may sue in the name which it has acquired by reputation or usage, though it may not be the name designated in its charter.1 It nevertheless remains that it is unsafe for the pleader to depart from the legal name and to draw his pleading in the popular name; for, as has been said by a writer of distinction, "a name in a grant or obligation, to or by a corporation, may be sufficient to enable the corporation to enjoy or to make it liable, which would not be sufficient in an action by or against it." It is pointed out by the same writer that, if the name of a corporation is lawfully changed, and not the identity of the corporation itself, the action should, in general, unless provision be otherwise made, be brought in the new name.3 Thus, where a town is merged into a city, and all the records and property of the former are vested in the latter, an action on a written obligation made to the town before the consolidation, should be brought in the name of the city, and can not be brought in the name of the town. And if a written promise be made to a corporation, by a name different from its corporate name, it may sue in its true name, and allege that it is the party to whom the promise or obligation was made, and an allegation that the defendants acknowledged themselves to be bound unto the plaintiffs, by the description, etc., is equivalent to such an averment." 5 § 291. Misnomer of Corporation in Pleading.-The misnomer of a corporation in pleading is usually available only by plea in abatement, and not by plea in bar; nor is it a ground of non 1 Ante, § 286. 2 Dill. Mun. Corp. (4th ed.), § 181; citing Cambridge University v. Archbishop of York, 10 Mod. 208; Brittain . Newland, 2 Dev. & Bat. (N. C.) 363; Insane Hospital v. Higgins, 15 Ill. 185; Berks County &c. v. Myers, 6 Serg. & R. (Pa.) 12; Clark v. Potter County, 1 Pa. St. 159, 163; Porter v. Blakely, 1 Root (Conn.), 440; Kentucky Seminary v. Wallace, 15 B. Mour. (Ky.) 35; Romeo v. Chapman, 2 Mich. 179; County Court v. Griswold, 58 Mo. 175; Carder v. Commissioners, 16 Oh. St. 353; Trustees v. Campbell, 16 Oh. St. 11. 7 3 1 Dill. Mun. Corp. (4th ed.), § 181; citing Colchester v. Seabar, 3 Burr. 1866; Reg. v. Ipswich, 2 Ld. Raym. 1232, 1238. 4 Ft. Wayne v. Jackson, 7 Blackf. (Ind.) 36. 5 1 Dill. Mun. Corp. (4th ed.), § 181; citing African Society v. Varick, 13 Johns. (N. Y.) 38; Trustees v. Reneau, 2 Swan (Tenn.), 94; Ft. Wayne v. Jackson, 7 Blackf. (Ind.) 36. • African Society v. Varick, supra. Burnham v. Savings Bank, 5 N. H. 446 suit. It was so held where the true name of the corporation was "the mayor and burgesses of the borough of Stafford in the County of Stafford," and the declaration laid the name as "the mayor and burgesses of the borough of Stafford." This case draws a distinction between the mere misnomer of a corporation and the bringing of an action by a person altogether different, or not in rerum natura. "When a corporation is sued, if the name of the corporation is mistaken, materially and substantially, the corporation cannot be affected by the proceedings. There is, in these cases, a distinction made between a variance in words and syllables only, and a variance in substance. If a corporation be sued by a name varying only in words and syllables, and not in substance, from the true name, the misnomer must be pleaded in abatement, otherwise it will not be regarded. But if the name be mistaken in substance, the suit can not be regarded as against the corporation." 2 — § 292. Effect of Variances in Corporate Name. - In a suit upon a contract relative to the purchase of certain shares of stock, the contract offered by the plaintiff in evidence disagreed with the plaintiff's declaration as to the name of the corporation; but since the identity of the corporation was apparent from the recital in the contract and from the records of the corporation, to which the contract referred, this variance constituted no defense.3 In an action of covenant, the plaintiff, a corporation by prescription, alleged a grant to it by the defendant's ancestor under a name differing in some respects from that by which it had been known during the past one hundred years. Upon this point the court was clear that the deed of an ancestor describing a corporation by a certain name must be evidence against those who claim from him that the corporation was then known by that name.+ 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 in whose favor the note was intended to be drawn,- it was held that there was no such variance as would preclude a recovery by the corporation suing by its 1 Mayor and Burgesses v. Bolton, 1 Bos. & P. 39. 2 Burnham v. Savings Bank, 5 N. H. 446, 449, opinion by Richardson, C. J. 3 Dodge v. Barnes, 31 Me. 290. Mayor of Carlisle v. Blamire, 8 East, 487. correct name.1 The plaintiff, claiming to be a corporation by the laws of New York, in Missouri sued by the name of "The Bank of Commerce." The articles of association, produced to prove the plaintiff's right to sue as a corporation, declared that the name to be used should be “Bank of Commerce, in New York." It was held that the articles offered were not competent evidence to prove the existence of a corporation bearing the name of the plaintiff.2 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 ran against "the said Marine Bank." The plea was that "the Marine Bank" did not assume, etc.; and the verdict and judgment used the corporate name. It was held, on objections made to the declaration, that it was sufficient.3 An ejectment was brought upon the demise of "the mayor, aldermen, capital burgesses and commonalty of the borough town of Malden.” The name of the corporation was "the mayor, aldermen, capital burgesses and commonalty of Malden." It was held that there was no variance.4 A judgment recovered against "the president, directors and company of the Lafayette Insurance Company" may be sued upon as a judgment against the "Lafayette Insurance Company," the declaration averring that the judgment was recovered against the defendants by the former name.5 § 293. What Misnomers Amendable. —If the distinction of an English case is attended to, that between the mere misnomer of a corporation and the bringing of an action by a person altogether different from that named in the declaration, or by a person not in existence,5 there will be no difficulty in solving the question under what circumstances amendments ought to be allowed so as to cure misnomers of corporations in pleadings. In a well considered case in Alabama the court, after examining several authorities, concluded that the authorities adduced establish the conclusion, that there is a well marked distinction between a misnomer, which incorrectly names a corporation, bu correctly describes it, and the statement in the pleading of an 66 1 Newport Mechanics' Man. Co. v. Starbird, 10 N. H. 123. Bank of Commerce v. Mudd, 32 Mo. 218. 3 Marine Bank v. Biays, 4 Harr. & J. (Md.) 338. 4 Doe v. Miller, 1 Barn. & Ald. 699. 5 Lafayette Ins. Co. v. French, 18 How. (U. S.) 404. 6 Mayor & Burgesses v. Bolton, 1 Bos. & P. 39. entirely different party. This conclusion being attained, the question in this case is stripped of embarrassment." 1 The distinction is that an amendment is always allowable, curing a mere misnomer of the real party which sues, but that an amendment is not allowable introducing an entirely different party as plaintiff, unless such party may properly be introduced as the successor in interest of the party originally bringing the action. And the same rule would, it is supposed, apply, mutatis mutandis, where a corporation is defendant. § 294. Effect of Misnomer of Corporations in Written Obligations. It is laid down in an old case 2 that in all grants by or to corporations, if there is enough expressed to show that there is such an artificial being, and to distinguish it from others, the body politic is well named, although there is a variance of words and syllables. It is laid down by Chancellor Kent that "a misnomer in a grant by statute, or by devise, to a corporation, does not avoid the grant, though the right name of the corporation be not used, provided the corporation really intended it to be made apparent." In the earliest American treatise on the law of corporations it is said: "In a devise to a corporation, if the words (though the name be entirely mistaken) show that the testator could only mean a particular corporation, it is sufficient. And there is a general concurrence of modern authority to the effect that "a misnomer or variation from the precise name of the corporation in a grant or obligation by or to it, is not material, if the identity of the corporation is unmistakable, either from the face of the instrument or from the averments and proof." It was said by Gibson, J., that 1 Smith v. Plank Road Co., 30 Ala. 650, 663. 2 10 Co. Rep. 135. 32 Kent. Com. 292. 4 Ang. & A. Corp. (1st ed.), p. 379. These propositions were quoted with approval in Vansant v. Roberts. 3 Md. 119, 127, 128. 5 1 Dill Mun. Corp. (3rd ed.), § 179; cited with approval in Neely v. Yorkville, 10 S. C. 141. To the same effect see Inhabitants v. String, 10 N. J. L. 323; Kentucky Seminary v. Wallace, "a departure from the strict style of the corporation will not avoid its contract, if it substantially appear that the particular corporation was intended; and that a latent ambiguity may, under proper averments, be explained by parol evidence in this, as in other cases, to show the intention." In determining whether or not the instrument, although misnaming the corporation, makes its identity apparent, the court will look, not only to the language of the instrument, but will also consider surrounding circumstances. A good illustration of this principle is found in a case where an individual had become the purchaser of a railway, and thereafter took a lease of certain premises to be used in connection with the railway, the lease being made to the railway by its prior corporate name and not to the individual owner of it. It was held that the lease was good enough as a lease to the individual. 66 If he took the lease under that name, it would bind him by the name he assumed, and it is immaterial that there was no corporation of the name of the lessee." § 295. Misnomer in Devises and Bequests. A misnomer in a devise or bequest intended to be made to a corporation will not make it void, but parol evidence may be resorted to to show what corporation was intended. The principle that parol evidence Pittsburgh v. Craft, 1 Pitts. (Pa.) 77; President &c. v. Myers, 6 Serg. & R. (Pa.) 12. See also Milford &c. Co. v. Brush, 10 Oh. 111; Newport Mechanics' Man. Co. v. Starbird, 10 N. H. 123; Society for Propagating the Gospel v. Young, 2 N. H. 310; Trustees v. Peaslee, 15 N. H. 317; 2 Vansant v. Roberts, 3 Md. 119. 4 Hornbeck v. American Bible Society, 2 Sandf. Ch. (N. Y.) 133; General Lying-in Hospital v. Knight, 21 L. J. (Ch.) 537; s. c. 11 Eng. L. & Eq. 191; Winslow v. Cummings, 3 Cush. (Mass.) 358; Telfair v. Howe, 3 Rich. Eq. (S. C.) 235; Carter v. Balfour, 19 Ala. 814; Brewster v McCall, 15 Conn. 274; Ayres v. Weed, 16 Conn. 291. The rule is analogous to the rule that, in applying the clause of a deed to the land, parol evidence is admissible, and the question becomes a question of fact for a jury. 1 Thomp. Tr., § 1461, et seq. |