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most part reducible to this of the king's letters patent, or charter of incorporation.
Power Deputed to a Subject. The king, it is said, may grant to a subject the power of erecting corporations, though the contrary was formerly held ; that is, he may permit the subject to name the persons and powers of the corporation, but it is really the king who erects, and the subject is but the instrument.
Its Name. 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 legal acts, though a very minute variation therefrom is not material. Such name is the very being of its constitution, without which it could not perform its corporate functions. II. POWERS OF A CORPORATION.
Incident Thereto. After a corporation is formed and named, it acquires many powers, rights, capacities and incapacities. Some of these are inseparably incident to every corporation, and are of course tacitly annexed.
Incidental Powers. The five powers incident to every corporation aggregate are these:
1. To have perpetual succession.
2. To sue or be sued, grant or receive by its corporate name, and to do all other acts, as natural persons may.
3. To purchase lands and hold them, for the benefit of themselves and their successors.
4. To have a common seal.
Privileges and Disabilities. It must always appear by attorney, for it cannot appear in person, being as Coke says: invisible, and existing only in intendment and consideration of law. It can neither maintain, nor be made defendant in an action of battery, or such like personal injury. It cannot commit treason or felony or other crime in its corporate capacity, though as individuals, its members may. It is not liable to attainder or forfeiture. It cannot be executor or administrator, or perform any personal duties, for it cannot take an oath for the due execution of its office. It cannot be seized of lands for
! These are included by law in the very act of incorporation. They were allowed by the twelve tables of Rome.
the use of another, for such kind of confidence is foreign to the end of its institution. It cannot be outlawed, for outlawry always supposes a precedent right of arresting, for which cause, the proceedings to compel a corporation to appear in any suit by attorney are always by distress on their lands and goods. It cannot be excommunicated, for a corporation has no soul, as Coke observes, and hence cannot be summoned into the ecclesiastical courts upon any account, for those courts act solely pro salute animae, and their sentences can only be enforced by spiritual censures. Powers Incident to certain Corporations.
There are also other incidents and powers, that belong to certain kinds of corporations, which do not appertain to others An aggregate corporation may take goods and chattels for the benefit of itself and successors, but a sole corporation cannot, for such moveable property is liable to be lost or embezzled, and would occasion disputes between the successor and executor. In ecclesiastical and eleemosynary foundations, the king or the founder may give them rules and ordinances, which they are bound to observe, but corporations merely lay, constituted for civil purposes, are subject to no particular statutes, but to the common law and to their own by-laws, not contrary to the laws of the realm.
Aggregate Corporations. Limits of Power. Aggregate corporations also that have by their constitutions a head, as a dean or warden, cannot do any acts during the vacancy of the headship, except only appointing another; neither are they capable of receiving a grant. In aggregate corporations, the act of the major part is esteemed the act of the whole. By the civil law, this part must have consisted of two-thirds of the whole, else no act could be performed. But with us, any majority is sufficient to determine the act of the whole body. By statute of Henry VIII, all private statutes were declared 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 of the minority, but this statute extends not to any negative or necessary voice, given by the founder to the head of such society.
Right to Hold Lands. Formerly no devise of lands to a corporation was good. By a variety of statutes, its privilege even of purchasing from a living grantor is much abridged, so that now a corporation, either ecclesiastical or lay, must have a license from the king to purchase before it can exert that capacity, which is vested in corporations by the common law; nor is even this in all cases sufficient.
1 This law is totally altered by modern legislation.
Statutes of Mortmain. These statutes are generally called the statutes of mortmain; all purchases made for corporate bodies being said to be purchases in mortmain, in mortua manu. Coke assigns as the origin of the term, that these purchases being usually made by ecclesiastical bodies, the members of which were reckoned dead persons in law, land therefore held by them might with propriety be said to be held in mortua manu.
General Duties. The general duties of all bodies politic, considered in their corporate capacity, may like natural persons, be reduced to this one, that of acting up to the end or design, for which they were created by their founders. III. CORPORATIONS-HOW VISITED.
By the Ordinary or the Founder. To prevent a deviation from the objects for which corporations are founded, the law has provided proper persons to visit, inquire into and correct all irregularities that may arise, in either sole or aggregate corporations, and whether ecclesiastical, civil or eleemosynary. With regard to all ecclesiastical corporations, the ordinary is the visitor, so constituted by the canon law. With respect to all lay corporations, the founder, his heirs or assigns, are the visitors, whether the foundation be civil or eleemosynary.
Who is the Founder? It is generally asserted, that civil corporations are subject to no visitation, but merely to the common law of the land. As a rule, the founder, his heirs or assigns, are the visitors of all lay corporations. The founder in the original sense, is the king alone, for he only can incorporate a society, and in civil incorporations, such as a mayor and commonalty, where there are no possessions given to the body, there is no other founder than the king; but in eleemosynary foundations, such as colleges and hospitals, where there is an endowment of lands, the law makes two species of foundation, the incorporation, in which sense the king is the founder, the other, 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. If the king and a private person join in endowing an eleemosynary foundation, the king alone shall be its founder. The right of visitation in general vests in the king, as the founder of all civil corporations, and in eleemosynary ones in the patron or endower.
Inquiry by the Court. The king's exercise of this jurisdiction, as visitor, is in the court of the king's bench, where all misbehaviors of this kind of corporations are inquired into and redressed, and all their controversies decided.
Eleemosynary Corporations. By the dotation, the founder and his heirs are of common right the legal visitors, to see that such property is rightfully employed, but if the founder has assigned such duty of visitation to another, then his assignee so appointed is vested with the founder's powers, to the exclusion of his heir. These corporations are chiefly hospitals or colleges in the universities. It is now held as established law, that colleges are lay corporations, though sometimes totally composed of ecclesiastical persons, and that the right of visitation does not arise from the principles of the canon law, but of necessity was created by the common law. IV. DISSOLUTION OF CORPORATIONS.
Disfranchisement. Any particular member may be disfranchised, by acting contrary to the laws of the society or the laws of the land, or he may voluntarily resign.
Reversion of the Property. But the body politic itself may be dissolved in several ways, which dissolution is its civil death. The lands and tenements shall revert to the person or his heirs, who granted them to the corporation, for the law annexes a condition to every such grant, that if the corporation be dissolved, the grantor shall have the lands again, because the object of the grant has failed. The grant is only during the life of the corporation, and when by any cause, that life be determined by the dissolution of the body politic, the grantor takes it back by reversion, as he would do in the case of every other grant for life.
Debts. The debts of a corporation, whether due by it to others, or from its debtors to the corporation itself, are extinguished by its dissolution, so that the members thereof cannot recover, nor on the other hand can they be charged in their natural capacities.
How Dissolved. A corporation may be dissolved:
2. By the natural death of all its members, in the case of an aggregate corporation.
3. By the surrender of its franchises into the hands of the king.
4. By forfeiture of its charter, through negligence or abuse of its franchises.
Quo Warranto. The regular course to effect a dissolution, is to bring an information in the nature of a writ 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 the law for state purposes in the reigns of Charles II and of James II, by the seizure of the charter of the city of London, gave great and just offence, though in strictness of law the proceedings may have been regular. This forfeiture of the city charter can never again occur, and in the future, no civil corporation shall be dissolved, on the ground of the failure to elect a mayor or commonalty on the day appointed in the charter.1
1 Yet refusing or neglecting to hold an election for officers, in accordance with the terms of the charter of a civil corporation, is certainly a ground for forfeiting such charter.