Corporate Name.

Names are

§ 284. Importance of the necessary to the very existence of corporations. The corporate name has been said to be "the very being of the constitution; the knot of their combination, without which they could not do their corporate acts; for it is unable to plead and be impleaded, to take and give, until it hath gotten a name." 1 A case is cited below where it is held that a corporate name, although acquired by the organization of a corporation under a general law, ending with a certificate of incorporation issued by the Secretary of State, is in the nature of a franchise and inviolable, although wrongfully obtained, in the sense that it is an imitation of the name of a previously existing corporation. But an examination

1 2 Bac. Abr. Corp. (C.); quoted in 1 Post, § 296.

Smith v. Plank Road Co.,30 Ala. 650,664.

of old precedents makes it doubtful whether the name of a corporation can in a strict sense be regarded as a franchise, especially in view of the fact that it may be acquired by usage or reputation. Where individuals are allowed to incorporate themselves under general laws, by complying with certain forms and conditions, they not unfrequently take to themselves a corporate name at pleasure.2

§ 285. Distinction between the Names of Natural Persons and of Corporations. It has been said: "The name of a corporation designates the corporation, in the same manner that the name of an individual designates the person. There is this difference, however, that the alteration of a letter, or transposition of a word, usually makes an entirely different name of the person, while the name of a corporation frequently consists of several descriptive words, and the transposition of them, or any interpolation, or omission, or alteration of some of them, may make no essential difference in their sense." 8

§ 286. Acquired by Usage and Reputation.- Besides their true names, corporations may have and take by names of reputation. Thus, evidence was held to be admissible to show that a body incorporated as "The Society for the Propagation of the Gospel in Foreign Parts," was known as " The Church of England Society; that its real estate was sometimes designated

1 Post, § 286. In an old case in Salkeld, the following language is found: "My Lord Coke says, that a corporation must have a name; but that must be understood to be either expressed in the patent, or implied in the nature of the thing; as if the King should incorporate the inhabitants of Dale with power to choose a mayor annually, though no name be given, yet it is a good corporation by the name of mayor and commonalty. So the City of Norwich is incorporated to be a mayor and sheriffs, by the charter of Henry IV., and are called mayor, sheriffs, and commonalty." Anon., 1 Salk. 191.

2 See Falconer v. Campbell, 2 McLean (U.S.), 195, 198; Minot v. Curtis, 7 Mass. 441.

3

Newport Mechanics' Man. Co. v. Starbird, 10 N. H. 123, 124, per Upham, J.

Medway Cotton Man. Co. v. Adams, 10 Mass. 360; School District v. Blakeslee, 13 Conn. 227; Reg. v. Registrar, 10 Ad. & El. (N. s.) 839; Episcopal Charitable Society v. Episcopal Church, 1 Pick. (Mass.) 372; Rex v. Morris, 1 Ld. Raym. 337; Reg. v. Bailiffs, 2 Ld. Raym. 1232; Dr. Ayray's Case, 11 Co. Rep. 19; Dutch West India Co. v. Van Moses, 1 Strange, 612, 614.

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as "Church of England Lots;" and, therefore, that it was entitled to certain lots of land thus designated in partition proceedings.1 So, the Queen's College, Oxford, had no name given to it at its foundation, but having received its foundation and several other benefactions from the Queen, it collected by reputation the name of Queen's College, by which name it could sue and be sued. So, a corporation may acquire a name by usage; and although the name of a corporation has been changed by an act of the legislature, if the corporation continues to conduct its business in its original name, and otherwise exclusively uses that name after the passage of the act, it may, by usage, regain such original name, and can be lawfully sued and proceeded against in bankruptcy by that name.1

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§ 287. Petition to Change Corporate Name. Statutes exist in some of the States authorizing the judicial courts, upon a petition by the corporation, for good reason shown, to change the corporate name to some other name. Similarity of the proposed name to that of an existing corporation is ground for denying a petition for change of the name of a corporation.5 Under the New York statute authorizing the court to permit a corporation to change its name where it appears that there is no reasonable objection," the matter is discretionary with the court. Though the Court of Appeals may think the court below has been too cautious in refusing leave, for fear of a possibility of confusion, this affords no ground for reversal.' In Pennsylvania, the court will not change the name of a corporation unless good reason is shown; and it is not a sufficient reason that the new name proposed for a bank will be of assist

1 Society v. Young, 2 N. H. 310.

Pits v. James, Hobart, 122, 124; Dr. Ayray's Case, 11 Coke, 19, 20, 21. The same point seems to have been included in the judgment of the court in the case of the Dutch West India Co. v. Van Moses, 1 Strange, 612, 614. 3 Smith v. Plank Road Co., 30 Ala. 650.

Alexander v. Berney, 28 N. J. Eq. 90. When a corporation receiving a

new charter retains its old name: Reg. v. Bailiffs of Ipswich, 2 Ld. Raym. 1232, 1239.

5 Matter of Manhattan Dispensary, 7 N. Y. St. Rep. 871; post; § 296. 6 N. Y. Laws of 1870, chap. 322. Re United States Mercantile Reporting &c. Agency, 115 N. Y. 176; s. c. 21 Northeast. Rep. 1034; 24 N Y. St. Rep. 548; affirming s. c. 22 N. Y. St. Rep. 494.

ance among a certain nationality of the population.1 Under a recent statute of that State authorizing the improvement, amendment, or alteration of the charters of corporations, the name of a corporation is a part of such charter, and may be altered on proper application to the court.3

Where a

§ 288. Change of Name by Corporate Action. name has been given to the corporation by charter or statute, this can not be changed by corporate action, either directly or by user, without statutory permission. But many of the general laws of the States providing for the creation of corporations contain provisions by which the name of the corporation may be changed by corporate action. In Iowa, unless the rule has been changed since the case below cited, a change in the name of a corporation can only be effected by changing the articles of incorporation, and the best evidence of this change is the articles themselves. In Illinois, the requisites of the certificate of the president of a corporation showing a change of its name were considered; and it was held that, if the certificate showed that at a special meeting of the stockholders of the company, held at its office on a day named, and called in pursuance of the statute and in strict conformity therewith, at which meeting over two-thirds of the stock of the company was duly represented, a resolution was unanimously adopted changing the name of the company to another name stated, is sufficient under the statute of that State.

§ 289. Effect of Changing Corporate Name. — In general, it may be said that a changing of the name of a corporation has

1 Bank of North America, 2 Pa. County Court, 97.

* Penn. Corp. Act of 1874, as amended by Act of June 13th, 1883.

$ Per Kirkpatrick, Att.-Gen. Re Excelsior Oil Co., 3 Pa. County Ct. 184. The Pennsylvania act of April 20, 1869, conferring on counties power to change the names of corporations, applies to religious corporations, and is not repealed by Pennsylvania act of April 29, 1874. Re First Presby

terian Church of Bloomfield, 111 Pa. St. 156.

4 1 Dill. Mun. Corp. (4th ed.) § 178; Reg. v. Registrar, 10 Ad. & El. (N. s.) 839; Sykes v. People, 132 Ill. 32; s. c. 23 N. E. Rep. 391. See Episcopal &c. Society v. Episcopal Church, 1 Pick. (Mass.) 371.

5 Chicago &c. R. Co. v. Keisel, 43 Iowa, 39.

6 Anthony. International Bank, 93 Ill. 225.

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no effect whatever upon the existence or identity of the corporation, or upon rights flowing to or from it; though it may have the effect of introducing some additional averments in pleading in particular cases.2 The corporation continues, as before, responsible for all the debts it had previously contracted.3 Subscriptions to its capital stock are not invalidated, but it may sue and recover upon such contracts by its new name. If the change of name takes place pending a suit, it has no effect upon the rights of the plaintiff; and if the suit is by a corporation, and, pending the suit, there is a change of name, it will be too late, after judgment, for the defendant to set up that there was no such corporation, especially if he fails to make it appear that the corporators accepted the new name.' When, by the terms of its charter, a corporation is to be the successor of an insolvent corporation, having the same functions, franchises, powers and privileges, and is to become bound for the payment of certain claims against the first corporation, an action of debt or assumpsit may be maintained against the new corporation.

§ 290. The Corporate Name in Suits. It has been said that the corporation can sue only in the name and style given to it by law; and it has been said that a company may sue and be sued by its descriptive name.10 But it seems that a corporation

1 Welfley v. Shenandoah &c. Co., 83 Va. 768; Mayor of Scarborough v. Butler, 3 Lev. 237; Girard v. Philadelphia, 7 Wall. (U. S.) 1; Corporation of Ludlow v. Tyler, 7 Car. & P. 537; Attorney-General v. Wilson, 9 Sim. 30, 48; Attorney-General v. Kerr, 2 Beav. 420, 429; Attorney-General v. Corporation of Leicester, 9 Beav. 546; Doe v. Norton, 11 Mees. & W. 913, 928.

"An action may be maintained against it in its new name by showing the fact that its name has been changed without any change of its corporate composition. Welfley v. Shenandoah &c. Co., 83 Va. 768.

Dean v. La Motte Lead Co., 59 Mo. 523. Compare Longley v. Longley

Stage Co., 23 Me. 39, where the corporators "concluded to rub out and begin anew."

4 Reading v. Wedder, 66 Ill. 80; Com. v. Pittsburgh 41 Pa. St. 278.

5 Bucksport &c. R. Co. v. Buck, 68 Me. 81; Greenville &c. R. Co. v. Johnson, 64 Tenn. (8 Baxt.) 332.

6 Welfley v. Shenandoah Iron Co., 83 Va. 768; s. c. 3 S. E. Rep. 376.

7 Water Lot Co. v. Bank of Brunswick, 53 Ga. 30.

8 St. Louis &c. R. Co. v. Miller, 43 Ill. 199; ante, § 267.

9 Porter v. Nekervis, 4 Rand. (Va.) 359.

10 Drew v. Nat. Exchange Co., 1 Pat. Sc. App. 953.