Campbell & Zell Co. v. American Surety Co.

Citations

• 129 F. 491
• 1904 U.S. App. LEXIS 4761

Syllabus

<p>1. Cobpobations — Actions by — Peoof op Incoepoeation.</p> <p>The burden rests upon a plaintiff suing as a corporation to prove its corporate existence, but such fact is sufficiently proved for the purposes of a case by the production of the bond sued on, which was executed by defendant, and contains a recital that plaintiff is a corporation.</p> <p>2. Same — Peoof of Identity.</p> <p>That a corporation plaintiff is the identical one to which a bond sued on was executed may be inferred from the identity of name, unless it is shown that there are others of the same name.</p> <p>3. Attachment — Bond foe Dischaege — Paety Entitled to Sue.</p> <p>An action was brought in the name of a receiver appointed in another state for a corporation of such state. The declaration contained one count setting out a contract between the defendant and such corporation made prior to the receivership. The court having determined that the receiver could not maintain an action thereon, the declaration was amended by substituting the corporation as plaintiff, and on that count alone judgment was rendered against the defendant, but in favor of the corporation, and not of the receiver. Held, that a bond given previously by the defendant to obtain the discharge of an attachment in the suit, although running to the receiver, created a contract with the corporation, on which it could maintain an action against the surety in its own name, the record having been such as to advise the surety from the beginning that the corporation was the real party in interest, so that its obligation must be construed in the light of such fact.</p> <p>4. Same — Liability of Sueety — Amendment of Declabation Substituting New Plaintiff.</p> <p>The surety on a bond given for the discharge of an attachment in an action brought by a foreign receiver for a corporation is presumed to know that the declaration is amendable at common law by substituting the corporation as plaintiff, and such an amendment does not affect