"And it is to be known that every corporation, or incorporation, or body politic or incorporate, which are all one, either stands upon one sole person, as the king, bishop, parson, etc, or aggregate of many, as mayor, commonalty, dean, and chapter, etc., and these are in the civil law called universitas sive collegium. Now it is to be seen what things are of the essence of a corporation. 1. Lawful authority of incorporation, and that may be by four means, sc. by the common law, as the king himself, etc.; by authority of parliament; by the king's charter; and by prescription. The 2d, which is of the essence of the incorporation, are persons to be incorporated, and that in two manners, sc. persons natural, or bodies incorporate and political. 3. A name by which they are incorporated. 4. Of place, for without a place no incorporation can be made. 5. By words sufficient in law, but not restrained to any certain, legal, and prescript form of words."+ 66 . . . . When a corporation is duly created all other incidents are tacitly annexed. And for direct authority in this point in 22 E. 4, Grants, 30, it is held by Brian, chief justice, and Choke, that corporation is sufficient without the words to implead and be impleaded, etc., and therefore divers clauses subsequent in the charters are not of necessity, but only declaratory, and might well have been left out, as 1. By the same to have authority, ability, and capacity to purchase, but no clause is added that they may alien, etc., and it need not, for it is incident. 2. To sue and be sued, implead and be impleaded. 3. To have a seal, that is also declaratory, for when they are incorporated they may make or use what seal they will. 4. To restrain them from aliening or devising but in 1" To the essence of a . . . . body, to do things that concern their corcorporate two things are only req-|poration, or otherwise there is no uisite, sc. an incorporation and a corporation." Viner's Abridgment, gift, and not any words of fundare, Tit. Corp. (A. 2.) 1. exegire, and stabilere, or words to that effect." Case of Sutton's Hospital, 10 Rep. 28 a. 4 Sutton's Hosp., 10 Rep. 29 b. 5"A corporation cannot do an act in pais without their common seal, 2 Compare Franklin Bridge Co. v. yet they may do an act upon record." Wood, 14 Ga. 80. 3 A corporation is a body politic, consisting of material bodies, which, joined together, must have a name Viner's Abt., Tit. Corp. (G. 2.) 9; see Com. Dig. Franchise, F. 13, and 1 Kyd, 259–268. prevented them, however, from receiving legacies or enjoying revenues through fidei commissæ, or trusts, created in their favor.1 porations. Dissolution. § 6. If the objects of incorporation were illegal, the corporation was liable to be dissolved by the state, which Illegal cor- always had the power to dissolve corporations, even against the will of the members; though the members, without the consent of the state, could not bring about a dissolution any more than they could incorporate themselves. Moreover, a dissolution of the corporation was not effected by the death of all its members. Corporate capacities. § 7. The right of a corporation to make by-laws for the regulation of its affairs appears to be as old as the Twelve Tables; and, not unlikely, the right to sue and be sued is equally ancient. A municipal corporation could have possessio, and, therefore, could acquire proprietas through usucapio. And a municipal corporation, moreover, through its constitutional representatives, could acquire rights and incur obligations. But, if its representatives borrowed money on its behalf, it was liable to repay only the part actually applied to its use. Execution against a corporation took place in the same manner (by a missio in possessionem) as against the property of an individual. Criminal law did not apply to corporations; neither could they be held liable in 10 hängigen Anstalten gleichsam zu verkörpern." System, ii. 264. After Constantine pia corpora could take as heres, through universal succession. Sav., System, ii. 301, 308; and by a law of the Emperor Leo, A. D. 469, municipal corporations received the same privilege. See Codex, vi. lex 24, § 12. 1 Dig., xxxviii. 3, lex 1; and Sav., System, ii. 305, and authorities there cited. 2 But on dissolution of the corporation, the members could divide the corporate funds among themselves. Dig., xlvii. 22, lex 3 pr. See Sav., System, ii. 257, note o. 3 Sav., System, ii. 280. Sav., System, ii. 280. 5 "Gaius, libro quarto ad legem duodecem tabularum. Sodales sunt, qui eiusdem collegii sunt, quam Graeci & Taι pɛtav vocant. His autem potestatem facit lex pactionem quam velint sibi ferre, dum ne quid ex publica lege corrumpant. Sed haec lex videtur ex lege Solonis translata esse." Dig., xlvii. 22, lex 4. Dig., iii. 4, lex 7 pr. See Dig., iii. 4, lex 2. 7 Dig., xli. 2, lex 2. 8 Dig., xii. 1, lex 27; see Sav., System, ii. 294. 9 See Sav., System, ii. 297. actions arising ex delicto, unless they had been enriched through the wrong.1 2 Corporate ment. $S. As to the management of the affairs of corporations. under the Roman law, little is known; and the few passages in the Pandects relating to this topic seem manageapplicable only to municipal corporations. For the transaction of important business, the presence of two-thirds of the members seems to have been necessary to constitute a quorum, which number present, a majority vote was decisive.3 9. From the Roman rule that the heres succeeded to the legal personality of the deceased arose the peculiar conception of what many maintain to have been regarded by the Roman law as a legal person, hereditas jucens. This was the sum of the rights and liabilities of the deceased at the time of his death, regarded as subsisting by itself as a unit or a whole, until it should be determined who was to be the heres; "hereditas personae vice fungitur, sicuti municipium et decurio et societas."4 1 Sav., System, ii. 317. "But it is doubted whether an action for fraud lies against cities. I think it should not lie; for how can a city be guilty of fraud? But if the city has been enriched through the fraud of its officers, I think an action should lie." Dig., iv. 3 lex 15, § 1. See Grotius, De Jure Belli, ii. xxi. 7. "Hereditas jacens." generally, were intended by the authors of them to refer to municipal corporations only. 3 See Sav., System, ii. 324 et seq. Dig., 1. 9, leges 2 and 3; Codex, x. 31, lex 45; Dig., 1. 1, lex 19; Dig., iii. 4, leges 3 and 4; Grotius, De Jure Belli, ii. v. 17. 4 2 It is possible that some of the lex passages already cited as applicable 365. Dig., xlvi. 1, lex 21; Dig., xli. 3, 15 pr. See Sav., System, ii. 5 CHAPTER II. THE IDEA OF A CORPORATION IN THE COMMON LAW.1 Relation of the common to the Ro- Capacity to hold lands, § 18. man law, § 10. Capacity to make by-laws, § 19. Coke's idea of a corporation, §§ 11- Dissolution, § 20. 13. Blackstone's idea of a corporation, §§ 14, 15. Perpetual succession, § 16. Capacity to sue and use a seal, § 17. Relation of mon to the Doctrine that a corporation is a per son, §§ 21, 22. Classification of Corporations, §§ 22a -22f. § 10. THE early common law of corporations was largely borrowed from the Roman law. In the Roman the com system, however, there are not to be found the fantastic structures of split hairs, with which the common lawyers, aided by the philosophers of the schools delighted to adorn their system of jurisprudence. The "mysterious," "intangible," "invisible," "immortal," though "soulless" qualities of corporations are the creatures of the common law. Coke's idea § 11. In Coke on Littleton and Coke's Reports, the common law is embodied as in no other volumes. It is, thereof a corpo- fore, in the main, Coke's conception of a corporation ration. which is given in this chapter, the modifications and developments of later authorities being briefly noted. § 12. "A body politic," says Coke, "is a body to take in succession, framed (as to that capacity) by policy, and therefore it is called by Littleton a body politic; and it is called a corporation or a body incorporate, because the persons are made into a body, and of a capacity to take and grant, etc." 3 66 and 1 See Case of Sutton's Hospital, 10 Angell and Ames on Corporations, Rep. 1; Comyn's Digest, Title Introduction and chaps. i., ii., Franchise;" Coke on Lit., Thom-iii. as's Ed., Book I. chap. xiii.; Viner's Rolle's and Bacon's Abridgments, Title "Corporation; " Kyd on Corporations, Introduction; Blackstone's Com., Book I. chap. xviii.; 2 Kent's Com., Lecture xxxiii.; 2 E. g., the passage in Bracton, f. 7, concerning the ownership of public buildings is quoted from the Ins. of Justinian, ii. 1, § 6. 3 Co. Litt., 250 a. "And it is to be known that every corporation, or incorporation, or body politic or incorporate, which are all one, either stands upon one sole person, as the king, bishop, parson, etc, or aggregate of many, as mayor, commonalty, dean, and chapter, etc., and these are in the civil law called universitas sive collegium. Now it is to be seen what things are of the essence of a corporation. 1. Lawful authority of incorporation, and that may be by four means, sc. by the common law, as the king himself, etc.; by authority of parliament; by the king's charter; and by prescription. The 2d, which is of the essence of the incorporation, are persons to be incorporated, and that in two manners, sc. persons natural, or bodies incorporate and political. 3. A name by which they are incorporated.3 4. Of place, for without a place no incorporation can be made. 5. By words sufficient in law, but not restrained to any certain, legal, and prescript form of words." ".... When a corporation is duly created all other incidents are tacitly annexed. And for direct authority in this point in 22 E. 4, Grants, 30, it is held by Brian, chief justice, and Choke, that corporation is sufficient without the words to implead and be impleaded, etc., and therefore divers clauses subsequent in the charters are not of necessity, but only declaratory, and might well have been left out, as 1. By the same to have authority, ability, and capacity to purchase, but no clause is added that they may alien, etc., and it need not, for it is incident. 2. To sue and be sued, implead and be impleaded. 3. To have a seal, that is also declaratory, for when they are incorporated they may make or use what seal they will. 4. To restrain them from aliening or devising but in "To the essence of a . . . . body, to do things that concern their corcorporate two things are only req-poration, or otherwise there is no uisite, sc. an incorporation and a corporation." Viner's Abridgment, gift, and not any words of fundare, Tit. Corp. (A. 2.) 1. exegire, and stabilere, or words to that effect." Case of Sutton's Hospital, 10 Rep. 28 a. 4 Sutton's Hosp., 10 Rep. 29 b. 5 "A corporation cannot do an act in pais without their common seal, 2 Compare Franklin Bridge Co. v. yet they may do an act upon record." Wood, 14 Ga. 80. Viner's Abt., Tit. Corp. (G. 2.) 9; see Com. Dig. Franchise, F. 13, and 1 Kyd, 259–268. |