sales on judgments made in its favor; 72 and may purchase at any foreclosure or execution sale to protect its own lien bona fide acquired.73 A foreign corporation may maintain a real action."

74

Whether the foreign corporation may maintain foreclosure proceedings until the requirement of the State statute with regard to doing business have been complied with is not clear on the authorities.75 But where a foreign corporation as such mortgagee brings suit in a Federal court to foreclose for the benefit of innocent holders, the State will not be allowed to intervene because of violation of State law.76

8228. Taking by devise or bequest.

English mortmain acts are not a part of our common law." In New York we have seen, by the statute of wills, no corporation may take by devise unless expressly authorized by the legislature of New York. Elsewhere the right to take by devise is a matter of comity, and ordinarily there is no more objection to a taking of real estate by devise than in any other manner.78 A devise in trust to a corporation incapable at the time of the devise of taking the trust, may be paid over

72 Black v. Caldwell, 83 Fed. 880; Columbus Buggy Co. v. Graves, 108 Ill. 459; Elston v. Piggott, 94 Ind. 14. See Leasure v. Union Mut. Life Ins. Co., 91 Pa. 491.

73 Black v. Caldwell, 83 Fed. 880; Amer. Mut. Life Ins. Co. v. Owen, 15 Gray (Mass.), 491; Calrow v. Aultman, 28 Neb. 672, 44 N. W. 873; Meddis v. Kenney, 176 Mo. 200, 75 S. W. 633.

74 Diefenbach v. Vaughan, 116 Ala. 150, 23 So. 88 (semble); Amer. Mut. Life Ins. Co. v. Owen, 15 Gray (Mass.), 491.

75 That it may not: W. A. Wood M. Machine Co. v. Caldwell, 54 Ind. 270, 23 A. R. 641; Daly v. Nat. Life Ins. Co., 64 Ind. 1; contra, DeCamp v. Warren Mtg. Co., 65 Kan. 860, 70 Pac. 581; Keene Guaranty Savings Bank v. Lawrence, (Wash.) 73 Pac. 680. See Building & Loan Ass. v. Walker, (Tenn. Ch.) 42 S. W. 191; Gilmer v. U. S. Savings & Loan Co., 103 Tenn. 272, 52 S. W. 851.

76 Farmers' Loan & Trust Co. v. Chic. & N. P. R. R., 68 Fed. 412.

77 Lathrop v. Commercial Bank, 8 Dana (Ky.), 114, 33 A. D. 481; Amer. Bible Soc. v. Marshall, 15 Oh. St. 537.

78 White v. Howard, 38 Conn. 342; Lathrop v. Commercial Bank, 8 Dana (Ky.), 114, 33 A. D. 481; Amer. Bible Soc. v. Marshall, 15 Oh. St. 537;

on the passage by the legislature of an act enabling the corporation so to take.79

8229. Taking by eminent domain.

The right to exercise the power of eminent domain is a franchise, and a foreign corporation cannot exercise it without express permission; 80 and when condemnation proceedings have actually been begun by a foreign corporation and an appraisement made, the proceedings are absolutely void.81 A petition to remove a cause to the Federal court on the ground that one party was a foreign corporation was refused, since it appeared that the whole controversy arose out of a claim by the corporation of the right to condemn land.82 A foreign corporation that cannot take land directly cannot, it is held, do it by indirection, by means of domestic corporation.83 But a State may confer this power upon a foreign corporation; 84 or may grant to a foreign corporation the same privileges as to a domestic corporation.85 To this there is no constitutional objection.86 A municipal corporation whose charter

State v. Sherman, 22 Oh. St. 411; Thompson v. Swoope, 24 Pa. 474; University v. Tucker, 31 W. Va. 621, 8 S. E. 410.

79 Baker v. Clarke Institution, 110 Mass. 88; Fellows v. Miner, 119 Mass. 541; and so of a devise to a corporation to be created, Ould v. Washington Hospital, 95 U. S. 303, 24 L. ed. 450.

80 St. Louis & S. F. R. R. v. Foltz, 52 Fed. 627 (semble); St. Louis & S. F. R. R. v. S. W. Tel. & Tel. Co., 121 Fed. 276; Holbert v. St. Louis, K. C. & N. R. R., 45 Ia. 23; Illinois S. T. Co. v. St. Louis, I. M. & S. Ry., 208 Ill. 419, 70 N. E. 357; Trester v. Mo. Pac. Ry., 33 Neb. 171, 36 N. W. 502; State v. Boston, C. & M. R. R., 25 Vt. 433 (semble); Baltimore & O. R. R. v. Pittsburg, W. & K. R. R., 17 W. Va. 812, 867.

81 Trester v. Mo. Pac. Ry., 33 Neb. 171, 36 N. W. 502.

82 Baltimore & O. R. R. v. Pittsburg, W. & Ky. R. R., 17 W. Va. 812, 867. 83 Koenig v. Chicago, B. & Q. R. R., 27 Neb. 699, 43 N. W. 423.

84 Illinois S. T. Co. v. St. Louis, I. M. & S. Ry., 208 Ill. 419, 70 N. E. 357; Abbott v. New York & N. E. R. R., 145 Mass. 450, 15 N. E. 91; Gray v. St. Louis & S. F. R. R., 81 Mo. 126; In re Marks, 6 N. Y. Supp. 105; State v. Sherman, 22 Oh. St. 411.

85 New York & Erie Ry. v. Young, 33 Pa. 175.

88 In re Townsend, 39 N. Y. 171; Morris Canal & B. Co. v. Townsend, 24 Barb. (N. Y.) 658.

gives it the right of eminent domain, may in turn grant it to a foreign corporation.87 The transfer of the franchises of a domestic corporation to a foreign corporation would not of itself carry this privilege, but the State may give its assent; and this assent may be gathered by implication.88 Upon the consolidation of a domestic corporation with a foreign corporation, this franchise remains with the consolidated corporation. 89

§ 230. Taking personal property.

In the ordinary case a foreign corporation may freely acquire and hold personal property." And it may therefore take such property by way of pledge to secure a loan. But, as we have seen, if it is against the declared public policy of the State for such property to be so taken, the foreign corporation may not take it. Thus it was held in Georgia that a foreign corporation could not take slaves for the purpose of freeing and colonizing them, the act being contrary to public policy."2

Bequests of personal property to a foreign corporation are everywhere valid.93 It is not contrary to the public policy of one State that gifts of personal property should be made to a corporation of another State, since the situs of the property is thus removed to the other State. Bequests to foreign corporations are therefore not forbidden by the New York Statute of Wills, nor by mortmain acts.95 As was said by the Mary

94

87 Dodge v. Council Bluffs, 57 Ia. 560, 10 N. W. 886.

88 Abbott v. N. Y. & N. E. R. R., 145 Mass. 450, 15 N. E. 91.

89 Toledo, A. A. & G. S. Ry. v. Dunlap, 47 Mich. 456.

90 Thompson v. Waters, 25 Mich. 214, 225, 12 A. R. 243 (semble); Com

mercial Nat. Bank v. Corcoran, 6 Ont. 527.

91 Birkbeck Inv., Sec. & Sav. Co. v. Brabant, 8 Quebec Q. B. 311.

92 Amer. Colonization Society v. Gattrell, 23 Ga. 448.

93 Sherwood v. Amer. Bible Society, 4 Abb. App. (N. Y.) 227; University v. Tucker, 31 W. Va. 621, 8 S. E. 410.

94 Chamberlain v. Chamberlain, 43 N. Y. 424; Sherwood v. Amer. Bible Soc., 4 Abb. App. (N. Y.) 227.

95 Vansant v. Roberts, 3 Md. 119; Brown v. Thompkins, 49 Md. 423; Thompson v. Swoope, 24 Pa. 475.

land court in Vansant v. Roberts: 96 "So far as personal property is concerned, the Maryland mortmain act has no extraterritorial effect. Personal property follows the locus of the owner; and we cannot see why it should be a matter of concern to Maryland that the personal property should pass away to foreign corporations any more than to individuals living abroad."

§ 231. Protecting a name.

That a corporation may have a right to the exclusive use of its name is clear. Whether there is any legal title in the name itself is more doubtful under our law; though it is not infrequently provided by statute "7 that no new corporation shall be formed with a name similar to that of an existing corporation. The common-law right seems to be no more than the right to protect the corporate name as a trade-mark; existing only when the name is a distinctive one, and the use of it by the defendant would cause deception and loss to the plaintiff.98

The bearer of the name may desire either to prevent the formation of a new corporation with a similar name, or to restrain its operation after it is formed. In the first case, it seems clear that (unless permitted by the express language of some statute) no foreign corporation, admitted by the comity of the State to do business there, can restrain the contemplated action of the State in creating a domestic corporation with a similar name.99 In such a case Gresham, J., said: "It is only by comity that it is doing business in Illinois at all. The State can say to it any day, 'Go!' and it must go. That being so, I do not see that the complainant has a legal right to say a corporation shall not be created in Illinois bearing its (the complainant's) name. If the State of Illinois may create a

96 3 Md. 119.

97 See Chapter II.

98 Goodyear's I. R. G. Mfg. Co. v. Goodyear Rubber Co., 128 U. S. 598, 32 L. ed. 535; International Trust Co. v. International L. & T. Co., 153 Mass. 271, 26 N. E. 693, 10 L. R. A. 758.

Lehigh Valley Coal Co. v. Hamblen, 23 Fed. 225.

corporation bearing the same name as the complainant,—and it certainly can,-this court has no right by injunction to prevent anything from being done under the State law which is necessary in the creation of such a corporation. . . . I do not say what may be done if the defendants succeed in creating their corporation bearing the complainant's name, and a suit shall be brought by the complainant to prevent individuals claiming to be officers or managers of such corporation from interfering with the complainant's business."

If both corporations are formed, and the plaintiff desires to restrain the action of the defendant, we have a different case, as was intimated in the last paragraph; but even in this case also it seems to be assumed that a foreign corporation, acting merely by license of the State, will not be allowed to restrain by injunction the use by a domestic corporation of its own name. "The complainant is in the attitude of a foreign corporation coming into this state, and seeking to contest the right to the use of a corporate name which this state, in furtherance of its own public policy and in the exercise of its own sovereignty, has seen fit to bestow upon one of its own corporations. For such a purpose a foreign corporation, ordinarily, at least, can have no standing in our courts. Such corporations do not come into this state as a matter of legal right, but only by comity; and they cannot be permitted to come for the purpose of asserting rights in controvention of our laws or public policy. It is competent for this state, whenever it sees fit to do so, to debar any or all foreign corporations from doing business here; and whatever it may do by way of chartering corporations of its own cannot be called in question by corporations which are here only by a species of legal sufferance. We would not be understood, however, as holding that cases may not arise where the name of a foreign corporation has so far become its trade-mark or trade name as to entitle it to protection in our courts against infringement caused by the chartering of a domestic corporation by the same name. We only wish to hold that the present case is not of that char