nues is the foundation, and he who gives them is in law the founder: and it is in this last sense that we generally call a man the founder of a college or hospital. (b) But here the king has his prerogative: for, if the king and a private man join in endowing an eleemosynary foundation, the king alone shall be the founder of it. And, in general, the king being the sole founder of all civil corporations, and the endower the perficient founder of all eleemosynary ones, the right of visitation of the former results, according to the rule laid down, to the king; and of the latter to the patron or endower.

The king being thus constituted by law visitor of all civil corporations, the law has also appointed the place wherein he shall exercise this jurisdiction: which is the court of king's bench; where, and where only, all misbehaviours of this kind of corporations are inquired into and redressed, and all their controversies decided. And this is what I understand to be the meaning of our lawyers when they say that these civil corporations are liable to no visitation; that is, that the law having by immemorial usage appointed them to be visited and inspected by the king, their founder, in his majesty's court of king's bench, according to the rules of the common law, they ought not to be visited elsewhere, or by any other authority. (c) And this is so strictly true, that though the king by his letters patent had subjected the college of physicians to the visitation of four very respectable persons, the lord chancellor, the two chief justices, and the chief baron; though the college had accepted this charter with all possible marks of acquiescence, and had acted under it for near a century; yet in 1753, the authority of this provision coming in dispute, on an appeal preferred to these supposed visitors, they directed the legality of their own [*482] appointment to be argued; and as this college was merely a civil and not an eleemosynary foundation, they at length determined, upon several days' solemn debate, that they had no jurisdiction as visitors; and remitted the appellant, if aggrieved, to his regular remedy in his majesty's court of king's bench. (14)

As to eleemosynary corporations, by the dotation the founder and his heirs are of common right the legal visitors, to see that such property is rightly employed, as might otherwise have descended to the visitor himself: but, if the founder has appointed and assigned any other person to be visitor, then his assignee so appointed is invested with all the founder's power, in exclusion of his heir. Eleemosynary corporations are chiefly hospitals, or colleges in the universities. These were all of them considered, by the popish clergy, as of mere ecclesiastical jurisdiction: however, the law of the land judged otherwise; and with regard to hospitals, it has long been held, (d) that if the hospital be spiritual, the bishop shall visit; but if lay, the patron. This right of lay patrons was indeed abridged by statute 2 Hen. V, c. 1, which ordained, that the ordinary should visit all hospitals founded by subjects; though the king's right was reserved to visit by his commissioners such as were of royal foundation. But the subject's right was in part restored by statute 14 Eliz. c. 5, which directs the bishop to visit such hospitals only where no visitor is appointed by the founders thereof: and all the hospitals founded by virtue of the statute 39 Eliz. c. 5, are to be visited by such persons as shall be nominated by the respective founders. But still, if the founder appoints nobody, the bishop of the diocese must visit. (e) Colleges in the universities (whatever the common law may now, or might formerly, judge). were certainly considered by the popish clergy, under whose

(b) 10 Rep. 33.

(c) This notion is perhaps too refined. The court of king's bench (it may be said), from its general superintendent authority, where other jurisdictions are deficient, has power to regulate all corporations where no special visitor is appointed. But not in the light of visitor; for as its judgments are liable to be reversed by writs of error, it may be thought to want one of the essential marks of visitatorial power. (d) Yearbook, 8 Edw. III, 28. 8 Ass. 29. (e) 2 Inst. 725.

(14) In the United States the legislature is the visitor of all corporations created by it, where there is no individual founder or donor, and may direct judicial proceedings against such corporations for such abuses or neglects as would at common law cause a forfeiture of their charters. Amherst Academy v. Cowls, 6 Pick. 433.

direction they were, as ecclesiastical, or at least as clerical, corporations: and therefore the right of visitation was claimed by the ordinary of the *dio

cese.

This is evident, because in many of our most ancient colleges, [*483 ]

where the founder had a mind to subject them to a visitor of his own nomination, he obtained for that purpose a papal bull to exempt them from the jurisdiction of the ordinary; several of which are still preserved in the archives of the respective societies. And in some of our colleges, where no special visitor is appointed, the bishop of that diocese, in which Oxford was formerly comprised, has immemorially exercised visitorial authority; which can be ascribed to nothing else but his supposed title as ordinary to visit this, among other ecclesiastical foundations. And it is not impossible that the number of colleges in Cambridge, which are visited by the bishop of Ely, may in part be derived from the same original.

But whatever might be formerly the opinion of the clergy, it is now held as established common law, that colleges are lay corporations, though sometimes totally composed of ecclesiastical persons; and that the right of visitation does not arise from any principles of the canon law, but of necessity was created by the common law. (f) And yet the power and jurisdiction of visitors in colleges was left so much in the dark at common law, that the whole doctrine was very unsettled till the famous case of Philips and Bury. (g). In this the main question was, whether the sentence of the bishop of Exeter, who, as visitor, had deprived Doctor Bury, the rector of Exeter College, could be examined and redressed by the court of king's bench. And the three puisne judges were of opinion that it might be reviewed, for that the visitor's jurisdiction could not exclude the common law; and accordingly judgment was given in that court. But the Lord Chief Justice Holt was of a contrary opinion; and held, that by the common law the office of visitor is to judge according to the statutes of the college, and to expel and deprive upon just occasions, and to hear all appeals of course: and that from him, and him only, the party grieved ought to have redress; the founder having reposed in him so entire a confidence, that he *will administer justice impartially, that his determinations are final, and examinable in no other court whatsoever. And upon this, a writ of [*484] error being brought into the house of lords, they concurred in Sir John Holt's. opinion, and reversed the judgment of the court of king's bench. To which leading case all subsequent determinations have been conformable. (15) But, where the visitor is under a temporary disability, there the court of king's bench will interpose to prevent a defect of justice. (h) Also it is said, (i) that if a founder of an eleemosynary foundation appoints a visitor, and limits his jurisdiction by rules and statutes, if the visitor in his sentence exceeds those rules, an action lies against him; but it is otherwise where he mistakes in a thing within his power.

IV. We come now, in the last place, to consider how corporations may be dissolved. Any particular member may be disfranchised, or lose his place in the corporation, by acting contrary to the laws of the society, or the laws of the land; or he may resign it by his own voluntary act. (k) (16) But the body (g) Lord Raym. 5. 4 Mod. 106. Show, 85, Skinn. 407. Salk. 403, Carthew, 180. (i) 2 Lutw. 1566. (k) 11 Rep, 98.

(f) Lord Raym. 8. (h) Stra. 797.

(15) See King v. Master, &c., of St. Katharine's Hall, 4 T, R. 233; also cases cited in re Downing College, 2 My. and Cr. 642.

(16) [Every member or officer of a corporation may resign his place or office, and a corporation has power to take such resignation. 1 Sid. 14. A resignation by parol, if entered and accepted, is sufficient. 2 Salk. 433. Accepting another office incompatible with the other implies a resignation. 3 Burr. 1615. If a resignation be once accepted, the party cannot afterwards claim to be restored. 1 Sid. 14; 2 Salk. 433,

A corporation may for good cause remove an officer from his office; 2 Stra. 819; Sir T. Ray. 439; and this is incident to a corporation without charter or prescription: 1 Burr. 517: sed. vid. 11 Co. 99, a; Style, 477, 480; 1 Lord Ray. 392; 2 Kyd, 50, &c., a mandamus lies to compel a removal. 4 Mod. 233. If the member do any thing contrary to the duty of his place or oath he is removable. 11 Co. 99, a. If an alderman be a common drunkard he is remov

politic may also itself be dissolved in several ways, which dissolution is the civil death of the corporation; and in this case their lands and tenements shall revert to the person, or his heirs, who granted them to the corporation for the law doth annex a condition to every such grant, that, if the corporation be dissolved, the grantor shall have the lands again, because the cause of the grant faileth. (1) The grant is, indeed, only during the life of the corporation; which may endure forever: but when that life is determined by the dissolution of the body politic, the grantor takes it back by reversion, as in the case of every other grant for life. (17) The debts of a corporation, either to or from it, are totally extinguished by its dissolution; so that the members thereof cannot recover, or be charged with them, in their natural capacities; (m) (18) agreeable to that maxim of the civil law," si quid universitati debetur, singulis non debetur ; nec, quod debet universitas, singuli debent." (n)

able for it. 2 Rol. 455, 1. 20; Dub. 1 Rol. 409; so if he removes from the borough and refuses attendance without lawful excuse. 4 Mod. 36; Semb. Show. 259; 4 Burr. 2087; and see further 9 Co. 99; Sir T. Raym. 438; Sty. 479. From the decisions on this subject, it appears that mere non-residence, without any particular inconvenience arising to the corporation from it, and where the charter does not require it, is no cause for removal. See cases collected in 3 B. and C. 152. And a corporate office does not become ipso facto vacant by the non-residence of the corporator; a sentence must be passed. 2 T. R. 772. Where a charter does not require the members of a corporation to be resident, the court will not grant a mandamus command ing the corporation to meet and consider of the propriety of removing from their offices non-resi dent corporators, unless their absence has been productive of some serious inconvenience. 3 B. and C. 152. As to what is a cause for removal, 2 Kyd. 62, 94.

A ministerial officer chosen durante bene placito may be removed ad libitum, as a town clerk: 1 Vent. 77, 82; Ray. 188; 1 Lev. 291; a recorder, 1 Vent. 242; 2 Jones, 52. And a custom to remove an officer ad libitum is good: Dy. 332, b.; Cro. J. 540; 2 Salk. 430; but generally an officer cannot be removed without good cause, though the charter says generally he may be removed: Dy. 332, b.; or though it says he may be chosen for life si viderint expedire. 1 Lev. 148. If, however, a charter, by express words, empower either the corporation at large or a select body to remove an officer at pleasure, or empower them to choose him during pleasure, they may in either case remove him without cause. Sir T. Jones, 52; 3 Keb. 667; Sir T. Raym. 188. Though the election be general, if it be not under the common seal, the officers thereby elected may be removed ad libitum. 2 Jones, 52; 1 Vent. 355. A common freeman cannot in any case be deprived of his freedom ad libitum of the corporation at large, or of any select body. Cro. J. 540; Sir T. Raym. 188; 1 Lord Ray. 391.

A removal must in general be by the act of the whole body. If a special power to remove be delegated to part of the body it must be shown. Cowp. 502, 503, 504; Dougl. 149. To this power of amotion the power of holding a corporate meeting for that purpose is neces sarily incident. Dougl. 153, 155. A party cannot be removed but by the corporate act under seal. 5 Mod. 259. There must be a summons for the mayor, &c., expressly to meet for the purpose of deciding as to the removal: 1 Stra. 385; and every member of the assembly must be summoned where a summons is necessary. 2 Stra. 1051. A corporation cannot in general remove a member without summoning the party to answer for himself and hearing him, for he may have a good excuse. 11 Co. 99, a.; 1 Sid. 14. In some cases this may be dispensed with, and where non-residence is a good cause of amotion, it is unnecessary, before proceeding to amove the party, to summon him to come and reside. Dougl. 149. But if he be remov able for non-attendance at the corporate assemblies, he must have had personal notice to attend, and that his presence was necessary; the usual notice of the intended meeting will not be sufficient, unless that usual notice be personal. 1 Burr. 517, 527, 540. Where an officer is removable ad libitum, he may be removed without summons or hearing of him, &c. 1 Sid. 15; 1 Lev. 291. In general the summons should show the particular charge alleged against the party to be removed: 11 Co. 99, a.; 4 Mod. 33, 37; but sometimes this is unnecessary, 1 Lord Raym. 225, 2d ed. 1240; especially where the party by his act dispenses with it. 2 Burr. 723; 1 Kyd. 439, 447.

An

If a member be improperly amoved a mandamus lies. Where it is confessed that a man has been rightly removed from an office, the court will not grant a mandamus for a restoration, though he had no notice to appear and defend himself. Cowp. 523; 2 T. R. 177. order of restoration of a corporator illegally disfranchised relates to the original right. Cowp. 503. (17) [But if the corporation have granted over their possessions to another before their dissolution, they do not return to the donor: 1 Rol. 816, 1. 10, 20, and vide the cases collected in Bac. Ab. Corp. J.; if lands are given to a corporate body and it is dissolved, they will revert to the donor and not escheat. 9 Mod. 226.]

(18) See note 21, p. 485.

*A corporation may be dissolved, 1. By act of parliament, which is boundless in its operations. (19) 2. By the natural death of all its mem- [*485] bers, in case of an aggregate corporation. (20) 3. By surrender of its franchises into the hands of the king, which is a kind of suicide. 4. By forfeiture of its charter, through negligence or abuse of its franchises; in which case the law judges that the body politic has broken the condition upon which it was incorporated, and thereupon the incorporation is void. And the regular course is to bring an information in nature of a writ of 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 law, for the purposes of the state, in the reigns of King Charles and King James the Second, particularly by seizing the charter of the city of London, gave great and just offence; though perhaps, in strictness of law, the proceedings in most of them were sufficiently regular: but the judgment against that of London was reversed by act of parliament (o) after the revolution; and by the same statute it is enacted, that the franchises of the city of London shall never more be forfeited for any cause whatsoever. And because, by the common law, corporations were dissolved, in case the mayor or head officer was not duly elected on the day appointed in the charter, or established by prescription, it is now provided, (p) that for the future no corporation shall be dissolved upon that account; and ample directions are given for appointing a new officer, in case there be no election, or a void one, made upon the prescriptive or charter day. (21)

(19) [The king cannot by his prerogative destroy a corporation. Rex v. Amley, 2 Term R. 532.1

(20) [But, if the king makes a corporation consisting of twelve men to continue always in succession, and when any of them die the others may choose another in his place, it may be so continued. Roll. 524; Bac. Ab. tit. Corp. G. But, where a corporation consists of several distinct integral parts, if one of these parts become extinct, whether by the death of the persons of whom it is composed, or by any other means, the whole corporation is dissolved. 3 Burr. 1866. When an integral part of a corporation is gone, and the corporation has no power to restore it, or to do any corporate act, the corporation is so far dissolved that the crown may grant a new charter. 3 T. R. 199. And when the major part of an integral part of a corporation whose attendance is required at the election of officers, being gone, it operates as a dissolution of the whole corporation, which has thereby lost the power of holding corporate assemblies for the purpose of filling up vacancies and continuing itself. 3 East, 213. And where the election of mayor was to be made by the majority of an assembly composed of several integral definite parts of a corporation and other burgesses and inhabitants for the time being, it was held that one of such definite integral parts, being reduced below its majority of a proper number, could no longer be represented in such corporate assembly, and the whole corporation was thereby dissolved, being no longer capable of continuing itself. 4 East, 17.]

(21) It is a tacit condition of a grant of incorporation that the corporators shall act up to the end or design for which they were incorporated; and hence, through neglect or abuse of its franchises. a corporation may forfeit its charter as for condition broken, or for a breach of trust. A. and A. on Corp. § 774, and cases cited. It is said, however, that the mere omission by a corporation to exercíse its powers does not, of itself, disconnected with any other acts, work a forfeiture of the charter: Sandford Ch.. Attorney-General v. Bank of Niagara, 1 Hopk. 361; but this can hardly be universally true, and in several cases the chartered privileges of banks, it has been held, may be forfeited by suspension of specie payments. State v. Commercial Bank, 10 Ohio, 535; People v. Bank of Pontiac, 12 Mich. 527; see State v. Bank of South Carolina, 1 Speers, 441; Attorney-General v. Bank of Michigan, Har. Ch. 315. So a usurpation of other franchises than those conferred by the charter may be cause of forfeiture. People v. Utica Ins. Co., 15 Johns. 358; People v. Oakland County Bank, 1 Doug. Mich. 282; People v. River Raisin and Lake Erie R. R. Co., 12 Mich. 389. But in any case the neglect or abuse must be wilful; not merely the result of accident or mistake, State v. Royalton Turnpike Co., 11 Vt. 431; People v. Hillsdale Turnpike Co., 23 Wend. 254.

The forfeiture of chartered privileges must be declared in a direct proceeding taken on behalf of the state for that purpose, and cannot be taken advantage of by a private individual in any collateral suit or proceeding. Dyer v. Walker, 40 Penn. St. 157; Vermont and Canada R. R. Co. v. Vermont Central R. R. Co., 34 Vt. 57; Heard v. Talbot, 7 Gray, 120; Cahill v. Kalamazoo Ins. Co. 2 Doug. Mich. 124; Young v. Harrison, 6 Ga. 130; Roudell v. Fay, 32 Cal. 354; Wood v. Coosa, &c., R. R. Co., 32 Ga. 273. And the state may waive the forfeiture, and will be held to do so by

any distinct legislative act inconsistent with an intent to enforce it. See Lumpkin v. Jones, 1 Kelly, 30; Commercial Bank v. State, 6 Smedes and M. 622: People v. Kingston Turnpike Co., 23 Wend. 193.

The modes in which a private corporation in the United States may be dissolved have been said to be three: 1. By the death of its members. 2. Surrender of its franchises. 3. A judgment of forfeiture for non-user or abuse. Trustees of McIntire Poor School v. Zanesville C. and M. Co., 9 Ohio, 289. Where, however; the corporate powers are vested in shareholders whose shares are property, and pass to personal representatives on the death of the owner, it is difficult to perceive how a corporation can cease to exist in the first mode mentioned. To these should be added the determination of corporate powers by the expiration of the period for which they were originally granted, and the repeal of the charter by the legislature where the right to repeal was reserved in granting it, or is given by the constitution of the state under which the charter was obtained. The right to the personal property of a corporation upon its dissolution, which, in England, is in the king, in the United States, is in the people. It is customary, however, either by general or special laws, to make provision for applying the property of corporations, both real and personal, at the time of their dissolution, to the satisfaction of their debts, and for a distribution of the surplus among the corporators; and by that means the hardships attending a dissolution at the common law are averted.

THE END OF THE FIRST BOOK.

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