dissolution of the 7631. Plea of non est factum by a corporation. 7632. Verification of pleadings by corporations. 7633. Allegation of citizenship of corporations for purposes of Federal jurisdiction. § 7608. Variance in Respect of Corporate Name. - A writ and declaration against one corporation will not support the recovery of a judgment against another. If, therefore, a suit is brought against the president and directors of a branch bank, instead of the mother institution, this is not a mere misnomer, which must be pleaded in abatement. No recovery can be had in such action. If a verdict is founded upon the general issue pleaded, the error is not cured by the statute of jeofails.' In order to prevent this result, the law demands a substantial identity of name between the corporation against which the action is brought and that against which the judgment is recovered. Again in an action by a corporation where the existence of the corporation is put in issue, and the articles of association of the corporation are offered in evidence in proof of its corporate existence, such articles will not be admissible if there is so great a variance between the name of the corporation as recited in the petition and the name as recited in Mason v. Farmers' Bank, 12 Leigh (Va.), 84; Tompkins v. Branch Bank, 11 Leigh (Va.), 372. If, for instance, an action is brought against a company impleaded as "the Fuller Implement Co.," no judgment can be rendered against the "Fuller Implement and Coal Co." without an averment and proof that the two corporations are identical. McGregor v. Fuller Implement Co., 72 Iowa, 143; 8. c. 3 N. W. Rep. 464. So, where an action was brought against "the president and trustees of the Savings Bank for the County of Strafford," to recover compensation for serving a writ and execution for them, a copy of the writ and execution, running in the name of "the Savings Bank for the County of Strafford," was held not admissible in evidence. Burnham v. Savings Bank, 5 N.H. 446. But this rule, as has been held, does not extend so far as that mere similarity of identity in the names of two corporations, organized at different times, will be sufficient to warrant a conclusion that they are identical so as to render the one last organized liable for property sold to the former, although a person connected with the latter was, at the time of the sale, an officer of the former. Wyckoff v. Union &c. Co., 11 N. Y. Supp. 423; 8. c. 33 N. Y. St. Rep. 423. On the other hand, where the declaration commenced by stating that "B. complains of H., president of the St. Lawrence Bank, a banking association," etc., and stating that the defendants became indebted, etc.,this was understood to be a declaration against H. individually and not against the bank. This was under a statute such as we have already considered (ante, § 2602), enabling corporations to sue and be sued by their chief officer. Ogdensburgh Bank v. Van Rensselaer, 6 Hill (N. Y.), 240. So where a bill for an injunction charged certain wrongs to have been done by the Chesapeake and Ohio Canal Company, that being the name of a corporation, but prayed for an injunction against the president and directors of the Chesapeake & Ohio Canal Company and M., and for a subpoena to issue "to the said president and directors and M.," — it was held that the corporation itself, the canal company, was not made a party to the bill. Binney's Case, 2 Bland (Md.), 99. the articles, as to lead to a doubt whether they refer to the same artificial being.' § 7609. What Variances Immaterial. — In the matter of misnomers of corporations, a difference was early established between omitting matter of substance and mere matter of addition, and the authorities show that the plea was discouraged,3 and few precedents of the plea of nul tiel corporation in the English reports will be found outside of the Year Books. Some Accordingly, where the petition described the plaintiff as the "Bank of Commerce," and the articles of association offered in evidence described it as the "Bank of Commerce in New York," it was held that the articles were not admissible in evidence. Bank of Commerce v. Mudd, 32 Mo. 218. In an action of replevin, the property was described in the writ as belonging to "A, B, and C, of Haverhill, the trustees of the ministerial fund in the north parish in Haverhill." In the subsequent portions of the writ, the plaintiffs were referred to as "the said trustees," and "the said plaintiffs." The replevin bond described them as first described in the writ, and they were referred to in the condition of the bond as "the above bounden A, B, and C, trustees as aforesaid," and the bond was signed by them individually, with separate seals. Other papers in the case referred to them by their individual names as plaintiffs. It appeared that there was a corporation named "The Trustees of the Ministerial Fund in the North Parish of Haverhill," and the plaintiffs claimed title as such corporation. Here it was held that the action was not brought in the name of the corporation, and could not be maintained. Bartlett v. Brickett, 14 Allen (Mass.), 62. The Case of Lynne Regis, 10 Co. Rep. 120, 122. Stafford v. Bolton, 1 Bos. & P. 40; Dumper v. Syms, Cro. Eliz. 815; Dr. Ayray's Case, 11 Co. Rep. 18; Croydon Hospital v. Farley, 6 Taunt. 467; Attorney-General. Rye, 7 Taunt. 546. Upon this subject it has been said in a modern case: "The plea must show, when in bar, that it goes to the cause of action alleged in the declaration, and not to the form or name in the writ. It has been settled, therefore, from the earliest period, that it is not enough in such a plea, in a suit by a natural person, to aver that there was no such person in rerum natura at the time of the impetration of the writ, but it must allege that there never was such a person. The same rule applies to the plea of nul tiel corporation, for the same reason exists in both cases. Ubi eadem ratio, ibi idem jus. A man or corporation may change his or their name between the time the cause of action arose and the bringing of the suit. And a corporation certainly loses none of its franchises or rights by such a change when authorized by law; and they can recover by their new name a debt due before." Northumberland County Bank v. Eyer, 60 Pa. St. 436, 440. of the foregoing cases, and others which could be cited,1 proceed with a degree of strictness which degrades, instead of advancing justice. The true rule is that when a question of misnomer of a corporation plaintiff arises, not upon a plea in abatement, but upon an objection to proof of an organization offered under the general issue, it is a question of identity merely; and that no slight variation which does not raise a doubt of the identity should be regarded. Thus, if, in an action by a corporation, it appears upon the assessment of damages that there is a variance between its real name and the name employed in the instrument given to it, which is the subject of the suit, but enough appears clearly to show what corporation was intended, it is sufficiently good. So, where the declaration styled the plaintiff "The W. R. National Bank of Jamaica, Vermont," but described the corporation as doing business in Vermont,-it was held that the identity was clear, and that the variance was therefore immaterial.* So also where a note was given to "the president, directors, and company of the Newport Mechanics' Man. Co.," instead of to "The Newport Mechanics' Man. Co.," which was the real name of the corporation, it was held that the variance was not such as to preclude a recovery in the name of the corporation, and that it might be shown by extraneous testimony that the plaintiff was intended to be designated. It is a rule of evidence that identity of name is presumptive evidence of identity of person. Although identity of name carries with it the presumption of identity of person, yet it seems that in an action by a corporation upon an obligation executed in its favor, there is always a question for the jury as to its identity, challenge is properly made in the pleadings. In a case if a brought before Lord Tenterden, C. J., an action of assumpsit on a bill of exchange, and for money had and received, after the introduction of letters of the defendant, acknowledging his indebtedness to a corporation of the same name as the plaintiff, the only question for the jury was said to be, whether the corporation suing was that corporation.1 § 7610. Misnomer and Identity in Case of Corporations having Similar Names.-There is a general presumption that identity of name proves identity of person; and conversely that a substantial difference of name proves a difference of person. This presumption seems to be as applicable to corporations as to individuals. When, therefore, an action is brought against a corporation on a contract, if it appears in evidence that the contract was made by a corporation of the same name as the one against which the action is brought, then it will be presumed that the corporation which executed the contract was the corporation which is impleaded in the action, without special proof of that fact; but this presumption may be rebutted by the defendant by showing that the contract was in fact made by another corporation of the same name, existing in another State. On the other hand, an ac 1 National Bank v. De Bernales, 1 Car. & P. 569. A variance in the style of an inferior corporation court between the entry on the judgment roll and return on the process, has been held immaterial. Thus, in a writ of error to a judgment of such a court, the first error assigned was, "because the style of the court was 'placita coram J. S., Majore et Joh. Chapman, recordatore, et J. D. et J. N., aldermannis burgi prædicti secundum consuetudinem burgi prædicti, etc.,' and the complaint being entered upon summons, a non est inventus upon it was returned at a court held 'coram dicto J. S. Majore et J. N. et J. D. aldermannis, secundum consuetudinem burgi prædicti, etc.,' omitting the recorder, which was alleged to be error, et coram non judice. But the court did not allow this; for it may be that at the first court holden the re • There is, however, a holding by Dean v. LaMotte Lead Company, |