§ 6 body politic or corporation, and in such capacity to receive and disburse

money.

(2) To transfer, register and countersign certificates of stock, bonds or other evidences of indebtedness, and to act as agent of any corporation, foreign or domestic, for any purpose now or hereafter required by statute or otherwise.

"(5) To act as trustee under any mortgage or bond issued by any municipality, body politic or corporation, and to accept and execute any other municipal or corporate trust not inconsistent with the laws of this state. (16) To receive and manage any sinking fund of any corporation, upon such terms as may be agreed upon between said corporation and those dealing with it.

"(17) Generally to execute trusts of every description not inconsistent with the laws of this state or of the United States."

There are other classes of corporations not specified in this section for the incorporation of which separate acts have also been passed. Among them are gas companies (G. S, p. 1608), water companies (G. S., p. 2199), street railways (G. S., p. 3216) and traction companies (G. S., p. 3235). These acts are not by their terms expressly exclusive. Can companies, for the organization of which other general laws exist, be lawfully incorporated under this act? The safe answer is the negative.

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In Richards v. Dover (61 N. J. Law, 400, 402) the court said: "The passage of these general laws authorizing the incorporation of gas companies shows a clear legislative intent to separate gas companies from those corporations which may lawfully be organized and provided under the general corporation act, and to subject the former to limitations and restrictions not applicable to the latter. Mr. Justice Magie, in Domestic Telegraph Co. v. Newark, 49 N. J. Law, 344, 348, said that the passage of the act providing for the organization of telegraph and telephone companies, in modes and under conditions quite inconsistent with those prescribed by the general corporation act, seemed to be a strong legislative declaration that such companies could not be organized so as to acquire a corporate existence under the latter act. In my judgment, the Legislature has clearly expressed its intention that no corporation shall acquire or exercise the franchise of a gas company without subjecting itself to the salutary provisions of the gas act by incorporating under it."

See also to the same effect dictum of Collins, J., in Montclair Military Institute v. State Board of Assessors, 47 Atl. Rep., 558.

Person. The word "persons" in this act does not include corporations. By analogy Coddington v. Exrs. of Havens, 8 N. J. Eq., 590.

A corporation cannot in its own name subscribe for stock, or be a corporator under the General Railroad Law; nor can it do so by simulated compliance with the provisions of the law through its agents as pretended corporators and subscribers for stock. (Central R. R. Co. of N. j. v. Pa. R. R. Co., 31 N. J. Eq., 475-494.)

Compare Section 51, post, giving any corporation the power to purchase, hold, &c., stock and bonds of other corporations.

Infants. The statute authorizes persons to form a corporation; it is implied that they shall be of full age. (Matter of Globe, &c., Assn., 135

N. Y., 280, 284, and cases cited. See also Lindley on Companies, p. 39.) §7
England it has been held that the incorporation is not rendered invalid
by the fact that one of the subscribers was an infant. (Nassau Phosphate
Co., 2 Ch. D. 61o.)

7. Any corporation of this state may conduct business in other states or in foreign countries and have one or more offices out of this state, and may hold, purchase, mortgage and convey real and personal property out of this state; provided, such powers are included within the objects set forth in its certificate of incorporation.

P. L. 1865, p. 354, Act of 1875, § 15: P. L. 1889, p. 412.

The power of a New Jersey corporation to do business without the State is based upon this provision. The corporation exists by force of the law that created it, and where that law ceases to exist and is not obligatory, the corporation can have no existence. (Hilles v. Parrish, 14 N. J. Eq., 380, 383.)

It is usual to insert in the certificate of incorporation a clause somewhat as follows:

"The corporation shall also have power to conduct its business in all "its branches, and have one or more offices and unlimitedly to hold, pur"chase, mortgage and convey real and personal property outside of the "State of New Jersey, in any or all of the several States and Territories of "the United States and in the District of Columbia, and in any or all "foreign countries, and especially in (specifying certain cities and States)."

Under the Act of 1875 and the supplement of 1889 (P. L. 412) a corporation could carry on a part of its business out of the State, provided that the portion of such business to be carried on out of the State and the location of its principal office or place of business out of the State were stated in the certificate of incorporation. An act of 1892 permitted

any corporation to carry on and conduct its business outside of the State, though not so empowered in the certificate of incorporation. (P. L. 1892, p. 90.) The question arose whether a manufacturing corporation, incorporated under the Act of 1875, which stated in its certificate that the business to be carried on in the State was manufacturing, and that the portion of its business outside the State was the selling of its manufactured products in the cities of New York and Brooklyn, could, under the Act of 1892, remove its manufacturing plant to another State. It was held by the Court of Chancery that such a removal was a material change in the object of the company which could not take place without the consent of every stockholder. The Court held, however, that a removal to another part of the State was not a material change. (Stickle v. Liberty Cycle Co., 32 Atl. Rep. 708.)

Section 7 of the present act was apparently drafted for the purpose of meeting this case, and where the certificate of incorporation is properly drawn the power can be put in the directors to carry on the business of

88 the company wherever from time to time they deem will be best suited to the objects of the company.

8. The certificate of incorporation shall be signed in person by all the subscribers to the capital stock named therein, and shall set forth:

I. The name of the corporation; no name shall be assumed already in use by another existing corporation of this state, or so nearly similar thereto as to lead to uncertainty or confusion;

II. The location (town or city, street and number, if number there be) of its principal office in the state;

III. The object or objects for which the corporation is formed;

IV. The amount of the total authorized capital stock of the corporation, which shall not be less than two thousand dollars, the number of shares into which the same is divided and the par value of each share; the amount of capital stock with which it will commence business, which shall not be less than one thousand dollars; and, if there be more than one class of stock created by the certificate of incorporation, a description of the different classes, with the terms on which the respective classes of stock are created;

V. The names and post office address of the incorporators and the number of shares subscribed for by each; the aggregate of such subscriptions shall be the amount of capital stock with which the company will commence business, and shall be at least one thousand dollars;

VI. The period, if any, limited for the duration of the company;

VII. The certificate of incorporation may also contain any provision which the incorporators may choose to insert for the regulation of the business and for the conduct of the affairs of the corporation, and any provision creating, defining, limiting and regulating the powers of the corporation, the directors and the stockholders, or any class or classes of stockholders; provided, such provision be not inconsistent with this act.

(As amended by Chap. 172, § 2, Laws of 1898, P. L. 1898, p. 407.) P. L. 1846, p. 64: P. L. 1849, p. 300; Act of 1875, § 11; P. L. 1876, p 103; P. L. 1884, p. 82; P. L. 1888, p. 152.

The provision that the certificate of incorporation should be signed in § 8 person by all of the subscribers to the capital stock named therein is new. It is not proper, therefore, to sign by an attorney in fact.

The practice of inserting in the certificate of incorporation the names of a number of subscribers to the capital stock, but having the certificate signed only by a part, not less than three, is thus forbidden.

The certificate should not only be signed, but should also be sealed by all the incorporators and subscribers. This because Section 9 requires the certificate of incorporation to "be proved or acknowledged as required "for deeds of real estate." In the case of deeds of real estate the officers before whom the acknowledgments are taken shall certify that the "party signed, sealed and delivered" the same. (P. L. 1898, p. 679.)

Certificate of incorporation.-The certificate of incorporation is the charter of the company and is held to be equivalent to a special act of the Legislature. (Ellerman v. Chicago Junc. Ry., &c., Co., 49 N. J. Eq., 217; Oregon R. R. Co. v. Oregonian R. R. Co., 130 U. S., 1.)

It is to a certain extent

(1) A contract between the corporation and the State. (Montclair
v. Greenwood Lake R. R. Co., 45 N. J. Eq., 436.)

(2) A contract between the individual stockholders and the corpo-
ration. (Kean v. Johnson, 9 N. J. Eq., 401; Loewenthal v. Rub-
ber Reclaiming Co., 52 N. J. Eq., 440.)

(3) A contract between the stockholders themselves. (Id.)

The courts of the State of New Jersey enunciate no rule or principle substantially different from the general principle governing corporations upon these three points.

In view of the fact that as between stockholders themselves the minority may prevent any practical diversion of the entire property of the company from the business for the purpose for which the company was organized, may prevent a sale of its entire property on the principle that this would work a practical dissolution of the company in a manner other than that prescribed by statute and without their consent, it may in some cases avoid the embarrassment which might arise from the objection of a minority of stockholders if there be inserted in the certificate itself a provision substantially as follows: "With the consent in "writing and pursuant to the vote of the holders of a majority of the stock "issued and outstanding, the directors shall have power and authority to "sell, assign, transfer or otherwise dispose of the whole property of this "corporation."

The insertion of this provision in the certificate of incorporation and the making this a part of the fundamental contract between the stock.

8 holders puts the minority in a less favorable position to unreasonably object to the plans of a concurrent majority.

Charter cannot be attacked collaterally." It is further treated as settled by our cases, that the regularity of the organization of a corporation cannot be questioned collaterally in any court, at the instance of a private person, and that irregularities and omissions in such organization cannot be taken advantage of in a proceeding instituted by a private person, but only in a direct proceeding in behalf of the State, inquiring by what warrant the corporate grant is being used." (Elizabethtown Gas Light Co. v. Green, 49 N. J. Eq., 329, 331, citing National Docks R. R. Co. v. Central R. R. Co., 32 N. J. Eq., 755; Stout v. Zulick, 48 N. J. Law, 599; West Jersey R. R. Co. v. Cape May, &c., 34 N. J. Eq., 164; Terhune v. Midland R. R. Co., 38 N. J. Eq., 423; Jersey City Gas Light Co. v. Consumers' Gas Co., 40 N. J. Eq., 427; New Jersey Southern R. R. Co. v. Long Branch, 39 N. J. Law, 28. See also Stockton v. American Tobacco Co., 55 N. J. Eq., 352.)

Quo warranto is the proper proceeding.

I. Corporate name. It is permissible for a corporation to assume the name used by the incorporators as a firm name, or an individual name may be used. The name must not contain the words "insurance," "safe deposit," trust" or "bank" (P. L. 1897, p. 274).

This subdivision was amended in 1898 by inserting the word "existing," so as to forbid the use of the name of "another existing corporation." This was in accordance with the ruling of the Secretary of State's office that the name of a corporation which has been dissolved might be appropriated by another corporation.

The court of chancery will restrain a domestic corporation from using a name so similar to that of another domestic corporation as to lead to uncertainty or confusion. (Glucose Sugar Refining Co. v. American Glucose Sugar Refining Co., 22 N. J. Law Journal [May, 1899], p. 147.)

A contract is not void because the corporation with which it is made is misnamed therein. (Hoboken Bld'g Ass'n v. Martin, 13 N. J. Eq., 427; Woolwich v. Forrest, 2 N. J. Law, 107; Middletown v. McCormick, 3 N. J. Law, 92. See also (as to grants), Inhabitants, &c., Alloway's Creek v. String, 10 N. J. Law, 323; Den v. Hay, 21 N. J. Law, 174, and (as to bequests), Van Wagenen v. Baldwin, 7 N. J. Eq., 211; McBride v. Elmer, 6 N. J. Eq., 107; Goodell v. Union Assn., 29 N. J. Eq., 32; Lanning v. Sisters of St. Francis, 35 N. J. Eq., 392.)

It was held in Alexander v. Berney, 28 N. J. Eq., 90, that "a corpora"tion may assume a name by usage." (For a somewhat similar case see Den v. Helmes, 3 N. J. Law, 600.)

II. Registered office in the State.

The Act of 1875 required the place of business, both within and without the State of New Jersey, to be given; also the portion of the business of the company to be conducted outside of the State.