Corporations sole and aggre ing legal attributes, remembering always that we must think of legal fiction as derived from fingere not in the modern sense of mere feigning, but in the sense of creating or fashioning. Nor would it be very difficult to show, were it not a matter of metaphysical rather than of legal interest, that what we call the artificial identity of a corporation is within its own sphere and for its own purposes just as real as any other identity (). This creature of the law becomes, within the limits assigned to its existence, "a body distinct from the members composing it, and having rights and obligations distinct from those of its members" (). Note, however, that this kind of fiction is not confined to legal usage or legal purposes. In the case of an ordinary partnership the firm is treated by mercantile usage as an artificial person, but is not recognized as such by the law (); and other voluntary and unincorporated associations are constantly treated as artificial persons in the language and transactions of every-day life. An even more remarkable instance is furnished by the artificial personality which is ascribed to the public journals by literary custom or etiquette, and is so familiar in writing and conversation that its curiosity most commonly escapes attention. But with these artificial persons by private convention, if we may so call them, we are not further concerned. The only artificial persons which in England have a legal existence fall under one of the descriptions we have marked (a) gate the and (B), and are known as corporations (c). These are either latter only sole, i.e., of which there is only one member at a time; or aggre need be considered. (a) In the United States a corforation duly created by the laws of any state is treated as a person dwelling in, and therefore a citizen of, that state within the meaning of the constitutional provision which enables the Federal courts to entertain suits between citizens of different states. See Marshall v. Baltimore & Ohio Railr. Co., 16 Howard 314. (b) Lindley, 1. 213. (c) The Roman law shows that other kinds of artificial persons are at least conceivable: e.g. the hereditas jacens, to which however Savigny denies that this character really belonged; Syst. § 102 (3. 363-373). And see p. 66 supra, as to our own Separate Estate. Savigny restricts the use of the term corporation so as to exclude charitable foundations; Op. cit. 243-4; the difficulty set forth in his note arises simply from the absence in Roman law of any term of art co-extensive with our Trust: not having at hand the conception of a corporation as trustee, he supposes the artificial person in such cases to be not the incorporated governing body, but the object of the charitable foundation itself. gate, i.e., of which there are several members. The principal and only considerable instances of corporations sole are ecclesiastical persons. The Sovereign is also said to be a corporation sole, but sui generis. In the case of a corporation sole the power of administering the corporate property and binding the corporate funds is for the most part not left to him alone, but belongs wholly or in part to a corporation aggregate of which the cor poration sole is one member, or to some other body; or is guarded by statutory precautions. And it seems that a corporation sole. cannot enter into a contract (except as incidental to an interest in land) in his corporate capacity; at any rate the right of action on a contract made with him cannot pass to his suc- cessor, but only to his executors, unless by special custom («); there is such a custom (for a limited purpose) in the case of the Chamberlain of the City of London (b). But, in short, no principles of general application or interest are to be found in this quarter, and we may practically confine our attention to corporations aggregate. So far as regards these, the classification indicated above by the letters (a) and (3) corresponds in a general way to the division of them into non-trading and trading, which we shall see is of great importance as to the form of corporate contracts: the class (3) is further sub-divided according as the purposes of the corporation are or are not of a public character, and this subdivision is likewise of great importance as touching the matter and extent of corporate contracts. We have to ascertain (1) what contracts corporate bodies can make and (2) how they are to be made. The second of these questions is reserved for the following chapter on the Form of Contracts. The first cannot be adequately treated except in connexion with a wider view of the capacities, powers, and liabilities of corporations in general and it will therefore be expedient if not 466 "regularly no chattel can go in succession in a case of a sole corporit was otherwise in the case of the head of a religious house, as he could not make a will, Ro. Ab. 1. 515. And see Grant on Corporations 629, 633, sqq. (b) Bacon Ab. 2. 582, Customs of London, B; Howley v. Knight, supra, Capacities and liabili ties of Corporation as limited by the nature of an artificial person. absolutely necessary to introduce considerations, and refer to doctrines, which might at first sight seem irrelevant. The capacities of corporations are limited (i) By natural possibility, i.e., by the fact that they are artificial and not natural persons: (ii) By legal possibility, i.e., by the restrictions which the power creating a corporation may impose on the legal existence and action of its creature. First, of the limits set to the powers and liabilities of corporations by the mere fact that they are not natural persons. The requirement of a common seal (of which elsewhere) is sometimes said to spring from the artificial nature of a corporation. The fact that it is not known in Scotland is however enough to show that it is a mere positive rule of English law. The correct and comprehensive proposition is that a corporation can do no act except by an agent (for even if all the members concur they are but agents); and it follows that it cannot do or be answerable for anything of a strictly personal nature. It cannot commit a crime in the strict sense, such as treason, felony, perjury, or offences against the person (a); though any or all of the members or officers of a corporation who should commit acts of this kind (e.g., should levy war against the Queen) under colour of the corporate name and authority would be individually liable to the ordinary consequences. Nor can it enter into any strictly of agents, personal contract or relation (a). On the other hand, though able to act only by an agent, it is subject to the same liabilities as any other employer for the acts of its agents done in the course of their employment, and is therefore liable ex delicto for damage resulting from their negligence in the course of such employment, and also must answer for anything done by them which, though positively wrongful in itself under its particular circum As to acts (a) Reg. v. G. N. of Eng. Ry. Co., 9 Q. B. 315, 326: nor, it is said, can it be excommunicated, for it has no soul: 10 Co. Rep. 32b. So it cannot do homage: Co. Lit. 666. We are not aware that any English writer has thought it necessary to state in terms that a corporation cannot be married or have any next of kin. The statement is to be found in Savigny, Syst. 3. 239: but is in part not quite so odd as it looks, as in Roman law patria potestas and all the family relations arising therefrom might be acquired by Adoption, in some stances, belongs to a class of acts which is authorized and within the scope of their business (a). And notwithstanding the apparent contradiction of imputing a fraudulent intention to a corporate body, it may be made liable in an action of deceit for the fraud of its agent committed in the course of the corporation's affairs (). And the same principle is extended to make it generally subject to all liabilities incidental to its corporate existence and acts, though the remedy may be in form ex delicto or even criminal. Although it cannot commit a real crime, "it may be guilty as a body corporate of commanding acts Indictable to be done to the nuisance of the community at large” and case:. may be indicted for a nuisance produced by the execution of its works or conduct of its business in an improper or unauthorized manner, as for obstructing a highway or navigable river (c). A corporation may even be liable by prescription, or by having accepted such an obligation in its charter, to repair highways, &c., and may be indictable for not doing it (). Likewise it may be convicted and fined under a penal statute regulating the trade carried on by it (e). However a steamship company has been held in equity to be not indictable under the Foreign Enlistment Act of Geo. 3, and therefore not entitled to refuse discovery, which in the case of a natural person would have exposed him to penalties under the act, (ƒ) but the decision seems mostly grounded on the language of the particular statute. As to the difficulty of imputing fraudulent intention to a corporation, which has been (a) It is unnecessary to enter at large upon the cases on this head, of which there are a great number: among the latest are Bayley v. Manchester &c. Ry. Co. L. R. 7 C. P. 415, 8 C. P 148; Moore v. Metrop. Ry. Co. L. R. 8 Q. B. 36; Bolingbroke v. Swindon Local Board, I.. R. 9 C. P. 575. (b) Barwick v. Eng. Joint Stock Bank, L. R. 2 Ex. 259 : notwithstanding dicta to the contrary in Western Bank of Scotland v. Addie, L. R. 1 Sc. & D. 145, see the later case of Mackay v. Commercial Bank of New Brunswick, L. R. 5 C. P. 394. Savigny's statement that a corporation cannot commit a "true delict" (3. 317) is so qualified as perhaps not to be inconsistent with the English (c) Reg. v. G. N. of Eng. Ry. Co., (d) See Granton Corporations, 277, 283; Angell & Ames on Corporations, $3.394-7; Wms. Saund. 1.614, 2.473. (e) The contrary was not suggested in Aerated Bread Co. v. Gregg, L. R. 8 Q. B. 355, where such a conviction was affirmed on the construc tion of the statute. (f) King of Two Sicilies v. Willcox 1 Sim. N. S. 335. thought to be peculiarly great, it may be remarked that no one has ever doubted that a corporation may be relieved against fraud to the same extent as a natural person. There is exactly the same difficulty in supposing a corporation to be deceived as in supposing it to deceive, and it is equally necessary for the purpose of doing justice in both cases to impute to the corporation a certain mental condition-of intention to produce a belief in the one case, of belief produced in the other-which in fact can exist only in the individual mind of the person who is its agent in the transaction. Lord Langdale found no difficulty in speaking of two railway companies as "guilty of fraud and collusion" (not in an exact sense however): 12 Beav. 382. But cannot However the members of a corporation cannot even by giving an express authority in the name of the corby acts of even all its poration make it responsible, or escape from being individually members responsible themselves, for a wrongful act (as trespass in removnon-corpo- ing an obstruction of an alleged highway) which though not a be bound when of a rate cha racter. personal wrong is of a class wholly beyond the competence of (a) Mill v. Hawker, L.R. 9 Ex. 309; no judgment on this part of the case in Ex. Ch. L. R. 10 Ex. 92, (b) Society of Practical Knowledge v. Abbott, 2 Beav. 559, 567. Cp. Sav. Syst. 3. 283, 335. |