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OF MASTER AND SERVANT. 69
done by the servant, either in going for, or after he had set down his mas-
Of Corporations. *
A corporation is a union of a number of natural persons for some particu"object, invested with definite powers, and capable of perpetual succes". The following appropriate description by Judge Marshall is too el*nt to be omitted, and so correct that it cannot be amended.(a) A cor*tion is an artificial being, invisible, intangible and existing only in con
"plation of law. Being the mere creature of law, it possesses only those 2% £perties, which the charter of its creation confers upon it, either express. "
yo as incidental to its very existence. These are such as are supposed
best calculated to effect the objects for which it is created. Among the most important are immortality, and if the expression may be allowed, individuality; properties by which a perpetual succession of many persons are considered as the same, and may act as a single individual. They enable a corporation to manage its own affairs, and to hold property without the perplexing intricacies, the hazardous and endless necessity of perpetual conveyances for the purpose of transmitting it from hand to hand. It is chiefly for the purpose of clothing bodies of men with these qualities and capacities that corporations are invented and are in use. By these means a perpetual succession of individuals are capable of acting for the promotion of the particular object, like one immortal being." Corporations are aggregate or sole. An aggregate corporation consists of a number of persons. A sole corporation consists of one person only, and is incorporated to perpetuate some particular right. We have none of this description, and our enquiries will be conﬁned to aggregate corporations. The legislature only has the power to create and establish corporations. They may be created for any proper purpose, and may be endowed with very different powers, but there are certain general powers incident to all corporations, which I shall consider. 1. Every corporation must have a name by which it is known and called, and by which it is to transact business and do all legal acts.(b) Such name is the very being of its constitution and the knot of its combination, without which it could not perform its corporate functions : for it is by this alone that it can be distinguished as having a legal existence. Where a deed is made to a corporation by a name varying from the true name, the plaintiffs may sue in their true name, and aver in the declaration, that the defendant made the deed to them by the name mentioned in the deed.(c) 2. It must have perpetual succession, for this is the object of its institution. This may be effected by giving the members a power to fill vacancies by election, as is the case of literary institutions. Where the objects of the corporation is the management of money concerns or other property, the rights or shares are transferable to assignees, or will go to the heirs or representatives of a deceased member, and such assignees, heirs or representatives will thereby become members of it,as in the case of Banks. Where corporations are established within certain local limits, as cities and towns, the inhabitants living within such limits constitute the members. 3. It must be capable to sue, and be sued, implead or be impleaded, grant and receive by its corporate name and do all other acts as natural persons may, for this is essential to give it the capacity of acting like an individual. Action on implied assumpsit will lie against a corporation.(d) 4. It must be capable of purchasing, holding and conveying lands as well as things personal.
5. It must have a common seal to evidence its corporate acts. /,'•?• 6&*» ft'6. It must have the powerof making by-laws, or private statutes, forlhe government of the corporation, for the management of their concerns, and for the regulation of their business. These bye-laws must be pursuant to the power delegated to them by their charter, or act of incorporation, and all acts and proceedings not warranted by it will be void. Where a general power was given by the charter of a company to the directors to manage the stock, property and affairs of the corporation, it was determined that this did not enable them to apply to the legislature for (b) 1 BI . Com. 502. (c) 13. John. 38. (d) 14 John. 118.
OF CORPORATIONS. 71
an enlargement of the company's powers, and that a resolve passed on such application without any authority from the company, was void. Where a power is granted by the legislature to an incorporated company, to raise a fund in addition to their capital stock, by assessment upon the stockholders, such power can be exercised only by the stockholders at a proper meeting.(e) Corporations are always vested with the power of appointing certain officers and agents to manage their concerns, and by whose instrumentality only, they are capable of transacting their business. Corporations can only speak and act by the votes of the members in a kgal meeting, which must be recorded by some proper officer, duly appoinled and authorized for that purpose. The declarations of individual memhers cannot be evidence against the corporation, nor can they do any acts to affect the corporate rights—as to controul a suit or admit or discharge a debt. In the acts constituting banks and other corporations, regulations are made with regard to the mode in which they are to transact their business, ind tender their engagements obligatory. To enable them to enforce the engagements made for their benefit, they must act within the scope of their authority, and conformable to the directions of law. In all cases where tanks and similar corporations conform to their charter, their acts are binding on them. So in cases where they do not conform literally to their char*t, they may be liable. Suppose a banking corporation should by a vote, #te to issue bills in a different form, or with different signatures from those 'escribed, they would by their own act be rendered liable to pay them. | "ch a corporation without a vote should introduce a usage and practice in the transaction of their business, different from that pursued by law, they would by the same reason be rendered liable. For though such conduct might be improper in itself, yet the banks cannot take advantage of their own wrong, to avoid their contracts. It cannot be supposed that in £eneral, those who dealt with them had knowledge of their deviation from their charter regulations: and it is to be presumed that they act according to h". If it be admitted that banks may thus deviate and thus avoid their tunincts, they would be enabled to practise the greatest fraud on the com"unity, especially in a country where there is such an immense number of monied institutions as in this, and where it is practicable for very few to know the extent of their powers and regulations. Banks, like individuals "st beliable in the character which they hold out to the world: and what"er may be the form of their obligation, if they are according to their thirter, their corporate votes, or their known usage and practice, they "ght to be binding. A corporate act is not required in all cases. It is sufficient if there be a *ge and practice, under such circumstances as may be presumed to be within the general knowledge and by the consent of the company. Nor "the stockholders or members of the company be subjected to any intonvenience or damage. If any officer vested with certain powers, should many instance violate them, and attempt illegally to subject the corpora"to any obligation, such corporation may instantly on the discovery
*ow the act, and prevent a repetition: and then as there will be neither
bwnor usage to sanction the transaction it will not be binding. But where * Corporation will suffer such practice to continue, it is to be presumed
"titis done with their consent and shall be made obligatory on them.(f) |
By the common law, corporations must appear by attorney (g) and by statute they must appear to prosecute or defend by agent or attorney, and the suit should be brought in the name of the corporation by their agent or attorney.(h) As a corporation is an invisible, intangible being, it cannot commit a trespass or a crime, nor is it susceptible of a battery or any personal injury. It cannot be an executor or administrator, or perform any personal duties. It cannot be imprisoned : of course execution must go against the estate only of the corporation: By our practice, execution goes against the estate of individual members of the corporation in the case of towns and societies : and the person whose estate is taken has a claim for indemnity against the corporation. If visible estate of the corporation cannot be found sufficient to satisfy an execution against it, the creditor may apply to a court of equity who will enforce the payment of the debt. Action will not lie against the individual members of a corporation for acts erroneously done by them in a corporate capacity, from which detriment happens to the plaintiff: but to renderthem liable, it is necessary that the acts should have been done wilfully and maliciously.(i) An action of trespass on the case will lie against a corporation aggregate, for neglect of a corporate duty by which the plaintiff has suffered an injury.(k)
In an action by a corporation, the defendant may plead in bar that there is no such corporation, and the plaintiff must reply, specially setting forth how they are a corporation. (1) ^iJfk,*^/*>, The dissolution of a corporation may be effected by the death of all its /y Jt^,,,, Ayf^nembers, by the surrender of the franchise into the hands of the legisla— • <3—lature,or by the forfeiture of the charter by negligence, or abuse of its powers and privileges. In the case of a forfeiture the queston may be tried on a writ of quo -warranto: which is issued to enquire by what authority, the members exercise their corporate powers—and if it be found they have done acts amounting to a forfeiture, the charter may be vacated.(m)
fe) 1 Bl. Com. 503. (h) Statutes 131. (i) 1 East . 555. (k) 7 M. T. R. 169. 3. amp. 551. (1) 18 John. 137. (m) 1 Bl. Com. 512.
i CHAPTER I.
THINGs are naturally divided into real and personal. Things real, are permanent and substantial.(a) They are immovable, as to place, and Perpetual, as to duration. Things personal, may properly be called also movable; they are the reverse of things real: the owner can remove them lim place to place: their duration is uncertain, and they are subject to dange and to perish. Such is the natural division of things, and it comprehends every species: but the institutions of civil society have made *cessary other divisions of property; for the purpose of regulating its "provement and enjoyment. Things then are, again, divided into corMeal and incorporeal, or into corporeal hereditaments and incorporeal "editaments. A corporeal hereditament is visible and tangible; an in"poreal hereditament is an ideal right, existing only in contemplation of #", issuing out of substantial corporeal property, either real or personal. Personal things have been divided into chattels real, and chattels personal. Challels real, are defined to be a compound of real and personal things, pos*ing he immobility of the one and the limited duration of the other; as an *tie for years in land, the land being immovable, but the term to expire in a limited period. Chattels personal, comprise things which are "eable, and are divided into things personal in possession, and ": personal in action, or, in the language of the law, choses in action, which are mere rights of actions, as debts. - Things real, consist of lands, tenements, and hereditaments.(b) Land, "is legal and most extensive signification, comprehends every kind of Ralproperty of a corporeal nature. It includes any ground, soil, or earth, whatever, as arable, meadows, pastures, wood, moors, waters, marshes, tries, and heath. It also, in its legal meaning, comprehends all houses "d buildings, whatever, standing on the land: for they consist of two things, the ground being the foundation, and the structure thereon; of "se, if theland or ground be conveyed, the building annexed to it, is transierred with it.
land, in its most natural and vulgar meaning, includes nothing but earth:
t the law has annexed to it this artificial meaning, by which it compreends every thing in a direct line to the heavens, and every thing down"rds in a directline to the centre of the earth: and the maxim is, cujus est "lim, jusest usque ad culum. No person therefore has a right to erect a
(a) 2 Bl. Com. 16. (b) Co. Lit. 6, Wol. I. 10