cannot contract at all, unless enabled by the charter of incorporation; and when thus enabled, it is restricted to the mode, and to the subject matter, prescribed.' Thus, a company incorporated for the purpose of insurance only, and forbidden to carry on any other business, with a clause in the act of incorporation, mentioning the kind of securities on which they might loan money, but not including promissory notes, was held to have no authority to loan money upon notes; and a borrower was held not to be bound by his note given for money thus loaned.'

This distinction may be taken between corporations and individuals-viz.: An individual may make and enforce the performance of any contract which the law does not forbid. A corporation can make and enforce no contract, which the law does not expressly authorize it to make, or which is not necessarily incident to the power expressly conferred.*

It is often said satirically, though no satire was originally intended, that corporations have no souls. It would seem that no argument is necessary to prove this legal axiom. Chief baron Manwood, however, has established it by a syllogism, in which it will not be easy to detect any fallacy. "The opinion of Manwood, C. B. was this, as touching corporations, that they were invisible, immortal, and that they had no soul; and therefore no subpoena lieth against them, because they have no conscience nor soul: a corporation is a body aggregate: none can create souls but God: but the king creates them; and therefore they have no souls. And this was the opinion of Manwood, C. B., touching corporations."

4

T. M.

1 Head v. Providence Insurance Company, 2 Cranch, 126; The People v. Utica Insurance Company, 15 Johns. 358; New York Firemen Insurance Company v. Ely, 5 Conn. 560; 2 Cowen, 679; 4 Barn. & Ald. 1; 5 Taunt. 792. * 2 Cow. 679; 5 Conn. 560. See a dictum of Parker, C. J. (16 Mass. 102) contrary to this doctrine.

3 See 5 Wheat. 326; 1 Hawks, 198.

4 2 Bulst. 233.

ART. II. THE UNCERTAINTY OF THE LAW OF EQUITY.

THE reproach which has often been applied to the law in general is peculiarly applicable to its administration in chancery. There is a reasonable degree of certainty in the rules and principles of the common law, but the system of equity is founded upon the idea, that the rules of law in their fixed application are not fitted to the uses of life, and consists of a series of suspensions of those rules, according to the judgment or the whim of the individual, who for the time was entrusted with the jurisdiction of the court. The circumstances of the different cases, which came under his cognizance, were too various. And the discretion of the chancellor was too unlimited to yield to a system of established rules. The result is a deplorable degree of uncertainty and contradiction in the cases, which, like parasitic plants, have overgrown the fabric of the common law.

A very large proportion of the cases, which have occurred in chancery, have arisen under the head of mistake and accident. The relief, which has been granted to executors and administrators, is founded upon the consideration of mistake or accident, as affecting the administration of their duties. And here it would appear, that there is no small uncertainty in the rules of law, as well as the principles of equity, relative to the liability of executors. It has been insisted, that at law the executor was only liable as a gratuitous bailee; Wentworth's Off. Ex. 235; Com. Dig. Assets, D.; but in Crosse v. Smith, 7 East, 258, lord Ellenborough considers the liability of the executor absolute on the coming of assets to his hands. His lordship observes, "that no case at law has yet decided, that an executor once become fully responsible by actual receipt of a part of his testator's property for the due administration thereof, can found his discharge in respect thereof, as against a creditor seeking

satisfaction out of the testator's assets, either on the score of inevitable accident, as destruction by fire, loss by robbery, or the like, or reasonable confidence disappointed, or loss by any of the various means, which afford excuse to ordinary agents and bailees, in cases of loss without any negligence on their part. I say, as no such case in respect to executors has yet occurred in a court of law, we are not, from the particular hardship of the present case, authorized to make such a precedent in favor of this defendant." It is said, however, that a more lenient doctrine has been established in equity; 2 Williams on Executors, 1113. This is undoubtedly true in particular cases; but can it be maintained, that the liability of a party is different in a court of law from that in a court of equity? Clearly there is no such discrepancy in their principles. The extent of the liability of an executor is founded upon the nature of his office, and upon the assumption of a representative character, and may well be justified in the same manner as in the case of common carriers, by reasons of policy. If the executor is made responsible for chattels which have come into his actual possession, although he may have been robbed afterwards of them without his fault, he cannot, after judgment against him at law, by resorting to a court of equity, procure a reversal of that judgment, or maintain any equitable grounds for exempting himself from its operation. If any such existed, if from any cause acknowledged to be sufficient, the assets in his hands have ceased to be available, that constitutes an adequate defence at law. It is not a technical rule, that whenever the executor has been made responsible by the receipt of assets, he shall continue liable on their loss as for a devastavit. He is not liable for losses arising by the act of God, as in two cases stated by Wentworth, p. 236, where a ship at sea with wares and merchandise was lost, and where the testator left him a flock of sheep infected with a disease, so that they died shortly afterwards. In all such

cases, the executor may show that he has no continuing assets. If the principles recognised in the respective courts were different, the court of chancery might issue an injunction, to restrain the plaintiff from proceeding against the executor, to enforce the rules of a court of law; a consideration which displays the absurdity of the doctrine. But courts of law and equity act upon the same principles in relation to duties and liabilities, and only vary in their mode of applying them; and a rule of property or of liability, which has been established in one court, must be adopted in the other. Indeed, courts of law are constantly borrowing from chancery its peculiar modifications of law.

Relief has been granted in equity to executors, in cases to which the rule of policy did not extend; and in some cases it has certainly been assumed by the court, that executors were on the same footing as trustees and other bailees, as in Massey v. Banner, 1 Jac. & Walk. 248, and Jones v. Lewis, 2 Ves. Sen. 240; but it is believed, that the point has never been decided, as between the creditor and executor, in chancery.

In the case of Jones v. Lewis, the question arose between the bailor and the executor of the bailee, who had been robbed of the goods, and it was decided that the executor was not answerable; and clearly the liability of the representative could not be extended beyond that of the original bailee, who certainly was not liable. In the case of Croft v. Lindsey, Freeman's Ch. Cas. 1, the administrator was relieved in equity against a bond creditor, where he had paid creditors of a lower degree, and legacies, in reliance upon a supposed sufficiency of assets, which was disappointed by a fire that destroyed the property.

The reason of the rule of policy, if such exists, does not extend to interests in real property, and in this case, although there were various equitable considerations, which rendered it proper for the cognizance of a court of equity, on a ques

tion relating to the due administration of assets, it does not appear, that the executor in a proper case might not have been relieved at law.

Many of the rules of equity seem to proceed upon the absolute liability of executors.

The executor is made liable for any loss which follows a loan upon personal security, Jerry v. Jerry, Prec. Chanc. 273; and is required at his peril to invest money in the stocks which are usually selected by the court, Norbury v. Norbury, 4 Maddock R. 191; but a more indulgent rule is certainly extended to ordinary trustees.

A distinction is also made between legatees and creditors, which, whether well founded or not, seems to proceed upon the idea that the liability of an executor is absolute, who has once been chargeable by reason of the receipt of assets; Churchill v. Hobson, 1 P. Wms. 243. The rule that executors shall be liable for money received by a co-executor, if they join in a receipt, &c., but that trustees shall not in such a case be liable, would seem to proceed upon the principle, that having once been chargeable for assets, they shall not be discharged but by a due administration of assets; a distinction which though not perhaps stated in the cases would be more satisfactory in some of them than the one usually given. See Sadler v. Hobbs, 1 Bro. Ch. Cas. 115. Whatever may be the rule in chancery, it cannot be denied that the principles upon which courts of law and equity proceed ought to be uniform; and if the liability of executors is the same in chancery as that of a gratuitous bailee, the rule ought to be distinctly declared and adopted in the courts of law.

But why is the executor to be regarded as a gratuitous bailee. The presumption would seem to be quite contrary. In England, he is rather the representative in interest of the testator, beneficially enjoying his personal estate, subject only to the charges which affected it in the hands of the testator. Although this rule has been changed in England,