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The Central Law Journal. care, however, that in stopping a small
leakage, do not open a larger one. Strange, ST. LOUIS, DECEMBER 3, 1886.
as it may seem, there is a limit to safe generalization and simplification. Unexpected
results sometimes confront the bold innoCURRENT EVENTS.
vator. For example, the ludicrous blunder
of the California codifiers, who so simplified CRIMINAL LAW REFORM.—A newspaper
the law on the subject of bigamy, that in that. article has lately attracted our attention,
State a man lived, and, for aught we know in which the writer, after citing a recent case
still lives, with two lawful wives. in which a prosecution failed by reason of a
Although the legislature should do what it defective indictment, is led into a train of
can, the true remedy for this evil, in our reminiscences of numerous similar cases in
opinion, can only be found in greater care in which guilty defendants went “unwhipt of
the trial courts. The indictments should be justice,” becouse, of what he denominates,
carefully scrutinized as soon as they are rethe technicalities of the law." No doubt
turned by the grand jury, and, as far as poslike cases are constantly occurring in every
sible, all technical questions should be setpart of the country, and this fact, together
tled in limine, and the rules of practice with the popular feeling that the administra
should be so modified as to accomplish this tion of the law is uncertain and dilatory,
purpose. fosters and keeps alive the tendency in many
The fragility of indictments is a matter for sections to lynch law.
special wonder-in fact, a professional pheThe question at once arises, what is the
nomenon. The gentlemen who prepare these remedy for the uncertainty of justice which
instruments specialists-experts; for grows out of the technicality of the law? years they are wholly addicted to practice in
criminal causes. How can it be so arranged that, when a pris
They have, as to all comoner has been indicted for a heinous crime,
mon law crimes, the precedents of a thousand tried, convicted, and has appealed, he shall
years, carefully annotated, classified, and not escape, because, in the initial pleading
labeled by numerous text-writers. As to of the indictment—there appears a flaw that
fenses, created and defined by statute, they abrogates the whole proceeding, and if it
have the statute itself, and the rule that it is does not set him free at once, compels the
always safe to follow the terms of the prosecution to begin de novo with infinitely
statute. They are relieved of many chances less hope of success than at first, when the
of error by the statutes of jeofails, usually matter was fresh, the witnesses all well in
broad, sweeping, and indulgent in the highest hand, and all the circumstances were favor- | degree; and yet hardly a week passes in able to conviction? Of course, everybody
which we do not hear of an important case in looks to the legislature. The law, they say,
which an indictment is quashed. The inmust be simplified; these cast-iron rules genuity of the counsel for the defense finds. must be abrogated; common
a well nor sense must
a flaw, a fissure, “not as deep as supercede technicality. If, however, we will
as wide as a church door, but it will serve ;'* look into the criminal codes of most of the it suffices to compel the quashing of the in
dictment. Then the case must needs "go gone very far in that direction. The Mis over” to next term, and the prosecution besouri statute, for example, condones almost
gins de novo, and in the interim witnesses every conceivable blunder which a court or a
die, or are spirited away, and papers disapprosecuting attorney could reasonably be ex
pear, and, in short, the prosecution fails.. pected to commit. The legislature, of course,
And the strangest thing of all is that, in the: should do its share, examine carefully the
profession and out of it, a failure of justiceexisting law, and apply appropriate remedies
from this cause is regarded as a visitation of to such defects as they may discover, taking Providence, an act of God, in the nature of a.
tornado. an earthquake or a tidal wave. In
ante-railroad times, the tolerant newspapers, 1 Rev. Stat. (1879) $ 1821. Vol. 23—No. 23.
of that generation had a stereotyped phrase,
States, we will find that they have already
brought into use whenever they chronicled the upsetting of a mail-coach: "No blame is attached to the driver."
NOTES OF RECENT DECISIONS.
CHATTEL MORTGAGE-LANDLORD AND TENANT-LANDLORD'S LIEN UNDER LEASE-VolUNTARY ASSIGNMENT RightS OF ASSIGNEEFRAUD.-In a recent case in the New York Court of Appeals the court held that a lien for rent, created by lease of a store, for a term of five years upon the stock in trade, of the lessee, which he was permitted by the terms of the instrument to sell at retail and replenish from time to time, was fraudulent and void upon its face, and was of no effect as against the assignee of the lessee, who had made a general assignment, for the benefit of his creditors, with preferences however, which would absorb the whole of the proceeds of the stock in trade.
The court said that the lien was good as between the parties to the lease, not only as to the property in the possession of the lessee at the time of the execution of the instrument, but also as to subsequently acquired property. The court seems to concede that, in the absence of statute, the assignee in a voluntary assignment had no higher or hetter rights than his assignor, but that when, as in this case, he represents creditors he may well treat as void all agreements . made in fraud of their rights, and that his powers in this respect are, under the New York statute, even greater than those of the creditor himself who can only proceed against his debtor's property, covered by a fraudulent lien, after he has obtained a judgment and issued an execution.”
The court further held, that although the lease did not purport to convey the title to the property, it was, nevertheless, a chattel mortgage, and as such subject to the statutory provision for the filing of such instruments. And thus the attempt of the lessor to establish a secret trust in the goods in favor of the lessor was defeated.
1 Reynolds v. Ellis, October 5, 1886; 7 East. Rep. 342.
2 McCaffray v. Woodin, 65 N. Y. 459; 8. C., 22 Am. Rep. 644; Wisner v. Ocumpaugh, 71 N. Y. 113.
3 Southard v. Benner, 72 N. Y. 424.
In some of the States there have been different rulings. In Rhode Island, for example,* it has been held that an unrecorded mortgage of personalty was good against an assignee for the benefit of creditors, because the assignee could have no better right than the assignor, and the mortgage was good between the parties who executed it. In Kentucky, in a recent case, the Court of Appeals says, that an assignee for the benefit of creditors generally “is a purchaser for value; that he stands in the shoes of the debtor his assigpor, and assert
equity that the debtor himself could not assert.” The Supreme Court of Nebraska has held that, in case of a voluntary assignment for the benefit of creditors, the assignee represents the assignor and can make no defense that his assignor could not make. And in Missouri, it is held that the assignee, under a voluntary assignment, does not represent the creditors, and cannot on their behalf dispute a conveyance of his assignor's goods inter partes as being in fraud of creditors." So in Pennsylvania, in an old case, it is said: “The assignee is the debtor's instrument for distribution.
As he stands in no privity to the creditors, he cannot arrogate to himself
any of their powers or rights.” A manifest distinction exists, and should be borne in mind, between a voluntary assignment, and one made under the operation of a bankrupt or insolvency law. In the first the assignee is the creature of the assignor ; in the latter he is the officer of the law. To the first the reasoning of the foregoing rulings very clearly apply; to the latter they are wholly inappliable. The assignee in a voluntary assignment executes the orders of the assignor as expressed in the assignment; the statutory assignee is the trustee of the law, and acts for the creditors in accordance with the provisions of the statute.
The distinction between these two classes
4 Wilson v. Esten, 14 R. I, 621; Williams v. Winsor, 12 R. I. 9; Gardner v. Commercial Nat. Bank, 13 R. I. 155.
5 Bridgford v. Barbour, 80 Ky. 529, 534, 533.
6 Hensel v. Cremer, 13 Neb. 298. See also Pillsberry v. Kingon, 31 N. J. Eq. 619.
? Heinrich v. Wood, 7 Mo. App. 236; Schultz v. Chrisman, 6 Mo. App. 338; State use, etc. v. Rowse, 49 Mo. 593; Gates v. Labaume, 19 Mo. 17.
8 Vandyke v. Christ, 7 Watts & S. 374.
of assignees is obliterated in New York by the act of 1858, ch. 314, which provides: $ 1. “That any executor,
assignee, or other trustee of an estate, or the property and effects of an insolvent estate may, for the benefit of creditors, disaffirm, treat as void, and resist all acts done, transfers and agreements made in fraud of the rights of any creditor,'' etc. This statute, according to the ruling in the case under consideration, abrogates the distinction between the voluntary and the statutory assignee, divests the former of his character as agent and instrument of his assignor, makes him the trustee for the creditors, and confers upon him all the powers exercised by an assignee in bankruptcy, or one who holds that office under the insolvent laws of a State.
an old case, where the college of physicians were incorporated by the name of the president, college or commonalty of the faculty of physic, and afterward in the king's patent it was granted that the president of the college should sue and be sued in behalf of the college, it was held that an action could be brought in either name. But this case is somewhat shaken by two others, in which it is declared that a corporation may not have two names for the same purpose. In view, however, of the absolute power of the legislature, it is undoubtedly competent for it to authorize corporations to have two or more names for the same purpose.?
May Acquire More Than One Name by Usage.--So a corporation may acquire a second or other names by prescription or usage.8 Thus, one court said: “We know not why a corporation may not be known in its public proceedings by several names, as well as individuals."9 And this is true of a municipal corporation. 10
Who Bestows the Name.—Until recently the king in England, in granting his patent, usually designated the name by which the corporation was to be known, or else the reci. tations in it were such as to indicate what it should be known by ;11 and the same was true of charters granted by parliament. 12 And in this country it is said that the recitation in the act of incorporation may be such as to indicate the name by which the corporation shall be known.18 Under the municipal corporations act of England, provisions are made for the name of a city or borough, and the style in which it shall sue and be sued ; and such a borough is now known as the
NAMES OF CORPORATIONS.
Must Have Name. It is somewhat difficult for one to think of a corporation without a name, and one author has said: “The names of corporations are given of necessity; for the name is, as it were, the very being of the constitution; for though it is the will of the king that erects them, yet the name is the knot of their combination, without which they could not perform their corporate acts; for it is nobody to plead and be impleaded, to take and give, until it hath gotten a name.' Coke likens its name to an individual's proper or baptismal name, and when bestowed by a private founder he compares him to a god-father. This is not strictly correct, for a change of a letter in a name may make it entirely another name, while à change of a word, or even more, may not make any essential difference in their sense, as we shall bereafter see.
May Have More Than One Name.-A corporation may have more than one name. Thus, though incorporated by one name it may be authorized to sue in another. So in
5 College of Physicians v. Salmon, 5 Mod. 327; 2 Salk, 451; Ld. Raym. 630.
6 Anon., 3 Salk. 102; Attorney-General v. Farnham, Hardres, 504.
71 Kyd. Cor. 230.
8 Willcock on Mun. Cor., 34; Mayor of Carlisle v. Blamire, 8 East. 487; Gifford v. Rockett, 121 Mass. 431; 8. C., 7 Amer. Cor. Cas. 462. 9 Minot v.
Curtis, 7 Mass. 441. 10 Clement v. City of Lathrop, 5 Amer. Eng. Cor. Cas. 563. See generally, Dutch West India Co. v. Moses, 1 Stra. 614; Knight v. Mayor of Wells, 1 Ld. Raym. 80; Smith v. Plank Road Co., 30 Ala. 650; South District v. Blakeslee, 13 Conn. 227; Melledge v. Boston Iron Co., 5 Cush. 158.
11 2 Bac. Abr., 441, citing 1 Salk. 191, p. 3.
12 Glover Cor. 52, 53; Willcox Cor. 35; Grant Cor. 50.
13 Trustees v. Park, 1 Fairf. (Me.) 441; School Com. v. Dean, 2 Stew. & Port. 190.
1 2 Bac. Abr. 440 (Amer. ed.); see Smith's Merc. Laws, 133.
2 10 Co. 28; 2 Inst. 666.
3 Newport Mechanics Manf. Co. v. Starbird, 10 N. H. 123.
4 College of Physicians and Butler, Jones 261; 8. C., Lit. 168, 212, 350; Cro. Car. 256.
"mayor, alderman and burgesses of the taxes due from it in its old name ;19 for it borough of ,” and a city as the “mayor, does not create a new corporation.20 And alderman, and citizens of the city of
this is true even of a city. In an old case Failure to Name.--If the incorporating act it was said, where the new charter alters the or instrument should contain an omission to constitution of the corporation and redesignate the name of the corporation, and models it, it loses its name; but if the conthe name cannot be gathered from the con- stitution in all its intregal parts remain tents of the act or instrument, no doubt, at this the same, though the new charter give them present age, the corporation might acquire a new name, the old one remains.
And an one by usage.15 And it seems reasonable, in illustration is given, as if a mayor be added, such an instance, that the corporators or di- or a mayor and masters be made mayor and rectors should have the power to bestow a alderman, or an abbot and a convent a dean name upon the corporation, the same as an and chapter, in which instances they lose their individual may take upon himself a name old name, because new intregal parts of the and be liable thereby in a suit against him.
corporation are added. “But if the bailiff A case not far from supporting this proposi
and burgesses Villae de Gippo accept a tion arose in Indiana. A city under a special
charter constituting them bailiff and burcharter bore a certain name. A general law for
gesses Villae Gipwiki, and giving them the incorporation of cities was enacted with a
farther privileges, this is a new name only, provision that no city then incorporated
for the old corporation remains in its inteshould be bound by it unless it accepted its
gral parts."?? And of a corporation it was provisions. In this general act there was no
judicially said, that “though the name and provision designating the name of a city style of the corporation and the mode of incorporated under it, by which it should be
electing members were changed, the identity known. A city having accepted the pro
of the body itself was not affected.” 23 vision of the general act, it was held that it
Same Continued.—If the name of a corpowas authorized to retain its old corporate
ration is changed, all new suits on its old name, and such the court would presume it
obligations must be brought in its new did. 16
name ;24 and it is essential to allege the Change of Name and Effect. The name of a corporation may by changed, usually with
Passmore, 3 T. R. 119. 247; Colchester v. Brooke, 7 Q. the consent of the corporators, and if the B. 383; Colchester v. Seaber, 3 Burr. 1866; Bellows v.
Bank, etc., 2 Mason, 43; Olney v. Harvey, 50 III. 453; identity and ancient rights of the corporation
Neely v. Yorkville, 10 S. C. 141; Heckel v. Sandford, are preserved the change can in nowise ef
40 N. J. L. 180. fect it, either in its liabilities, duties or pro- 19 Macon & Augusta R. R. v. Goldsmith, 62 Ga. 463; perty.17 Such a change does not relieve it
s. C., 7 Amer. Cor. Cas., 16. It is to be remarked that
a corporation has no right or power of itself to change from its liabilities, 18 even to the paying of the
or alter the name originally selected by it without recourse to such formal proceedings as are prescrlbed
by law. Goodyear Rubber Co. v. Goodyear Rubber 14 Attorney-General v. Corporation of Worcester, 2 Mfg. Co., 8 Amer. & Eng. Cor. Cas., 317; Regina v. Phillips, 3; Corporation of Rochester v. Lee, 15 Sim.
Registrar, etc., 10 Q. B. 839; Episcopal, etc. v. Episco376; Grant on Cor. 342; Rawlinson on Cor. 3; 1 Dill pal Church, 1 Pick. 372. Municipal Cor. $ 35 and note, $ 176.
20 Town of Reading v. Wedder, 66 III, 80; s. C., 4 15 Smith v. Plank Road, 30 Ala. 650; Anonymous, 1 Am. Cor. Cas. 371; Morris v. St. Paul & Chicago R. R. Salk. 191; Pitts v.James, Hob. 124; Gifford v. Rockett, Co., 19 Minn. 528; s. C., 4 Amer. Cor. Cas. 501; Trus. 121 Mass. 431; s. C., 7 Amer. Cor. Cas. 462; Ayray's tees of University v. Moody, 62 Ala. 89; s. C., 6 Amer. Case, 11 Co. 19; 2 Kent Com. 292.
Cor. Cas. 190. 16 Johnson v. Common Council of Indianapolis, 16 21 State v. Mayor, 24 Ala. 706; Ready v. Mavor, Ind. 227.
Ala. 339; Broughton v. Pensacola, 93 U. S. 266. 17 Rosenthal v. Madison, etc. R. R. Co., 10 Ind. 358; 22 2 Bac. Abr. 441, citing Regina v. Bailiffs, etc., of President, etc. V. Jackson, 7 Blacks. 36; Eaton & Ipswick, 2 Ld. Raym. 1239; 8. C., 2 Salk. 433; see Hamilton R. R. Co. v. Hunt, 20 Ind. 457; Episcopal Knight v. Mayor, etc. of Wells, 1 Ld. Raym. 80; S. C., Charitable Society v. Episcopal Church, 1 Pick. 372. Lutw, 508.
18 Hazelett v. Butler University, 84 Ind. 230; s. C., 23 Doe, etc. v. Norton, 11 M. & W. 913, 928; see Cor. 9 Amer. Cor. Cas. 252; Dean v. La Motte Lead Co., 59 poration of Ludlow v. Tyler, 7 Cor. & P. 537; AttorMo. 523; s. C., 8 Amer. Cor. Cas. 138; Bucksport & ney-General v. Wilson, 9 Sim. 30; Attorney-General v. Bangor R. R. Co. v. Buck, 68 Me. 81; 8. C., 7 Amer. Kerr, 2 Beav. 420; Attorney-General v. Corporation Cor. Cas., 318; 4 Co., 876.; Girard v. Philadelphia, 7 of Leicester, 9 Beav. 546. Wall. 1; Regina v. Bewdley, 1 P. Wms. 207; Rex v 24 Mayor of Colchester v. Seaber, 3 Burr. 1866; 5
tory act. 28
identity of the corporation as known by its hibiting the impairing of the obligation of a two names. 25 If, however, the courts are contract. bound to take judicial knowledge of the Protected in Use of Name.—And this leads name of the corporation both before and up to the statement that, under the proper after the change, the allegation of identity circumstances, a corporation will be protected would be unnecessary. The mere change of in its use of its name, the same as a firm or name by the legislature while suit is pending individual who has acquired a property right does not abate the suit,26 and there is no in a name or mark will be protected as against reason why a change made under like con- one unauthorizedly using it. The long user dition by the corporators should be good of a name may render it a valuable acquisicause for an abatement. So where the name tion. Notably in this country is that of cerof a corporation was changed pending suit, tain railroads where, by advertising and and judgment was taken in the old name, it usage, they have so fixed the name in the was held too late to then object that the title minds of the traveling and shipping public as of the case was not changed to correspond to bring to them, to the exclusion of as with the new name. 27 The name of a corpo- equally good and competing lines, thousands ration having been changed by an amenda- of dollars a year.80 If the plaintiff has a tory act requiring acceptance by the corpo- remedy at law, however, an injunction will rators before it would be binding, and the
not lie. 31
Neither can an individual corporacorporation having brought suit after its tor maintain an action to enjoin the unauthorpassage by its old name, it was held not nec
Another phase of this quesessary for the corporation to allege and show
tion is well stated in the following quotation : that its corporation had rejected the amenda
" There is no reason why a corporation may
not acquire a property right to the use of anConstitutionality of Act Changing Name.- other name or a trade-mark, or as incidental Where the constitution of a State provided to the good-will of a business, as well as an that the legislature should not pass any law
individual; and if it has acquired such a granting any “private charter or special right it will of course be protected in its privileges," and the legislature passed an act enjoyment, to the same extent as an individual changing the name of a particular corpora
would be. It cannot be deprived of the right tion, it was held a valid act and not within the
by the assumption of the name subsequently prohibition of the constitution.29 But unless
by another corporation, and it is immaterial the right is reserved in its charter, or by a
whether the latter selects its name by the act general law before its incorporation, the legis
of corporators who organize under the general lature would have no power to arbitrarily
laws of a State, or whether the name is se
lected for it in a special act by the legislative change the name of a corporation; for often
body. Manifestly, if the defendant had no the name alone is a valuable franchise, and to
right to use the name by which the complainso change that name would be in direct con
ant was incorporated, or one practically idenflict with the clause of the constitution pro
tical with it at the time of the latter's incorporation, the title of the complainant is clear,
because it adopted the name formally, pubDane Abr. 181; Scarborough v. Butler, 3 Lev. 237; Simapee v. Eastman, 32 N. H. 470; Colton v. Missis- licly and legitimately, for all its corporate sippi, etc. Co., 22 Minn. 372; s. C., 7 Amer. Cor. Cas. purposes. But the United States courts 603; see Pope v. Capital Bank, 20 Kan. 440; 8. C., 7
have no power to restrain a State officer, simAmer. Cor. Cas. 130.
25 West v. Carolina Life Ins. Co., 31 Ark. 478; S. C., ply because certain persons are taking the 6 Amer. Cor. Cas. 190; Rosenthal v. Madison, etc. Plank Road Co., 10 Ind. 358; Cahill v. Briggs, 8 B. Mon. 211; Ready v. Tuskaloosa, 6 Ala. 327; Madison 30 Newby v. Oregon, etc. R. R. Co., Deady. 609; Ex College v. Burke, 6 Ala. 494.
parte Walker, 1 Tenn. Ch. 97; Holmes v. Holmes, 28 Thomas v. Frederick School, 7 Gill. & J. 369.
etc. Manf. Co., 37 Conn. 278. 27 Water Lot Co. v. Bank of Brunswick, 53 Ga. 30; 81 London, etc. Soc. v. London, ctc. Ins. Co., 11 Jur. Talbott v. Hale, 72 Ind. 1.
938. 23 Beene v. Cobawba R., 3 Ala. 660.
82 Newby v. Oregon, etc. R. R. Co., Deady, 609. 29 Wells Fargo & Co. v. Oregon Ry. & Nav. Co., 16
33 Goodyear Rubber Co. v. Goodyear's Rubber MigAmer. & Eng. Cor. Cas. 71.
Co., 8 Amer. & Eng. Cor. Cas. 317.