MISNOMER. The use of a wrong name.
In contracts, a mistake in the name will not avoid the contract, in general, if the party can be ascertained; 11 Co. 20 ; Ld. Raym. 304; Hob. 125. So of contracts of corporations; Hoboken Building Ass'n v. Martin, 13 N. J. Eq. 427. See NAME. If a deed, note, etc., be made to a corporation under an erroneous name, tie proper course is for the corporation to sue in its proper name and allege that ,defendant made the deed, etc., to the corporation by the name mentioned in the instrument; North western Distilling Co. v. Brant, 69 Ill. 658, 18 Am. Rep. 631. A contract entered into by a corporation under an assumed name may be enforced by either of the parties, and the identity of the company may be established by the ordinary methods of proof ; Marmet Co. v. Archibald, 37 W. Va. 778, 17 S. E..299.
A misnomer of a legatee will not, in gen eral, avoid a rgacy, when the context fur nishes the means of correction; Schou'. Wills § 583; see 19 Ves. 381; 1 Rop. Leg. 131; LEGACY. A legacy given to a corporation, either by its corporate name, or by descrip tion, is good ; in the latter case it must be so designated as to be distinguished from every other corporation ; New York Inst. for the Blind v. How's Ex'rs, 10 N. Y. 84. See Preachers' Aid Soc. of Maine Conference of Methocust Episcopal Church v. Rich, 45 Me. 552 ; Burdine v. Grand Lodge of Alabama, 37 Ala. 478.
When a corporation is misnamed in a statute, the statute is not inoperative if there is enough to designate what corpora tion is meant ; 10 Co. 44, 57 b.
Misnomer of one of the parties to a .suit must be pleaded in abatement. It has been held that misnomer of one of the partners of a firm in a scire facies sur mortgage is unimportant, if the name of the firm is cor rect in the mortgage itself ; Rushton v. Rowe, 64 Pa. 63. A slight variation in a corporate name will be disregarded unless the mis nomer be taken advantage of by a plea in abatement ; Hoereth v. Mill Co., 30 Ill. 151;
Thatcher v. Bank, 19 Mich. 196. If a cor poration, sued by an erroneous name, appears by that name without objection, the error is cured; Virginia & M. Steam Nay. Co. v. U. S., Taney 418, Fed. Cas. No. 16,973. See Mer chants' & Planters' Bank v. Meyer, 56 Ark. 499, 20 S. W. 406. But a writ of mandamus issued against a corporation under an er roneous name is void ; 2 Ld, Raym. 1238 ; and an error in the corporate name in an execution is fatal ; Bradford v. Water Lot Co., 58 Ga. 280. The same is true when there is an error in the corporate name in a judg ment; 1 Ld. Raym. 117 ; but see Sherman v. Proprietors of Bridge, 11 Mass. 338.
The names of third persons must be cor rectly laid ; for the error will not be helped by pleading the general issue; but, if a sufficient description be given, it has been held, in a civil case, that the misnomer was immaterial. Example: in an action for med icines alleged to have been furnished to de defendant's wife, Mary, and his wife was named Elizabeth, the misnomer was held to be immaterial, the word wife being the material word; 2 Marsh. 159. See Bigelow v. Chatterton, 51 Fed. 614, 2 C. C. A. 402, 10 U. S. App. 267. In indictments, the names of third persons must be correctly given ; Rose. Cr. Ev. 78. If a person is well known by the name in the indictment, the indict ment is good; 7 Am. L. Reg. N. S. 445; the middle name of a defendant, if stated in an indictment, either in full or by the initial letter, must be correctly stated; 1 Am. L. Reg. 380. That a party is known by one name as well as another, is a good replica tion to a plea of misnomer; Parmelee v. Ray mond, 43 Ill. App. 609. Accuracy is especial ly required in stating the correct name of a corporation in all criminal proceedings in which it may be concerned ; 1 Leach 253 ; but see People v. Potter, 35 Cal. 110. See Arch bold; Chitty, Pleading ; ABATEMENT; CON TRACT ; PARTIES ; LEGACY; NAME.