joint-stock company likewise resemble each other in respect of the transferability of their shares, and the incident of "perpetual succession" of their members. In the United States, however, an unincorporated joint-stock company, although it may possess a capital stock, divided into shares and transferable at the will of the holders, do business under a name indicating that it is a corporation, act through a common agency, and not by its individual members, and hold its property in the name of a company should not be deemed to be thereby made a corporation. It was thought by an American court that the object of this reservation was to preserve the individual liability of members. Oliver v. Liverpool &c. Co., 100 Mass. 539. So, acts of Parliament which provided, in substance, that a private company might be sued in the name of the managing director as a nominal party, for and on behalf of the company, that execution so obtained should be levied upon the surplus fund and other property of the corporation, and that the managing directors should not be personally responsible in respect of contracts made by them in behalf of the company, were held to create a quasi-corporation, and the court had no power to order an execution against a director against whom a judgment had been thus recovered. Harrison v. Timmins, 4 Mee. & W. 510. "It is quite clear," said Lord St. Leonards, "that the law knows no difference between a common partnership of two people and a partnership of one hundred. This company is not an ordinary partnership, but one formed under the act of 7 Geo. IV. c. 46, by virtue of which, though the public officer only can be sued, yet all the members at the time when the judgment is obtained may in the result be made liable. There is, therefore, a great difference between a company such as this taking the benefit of the Windingup Act, and the case of a common partnership so doing. This does not, however, exclude from consideration the provisions of the deed of partnership." Cape's Executors' Case, 2 De G. M. & G. 573. A joint-stock company is not such a corporation as to entitle one of its officers to refuse to produce documents in his custody when required by subpoena. Woods v. De Figaniere, 1 Robt. (N. Y.) 659. 1 Burnes v. Pennell, 2 H. L. 520. 2 Tappan v. Bailey, 4 Metc. (Mass.) 529. But see The People v. Assessors of Watertown, where the free-banking companies of New York were held to be corporations. In this case Bronson, J., declared: "Whether a corporation or not, does not depend upon the number or magnitude of its powers nor the manner in which they were conferred. An association under our general laws, for a village library or to tan hides, possesses all the essential attributes of a corporation in as great perfection as the Bank of England or the East India Company. Nor is it important in what mode or by what particular agency this artificial being transacts its business. It is enough that it has a capacity to act in some form as a legal being." The People v. Assessors of Watertown, 1 Hill (N. Y.), 622. See Hoadley v. County Commissioners, 105 Mass. 519; Tyrrell v. Washburn, 6 Allen (Mass.), 466; Taft v. Ward, 106 Mass. 518; Bullard v. Kinney, 10 Cal. 60. "Companies and societies which are not sanctioned expressly by the legisla trustee, is deemed to be an ordinary partnership with respect of its relations with the public, such as the manner in which it may sue and be sued,' its liability to taxation, and the liability of its members to its creditors. Non-liability of members to creditors will not, of itself, however, determine whether an association is a corporation or not; since, as we shall see hereafter, the members of some American corporations are liable, as partners, to its creditors. Thus an English joint-stock company, possessing the general incidents of an American corporation except the non-liability of its members, and organized under acts of Parliament expressly declaring that it is not a corporation, will nevertheless be deemed a corporation in this country, for the purposes of taxation. Indeed, there seems to be no substantial difference between an American joint-stock corporation and an English company," organized under recent statutes. 4 66 3 § 15. Distinction between a Corporation and a Guild, Fraternity or Society. - Distinctions have been taken between a corporation and a guild, fraternity or society. It has been said that a guild, a fraternity or a society is not a corporation.5 The distinction was that a corporation could only be created by the crown or by Parliament, but that a guild was nothing more ture, pursuant to some general or special law, are nothing more than ordinary partnerships, and the laws respecting them are the same." Wells v. Gates, 18 Barb. (N. Y.) 557, per Clerke, J. Compare Opdyke v. Marble, 18 Abb. Pr. (N. Y.) 266; s. c. affirmed, Id. 375; 1 Thomp. Tr., § 747 1 "Whatever name," said Walworth, C., "such a company may assume and use, in the transaction of its business, it is a partnership and not a corporate designation, and every suit upon a contract with the company must be brought in the names of the several persons composing the firm." Williams v. Bank of Michigan, 7 Wend. (N. Y.) 542. Local statutes may exist allowing such bodies to sue in the name of an officer. Post, Ch. 50. 3 Oliver v. Liverpool &c. Co., 100 Mass. 531; affirmed sub nom. Liverpool Ins. Co. v. Massachusetts, 10 Wall. 566; ante, & 3. 1 Dr. Brice, in his work on Ultra Vires, enumerates these statutes under the head of "Corporations by Act of Parliament," and says: "The above statutes, and especially the Companies Acts of 1862 and 1867, enable persons, by a very simple and speedy process, to unite themselves into, and thereby create, a corporation, for almost any and every purpose of life, commercial or otherwise." Green's Brice's Ultra Vires, 24. In the United States, corporations are now, for the most part, organized under similar statutes. Post, Ch. VI. 5 Year Book, 49 Edw. 3, 4b; Rex v. Beardwell, 2 Keb. 52. than a fraternal society, which might be created by an ordinance or a by-law of a municipal corporation. Thus, it was said by Lord Holt in one case, with reference to a by-law of the city of London, that "the city might make a guild or fraternity of dancing masters, though they cannot make a corporation.' 1 § 16. Composed of what Body or Constituency. The most usual conception of a corporation aggregate is that it is a collective body composed of its largest constituency. But this is not a universal conception. Sometimes only the board of trustees or other representative body is incorporated. This is frequently so in the case of religious societies, as will appear hereafter.2 The trustees in whom are vested the temporalities of the church are frequently incorporated, but the body of communicants are not. So, in respect of municipal corporations, the legal conception of such a body is believed to be that it consists not of the aggregate body of inhabitants within the prescribed territory, or even of the aggregate body of inhabitants within such territory who are entitled to vote at municipal elections; but rather that it consists of the governing body, usually the mayor and common council.3 § 17. Further of this Subject. The writer ventures the opinion that, for the purposes of substantial right, though not 1 Robinson v. Groscot, Comb. 372. Whether the Inns of Court at Westminster Hall were corporations or merely voluntary societies, in the nature of guilds,- Case of Clement's Inn, 1 Keb. 135. 2 Post, § 44. The trustees of a college, being incorporated, may sue by their corporate title, without setting out their individual names. Legrand v. Hampden Sidney College, 5 Munf. (Va.) 324. The trustees of the university of Louisville, as originally incorporated, constituted in law a person capable of receiving any grants of real or personal property, which might be made to it for the purposes for which it was incorpo rated, especially a donation by the city of Louisville sanctioned by the legislature. City of Louisville v. University of Louisville, 15 B. Mon. (Ky.) 642. 8 In an old case this talk is found, where the question concerned the legality of the removal of a burgess: "They say he was removed in common council, which is but a part of the corporation; but that was soon overruled, for Holt said, the power is laid in the mayor and burgesses to remove, and it cannot be worse for being done in common council. Northy: But the common council is a distinct body. Holt: It may be not." Rex v. Chalk, Comb. 396. for the conveniences of legal procedure, the aggregate body of shareholders in a joint-stock company should be deemed the corporation. This is the view which the English courts appear to be now taking of the registered joint-stock companies of that country, formed under recent statutes, which do not differ in substance from American corporations. Those courts have, accordingly, held that fraudulent and ultra vires acts of the directors of a company, assented to by the members in general meeting, became the acts of the company itself. And, as we shall see hereafter, the individual stockholder is for many purposes of substantial justice deemed to be, not a stranger to the corporation, but in privity with it. But, by a fiction of law, resorted to chiefly for the convenient administration of justice, the corporation is deemed to be one person, whilst the stockholders even the whole of them taken collectively persons. are other § 18. Illustrations of this Distinction.- A private business corporation, at the annual meeting, if there be no restriction in the charter or by-laws, may transact any business incident to the corporate interests.2 But in its dealings with third persons, its acts can only assume legal form when done by the hand of its appropriate agents. Thus, a corporation can convey its lands only by deed, executed by its agent, legally authorized thereunto by vote of the corporation, and reciting the vote conferring the power to convey; the shareholders, as such, cannot convey the real estate of the corporation, although they all join in the deed; 3 though effect might be given to such a deed in equity. This distinction is also well illustrated and discussed by Lord Langdale, M. R., in a case where all the corporators, four in number, by mutual assent, divided the capital stock of the corporation among themselves without fully paying for it, and the corporation afterwards sustained a bill in equity against them to recover the deficiency.* § 19. Sense in which the State may be a Corporation. - It is obvious that a State of the Union may, for some purposes, be regarded as a corporation. "It is a legal being, capable of 1 Post, § 1082. 2 Warner v. Mower, 11 Vt. 385. 3 Wheelock v. Moulton, 15 Vt. 519; post, §§ 1075, 3740. Society of Practical Knowledge v. Abbott, 2 Beav. 559. transacting some kinds of business like a natural person, and such a being is a corporation." A State is not, however, included in the term "corporation," as used in the internal revenue acts of Congress. Therefore, the income derived from a railroad, owned and managed by the State of Georgia, was not liable to taxation.2 § 20. Quasi-Corporations. - Distinctions have been taken between proper aggregate corporations and the inhabitants of any district who are by statute invested with particular powers without their consent. These latter have been called quasi-corporations. They include counties, towns, parishes, school districts, etc. Thus, it has been held that towns in New York are corporations, as far as corporate powers are granted, or are incidental to express grants. In like manner school districts, in some of the New England States, are regarded as quasi-corporations, and may be sued as such without any express statute giving the right of action. In a celebrated case in Pennsylvania, in which the character of the General Assembly of the Presbyterian church was called in question, some of the features of a quasi-corporation were pointed out by Chief Justice Gibson. He said that the Assembly had no feature of such a corporation. "A quasi-corporation has capacity to sue and be sued as an artificial person, which the assembly has not. It is also established by law, which the assembly is not. Neither is the Assembly a particular order or rank in the corporation, though the latter was created for its convenience, such, for instance, as the shareholders of a bank or joint-stock company, who are an integrant part of the body. It is a segregated association, which, though it is the 1 State of Indiana v. Woram, 6 Hill (N. Y.), 33 (1843); s. c. 40 Am. Dec. 378, per Bronson, J. See also People v. Assessors of Watertown, 1 Hill (N. Y.), 620. * Georgia v. Atkins, 35 Ga. 315. 'Riddle v. Proprietors of Locks, &c., 7 Mass. 187; School District in Rumford v. Wood, 13 Mass. 198; Damon v. Granby, 2 Pick. (Mass.) 352; Adams v. Wiscasset Bank, 1 Me. 363; 4 North Hempstead v. Hempstead, 2 Wend. (N. Y.) 109. 5 Gaskill v. Dudley, 6 Met. (Mass.) 546 (1843); s. c. 39 Am. Dec. 750; Andrews v. Estes, 11 Me. 267 (1834); s. c. 26 Am. Dec. 521. 6 McLoud v. Selby, 10 Conn. 390 (1835); s. c. 27 Am. Dec. 689. |