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mortmain, or generally assumed them to be in force; and the only legal check to the acquisition of lands by corporations, consists in those special restrictions contained in the acts by which they are incorporated, and which usually confine the capacity to purchase real estate to specified and necessary objects; 4 and in the force to be given to the exception of corporations out of the statute of * wills, (a) which declares that all persons, other than bodies politic and corporate, may be devisees of real estate. (6)

The statutes of mortmain are in force in the state of Pennsylvania. It has been there held and declared, by the judges of the Supreme Court of that state, (c) that the English statutes of mortmain have been received, and considered the law of that state, so far as they were applicable to their political condition; and

religious and monastic institutions for the relief of the poor, the encouragement of charity and religion, at the pleasure and with the bounty of individuals; but the motion met with no encouragement, and was withdrawn. The statute of 9 Geo. II. ch. 36, is now the leading English statute of mortmain. It declares that no lands or moneys, to be laid out thereon, shall be given or charged for any charitable uses, unless by deed, executed in the presence of two witnesses, twelve months before the death of the donor, and enrolled in chancery within six months after its execution, and be made to take effect immediately, without power of revocation. The two aniversities, and the scholars, upon the foundation of the colleges of Eton, Winchester, and Westminster, were excepted out of the Act.

(a) 32 Hen. VIII. c. 1. N. Y. Revised Statutes, vol. ii. p. 57, sec. 3.

(6) If corporations are limited in the purchase of lands to lands of a specific yearly value, say £200, and the value be within the sum prescribed when purchased, and the lands afterwards rise in value by good husbandry, or extraneous causes, the title of the corporation is not thereby affected, and the yearly value at the time of the purchase is all that the limitation requires. This is the just and equitable rule. 2 Inst. 722.

(c) 3 Binney, App. 626. The statutes of mortmain apply, in Pennsylvania, only so far as they prohibit dedications of property to superstitious uses, or grants to corporations without a statutory license. Methodist Church v. Remington, 1 Watts, 218.

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+ See The Warden, &c. v. South-eastern Co.13 Eng. L. & Eq. 240; Bostock v. N. Staffordshire Railway Co. 32 Eng. L. & Eq. 101. A municipal corporation, having power to hold estate real and personal for its public use, cannot hold lands beyond its boundaries for a highway. Riley v. City of Rochester, 5 Seld. 64.

6 The construction upon the English statutes of mortmain extends its prohibitions to the proceeds of growing crops as savoring of the realty," Symonds v. Marine Soc. 2 Giff. 325, to shares in a company, the substantial business of which is dealing with land, but not if the land is held incidentally, for the uses of trade independent of land. Myers v. Perigal, 2 De G. M. & G. 599. Morris v. Glynn, 27 Beav. 218; and to moneys secured by mortgage on land and arrears of interest thereon. Alexander v. Brame, 30 Beav. 153.

1 The law was so declared in the great case of Bogardus v. Trinity Church, 4 Sandf. Ch. 634. If, at the time of the grant, the income exceed the prescribed limit, it is a question between the corporation and the sovereign power, of which third persons cannot avail themselves.

that they were so far applicable “ that all conveyances by deed or will, of lands, tenements, or hereditaments, made to a body corporate, or for the use of a body corporate, were void, unless sanctioned by charter or act of assembly.” (d). In the other states it is understood that the statutes of mortmain have not been reënacted or practised upon; and the inference from the statutes creating corporations and authorizing them to hold real estate to a certain limited extent, is, that our statute corporations cannot take and hold real estate for purposes foreign to their institution. (e) ? As we have no general statutes of mortmain, perhaps a legally constituted corporation in another state can purchase and hold lands ad libitum in New York, provided their charter gave them the competent power. (f)3 A cor

(d) By the statute in Pennsylvania of 6th of April, 1833, passed since the declaration of the judges mentioned in the text, all purchases of land by any corporation, or by any person in trust for one, without the license of the commonwealth, are made subject to forfeiture, and the same penalty extends to all lands held by corporations existing in other states, either directly or through the medium of trustees or feoffees. Purdon's Dig. 350. But in Runyan v. Lessee of Coster, 14 Peters, 122, it was adjudged that a corporation of another state, authorized to purchase and hold lands in Pennsylvania, or elsewhere, is competent to purchase and hold lands in that state, subject, nevertheless, to be devested of the estate, and to a forfeiture of it to the state of Pennsylvania, whenever that state thinks proper to institute process for that purpose. The corporation holds a defeasible estate, if held without a license, procured from Pennsylvania.

(e) Parker, C. J., in First Parish in Sutton v. Cole, 3 Pick. 232. The provincial statute of Massachusetts of 28 Geo. II. was commonly called a statute of mortmain. It was virtually repealed by the statute of 1785, which was a substitute for it; and it has been held, that a bequest in trust for pious and charitable uses was not void. Bartlet v. King, 12 Mass. 537. The Revised Statutes of Massachusetts of 1836, continue the same provision, and deacons and church-wardens of Protestant churches are made bodies politic, competent to take donations for their churches, and for the poor thereof. Revised Statutes, part 1, tit. 8, sec. 39. The British Mortmain Acts were never recognized as the law of Virginia or Kentucky. Robertson C. J., 4 Dana, 356. Lathrop v. Commercial Bank of Scioto, 8 Dana, 114. In Louisiana, substitutions and fidei commissa are abolished. Civil Code, art. 1507. The object was to prevent property from being placed out of commerce, but it does not apply to naked trusts to be executed immediately.

(f) This is declared to be the law in Kentucky. Lathrop v. Commercial Bank of Scioto, 8 Dana, 114. The decision in that case goes to establish the doctrine, that a corporation of another state or nation can contract and sue on contracts made by its

· But it is presumed to be held or conveyed for corporate purposes until the contrary is proved. Farmers' L. & T. Co. v. Curtis, 3 Seld. 466. See State v. Mansfield, 3 Zabr. 510; State v. Newark, 1 Dutch. 315.

3 State v. B. C. & M. R. R. Co. 25 Vermont, 433. Steamboat Co. v. McCutcheon, 13 Penn. 13. Thompson v. Swoope, 24 Penn. 474. Boyce v. St. Louis, 29 Barb. (N. Y.) 650.

poration may take a mortgage upon land by way of security for loans made in the course and according to the usage of its lawful operations; or in satisfaction of debts previously contracted in the course of its dealing. Such Acts are generally provided for in the charters of incorporation; and without such a special authority, it would seem to be implied in the reason and spirit of the grant, if the debt was bonâ fide created in the regular course of business. (9)

2. To sue and be sued."

Corporations have a capacity to sue and be sued by their corpo rate name. (h) 6 Private moneyed corporations are not * only liable to be sued like private individuals in assumpsit * 284 for breaches of contract, but they may be sued by a special action on the case for neglect and malfeasance and breaches of duty, and in actions of trespass and trover for damages result

agent in Kentucky, provided they be such as its charter authorizes, and consistent with the local law and policy of the state ; and a corporation of another state can take and hold lands by purchase, mortgage, or devise, when consistent with its charter, and not denied by positive law. This liberal and enlightened decision was fully considered and ably sustained.

(g) Silver Lake Bank v. North, 4 Johns. Ch. 370. Baird v. Bank of Washington, 11 Serg. & Rawle, 411.4

(h) But individual members of a corporation cannot, by a bill in equity, sue for corporate claims without the consent of the corporation; and if the corporation neglect their rights and duties, and individual corporators wish for redress, they must at least make the corporation a party defendant. Hersey v. Veazie, 24 Maine, 1.5

4 Farmers' L. & T. Co. v. Clowes, 4 Edw. Ch. 575.

• As to the power of a court of equity over corporations, at the suit of a single stockholder, see Salomons v. Laing, 12 Beav. 339; Dodge v. Woolsey, 18 How. U. S. 331; Kean v. Johnson, 1 Stockt. (N. J.) 401; Hodges v. Screw Co. 3 R. I. 9; R. R. Co. v. Harris, 27 Miss. 517; R. R. Co. v. Wheeling, 13 Gratt. 40. As to how far single stockholders are bound by acts of the corporation beyond its powers or modifying its original charter, see above cases and ex parte Johnson, 31 E. L. & Eq. 430; Insurance Co. o. Conner, 17 Penn. 136; Insurance Co. v. Hobart, 2 Gray, 543. The acceptance of an amendatory Act changing materially the charter, does not bind a non-assenting member. R. R. Co. v. Harris, 27 Miss. 517. Unless the power of alteration is reserved in the charter. Schen. & Sar. Plank R. Co. v. Thatcher, 11 N. Y. 102. Buffalo & N. Y. R. v. Dudley, 14 N. Y. 336.

One state, as a corporation, may institute a suit in another. Hines v. The State of North Carolina, 10 Smedes & M. 529. Judgment may be rendered against a corporation upon an indictment upon default of appearance, after due notice to appear. Boston C. & M. R. R. v. State, 32 N. Hamp. 215.

A right to sue includes a right to refer. Alexandria Canal Co. v. Swann, 5 How. U. S. 83. Brady v. The Mayor, &c. of Brooklyn, 1 Barb. (N. Y.) 584 A suit will not lie against a corporation for a dividend, without a previous demand. State v. Baltimore & Ohio R. Co. 6 Gill, 363.

ing from trespasses and torts committed by their agents under their authority; and the authority of such agents need not be under seal. (a) From their inability to be arrested, corporations

(a) Yarborough v. The Bank of England, 16, East., 6. Smith v. B. & S. Gaslight Co. 1 Adol. & Ell. 526. Maund v. Monmouth Canal Co. 1 Car. & Marsh. (606,) 330, Phil. ed. Townsend v. Susquehanna Turnpike, 6 Johns. 90. Gray v. Portland Bank, 3 Mass. 364. Chestnut Hill Turnpike v. Rutter, 4 Serg. & Rawle, 6. Fowle v. Com. mon Council of Alexandria, 3 Peters U. S. 398. Rabassa v. Orleans Navigation Co. 5 Louis. 461. Shaw C. J., 19 Pick. 516. Rector of the Ascension v. Buckhart, 3 Hill, 193. Angell & Ames on Corporations, pp. 385–391, 3d edit. Mayor of New York v. Bailey, 2 Denio, 433. Weightman v. Washington City, 1 Black. U. S. 38. In Ohio, it has been adjudged that corporations are liable, like individuals, for injuries done, as by cutting ditches and water-courses, in such a manner as to cause the water to overflow and injure the plaintiff's land, although the act done was not beyond their lawful pow. ers. Rhodes v. Cleveland, 10 Ohio, 159. Individuals are liable, if in the commission of a lawful act damage thereby accrues to another, provided he could have avoided it with due care. Lambert v. Bessy, T. Raym. 421. A railroad company is not responsible for a building set on fire and destroyed by a spark from a railroad engine, provided there was no negligence on the part of the company, and there was the exercise of due care and skill. Vaughn v. Taffvale, 5 Hurls & N. 679. Hinch v. Barton, 25 N. Y. 544. The damage was the unavoidable and casual result of the performance of a lawful act.? Burroughs v. Housatonic R. R. Co. 15 Conn. 124. S. P. infra, vol. iii. 436.

i The same doctrine is established in New York. Hay v. The Cohoes Co. 2 Comst. 159. (S. C. Barb. N. Y. 42.) Tremain v. Same, Ibid. 163. As to the liability of corporations for the acts of their agents, see note (1,) post, p. 291. And Delmonico v. The Mayor, &c. of N. Y. 1 Sandf. (N. Y.) 222. McCombs v. Town Council of Akron, 15 Ohio, 474. Watson r. Bennett, 12 Barb. 196. Howell v. Buffalo, 15 N. Y. (1 Smith) 512. City of Dayton t. Pease, 4 Ohio (N. S.) 80.

Corporations aggregate may be guilty of libel, and may be sued therefor in their aggregate capacity. Phil. v. Wil. & B. R. v. Quigley, 21 How. U. S. 202. Whitfield v. S. E. R. R. Co. 1 Ell. Bl. & Ell. 115. And they may be indicted, e. g. for obstructing a highway. Queen t. Great N. of England R. 9 Ad. & Ell. (N. S.) 315. The rule, in England, is general, that such corporations may be liable in tort for intentional acts of misfeasance by their servants committed in their general business and connected with the scope and object of the corporation. Green v. London Omnibus Co. 7 Com. B. 290. Whitfield v. S. E. R. R. Co. 1 Ell. Bl. & EL 115. As to liability of dock owners for injury arising from accumulations of mud, see Mersey Docks Board v. Penhallow, 7 Hurls. & N. 329.

2 Railroad v. Yeiser, 8 Barr, 366. McCready v. South Carolina R. R. Co. 2 Strobh. 365. Sheldon v. Hudson R. R. R. Co. 14 N. Y. (4 Kernan) 218. Lake Ontario R. R. Co. v. Mason, 16 N. Y. (2 Smith) 451. Under a statute in Massachusetts, making railroads liable for injuries done to buildings by fire communicated by their engines, it was held that the corpora tion was liable for injuries done to a house which had been set on fire by sparks from a shop, which was destroyed by fire communicated by the engine. Hart v. Western R. R. Corporation, 13 Metcalf, 99. There is a similar statute in Maine, under which it has been decided that a railroad company is liable for any property set on fire by sparks from a locomotive, which is a subject of insurance, and even for growing trees. Pratt v. Atlantic & St. Lawrence R. R. Co. 42 Maine, 579. In Piggott v. Eastern Counties R. Co. 3 Man. G. & Scott, 229, it was held that the onus was on the company to show due care. See, also, Huyett v. P. & R. R. 23 Penn. 373. Aldridge v. G. W. R. Co. 3 M. & G. 515. Where cattle are tres

are to be sued by original writ or summons; and, at common law, they might be compelled to appear by distress or seizure of their property. (b) A foreign corporation, in the character of its mem

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(6) The process, pleadings, and other proceedings at law and equity, in suits by and against corporations, and the competency of corporators as witnesses in suits in which the corporation is a party, are fully discussed, and with a reference, in the most ample manner, to English and American authorities, in Angell & Ames's Treatise on Corporations, ch. 18. See infra, p. 290. Upon judgment and execution against a corporation for a debt, its property, real and personal, may be attached or seized and sold, as in the case of individual defendants. It is the ordinary practice. Buchanan C. J., in State of Maryland v. Bank of Maryland, 6 Gill & Johns. 219. Slee v. Bloom, 5 Johns. Ch. 366. S. C. 19 Johns. 456. Pierce v. Partridge, 3 Metcalf, 44. Perry v. Adams, Ibid. 51. The Queen v. The Victoria Park Co. 1 Adol. & Ell. N. S. 288. If a railroad company contracts debts which it is unable to pay, the better opinion would seem to be, that the wood and iron on the railway may be taken on execution and sold ; and the purchaser acquires thereby a right of property in the articles, and may take possession of them and carry them away, though the company be thereby rendered unable to execute its corporate purpose, and may in consequence forfeit its charter. See this question very ably discussed in the American Law Magazine, vol. iv. No. 8, for January, 1845. This very point has since been decided in the State of North Carolina v. Rives, 5 Ired. N. C. 297. It was held, that the R. R. company's interest in land might be sold with the fixtures and materials, and the purchaser takes and holds them until the charter expires, and then the land reverts to the original proprietor. The corporate franchise cannot be sold, nor does the sale dissolve the corporation. See, also, the right to sell the fixtures, in Ranney v. Orleans N. Company, 6 Rob. (Louis.) 381. But, on the other hand, in Winchester and L. Turnpike Road Company v. Vimont, 5 B. Mon. 1, it was adjudged that a turnpike road was not the subject of sale, even under a decree in chancery, to pay debts. The stock belonged to individuals, and not to the company. The mere road belonged to the company as a right of way only for particular uses, and when it ceases to be thus used, the land reverts to the grantors. The purchaser at such a sale would not acquire any valuable right, for corporate powers would not follow the purchase. A sale of the road would not carry a right to the tolls, for that would be the sale of a chose in action, which cannot be thus effected. The only proper remedy for the creditor under this decision, if not under that in the preceding case, is, by decree, applying by a receiver the net tolls to the payment of the creditor. In Pennsylvania, corporation franchises cannot be sold on execution ; but under their sequestration Act of 16th June, 1836, though turnpike roads, railroads, and canals may be the subject of sequestration for debt, yet where the public have an interest in them, the court may or

passers on a railroad, their owners cannot maintain an action against the railroad company for injuries to the cattle by the passage of the trains. Vandegrift v. Rediker, 2 New Jersey, 185. Clark v. Syr. & U. Co. 11 Barb. (N. Y.) 112. But the circumstances under which the owner of cattle is liable as a trespasser differ in different jurisdictions. N. Y. & E. R. R. v. Skinner, 19 Penn. 298. C. & M. R. R. v. Patchin, 16 Ill. 198. C. H. & D. R. R. v. Waterson, 4 Ohio, 424. See, further, as to liability for negligence by railroads, Marsh v. New York & E. R. Co. 14 Barb. (N.Y.) 364; Willetts v. Buffalo R. Co. 14 Barb. (N. Y.) 585; Munger v. Tonawanda R. Co. 4 Comst. 349; Brand v. Schenectady & T. Co. 8 Barb. 368; Phil. & Read. R. v. Derby, 14 How. U. S. 468; C. C. & C. R. Co. v. Elliot, 4 Ohio, 474; Trow v. Vt. C. R. R. Co. 24 Vermont, 487; Sanford v. Eighth Av. R. Co. 23 N. Y. 343; Bissell 0. Mich. So. & N. Ind. R. 22 N. Y. 258

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