of some There are, also, other incidents and powers, which belong to some sorts of corporations. A corporation aggregate may take goods and chattels for the Other incidents benefit of themselves and their successors, but a corporation sole corporations. cannot(x); for such moveable property is liable to be lost or embezzled, and would raise a multitude of disputes between the successor and executor; which the law is careful to avoid. In ecclesiastical and eleemosynary foundations, the crown or the founder may give them rules, laws, statutes, and ordinances, which they are bound to observe: lay corporations, however, constituted for civil purposes, are subject to no particular statutes; but to the common law, and to their own by-laws, not being contrary to the laws of the realm(y). Corporations aggregate, also, which have by their constitution a head, as a dean, warden, master, or the like, cannot do any act during the vacancy of the headship, except appointing another: neither are they then capable of receiving a grant; for such corporation is incomplete without a head(z). But there may be a corporation aggregate constituted without a head(a); the component members whereof have no president or superior, but are all of equal authority. In a corporation aggregate, also, the act of the major part is esteemed the act of the whole(b). By the civil law this major part must have consisted of two-thirds of the whole; else no act could be performed (c); which perhaps may be one reason why by it were required three at least to make a corporation. But, with us, any majority is sufficient to determine the act of the whole body corporate. (189) And *whereas some founders of corporations had anciently made regulations [ *580] in derogation in this respect of the common law, and rendering necessary the unanimous assent of the society to any corporate act (which king Henry VIII. found to be a great obstruction to his projected scheme of obtaining (x) Co. Litt. 46 b. (y) Lord Raym. 8. (2) Co. Litt. 263, 264. (a) 10 Rep. 30. (b) Bro. Abr. tit. Corporation, 34. (c) Dig. 3, 4, 3; Colquhoun's Civil Law, s. 885. Moore v. Fitchburg R. R., 4 Gray, 465; Eastern Counties Railway Co. v. Broom, 6 Exch. 314; 15 Jur. 297; 20 L. J. Exch. 196; Ramsden v. Boston & Albany R. R. Co., 104 Mass. 117; S. C., 6 Am. Rep. 200. See note 134. So of an action for a malicious prosecution. Vance v. Erie R. Co., 3 Vroom (N. J.), 334. See, contra, Childs v. Bank of Missouri, 17 Mo. 213. An action may be maintained against a corporation for a false imprisonment. Goff v. Great Northern R. Co., 3 Ell. & E. 672. Or for a libel. Maynard v. Fireman's Fund Ins. Co., 34 Cal. 48; Philadelphia, etc., R. R. Co. v. Quigley, 21 How. (U. S.) 202; Whitfield v. South Eastern R. Co., Ell., Bla. & E. 115; 4 Jur. N. S. 688; 27 L. J., Q. B., 229; Aldrich v. Press Printing Co., 9 Minn. 133. So they are liable for a trespass upon real estate. Crawfordsville R. R. Co. v. Wright, 5 Ind. (Porter) 252; Maund v. Monmouthshire Canal Co., 4 Man. & Gra. 452; Dater v. Troy Turnpike & R. R. Co., 2 Hill, 629. See, contra, Foote v. City of Cincinnatti, 9 Ohio (Ham.), 31. They are also liable for negligence. Brown v. South Kennebec, etc., Society, 47 Me. 275 : Townsend v. Susquehanna Turnpike Road, 6 Johns. 90. The question how far the master is liable for the acts of his servant, or the principal for the acts of his agent, has been noticed. Note 134. (189) The regular legal act of the majority of the corporation is considered the act of the whole. Knabe v. Ternot, 16 La. An. 13; Sprague v. Illinois River R. R. Co., 19 Ill. 174; State v. Wilmington City Council, 3 Harring. 294; McNeely v. Woodruff, 1 Green, 352; Chenango Mutual Ins. Co., 19 Wend. 635; St. Mary's Church, 7 Serg. & Rawle, 517; Horton v. Baptist Church, 34 Vt. 316. a surrender of the lands of ecclesiastical corporations,) it was therefore enacted by statute 33 Hen. 8, c. 27, that all private statutes should be utterly void, whereby any grant or election, made by the head, with the concurrence of the major part of the body, was liable to be obstructed by any one or more, being in the minority; but this statute extended not to any negative or necessary voice given by the founder to the head of any such society (d). The general duties of bodies politic, considered in their corporate capacity, may, like those of natural persons, be reduced to this single one; that of acting Duties of bodies up to the end or design, whatever it be, for which they were created by their founder(e). politic. 3. How corporations may be visited. 3. We proceed therefore to inquire, how these corporations may be visited. For corporations, being composed of individuals subject to human frailties, are liable to deviate from their duties. And for that reason the law has provided proper persons to visit, inquire into, and correct irregularities that may arise in any corporation, *whether sole or aggre[*581] gate, and whether ecclesiastical, civil, or eleemosynary. With regard to ecclesiastical corporations, the ordinary is their visitor, so constituted by the canon law, and from thence derived to us. The pope formerly, and now the sovereign, as supreme ordinary, is the visitor of the archbishop or metropolitan; the metropolitan has the charge and coercion of his suffragan bishops; and the bishops in their several dioceses are in ecclesiastical matters the visitors of deans and chapters, of parsons and vicars, and all other spiritual corporations(ƒ). With respect to lay corporations, the founder, his heirs, or assigns, are the visitors, whether the foundation be civil or eleemosynary (g);(190) for a lay corporation the ordinary is not to visit(h). (d) See Re Queen's Coll. Cambridge, 5 Russ. 64. (e) It may be here incidentally mentioned that in the administration of property left up on trust for charitable purposes, whether to a corporation or to trustees, the rule that the donor's intention shall guide the trustees in their administration of the trust funds, becomes much modified by the cy-près doctrine, which by a long series of decisions has now become fully established in courts of equity. Under this doctrine the Court of Chancery will, on failure of the express object of the donor's charitable intentions, direct a reference to inquire what objects are (cy-près) nearest to such express objects, and will direct the application of the trust funds to such objects. As to the principles which govern the courts in the application of this doctrine, see Cherry v. Mott, 1 My. & Cr. 123; Att.-Gen. v. Ironmongers' Co., 2 Beav. 313, Cr. & Ph. 208. (f) See Reg. v. Dean of Chester, 15 Q. B. 513; Reg. v. Dean of Rochester, 17 Q. B. 1. (g) Grant on Corporations, 517. (h) 10 Rep. 31. (190) The authority of trustees of an eleemosynary corporation having visitatorial powers, is more extensive, over the concerns and management of the corporation, than that of directors of a private moneyed corporation like a bank or railroad. But the authority of such trustees, although very extensive, is not absolute. It does not extend so far as to enable them to accept, on behalf of the corporation, any and all amendments of the charter, which the legislature may prescribe. Amendments found necessary to adopt the management of the corporate affairs to altered conditions, and enabling the corporation to attain the general objects of the founder by more appropriate means, may be sustained, when enacted by the legislature and accepted by the trustees. But it is not competent to the trustees to accept amendments which change the character and purpose of the foundation, and divert the property from the uses which the giver designed. State v. Adams, 44 Mo. 570. The visitors of an incorporated institution are a domestic tribunal, possessing an exclusive jurisdiction, from which there is no appeal. 2 Kent's Com. 302. They may amend and repeal the by-laws and ordinances of the corporation, remove its officers, correct abuses, and generally superintend the management of the trust. Ib. But this visitatorial power is properly applied only for the correction of abuses, and for the enforcement of a due observance It has often been said, that civil corporations are subject to no visitation, but merely to the common law of the land; and this shall be presently explained. But first, as we have just stated that the founder, his heirs or assigns, are the visitors of all lay corporations, let us inquire who is meant by the founder. The founder of every corporation in the strictest and original sense is the sovereign, who only can incorporate a society: and of a civil corporation, such as mayor and commonalty, &c., where there are no possessions or endowments given to the body, there is no other founder but the sovereign: in eleemosynary foundations, however, such as colleges and hospitals, where there is an endowment of lands, the law distinguishes, and makes two species of foundation, which according to sir E. Coke, are called, the one fundatio incipiens, or the incorpora tion, in which sense the king is the general founder of all colleges and hospitals; the other fundatio perficiens, or 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 and it is in this last sense that we generally call a man the founder of a college or hospital(i). But here the royal prerogative has [ *582] effect; for if the sovereign and a private man join in endowing an eleemosynary foundation, the sovereign alone shall be the founder of it. And, in general, the monarch 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 crown; and of the latter to the patron or endower. The sovereign being thus constituted by the law visitor of all civil corporations, the law has also appointed the place wherein this jurisdiction shall be exercised, viz. the court of queen's bench: where, and where only, all misbehaviours of this kind of corporations are inquired into and redressed, and all their controversies decided (k). And this is what was meant by those who said that these civil corporations were liable to no visitation; that is, that the law having by immemorial usage appointed them to be visited and inspected by their royal founder, in the court of queen's bench, according to the rules of the common law, they ought not to be visited elsewhere, or by any other authority(7). (i) 10 Rep. 33. (k) This only applies to strict visitatorial superintendence over the misbehaviour of the members of a civil corporation in their pure corporate capacity; for where a corporation is guilty of maladministration of trust property, the proper place for its remedy is the court of chancery. Of a civil corporation the sovereign is visitor through the court of queen's bench; for corporate bodies, which respect the regulation of trade, the public police, and the administration of justice, are necessarily better regulated under the superintendence of a court of law; but, as regards eleemosynary corporations, the visi tatorial power of the crown has been committed to the lord chancellor, as in matters of charity the more appropriate supervisor. R. v. St. Catherine's Hall, 4 T. R. 233, 244; Ex parte Wrangham, 2 Ves. 609, 619. (2) This notion is perhaps too refined. The court of queen'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 writ of error, it may be thought to want one of the essential marks of visitatorial power. of the statutes of the charity, and it is not a power to revoke the gift or change its uses, or to divest the rights of the parties to the bounty. Allen v. McKeen, 1 Sumn. 276. In this country, in those cases where there is no individual founder or donor, the legislat ture are the visitors of all corporations founded by them for public purposes, and may direcjudicial proceedings against them for abuses or neglect, which at common law would cause a forfeiture of their charters. Amherst Academy v. Cowls, 6 Pick. (Mass.) 427, 433, per Parker, Ch. J. VOL. I.-52 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 learned [*583] 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 nearly a century; yet in the year 1753, the authority of this provision, being in dispute, on an appeal preferred to these supposed visitors, they directed the legality of their own appointment to be argued: and, as this college was merely a civil, not an eleemosynary foundation, they at length determined, after several days solemn debate, that they had no jurisdiction as visitors; and remitted the appellant (if aggrieved) to his regular remedy in the court of king's bench, since which time persons having ground of complaining against the college have appealed to that court as of course(m). Of an eleemosynary corporation, the founder and his heirs are, by the dotation, of common right the legal visitors, to see that such property as might otherwise have descended to the visitor himself is rightly employed; 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 old universities. These were all of them considered by the Roman catholic clergy as of mere ecclesiastical jurisdiction: however, the law of the land judged otherwise; and with regard to hospitals it has long been held(n), that if the hospital be spiritual, the bishop shall visit; but if lay, the patron. This right of lay patrons was indeed abridged by stat. 2 Hen. 5, stat. 1, c. 1, which ordained, that the ordinary should visit all hospitals *founded by subjects; [*584] 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, s. 32, which directed the bishop to visit those 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. Yet still, if the founder appoints nobody, the bishop of the diocese must visit(0). Colleges in the universities (whatever the common law might formerly have judged) were certainly considered by the popish clergy, under whose direction they were, as ecclesiastical, or at least as clerical, corporations; and therefore the right of visitation was claimed by the ordinary of the diocese. Where indeed the founder of a college wished to subject it to a visitor of his own nomination, he obtained for that purpose a papal bull to exempt it from the jurisdiction of the ordinary(p). But whatever might have formerly been the opinion of the clergy upon this subject, it has been established 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 (q). The power and jurisdiction of visitors of colleges and the doctrine relating thereto were considered Power of the visitor. (m) R. v. College of Physicians, 7 T. R. 282. (p) Of some of the colleges at Oxford, where no special visitor is appointed, the bishop of Lincoln (the diocese in which Oxford was formerly comprised), has immemo rially exercised visitatorial authority: which by lord Holt in a case below cited (r). There 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 [*585] and redressed by the court of king's bench. And the three puisne judges of that court were of opinion, that it might be so reviewed, for that the visitor's jurisdiction could not exclude the common law; and judgment was given accordingly. 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 aggrieved 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 error being brought, the judgment of the court of king's bench was reversed by the house of lords. This leading case has been followed in subsequent decisions(s). But, where the visitor is under a temporary disability, there the court of queen's bench will interpose, to prevent a defect of justice(t). Also it is said (u), that if the founder of an eleemosynary foundation appoints a visitor, and limits his jurisdiction by rules and statutes, should the visitor in his sentence exceed those rules, an action lies against him; though not so where he mistakes in regard to a thing within his power. 4. How a corporation is dissolved. *4. We will now, in the last place, consider how a corporation may be dissolved. Any particular member of it may be disfranchised, or [ *586] lose his place in the corporation, by acting contrary to the laws of the society, or the law of the land(x); or he may resign by his own voluntary act.(191) But the body 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 will 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 cause of the grant has failed (y). The grant is indeed only during the life of the corporation; which may endure for ever; 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 (r) Phillips v. Bury, Lord Raym. 5; 2 T. R. 346. (8) In The King v. The Master and Fellows of St. Katherine's Hall, Cambridge, 4 T. R. 233, it was decided that, if no special visitor of a private eleemosynary lay foundation has been appointed by the founder, the right of visitation in default of his heirs devolves to the crown, and that the court of queen's bench will not entertain visitatorial jurisdic every other grant for life.(192) The tion over such foundation or interfere by (t) R. v. Bishop of Chester, Stra. 797. (x) Bagg's Case, 11 Rep. 98. (191) Although all the officers or members of a corporation may resign, yet the resignation of its officers, and an omission to elect others, will not render the corporation extinct. Ecarts v. Killingworth Manuf. Co., 20 Conn. 447; Muscatine Turn Verein v. Funck, 18 Iowa, 469. No loss of members destroys a corporation, so long as a sufficient number remain to continue the succession and fill up vacancies. State v. Trustees of Vincennes University, 5 Ind. 77. (192) The common-law rule, that, upon the dissolution of a corporation, all lands granted to it revert to the grantor, does not obtain in this country, where the rights of corporation |