Page:Federal Reporter, 1st Series, Volume 1.djvu/578

 OlO FEDERAL REPORTER. �istrators for dead persons; but an extinct corporation must be represented by the individuals who originally composed it. They may employ attorneys, and, as a matter of fact, they are the real actors in any litigation with it. If it be alive, they must act in the corpœrate name; if extinct, they may so act, although it would be an inconsistency, or they may act in their own names. If sued in the corporate name, this would seem to violate the well known rule that none but parties can plead; but this results from assuming the very question in dispute in favor of the plaintiff, i, e., that there is a corporation. If the quesion be assumed the other way, as the persons alleged to have a corporate existence must assume if they deny that fact, there is no difficulty in treating them as the real parties sued. The plaintiff here, by his argument, requires the court to adjudicate that a corporation does exist upon his bare allegation of the fact ; and he would compel the persons supposed to constitute it to admit that fact by pleading in the corporate name, which he assumes they have. I do not thiuk the rule of pleading relied on is so inflexible as to give the plaintiff this advantage. Either this case is an exception to it, or, for the purpose of trying this question, the persons alleged to be incorporated must be considered the real parties, notwithstanding the plaintiff's assumption of their corporate capacity. �In Welch v. St. Genevieve, 1 Dill. 130, the facts were pre- sented by the return to a mandamus of individuals held to have no officiai connection with the corporation, and upon the suggestion of an amicus curiœ the question of extinction was tried. In McGoon v. Scales, 9 Wall. 23, the defence was made both by trustees not sued and the extinct corporation itself ; and in Bank v. Oolby, 21 Wall. 609, the motion to abate was made by a receiver. �The plaintiff having treated the persons served with process as representing the alleged corporation, he cannot preclude them from at least denying that there is such a corporation. Whether they do this in their own names or that of the alleged corporation is quite immaterial, but it seems to me ��� �