several members, in all other respects, remain unaffe-ted by its dissolution.

It is remarkable that there is no instance of the creation of any body politic of this description under the provincial government; but since the establishment of the republic they have increased and multiplied to a very large and still rapidly growing family. The examples of this class of corporations are the insurance companies; the Free Mason societies; the banks; the manufacturing companies; the library companies, etc.

5

[Quasi-public.] The third species of corporations partake, in many respects, of the nature of the first two classes; and are such as have a concern with some of the expensive duties of the state, the trouble and charge of which are undertaken and defrayed by them, in consideration of a certain emolument allowed and secured to their members. In cases of this kind there is certainly many of the material features of a contract between the government and the corporation; there is manifestly a quid pro quo. But this contract, if it be so, is, and of necessity must be, like all others to which a government or state is a party, one of imperfect obligation as regards the state; and, as such, subject to be dealt with by the government of the state as the public good may require, on making a just compensation for any private property which may be taken for a public use. No bodies politic of this description were ever created under the provincial government; but since our independence, a great number of them have been called into existence; such as canal companies; bridge companies; turnpike road companies; etc.

In regard to the irrepealable nature of an act of incorporation, it may be well not only to bear in mind the distinctions as explained above in the text, according to which it is quite obvious that at least two out of the three kinds of corporations, there described, may be modified or repealed at the pleasure of the legislature, without the slightest interference with the rights of private property of any kind, but that there must also be a variety of cases in which corporations of the third class, such as turnpike roads, may have their stock, even considering it as private property, indefinitely depreciated, or, in effect, totally annihilated, without, in the opinion of any one, giving rise to a claim for compensation, as in cases where mere private property is taken, by virtue of the government's power of eminent domain, for public use. Without going into an argument, it will be sufficient to state a case which has occurred. By the act of 1812, chapter 78, the legislature incorporated a company for making a turnpike road from Baltimore to Washington; under which the road was made, and the stock yielded a considerable dividend annually. After which the legislature, by the act of 1830, chapter 158, authorized the construction of a railroad between the same cities, and nearly parallel with the turnpike road, which was accordingly put in operation. In consequence of which the annual dividends on the stock of

1

The right and capacity to sue and be sued is an incident to bodies politic of all descriptions; even to those which have been incorporated by and are located in another state or in a foreign country.2 It is held to be incumbent upon every body politic, not being incorporated by a public law of which the court is bound to take notice, which comes into a court of justice as a plaintiff, if required, even upon the general issue only being pleaded, to show the authority under which it has assumed to act as a corporation.3 When called on as a defendant its corporate capacity is thus admitted, and it appears by attorney and responds under its seal, or in the manner specially prescribed to it. But there is no legislative enactment which directs in what mode a corporation of any kind may be compelled to answer in case it should neglect or refuse to do so.

It is admitted on all hands that in a suit against a corporation none of its members can be taken or personally punished, except, perhaps, as a last resort, on account of any contumacy in their corporate capacity. The only mode of proceeding, either to enforce an answer or obedience to a decree, is by a distringas and sequestration of the property of the body politic.5 The state itself is regarded in many respects as a mere body politic; and in the various instances where it becomes necessary to have it made a party to the litigation, it is represented by its attorney-general; in which cases the course of the court merely allows that he should be attended with a copy of the bill; but he can not be forced to answer in any manner whatever; and therefore, if the bill can not be taken pro confesso against the state, the further progress of the case must await his good pleasure.

8

Every corporation is and must be composed of, and conducted by, natural persons; yet the distinction between the natural and artificial capacities and liabilities of its members has been drawn in such a manner as to create the most serious inconvenience. A body politic, it has been quaintly said, has no soul; and therefore can not be called on to answer under the obligation of an oath by which a natural person may be bound. To avoid this difficulty the court of chancery has the turnpike road have been very materially diminished. Currie v. The Mutual Assurance Society, 4 Hen. & Mun. 315.

9

11 Blac. Com. 475.

21 Blac. Com. 385; 4 Com. Dig. 487; Henriques v. Dutch West India Company, 2 Ld. Raym. 1532; The National Bank of St. Charles v. De Bernales, 11 Com. Law Rep. 475.

34 Com. Dig. 487; McMechen v. The Mayor of Baltimore, 2 H. & J. 41; Agnew v. The Bank of Gettysburg, 2 H. & G. 479.

41804, ch. 73, § 6.

5 Bac. Abr. tit. Corporations, E. 2; Lynch v. The Mechanic's Bank, 13 Johns. 127.

61785, ch. 36.

7 Willis Eq. Plea. 7.

82 Mad. Pr. Chan. 335; 1 Fowl. Exch. Prac. 401; Nabob of the Carnatic v. The East India Company, 1 Ves., Jun., 371; s. c. 1 Hoven. Supp. 149. 9 The case of Sutton's Hospital, 10 Co. 33.

had recourse to a singular shift, which it is admitted rests on very questionable principles; it allows the secretary, bookkeeper or some one or more of the chief members of the body politic to be made codefendants for the express purpose of obtaining an answer on oath, which answer, contrary to the general rule in other cases, is received as evidence against the corporation itself. Thus allowing the plaintiff to select from among the corporators such one or more of them as he may think proper to make witnesses, and to extract from them only such proof as may be entirely responsive to his case.

It is said, in one of the very respectable treatises on equity pleading, that, in the case of a corporation aggregate, where the answer is under the common seal, the bill must pray that a writ called a writ of distringas may issue under the great seal, which is for the purpose of distraining them by their goods and chattels, rents and profits, until they obey the summons or direction of the court.2 What is here said, however, as to the prayer of the bill, is certainly wrong, the authorities cited warrant no such assertion." And it has also been said, that a subpena is not the proper original process against a corporation, because it has no conscience." This is also an error, for, in all cases, where a corporation is made defendant, the first and proper process for calling it in to appear and answer is the same as that used for summoning a natural person, that is, a subpena; and accordingly the bill prays for a subpena, and no other process. The bill, it is true, must always ask for that original process which is suited to the nature of the case; against natural and artificial persons a subpena is prayed for; against non-residents an order of publication made the substitute of a subpena, is asked, and against the attorney-general it is prayed that he may be attended with a copy of the bill; which form of prayer, as against the attorney-general, appears to be recognized by several acts of assembly,' with only two exceptions, in which he is directed to be summoned, or served with a subpena." These prayers are indispensably necessary, because it is an established rule, that no one is to be considered a party to the suit, against whom no process or publication is prayed and served with it, or the publication made."

5

If the body politic neglects or refuses to appear as required by the subpena which has been served on the mayor, president or any director or manager, or other officer, then the next process is a distringas, the

1 Fenton v. Hughes, 7 Ves. 289; Dummer v. Corporation of Chippenham, 14 Ves. 253.

2 Coop. Pl. Eq. 16.

3 Harvey v. East India Company, 2 Vern. 395; s. c. Prec. Cha. 128. Com. Dig. tit. Franchises, F. 19.

5 Willis Eq. Plea. 8; Lowten v. The Mayor of Colchester, 2 Meriv. 395. Willis Eq. Plea. 7; 2 Mad. Pra. Chan. 202.

71785, ch. 72, s. 29, and ch. 78, s. 1; April, 1787, ch. 30, s. 4; 1799, ch. 79,

s. 7.

81786, ch. 49, s. 8; 1794, ch. 60, s. 6.

9 Windsor v. Windsor, 2 Dick. 707; Reilly v. Ward, 5 Bro. P. C. 495; Lingan v. Henderson, 1 Bland 245.

form of which writ is substantially the same at law as in equity.1 By this writ the sheriff is commanded to make a distress upon the lands and tenements, goods and chattels of the corporation; and it is indorsed thus: "By the court at the suit of A. B. for want of an appearance (or answer, as the case may be)." But in England upon the first writ the sheriff generally levies forty shillings issues; upon the alias distringas, four pounds; on the pluries distringas he levies the whole property; and on the return of the plurics a sequestration is granted. Thus far there appears to be not the slightest difference to be found in the books, either as to the form of the process, or in reference to the character of the corporation to be affected by it.

I can, therefore, feel myself at liberty to make no other alteration than to settle the amount in reference to the present value of money, and to declare, that upon the first distringas to compel an appearance or answer, the sheriff shall take issues or personal property of the corporation, to the amount of twenty dollars; and upon the alias distringas he shall levy forty dollars; and on the pluries distringas he shall distrain the whole of the personal estate, together with the rents and profits of the lands. 3

4

If it shall be ascertained by the return of all these successive writs that the corporation has no property upon which a distringas may be levied, or which can be taken under a sequestration, then the bill may be taken pro confesso, and the plaintiff may obtain relief accordingly; or if, having no property, or after all its property has been sequestered, it still stands out, and refuses to appear and answer, then, according to what seems to be the better and more reasonable opinion, the plaintiff may have an attachment against the members, or, at least, those of them who have been duly summoned, or served with the subpena, and thus notified of the institution of the suit.5 If, after a decree, the corporation neglects to comply therewith, upon being served with a copy of it according to the ancient practice, as recognized by the act of assembly, now dispensed with, the plaintiff may obtain a distringas to enforce obedience to it, and after the return of the first writ of distringas he may have a sequestration, and if the sheriff returns that the body politic has nothing upon which the distringas can be levied, then the members of the corporation may be attached, or such other proceedings had according to the nature of the case, and having proper re

8

7

12 Harr. Ent. 674; 1 Harri. Pra. Chan. 264; 1832, ch. 306, s. 5. 21 Harr. Prac. Chan. 264.

3 East India Company's case, 1 Salk. 191.

* Salmon v. The Hamborough Company, 1 Ca. Chan. 204; Curson v. African Company, 1 Vern. 121.

Rex v. Gardner, Cowp. 85; London v. Lynn, 1 H. Blac. 206.

62 Mad. Pr. Chan. 466.

71785, ch. 72, s. 25.

8 1818, ch. 193, s. 4.

9 Harvey v. East India Company, 2 Vern. 395; s. c. Prec. Chan. 129; Com. Dig. tit. Franchises, F. 19.

gard to the extent of the liability of the members of the body politic as may be deemed proper and lawful.1

Whereupon it is ordered that a writ of distringas be issued as prayed by the said petition of the plaintiffs, which writ is hereby directed to be indorsed and levied as above prescribed.

[Soon after the president and directors of the Franklin Bank of Baltimore put in their answer, and, after hearing, the bill of complaint was dismissed as to them.]

(See cases cited to People v. Morris, infra, p. 234.)

Sec. 43. Same.

THE PEOPLE v. MORRIS.

1835. IN THE SUPREME COURT OF NEW YORK. 13 Wendell (N.Y.) 325-337.

[Error from the St. Lawrence oyer and terminer. The defendant was tried on an indictment for selling spirituous liquors and permitting the same to be drank in his grocery store, without having obtained a license as a tavern keeper.

The village charter of 1824 authorized the trustees to regulate and "license grocers, and keepers of victualing houses, where fruit victuals and liquor shall be sold to be eaten or drank in such houses or groceries." In 1830 the revised statutes went into effect and provided that only certain excise commissioners could grant licenses to sell liquors and wines to tavern and inn-keepers to be drank in their houses, and licenses to grocers should be granted to sell only in fivegallon quantities or over, but not to be drank in their houses. Defendant had obtained his license from the village authorities under the charter, and admitted the selling in his grocery to be drank there, after the revised statutes went into effect.]

By the court, NELSON, J. The defendant insists that the statute under which he has been convicted is inoperative, upon the grounds, (1) That the power or franchise of the corporation of the village of Ogdensburgh to grant licenses to grocers to sell spirituous liquors to be drank in their houses is a vested right, and can not be impaired or taken away; and (2) That if such power can be taken away, it can be done only by bill having the assent of two-thirds of the members elected to each branch of the legislature, in conformity to the ninth section of the seventh article of the constitution of the state.

As to the first objection urged by the defendant, the only limita

12 Mad. Pr. Chan. 466; Salmon v. The Hamborough Company, 1 Cha. Cas. 204; Adley v. The Whitestable Company, 17 Ves. 324; s. c. 1 Meriv. 107. 2 Statement of facts abridged. Much of the opinion omitted.