Front Page Titles (by Subject) CHAPTER XVIII.: OF CORPORATIONS. - Commentaries on the Laws of England in Four Books, vol. 1
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CHAPTER XVIII.: OF CORPORATIONS. - Sir William Blackstone, Commentaries on the Laws of England in Four Books, vol. 1 
Commentaries on the Laws of England in Four Books. Notes selected from the editions of Archibold, Christian, Coleridge, Chitty, Stewart, Kerr, and others, Barron Field’s Analysis, and Additional Notes, and a Life of the Author by George Sharswood. In Two Volumes. (Philadelphia: J.B. Lippincott Co., 1893). Vol. 1 - Books I & II.
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We have hitherto considered persons in their natural capacities, and have treated of their rights and duties. But, as all personal rights die with the person; and, as the necessary forms of investing a series of individuals, one after another, with the same identical rights, would be very inconvenient, if not impracticable; it has been found necessary, when it is for the advantage of the public to have any particular rights kept on foot and continued, to constitute artificial persons, who may maintain a perpetual succession, and enjoy a kind of legal immortality.
These artificial persons are called bodies politic, bodies corporate, (corpora corporata,) or corporations: of which there is a great variety subsisting, for the advancement of religion, of learning, and of commerce; in order to preserve entire and forever those rights and immunities, which, if they were granted only to those individuals of which the body corporate is composed, would upon their death be utterly lost and extinct. To show the advantages of these incorporations, let us consider the case of a college in either of our universities, founded ad studendum et orandum, for the encouragement and support of religion and learning. If this were a mere voluntary assembly, the individuals which compose it might indeed read, pray, study, and perform scholastic exercises together, so long as they could agree to do so: but they **468]could neither frame, nor receive, any laws or rules of their conduct; none, at least, which would have any binding force, for want of a coercive power to create a sufficient obligation. Neither could they be capable of retaining any privileges or immunities: for, if such privileges be attacked, which of all this unconnected assembly has the right, or ability, to defend them? And, when they are dispersed by death or otherwise, how shall they transfer these advantages to another set of students, equally unconnected as themselves? So also, with regard to holding estates or other property, if land be granted for the purposes of religion or learning to twenty individuals not incorporated, there is no legal way of continuing the property to any other persons for the same purposes, but by endless conveyances from one to the other, as often as the hands are changed. But when they are consolidated and united into a corporation, they and their successors are then considered as one person in law: as one person, they have one will, which is collected from the sense of the majority of the individuals: this one will may establish rules and orders for the regulation of the whole, which are a sort of municipal laws of this little republic; or rules and statutes may be prescribed to it at its creation, which are then in the place of natural laws: the privileges and immunities, the estates and possessions, of the corporation, when once vested in them, will be forever vested, without any new conveyance to new successions; for all the individual members that have existed from the foundation to the present time, or that shall ever hereafter exist, are but one person in law, a person that never dies: in like manner as the river Thames is still the same river, though the parts which compose it are changing every instant.
The honour of originally inventing these political constitutions entirely belongs to the Romans. They were introduced, as Plutarch says, by Numa; who, finding, upon his accession, the city torn to pieces by the two rival factions of Sabines and Romans, thought it a prudent and politic measure to subdivide these two into many smaller ones, by *[*469instituting separate societies of every manual trade and profession. They were afterwards much considered by the civil law;(a) in which they were called universitates, as forming one whole out of many individuals; or collegia, from being gathered together: they were adopted also by the canon law, for the maintenance of ecclesiastical discipline; and from them our spiritual corporations are derived. But our laws have considerably refined and improved upon the invention, according to the usual genius of the English nation: particularly with regard to sole corporations, consisting of one person only, of which the Roman lawyers had no notion; their maxim being that “tres faciunt collegium.”(b) Though they held, that if a corporation, originally consisting of three persons, be reduced to one, “si universitas ad unum redit,” it may still subsist as a corporation, “et stet nomen universitatis.”(c)
Before we proceed to treat of the several incidents of corporations, as regarded by the laws of England, let us first take a view of the several sorts of them; and then we shall be better enabled to apprehend their respective qualities.1
The first division of corporations is into aggregate and sole. Corporations aggregate consist of many persons united together into one society, and are kept up by a perpetual succession of members, so as to continue forever; of which kind are the mayor and commonalty of a city, the head and fellows of a college, the dean and chapter of a cathedral church. Corporations sole consist of one person only and his successors, in some particular station, who are incorporated by law, in order to give them some legal capacities and advantages, particularly that of perpetuity, which in their natural persons they could not have had. In this sense, the king is a sole corporation;(d) so is a bishop; so are some deans, and prebendaries, distinct from their several chapters; and so is every parson and vicar. And the necessity, or at least use, of this institution will be very apparent, if we consider the case of **470]a parson of a church. At the original endowment of parish churches, the freehold of the church, the churchyard, the parsonage house, the glebe, and the tithes of the parish, were vested in the then parson by the bounty of the donor, as a temporal recompense to him for his spiritual care of the inhabitants, and with intent that the same emoluments should ever afterwards continue as a recompense for the same care. But how was this to be effected? The freehold was vested in the parson; and, if we suppose it vested in his natural capacity, on his death it might descend to his heir, and would be liable to his debts and encumbrances: or, at best, the heir might be compellable, at some trouble and expense, to convey these rights to the succeeding incumbent. The law therefore has wisely ordained, that the parson, quatenus parson, shall never die, any more than the king; by making him and his successors a corporation. By which means all the original rights of the parsonage are preserved entire to the successor: for the present incumbent, and his predecessor who lived seven centuries ago, are in law one and the same person; and what was given to the one was given to the other also.
Another division of incorporations, either sole or aggregate, is into ecclesiastical and lay. Ecclesiastical corporations are where the members that compose it are entirely spiritual persons: such as, bishops; certain deans, and prebendaries; all archdeacons, parsons, and vicars; which are sole corporations: deans and chapters at present, and formerly prior and convent, abbot, and monks, and the like, bodies aggregate. These are erected for the furtherance of religion, and perpetuating the rights of the church. Lay corporations are of two sorts, civil and eleemosynary. The civil are such as are erected for a variety of temporal purposes. The king, for instance, is made a corporation to prevent in general the possibility of an interregnum or vacancy of the throne, and to preserve the possessions of the crown entire; for immediately upon the demise of one king, his successor is, as we have formerly seen, in full possession of the regal rights and dignity. Other lay corporations are erected for the good government of **471]a town or particular district, as a mayor and commonalty, bailiff and burgesses, or the like: some for the advancement and regulation of manufactures and commerce; as the trading companies of London, and other towns: and some for the better carrying on of divers special purposes; as church-wardens, for conservation of the goods of the parish; the college of physicians and company of surgeons in London, for the improvement of the medical science; the royal society, for the advancement of natural knowledge; and the society of antiquaries, for promoting the study of antiquities. And among these I am inclined to think the general corporate bodies of the universities of Oxford and Cambridge must be ranked: for it is clear they are not spiritual or ecclesiastical corporations, being composed of more laymen than clergy: neither are they eleemosynary foundations, though stipends are annexed to particular magistrates and professors, any more than other corporations where the acting officers have standing salaries; for these are rewards pro opera et labore, not charitable donations only, since every stipend is preceded by service and duty: they seem therefore to be merely civil corporations. The eleemosynary sort are such as are constituted for the perpetual distribution of the free alms, or bounty, of the founder of them to such persons as he has directed. Of this kind are all hospitals for the maintenance of the poor, sick, and impotent: and all colleges both in our universities and out(e) of them: which colleges are founded for two purposes: 1. For the promotion of piety and learning by proper regulations and ordinances. 2. For imparting assistance to the members of those bodies, in order to enable them to prosecute their devotion and studies with greater ease and assiduity. And all these eleemosynary corporations are, strictly speaking, lay and not ecclesiastical, even though composed of ecclesiastical persons,(f) and although they in some things partake of the nature, privileges, and restrictions of ecclesiastical bodies.2
*[*472Having thus marshalled the several species of corporations, let us next proceed to consider, 1. How corporations in general may be created. 2. What are their powers, capacities, and incapacities. 3. How corporations are visited. And, 4. How they may be dissolved.
I. Corporations, by the civil law, seem to have been created by the mere act and voluntary association of their members; provided such convention was not contrary to law, for then it was illicitum collegium.(g) It does not appear that the prince’s consent was necessary to be actually given to the foundation of them; but merely that the original founders of these voluntary and friendly societies (for they were little more than such) should not establish any meetings in opposition to the laws of the state.
But, with us in England, the king’s consent is absolutely necessary to the erection of any corporation, either impliedly or expressly given.(h) The king’s implied consent is to be found in corporations which exist by force of the common law, to which our former kings are supposed to have given their concurrence; common law being nothing else but custom, arising from the universal agreement of the whole community. Of this sort are the king himself, all bishops, parsons, vicars, church-wardens, and some others; who by common law have ever been held, as far as our books can show us, to have been corporations, virtute officii: and this incorporation is so inseparately annexed to their offices, that we cannot frame a complete legal idea of any of these persons, but we must also have an idea of a corporation, capable to transmit *[*473his rights to his successors at the same time. Another method of implication, whereby the king’s consent is presumed, is as to all corporations by prescription, such as the city of London, and many others,(i) which have existed as corporations, time whereof the memory of man runneth not to the contrary, and therefore are looked upon in law to be well created. For though the members thereof can show no legal charter of incorporation, yet in cases of such high antiquity the law presumes there once was one, and that, by the variety of accidents which a length of time may produce, the charter is lost or destroyed. The methods by which the king’s consent is expressly given are either by act of parliament or charter. By act of parliament, of which the royal assent is a necessary ingredient, corporations may undoubtedly be created:(j) but it is observable, that, till of late years, most of those statutes which are usually cited as having created corporations do either confirm such as have been before created by the king, as in the case of the college of physicians, erected by charter 10 Hen. VIII.,(k) which charter was afterwards confirmed in parliament;(l) or they permit the king to erect a corporation in futuro with such and such powers, as is the case of the Bank of England,(m) and the society of the British Fishery.(n) So that the immediate creative act was usually performed by the king alone, in virtue of his royal prerogative.(o)3
All the other methods, therefore, whereby corporations exist, by common law, by prescription, and by act of parliament, are of the most part reducible to this of the king’s letters-patent, or charter of incorporation. The king’s creation may be performed by the words “creamus, erigimus, fundamus, incorporamus,” or the like. Nay, it is held, that if the king grants to a set of men to have gildam mercatoriam, a **474]mercantile meeting or assembly,(p) this is alone sufficient to incorporate and establish them forever.(q)
The parliament, we observed, by its absolute and transcendent authority, may perform this, or any other act whatsoever; and actually did perform it to a great extent, by statute 39 Eliz. c. 5, which incorporated all hospitals and houses of correction founded by charitable persons, without further trouble: and the same has been done in other cases of charitable foundations. But otherwise it has not formerly been usual thus to intrench upon the prerogative of the crown, and the king may prevent it when he pleases. And, in the particular instances before mentioned, it was done, as Sir Edward Coke observes,(r) to avoid the charges of incorporation and licenses of mortmain in small benefactions; which in his days were grown so great, that they discouraged many men from undertaking these pious and charitable works.
The king, it is said, may grant to a subject the power of erecting corporations,(s) though the contrary was formerly held:(t) that is, he may permit the subject to name the persons and powers of the corporation at his pleasure; but it is really the king that erects, and the subject is but the instrument: for though none but the king can make a corporation, yet qui facit per alium facit per se.(u) In this manner the chancellor of the university of Oxford has power by charter to erect corporations; and has actually often exerted it, in the erection of several matriculated companies, new subsisting, of tradesmen subservient to the students.
When a corporation is erected, a name must be given to it; and by that name alone it must sue, and be sued, and do all **475]legal acts; though a very minute variation therein is not material.(v) Such name is the very being of its constitution; and, though it is the will of the king that erects the corporation, yet the name is the knot of its combination, without which it could not perform its corporate functions.(w) The name of incorporation, says Sir Edward Coke, is as a proper name, or name of baptism; and therefore when a private founder gives his college or hospital a name, he does it only as a godfather, and by that same name the king baptizes the incorporation.(x)4
II. After a corporation is so formed and named, it acquires many powers, rights, capacities, and incapacities, which we are next to consider. Some of these are necessarily and inseparably incident to every corporation; which incidents, as soon as a corporation is duly erected, are tacitly annexed, of course.(y)5 As, 1. To have perpetual succession. This is the very end of its incorporation: for there cannot be a succession forever without an incorporation;(z) and therefore all aggregate corporations have a power necessarily implied of electing members in the room of such as go off.(a) 2. To sue or be sued, implead or be impleaded, grant or receive, by its corporate name, and do all other acts as natural persons may. 3. To purchase lands, and hold them, for the benefit of themselves and their successors; which two are consequential to the former.6 4. To have a common seal. For a corporation, being an invisible body, cannot manifest its intentions by any personal act or oral discourse: it therefore acts and speaks only by its common seal. For, though the particular members may express their private consent to any acts, by words, or signing their names, yet this does not bind the corporation: it is the fixing of the seal, and that only, which unites the several assents of the individuals who compose the community, and makes one joint assent of the whole.(b)7 5. To make by-laws or private statutes for the better **476]government of the corporation; which are binding upon themselves, unless contrary to the laws of the land, and then they are void.8 This is also included by law in the very act of incorporation:(c) for, as natural reason is given to the natural body for the governing it, so by-laws or statutes are a sort of political reason to govern the body politic. And this right of making by-laws for their own government, not contrary to the law of the land, was allowed by the law of the twelve tables at Rome.(d) But no trading company is with us allowed to make by-laws which may affect the king’s prerogative, or the common profit of the people, under penalty of 40l., unless they be approved by the chancellor, treasurer, and chief justices, or the judges of assize in their circuits; and, even though they be so approved, still, if contrary to law, they are void.(e) These five powers are inseparably incident to every corporation, at least to every corporation aggregate; for two of them, though they may be practised, yet are very unnecessary to a corporation sole, viz. to have a corporate seal to testify his sole assent, and to make statutes for the regulation of his own conduct.
There are also certain privileges and disabilities that attend an aggregate corporation, and are not applicable to such as are sole; the reason of them ceasing, and of course the law. It must always appear by attorney,9 for it cannot appear in person, being, as Sir Edward Coke says,(f) invisible, and existing only in intendment and consideration of law.10 It can neither maintain, nor be made defendant to, an action of battery or such like personal injuries; for a corporation can neither beat, nor be beaten, in its body politic.(g) A corporation cannot commit treason, or felony, or other crime, in its corporate capacity:(h) though its members may, in their distinct individual capacities.(i)11 Neither is it capable of suffering a *[*477traitor’s or felon’s punishment, for it is not liable to corporal penalties, nor to attainder, forfeiture, or corruption of blood. It cannot be executor or administrator, or perform any personal duties; for it cannot take an oath for the due execution of the office. It cannot be seized of lands to the use of another;(j) for such kind of confidence is foreign to the end of its institution.12 Neither can it be committed to prison;(k) for, its existence being ideal, no man can apprehend or arrest it. And therefore, also, it cannot be outlawed; for outlawry always supposes a precedent right of arresting, which has been defeated by the parties absconding, and that also a corporation cannot do: for which reasons the proceedings to compel a corporation to appear to any suit by attorney are always by distress on their lands and goods.(l) Neither can a corporation be excommunicated: for it has no soul, as is gravely observed by Sir Edward Coke;(m) and therefore also it is not liable to be summoned into the ecclesiastical courts upon any account; for those courts act only pro salute animæ, and their sentences can only be enforced by spiritual censures: a consideration which, carried to its full extent, would alone demonstrate the impropriety of these courts interfering in any temporal rights whatsoever.
There are also other incidents and powers which belong to some sort of corporations, and not to others. An aggregate corporation may take goods and chattels for the benefit of themselves and their successors, but a sole corporation cannot:(n) for such movable property is liable to be lost or embezzled, and would raise a multitude of disputes between the successor and executor, which the law is careful to avoid.13 In ecclesiastical and eleemosynary foundations, the king or the founder may give them rules, laws, statutes, and ordinances, which they are bound to observe: but corporations merely **478]lay, constituted for civil purposes, are subject to no particular statutes;14 but to the common law, and to their own by-laws, not contrary to the laws of the realm.(o) Aggregate corporations also, that have by their constitutions a head, as a dean, warden, master, or the like, cannot do any acts during the vacancy of the headship, except only appointing another: neither are they then capable of receiving a grant: for such corporation is incomplete without a head.(p) But there may be a corporation aggregate constituted without a head:(q) as the collegiate church of Southwell, in Nottinghamshire, which consists only of prebendaries; and the governors of the charter-house, London, who have no president or superior, but are all of equal authority. In aggregate corporations, also, the act of the major part is esteemed the act of the whole.(r) By the civil law this major part must have consisted of two-thirds of the whole, else no act could be performed:(s) which perhaps may be one reason why they required three at least to make a corporation. But with us any majority is sufficient to determine the act of the whole body. And whereas, notwithstanding the law stood thus, some founders of corporations had made statutes in derogation of the common law, making very frequently the unanimous assent of the society to be necessary to any corporate act, which king Henry VIII. found to be a great obstruction to his projected scheme of obtaining a surrender of the lands of ecclesiastical corporations, it was therefore enacted by statute 33 Hen. VIII. c. 27, that all private statutes shall be utterly void, whereby any grant or election, made by the head, with the concurrence of the major part of the body, is liable to be obstructed by any one or more, being the minority; but this statute extends not to any negative or necessary voice, given by the founder to the head of any such society.15
We before observed, that it was incident to every corporation to have a capacity to purchase lands for themselves and *[*479successors: and this is regularly true at the common law.(t) But they are excepted out of the statute of wills:(u) so that no devise of lands to a corporation by will is good, except for charitable uses, by statute 43 Eliz. c. 4;(w) which exception is again greatly narrowed by the statute 9 Geo. II. c. 36. And also, by a great variety of statutes,(x) their privilege even of purchasing from any living grantor is much abridged: so that now a corporation, either ecclesiastical or lay, must have a license from the king to purchase,(y) before they can exert that capacity which is vested in them by the common law: nor is even this in all cases sufficient. These statutes are generally called the statutes of mortmain; all purchases made by corporate bodies being said to be purchases in mortmain, in mortua manu: for the reason of which appellation Sir Edward Coke(z) offers many conjectures; but there is one which seems more probable than any that he has given us; viz. that these purchases being usually made by ecclesiastical bodies, the members of which (being professed) were reckoned dead persons in law, land therefore holden by them might with great propriety be said to be held in mortua manu.
I shall defer the more particular exposition of these statutes of mortmain till the next book of these commentaries, when we shall consider the nature and tenures of estates; and also the exposition of those disabling statutes of queen Elizabeth, which restrain spiritual and eleemosynary corporations from aliening such lands as they are at present in legal possession of: only mentioning them in this place, for the sake of regularity, as statutable incapacities incident and relative to corporations.
The general duties of all bodies politic, considered in their corporate capacity, may, like those of natural persons, be *[*480reduced to this single one, that of acting up to the end or design, whatever it be, for which they were created by their founder.
III. I proceed therefore next to inquire, how these corporations may be visited. For corporations, being composed of individuals, subject to human frailties, are liable, as well as private persons, to deviate from the end of their institution. And for that reason the law has provided proper persons to visit, inquire into, and correct all irregularities that arise in such corporations, either sole or aggregate, and whether ecclesiastical, civil, or eleemosynary. With regard to all ecclesiastical corporations, the ordinary is their visitor, so constituted by the canon law, and from thence derived to us. The pope formerly, and now the king, as supreme ordinary, is the visitor of the archbishop or metropolitan; the metropolitan has the charge and coercion of all his suffragan bishops, and the bishops in their several dioceses are in ecclesiastical matters the visitors of all deans and chapters, of all parsons and vicars, and of all other spiritual corporations. With respect to all lay corporations, the founder, his heirs or assigns, are the visitors, whether the foundation be civil or eleemosynary; for in a lay incorporation the ordinary neither can nor ought to visit.(a)
I know it is generally said, that civil corporations are subject to no visitation, but merely to the common law of the land; and this shall be presently explained. But first, as I have laid it down as a rule that the founder, his heirs or assigns, are the visitors of all lay corporations, let us inquire what is meant by the founder. The founder of all corporations, in the strictest and original sense, is the king alone, for he only can incorporate a society; and in civil incorporations, such as a mayor and commonalty, &c., where there are no possessions or endowments given to the body, there is no other founder but the king; but in eleemosynary foundations, such as colleges and hospitals, where there is an endowment of lands, the law distinguishes, and makes two species of **481]foundation; the one fundatio incipiens, or the incorporation, in which sense the king is the general founder of all colleges and hospitals; the other fundatio perficiens, or the dotation of it, in which sense the first gift of the revenues is the foundation, and he who gives them is in law the founder: and it is in this last sense that we generally call a man the founder of a college or hospital.(b) But here the king has his prerogative: for, if the king and a private man join in endowing an eleemosynary foundation, the king alone shall be the founder of it. And, in general, the king being the sole founder of all civil corporations, and the endower the perficient founder of all eleemosynary ones, the right of visitation of the former results, according to the rule laid down, to the king; and of the latter to the patron or endower.
The king being thus constituted by law visitor of all civil corporations, the law has also appointed the place wherein he shall exercise this jurisdiction: which is the court of King’s Bench; where, and where only, all misbehaviours of this kind of corporations are inquired into and redressed, and all their controversies decided. And this is what I understand to be the meaning of our lawyers when they say that these civil corporations are liable to no visitation; that is, that the law having by immemorial usage appointed them to be visited and inspected by the king their founder, in his majesty’s court of King’s Bench, according to the rules of the common law, they ought not to be visited elsewhere, or by any other authority.(c) And this is so strictly true, that though the king by his letters-patent had subjected the college of physicians to the visitation of four very respectable persons, the lord chancellor, the two chief justices, and the chief baron; though the college had accepted this charter with all possible marks of acquiescence, and had acted under it for near a century; yet in 1753, the authority of this provision coming in dispute, on an appeal preferred to these supposed **482]visitors, they directed the legality of their own appointment to be argued; and, as this college was merely a civil and not an eleemosynary foundation, they at length determined, upon several days’ solemn debate, that they had no jurisdiction as visitors; and remitted the appellant, if aggrieved, to his regular remedy in his majesty’s court of King’s Bench.
As to eleemosynary corporations, by the dotation the founder and his heirs are of common right the legal visitors, to see that such property is rightly employed, as might otherwise have descended to the visitor himself: but, if the founder has appointed and assigned any other person to be visitor, then his assignee so appointed is invested with all the founder’s power, in exclusion of his heir. Eleemosynary corporations are chiefly hospitals, or colleges in the universities. These were all of them considered, by the popish clergy, as of mere ecclesiastical jurisdiction: however, the law of the land judged otherwise; and, with regard to hospitals, it has long been held,(d) that if the hospital be spiritual, the bishop shall visit; but if lay, the patron. This right of lay patrons was indeed abridged by statute 2 Hen. V. c. 1, which ordained, that the ordinary should visit all hospitals founded by subjects; though the king’s right was reserved to visit by his commissioners such as were of royal foundation. But the subject’s right was in part restored by statute 14 Eliz. c. 5, which directs the bishop to visit such hospitals only where no visitor is appointed by the founders thereof: and all the hospitals founded by virtue of the statute 39 Eliz. c. 5, are to be visited by such persons as shall be nominated by the respective founders. But still, if the founder appoints nobody, the bishop of the diocese must visit.(e)
Colleges in the universities (whatever the common law may now, or might formerly, judge) were certainly considered by the popish clergy, under whose direction they were, as ecclesiastical, or at least as clerical, corporations; and therefore the right of visitation was claimed by the ordinary of the *[*483diocese. This is evident, because in many of our most ancient colleges, where the founder had a mind to subject them to a visitor of his own nomination, he obtained for that purpose a papal bull to exempt them from the jurisdiction of the ordinary; several of which are still preserved in the archives of the respective societies. And in some of our colleges, where no special visitor is appointed, the bishop of that diocese, in which Oxford was formerly comprised, has immemorially exercised visitatorial authority;17 which can be ascribed to nothing else but his supposed title as ordinary to visit this, among other ecclesiastical foundations. And it is not impossible that the number of colleges in Cambridge, which are visited by the bishop of Ely, may in part be derived from the same original.18
But whatever might be formerly the opinion of the clergy, it is now held as established common law, that colleges are lay corporations, though sometimes totally composed of ecclesiastical persons; and that the right of visitation does not arise from any principles of the canon law, but of necessity was created by the common law.(f) And yet the power and jurisdiction of visitors in colleges was left so much in the dark at common law, that the whole doctrine was very unsettled till the famous case of Phillips and Bury.(g) In this the main question was, whether the sentence of the bishop of Exeter, who, as visitor, had deprived Doctor Bury, the rector of Exeter College, could be examined and redressed by the court of King’s Bench. And the three puisne judges were of opinion, that it might be reviewed, for that the visitor’s jurisdiction could not exclude the common law; and accordingly judgment was given in that court. But the lord chief justice Holt was of a contrary opinion; and held, that by the common law the office of visitor is to judge according to the statutes of the college, and to expel and deprive upon just occasions, and to hear all appeals of course: and that from him, and him only, the party grieved ought to have redress; the founder having reposed in him so entire a confidence, that he *[*484will administer justice impartially, that his determinations are final, and examinable in no other court whatsoever. And upon this a writ of error being brought into the house of lords, they concurred in Sir John Holt’s opinion, and reversed the judgment of the court of King’s Bench. To which leading case all subsequent determinations have been conformable. But where the visitor is under a temporary disability, there the court of King’s Bench will interpose to prevent a defect of justice.(h) Also it is said,(i) that if a founder of an eleemosynary foundation appoints a visitor, and limits his jurisdiction by rules and statutes, if the visitor in his sentence exceeds those rules, an action lies against him; but it is otherwise where he mistakes in a thing within his power.19
IV. We come now, in the last place, to consider how corporations may be dissolved. Any particular member may be disfranchised, or lose his place in the corporation, by acting contrary to the laws of the society, or the laws of the land; or he may resign it by his own voluntary act.(k)20 But the body politic may also itself be dissolved in several ways, which dissolution is the civil death of the corporation; and in this case their lands and tenements shall revert to the person, or his heirs, who granted them to the corporation: for the law doth annex a condition to every such grant, that, if the corporation be dissolved, the grantor shall have the lands again, because the cause of the grant faileth.(l)21 The grant is, indeed, only during the life of the corporation; which may endure forever: but, when that life is determined by the dissolution of the body politic, the grantor takes it back by reversion, as in the case of every other grant for life.22 The debts of a corporation, either to or from it, are totally extinguished by its dissolution; so that the members thereof cannot recover, or be charged with them, in their natural capacities:(m)23 agreeable to that maxim of the civil law, “si quid universitati debetur, singulis non debetur; nec, quod debet universitas, singuli debent.”(n)
**485]A corporation may be dissolved, 1. By act of parliament, which is boundless in its operations.24 2. By the natural death of all its members, in case of an aggregate corporation.25 3. By surrender of its franchises into the hands of the king, which is a kind of suicide. 4. By forfeiture of its charter, through negligence or abuse of its franchises; in which case the law judges that the body politic has broken the condition upon which it was incorporated, and thereupon the incorporation is void.26 And the regular course is to bring an information in nature of a writ of quo warranto, to inquire by what warrant the members now exercise their corporate power, having forfeited it by such and such proceedings. The exertion of this act of law, for the purposes of the state, in the reigns of king Charles and king James the Second, particularly by seizing the charter of the city of London, gave great and just offence; though perhaps, in strictness of law, the proceedings in most of them were sufficiently regular: but the judgment against that of London was reversed by act of parliament(o) after the revolution; and by the same statute it is enacted, that the franchises of the city of London shall never more be forfeited for any cause whatsoever. And because, by the common law, corporations were dissolved, in case the mayor or head officer was not duly elected on the day appointed in the charter, or established by prescription, it is now provided,(p) that for the future no corporation shall be dissolved upon that account; and ample directions are given for appointing a new officer in case there be no election, or a void one, made upon the prescriptive or charter day.27
the end of the first book.
BOOK THE SECOND. Of the Rights of Things.
[(a) ]Ff. l. 3, t. 4, per tot..
[(b) ]Ff. 50, 16, 8. “Three form a corporation.”
[(c) ]Ff. 3, 4, 7.
[1 ] Corporations are public or private. Public corporations are such as have been created for the purposes of municipal government, including all the inhabitants within a certain district or territory: such are cities, towns, boroughs, &c. Private corporations include, properly, all others,—religious, literary, charitable, manufacturing, insuring, or money-lending associations, as well as railway, canal, bridge, and turnpike companies,—with which in number and variety no country so abounds as the United States. Charters of incorporation granted by the legislatures of the States to all private corporations are considered as executed contracts within the protection of art. 1, s. 10 of the constitution of the United States, which declares that “no State shall pass any law impairing the obligation of contracts.” The Trustees of Dartmouth College vs. Woodward, 4 Wheat. 518. In the popular meaning of the term, nearly every corporation is public, inasmuch as they are all created for the public benefit. Yet if the whole interest does not belong to the government, or if the corporation is not created for the administration of political or municipal power, it is a private corporation. Thus, all bank, bridge, turnpike, railroad, and canal companies are private corporations. In these and other similar cases the uses may, in a certain sense, be called public; but the corporations are private, as much so as if the franchises were vested in a single person. The state, by virtue of its right of eminent domain, may take private property for public purposes upon making compensation. It may delegate this power to a private corporation, by reason of the benefit to accrue to the public from the use of the improvements to be constructed by the corporation. But such delegation of power to be used for private emolument as well as public benefit does not clothe the corporation with the inviolability or immunity of public officers performing public functions. Grier, J. Randle vs. The Delaware & Raritan Canal, 1 Wallace, C. C. Rep. 290.
There are some persons and associations who have a corporate capacity only for particular specified ends, but who can in that capacity sue and be sued as an artificial person. These bodies are termed quasi corporations. Yet, as it is not essential to a corporation that it should be vested with all the usual powers of corporations, but only that it should be clothed with perpetual succession and be recognised by the law as an artificial person, such bodies really are corporations.—Sharswood.
[(d) ] Co. Litt. 43.
[(e) ] Such as Manchester, Eton, Winchester, &c.
[(f) ] 1 Lord Raym. 6.
[2 ] They are lay corporations, because they are not subject to the jurisdiction of the ecclesiastical courts, or to the visitation of the ordinary or diocesan in their spiritual characters.—Christian.
[(g) ]Ff. 47, 22, 1. Neque societas, neque collegium, neque hujusmodi corpus passim omnibus habere conceditur; nam et legibus, et senatus consultis, et principalibus constitutionibus ea res coercetur. Ff. 3, 4, 1.
[(h) ] Cities and towns were first erected into corporate communities on the continent, and endowed with many valuable privileges, about the eleventh century, (1 Rob. C. V. 30,) to which the consent of the feodal sovereign was absolutely necessary, as many of his prerogatives and revenues were thereby considerably diminished.
[(i) ] 2 Inst. 330.
[(j) ] 10 Rep. 29. 1 Roll. Abr. 512.
[(k) ] 8 Rep. 114.
[(l) ] 14 & 15 Hen. VIII. c. 5.
[(m) ] Stat. 5 & 6 W. and M. c. 20.
[(n) ] Stat. 23 Geo. II. c. 4.
[(o) ] See page 272.
[3 ] The charter of a private corporation is inoperative until it is accepted. So is the extension of a charter beyond its original term. But it is not essential to show a formal acceptance. It will be presumed from lapse of time and the continued exercise of corporate powers. Bank vs. Richardson, 1 Greenl. 81. Russell vs. McLellan, 14 Pick. 63. Bank of the United States vs. Dundridge, 12 Wheat. 71.—Sharswood.
[(p) ]Gild signified among the Saxons a fraternity, derived from the verb , to pay, because every man paid his share towards the expenses of the community; and hence their place of meeting is frequently called the Guild, or Guild-hall.
[(q) ] 10 Rep. 30. 1 Roll. Abr. 513.
[(r) ] 2 Inst. 722.
[(s) ] Bro. Abr. tit. Prerog. 53. Viner. Prerog. 88, pl. 16.
[(t) ] Year-book, 2 Hen. VII. 13.
[(u) ] 10 Rep. 33.
[(v) ] 10 Rep. 122.
[(w) ] Gilb. Hist. C. P. 182.
[(x) ] 10 Rep. 28.
[4 ] As to necessity for a name, see Bac. Abr. Com. Dig. Franchises, F. 9. Bac. Abr. Corporation, C. A corporation may have a name only by implication; as if the king should incorporate the inhabitants of Dale with power to choose a mayor annually, though no name be given, yet it is a good corporation by the name of mayor and commonalty. 1 Salk. 191. A hospital intended to be built may be incorporated by its intended name before it is erected. 10 Co. 32. By prescription it may have several different names. Hard. 504. Lut. 1498. 3 Salk. 102, pl. 2. So, by charter, a corporation may be incorporated by one name and afterwards by another, and after the change of the name the last ought to be used. 1 Roll. 572, l. 55. So a change of name or new charter does not merge the ancient privileges. 4 Co. 87, b. Raym. 439. And it retains the privileges and possessions it had before. 1 Roll. 513. l. 2. 1 Saund. 339. But they ought to prescribe by their ancient name till such a day, and show how it was then changed, and not by their last name. Hard. 504. Lut. 1498. 1 Saund. 340, n. 2. A misnomer of the corporation name in a grant under the corporate seal is immaterial. 2 Marsh. 174. 6 Taunt. 467, S. C. And where in ejectment the demise was laid to be by the mayor, &c. of the borough town of M., and on the trial it turned out, from the charter, that the name of the corporation was “the mayor,” &c. omitting “of the borough town” of M., it was held that this was no variance, it appearing from the charter that M. was a borough town, (1 B. & A. 699;) and, in general, a variance of this nature in pleading must be taken advantage of by plea in abatement. 1 B. & P. 30. 3 Camp. 29. 1 Saund. 340, a. The words in the instrument of incorporation must be sufficient in law to make a corporation, (10 Co. Rep. 29, 123, 3 Co. 73;) but there need not be any precise words: the words fundare, erigere, &c. are not of necessity to be used in making corporations, (10 Co. 28,) but other words equivalent are sufficient; and anciently the inhabitants of a town were incorporated when the king granted to them to have gildam mercatoriam. 2 Danv. Abr. 214. 1 Roll. 513, l. 10.
If the king grants lands to the inhabitants of B., their heirs and successors rendering a rent for any thing touching these lands, this is a corporation, though not to other purposes; but if the king grants lands to the inhabitants of B., and they be not incorporated before, if no rent be reserved to the king, the grant is void. 2 Danv. 214.
If the king grants to the men of Islington to be discharged of toll, this is a good corporation to this intent, but not to purchase, &c. And by special words the king may make a limited corporation, or a corporation for a special purpose. Id.
Where the words of a charter are doubtful, they may be explained by contemporaneous usage. 3 T. R. 271, 288, n. 4 East, 338.
A corporation may be constituted of persons natural or political. 10 Co. 29, b. It may be composed out of another corporation, (1 Roll. 512,) if the other be a corporation by prescription. 1 Sid. 291.
So a corporation aggregate may be without a head. Bro. Corp. 43. 10 Co. 30, b.—Chitty.
[(y) ] 10 Rep. 30. Hob. 211.
[5 ] A corporation has no power except what is given by its charter, either expressly or as incidental to its existence and purposes. It can act only in the manner prescribed by the act of incorporation which gives it existence. It is the mere creature of the law, and derives all its powers therefrom. Head vs. The Providence Ins. Co., 2 Cranch, 127. A corporation can make such contracts only as are allowed by the act of incorporation. Goszler vs. Georgetown, 6 Wheat. 597. The exercise of the corporate franchise, being restrictive of individual rights, cannot be extended beyond the letter and spirit of the act of incorporation. Beaty vs. The Lessee of Knowles, 4 Peters, 168. A contract made with a corporation for the loan of money, as well as the security taken on the loan, is void, if the power to loan money be not expressly given or necessarily incident to the powers given to the corporation by its charter. Beach vs. Fulton Bank, 3 Wend. 573. A corporation created to construct a road has the power to borrow money, as one of the implied means necessary and proper to carry into effect its specified powers. Union Bank vs. Jacobs, 6 Humph. 515. Burr vs. Phœnix Glass Co., 14 Barb. 358. A corporation may avail itself of its want of authority to make the contract sought to be enforced against it, though it has received and enjoyed the consideration on which it was made. Elysvill Co. vs. Okisko Co., 1 Maryland Ch. Dec., 392.—Sharswood.
[(z) ] 10 Rep. 26.
[(a) ] 1 Roll. Abr. 514.
[6 ] All corporations must have a license from the king to enable them to purchase and hold lands in mortmain. Co. Litt. 2. 7 & 8 W. 3, c. 37.—Christian.
[(b) ] Dav. 44, 48.
[7 ] The doctrine laid down in the text is now repudiated everywhere in the United States, if not in England. Corporations, through their officers and agents, may do valid acts and make valid contracts within the scope of the corporate powers, either oral or in writing, without seal; and, indeed, contracts may be implied as against corporations just as they may be against individuals. “The technical doctrine,” says Judge Story, “that a corporation could not contract, except under its seal, or, in other words, could not make a promise, if it ever had been fully settled, must have been productive of great mischiefs. Indeed, as soon as the doctrine was established that its regularly appointed agent could contract in its name without seal, it was impossible to support it; for otherwise the party who trusted such contract would be without remedy against the corporation. Accordingly, it would seem to be a sound rule of law, that wherever a corporation is acting within the scope of the legitimate purposes of its institution, all parol contracts made by its authorized agents are express promises of the corporation, and all benefits conferred at their request raise implied promises, for the enforcement of which an action may well lie.” Bank of Columbia vs. Patterson’s Administrators, 7 Cranch, 306. The reason assigned for the old notion was, that, a corporation being incorporeal, and consequently incapable of speaking, it was impossible that it should enter into a parol contract. But, upon reflection, this reason has been thought insufficient; for, if pursued to its full extent, it would prove that a corporation could not act at all. It has no hand to affix a seal, and must therefore employ an agent for the purpose. But this agent must receive his authority previous to his affixing the seal. It is necessary, therefore, that the corporation should have the power to act without seal, so far as respects the appointment of a person to affix the seal. Now, if it can appoint an agent without seal for one purpose, there is no reason why it may not for another. Turnpike Co. vs. Rutter, 4 S. & R. 16. Hamilton vs. Lycoming Ins. Co., 5 Barr. 339. It is true that a corporation, being an ens legis, has no inherent power to act, or indeed any power at all beyond what is necessary to accomplish the end of its being; but it is also true that within the scope of its legitimate functions it may act as a natural person might. In defining its powers, it would be impracticable to enumerate them specifically or to do more than circumscribe the field of its action, leaving it to exercise all those that are incidental and necessary to the purposes of its creation. Cumberland Valley R. R. Co. vs. Baab, 9 Watts, 460.—Sharswood.
[8 ] Where the power of making by-laws is in the body at large, they may delegate their right to a select body, who thus become the representative of the whole community. Rex vs. Spencer, Ld. Mansfield, 3 Burr, 1837.—Christian.
[(c) ] Hob. 211.
[(d) ]Sodales legem quam volent, dum ne quid ex publica legs corrumpant, sibi ferunto.
[(e) ] Stat. 19 Hen. VII. c. 7. 11 Rep. 54.
[9 ] It ought to acknowledge a deed, or levy a fine by attorney. 1 Leo. 184. It may make a lease and seal it, and afterwards make a letter of attorney to enter and deliver the lease. 2 Leo. 97. 1 Leo. 30. If it makes an attorney to collect its rents and to enter, if it would avoid a lease for non-payment afterwards, it ought to make an attorney to enter de novo. Skin. 413. A corporation may acknowledge a deed before a judge in the chapter-house without an attorney, (Moore, 676,) or put the common seal to a deed. Id. So it may, with its head, give a personal command without attorney. Com. Dig. Franchises, F. (12.) Any natural person may be this attorney, though he be a member of the same corporation. Bro. Corp. 4.—Chitty.
[(f) ] 10 Rep. 32.
[10 ] Yet a corporation may acknowledge a deed before a judge in the charter-house without an attorney, (Moore, 676; but see 1 Leon. 184,) or, with its head, give personal command, (Lutw. 1497,) as to command a bailiff to make a distress, (Salk. 191,) but not to enter for condition broken. 2 Cro. 110. And the attorney may be a member of the corporation. Bro. Cor. 4. And a corporation may do any act upon record without their common seal; for they are estopped from saying it is not their act. 1 And. 23, 196.—Chitty.
[(g) ] Bro. Abr. tit. Corporation, 63.
[(h) ] 10 Rep. 32.
[(i) ] The civil law also ordains that, for the misbehaviour of a body corporate, the directors only shall be answerable in their personal capacities. Ff. 4, 3, 15.
[11 ] Corporations are liable in the actions of trespass, trover, case, for torts commanded or authorized by them; and the acts of their agents are considered as their acts. Hawkins vs. Steamboat Co., 2 Wend. 452. McCready vs. Guardians, 9 S. & R. 94. Kneass vs. The Schuylkill Bank, 4 Wash. C. C. 106. A corporation is liable for an injury caused by its servants wherever, under similar circumstances, an individual would be liable. Church vs. Railroad, 5 Barb. 79. Watson vs. Bennett, 12 Barb. 196. A public municipal corporation, like the city of New York, is responsible for injuries resulting from the negligence of persons employed by its officers in repairing the public sewers. Lloyd vs. The Mayor, 1 Selden, 369. Ross vs. Madison, 1 Carter, 281. An action for malicious prosecution, slander, false imprisonment, or assault and battery, may be maintained against a corporation. Goodspeed vs. East Haddam Bank, 22 Conn. 530. Quiggle vs. Railroad Co., 21 Howard, (S. C.,) 202. Vance vs. Erie Railway Co., 3 Vroom, (N. J.,) 334. Brokaw vs. Railroad Co., Ibid. 328.—Sharswood.
[(j) ] Bro. Abr. tit. Feoffm. al. vse. 40. Bacon of Uses, 347.
[12 ] A corporation cannot be seized of land in trust for purposes foreign to its institution. Jackson vs. Hartwell, 8 Johns. 422. Trustees vs. Peaslee, 15 N. Hamp. 317. A corporation may take and hold property in trust in the same manner and to the same extent that a private person may do. If the trust be repugnant to, or inconsistent with, the proper purpose for which the corporation was created, it may not be compelled to execute it, but the trust (if otherwise unexceptionable) will not be void, and a court of equity will appoint a new trustee to enforce and protect the objects of the trust. Neither is there any positive objection, in point of law, to a corporation taking property upon a trust not strictly within the scope of the direct purposes of its institution, but collateral to them Vidal vs. Philadelphia, 2 Howard, S. C. 127.—Sharswood.
[(k) ] Plowd. 538.
[(l) ] Bro. Abr. tit. Corporation, 11. Outlawry, 72.
[(m) ] 10 Rep. 32.
[(n) ] Co. Litt. 46.
[13 ] Mr. Hargrave considers the jewels of the crown rather as heir-looms than an instance of chattels passing in succession in a sole corporation. Co. Litt. 9, n. 1.—Christian.
[14 ] Their charters or immemorial usages, which are equivalent to the express provisions of a charter, are in fact their statutes.—Chitty.
[(o) ] Lord Raym. 8.
[(p) ] Co. Litt. 263, 264.
[(q) ] 10 Rep. 30.
[(r) ] Bro. Abr. tit. Corporation, 31, 34.
[(s) ]Ff. 3, 4, 3.
[15 ] This act clearly vacates all private statutes, both prior and subsequent to its date, which require the concurrence of more than a majority to give validity to any grant or election. The learned judge is of opinion, that it has not affected the negative given by the statutes to the head of any society; but I am inclined to think this opinion may be questioned; especially in cases where, in the first instance, he gives his vote with the members of the society. It is the usual language of college statutes to direct that many acts shall be done by gardianus et major pars sociorum, or magister, or præpositus et major pars; and it has been determined by the court of King’s Bench, (Cowp. 377,) and by the visitor of Clarehall, Cambridge, and also by the visitors of Dublin College, that this expression does not confer upon the warden, master, or provost, any negative; but that his vote must be counted with the rest, and that he is concluded by a majority of votes against him.
In 1 Strange, 54, the court of King’s Bench declared that in the case of the city of London the mayor and common council have power to do acts, and yet the act of the majority of the common council is good, though the mayor dissents.
Major pars, or more than one-half, must be present to make a corporate meeting: they are then divided into two parts, present and absent.—Christian.
Where the directors of a corporation have power to bind it by their contracts, a majority of the directors may do it. Cram vs. Bangor House, 3 Fairf. 354. In corporations aggregate, the principle of election is a majority, and not a plurality, unless otherwise specified. The State vs. Wilmington, 3 Harring. 294. Members of a corporation cannot vote by proxy, unless they are empowered so to do by the act of incorporation. Philips vs. Wickham, 1 Paige, 590.
To render valid the vote of a private corporation, the meeting at which it was passed must have been called in the mode prescribed by the charter or the by-laws, or, if there be no mode so prescribed, by personal notice to the members. Stow vs. Wise, 7 Conn. 214. Wiggins vs. The Church, 8 Metc. 301. So when a charter, or other statute, positively requires that a certain number of persons shall be present at the consummation of an act, the act is not valid, though it be begun while all are present, if one of the persons depart, though wrongfully, before it is consummated. Ex parte Rogers, 7 Cowen, 526.—Sharswood.
[(t) ] 10 Rep. 30.
[(u) ] 34 Hen. VIII. c. 5.
[(w) ] Hob. 136.
[(x) ] From magna carta, 9 Hen. III. c. 36, to 9 Geo. II. c. 36.
[(y) ] By the civil law, a corporation was incapable of taking lands, unless by special privilege from the emperor: Collegium, si nullo speciali privilegio subnixum sit, hæreditatem capere non posse, dubium non est. Cod. 6. 24. 8.
[(z) ] 1 Inst. 2.
[(a) ] 10 Rep. 31.
[(b) ] 10 Rep. 33.
[(c) ] This notion is perhaps too refined. The court of King’s Bench, it may be said, from its general superintendent authority, where other jurisdictions are deficient, has power to regulate all corporations where no special visitor is appointed. But not in the light of visitor; for, as its judgments are liable to be reversed by writs of error, it may be thought to want one of the essential marks of visitatorial power.16
[16 ] And it wants, I conceive, another mark of visitatorial power; which is, the discretion of a visitor voluntarily to regulate and superintend. The court of King’s Bench, upon a proper complaint and application, can prevent and punish injustice in civil corporations, as in every other part of their jurisdiction; but it is not the language of the profession to call that part of their authority a visitatorial power.—Christian.
[(d) ] Year-book, 8 Edw. III. 28. 8 Ass. 29.
[(e) ] 2 Inst. 725.
[17 ] That is, the bishop of Lincoln, from whose diocese that of Oxford was taken.—Christian.
[18 ] In the university of Cambridge I am inclined to think that the bishop of Ely has no visitatorial authority from prescription, but that in every instance in which he is visitor he is appointed by the express declaration and special provision of the founder. He without doubt was fixed upon from the dignity of his station and the proximity of his residence.—Christian.
[(f) ] Lord Raym. 8.
[(g) ] Lord Raym. 5. 4 Mod. 106. Show. 85. Skinn. 407. Salk. 408. Carth. 180.
[(h) ] Stra. 797.
[(i) ] 2 Lutw. 1566.
[19 ] No particular form of words is necessary for the appointment of a visitor. Sit visitator, or visitationem commendamus, will create a general visitor, and confer all the authority incidental to the office, (1 Burr. 199;) but this general power may be restrained and qualified, or the visitor may be directed by the statutes to do particular acts, in which instances he has no discretion as visitor: as where the statutes direct the visitor to appoint one of two persons, nominated by the fellows, the master of a college, the court of King’s Bench will examine the nomination of the fellows, and, if correct, will compel the visitor to appoint one of the two. 2 T. R. 290. New ingrafted fellowships, if no statutes are given by the founders of them, must follow the original foundation, and are subject to the same discipline and judicature. 1 Burr. 203. It is the duty of the visitor in every instance to effectuate the intention of the founder, as far as he can collect it from the statutes and the nature of the institution; and in the exercise of this jurisdiction he is free from all control. Lord Mansfield has declared that “the visitatorial power, if properly exercised, without expense or delay, is useful and convenient to colleges; and it is now settled and established that the jurisdiction of a visitor is summary and without appeal from it.” 1 Burr. 200.
It has been determined that, where the founder of a college or eleemosynary corporation has appointed no special visitor, if his heirs become extinct, or if they cannot be found, the right of visitation devolves to the king, to be exercised by the chancellor in the same manner as when the king himself is the founder. 4 T. R. 233. 2 Ves. Jun. 609.—Christian.
[(k) ] 11 Rep. 98.
[20 ] Every member or officer of a corporation may resign his place or office, (2 Roll. 456, l. 10. 1 Sid. 14. Sembl. Cont. 1 Roll. 137. Pop. 134. 2 Roll. 11;) and a corporation has power to take such resignation. 1 Sid. 14. A resignation by parol, if entered and accepted, is sufficient. 2 Salk. 433. Accepting another office incompatible with the other implies a resignation. 3 Burr. 1615. If a resignation be once accepted, the party cannot afterwards claim to be restored. 1 Sid. 14. 2 Salk. 433.
A corporation may for good cause remove an officer from his office, (2 Stra. 819. Sir T. Raym. 439;) and this is incident to a corporation without charter or prescription. 1 Burr. 517; sed vid. 11 Co. 99, a. Style, 477, 480. 1 Lord Raym. 392. 2 Kyd. 50, &c. A mandamus lies to compel a removal. 4 Mod. 233. If the member do any thing contrary to the duty of his place or oath, he is removable. 11 Co. 99, a. If an alderman be a common drunkard, he is removable for it. 2 Roll. 455, 1. 20. Dub. 1 Roll. 409. So if he removes from the borough and refuses attendance without lawful excuse. 4 Mod. 36. Semb. Show. 259. 4 Burr. 2087; and see further 9 Co. 99. Sir T. Raym. 438. Sty. 479. From the decisions on this subject, it appears that mere non-residence, without any particular inconvenience arising to the corporation from it, and where the charter does not require it, is no cause for removal. See cases collected in 3 B. & C. 152. And a corporate office does not become ipso facto vacant by the non-residence of the corporator: a sentence must be passed. 2 T. R. 772. Where a charter does not require the members of a corporation to be resident, the court will not grant a mandamus commanding the corporation to meet and consider of the propriety of removing from their offices non-resident corporators, unless their absence has been productive of some serious inconvenience. 3 B. & C. 152. Where the charter of a borough directed that when any of the capital burgesses should happen to die, or dwell out of the borough, or be removed, it should be lawful for the remainder to elect others in the place of those so happening to die or be removed, omitting the intermediate circumstance of dwelling out of the borough, it was held that these words were not so unambiguous as to warrant the court to interfere, by granting a mandamus calling on the mayor and burgesses to elect and swear in two capital burgesses in the room of two non-resident capital burgesses who had not been previously removed by the corporation from their offices for the purpose of taking this matter into consideration. 3 B. & A. 590. It is not a good cause that he attempted to act contrary to his duty, (11 Co. 98, b.;) as if he threatens the ruin of the charter or privileges, (11 Co. 97, b.,) or dissuades the payment of customs due. Id. An indictment being preferred against him is no cause of itself of removal before he is convicted, (Sty. 479;) but if he be guilty of an indictable offence, he may be removed. R. T. Hardw. 153. It is not a good cause of removal that an alderman is above seventy years of age, (2 Roll. 456, 1, 5; 2 Roll. 11) that he misbehaved himself when a mayor, (Sty. 151; Sembl.,) or did not account for money received by him to the use of the corporation, (Sty. 151,) or wrote a letter to a secretary of state which charged the mayor with subornation. Carth. 174. Bankruptcy is no cause of removal. 2 Burr. 723. Words to the chief magistrate contra bonos mores, &c. are no cause for disfranchisement, (11 Co. 96, 97, 98, 99, a.;) nor is a refusal to pay his proportion for the renewal of the charter, (1 Sid. 282,) nor refusing to make the usual payments for support of the company. Semble Cont. Ray. 466. A defect in original qualification is no cause for removal, (Doug. 80, 81, 85;) and see further as to what is a cause for removal, 2 Kyd. 62 to 94.
A ministerial officer chosen durante bene placito may be removed ad libitum, as a town-clerk, (1 Ventr. 77, 82. Raym. 188. 1 Lev. 291;) a recorder. 1 Vent. 242. 2 Jones, 52. And a custom to remove an officer ad libitum is good, (Dy. 332, b. Cro. J. 540. 2 Salk. 430;) but generally an officer cannot be removed without good cause, though the charter says generally he may be removed, (Dy. 332, b.,) or though it says he may be chosen for life si viderint expedire. 1 Lev. 148. If, however, a charter by express words empower either the corporation at large or a select body to remove an officer at pleasure, or empower them to choose him during pleasure, they may in either case remove him without cause. Sir T. Jones, 52. 3 Keb. 667. Sir T. Raym. 188. Though the election be general, if it be not under the common seal the officers thereby elected may be removed ad libitum. 2 Jones, 52. 1 Vent. 355. A common freeman cannot in any case be deprived of his freedom ad libitum of the corporation at large, or of any select body. Cro. J. 540. Sir T. Raym. 188. 1 Lord Raym. 391.
A removal must in general be by the act of the whole body. If a special power to remove be delegated to part of the body, it must be shown. Cowp. 502, 3, 4. Doug. 149. To this power of amotion the power of holding a corporate meeting for that purpose is necessarily incident. Doug. 153, 5. A party cannot be removed but by the corporate act under seal. 5 Mod. 259. There must be a summons for the mayor, &c. expressly to meet for the purpose of deciding as to the removal, (1 Stra. 385,) and every member of the assembly must be summoned where a summons is necessary. 2 Stra. 1051. A power reserved to the crown in a charter of incorporation to amove by order of council one or more of the corporators, which charter also declared that all or any of them so amoved should actually and without further process be amoved, and which also provided at the same time that upon such amotion the remaining corporators might proceed to fill up the vacancies, cannot be exercised to such an extent as not to leave a sufficient number to make a re-election; and therefore an amoval of all was held to be void, (2 T. R. 568;) but that judgment was reversed in Dom. Proc. 4 T. R. 122. A corporation cannot in general amove a member without summoning the party to answer for himself and hearing him; for he may have a good excuse. 11 Co. 99, a. 1 Sid. 14. In some cases this may be dispensed with; and, where non-residence is a good cause of amotion, it is unnecessery, before proceeding to amove the party, to summon him to come and reside. Doug. 149. But if he be removable for non-attendance at the corporate assemblies, he must have had personal notice to attend, and that his presence was necessary: the usual notice of the intended meeting will not be sufficient unless that usual notice be personal 1 Burr. 517, 527, 540. Where an officer is removable ad libitum, he may be removed with out summons or hearing of him, &c. 1 Sid. 15. 1 Lev. 291. In general, the summons should show the particular charge alleged against the party to be amoved, (11 Co. 99, a. 4 Mod. 33, 37;) but sometimes this is unnecessary, (1 Lord Raym. 225, 2 ed. 1240,) especially where the party by his act dispenses with it. 2 Burr. 723. 1 Kyd. 447, 439.
If a member be improperly amoved, a mandamus lies. Com. Dig. Mandamus, A. &c. Where it is confessed that a man has been rightly removed from an office, the court will not grant a mandamus for a restoration, though he had no notice to appear and defend himself. Cowp. 523. 2 T. R. 177. An order of restoration of a corporator illegally disfranchised relates to the original right. Cowp. 503.—Chitty.
[(l) ] Co. Litt. 13.
[21 ] On the dissolution of a corporation, as by the expiration of the period of its charter, the debts due to and from it are extinguished, and it is not in the power of the legislature, by renewing the charter, to revive the liabilities to the corporation. Commercial Bank vs. Lockwood, 2 Harring. 8. The President of Port Gibson vs. Moore, 13 S. & M. 157. The personal property of the corporation vests in the state, and its real estate reveris to its grantor and his heirs. White vs. Campbell, 5 Humph. 38. After the dissolution of a corporation, the interests of the several stockholders become equitable rights to a proportional share of the assets after payment of the debts. James vs. Woodruff, 2 Denio, 574.—Sharswood.
[22 ] But if a corporation have granted over their possessions to another before their dissolution, they do not return to the donor. 1 Roll. 816, l. 10, 20; and vide the cases collected in Bac. Abr. Corp. J. If lands are given to a corporate body and it is dissolved, they will revert to the donor and not escheat. 9 Mod. 226.—Chitty.
[(m) ] 1 Lev. 237.
[23 ] But a debt due to a corporation still remains, though their name is changed by a new charter. 3 Lev. 238.—Chitty.
[(n) ]Ff. 3, 4, 7.
[24 ] The king cannot by his prerogative destroy a corporation. Rex vs. Amley, 2 Term R. 532.—Chitty.
[25 ] But if the king makes a corporation consisting of twelve men to continue always in succession, and when any of them die the others may choose another in his place, it may be so continued. Roll. 524. Bac. Abr. tit. Corp. G. But where a corporation consists of several distinct integral parts, if one of these parts become extinct, whether by the death of the persons of whom it is composed, or by any other means, the whole corporation is dissolved. 3 Burr. 1866. When an integral part of a corporation is gone, and the corporation has no power to restore it or to do any corporate act, the corporation is so far dissolved that the crown may grant a new charter. 3 T. R. 199. And where the major part of an integral part of a corporation, whose attendance is required at the election of officers, is gone, it operates as a dissolution of the whole corporation, which has thereby lost the power of holding corporate assemblies for the purpose of filling up vacancies and continuing itself. 3 East, 213. And where the election of mayor was to be made by the majority of an assembly composed of several integral definite parts of a corporation and other burgesses and inhabitants for the time-being, it was held that one of such definite integral parts, being reduced below its majority of a proper number, could no longer be represented in such corporate assembly, and the whole corporation was thereby dissolved, being no longer capable of continuing itself. 4 East, 17.—Chitty.
[26 ] Refusing or neglecting to choose such officers as they are obliged to do by their charter is a ground of forfeiture. Carth. 483; sed vid. 11 Geo. I. c. 4. For a forfeiture a corporation is not dissolved without a judgment in a court of law to enforce it; and this is attained by scire facias or quo warranto. Bac. Abr. Corp. G. As to the effect of this judgment, see 2 T. R. 515. 4 T. R. 122. 2 Kyd. 496. Bac. Abr. Corp. G.—Chitty.
[(o) ] Stat. 2 W. and M. c. 8.
[(p) ] Stat. 11 Geo. I. c. 4.
[27 ] A private corporation aggregate may be dissolved by the death of all its members, or by the loss of an integral part when it is rendered unable to do any corporate act or to restore itself by a new election; or it may be dissolved by a surrender of its franchises to the State, or its assent to an act of the legislature repealing the charter. It may also be dissolved by a forfeiture of its charter, through abuse or neglect of its franchises, as if for condition broken; but not every non-user is sufficient ground of forfeiture. Where dissolved by either of the two former methods, no judgment of dissolution is necessary; but where there is an existing corporation, capable of acting, which has been guilty of such neglect or abuse of its franchises, or of the powers committed to its trust, as to amount to a cause of forfeiture, such forfeiture must be judicially ascertained and declared. Canal Co. vs. Railroad Co., 4 Gill & Johns. 1. Arthur vs. Bank, 9 S. & M. 394. By common law a forfeiture of charter can only be exacted in a court of law by scire facias or quo warranto. State vs. Merchants Insurance & Trust Co., 8 Humph. 235. An act of incorporation being a compact between the State and the corporators, it seems that the corporation cannot dissolve itself by its own act merely, and that a dissolution can only be effected by the assent of both the parties to the compact, or by the judgment of a court of competent jurisdiction. Town vs. Bank, 2 Doug. 530. Norris vs. Smithville, 1 Swan. 464.—Sharswood.