CHAPTER VIII.

CORPORATE NAME, BOUNDARIES, AND SEAL.

§ 175 (117). Name by Grant, by Implication, and by Prescription; Power to change. Every corporation must have a name. This is essential to distinguish it from other corporations. In England, before the Municipal Corporations Act of 5 and 6 Will. IV. ch. lxxvi., 1835,1 such corporations obtained their name by having it expressed in their charter (whether royal or parliamentary), or by usage or by implication.2 If a particular name be given to a corporation in its charter, the corporation can no more change it at its pleasure than a man can at pleasure change his baptismal name. If no name be given to a corporation by its charter or by statute, it may obtain one by implication. Where a corporation exists by prescription, it may have more than one name, but the names, to be recognized as valid, must be prescriptive, and cannot be acquired by usage within the time of memory. It has been decided, in England, that a corporation may have one name by prescription and another by grant; but it is said that the same corporation cannot, at the same time, have two different names by different grants, for the name in the last grant will take the place of the other.3

§ 176 (118). Name under English Municipal Corporations Act. -But the English Municipal Corporations Act, just mentioned, which changed the corporate constitution of the cities, towns, and boroughs of England and Wales, and reduced them to a uniform model, made this provision as to the name of the corporation, under the new act: "Said body, or reputed body, corporate shall take and bear the name of the mayor, aldermen, and burgesses of such borough, and by that name shall have perpetual succession, and shall be capable, in law, by the council hereinafter mentioned of such borough, to do and suffer all acts which now lawfully they and

1 Ante, sec. 36, and note.

2 Glover, 52, 53; Wille. 35; Grant, 50; ante, sec. 42. As to usage, see ante, chap. V. sec. 92.

3 Knight v. Wells, 1 Ld. Raym. 80; Physicians v. Salmon, 3 Salk. 102; Com. Dig. Franch. F. 9; per Holt, 1 Salk. 191;

1 Str. 614; Smith v. Tal. Pl. R. Co., 30 Ala. 650 (1857). See also, All Saints Church v. Lovett, 1 Hall (N. Y.), 191; Manufacturing Co. v. Davis, 14 Johns. 238; Middlesex, &c. v. Davis, 3 Met. 133; Trustees v. Peaslee, 15 N. H. 317; Society, &c. v. Young, 2 N. H. 310.

their successors may do and suffer, by any name or title of incorporation, so far as not altered or annulled by the provisions of this act." It is settled by the decisions under this act that the true or proper corporate name for boroughs mentioned in it is "mayor, aldermen, and burgesses of the borough of," and (under the interpretation clause, sec. 142 of the act) for cities, "mayor, aldermen, and citizens of the city of."2 It may also be here observed that the courts have determined that, though this act changed the name and made new and important alterations in the constitution of the corporations, yet that its effect was not in any case to create a new corporation, but to continue the old, with all its rights, privileges, and franchises, except so far as inconsistent with the provisions of the act. But the name mentioned in the act would doubtless govern, and by that they would have to sue and be sued.

are

§ 177 (119). Name under Charter or Legislative Act in this country. — Municipal Charters granted by legislative enactment in this country almost invariably prescribe the name of the corporate body thus: "The inhabitants of the city or town of hereby constituted a body politic and corporate, by the name and style of 'city of or town of "" 4 So the general municipal incorporation acts usually contain a provision to the effect that "cities and towns organized or to be organized thereunder are declared to be bodies politic and corporate, under the name and style of the city of or town of

1 5 and 6 Will. IV. chap. lxxvi., sec. 6; ante, sec. 35, and note. By the Consolidated Municipal Corporations Act of 1882, sec. 8, it is provided that "the Municipal Corporation of a borough shall bear the name of the mayor, aldermen, and burgesses of the borough, or in the case of a city, the mayor, aldermen, and citizens of the city."

2 Attorney-General v. Corporation of Worcester, 2 Phillips, 3; Corporation of Rochester v. Lee, 15 Sim. 376; Grant, 342; Rawlinson, 13.

3 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, &c. v. Norton, 11 M. & W. 913, 928. Parke, B., there said, "Though the name and style of the corporation, and the mode

as the case may be," &c.

of electing members were changed, the identity of the body itself was not affected.” Ante, chap. vii. secs. 171, 176.

4 Ante, sec. 39. Harrison, Munic. Manual, 4th ed. 11.

The proper corporate name of a municipal corporation ought always to be used. But it has been decided in Canada that a by-law of a municipal council is valid if it appear on the face of it to have been enacted by a municipal body having authority to make the by-law under the municipal laws. Flewellyn v. Webster, 6 U. C. Q. B. 586; Hawkins v. Huron, Perth and Bruce, in re, 2 Upper Can. C. P. 72; Fisher v. Vaughan, 10 Upper Can. Q. B. 492; Barclay and Darlington, In re, 11 Upper Can. Q. B. 470; Brophy and Gananoque, 26 Upper Can. C. P. 290; see also Gwynne v. Rees, 2 Upper Can. P. R. 282.

Where such an act authorized any existing town or city to adopt its provisions in place of its special charter, and was silent as to the corporate name after the change was made, it was held that the former name was retained.1

Where § 178 (120). Change of Name; Name by Reputation. a name is given to a municipal corporation by charter or statute, this cannot be changed by the act of the corporation.2 But in this country, general statutes are not unfrequent, authorizing the creation of quasi corporations, without making it necessary to designate the name by which a particular district shall be called; in such case it may acquire a name by reputation, and sue and be sued by such name.3

§ 179 (121). Misnomer and Effect thereof. · A misnomer, or variation from the precise name of the corporation, in a grant or obligation by or to it, is not material, if the identity of the corporation is unmistakable, either from the face of the instrument or from the averments and proof.1

§ 180 (122). Same subject. Where the intention of the testator is clear, a mistake in the name or description of the object of his bounty will not make the devise void. This general principle is applicable to all corporations, private and public. But the intention must be so clear as to remove all reasonable doubt as to the corporation meant. This rule may be illustrated by a few examples. Thus, a devise to a college by its common name, though not the true corporate name, is good. So where the devisees were called by their popular name, "The South Parish in Sutton," their legal name being "The First Parish in Sutton," the devise was sustained.2 So, also, the "Mayor, Jurats, and Commonalty of the Town of Rye," that being the corporate name, were held entitled to lands by a devise to "The Right Worshipful the Mayor, Jurats, and Town Council of the Town of Rye," although there was no town council in the town, and although the court admitted the proposition of counsel against the will, that if the "intent appears to give to a part of the corporation, although that intent fails of effect, the whole corporation cannot take." So, also, a devise to the Mayor, Chamberlain, and Governors, is valid to a corporation whose true name is Mayor, Citizens, and Commonalty. So, a legacy may be given tion. Sams v. Toronto, 9 Upper Can. Q. B. 181; Harrison, Munic. Manual, 4th ed. 11.

"The general rule to be collected from the cases is," says Chancellor Kent, "that a variation from the precise name of the corporation, when the true name is necessarily to be collected from the instrument, or is shown by proper averments, will not invalidate a grant by or to a corporation, or a contract with it, and the modern cases show an increased liberality on this subject." 2 Kent Com. 292; approved, St. Louis Hospital v. Williams, Administrator, 19 Mo. 609 (1854). "We adopt the more reasonable rule laid down by Mr. Kyd (Corp. Vol. I. pp. 286, 288), that the variance must be materially different in substance, to injure." Per Curiam, People v. Runkle, 9 Johns. 147, 157.

"I take the law of the present day to be, that a departure from the strict style of the corporation will not avoid its contracts, if it substantially appear that the particular corporation was intended, and that a latent ambiguity may, under proper averments, be explained by parol evidence in this as in other cases, to show the intention." Per Gibson, J., in President,

&c. v. Myers, 6 Serg. & Rawle, 12; s. P. Milford, &c. Co. v. Brush, 10 Ohio, 111.

When an act of parliament makes a grant to a corporation, it takes effect though the true corporate name be not used, provided the corporation intended be sufficiently identified or described. 1 Kyd, 256; Chancellor of Oxford's Case, 10 Co. 44, 57b.

1 Chancellor of Oxford's Case, 10 Co. 87b.

2 First Parish in Sutton v. Cole, 3 Pick. 232 (1825), and cases there cited.

8 Attorney-General v. Mayor of Rye, 7 Taunton, 546; 2 Eng. Com. Law, 213 (1817).

4 Owen, 35 (14 Eliz.). "The devise held good by Dyer, Weston, and Manwood, for it shall be taken according to the intent of the devisor." See also Counden v. Clerke, Hobart, 32; Croydon Hospital v. Farley, 6 Taunton, 467; 1 Eng. Com. Law, 457 (1816), where Gibbs, C. J., justly condemns the absurd nicety of many of the decisions from the reign of Edward VI. to the end of James I., on the subject of the names and description of corporate bodies.

or a devise made to a corporation either by its corporate name or by a description which clearly distinguishes and identifies the legatee.1

§ 181 (123). Corporate Name in Suits. Where the name of the corporation is expressly defined by charter or statute, it is usually provided in terms that by such name it may sue and be sued. In such case the true corporate name should be used both in suits by and against the corporation. A name in a grant or obligation to or by a corporation may be sufficient to enable the corporation to enjoy or to make it liable, which would not be sufficient in an action by or against it. If the name of a corporation is lawfully changed, not the identity of the corporation itself, suit should, in general, unless provision be otherwise made, be in the new name.3 If a note, bond, or other promise be made to a corporation by a name differing from the corporate name, the corporation may sue in its true name, and allege that it is the party to whom the promise or obligation was made.

§ 182 (124). Corporate Boundaries must be definite. Since the leading object of an American municipal corporation is to invest

1 New York Institute v. How, 10 N. Y. (6 Seld.) 84 (1854). In this case the plaintiff, whose corporate name was "The New York Institution for the Blind," was decided to be entitled to a legacy given to the "Trustees of the Institution for the Maintenance and Instruction of the Indigent Blind," there being no other institution in the city of New York for the blind. See also Vansant v. Roberts, 3 Md. 119; Preachers' Aid Society, 45 Me. 552; Chapin v. School District, &c., 35 N. H. 445; Minot v. Boston Asylum, 7 Met. 416. Parol evidence may, in proper cases, be received to identify the corporation intended. Trustees v. Peaslee, 15 N. H. 317; Bodman v. American Tract Society, 9 Allen, 447.

2 Cambridge University v. Crofts, 10 Mod. 208; 1 Kyd, 253; Wille. 37; Brittan r. Newland, 2 Dev. & Bat. (N. C.) 363; Insane Asylum v. Higgins, 15 Ill. 185; Berks Co., &c. v. Myers, 6 Serg. & Rawle (Pa.), 12; Clarke v. Potter Co., 1 Barr (Pa.), 163; Porter v. Blakely, 1 Root (Conn.), 440; Kentucky Seminary v. Wallace, 15 B. Mon. 35; Romeo v. Chap

man,

2 Mich. 179; County Court v. Griswold, 58 Mo. 175 (1874); Carder v.

Comm'rs, 16 Ohio St. 353; Trustees v.
Campbell, 16 Ohio St. 11.

3 Colchester
v. Seaber, 3 Burr.
1866; Regina v. Ipswich, 2 Ld. Raym.
1232, 1238; Angell & Ames, sec. 644;
Glover, 63.
Mr. Kyd says:
"Where a
corporation becomes liable to any duty,
and then its name is changed, the writ
brought against it should be in the new
name. 1 Corp. 288. On a merger, by
statute, of a town into a city corporation, it
was provided that all of the books, papers,
moneys, and effects of the former should
vest in the latter. Held, that a suit on a
bond made to a town before the transfer
could not afterwards be instituted in the
name of the town, but should be brought
in the corporate name of the city. Fort
Wayne v. Jackson, 7 Blackf. (Ind.) 36
(1843).

410 Co. 125 b; 1 Kyd, 287; African Society v. Varick, 13 Johns. 38 (1816); Trustees v. Reneau, 2 Swan (Tenn.), 94 (1852); Fort Wayne v. Jackson, 7 Blackf. (Ind.) 36 (1843). An allegation that the defendants acknowledged themselves to be bound unto the plaintiffs, by the descrip tion, &c., is equivalent to such an aver ment. 13 Johns. 38, supra.