nature of a corporation, of which the law properly recognizes only the creature of the charter, and knows not the individuals. Ang. & Ames on Carp., 535, 536. On looking into Revised Statutes, ch. 38 and 44, to the provisions of which the corporation in question was made subject, we find various enactments by which officers and members are made individually liable for debts contracted by corporations in case of non-compliance with certain requisitions; but no provision is made by which such individual liability attaches by reason of any omission to organize in the manner prescribed by law. The statute, it is true, prescribes the mode of organization, but it annexes no penalty or liability to the neglect or omission to comply with it. We are unable to see, therefore, any principle of law upon which the instructions given to the jury on this point can rest.

It follows, as a necessary consequence of what we have already said, that the records of the corporation were improperly admitted and submitted to the jury as evidence of an agreement or understanding among the shareholders in the corporation as to their own rights and liabilities as members of a co-partnership, and of the extent of authority given to Fuller as agent of such co-partnership. They were not made or kept for any such purpose. They were only the records and by-laws of a corporation, not the agreements of individuals, in the nature of articles of co-partnership; and they could have no legitimate tendency to prove the facts for which they were offered and used at the trial.

Without examining at greater length the rulings of the court set out in the bill of exceptions, we think it manifest that the whole trial proceeded under a misapprehension. If the court were correct in deciding that there was no organization of the corporation, and that all its proceedings were void, the case resolved itself into a few simple elements. Being unorganized, and incompetent to act as a corporation, it could not create agents, or confer any authority on any one to act in its behalf, and therefore all those who acted or purported to act as its agents were acting without authority. There was no principal to appoint an agent. It is a familiar principle of law that a person who acts as agent without authority or without a principal is himself regarded as a principal, and has all the rights and is subject to all the liabilities of a principal. Story on Agency, section 264. If a person, purporting to act as agent of a corporation which had no valid existence, makes contracts and does other acts as its agent, he becomes the principal, and is personally liable therefor. If he purchases property, as agent, without authority, the title vests in him, so far at least as regards third persons, and he has the sole right to dispose of it to others. Story on Agency, section 264a, note; Hampton v. Speckenagle, 9 S. & R. 212. Applying this principle to the case at bar, it is very clear that Fuller was not the agent of a co-partnership, for none existed; he was not the agent of individuals, as such, because he was not authorized to act; he was not the agent of the West Boston Iron Company, because if the court were right in deciding that it had never organized, and that its proceedings were void,

it never had the power to appoint him agent. Clearly, then, he acted without authority from any one. If he purchased, he purchased for himself. In him only did the property vest, and as against all but the vendors he had the sole right to dispose of it to others. In this view, the question of co-partnership which was submitted to the jury was wholly immaterial, and diverted their attention from the real point in issue. We are therefore of opinion that there was a mistrial, and that the verdict must be set aside and a new trial had at the bar of this court.

To same effect, 1879, Ward v. Brigham, 127 Mass. 24; First National Bank V. Almy, 117 Mass. 476; Trowbridge v. Scudder, 11 Cush. 83; 1892, Rutherford v. Hill, 22 Ore. 218, 29 Am. St. R. 596; Humphreys v. Mooney, 5 Colo. 282; Gartside Coal Co. v. Maxwell, 22 Fed. Rep. 197.

See the following cases holding there is not necessarily a partnership liability; many, however, are cases of estoppel. 1846, State v. How, Î Mich. (1 Man.) 512; 1872, Blanchard v. Kaull, 44 Cal. 440; 1874, Fuller v. Rowe, 57 N. Y. 23; 1880 Humphreys v. Mooney, 5 Colo. 282; 1884, Gartside Coal Co. v. Maxwell, 22 Fed. Rep. (U. S. C. C.) 197; 1885, Johnson v. Corser, 34 Minn. 355; 1890, Snider's Sons' Co. v. Troy, 91 Ala. 224, supra, p.656; 1890, Cory v. Lee, 93 Ala. 468, 8 So. Rep. 694; 1892, Rutherford v. Hill, 22 Ore. 218, 29 Am. St. R. 596; 1894, Railroad Gazette v. Wherry, 58 Mo. App. 423; 1894, Wilson Cotton Mills v. C. C. R. Cotton Mills, 115 N. C. 475; 1895, Clark v. Richardson, 17 Ky. L. Rep. 514, 31 S. W. Rep. 878; 1895, First National Bank v. Harper, 61 Minn. 375, 63 N. W. Rep. 1097; 1805, American Mirror & G. B. Co. v. Bulkley, 107 Mich. 447, 65 N. W. Rep. 291; 1896, First Nat'l Bank v. Dovetail B. & G. Co., 143 Ind. 534, 42 N. E. Rep. 924; 1896, Gow v. Collen & P. L. Co., 109 Mich. 45, 66 N. W. Rep. 676; 1896, Hogue v. Capital Nat'l Bank, 47 N. B. 929, 66 N. W. Rep. 1036; 1897, Sentell v. Hewitt, 50 La. Ann. 3, 22 So. Rep. 970; 1898, Cole v. Great B. L. & L. Co., 8 Kan. App. 860, 54 Pac. Rep. 920; 1899, Richards v. Minn. Sav. Bk., 75 Minn. 196, 77 N. W. Rep. 822. See, also, supra, p. 625; text-book references, supra, p. 672; 1903, Cannon v. Brush El. Co., 96 Md. 446, 94 Am. St. R. 584, 54 Atl. 121.

1

TITLE IV. THE BODY CORPORATE, ITS ANATOMY, INTERNAL
STRUCTURE AND CONSTITUTION.

CHAPTER 8.

MEMBERS, PARTS, ORGANS OF ACTION, WITH THEIR FUNCTIONS AND MUTUAL RELATIONS.

SUBDIVISION I. MEMBERS, INTEGRAL PARTS AND ORGANS OF

ACTION.

ARTICLE I. MEMBERS.

Sec. 181. Necessity of members.

"It is plain that a joint-stock company or trading corporation can not possibly exist without stockholders or members. It would be a contradiction in terms to speak of an association existing without associates composing it." i Morawetz, § 33.

Note. See, also, supra, §§ 96, 97.

Sec. 182. Acquisition of membership.

(1) Non-stock companies.

THE AMERICAN LIVE STOCK COMMISSION COMPANY v. THE
CHICAGO LIVE STOCK EXCHANGE.1

1892. IN THE SUPREME COURT OF ILLINOIS. 143 Ill. Rep. 210241, 36 Am. St. Rep. 385.

[Bill by commission company against stock exchange for an injunction.]

MR. CHIEF JUSTICE BAILEY. The live stock exchange is a corporation, not for pecuniary profit, organized March 13, 1884, under the laws of this state, the objects for which it was organized, as declared by its articles of incorporation, being: "To establish and maintain a commercial exchange; to promote uniformity in the customs and

1 Statement of facts abridged and rearranged. Arguments omitted, and only so much of opinion given as relates to the single point.

usages of our merchants; to provide for the speedy adjustment of all disputes between its members; to facilitate the receiving of live stock, as well as provide for good management and the inspection thereof, thereby guarding against the sale or use of unsound or unhealthy meats; to secure to members a corporation in furtherance of their legitimate purposes." Said corporation has no capital stock, and is itself engaged in no commercial business, but limits its corporate enterprise to furnishing to its members facilities for carrying on, each for himself, the business of buying, selling and dealing in live stock, meats and other like commodities, and to adopting and enforcing bylaws, rules and regulations by which the business of its members shall be conducted and governed [pp. 225-6].

The complainant is a joint-stock corporation, organized May 3, 1889, under the laws of this state, with a capital stock of $100,000, divided into shares of $100 each, the shareholders consisting principally, if not exclusively, of persons and firms engaged in the business of shipping live stock to the Union Stock Yards at Chicago for sale. The principal office of said corporation is located at the stock yards, and the objects for which said corporation was formed, as declared by its articles of incorporation, are as follows:

"To engage in the business of buying, selling and handling live stock upon commission at the Union Stock Yards, state of Illinois, and at such other points throughout the United States as may be deemed advisable, and also to encourage the stockholders of said corporation to raise, improve, feed and ship to market live stock; and in order to better effectuate said latter object, it is hereby expressly stipulated and agreed by and between the parties hereto, that the net earnings of said corporation shall be distributed among the stockholders thereof annually in the following manner, to wit: Sixty-five per cent. of said net earnings shall be distributed to said stockholders in the ratio of the number of stock shipped by each stockholder to the said corporation for sale during the current year for which said dividend shall be declared, and the remaining 35 per cent. of said net earnings shall be distributed to the shareholders in said corporation in the ratio of the amount owned by each shareholder in said corporation. It is hereby further expressly agreed and stipulated that no one person shall have the right to subscribe for or own more than twenty-five shares of stock in said corporation at any time during the existence of said proposed corporation."

Said corporation, on being organized, appointed Rogers as its manager, and he applied for admission as a member of the exchange, and was admitted a member thereof, his initiation fee being paid by' the presentation of an outstanding certificate of membership which had been purchased with the money of the complainant. The evidence shows, and 'upon this point there seems to be no dispute, that when Rogers applied for membership no disclosure was made by him as to the plan upon which the complainant corporation was organized, and particularly the obligation which it assumed by its articles of incorporation, to distribute annually among its shareholders sixty

five per cent. of its net earnings, in the proportion of the number of live stock shipped by each to said corporation for sale. Rogers was admitted to membership upon investigation by the exchange of his own personal character and credit, and in ignorance of this peculiar feature of the scheme upon which the corporation represented by him was organized.

The complainant thereupon embarked in the business of receiving consignments of live stock, both from its shareholders and others, and in selling the same on commission at the stock yards, the rates of commission charged by it in all cases being in conformity to the schedule of rates established by the exchange. Said business was managed by Rogers, who, being a member of the exchange, was enabled to avail himself in the management of said business of all the privileges which such membership afforded.

In November, 1889, the complainant having realized a considerable sum of money as the net profits of its business up to that time, distributed such net profits to its shareholders as required by its articles of incorporation, and the exchange being informed of such distribution, and regarding it as a virtual evasion of its rules establishing minimum rates of commissions, instituted proceedings against the complainant and its manager for a violation of its rules. Rogers set up, in defense of these charges, in substance, that the complainant was not a member of the exchange nor subject to its jurisdiction; that so far as his action as a member of the exchange was concerned he had strictly conformed to said rules by charging and collecting the rates of commissions thereby established, and having collected them, he had accounted for and paid the same over to his principal, the complainant, as it was his legal duty to do, and that he had no responsibility for the disposition which the complainant had subsequently seen fit to make of the same. These suggestions seem to have been acquiesced in by the exchange, as the proceedings against both the complainant and its manager appear to have been thereupon abandoned.

The exchange, however, for the purpose, as may well be presumed, of protecting itself against similar evasions of its rules in the future, amended its eighth rule so as to provide, in substance, that no person should be received for membership in the exchange who, in any manner, acts for or represents any other live stock corporation whose charter, regulations, rules or by-laws provided for discrimination in rates or charges for commissions between stockholders and other patrons or customers, whether under the guise of dividends, drawbacks or any other scheme or device whatever, and that no member of the exchange should act as agent or otherwise for any live stock corporation whose charter, regulations, rules or by-laws provide for such discrimination, and subjecting a member thus offending to suspension or expulsion. At the same time rule nine was so amended as to prohibit all members of the exchange from buying any live stock or causing the same to be bought, at the stock yards from any corporation or live stock company which is or may be regularly selling live stock for non-residents on commission, unless some one or more of the stockholders of