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491 (Code 1911, Art. 81, sec. 92), there was added a further provision, namely, that nothing in the law should “be construed as granting exemption from taxation to the shares of any bank or any other corporation, or to any other property taxable under the laws of this state, by reason of or on account of its ownership by a savings bank, institution or corporation of this state."

In this condition of the law arose the case of Westminster v. Westminster Savings Bank, 92 Md. 62,-where the question was, whether having paid the tax upon its deposits, the corporation could be taxed for the shares of its capital stock, and also on the securities in which its deposits were invested. The court held: (a) that the effect of the amendment of 1890 was not to make the securities taxable in the hands of the bank, but simply to prevent a deduction of such securities in ascertaining the amount of deposits subject to the tax; and (b) that the shares of the bank were assessable and taxable in the same manner as the capital stock of any other corporation of the state.2

(3) Telegraph. cable, express, transportation, telephone, parlor car, sleeping car, safe deposit, trust, guarantee and fidelity, oil pipe line, title insurance, electric light, electric construction, gas, guano, phosphate and fertilizer companies

1 It is said in State v. Central Savings Bank, supra, that "savings banks are not banks of discount nor have they any capital stock." This is the true conception of such institutions, but singularly enough, the former general incorporation law provided that "the capital stock of any such corporation shall not exceed one million dollars." The Act of 1910, ch. 219 Code Art. 11, sec. 32, provides that savings banks thereafter incorporated shall not have any capital stock, but that existing savings institutions which have a capital stock may increase the same.

2 See Baltimore v. State, 105 Md. 6.

are required to pay a state tax as a franchise tax upon gross receipts. The amount varies with the particular class and the shares are assessed and taxed as those of any other domestic corporation would be.1

(4) Banks incorporated by this state are, as to the valuation and assessment of their shares for taxation, placed on the same footing with national banks. The taxing laws governing these will be referred to hereafter.2

1 Code (1911) Art. 81, secs. 162, 167,-which further provides that "All the provisions and requirements of this section (as amended) shall be in force and applied to all corporations of a like kind to those enumerated above which are doing business in this State, and which are incorporated by or under the laws of any other State, District, territory or foreign country. Every unincorporated association, partnership or individual engaged in any one or more of the above specially enumerated branches of business in this State, except guano, phosphate and fertilizer companies shall be subject to said gross receipts tax, and shall comply with all the provisions of this article with reference thereto as fully as if such association, partnership or individual was a corporation." In State v. U. S. Fidelity Co., 93 Md. 315, it was held that "gross receipts" means receipts from business done in this State only; and see State v. Central Trust Co., 106 Md. 268. A gross receipts tax will be void as a burden on interstate commerce, if it is a tax on gross receipts as such and not a property tax fairly measured by them. See U. S. Express Co. v. Minn., 223 U. S. at 345-6; and the Texas and Oklahoma cases therein reviewed. The tax held void in the former case was imposed in addition to a full property tax. 2 Code (1911) Art. 81, sec. 217.

CHAPTER XXI.

MATTERS OF PROCEDURE.

§ 154. Introductory. Viewed as a litigant, the fictitious. person was the cause of much trouble in the earlier law. How can it be brought before the court, or enter such pleas as must be pleaded in person; where is its domicil for the purpose of suit; how are the court's orders against it enforced; who is responsible for its contempts? Partly by judicial decision and largely by statute these questions have been answered in such a way that, for most purposes of legal procedure, the corporate entity is merged in its governing body. They act indeed in its name, but its acts and defaults are attributed to them, on the theory of identity rather than agency. In previous chapters sufficient reference has been made to the historical phase of the subject; and it now remains to consider some procedural peculiarities which have their explanation in fictitious personality, and are today of practical importance.

§ 155. The corporate name. Formerly there was much and subtle debate as to how far one might risk a misnomer in conveyance, contract or plea,-without fatal results. The name was not only "the knot of the combination," but it was the conclusive evidence of identity; there was no such thing as having the right corporation by the wrong name. The technicality of the earlier law was first relaxed in cases of grant, devise and bequest, and later in the domain of

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contract; and the established rule became and now is that identity and not precision of name is what counts.1

In procedural law, the old rule of verbal accuracy retained its vigor for a long time, and it continued to be a source of difficulty and annoyance until the introduction of the modern reforms in pleading. A misnomer is still a ground for a plea in abatement and it will constitute a variance between the allegata and the probata. But where as in Maryland, a liberal right of amendment exists, and where no motion in arrest of judgment can be made for a cause of demurrer, the path of the pleader is as a shining light. Moreover, even in pleading, the established tendency is to apply the test of identity as in the case of deeds, grants and contracts. In Western Union Tel. Co. v. State, 82 Md. 293, the writ of summons and the declaration referred to the defendant as the Western Union Telegraph Company; and in the bill of particulars filed with the declaration, the words "a corporation of the State of New York" were added. It appeared during the trial that there were two corporations, one existing under the laws of New York, and known as The Western Union Telegraph Company, and a corporation of Maryland known as The Western Union Telegraph Company of Baltimore City. The Maryland company was the one intended to be sued, and leave to amend being granted, the question was whether the amendment brought in a new party and enabled it to plead limitations. The court held that the effect of the amendment was simply to correct the

1 Reilly v. Union Prot. Infirmary, 87 Md. 664, where the appellee was allowed to take a bequest to "The Presbyterian Infirmary on Division Street in the City of Baltimore." In The Case of Lynn, 10 Coke, 125b, it is said: "That for every curious or nice misnomer, God forbid that their leases, grants, etc., should be defeated; for there will be found a difference betwixt writs and grants."

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name of a party actually summoned,-it appearing that the person upon whom the writ of summons was served was the general manager of both corporations. So, in Watts v. Port Deposit, 46 Md. 500, a judgment had been recovered against "The President and Commissioners of the village of Port Deposit." After suit brought, and before judgment rendered, the name of the town was changed by the legislature to the "President and Commissioners of Port Deposit," and the contention was made that this created a new corporation upon which the judgment was not binding. The court held that the change was one of name only and not of identity, and that the judgment was enforceable.1

$156. Process. The place within the state where its corporations may be sued, and the persons upon whom a valid service of the writ of summons may be made, are matters usually covered by statute. The situation in Maryland, prior to the Act of 1908, was complicated by piecemeal legislation, and it will be seen from the cases in the note that most of the difficulties arose: (1) from the fact that the

1 For what constitutes a variance, compare Baltimore Cemetery v. First Independent Church, 13 Md. 117 and Coulter v. Western Seminary, 29 Md. 69. The objection in both cases was raised by motion in arrest and, under the former practice, this was a serious matter. Code (1911) Art. 23, sec. 88, provides as follows: "It shall be sufficient in any suit, pleading or process, either at law or in equity or before a justice of the peace against any corporation, to describe it by the name or title by which it is commonly known or by or under which its business is transacted." See also Code (1911), Art. 75, sec. 37.

2 Baltimore &c. Turnpike Road v. Crowther, 63 Md. 558; Henderson v. Insurance Co., 90 Md. 47; Girard Insurance Co. v. Bankard, 107 Md. 540; and see the annotations, Code (1911) Art. 23, sec. 87. A municipal corporation may not, in a transitory action be sued beyond its limits. Phillips v. Balto., 110 Md 431.

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