porated body, but in substance to the inhabitants of the incorporated territory.' In this view the power or the contract obligation and duty of its exercise survives the repeal of the charter and the dissolution of the old corporation, and passes, equally with the obligation to pay the debt, to the inhabitants who continue to reside, under any form of organization, within the municipal area in behalf of which the debt was created; the exercise of which power and consequent duty may be compelled by the judicial process of mandamus whenever there are officers in existence who, under the general legislation of the State, have the power to levy and collect

taxes.

It is usual, however, for the legislature, on the change or division of municipal and public corporations, to make provision concerning existing indebtedness; and its power to do so, unless restrained by special constitutional provision, is clear and ample.2

§ 340 (174). Revival by New Charter and its Effect. It is the doctrine of the English courts that where the functions of an old corporation are suspended, or where the corporation, by loss of all its members or of an integral part, is dissolved as to certain purposes, it may be revived by a new charter, and the rights of the old corporation be granted over to the same, or a new set of corporators, who in such case take all the rights and are subject to all the liabilities of the old corporation, of which it is but a continuation.3

1 Ante, §§ 4, 112, 113, 336-338, and cases as to the nature of incorporated municipalities.

2 Ante, chap. iv.; post, §§ 355, 358, 359, 360; ante, §§ 336 and notes, 338, 339. When two municipal corporations (St. Anthony and Old Minneapolis) were merged, by legislative act, into a new corporation, it was held that the new corporation, by force of provisions in the act, was liable for a tort, for which one of the constituent corporations would have been responsible if the merger had not taken place. Adams v. Minneapolis, 20 Minn. 484.

Rex v. Pasmore, 3 Term R. 119, 247; Regina v. Bewdley, 1 P. Wms. 207; Colchester v. Brooke, 7 Queen's Bench, 383; Colchester v. Seaber, 3 Burr. 1866; Grant on Corporations, 304 and note; 2 Kyd, 516. Whether a statute or legislative charter will operate to revive or continue an old, or to

create a new and distinct corporation, depends upon the intention of the legislature. Ante, chap. vii.; Bellows v. Hallowell Bank, &c., 2 Mason C. C. 43, per Story, J.; Angell & Ames, § 780; Grant on Corporations, 304, 305; Hoffman v. Van Nostrand, 42 Barb. (N. Y.), 174; Girard v. Philadelphia, 7 Wall. (U. S.) 1; Olney v. Harvey, 50 Ill. 453; supra, §§ 336, 337, 338, 339; post, §§ 346, 347; Neely v. Yorkville, 10 S. Car. 141. Approving text, as to whom the revenue is to be paid on the dissolution of a corporation in New Jersey. See Heckel v. Sandford, 40 N. J. L. 180. The late civil war did not suspend the right to the exercise of the franchises of an incorporated town within the lines of the insurrectionary forces, and it might still make valid contracts, notwithstanding it was under the control of the insurgent power. Selma v. Mullen, 46 Ala. 411.

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$ 345 (175). 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. chap. xvi., 1835,' such corporations obtained their name by having it expressed in their charter (whether royal or parliamentary), or by usage or by implication. 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

1 Ante, § 54 and note.

2 Glover, 52, 53; Willc. 35; Grant, 50; ante, § 64. As to usage, see ante, chap. vii. $240.

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. See also All Saints Church v. Lovett, 1 Hall (N. Y.), 191; Manufacturing Co. v. Davis, 14 Johns. (N. Y.) 238; Middlesex, &c. v

§ 346 (176). 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 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, § 142 of the act) for cities, "mayor, aldermen, and citizens of the city of." 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.

§ 347 (177). 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 are hereby constituted a body politic and corporate, by the name and style of

Davis, 3 Met. (Mass.) 133; South Newmarket Meth. Seminary v. Peaslee, 15 N. H. 317; Society, &c. v. Young, 2 N. H. 310.

1 5 and 6 Will. IV. chap. lxxvi. § 6; ante, § 53 and note. By the Consolidated Municipal Corporations Act of 1882, 88, 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.'

Attorney-General v. Corporation of Worcester, 2 Phillips, 3; Corpora

tion 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; AttorneyGeneral 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 of electing members were changed, the identity of the body itself was not affected." Ante, chap. ix. §§ 337, 346.

'city of' or 'town of 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 as the case may be," &c. 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.

§ 348 (148). Change of Name; Name by Reputation. Where a name is given to a municipal corporation by charter or statute, this cannot be changed by the act of the corporation. 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.*

§ 349 (179). 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."

$ 350 (180). 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 must 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

Kentucky, 1 Mon. (Ky.) 177; Medway Cotton Manufacturing Co. v. Adams, 10 Mass. 360; People v. Love, 19 Cal. 676; African Society v. Varick, 13 Johns. (N. Y.) 38; Woolrich v. Forrest, 1 Pa. 115; Bower v. State Bank, 5 Ark. 234; Pierce v. Somerworth, 10 N. H. 369; Pittsburgh v. Craft, 1 Pitts. (Pa.) 158; Douglas v. Branch Bank, &c., 19 Ala. 659. Slight variances in the use of corporate names, where substantially correct, have been held immaterial even in matters of contract. Brock District v. Bowen, 7 Upper Can. Q. B. 471; Trent and Frankford Road Co. v. Marshall, 10 Upper Can. C. P. 336; Whitby v. Harrison, 18 Upper Can. Q. B. 603; Bruce County v. Cromar, 22 Upper Can. Q. B. 321. See also Mayor and Burgesses of Lynne Regis, 10 Coke Rep. 120, 122; Mayor of Carlisle v. Blamire, 8 East, 487; King v. Croke, Cowp. 29; Beverley Tp. v. Barlow, 10 Upper Can. C. P. 178; Goodwin and Ottawa and Prescott R. Co., In re, 13 Upper Can. C. P. 254. It was, however, held differently as to the entitling of a rule in a proceeding against a municipal corporation. Sams v. Toronto, 9 Upper Can. Q. B. 181; Biggar, Municipal Manual (Canada, 1900), 37.

"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, 19 Mo. 609. "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. (N. Y.) 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 Berks. & D. Turnpike Road v. Myers, 6 Serg. & Rawle (Pa.), 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. 87 b.

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

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