absolutely determines on failure to perform the condition.' But where the terms of a charter are, that the corporation shall be dissolved on non-performance of a condition, the mere failure to perform is not ipso facto a dissolution, but judicial proceedings, and a judgment of ouster must be had, in order to effect a dissolution." The proceeding to dissolve a corporation must be instituted in the country where the corporation is located; for neither the courts nor legislatures of this country can adjudge a forfeiture of the property or franchises of a foreign corporation. The forfeiture of a charter can be enforced in a court of law only; for though a court of chancery may hold trustees of a corporation accountable for abuse of trust, it cannot divest it of its corporate character and capacity; unless, indeed, as is the case in New York, it be specially empowered by statute.'

The mode of proceeding against a corporation to enforce a repeal of the charter, or a dissolution of the body, for cause of forfeiture, is by scire facias, or an information in the nature of a quo warranto. "A scire facias," says Mr. Justice Ashurst, "is proper where there is a legal existing body, capable of acting, but who have been guilty of an abuse of the power entrusted to them; and a quo warranto is necessary, where there

6

1 People v. Manhattan Co. 9 Wend. (N. Y.) R. 351; Commonwealth v. Union Fire and Marine Insurance Co. 5 Mass. R. 232.

2

People v. Manhattan Co. 9 Wend. (N. Y.) R. 351; Bank of Niagara v. Johnson, 8 Wend. (N. Y.) R. 645; Bear Camp River Co. v. Woodman, 2 Greenl. (Me.) R. 404.

3 Society, &c. v. New Haven, 8 Wheat. R. 483, 484; The People of Vermont v. The Society for Propagating the Gospel, 1 Paine C. C. R. 653.

The King v. Whitwell, 5 T. R. 85; Attorney-General v. Reynolds, 1 Eq. Cas. Abr. 131, pl. 10; 3 Johns. (N. Y.) R. 134, per Van Ness, J.; Slee v. Bloom, 5 Johns. (N. Y.) Ch. R. 380; Attorney-General v. Utica Ins. Co. 2 Johns. (N. Y.) Ch. R. 376, 378, 388; Attorney-General v. Earl of Clarendon, 17 Ves. 491; Bayless v. Orne, 1 Freeman (Miss.) Ch. R.

173.

L. (N. Y.) sess. 40, ch. 146, and sess. 44, ch. 148; and sess. 48, ch. 325.

• Rex v. Pasmore, 3 T. R. 244; and see Smith's Case, 4 Mod. 57; Rex v. Wynne, 2 Barnard, 391.

1

is a body corporate de facto, who take upon themselves to act as a body corporate, but from some defect in their constitution, they cannot legally exercise the power they affect to use." It would seem, however, that an information in the nature of quo warranto would lie against a legally existing corporation for an abuse of its franchises, as well as a writ of scire facias.* Where a charter has been granted upon an erroneous consideration, or been fraudulently obtained, or is otherwise voidable, either in whole or part, it may be repealed entirely, or as to the voidable part only, without affecting the remainder, by proceedings in scire facias. If, however, the charter is absolutely void, this process is unnecessary; for a void charter can. afford no justification to any one acting under it. The process seems to be unnecessary, where the corporation is absolutely dissolved, by the loss of an integral part. A charter will not be avoided merely because it refers to a preceding charter as valid, which in fact was void, unless it be founded on such charter; nor if the facts stated by the grantee be true, though the king be mistaken in his inference of the law." And it is said, that if a corporate election be not made as the letters patent appoint, these may be repealed by scire facias; for all franchises are granted on condition that they shall be duly executed according to the grant.' Where a demurrer was

1 Rex v. Pasmore, 3 T. R. 244, 245; The Regents of the University of Maryland v. Williams, 9 Gill & Johns. (Md.) R. 365; and see chap. 21.

21 Black. Comm. 485; and see Case of City of London, cited 2 Kyd on Corp. 474 to 486, 487; The People v. The Bank of Niagara, 6 Cowen (N. Y.) R. 196; The People v. The Bank of Hudson, Ibid. 217; The People v. The Washington and Warren Bank, Ibid. 211.

3 Sackville College Cas. T. Ray. 178; Butler's Case, 2 Vent. 344; Rex v. Pasmore, 3 T. R. 244; 2 Chest. Case, 556; The President, &c. of the Kishacoquillas and Centre Turnp. Road Co. v. McConaby, 16 Serg. & Rawle (Penn.) R. 145; and see the Earl of Rutland's Case, 8 Co. 55 ; Rex v. Kemp, 12 Mod. 78.

Canal Co. v. Railroad Co. 4 Gill & Johns. (Md.) R. 1.

Rex v. Haythorne, 5 B. & C. 426.

Rex v. Pasmore, 3 T. R. 249, per Grose, J.

7 London v. Vanacre, 12 Mod. 271, per Holt, C. J.; S. C. 1 Ld. Raymd.

499.

put into a writ of scire facias, it was held, that its legal effect was the same as that of a demurrer to the declaration; for a declaration upon a scire facias is no more than a copy of the writ.' And if one demurs to the whole writ or declaration in a scire facias, in which several breaches of the conditions of a grant are assigned, some sufficient, and some not, judgment must go against him; for he should have demurred only to such as are insufficient. And this rule applies equally to a single count, part of which is good and part bad, when the matters are divisible in their nature."

$ 6. At common law, upon the civil death of a corporation, all its real estate remaining unsold reverts to the grantor and his heirs; for the reversion, in such an event, is a condition annexed by the law, inasmuch as the cause of the grant has failed. The personal estate, in England, vests in the king; and in our own county, in the people, or State, as succeeding to this right and prerogative of the crown.' The debts due to and from it are totally extinguished; so that neither the members nor directors of the corporation can recover, or be charged with them in their natural capacities; according to that maxim of the Civil Law, "si quid universitati debetur, singu

6

The People of Vermont v. The Society for Propagating the Gospel, 1 Paine, C. C. R. 660.

• Ibid.

3 Ibid.

Co. Lit. 13, b. 102 b.; Knight v. Wells, 1 Lut. 519; Edmunds v. Brown & Sillard, 1 Lev. 237; Attorney-General v. Lord Gower, 9 Mod. 226; Pollex. Arg. Quo. Warrant. 112; Colchester v. Seaber, 3 Burr. R. 1868, arg.; Rex v. Pasmore, 3 T. R. 199; State Bank v. State, 1 Blackf. (Ind.) R. 267; White v. Campbell et al. 5 Humphreys (Tenn.) R. 38; 4 Black. Comm. 484; 2 Kyd on Corp. 516; 2 Kent Comm. 246; see Chap. V. § 10, 2.

Ibid.

Edmunds v. Brown & Sillard, 1 Lev. 237; Rex v. Pasmore, 3 T. R. 241, 242; Cholchester v. Seaber, 3 Burr. 1866; Bank of Mississippi #. Wrenn, 3 Smedes & Marsh. (Miss.) R. 791; White v. Campbell et al. 5 Humphreys (Tenn.) R. 38; 1 Black. Comm. 484; 2 Kent Comm. 246.

3

2

lis non debetur; nec, quod debet universitas, singuli debent.” 1 The common law, in this particular, is, however, frequently modified by charter or statute. And where a corporation whose charter was declared forfeited by proclamation of the governor, under an act of the legislature, for not paying specie, was permitted by the act "to retain and use its corporate name for the purpose of winding up and liquidating its affairs, and for no other purpose whatever," this clause was held to continue to it all remedies for the collection of its debts. Upon the repeal of the charter of a joint stock corporation, the effects of the corporation are usually vested in trustees for the collection of its debts, and the division of its property and effects amongst the stockholders after payment of its debts and the expenses of the trust. In such case the right of the stockholders to pass a legal title to his stock ceases upon the dissolution of the corporation and his interest is reduced to a mere equitable right to his distributive share of the funds of the corporation. In the decision, he is to be charged with all debts due from him to the corporation, and his assignee, becoming such after the dissolution, takes his interest in the corporate funds subject to this burthen; and if such assignee or purchaser be a debtor of the corporation, the distributive share purchased or assigned becomes subject to his debts to the corporation, and remains so as against his assignee.'

7. Where a corporation has been dissolved, in England, the king may, either by grant," or by proclamation under the great seal, revive or renovate the old corporation, or by grant

1 Ff. 3, 4, 7.

2 Kent Comm. 247.

Campbell et al. v. The Mississippi Bank, 6 Howard (Miss.) R. 674; and see Nashville Bank v. Petway, 3 Humphreys (Tenn.) R. 522.

✦ James v. Woodruff, 10 Paige (N. Y.) Ch. R. 541.

Rex v. Grey, 8 Mod. 361, 362; Rex v. Pasmore. 3 T. R. 199.
Newling v. Francis, 3 T. R. 189, 197, 198, 199.

4

And the old corpo

or charter create a new one in its place.1 ration may be revived with the old or a new set of corporators; and at the same time, new powers may be superadded. If the old corporation be revived, all its rights and responsibilities are of course revived with it; but if the grant operate as a new creation, the new corporation cannot be subject to the liabilities nor possess the rights of the old. An authorized merger of the rights of the old corporation in the new one by legislative act, is not such a dissolution of the corporation, as to throw back the real estate of the former upon the grantors, or to free the corporation from an obligation to pay its debts. It may become therefore a question of great practical importance, whether the charter be one of revival merely, or a charter of new incorporation. This is not to be determined by the collateral facts, that the name of both corporations, the new and the old, that the officers and a majority of the members, are the same, and that the business of the old corporation was for a time. done, and its debts paid, by the new one. It is certainly true, says Mr. Justice Story, that a corporation may retain its personal identity, although its members are perpetually changing; for it is its artificial character, powers and franchises, and not the natural character of its members, which constitute that identity. And for the same reason corporations may be different, although the names, the officers, and

1 Colchester v. Seaber, 3 Burr. 1870; S. C. 1 W. Blk. 591; Rex v. Pasmore, 3 T. R. 242; Rex v. Amery, 2 T. R. 569; Scarboro' v. Butler, 3 Lev. 387; Luttrel's Case, 4 Co. 87; Lincoln and Kennebeck Bank v. Richardson, 1 Greenl. (Me.) R. 79; 2 Kyd on Corp. 516.

2 Rex v.

Pasmore, 3 T. R. 241, per Kenyon, C. J.

3 Colchester v. Seaber, 3 Burr. 1866; Scarboro' v. Butler, 3 Lev. 287; Rex v. Pasmore, 3 T. R. 241, 242, 246; Luttrel's Case, 4 Co. 87; Bellows v. President, Directors and Company of the Hallowell and Augusta Bank, 2 Mason, C. C. R. 43, per Story, J.; Union Canal Co. v. Young et al. 1 Whart. (Penn.) R. 410.

Union Canal Co. v. Young et al. 1 Whart (Penn.) R. 410.

Hopkins v. Swansea Corporation, 4 Mees. & Welsby (Ex.) R. 621.