when designated by his relation to the corporation, he is the proper plaintiff. For example a legacy to the person who at a given time shall hold a certain office must be recovered by such person though it is ultimately for the benefit of the corporation.45

What has been written does not imply that the officer cannot sue; he may do so too.46 And the corporation may be a necessary party to a bill by the officer on a contract for its benefit.47 Just as it may sue on such a contract, so may it be sued though the contract runs to the names of the officers, 48 provided there has been no election to hold him individually,49 and conversely the officer cannot hide his wrongdoing and avoid suit by use of the corporate name.50 It may be sued though it ran in the name of a predecessor.51 Both the corporation and the officer may be sued, if both are liable and no election can be forced between them.52

§3033. In statutory and special proceedings. In a proceeding not according to the common law but according to statute, the stockholders need not be made parties if they are represented by the corporation which is a party or has the requisite notice.53 No other

prietors of White School House v. Post, 31 Conn. 240.

45 The treasurer at the time and not the president or the corporation is the proper plaintiff to sue for a legacy payable to the person, who when the same is payable, shall act as treasurer of a" named society for its use and benefit, where a reorganization has occurred the treasurer of the successor should sue. Dewitt v. Chandler, 11 Abb. Pr. (N. Y.) 459.

46 Suit may also be in the officer's name, though he had no personal part in accepting delivery of the note sued on and given to cover a debt to the corporation. Hymer v. Ijams, 56 Md.

470.

47 Nichols v. Williams, 22 N. J. Eq. 63.

48 See Farmers' & Mechanics' Bank v. Troy City Bank, 1 Dougl. (Mich.) 457, where suit was maintained on bill accepted by cashier.

Contract by them as "directors of" the corporation was in fact its con

tract. If not they should be sued as individuals. Herod v. Rodman, 16 Ind.

241.

May be sued on notes made in de facto officers' names for a loan to it. Wanner v. Emanuel's Church of Evangelical Ass'n, 174 Pa. St. 466, 34 Atl.

188.

49 Richmond Union Passenger Ry. Co. v. New York & S. B. Ry. Co., 95 Va. 386, 28 S. E. 573.

50 Officers who have used the corporate name to cover their own wrongdoing must answer individually. Morrison v. Blue Star Nav. Co., 26 Wash. 541, 67 Pac. 244.

51 Successor by different name may be sued. Wilson v. Chesapeake & 0. R. Co., 21 Gratt. (Va.) 654.

52 Mason v. Morin, 19 Ky. L. Rep. 794, 42 S. W. 88.

53 Notice to the corporation alone need be given. The stockholders are represented by it in a condemnation of its property for public use. Peirce v. Somersworth, 10 N. H. 369.

[§ 3035 precedents have been found in which a question of parties determinable by corporation law was made in a special proceeding, but it would seem to be logical to adopt the rule that the stockholder is represented by the corporation in any such proceeding, and that if it does not represent him in the particular proceeding he should be cited or made a party. Mandamus and quo warranto, regarded as special proceedings in at least some of the code states, are treated in other chapters.54 References to statutory proceedings between officers and members, and members and the corporation have already been made.55

§3034. In proceedings not inter partes; admiralty, probate, etc. There is nothing peculiar, as evidenced by precedents thereon, about the practice of making parties by citing claimants in proceedings not in form by one party against another, but in form among all parties, inter omnes. As to these proceedings the statutes regulating them should be consulted and the corporation treated as a natural person and cited or omitted accordingly.

§ 3035. Effect of receivership, dissolution, suspension or succession. Both the corporation and the receiver were held necessary parties to a bill to bring in property to the corporation to which it had only a right in action or an equity.56 Whether a receivership, for instance, makes it necessary to omit the corporation as a party in litigation affecting the corporate concerns, or to join it, or merely makes joinder proper, depends on the scope of the receivership within which the receiver represents the corporation, further on the propriety of allowing it to be engaged in litigation during the receivership, and on other things all of which are fully treated in another chapter. If dissolution is absolute it cannot be a party on either side, but if existence be continued by statute it all depends on the terms of the statute who are or may be parties. If the corporation be in suspense (not merely dormant) similar rules to those in the case of a receiver would afford the test for making or omitting it as a party. It has already been seen that dissolution abates the action (unless the corporation is extended by statute to wind up) and that substitution. may be necessary.57 When there has been a succession of corpora

54 See chapters on Quo Warranto; Mandamus, infra.

55 See § 3028, supra.

56 On a bill to redeem land from a mortgage in fact held for a corporation, it as well as its receiver must be

made party. Swift v. Eckford, 6 Paige (N. Y.) 22.

57 See $2955, supra, § 3036, infra, and see also chapters on Insolvency; Bankruptcy; Receivers; Forfeiture, Dissolution and Winding Up, infra.

tions, as by consolidation or reorganization, or a succession by the corporation to rights and liabilities of incorporators and promoters, the party plaintiff or defendant will depend on whether the right or the liability has devolved on the corporation succeeding or remains in the predecessor. This is explained in other parts of the work.58 A consolidation of corporations also presents the prime question whether there is an extinction of the old corporations by merger, or simply a merger of their outward organic forms. The conclusion generally reached is that the old corporations become extinct and the new succeeds to all of their rights, franchises, privileges, duties, and liabilities, but this is not a universal rule. Terms of the consolidation agreement or the statutes may prevent extinction, at least until the old corporations have time to wind up their affairs.59 If there is no determination of the former existence, but merely a continuance of it under a new organization in form with the old substance of membership and rights, then the actions by or against it which may have been pending do not abate or suffer interruption. If there is a new existence then abatement follows, unless the statute otherwise provides; and a revivor must be had.60 The rights of action and defenses of the old corporation may pass to the new, in whole or in part, according to the terms of the several charters and the agreement of transfer or succession, and the statutes, if any, affecting and governing the succession. It is a frequent provision that the new one succeeds. to all of the rights, franchises, privileges, duties and liabilities of the old.61 A supplemental or other additional pleading may be necessary in order to show the succession or to explain the change of corporate name, if the action is pending, 62 or appropriate allegations. may be required in the original pleading if a new action is brought afterwards,63 and amendments as to parties may also be necessary.

§ 3036. New and additional parties and amendments of parties. In accordance with law and equity practice additional new parties may be brought in or original ones dismissed, subject to the rule that

[$ 3036 a new action or a new bill cannot be made thereby.65 An amendment of pleadings to correct the name or description of the parties in the action may also be made, as will presently be shown.66 A new party may be brought in to meet the requirements of a cross-complaint by the corporation.67 A personal representative or other successor to an officer or stockholder party can be brought in only when his succession involves the thing or matter because of which the original party was joined to the action and therefore a party for discovery cannot be replaced with such a successor.68 Some of the more frequent instances of substitution in actions affecting corporations are those whereby the corporate successors on a dissolution or the corporate receivers or liquidators are brought in.69 In states where the practice of suing in the plaintiff's name to the use of the real party prevails a question is presented by the dissolution of a corporation so standing as plaintiff. Under such a practice, although by statute. corporate actions are preserved from abatement, it was held proper to substitute the real party.70 Under special circumstances shown it was held to be proper to substitute the stockholders as plaintiffs to a bill by a corporation which acquired title in a formative state without ever completing its incorporation.71 A proper petition or its equivalent showing the new party's interest, and an order thereon making it a party is the proper procedure, a mere suggestion being

65 The rule that a new party cannot be made by amendment is exemplified in cases where an amendment of the description of the party or his authority is resisted as being in effect the substitution of a totally different party. See Jemison v. Planters' & Merchants Bank, 23 Ala. 168, and other cases cited § 3080, infra.

66 See $3080, infra.

67 The corporation can cross-complain asking annulment of the contract sued on and to the end of complete decision may bring in a new party. Goodell v. Verdugo Canon Water Co., 128 Cal. 308, 71 Pac. 354.

68 When an officer joined for purpose of discovery dies, his personal representative cannot be substituted. Le Grand v. McKenzie, 110 Ala. 493, 20 So. 131.

69 As to necessity or propriety of

substitution where dissolution or receivership has occurred pendente lite, see §§ 2954, 2955, supra, and see also chapters on Insolvency; Bankruptcy; Receivers; Forfeiture, Dissolution and Winding Up, infra.

As to whether receivers may come in at discretion or of right, see chapter on Receivers, infra.

70 See Frye v. Bank of Illinois, 10 Ill. (5 Gilm.) 332.

71 A bill in the corporate name to recover its property was properly amended by substituting names of the holders of the stock on its appearing that its organization was never completed after it acquired title. Vermont Mining & Quarrying Co. v. Windham County Bank, 44 Vt. 489. The foregoing precedent seems to be one that should be regarded with doubt or at least followed with great caution.

insufficient.72 A successor corporation must appear to have succeeded in the same right that is in litigation, and will be denied leave if the showing admits of the inference that it has succeeded by a paramount right which the action cannot affect.73 Proper process and service on the new party is essential to complete the impleading of him or it, and for this purpose a service originally made on the officer affords no basis for substituting the corporation, though it bears his name.75 It is not material whether the attorneys for the petitioner have any authority to represent the proposed new party,76 but a notice of substitution cannot be served on the new party's attorneys validly unless their authority is made to appear on the record." Supplemental pleadings are usually necessary to connect the new parties with the cause of action.78 Objection to the mode by which a party is brought in, or that it has been brought in, must be seasonably made lest the error be cured by going into the trial.79

Unnecessary parties and those improperly joined or aligned may ordinarily be dismissed according to the common practice at law, in equity, and under statutes,80 but a dismissal was denied to a trustee joined as plaintiff, when he should have been a defendant, on the

72 A mere suggestion that a corporate party has become merged by consolidation will not make the new corporation a party. Appropriate proceedings disclosing its interest and an order making it party are required. Louisville, E. & St. L. Consol. R. Co. v. Surwald, 147 Ill. 194, 35 N. E. 476, aff 'g 34 Ill. App. 525.

73 A new corporation succeeding by purchase under judicial sale will not be substituted on that showing alone as defendant to an action for recovery of possession of land. Moseley v. Albany Northern R. Co., 14 How. Pr. (N. Y.) 71.

74 Unless it was legally served the corporation could not by amendment be made defendant instead of its receivers. Price v. Delano, 187 Mich. 49, 153 N. W. 7, distinguishing Daly v. Blair, 183 Mich. 351, 150 N. W. 134. 75 A substitution by amendment is erroneous. Ziegler v. George Schleicher Co., 56 N. Y. Misc. 582, 107 N. Y. Supp. 85.

76 An additional common tenant of plaintiffs brought in by them. Union Naval Stores Co. v. Pugh, 156 Ala. 369, 47 So. 48.

77 A notice of substitution of a successor corporation as defendant served on attorneys without anything in the record to show that they represented it is a nullity. Sturtevant v. Milwaukee, W. & B. V. R. Co., 11 Wis. 61.

78 See § 3080, infra.

79 When a corporation is added to a complaint as defendant after argument, it is too late to object that it ought to have come in by intervention, if at all. State v. Jacksonville, P. & M. R. Co., 15 Fla. 201.

Objection that the corporation was substituted as an entirely new party by amendment cannot be made for the first time after verdict by the corpora tion which took part in the trial. Shorter University v. Franklin, 75 Ark. 571, 88 S. W. 587, 974.

80 Consult general works on practice. See also § 3113, infra.