mon law, and to their own by-laws, not contrary to the laws of the realm. (0) Aggregate corporations, also, that have by their constitutions a head, as a dean, warden, master, or the like, cannot do any acts during the vacancy of the headship, except only appointing another: neither are they then capable of receiving a grant: for such corporation is incomplete without a head. (p) But there may be a corporation aggregate, constituted without a head: (7) as the collegiate church of Southwell, in Nottinghamshire, which consists only of prebendaries; and the governors of the Charterhouse, London, who have no president or superior but are all of equal authority. In aggregate corporations, also, the act of the major part is esteemed the act of the whole. (r) By the civil law this major part must have consisted of two-thirds of the whole, else no act could be performed: (s) which perhaps may be one reason why they required three at least to make a corporation. But with us any majority is sufficient to determine the act of the whole body. And whereas, notwithstanding the law stood thus, some founders of corporations had made statutes in derogation of the common law, making very frequently the unanimous assent of the society to be necessary to any corporate act, which King Henry VIII found to be a great obstruction to his projected scheme of obtaining a surrender of the lands of ecclesiastical corporations, it was therefore enacted by statute 33 Hen. VIII, c. 27, that all private statutes shall be utterly void, whereby any grant or election, made by the head, with the concurrence of the major part of the body, is liable to be obstructed by any one or more being the minority: but this statute extends not to any negative or necessary voice, given by the founder to the head of any such society. (12)

We before observed, that it was incident to every corporation to have a capacity to purchase lands for themselves and *successors: and this is regu[*479] larly true at the common law. (t) But they are excepted out of the statute of wills: (u) so that no devise of lands to a corporation by will is good, except for charitable uses, by statute 43 Eliz. c. 4; (w) which exception is again greatly narrowed by the statute 9 Geo. II, c. 36. And also, by a great variety of statutes, (x) their privilege even of purchasing from any living grantor is much abridged: so that now a corporation, either ecclesiastical or lay, must have a license from the king to purchase, (y) before they can exert that capacity which is vested in them by the common law: nor is even this in all cases

(q) 10 Rep. 30.

(0) Lord Raym. 8. (p) Co. Litt. 263, 264. (r) Bro. Abr. tit. Corporation, 31, 34. (8) Ff. 3, 4, 3. (t) 10 Rep. 30. (u) 34 Hen. VIII, c. 5. (w) Hob. 136. (x) From magna carta, 9 Hen. III, c. 36, to 9 Geo. II, c. 36. (y) By the civil law, a corporaiton was incapable of taking lands unless by special privilege from the emperor. Collegium si nullo speciali privilegio subnixum sit, hæreditatem capere non posse, dubium non est. Cod. 6, 24, 8.

(12) Corporations act by majorities in legal meetings. St. Mary's Church, 7 S. and R. 517; Horton v. Baptist Church, 34 Vt. 316. What is a legal meeting may depend upon the charter, and upon the nature of the act to be done. Where a corporate act is to be done by a definite number of persons, the majority of the number is necessary to constitute a quorum, without which no act can be done: Ex parte Willcocks, 7 Cow. 402; but, where the number is indefinite, it seems that a majority of those who actually meet may bind all. See A. and A. on Corp. 501. And even where the number is definite, the charter may make less than a majority a quorum for the transaction of business. Rex v. Hoyte, 6 T. R. 430.

A legal meeting being convened, the acts of a majority of those present will bind all, unless a different rule is prescribed by the charter. Cotton v. Davies, Str. 53; Rex v. Wyndham, Cowp. 377; Rex v. Theodorick, East, 543. And if any abstain from voting, even though they be a majority of the meeting, they are supposed to acquiesce in the action of the majority who do vote. Oldknow v. Wainwright, Burr, 1017; Rex v. Foxcroft, id. 1021; Gosling v. Veley, 7 Q. B. 439; Booker v. Young, 12 Gratt. 303; State v. Lehre, 7 Rich. 234. But the rule that the majority may bind all only extends to strictly corporate acts; to the carrying on of the business, and not to the dissolution of the corporation and distribution among members. North Am. M. Co. v. Clarke, 40 Penn. St. 432; State v. Bailey, 16 Ind. 51. It has been held that at common law, though in public corporations votes could not be given by proxy, yet private money corporations might establish by-laws authorizing voting by that mode. State v. Tudor, 5 Day, 329. This doctrine is denied, however, in cases which hold that there must be legislative authority to authorize voting by proxy. Philips v. Wickham, 1 Paige, 590; Taylor v. Griswold, 2 Green, N. J. 223.

sufficient. These statutes are generally called the statutes of mortmain; all purchases made by corporate bodies being said to be purchases in mortmain, in mortua manu: for the reason of which appellation Sir Edward Coke (*) offers many conjectures; but there is one which seems more probable than any that he has given us; viz.: that these purchases being usually made by ecclesiastical bodies, the members of which (being professed) were reckoned dead persons in law, land therefore holden by them might with great propriety be said to be held in mortua manu.

I shall defer the more particular exposition of these statutes of mortmain till the next book of these Commentaries, when we shall consider the nature and tenures of estates; and also the exposition of those disabling statutes of Queen Elizabeth, which restrain spiritual and eleemosynary corporations from aliening such lands as they are at present in legal possession of: only mentioning them in this place for the sake of regularity, as statutable incapacities incident and relative to corporations.

[ *480]

The general duties of all bodies politic, considered in their corporate capacity, may, like those of natural persons, be *reduced to this single one, that of acting up to the end or design, whatever it be, for which they were created by their founder. (13)

III. I proceed therefore next to inquire, how these corporations may be visited. For corporations being composed of individuals, subject to human frailties, are liable, as well as private persons, to deviate from the end of their institution. And for that reason the law has provided proper persons to visit, inquire into, and correct all irregularities that arise in such corporations, either sole or aggregate, and whether ecclesiastical, civil, or eleemosynary. With regard to all 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 king, as supreme ordinary, is the visitor of the archbishop or metropolitan ; the metropolitan has the charge and coercion of all his suffragan bishops; and the bishops in their several dioceses are in ecclesiastical matters the visitors of all deans and chapters, of all parsons and vicars, and of all other spiritual corporations. With respect to all lay corporations, the founder, his heirs, or assigns, are the visitors, whether the foundation be civil or eleemosynary; for in a lay incorporation the ordinary neither can nor ought to visit. (a)

I know it is generally 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 I have laid it down as a rule that the founder, his heirs, or assigns, are the visitors of all lay corporations, let us inquire what is meant by the founder. The founder of all corporations, in the strictest and original sense, is the king alone, for he only can incorporate a society; and in civil incorporations such as mayor or commonalty, &c., where there are no possessions or endowments given to the body, there is no other founder but the king: but in eleemosynary foundations, such as colleges and hospitals, where there is an endowment of lands, the law distinguishes, and makes two species of *foun[*481] dation; the one fundatio incipiens, or the incorporation, in which sense the king is the geneneral founder of all colleges, and hospitals; the other fundatio perficiens, or the dotation of it, in which sense the first gift of the reve

(13) [It may be here incidentally mentioned that in the adminstration of property left upon 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 pres 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 pres) 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. and Cr. 213; Att'y-Gen'l v. Ironmongers' Co., 2 Beav. 313; Cr. and Ph. 208 ] See Story's Eq. Juris. §§ 1169-1176, and cases cited.

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 *diocese. 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

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

(g) Lord Haym. 5. 4 Mod. 106. Show. 85. Skinn. 407. Salk. 403. Carthew. 180. (4) 2 Lutw. 1566. (k) 11 Rep. 98.

(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 commanding 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. Rayın. 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 unde: 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.