ST. LOUIS, DECEMBER 3, 1886.

CURRENT EVENTS.

CRIMINAL LAW REFORM.-A newspaper article has lately attracted our attention, in which the writer, after citing a recent case in which a prosecution failed by reason of a defective indictment, is led into a train of reminiscences of numerous similar cases in which guilty defendants went "unwhipt of justice," becueuse, of what he denominates, the "technicalities of the law." No doubt like cases are constantly occurring in every part of the country, and this fact, together with the popular feeling that the administration of the law is uncertain and dilatory, fosters and keeps alive the tendency in many sections to lynch law.

The question at once arises, what is the remedy for the uncertainty of justice which grows out of the technicality of the law? How can it be so arranged that, when a prisoner has been indicted for a heinous crime, tried, convicted, and has appealed, he shall not escape, because, in the initial pleadingthe indictment-there appears a flaw that abrogates the whole proceeding, and if it does not set him free at once, compels the prosecution to begin de novo with infinitely less hope of success than at first, when the matter was fresh, the witnesses all well in hand, and all the circumstances were favorable to conviction? Of course, everybody looks to the legislature. The law, they say, must be simplified; these cast-iron rules must be abrogated; common sense must supercede technicality. If, however, we will look into the criminal codes of most of the States, we will find that they have already gone very far in that direction. The Missouri statute, for example,1 condones almost every conceivable blunder which a court or a prosecuting attorney could reasonably be expected to commit. The legislature, of course, should do its share, examine carefully the existing law, and apply appropriate remedies to such defects as they may discover, taking

1 Rev. Stat. (1879) § 1821. Vol. 23-No. 23.

leakage, do not open a larger one. Strange, as it may seem, there is a limit to safe generalization and simplification. Unexpected results sometimes confront the bold innovator. For example, the ludicrous blunderof the California codifiers, who so simplified the law on the subject of bigamy, that in that State a man lived, and, for aught we know still lives, with two lawful wives.

Although the legislature should do what it can, the true remedy for this evil, in our opinion, can only be found in greater care in the trial courts. The indictments should be carefully scrutinized as soon as they are returned by the grand jury, and, as far as possible, all technical questions should be settled in limine, and the rules of practice should be so modified as to accomplish this purpose.

The fragility of indictments is a matter for special wonder-in fact, a professional phenomenon. The gentlemen who prepare these instruments are specialists-experts; for years they are wholly addicted to practice in criminal causes. They have, as to all com

mon law crimes, the precedents of a thousand years, carefully annotated, classified, and labeled by numerous text-writers. As to offenses, created and defined by statute, they have the statute itself, and the rule that it is always safe to follow the terms of the statute. They are relieved of many chances of error by the statutes of jeofails, usually broad, sweeping, and indulgent in the highest degree; and yet hardly a week passes in which we do not hear of an important case in which an indictment is quashed. The ingenuity of the counsel for the defense finds a flaw, a fissure, "not as deep as a well nor as wide as a church door, but it will serve;"" it suffices to compel the quashing of the indictment. Then the case must needs "go over" to next term, and the prosecution begins de novo, and in the interim witnesses die, or are spirited away, and papers disappear, and, in short, the prosecution fails. And the strangest thing of all is that, in the profession and out of it, a failure of justice. from this cause is regarded as a visitation of Providence, an act of God, in the nature of a tornado. an earthquake or a tidal wave. ante-railroad times, the tolerant newspapers. of that generation had a stereotyped phrase,

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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-VOLRIGHTS OF ASSIGNEE

UNTARY ASSIGNMENT FRAUD. In a recent case in the New York Court of Appeals1 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.

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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 instru

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 assignor, and can assert no equity that the debtor himself could not assert."

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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

property. The court seems to concede that, in the absence of statute, the assignee in a voluntary assignment had no higher or better 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.3

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; s. C., 22 Am.

Rep. 644; Wisner v. Ocumpaugh, 71 N. Y. 113.

3 Southard v. Benner, 72 N. Y. 424.

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, 535.

6 Hensel v. Cremer, 13 Neb. 298. See also Pillsberry v. Kingon, 31 N. J. Eq. 619.

7 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.

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.

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."'1

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 a change of a word, or even more, may not make any essential difference in their sense,3 as we shall hereafter 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

12 Bac. Abr. 440 (Amer. ed.); see Smith's Merc. Laws, 133.

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; s. C., Lit. 168, 212, 350; Cro. Car. 256.

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.7

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May Acquire More Than One Name by Usage. So a corporation may acquire a second or other names by prescription or usage. 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 recitations in it were such as to indicate what it should be known by; 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. 1 13 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

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.

7 1 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.

"mayor, alderman and burgesses of the borough of," and a city as the "mayor, alderman, and citizens of the city of."14

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Failure to Name.-If the incorporating act or instrument should contain an omission to designate the name of the corporation, and the name cannot be gathered from the contents of the act or instrument, no doubt, at this present age, the corporation might acquire one by usage. And it seems reasonable, in such an instance, that the corporators or directors should have the power to bestow a name upon the corporation, the same as an individual may take upon himself a name and be liable thereby in a suit against him. A case not far from supporting this proposition arose in Indiana. A city under a special charter bore a certain name. A general law for the incorporation of cities was enacted with a provision that no city then incorporated should be bound by it unless it accepted its provisions. In this general act there was no provision designating the name of a city incorporated under it, by which it should be known.

A city having accepted the provision of the general act, it was held that it was authorized to retain its old corporate name, and such the court would presume it did. 16

Change of Name and Effect.-The name of a corporation may by changed, usually with the consent of the corporators, and if the identity and ancient rights of the corporation are preserved the change can in no wise effect it, either in its liabilities, duties or property.17 Such a change does not relieve it from its liabilities, 18 even to the paying of the

14 Attorney-General v. Corporation of Worcester, 2 Phillips, 3; Corporation of Rochester v. Lee, 15 Sim. 376; Grant on Cor. 342; Rawlinson on Cor. 3; 1 Dill Municipal Cor. § 35 and note, § 176.

15 Smith v. Plank Road, 30 Ala. 650; Anonymous, 1 Salk. 191; Pitts v. James, Hob. 124; Gifford v. Rockett, 121 Mass. 431; s. c., 7 Amer. Cor. Cas. 462; Ayray's Case, 11 Co. 19; 2 Kent Com. 292.

16 Johnson v. Common Council of Indianapolis, 16 Ind. 227.

17 Rosenthal v. Madison, etc. R. R. Co., 10 Ind. 358; President, etc. v. Jackson, 7 Blackf. 36; Eaton & Hamilton R. R. Co. v. Hunt, 20 Ind. 457; Episcopal Charitable Society v. Episcopal Church, 1 Pick. 372.

18 Hazelett v. Butler University, 84 Ind. 230; s. C., 9 Amer. Cor. Cas. 252; Dean v. LaMotte Lead Co., 59 Mo. 523; s. C., 8 Amer. Cor. Cas. 138; Bucksport & Bangor R. R. Co. v. Buck, 68 Me. 81; s. c., 7 Amer. Cor. Cas., 318; 4 Co., 87b.; Girard v. Philadelphia, 7 Wall. 1; Regina v. Bewdley, 1 P. Wms. 207; Rex v

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taxes due from it in its old name; 19 for it does not create a new corporation.20 And this is true even of a city. In an old case it was said, where the new charter alters the constitution of the corporation and remodels it, it loses its name; but if the constitution in all its intregal parts remain the same, though the new charter give them a new name, the old one remains. And an illustration is given, as if a mayor be added, or a mayor and masters be made mayor and alderman, or an abbot and a convent a dean and chapter, in which instances they lose their old name, because new intregal parts of the corporation are added. "But if the bailiff and burgesses Villae de Gippo accept a charter constituting them bailiff and burgesses Villae Gipwiki, and giving them farther privileges, this is a new name only, for the old corporation remains in its integral parts." And of a corporation it was judicially said, that "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.''

Same Continued.-If the name of a corporation is changed, all new suits on its old obligations must be brought in its new name;24 and it is essential to allege the

Passmore, 3 T. R. 119. 247; Colchester v. Brooke, 7 Q. B. 383; Colchester v. Seaber, 3 Burr. 1866; Bellows v. Bank, etc., 2 Mason, 43; Olney v. Harvey, 50 Ill. 453; Neely v. Yorkville, 10 S. C. 141; Heckel v. Sandford, 40 N. J. L. 180.

19 Macon & Augusta R. R. v. Goldsmith, 62 Ga. 463; s. C., 7 Amer. Cor. Cas., 16. It is to be remarked that a corporation has no right or power of itself to change or alter the name originally selected by it without recourse to such formal proceedings as are prescribed by law. Goodyear Rubber Co. v. Goodyear Rubber Mfg. Co., 8 Amer. & Eng. Cor. Cas., 317; Regina v. Registrar, etc., 10 Q. B. 839; Episcopal, etc. v. Episcopal Church, 1 Pick. 372.

20 Town of Reading v. Wedder, 66 Ill. 80; s. C., 4 Am. Cor. Cas. 371; Morris v. St. Paul & Chicago R. R. Co., 19 Minn. 528; s. C., 4 Amer. Cor. Cas. 501; Trustees of University v. Moody, 62 Ala. 89; s. C., 6 Amer. Cor. Cas. 190.

21 State v. Mayor, 24 Ala. 706; Ready v. Mavor, 5 Ala. 339; Broughton v. Pensacola, 93 U. S. 266.

22 2 Bac. Abr. 441, citing Regina v. Bailiffs, etc., of Ipswick, 2 Ld. Raym. 1239; s. c., 2 Salk. 433; see Knight v. Mayor, etc. of Wells, 1 Ld. Raym. 80; s. C., Lutw. 508.

23 Doe, etc. v. Norton, 11 M. & W. 913, 928; see Corporation of Ludlow v. Tyler, 7 Cor. & P. 537; Attorney-General v. Wilson, 9 Sim. 30; Attorney-General v. Kerr, 2 Beav. 420; Attorney-General v. Corporation of Leicester, 9 Beav. 546.

24 Mayor of Colchester v. Seaber, 3 Burr. 1866; 5