the pleading may aid the caption or make a misnomer therein not material. In this respect the body of the complaint controls the caption, if there be a variance.11 12 § 3041. Naming and describing corporation. As a general rule, both actions at law and suits in equity by or against corporations must be brought by or against the corporation itself in the corporate name, whether it be de jure or de facto a corporation.13 This is merely an application of the common-law rule which required that the names of the parties to the suit must be set forth accurately in the pleadings.14 Sometimes, by express provision in a charter, an action is York. Schillinger Fire-Proof Cement & Asphalt Co. v. Arnott, 14 N. Y. Supp. 326. Iro Descriptive words, "a corporation" in the caption are surplusage. quois Mfg. Co. v. Annan-Burg Milling Co., 179 Mo. App. 87, 161 S. W. 320. The words "a corporation" after the name in the title are not allegations. Boyce v. Augusta Camp No. 7429, Modern Woodmen of America, 14 Okla. 642, 78 Pac. 322; Leader Printing Co. v. Lowry, 9 Okla. 89, 59 Pac. 242. But it has been held that the designation in caption as a corporation suffices. Board Education Walton Dist. Roane Co. v. Board Trustees Walton Lodge No. 132, I. O. O. F., . W. Va. 88 S. E. 1099. And see Exchange Nat. Bank v. Capps, 32 Neb. 242, 29 Am. St. Rep. 433, 49 N. W. 223. But the corporation should sue in its own name described as a corporation. A caption, "The K. P. Co., who sues by M., its agent," is bad. Krell Piano Co. v. Kent, 39 W. Va. 294, 19 S. E. 409. Reference in body of complaint to "defendant' suffices where title named defendant as a corporation. Saunders v. Sioux City Nursery, 6 Utah 431, 24 Pac. 532. See also §§ 3041, 3043, infra. 11 Complaint against a corporation by name describing it as composed of named persons prevails over caption against such individuals described as composing the corporation. White v. Equitable Nuptial Ben. Union, 76 Ala. 251, 52 Am. Rep. 325. Omission of a word from the name of the corporation in the caption is cured by exhibits made part of the complaint whereby it fully and truly appears. Simons v. Kosciusko Building Loan & Savings Ass'n, 180 Ind. 335, 103 N. E. 2. 12 Louisiana. Hill v. Tessier, 2 Mart. (N. S.) 539 (municipality). Massachusetts. Smith v. Hurd, 12 Metc. 371, 46 Am. Dec. 690. New York. Ogdensburgh Bank v. Van Rensselaer, 6 Hill 240. North Carolina. Young v. Barden, 90 N. C. 424 (municipal corporation). Virginia. Porter v. Nekervis, 4 Rand. 359. Wisconsin. Button v. Hoffman, 61 Wis. 20, 50 Am. Rep. 131, 20 N. W. 667. And see generally the cases cited this section, infra. 13 Corporation de facto may sue in its own name. First Bapt. Church of San Jose v. Branham, 90 Cal. 22, 27 Pac. 60. See the de facto doctrine discussed, Chap. 10, supra, and see also § 2929, supra. 14 Stephen on Pleading (Tyler's Ed.), 284. [§ 3041 allowed to be brought in the name of a particular officer or officers. At common law an action to enforce a right belonging to a corporation, or to redress a wrong against a corporation can never be brought by a stockholder in his own name, or even by all of the stockholders, and, as a general rule, the same is true of suits in equity, for a corporation and its stockholders, as we have seen, are separate and distinct in the law.1 15 persons Of this character was a statute of New York permitting a bank to sue in the name of its president, as well as in its corporate name, 16 but it did not reciprocally enable the bank to sue on the president's individual cause of action, though, having done so, the error was regarded as formal and not a ground for reversal; 17 and it did not apply to an individual banker not incorporated or associated with others.18 Another statute allowing the bringing of suit for an association in the president's name was construed as not disabling an incorporated association from suing in its own name.19 It seems that by comity a foreign corporation might sue or be sued by the name of its president if that was the law of its existence and creation, but it would not be obligatory to do so.20 A stockholder, however, may sue in equity in his own name, for the benefit of the corporation, to enforce rights of the corporation or redress or enjoin wrongs, if the officers of the corporation and a 15 Tomlinson v. Bricklayers' Union No. 1 of Indiana, 87 Ind. 308; Smith v. Hurd, 12 Metc. (Mass.) 371, 46 Am. Dec. 690; Button v. Hoffman, 61 Wis. 20, 50 Am. Rep. 131, 20 N. W. 667. A charter provision that suits should be in the name of the trustees prevents its being in the corporate name. Marsh v. Astoria Lodge No. 112, I. O. O. F., 27 Ill. 421. Statutory action by director or officer against other officers for wrongdoing, see Chap. 42, supra. Distinctness of the entities, see § 33, supra. Disability of stockholder to sue on corporate cause of action, see chapter on Stock and Stockholders, subd. Remedies of Stockholders, etc., infra. 16 The statute is permissive and cumulative. It may also sue by its corporate name. Leonardsville Bank v. Willard, 25 N. Y. 574; Columbia Bank v. Jackson, 24 N. Y. St. Rep. 738, 4 N. Y. Supp. 433. 17 Bank of Havana v. Magee, 20 N. Y. 355, aff'g 16 How. Pr. (N. Y.) 97, 7 Abb. Pr. (N. Y.) 134. 18 An individual banker is not under the law a corporation sole by a given name, and may not sue thereunder. Bank of Havana v. Magee, 20 N. Y. 355, aff'g on other grounds 7 Abb. Pr. (N. Y.) 134, 16 How. Pr. (N. Y.) 97. 19 Even if the act allowing the president to sue for an association applied to corporations, they might still sue by their corporate name. New York Marbled Iron Works v. Smith, 11 N. Y. Super. Ct. 362. 20 Saunders V. Adams Exp. Co., 71 N. J. L. 270, 57 Atl. 899, explaining earlier cases in all of which the defendant was an unincorporated association within New York and there. suable in the president's name. majority of the stockholders fraudulently refuse to sue, or are themselves guilty of the wrongs sought to be redressed or prevented. In this state of affairs there is an individual cause of action founded on the existence of the corporation's rights and the nonenforcement of them.21 The corporate charter may be such that action should be instituted against a department involved in the litigation in its separate corporate name,22 but a branch which is integral in corporate existence cannot be sued separately though legislatively recognized as a branch.23 If there are two corporations, or individuals constituting distinct corporations, that name should be used which pertains to the particular corporation to be affected by the action.24 If two corporations are sued as one and the same, their identity must be averred.25 The name to be used is the true and correct name as fixed by the charter construed as a whole,26 and if the right runs to the corporation by a variant or common name, that should be brought in under explanatory allegations.27 If there is a corporation but in the creation of it no precise name has been fixed, the suit may be in the name of the body through which it acts and is known.28 When the name 21 Dodge v. Woolsey, 18 How. (U. S.) 331, 15 L. Ed. 401; Peabody v. Flint, 6 Allen (Mass.) 52; Atwool v. Merryweather, L. R. 5 Eq. 464, note. See also chapter on Stock and Stockholders, subd. Remedies of Stockholders, etc., infra. 22 Where a banking corporation may be suable in its departments separately by departmental name, the designation of the particular department is material. State v. Banking Department of Citizens' Bank, 113 La. 150, 36 So. 921. 23 Morris v. St. Paul & C. Ry. Co., 19 Minn. 528. The "Medical Institution of Geneva College' instituted by Geneva College, is not a corporation, though by similitude to English universities the college had their powers. But the power to create corporations is not recognized as one of such powers. Medical Inst. of Geneva College v. Patterson, 1 Den. (N. Y.) 61, aff'd 5 Den. (N. Y.) 618. 24 Where selectmen and town officers are ex officio declared to be a corporation for a certain purpose, they should sue in respect thereto by that name and not in the names of individuals then incumbent of the principal offices. Ministerial & School Fund v. Parks, 10 Me. 441. Where a new company and an old one are distinct and both existing the new one cannot be sued for the old one's doings, under an allegation, contrary to the fact, that they are identical. Titus v. Minnesota Min. Co., 8 Mich. 183. 25 White v. Pecos Land & Water Co., 18 Tex. Civ. App. 634, 45 S. W. 207. 26 The name recognized by the charter is to be used though words therein might alone indicate additional description to be prefixed. Frazier v. Virginia Military Institute, 81 Va. 59. 27 See this section, infra. 28 The society of Shakers having been made or recognized by statute as [§ 3041 has once been well pleaded it is permissible to plead it thereafter by brief reference under the word "said."' 29 Many of the earlier corporations especially bore names which included such words as, "President, Directors and Company of," prefixed to the distinctive words of the name. Good pleading required that such a name should be fully and correctly stated. Eleemosynary and charitable corporations were often so named but commonly called by shortened names. It is incorrect to sue such a corporation by its common name,30 and equally erroneous to sue members by individual names, describing them as "trustees" constituting a corporation; 31 care in this respect is important in suing religious corporations or suing for them.82 Thus a Roman Catholic church corporation cannot be sued by or sue in the name of the priest or bishop as such, but the corporate name must be used,33 due regard being had to statutes constituting them cor v. a corporation it may be described as "Trustees of the Mutual Society Called Shakers," that being the body through which the society exercises its temporal functions. White Miller, 71 N. Y. 118, 27 Am. Rep. 13. Suit by church trustees in the chosen corporate name is good. Richwine V. Presbyterian Church of Noblesville, 135 Ind. 80, 34 N. E. 737. 29The said trustees,' "' does not describe them as individuals. Antopada Bapt. Church v. Mulford, 8 N. J. L. 182. 30 An eleemosynary corporation should be sued by its corporate name and not by the name by which it may be known. Suing by latter name without official prefix "Trustees of," was held fatal. Illinois State Hospital for Insane v. Higgins, 15 Ill. 185. 31 Describing them as "being a body corporate known by [corporate rame]" is mere personal description. Hay v. McCoy, 6 Blackf. (Ind.) 69. Entitling a bill against the "President and Directors of" a corporation and praying process against them does not make the corporation a party. In re Binney, 2 Bland (Md.) 99. against "A., president of" a certain corporation, is against A. individually, and not against the corporation. State v. Montegudo, 48 La. Ann. 1417, 20 So. 911; Plemmons v. Southern Improvement Co., 108 N. C. 614, 13 S. E. 188; Fidelity Insurance, Trust & Safe-Deposit Co. v. Shenandoah Valley R. Co., 33 W. Va. 761, 11 S. E. 58. 32 A religious corporation should be sued by name and not by names of the persons who are its trustees constituting the corporation and described in the pleading as such. Tartar v. Gibbs, 24 Md. 323; North St. Louis Christian Church v. McGowan, 62 Mo. 279. The name of the church and not its trustees should be used in petitioning for construction of a will bequeathing money to it. First Bapt. Church v. Robberson, 71 Mo. 326. President of religious corporation cannot bring its suit in his own name as "president of" the society named unless a statute warrants it. Lowenthall v. Wiseman, 56 Barb. (N. Y.) 490. 33 A Roman Catholic church should be sued by its corporate name. То sue its priest by his name describing him as agent of the church but not An action, or an attachment or garnishment, or any other process, porations sole.34 The suit by the corporation should be in the corporate name and not in the individual names of officers or trustees,35 but the judgment will be erroneous and not void by reason of so doing.36 A much cited case from Illinois seems to indicate that the power of suing or being sued was in the "trustees of" the corporation without the quoted words having been a part of the name, but it is not entirely clear that this was true.37 Like this, in a way, was a case in which it was enacted that a lessee of a state owned railroad should be a corporation and should sue and be sued by a given name.38 It is determined by reference to the cause of action pleaded whether a suit in the name of or against one described as bearing a certain relation to the corporation is a corporate or an individual action.39 otherwise identifying him with it is not enough. Keller v. Tracy, 11 Iowa 530. 34 In some states, e. g., California, a bishop or priest may be a corporation sole. In such case the foregoing decision should be qualified by the statement that he may sue or be sued as such a corporation with proper allegations of the facts. 35 Plaintiffs suing by name and describing themselves as "trustees of Greencastle Commandery of Knights Templar" import that they are a corporation formed under the law enabling such bodies to become incorporated. Smythe v. Scott, 124 Ind. 183, 24 N. E. 685, see also former appeal in same case 106 Ind. 245, 6 N. E. 145. Where the charter declares that "by that name and style" the corporation named "shall sue and be sued," no action or suit will lie against it by the name of its president. Mauney v. High Shoals Mfg. Co., 39 N. C. 195. To the same effect, holding that a power to the president and directors to receive tolls did not imply that they could sue for them in their names. Brittain V. Newland, 19 N. C. 363. See also two notes last preceding. 36 Suing in treasurer's name instead of the corporation's makes judg ment erroneous but not void. Nichol son v. Stephens, 47 Ind. 185. 37 Where the terms of the charter repose the power of suing in the "trustees of [corporate name]," that and not the bare corporate name should be used. Marsh v. Astoria Lodge No. 112, I. O. O. F., 27 Ill. 421. 38 Under the Georgia statute authorizing the leasing of a state owned railroad and enacting that the lessee should be a corporation named the W. & A. R. Co. with power to sue and be sued, that name should be used rather than the name of the corporation which became the lessee. Nashville, C. & St. L. Ry. Co. v. Edwards, 91 Ga. 24, 16 S. E. 347. 39 Whether a suit by one as president of a bank is to be regarded as one by an individual, or as one in the president's name by the bank according to the statute depends on whether averments of a corporate action and cause of action also appear. Hallett v. Harrower, 33 Barb. (N. Y.) 537. It must be remembered that in New York a statute permitted a bank to sue by the name of its president. The rule as stated in the text is correct notwithstanding. For further illustrations see chapter on Stock and Stockholders, subd. Remedies of Stockholders, etc., infra, where numerous |