Lea v. American Atlantic & Pacific Canal Co.

Majority

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LEA against .THE AMERICAN ATLANTIC AND PACIFIC CANAL COMPANY.

Supreme Court, First District; Chambers,

June, 1867.

Headnote

Entry on Judgment.—Change on Corporate Name.

It seems, that our courts will not presume that the executive authority of a foreign government has power, without some legislative or judicial sanction or approval, to annul or dissolve a corporation.

A decree by which an act of incorporation is annulled and the corporation dissolved, “except for certain purposes and which declares that the corporation shall only continue in existence for purposes specified, and that persons shall be appointed as receivers to take its assets and carry on its business, does not operate to extinguish the existence of the corporation, in any such sense that it cannot be revived by repeal of the decree or by other governmental act recognizing the corporation as existent.

The rules of the common law relative to the dissolution of corporations, and the distinction between the dissolution of a corporation and the suspension of its franchises, and between an original charter and the charter of revival,—considered.

Where, by a decree, such as above described, a corporation was dissolved, and a subsequent decree of government contained a complete recognition of

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the corporation as still existing, and by a new name,—Held that the latter decree should be considered as reviving the corporation, under its old charter, and subject, though under a new name, to its debts and liabilities incurred under the old name.

Even if the second decree should be called a new charter, it ought not to be regarded as creating a new corporation, but as reviving and confirming and somewhat modifying the old one; at least as to foreign creditors of the old one.

Motion for leave to enter judgment against the defendants, in an action commenced against the American Atlantic and Pacific Ship Canal Company, by the - name of the Central American Transit Company.

The action was commenced in March, 1860, to recover for-services alleged to have been performed by the plaintiff, Isaac C. Lea, for the defendants, The American Atlantic and Pacific Ship Canal Company. The plaintiff averred that the defendants were a corporation, and set out the cause of action for services. The defendants answered, the answer being sworn to by their secretary, denied the averments in the complaint, and set up a counter-claim. On the trial of the issue, judgment was ordered for the plaintiffs, for $5,976 91. The plaintiff now moved for leave to enter this judgment against the defendants, by the name of the Central American Transit Company, upon the ground that, during the progress of the suit, the defendants’ corporate name had been changed.

It appeared, by papers read upon the motion, that the defendants were incorporated by the State of Nicaragua, on March 9th, 1850. In February, 1856, “ the then provisional -president” of Nicaragua made an executive decree, the substance of which is stated in the opinion of the Court, and which was relied upon by the defendants, as operating to •dissolve the corporation. It further appeared that, in 1861, a decree of the government of Nicaragua was promulgated, under authority of which the defendants were invited to carry on business, but which they relied on as in the light of an original charter, giving them a corporate existence independent of the engagements or obligations incurred under a prior organization.

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E. W. Stoughton, in support of motion.

I. The motion is clearly within the power of the court, not only by virtue of powers which inhere in every court, but by the provisions of the Code and a long course of judicial practice. To deny the- power, in a proper case, would involve the expense of a new trial for every new name the defendants, in a cause, whether corporations or natural persons—should assume during a protracted litigation. The motion is, moreover, eminently proper in this case. The plaintiff, it is true, could have entered judgment and issued execution against the defendants by their old name, under which them property in the city of New York, where they have ample means, could have been seized; but this course would be resisted, and the resistance would have raised the same questions which are presented on this motion.

II. With two memorable exceptions, long since, the imperial powers of Parliament were never called into action for the purpose of dissolving corporations or forfeiting corporate property (Ang. & A. on Corp., § 767); and it is well settled that no power of dissolution or forfeiture resides in the Crown, although it may grant the franchise sought to be forfeited or withdrawn (See 5 Johns. Chan., 378). These considerations show, not only that the Provisional President of Nicaragua had not the power to make the decree relied upon as dissolving the corporation; but also, that, even assuming that he had such power, a court will not construe his act so as to work the outrage upon private rights and corporate property, which would be involved, without unmistakable evidence that such was his purpose, nor without finding in the decree apt and decisive language effectuating it. If it is possible for the court to construe the decree so as to leave the corporation its franchise, property, and the rights of its creditors undestroyed, such construction will be applied. '

III. On examining the decree relied upon, in the light of these principles, it appears not to work the dissolution contended for. 1. There is no evidence that the Provisional President of Nicaragua was vested with any power to decree such dissolution. 2. The decree does not, in terms, purport

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to dissolve the corporation, but expressly declares that the corporation shall continue to exist for certain purposes mentioned.

IV. Not only did the decree fail by its language or operation to dissolve the corporation, but all the disabilities and forfeitures sought to be created by it were expressly waived by the supreme power of the State, by subsequent acts, decrees and contracts. That the State had power to do this in favor of a corporation not actually, and finally dissolved, will not be denied. 1. Look at the decree and contract made June 19,1857. This arrangement was made, not by a Provisional President, but by the imperial power of the State. Two of its articles are expressly devoted to changes and amendments of the agreement between the contracting parties, made in 1849, and framed and ratified by them in 1850. The State, by entering into the contract of 1857, affirmed in the most solemn manner the propositions that the American Atlantic and Pacific Ship Canal Company then existed as a corporation, and that both it and the State were bound by the terms of the contract of 1850; thus showing a waiver by the State of all claims of forfeiture under the decree of February, 1866. 2. The decree and contract of October 26,1857, is still more decisive of a complete waiver of the State decree of February, 1856. By examining its terms, it will be seen that it could only have been made upon the assumption that the corporation was in full possession of ah the powers and rights which the State had previously conferred.

V. A still later decree, authorized by the Congress of the State, changed the name of the company to the Central American Transit Company, increased its capital stock, and made changes in the contracts theretofore existing between the State and the defendants. That the corporation contemplated by the new name, was substantially the same with the defendants’ corporation, is shown by the facts that the stock of the company previously issued to its corporators still continued to be recognized as part of its capital under its new name, without any further payments; that the new arrangement was ratified by the «defendants acting as a corporation, and not as unincor

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porated associates; and that the State and defendants reciprocally released each other from all claims for damages under previous engagements.

VI. It is confidently submitted that the court, in disposing of this motion, should rely upon the many and controlling facts above referred to as showing the continued existence of the defendants as a corporation from 1850 to the present time; and that to permit them to escape from responsibility and withdraw their property from their creditors, under cover of a new name, would be to violate established principles and perpetrate a great injustice upon creditors.

B. F. Randolph, opposed.

I. The entry of judgment cannot be against the Central American Transit Company, if the name of the defendant had been changed by an act of the government of Nicaragua. 1. The cause has been tried, the order for judgment filed, costs taxed, and the action has proceeded to the verge of the entry of final judgment; the motion for which is formal and the entry directed by the Code. 2. The plaintiff cannot amend, because amendments can only be made to conform the pleadings to the facts proved, and in this case on the trial there was not (there could not be under the issue) proof that the name of the defendants was the Central American Transit Company. Nor can there be an amendment after the trial which changes the nature of the defence. (Code, § 173.) 3. A trial, and verdict or decision of the court, will not aid the defect 'in the plaintiff’s proceedings, as nothing will be presumed proved but what is expressly stated in the complaint or necessarily implied, and what the issue required should be proved. The complaint sets forth, and the issue involved, a claim against the defendants by the name of the American Atlantic and Pacific Ship Canal Company, and only proof of the existenbe of the company by that name could be produced on the trial. (1 Tidd’s Pr., 450; 2 Id., 919; Pangburn v. Ramsey, 11 Johns., 141 .) 4. It would be a dangerous experiment to permit after trial and decision, the entry of judgment, on supplementary proof, against the company by a different name from that which the proof on the trial established. Proceedings in actions should be so conducted that

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there shall be no probability of a recovery of judgment against a party not hable for the cause of action. It is not safe to permit the entry of a judgment against a defendant by a name different from the name proved on the tidal and contained in the decision in writing.

II. If the motion can be entertained, the proof submitted by the plaintiff establishes that the American Atlantic and Pacific Ship Canal Company had been dissolved and did not exist as a corporation in 1861, and therefore the Central American Transit Company which then received its name, and as we say was created, is not the same corporation. The dissolution of the corporation known as the American Atlantic and Pacific Ship Canal Company precludes the possibility of the plaintiff’s success.

III. It is suggested that the repeal of the grants to the associates, and the act incorporating the American Atlantic and Pacific Ship Canal Company, was by the Provisional government, which had not power to repeal it, and therefore the act is void. That government was, however, the supreme power of Nicaragua, recognized as such by the United States government. As such it had power to repeal the grant and the act of incorporation. The act of incorporation was the act of the supreme director—the person exercising the supreme power —and it could consequently be afterwards repealed by the supreme power subsequently vested in another person. In any State the supreme or law-making power can repeal an act incorporating a company. This is the prerogative of the government. Policy may have prevented the exercise of the power in Great Britain, but Parliament has the power and has exercised it. Under the Constitution of the United States the State governments cannot repeal certain charters, but this restriction is peculiar to our government, and the adoption of it in the constitution is an acknowledgement that without such restriction the power exists. Especially is this true of corporations which exist for public purposes, as distinguished from private business corporations. The government has full power to control a corporation of the former class, to create a corporation and confer a charter, or to revoke such charter and dissolve the corporation.

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IV. It is suggested that the act of 1856 did not dissolve the corporation, because the decree of dissolution makes provision for the preservation of the debt due Nicaragua. It is clear, however, that the government of Nicaragua intended to repeal the act of incorporation, and by the act of February, 1856, expressly annulled it. The effect of the repeal of the charter was the dissolution of the corporation. To complete this, the corporation was declared dissolved, and to preserve the debt due to the government, a commission was appointed to seize the property and ascertain the amount due. This provision is no part of that portion of the act which repeals the charter. It is only for the purpose of enabling the commissioners to make the necessary examination, and to preserve and secure the debt due to the government, that the company is to be considered in existence. The government expressly enacts that the corporation is dissolved. The existence for the special purpose stated, is consistent with the decree of dissolution, and does not affect the operation of that part of the act which repeals the charter. A corporation is dissolved and has expired on the repeal of its charter, notwithstanding such a probation; which is nothing more than a mode of preserving the debt due to the government. (Cresse v. Babcock, 23 Peck, 346 ; Angell & A. on Corp., § 195; Reed v. Frankfort Bank, 23 Me., 318 ; Whitman v. Cox, 26 Id., 335 ; Commercial B. of Natchez v. Chambers, 8 Smed. & M., 9 .) A judgment of seizure against a corporation operates to dissolve the corporation. (King v. Avery, 2 T. R., 515.) On repeal of the charter, or dissolution, the corporation ceases to exist. (Whitman v. Cox, 26 Me., 335 .; Green v. Seymour, 3 Sand. Ch., 286 ; White v. Campbell, 5 Humph., 238 .) In this case there was a repeal of the charter, a declared dissolution of the corporation by a decree of the government, a probation to close its affairs with the government, the appointment of a commission or receivers, and a decree of seizure of the property, which by itself is sufficient proof of the intent to dissolve the corporation; all together forming the strongest cumulative evidence of such intent.

V. It is alleged on the part of the plaintiff that the reference in the subsequent decrees to the American Atlantic and Pacific. Ship Canal Company acknowledged that they were still a cor

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poration. But the words company and corporation, though sometimes synonymous, are not so always. If the corporation Was dissolved in 1856, the subsequent allusion in later grants to the American Atlantic and Pacific Ship Canal Company can only signify that they were an unincorporated company, not that they were an incorporated one. The contracts, properly construed, show that subsequent to 1856 the corporation did not exist; but that an unincorporated company did exist with whom the government contracted. It is perfectly clear that the Government regarded the corporation as annulled, extinguished; and was dealing with the associates as an unincorporated company.

VI. It is alleged on the part of the plaintiff that the act of March 20,1861, by which the holders of shares in the unincorporated company, known as the American Atlantic and Pacific Ship Canal Company, and incorporated as a body politic by the name of the Central American Transit Company, was somehow an admission that the associates were an incorporation. But this cotdd not be so, because: 1. If they were already a corporation they would not apply to be incorporated. 2. They would not be again incorporated. 3. A corporation dissolved cannot be recognized as in existence. (White v. Campbell, 5 Humph., 38 ). 4. The act of 1861 is consistent throughout with the fact that the associates were not an incorporated company, and did not possess the rights and privileges of one.

VII It is alleged by the plaintiff that the act of 1861 operated as a change of the corporate name of the American Atlantic and Pacific Ship Canal Company which then existed, and had continued to exist as the same corporation with that created March 9, 1850. But the act of 1861 does not purport to be a revivor or continuance of a former corporation; nor does it purport to be a repeal of the decree of February, 1856; and if it did repeal that act the effect would be not to revive the old corporation, but the new corporation would be created. YThere a new charter is given, or a corporation of the same name, composed of the same stockholders as an existing corporation, and the corporation thus existing does business in the same place, has the same objects of incorporation, and

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continues the business and pays the debts of the old company, their identity is not established. (Angell & Ames on Corp., § 780; Bellows v. Hallowell Bank, 2 Mason, 31; Pres’t of Port Gibson v. Moore, 13 Smed. & M., 158 .) Moreover, the terms of the charter of 1861 show an intention to create a new corporation rather than to recognize an old one. From all its provisions, it is evident that the government of Nicaragua intended the Central American Transit Company to be a new corporation, and treated with the associates as persons in it having corporate rights; and also that the corporators of the Central American Transit Company intended to be a new corporation. Nowhere in their charter of 1861 do they claim to have corporate rights already; and it is:perfectly evident that they did not intend to assume the debts of the corporation that was dissolved in 1856. A new corporation is not liable for the debts of the former corporation, because being dissolved, its debts are extinguished. (Angell & Ames on Corp., §§ 195-779; Commercial B. v. Lockwood, 2 Harring., 8.) Nor is a corporation liable for the debts of the associates or persons who formed the incorporated company prior to the creation of the corporation unless such debts are assumed by the latter. (Dingledein v. Third Ave. R. R. Co., 9 Bosw., 79 ; Wyman v. American Powder Co., 8 Cush., 181 .)

VIII. The fact that the American Atlantic and Pacific Ship Canal Company were sued by the plaintiff and appeared in that suit, as a corporation—if they did so appear—does not affect the Central American Transit Company. At that time the Central American Transit Company was not in existence. The action was not in the courts qf the government of Nicaragua. If in that suit it has been adjudged that the defendant was a corporation, it was on a trial in which the Central American Transit Company was not heard and in which the evidence of the repeal of the act of incorporation of 1856 was / not produced. To grant the present motion would be unjust towards the Central American Transit Company, for the reason that that company never received any property from the American Atlantic and Pacific Ship Canal Company, nor any right or privilege or business; and the plaintiff never performed services for the new corporation. To grant the motion is in

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effect rendering judgment against the new company without a trial.

It seems that the original grant to Vanderbilt, White, Wolfe, and their associates, of Sept. 22, 1849, and the modifications of that grant, of the 9th of March, 1850, were both ratified by the Legislature of Nicaragua.

The act or charter of these associates, of the 9th of March, 1850, as a corporation, by the name of “ The American Atlantic and Pacific Ship Canal Company” was by the “ supreme (Erector,” only; without—from aught that appears—the authority or sanction of the Legislature.

Were it a question in this case, whether the “ supreme director” had power thus to create a corporation, I should have to infer such power, solely from the fact that he undertook to claim and exercise the power, and from the subsequent acts of the authorities of Nicaragua and of them associates.

Though it be conceded that the “ supreme director” had power to create the corporation, it does not follow that the provisional president of the BepubHc of Nicaragua had power to annul or dissolve it by the decree of the 18th of February, 1856.

At common law, the king could create a corporation, but could not arbitrarily, and without a judicial proceeding, dissolve or destroy any corporation. Parhament, being theoretically omnipotent, could do so; but there are probably only two or three instances of the power having ever been exercised.

I must say, from the papers submitted on this motion, the presumption is that the “ provisional president of the Bepub-Ec of Nicaragua” had not power by the decree, or otherwise, arbitrarily, and without any legislative or judicial sanction or proceeding, to annul or dissolve the corporation.

But if he had, the decree did not completely annul or dissolve the corporation. By the first article of the decree, the act of incorporation is annulled and the corporation dissolved and aboHshed, except for certain purposes mentioned in the subsequent articles.

By the second article, certain individuals are named as com

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missioners to liquidate and secure the sum due from the corporation to Nicaragua.

The fourth article substantially declares that the corporation shall only be continued in existence for the purpose of ascertaining how much is due to Nicaragua, and for the pur*pose of collecting it.

By the fifth article, the commission, after ascertaining the amount due to Nicaragua, are commanded to seize all the property of the corporation in Nicaragua, and to deposit it in the hands of respectable or responsible persons (receivers).

The sixth article, substantially declares that, for the public convenience, these respectable persons, or receivers, on giving security for the return of the property to the commissioners, shall take it and carry on the business of the corporation, at least as to the transit of passengers by the way of the Isthmus; and this section expressly declares, that the persons or receivers so taking the property, shall be obliged to transport passengers who may arrive on the Atlantic and on the Pacific, and the expense of such transportation of passengers shall be charged to the corporation.

The appointment of a receiver of all the property of a corporation does not annul its charter, nor can the seizure of all the property of a corporation dissolve it. Its charter, all its franchises, including its charter to the franchise to be a corporation, must be seized, or declared forfeited or annulled by some legal proceeding. The proceeding, by scire facias, to repeal the charter, appears to have been the only adverse legal proceeding at common law by which a chartered corporation could be so completely and finally annulled and annihilated ; but it could not afterwards, at any time,' be restored or revived with its old powers or suspended rights, and subject it to its old or suspended liabilities—(See Grant on Corporations, 295, 296, 300, 301, marg. pag.)

It seems that a judgment of seizure, in a quo warranto information or proceeding against the franchises of a corporation, either by charter or proscription, did not operate to dissolve the corporation, but only to suspend its regular operation during the pleasure’of the crown, and that notwithstanding such judgment of seizure, the corporation could be revived by a new

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charter, which would, operate by rotation, so as to make the new body in all respects identical with the old, as regards debts, liabilities, &c.; and this though the name and the constitution of the body politic, were altered by the new charter. It also seems that the usual practice upon such seizure, was for the crown to appoint a cusios, who appears to have discharged all the functions, duties, &e., of the corporation until the restitution of the franchise or the revival of the corporation. (Grant on Corp., 300 to 303.) That such revival was only a continuation of the old corporation, and that the revived corporation was obliged to take the act or charter of revival with all the debts, liabilities, and rights of action of the old one, though there might be additional powers and regulations contained in the charter of revival. (See Grant on Corp., 304; R. v. Pasmore, 3 T. R., 247 ; Mayor, &c., of Colchester v. Seeber, 3 Burr, 1866; Mayor of Colchester v. Brooks, 7 Q. B., 53 Com. Law Rep. 383; Duttrell’s Case, 4 Rep., 87b.; King v. Knight, 4 Y. B., 245; Haddock’s Case, 4 Ventr., 355; S. C., T. Raymond, 435.)

That, a new name makes no difference, see also Bull, N. P., 213. As to the effect of a merger by act of the Legislature of the rights of an old corporation in a new one, and as to how far it is a dissolution of the old one, see Union Canal Co. v. Young, and others, 1 Wharton R., 410; Bellows v. Hallowell & Augusta Bank, 2 Mason C. C. R., 31; State Bank of Indiana v. State, 1 Black (Ind.) R., 273.

As to the effect of a corporation dissolving and reorganizing itself, as it regards debts owing by the corporation, see Longley v. The Longley Stage Co., 30 Maine (17 Shep.) R., 448; Bank of the United States v. The Commonwealth, 17 Penn. R. (5 Harris), 400.

Any one who will take the trouble to look carefully into the common law cases above cited, will see that the distinction between the absolute and, complete dissolution of a coloration and the suspension of its corporate rights and operations, .and between the effects of the grant and acceptance of a charter of revival and of a charter creating a new and original corporation, was taken and established from the most equitable consideration, and to prevent injustice resulting to third parties

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from the common law effects of a complete dissolution of a corporation and its abstract nature, viewed in one aspect. The common law principles established or illustrated by these cases, throw great light not only upon the construction and effect to be given to the decree of the provisional president of the Republic of Nicaragua, on the 18th of February, 1856, but also upon the construction and effect to be given to the subsequent acts and dealings by and between the Nicaraguan authorities and the American Atlantic and Pacific Ship Canal Company, especially the new charter (if it can be called a charter) of that company, of March 20,1861, by the name of the Central American Transit Company, and its acceptance.

Notwithstanding the words of the first article of the decree of February, 1856, in view of the subsequent article of that decree, of the subsequent acts and dealings by and between the Nicaraguan authorities and the company, particularly the new charter or instrument of March 28, 1861, and in view of the common law principles and authorities above referred to, I am clearly of the opinion that the decree did not operate and was not intended to operate, even as between the corporation and Nicaragua, as a complete dissolution, or annihilation, of the corporation, presently or eventually. In my opinion this decree operated and was intended to operate, even as between the corporation and Nicaragua, not as extinguishment of the corporation, but only as a suspension of the corporate rights and operations by way of punishment, and for the purpose of securing what Nicaragua claimed as her due. Not only does the fourth article provide for the continuing existence of the corporation, for certain purposes, for an indefinite time, but the sixth article also provides for the continuing of the most important business or purpose of the corporation, through the custodians or receivers of the property, to be seized for an indefinite period.

Probably, in this case, if I am to assume that there was any ~ law in Nicaragua, I must assume it was the common law; and by the common law, on the complete dissolution of a corporation, its real estate went to the parties from whom it came, or their heirs, and its personal estate seems to have vested in the crown, as bona vacantia. If, then, the common law prevailed

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in Nicaragua, and the decree operated as a complete dissolution of the corporation, the provisional President had no right to seize the real estate of the corporation for the debt or dues; and as to the personal, the provision by the fifth and sixth articles of the decree, providing for its seizure for the debt or dues, would seem to be inconsistent with an intended complete dissolution; for the fact of such complete dissolution alone would have vested it in Nicaragua or its authorities.

As to the continuation of the corporation by the fourth article for certain purposes only, it has been said (Guardians Woodbridge Union v. Guardian Colonies Union, 18 Law J., N. S., Q. B., 133, 134) that a corporation maybe dissolved for some purposes and not for others, but such a proposition or principle is not free from difficulties, and requires for my assent more examination than I can now make.

I am of the opinion, then, that the decree of February 18th, 1856, did not work a complete dissolution of the corporation, but that the decree left the corporation in such position or condition that it could be restored or revived with all its old rights and liabilities, as if the decree had never been made, by any competent act of the government or authorities of Nicaragua, waiving the decree, or by a new charter, and without referring-particularly to the grant, or contract, of June 19, 1837, called the “ Stebbins’ Company Grant,” or the modification of that grant by the decree of October 26,1857, or the act or decree of March 24,1859, repeating the Stebbins’ grant, so called—all of which appear to me be, to say the least, more or less inconsistent with the idea that the Nicaraguan government, or authorities, considered the corporation completely dissolved. I am of the opinion that the charter, contract or decree of March 20, 1861, was a complete recognition of the then existence of the corporation by the old name, under the old charter, and should be regarded as reviving, settling and confirming— with certain modifications of its constitutional articles, by way of compromise—its franchises, rights and privileges under its old charter and under the grants, contracts and dealings by and between Nicaragua and the company, previous to such act or instrument of confirmation and compromise.

This act or instrument did not disturb or undertake to dis

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turb or affect the rights of property or of action, or indeed any rights or remedies of the company, as between the company and third parties; and there cannot be a doubt, I think, that it left the corporation, as between it and third parties, subject, in or by the new name, to its debts and liabilities contracted or incurred by or in the old name. As to third parties, creditors of the corporation by the old name, I am clearly of the opinion that the corporation by the new name and the corporation by the old name should be regarded as substantially—perhaps I should say as identically—the same corporation.

If the charter, contract or decree of March, 1861, can properly be called a neto charter, it should not be regarded as creating a new corporation, but as reviving and confirming and somewhat modifying an old one—certainly as to third parties, and more especially as to foreign creditors of the old one by the old name. And if it is proper to say that the property and franchises of the corporation, by the old name, were by the new charter merged-in or transferred to the corporation by the new name, certainly such merger or transfer was subject to all its debts and liabilities to third parties by or in the old name.

To show the correctness of these views as to the operation of the charter or instrument of 1861,1 refer particularly "to the first article, which declares that the shareholders in the American Atlantic and Pacific Ship Canal Company shall be recognized as a corporation (not that they shall be a corporation) Tinder the name “ Central American Transit Company.” And to the second article, which declares that all the shares which had been issued in the name of the former company should be included in the capital of three millions, of the corporation, by the new name, thus transferring to or leaving in the corporation by the new name, all the property of the corporation by the old name, which must be supposed to have been represented by the shares thus included in the corporation by the new name. And I refer also to the twenty-first article, which forcibly shows that the parties considered the charter or instrument of 1861 as a compromise, and that the Nicaraguan authorities recognized at least the claim of right by the company under the previous charter and contracts, and with other rights, the right to be a corporation. Moreover, I question whether the

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“ Central American Transit Company,” as to the plaintiffs, ought to be permitted to set up that it was not a corporation by the old name, when the charter or instrument of 1861 was accepted, or that it is not the same corporation as the old one, by a different name. Whatever may have been the operation of the decree of 1856, the company did not admit that it annulled its charter. Notwithstanding the decree, it claimed to be a corporation and kept organized as a corporation, and the plaintiff performed services for it as a corporation, to recover pay for which this suit was brought against it by the name of the “American Atlantic and Pacific Ship Canal Company.” As a corporation, before the charter or instrument of 1861 was made and accepted, the defendant put in an answer as a corporation, by the old name, which answer was verified by one of its officers, and as the answer of a corporation. The Central American Transit Company, by the charter or instrument of 1861, succeeded to or was permitted to retain and did retain all the rights and property of the American Atlantic and Pacific Ship Canal Company, except that as between Nicaragua and the company, certain rights or franchises were somewhat modified or changed; but the main corporate purpose of the corporation under the old name and under the new was and is the same.

It may be that this motion was not necessary, but I think, under the circumstances it was prudent and should be granted, but without costs to either party.