quent claim by its creditor. We do not enter into this question here, but whatever view may be taken as to the right to attach a debt owing by a foreign corporation to a non-resident, by service of notice on an agent of the corporation within the jurisdiction, we think, in respect to corporate stock, which is not a debt of the corporation in any proper sense, it would be contrary to principle to hold that it can be reached by such a notice. We are, therefore, of the opinion that the fundamental condition of attachment proceedings, that the res must be within the jurisdiction of the court in order to an effectual seizure, is not answered in respect to shares in a foreign corporation by the presence here of its officers, or by the fact that the corporation has property and is transacting business here, and that section 647 must be construed as applying to domestic corporations only. (See Moore v. Gennett, 2 Tenn. Ch. 375; Christmas v. Biddle, 13 Pa. St. 223; Childs v. Digby, 24 Pa. St. 26; Drake on Attachment, §§ 244, 471, 478.)

Order of general term reversed and that of special term affirmed.

Note. See, also, 1875, Moore v. Gennett, 2 Tenn. Ch. 375; 1886, Winslow v. Fletcher, 53 Conn. 390, 55 Am. Rep. 122; 1895, Reid Ice Co. v. Stephens, 62 Ill. App. 334; 1895, Ireland v. Globe M. & R. Co., 19 R. I. 180, 61 Am. St. Rep. 756, 29 L. R. A. 429; 1898, New Jersey Sheep & W. Co. v. Traders' Dep. Bank, 20 Ky. L. Rep. 565, 46 S. W. Rep. 677; 1898, Pinney v. Nevills, 86 Fed. Rep. 97. Situs of shares for administration is at the domicile of the corporation and not at that of the decedent: 1901, Murphy v. Crouse, 135 Cal. 14, 87 Am. St. R. 90, 66 Pac. 671.

Sec. 220.

(8) Seizure in equity.

ERWIN v. OLDHAM.

1834. IN THE SUPREME COURT OF TENNESSEE. 6 Yerger (14 Tenn.) 185-189.

GREEN, J. This is a bill filed by the complainant to subject stock in the Nashville Bridge Company to the payment of his debt due from defendant.

It is not pretended that there is any fraud or trust in this case to furnish a ground of equity jurisdiction, and the simple question is whether this court has power to cause stocks, credits and rights of action held by a debtor, without fraud, to be sold or converted into money, or transferred to the creditor in payment of his debt. We think it has not, and without entering into any reasoning on the subject or review of authorities, we refer, as conclusively settling the point, to the case of Donavan v. Finn, 1 Hop. 59.

Our act of assembly of 1833, ch. 11, makes ample provision upon this subject, but this bill, being filed long before the passage of that act, can not be governed by it.

Decree affirmed.

Note. Compare, 1854, Bank of St. Mary's v. St. John, 25 Ala. 566; 1866, Middletown Sav. Bank v. Jarvis, 33 Conn. 372; 1902, Ball v. Towle Mfg. Co.,. 67 O. S. 306, 93 Am. St. R. 682, 65 N. E. 1015.

TITLE V. THE BODY CORPORATE-ITS NAME.

CHAPTER 9.

THE CORPORATE NAME.1

Sec. 221. Necessity of a name.

"There ought to be a name by which it ought to be incorporated." -10 Coke's Rep., p. 29, c. 1600.

"The name of the corporation is as a name of baptism.”—21 Ed. IV, p. 56 (1482); 10 Coke's Rep., p. 28.

"It is a clear and plain rule in our law, that the name of a corporation is as a name of baptism to a natural man, and if there is any difference, I conceive that the law requires more strict certainty in the name of a corporation than in the name of any particular person; for a name is more necessary to a corporation than to another; for when an infant is born, he is presently a perfect creature before any name is given him, and the giving the name is not a matter of neces sity, but of policy for distinction, etc., but in the case of a corpora tion the name is the substance and essence of it, and it is not a body before a name be imposed upon it."-Argument of Egerton, Solici tor-General, 30 and 31 Eliz., Ley's Rep. 163 pl. 228 (1589); 6 Viner's Abr., p. *261.

"The names of corporations are given of necessity, for the name is as the very being of the constitution, and 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, and it is no body to plead and be impleaded, to take and give till it hath got a name, but natural persons can take before they come into being, and when they are in being, before they have got a name.”—Gilb. Hist. C. B. 181, 182, cap. 17; 6 Viner *262, c. 1620.

See Ang. & Ames, §§ 99-103; Beach, §§ 373-5, 864; Boone, §§ 29-32, 47, 75, 286; Clark, pp. 71-4; Cook, § 699, et seq.; Elliott, §§ 47-8; Morawetz, §§ 3537, 770, 771, 810-12; Taylor, §§ 12, 14, 137, 158-9; I Thompson, §§ 284-300; VII Thompson, §§ 8183-8202.

Sec. 222. Acquisition of a name.

SMITH v. TALLASSEE BRANCH OF CENTRAL PLANK-ROAD CO.1

1857. IN THE SUPREME COURT OF ALABAMA. 30 Ala. Rep. 650-668.

[Action by the "Tallassee Branch of the Central Plank-Road Company" against Smith upon a subscription to the stock of the Central Plank-Road Company. Plaintiff showed the organization of the latter company under its charter; also the proceedings for the establishment of the Tallassee branch, including the meeting of the stockholders for the organization thereof, the adoption of by-laws and a corporate name "The Tallassee Branch of the Central Plank-Road Company"-the election of directors, etc. Smith asked the court to charge that the charter did not give the plaintiff any corporate name, nor any authority to select one. This was refused, and defendant, Smith, excepted. The court below found for the road company and Smith appeals.]

WALKER, J.

If the plaintiff have any corporate existence, it is derived from the fourth section of the act of 30th of January, 1850, providing for the incorporation of the Central Plank-Road Company-Pamphlet Acts 1849-1850, p. 268. This act authorizes the incorporation of a company for the construction of a plank-road from Wetumpka to Gunter's Landing or some other point on the Tennessee river. So much of the fourth section as it is necessary to copy in this opinion, is in the following words: "Any individual or association may establish branch plank-roads running into and connecting with said central plank-road, which branches may be governed by the respective stockholders thereof; and said stockholders for building branches to said central plank-road may become, and hereby are incorporated under the provisions of this act."

It is contended that the bestowment of a name by the charter of a corporation is indispensable to its creation, and that the plaintiff has no corporate existence, because no name is provided in the statute. Names are necessary to the existence of corporations. It is "the very being of the constitution;" "the knot of their combination, without which they could not do their corporate acts, for it is no body to plead and be impleaded, to take and give, until it hath gotten a name. Bacon's Abr. Corporation (C). But the authorities clearly show, that although the name is usually given by the charter, it is not indispensable that it should be so given. It is said, in Wilcock on Corporations 34, that every corporation has at least one name by which it may be identified; this may be either derived from usage, or conferred upon it by the statute or charter of creation. In an anonymous case in Ist Salkeld 191, we find the following: "My Lord Coke says that a cor

1 Statement much abridged. Arguments omitted; and only that part of the opinion relating to the one point given.

52-WIL. CASES.

poration 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, 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."

Where individuals are authorized to associate themselves together, and, organizing as a corporation under a general law, give themselves a name, the existence of the corporation has been maintained.—Falconer v. Campbell, 2 McLean 195-198; see, also, Minot v. Curtis, 7 Mass. 447.

The charter provides for the establishment of branches to the Central plank-road, and so designates them in the 13th as well as the 4th section above copied. The charter also clearly contemplates the establishment of more branches than one, and thus arises the propriety of distinguishing the different branches by a variation in the names. A most appropriate mode of accomplishing the object is by reference to some noted point toward which the branch leads. Tallassee or its vicinity is one of the points had in view in the organization of this company. It is shown by the record of the proceedings of the corporation, copied into the bill of exceptions, that it has used from the commencement the name of the Tallassee Branch of the Central Plank-Road Company. This is the name which would naturally be given to it by implication from the charter, and the route of the road. Without determining the effect of implication or usage, in a where one existed without the other, we decide that the plaintiff has, by implication and usage, the name of the Tallassee Branch of the Central Plank-Road Company, and that the complaint, as amended, is in the proper name.

Affirmed.

Note. A corporate name may be acquired by user. 1877, Gifford v. Rockett, 121 Mass. 431; 1877, Alexander v. Berney, 28 N. J. Eq. 90. See, infra, p. 823, but under the statutes should be distinctive and not vague or uncertain. 1882, State v. McGrath, 75 Mo. 424; 1893, In re Nether Prov. Assn., 12 Pa. Co. Ct. 666; 1894, In re Nether Prov. Assn., 2 Pa. Dist. Rep. 702. Statutes frequently provide that a corporation shall not select a name already in use by another corporation, or so similar thereto as to lead to uncertainty or confusion. New York, Gen'l Corp. L. 1890, ch. 563, § 6; Michigan, Howell's Stat., § 4161a, C. L., § 7037. See, New Jersey Statute, 1896, ch. 185, § 8. Such provision is declaratory of the common law. Newby v. R. Co., infra, p. 819.

Many other statutory provisions exist, e. g.: "When the name assumed is that of a person or firm, there must be joined thereto some word designating the business to be carried on, followed by the word "company or corporation' -Alabama, § 1286 of Code-under penalty of partnership liability of members for failure to comply with this provision. Missouri has a similar provision, R. S. 1889, § 2496. Ohio provides that the name shall begin with "The" and end with "company," unless the organization is not for profit. R. S., § 3236. Wisconsin provides that the "name shall not contain the names of individuals in the manner in which they are ordinarily used in partnership or business names." Statutes 1889, § 1772. In Kentucky, every corporation doing business in the state is required to have its name painted in large let

ters in a conspicuous place at its principal place of business, followed by incorporated, painted in like manner. So the name, with incorporated, shall be printed upon all advertising matter. Am. Corp. Legal Man., 1899, p. 159; Stat. 1894, § 576.

Sec. 223. Rights in the corporate name.

NEWBY v. THE OREGON CENTRAL RAILWAY CO. ET AL.1

1869. IN THE U. S. CIRCUIT COURT.

Fed. Cas. 10144.

Deady's Rep. 609-620,

[Suit to enjoin the defendants from using and issuing bonds in the name of the Oregon Central Railway Company. Prior to 1867 there had existed a railroad company, duly incorporated and organized under the Oregon law, by the name of the Oregon Central Railway Company. This had proceeded to business, and had issued certain bonds of $1,000 each, two of which Newby owned. In 1867, owing to difficulties among the members, certain of the corporators of the old company seceded therefrom, and under the general corporation laws of Oregon proceeded to organize a new corporation with the same name, and to issue and put upon the market bonds of a character similar to those issued by the old company and under the same name. The defendants demurred on the ground that the legal right to the name The Oregon Central Railway Company-had not been established at law, and the facts alleged were not sufficient to constitute a 'cause of suit.]

DEADY, J. By the law of Oregon any three or more persons may incorporate themselves for the purpose of engaging in any lawful enterprise or occupation. The primary step in the formation of this legal entity is the execution and filing of articles of incorporation, which articles, among other things, must specify-"The name assumed by the corporation and by which it shall be known." (Or. Code, 658-9.)

By the execution and filing of these articles the corporate name assumed thereby and specified therein becomes exclusively appropriated. If afterwards any persons attempt to incorporate for any purpose by the same name, this would be an encroachment upon the rights of the first corporation and therefore illegal. To prevent the continuance of such a wrong upon the rights of another, equity will interfere at the suit of the injured party by injunction. The case is analogous to if not stronger than that of a piracy upon an established trade-mark. (Bell v. Locke, 8 Paige 75; Taylor v. Carpenter, II Paige 292; Partridge v. Menck, 2 Barb. Ch. 102; Wil. Eq., 402-3.) The corporate name of a corporation is a trade-mark from the necessity of the thing, and upon every consideration of private justice and 1 Statement abridged. Only part of opinion given.