"necessarily and inseparably incident to every corporation," does not mention this as one. [1 K. on Cor. 69.] Chancellor Kent, also, in his statement of the essence of a corporation, which, in this particular, is evidently taken from Mr. Kid's introduction, mentions the capacity to "receive and enjoy, in common, grants of privileges and immunities." [2 K. C. 277, 2 ed.] The right to receive and enjoy grants of privileges and immunities, is, in the opinion of all, an essential requisite of a corporation. It is but a different mode of expressing the right to take title to property; and to this leading idea, the Chancellor's mind was doubtless directed. The quality of enjoying privileges and immunities in common, to which Mr. Kid appears to have attached importance in his introduction, is incidentally thrown in by Chancellor Kent, and evidently without intending to present it as a necessery incident. No other author, and no adjudged case mentions this property, as peculiar to corporations; and it certainly is not, for every voluntary association enjoys all its rights in common. Common enjoyment, common advantages are incident, and necessarily incident to every association. Nor is there any thing in the character of the objects enjoyed, viz: privileges and immunities. For the enjoyment of them is not peculiar to corporations. Chancellor Kent, in the sentence next to the one just quoted, thus expresses himself. "According to the doctrine of Lord Holt, neither the actual possession of property, nor the actual enjoyment of franchises, are of the essence of a corporation." [2 K. C. 277, 2 ed.]

Another, is the exemption of the members of a company from personal liability for its debts.

This is said, by some, to be peculiar to a corporation, and to distinguish it from a partnership. That is a mistake. Members of corporations are often made personally liable, by the acts of incorporation, for the debts of the company. Sometimes in whole, and sometimes in part. We have many instances of this

kind in our State, both in our general and special acts of incorporation. We have also a striking instance of members of a copartnership being liable, only to a qualified extent, for the copartnership debts. I allude to our Statute concerning limited partnerships.

The members of all voluntary associations may, by agreement, regulate the extent and nature of their liability for the company debts, and such agreement will certainly bind the parties to it, and, probably, all persons dealing with the association and having knowledge of it.

It may doubtless be safely assumed, that exemption, in whole or in part, of the members of a company from personal liability for its debts, is not an essential requisite of a corporation.

Another, and the last, is the transferability of shares without any restriction, at the mere will of the holder.

Were it not, that some English cases countenance the idea, that unqualified transferability of shares is a peculiar feature of a coporation, it would be unnecessary to dwell long on this topic. For it must be evident to all, that this is a matter which may be regulated by contract in all voluntary associations; and may exist, or not, in corporations. Partnerships and joint stock companies not only may, but do in fact, regulate the transfer of stock; sometimes permitting them, without any restriction; at others, restraining them to transfers on the books of the company; at others, until the debts due by the holder to the company are paid. And the like provisions are often made in our acts of incorporation; but more frequently the transfer of stock is left to the discretion of the corporation, with power to regulate it in their by-laws.

The cases referred to arose under an English Statute, which, with the decisions upon it, furnish the strongest judicial light I

have discovered on the subject of the essential requisites of a corporation; and, although the Statute is now repealed, the light, which it elicited, still shines, to aid and direct the search for truth. I will pass for the present, therefore, the subject of the transferability of stock, and endeavor by authority to show, that there are four, and certainly not more than four, essential requisites of a corporation, and that they are the same which I have already stated and attempted to illustrate.

The Statute and decisions are given by Collyer, near the close of his excellent Treatise on the Law of Partnership. [Coll. 620 to 625.] The Act, (6 Geo. 1 c. 18, s. 18,) after reciting, among other things, in substance, that several undertakings or projects of different kinds have, at times, been publicly contrived and practised to the common grievance of great numbers of subjects, and the persons who contrive them, presume" to open books for public subscriptions, and draw many unwary persons to subscribe therein, towards raising great sums of money.". "And, whereas, in many cases, the said undertakers or subscribers have presumed to act as if they were corporate bodies, and have pretended to make their shares transferable or assignable without any legal authority," &c.; for remedy enacts, among other things, that all such undertakings, "and more particularly the acting, or presuming to act, ás a corporate body, the raising, or pretending to raise, transferable stock, transferring, or pretending to transfer, or assign, any share in such stock, without legal authority, &c., shall be deemed illegal and void." A subsequent section declares these offences public nuisances, and subjects the offenders to the penalties of præmunire, to fines and punishments.

A single case occurred under the Act about two years after it was passed; a person being found guilty on an information, "for setting up a bubble called the North Sea." From that time until 1808, an interval of about eighty-seven years, the Statute

appears to have been forgotten. In that year a case occurred under it, and soon afterwards several others.

"The offences," says Mr. Collyer, "which are more particularly pointed out by the Statute, are, the presuming to act as a corporate body-the raising transferable stock-tle transferring such stock;

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"With regard to the specific offenees mentioned by the act, it seems to have been universally agreed, that the acting as a corporate body is an offence very difficult to be defined. It may perhaps be inferred, from other parts of the statute, that this enactment was directed against persons who pretended to be in possession of some charter of incorporation, and not against every species of society. But, however this may be, it seems to be unquestionable, that there are particular offences of this nature for which an indictment will lie, not only under the statute, but even at common law. It is apprehended, however, that the more general charge of acting as a corporation would not be sufficient to support an indictment at com. mon law, but that there must be additional averments, stating with particularity the nature of the offence.*

"As to the particular offences alluded to, it seems more easy to say what is not, than what is an act of assuming a corporate capacity. It is clear, that the assuming a common name, for the purpose of designating the society, the using a common seal, and making regulations by means of committees, boards of directors, or general meetings, were not illegal within the statute, and are not illegal at com. mon law. In the King v. Webb, Lord Ellenborough said--" As to the fourth point, that the subscribers have presumed to act as if they were a body corporate, how is this made out? It was urged that they assumed a common name, (which, however, does not appear to have been the case,) that they have a committee, general meetings, and power to make bye-laws; but are these the unequivocal indicia and characteristics of a corporation? How many urincorporated insurance companies, and other descriptions of persons, are there, that use their common name, and have their committees, general meetings, and bye-laws? Are these all illegal? or which of these particulars can be stated, as being of itself the distinctive and peculiar criterion of a corporation. So, in the case of Ellison v. Bignold, where it appeared that the directors of an insurance com*See M'Callum v. Turton, 2 Younge & Jerv. 183.

+2 Jac. & Walk. 503: and see Pearce v. Piper, 7 Ves. 1; Carlen v. Drury, 1 Ves. & Bea. 157. But Lord Eldon's opinions in these cases seem to have been guided by his own notion of the utility or inutility of each association as they passed in review before him. He seems to have considered, that the mischievous tendency of the associations was a question for the Judge and not for the jury. See Lloyd v. Loaring, 6 Ves. 776.

pany had, by their deed of settlement, the power of making orders and bye-laws, and that a seal was to be fixed upon for the use of the company, it was urged that this amounted to an assumption of a corporate character; but Lord Eldon appears to have taken no notice of this objection, and to have considered the legality of the association as depending entirely on the manner in which the shares were made transferable. In addition to these authorities we may add, that the numerous acts of Parliament for enabling certain companies to sue and be sued by their secretary, seem to assume the legal existence of the various powers of which we have just been speaking.

"It seems clear, therefore, that whether we view this subject with reference to the repealed statute, or the existing common law, they alone are to be considered as assuming to act as a corporate body, who usurp the "unequivocal indicia and characteristics which form the distinctive and peculiar criterion of a corporation." It is not to be doubted, however, that they who are parties to proceedings of this nature are guilty of an offence in law. Thus, corporate bodies alone can use a common name for the purpose of suing, contracting, conveying, or accepting conveyances; and to affect the use of a common name for these purposes, would, perhaps in every case, be contrary to law. Again, corporate bodies have the power of binding their members by the acts resolved upon in the manner prescribed by their charters, which power they derive from their corporate character, and not from contract and agreement between themselves;* on the other hand, voluntary associations are governed entirely by the rules which the parties have themselves agreed to. Hence, if the committees or meetings of an unincorporated society were to assume to exercise, independently of any contract or agreement for that purpose, a general power of binding their members, it might reasonably be contended that such an act was illegal and indictable. The only act, however, which has been expressly stated to be an assuming to act as a corporation, is that of making the shares transferable, without any restriction, at the mere will of the holder.

"The universal illegality of this proceeding was doubted, as we have before observed, by Lord Ellenborough. But, in Joseph v. Pebrer,† it was held to be universally illegal, not only, as it should seem, under the words of the statute on that particular point, but with reference to the more general offence of acting as a corporation. This manner of treating the subject leads to the conclusion, that, since the statute has been removed, a proceeding of this nature

*See Adley v. Whitstaple Company, 17 Ves. 315.

+3 Barn. & Cres. 639; 5 Dowl. & Ryl. 512.