for his good teaching and instruction whereby he may profit himself afterwards. (e) And thus much at present, for the privileges and disabilities of infants. (17)

CHAPTER XVIII.

OF CORPORATIONS.

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

(e) Co. Litt. 172.

(17) There are a number of cases in which it has been held that certain contracts made by infants were absolutely void, and courts have attempted to distinguish between such cases and those in which the infant's contracts are only voidable at his option. If the case is such that the contract cannot be for the infant's benefit, it is said it is absolutely void; while if it may or may not be for his benefit, according to the circumstances, it is only voidable. Whitney v. Dutch, 14 Mass. 457. Contracts of suretyship have been held void on this distinction. Wheaton v. East, 5 Yerg, 41; Allen v. Minor, 2 Call, 70; Maples v. Wightman, 4 Conn. 376; Chandler v. McKinney, 6 Mich. 217. The inclination of the courts, however, has of late been towards holding all contracts of infants, which are not binding upon them, to be voidable only, leaving the infant to ratify or disaffirm them at his option at the proper time. Tucker v. Moreland, 10 Pet. 69; Kline v. Beebe, 6 Conn. 494; Cole v. Pennoyer, 14 Ill. 158; Drake's Lessee v. Ramsey, 5 Ohio, 252. The proper time to avoid a conveyance of real estate is when the grantor comes of age: Zouch v. Parsons, Burr. 1794; but a sale of personal property may be disaffirmed at any time: Stafford v. Roof, 9 Cow. 626; Carr v. Clough, 6 Fost. 280; Shipman v. Horton, 17 Conn. 481; and the plea of infancy can be interposed to any other contract at any time when it is attempted to be enforced. If, however, an infant disaffirms a purchase of property made by him, he must return the property if still in his possession: Deason v. Boyd, 1 Dana, 45; Cheshire v. Barrett, 4 McCord, 241; Badger v. Phinney, 15 Mass. 359; Lynde v. Budd, 2 Paige, 191; Bailey v. Baruberger, 11 B. Monr. 113: Kitchen v. Lee, 11 Paige, 107.

The ratification of a voidable contract by an infant may either be by a promise in affirmance; Ford v. Phillips, 1 Pick. 203; in which case it seems to be necessary that it be made to the party entitled to the benefit; Goodsell v. Myers, 3 Wend. 479; Hoit v. Underhill, 9 N. H. 439; Smith v. Kelley, 13 Metc. 310; Wilcox v. Roath, 12 Conn. 550; or, in the absence of such promise, the party after coming of age must do some other act, either unequivocally indicating an intent to affirm the contract, or that would render it unjust for him to disaffirm, and therefore estop him from doing so. See Delano v. Blake, 11 Wend. 85; Boyden v. Boyden, 9 Metc. 520.

The fact that an infant represents himself to be of age, and procures a contract on that representation, will not make the contract binding upon him. Burley v. Russell, 10 N. H. 184. But an infant is liable generally for his torts, and he may therefore be made to respond for the fraud in such a case: Wallace v. Morss, 5 Hill, 391; Fitts v. Hall, 9 N. H. 441; or for any other tort, notwithstanding a contract may have afforded the occasion for it. Campbell v. Stakes, 2 Wend. 137; Cary v. Hotailing, 1 Hill, 311; Homer v. Thwing, 3 Pick. 492.

In respect to an infant's contract for necessaries, it is to be observed that it is binding upon him only when he has no parent or guardian to supply them, or when that duty is neglected by the person upon whom it devolves. The mere fact, therefore, that an article is proper and suitable to be supplied to an infant for his own personal use, in view of his age and station in life, does not alone render him liable on his contract to make payment, for if there be a parent or guardian who undertakes in good faith to supply his wants, neither the infant nor any third person is at liberty to substitute his judgment as to what is needful for that of the proper guardian. Ford v. Fothergill, 1 Peake, N. P. 230; Kline v. L'Amoureux, 2 Paige, 419; Perrin v. Wilson, 10 Mo. 451. Goods to be employed in trade are not necessaries for an infant; Whittingham v. Hill, Cro. Jac. 494; Whywall v. Champion, 2 Strange, 1083; neither are repairs upon his buildings: Tupper v. Caldwell, 12 Metc. 559; nor insurance; Mut. Fire Ins. Co. v. Noyes, 37 N. H. 345. If he be a father, necessaries for his children are necessaries for him: Beeler v. Young, 1 Bibb. 520; and he is liable for the antenuptial debts of his wife. Butler v. Breck, 7 Metc. 164; Roach v. Quick, 9 Wend. 238.

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 shew 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 *could [ *468] 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 law 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 possession, 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 honor 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 *instituting separate societies of [ *469] 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.

(a) Ff. l. 3, t. 4, per tot.

(b) Ff. 50, 16, 8.

(c) Ff. 3, 4, 7.

The first division of corporations is into aggregate and sole. (1) 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 [*470] very apparent, if we consider the case of *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 incumbrances: 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. (2) 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. Óther 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 churchwardens, 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;

(d) Co. Litt. 43.

(1) The number of corporations sole in the United States must be very few indeed. It is possible that the statutes of some states vesting the property of the Roman Catholic church in the bishop and his successors may have the effect to make him a corporation sole; and some public officers have corporate powers for the purpose of holding property, and of suing and being sued.

(2) Ecclesiastical corporations, in the proper meaning of that term, do not exist in the United States. The religious societies which are incorporated under the state laws are mere private civil corporations, subject to the like visitation and control with the corporations for secular purposes. See note, ante, p. 376.

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. (3)

*Having thus marshalled the several species of corporations, let us next proceed to consider, 1. How corporations in general may be created. [*472] 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) (4) The kings'

(e) Such as Manchester, Eton, Winchester, &c.

(f) 1 Lord Raym. 6.

(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 where first erected into corporate communities on the continent, and endowed with many valuable privileges, about the eleventh century: 1 Rob. Ch. V. 30; to which the consent of the feudal Sovereign was absolutely necessary, as many of his prerogatives and revenues were thereby considerably diminished.

(3) [They are lay corporations because they are not subject to the jurisdiction of the ecclesiastical courts, or to the visitations of the ordinary or diocesan in their spiritual characters.] (4) Corporations in the United States are the creatures of the legislative authority. Each corporation is either created by a special act of the legislature, which defines its objects and specifies its powers, and is called a charter, or it is formed by the voluntary association of its members under some general law of the state, which permits them to become a corporation on subscribing the proper agreement, and observing such other forms as may be prescribed. Corporations are either public or private. The first are for the most part created for the purposes of municipal government, in which case the corporators have no choice but to accept the charter, and to exercise the corporate powers under it. Charters of private incorporation, on the other hand, the corporators are not compellable to accept, but if they do so, the charter becomes a contract between them and the state, and the state cannot repeal or modify it without their assent, unless the right to do so was reserved when it was granted. Dartmouth College v. Woodward, 4 Wheat. 518. In several of the states, corporations for other than municipal purposes are forbidden to be created except for a limited period, and with full power to repeal and amend; and in some, also, they can only be formed under general laws. The rights and privileges claimed under charters of incorporation are to be strictly construed as against the corporators. Providence Bank v. Billings, 4 Pet. 514; Charles River Bridge v. Warren Bridge, 11 id. 544; Pennsylvania R. R. Co. v. Canal Commissioners, 21 Penn. St. 22; Bradley v. N. Y. and N. H. R. R. Co., 21 Conn. 306; Reed v. Toledo, 18 Ohio, 161; Dunham v. Rochester, 5 Cow. 465; Mining Co. v. Baker, 3 Nev. 386.

When no charter can be proved, the exercise of corporate rights, for a period whereof the memory of man runneth not to the contrary, is sufficient evidence that such rights were originally granted by the proper authority. The King v. Mayor, &c., of Stratford upon Avon, 14

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, churchwardens, and some others; who by common law have ever been held, as far as our books can shew us, to have been corporations, virtute officii: and this incorporation is so inseparably annexed to their offices, that we cannot frame a complete legal idea of any of these persons, but we must [*473] also have an idea of a corporation, capable to transmit *his 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 shew 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 these 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; (7) 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. (0)

All the other methods, therefore, whereby corporations exist, by common law, by prescription, and by act of parliament, are for 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 mercantile meeting or assembly, (p) this is alone sufficient to incorporate and establish them forever. (q)

[*474] 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 farther trouble: and the

(2) 14 and 15 Hen. VIII, c 5.

(n) Stat. 23 Geo. II, c. 4.

(k) 8 Rep. 114.
(m) Stat. 5 and 6 W. and M. c. 20.
(0) See page 272.

(P) Gild signified among the Saxons a fraternity, derived from the verb 711d. an, to pay, because every man paid his share towards the expenses of the community. And heuce their place of meeting is frequently called the Guild, or Guild-hall.

(g) 10 Rep. 30. 1 Roll. Abr. 513.

East, 360; Robie v. Sedgwick, 35 Barb. 326. So a corporation may also be established upon presumptive evidence that a charter has been granted within the time of memory. Such evidence is addressed to a jury, and though not conclusive upon them, if it reasonably satisfies their minds, it will justify them in a verdict finding the corporate existence. Mayor of Hull v. Horner, Cowp. 108; Dillingham v. Snow, 5 Mass. 552; Bow v. Allenstown, 34 N. H. 351; Stockbridge v. West Stockbridge, 12 Mass. 400; Trott v. Warren, 2 Fairf. 227; New Boston v. Dunbarton, 12 N. H. 409; and 15 id. 201.

So corporations may exist by implication. If there be granted by the state to individuals such property, rights or franchises, or imposed upon them such burdens, as can only be properly held, enjoyed, continued or borne, according to the terms of the grant, by a corporate entity, the intention to create such corporate entity is to be presumed, and corporate capacity is held to be conferred, so far as is necessary to effectuate the purpose of the grant or burden. Dyer, 400; Conservators of River Tone v. Ash, 10 B. and C. 349; per Kent, Chancellor, in Denton v. Jackson, 2 Johns. Ch. 325; Colburn v. Ellenwood, 4 N. H. 101; Atkinson v. Bemis, 11 N. H. 46; North Hempstead v. Hempstead, 2 Wend. 109; Thomas v. Dakin, 22 id. 9; Stebbins v. Jennings, 10 Pick. 188.