ways the same juridical person, even though, in the course of time, its members should all be changed." The affairs of a corporation, which include only such as relate to its common object and to its property, are conducted by the will of the corporation itself regarded as a

(a) fr. 7. § 2. D. 3. 4. "In universitatibus nihil refert, utrum omnes iidem maneant, an pars maneat, vel omnes immutati sint. Sed si universitas ad unum redit, magis admitti tur posse eum convenire et conveniri, quum

jus omnium in unum recideret et stet nomen universitatis."

(b) See Langenn and Kori, Erört. Vol. 2. Nos. 1. 2. 4.—Savigny, System. Vol. 2d. p. 246 seqq.

by the legislature, but by the corporation itself (by-laws), are obligatory on its members only.

Every corporation is entitled to appoint directors to represent it and to manage its affairs, who may be charged with all or only certain kinds of business, e. g. the management of its property and the keeping of its accounts. If a corporation have no officers, it must appoint representatives for special occasions; as is requisite, for instance, in suits at law brought by or against the corporation: Such a representative before a court bears in the Roman law the title of syndicus. From the acts of its officers proceed rights as well as duties for the corporation, provided they have acted according to and within the bounds of their instructions, or at least have employed what was acquired by the transaction, for the benefit of the corporation. Corporations, however, as they act not by themselves but by representatives, are entitled, like minors, to the beneficium restitutionis in integrum, against the injurious acts of their representatives. The Prussian law does not extend this privilege to contracts and similar legal transactions, but restricts it (as seems more just) to neglects, oversights, and errors, which are committed in the legal proceedings of corporations by their representatives.

Among the rights of the members of corporations is that of voting (jus voti), by virtue of which every member is entitled to participate in the deliberations and resolutions of the body respecting its affairs, and consequently to be previously notified of its meetings and of the subjects to be discussed. Of course there is no necessity for the concurrence of the corporation itself in matters whose management is intrusted to its officers or to certain of its members.

The division of the property of corporations has been a frequent subject of controversy, and the opinions of civilians still remain at variance respecting it. The dispute relates chiefly to the number of votes required to give validity to a resolution for making such division; and to the principle to be applied in carrying it out. The views entertained respecting the right to make a division are of such opposite natures, that while some jurists have maintained that a single member is entitled to enforce a division, others will not allow even to a majority of the members assembled for the purpose of making a division, the right to pass a resolution to that effect. Civilians of note have shown with sufficient clearness, that the notion that single members have a right to require a division (in support of which, fr. 8. D. 10. 3. is commonly referred to) has arisen from confounding the relations of a communio with those of a corporation; they have shown too that no law can be adduced to justify it. Moreover, the distinction pointed out above between a res communis and the property of corporations, fully explains that where no pro rata right exists, no action can be brought for a division. Non-attendance on the part of members properly notified implies a renunciation of their right to vote, and leaves the decision to the majority, which is formed by two thirds of the members present, not by two thirds of all the members capable of voting. Two thirds of the members present can alone pass a valid resolution, says const. 46. C. 10. 31. Although this has special reference to the ordo decurionum, there is not the slightest reason for regarding it as a mere exception with respect to municipal authorities, as many jurists have attempted to maintain-and this too contrary to the practice, to which Thi baut (System. § 220.) among others has rightly given his support. The opposite party again refer erroneously to fr. 28. D. 10.3., where Papinian says: "In re communi nemo dominorum jure quidquam facere potest invito altero; unde manifestum est, prohi bendi jus esse. In re enim pari potiorem causam prohibentis esse constat." (Helfeld, Jurispr. forensis. lib. 10. tit. 3. § 739. Leyser, Med. ad Pand. T. II. 11. Sp. 118. Med. 3. cap. 29. de reg. in 6to.) For this plainly refers to a res singulorum, and not to a res

juridical person. This will is expressed by a joint resolution (conclusum universitatis). The manner in which this is to be effected may be defined by the constitution of the corporation. But if the constitution has no provisions on the subject, the rule is, that all members who have a vote must be convened; and that whatever is then determined on by a majority of the voters actually present, is to be regarded as the actual will of the corporation, to which dissenters and absentees, if any there be, must submit." In this manner, also, resolutions may be adopted respecting the disposition or alienation of the property of the corporation, and its distribution among the individual members; but such alienation is subjected to the same legal rules as that of the property of minors.

(a) fr. 160. §1. D. 50. 17.-const. 5. C. 10. 63. -const. 3. C. 11. 31.-Nov. 120. c. 6. § 1. 2.cap. 1. 3. 4. X. 3. 11.-cap. 42. X. 1. 6. It is generally considered that wherever its constitution has no special provisions on the subject, a majority of two thirds of all the voting members of a corporation should be present, and that a majority of those thus present should agree, in order to render a resolution obligatory upon all. Gluck, Comm. Vol. 1. 91.-Kind, Quæst. Vol. 3. c. 96.-Runde, Beiträge. Vol. 1. No. 1. § 16 seqq.

(b) Opinions differ in regard to the question, in what manner the property of municipal corporations should be distributed among its members or a change of its use effected. Some jurists consider that the unanimous consent of all is requisite. Runde, Deutsch. Priv. R. 181.-Bülow and Hagemann, Pract. Erört. Vol. 3. No. 25. Vol. 6. Nos. 1 and 6.Ende, Jurist. Abh. Vol. 1. No. 20. Others think that the consent of a majority is sufficient. See Gönner, Ueber Cultur und Ver

theilung der Gemeindeweiden. Landshut, 1803. Danz, Handb. d. Deutsch. Priv. R. Vol. 2. p. 547. And a third party allows to every single member, the right to compel a distribution. See Krull, Prüfung einzelner Theile des bürgerlichen Rechts. Vol. 2. N. 1. According to Mackeldey's opinion, a formal resolution of the corporation confirmed by the government of the state would be required. The following are also of the same opinion: J. G. Gaudlitz, Diss. de finibus inter jus singulorum et universitatis regundis. Leipsic, 1824. (In Haubold's Opusc. Vol. 2. p. 547.) -C. S. Zacharia, Lib. Quæst. qu. 10.-Thi baut, Civ. Abh. No. 18. In addition to the writings already mentioned, the following deserve to be noticed here. Meyer, Ueber Gemeinheitstheilungen. 3 Vols. Celle, 18015. (Only the 3d Vol. belongs here.)-Niemeyer, Anleitung zum Verfahren in GemeinheitsTheilungssachen. Hanover, 1808.- Klebe, Grundsätze der Gemeinheits-Theilung. 2 Parts. Berlin, 1822.-Lotz, Civ. Abh. Co

universitatis. (Struben, Rechtl. Bedenken. Vol. 3. Bed. 3. Vol. 5. Bed. 128.) The assent of the government to the resolution is universally regarded as requisite, in order to protect as well the general interests of the state as those of future generations of members. (Mittermaier, Deutsch. Priv. R. § 117 seqq.)

As regards the principle of division, the majority of course have the right to deter mine on that also. But if this be not done, it is usually made per capita. This is the only correct mode; since every member as such has an equal right. The proportion in which the members have formerly used and enjoyed the property of the corporation, is a mere condition de facto and not de jure, and consequently cannot lead to any decision; neither can the proportion in which they have borne the corporation taxes and burdens. In one case, however, the division may be made in the propor tion in which the property was formerly used; and that is, where individual members, by virtue of an actual legal title, have a more extensive right of use than others. (Mittermaier, 1. c. Thibaut, System. § 221.)

As regards the descent of the property on the dissolution of a corporation, in the case of public institutions endowed either directly or indirectly by the state, it reverts to the same. But in the case of other corporations, their property falls to the state only when there are no heirs to which it can be left; that is to say, when at its dissolution there are no members of the corporation surviving, and no provision has been made by it respecting the inheritance of its property: for the property is then considered as bona vacantia, like the estate of a physical person who dies without heirs.

§ 143. A corporation, as a juridical person, is capable of holding and acquiring rights; and if once legally constituted, it enjoys ipso jure all those rights without which it could not continue to exist. Among these are comprised the right of admitting new members, of appointing presiding and other officers, of having a common treasury, and of making by-laws." The jura minorum are also now conceded to corporations whose affairs are managed by a board of directors. The government may also grant to corporations other special privileges, e. g. a jurisdiction of its own, a right of succession to uninherited property left by its members, and other immunities. As a corporation may possess property, real rights, and personal claims, so also it may be under liabilities to other persons. Those rights and liabilities do not belong to the individuals who are its members, but to the corporation itself regarded as a juridical person; although a right of use may be vested in the individual members with regard to certain property of the corporation, such right being limited to the peculiar use to which the property is devoted. A corporation ceases to exist when the last member drops off, or when it is dissolved by the state. In such case, whatever property there may be belonging to the corporation, if it was one designed for public purposes, becomes the property of the state; but if the corporation was designed for private purposes, when it is dissolved by the state, its property is divided among the last remaining members.f

III. Fiscus.

§ 144. By the term fiscus (treasury) is now especially understood the property of the state, in contradistinction to the private property of the ruler for the time being. With relation to rights and duties, the fiscus is always regarded as a moral person. It has not only a right to all the ordinary and extraordinary state revenues, to the latter of which also belong the bona vacantia; but there also pertain to it many prerogatives and privileges," which we shall notice under the

which are preserved for the purposes of the corporation.

(f) fr. 7. § 2. D. 3. 4.-fr. 21. D. 7. 4. See Marezoll in Löhr's Mag. Vol. 4. p. 207.Fritz zu Wening, Part 1. p. 159.

(g) Pauli Sent. rec. Lib. 5. tit. 12.-Dig. 49. 14.-Cod. Theod. 10. 1.-Cod. Just. 10. 1. -Fragmenta vet. Icti de jure fisci; appended to Gaius's Inst.-Peregrini de jur. et privil. fisci. Cologne, 1663. Harlin, Von dem Rechte des Fiscus. Ulm, 1810.

(h) According to the Roman law and to judicial usage in Germany, the prince and princess enjoy the same privileges in regard to their patrimonial estates. fr. 6. § 1. D. 49. 14.-const. 3. C. 7. 37.—Brissonius de verb. signif. sub. voce ratio.

heads to which they belong. We have here only to state the general rule, that in case of doubt, sentence must be given against the fiscus.a

IV. Pia Causæ.

§ 145. The term pia causa denotes an institution for pious and charitable purposes or for the public benefit, and is the general name given to every establishment which has for its object the promotion of piety, the relief of necessitous persons, the spread of education and knowledge, or the advancement of science and the arts." Institutions of this kind are to be regarded as moral persons, only in case they have been recognised as such by the state, by way of approval and confirmation." Otherwise they lack the capacity for rights, and cannot acquire any thing. Still the confirmation of them on the part of the state may be subsequent to their foundation; and then it has a retrospective effect back to the time of such foundation. If such pia causa be confirmed by the state and therewith recognised as a moral person, it can not only have rights of all kinds, and make acquisitions inter vivos as well as mortis causa, but it also enjoys the privileges of minors, as well with respect to restitutio in integrum as concerning the alienation of property.

(a) fr. 10. D. 49. 14. But comp. also Nov. 161. c. 2. and Edict. Justin. 4. c. 2. § 1.-Savigny, System. 2d Vol. p. 360 seqq.

(b) Cod. 1. 3.-Nov. 120.-J. H. Böhmer, Jus ecclesiasticum Protestantium Lib. 3. tit. 5. 21-28.

(c) Elvers is of a different opinion. See his Theoret. Prakt. Erört. aus der Lehre von der testamentarischen Erbfähigkeit insbesondere juristicher Personen. Gottingen, 1827. p. 157 seqq. Some later jurists have asserted, that according to the explicit words of const. 46. pr. C. 1. 3. all kinds of piæ causæ might be founded by mere private will, through

testamentary appointment as heir or legatee; but that constitution is unglossed and moreover a lex restituta (§ 70). Mühlenbruch, 1. c. p. 58-182.

(d) A pia causa therefore, if founded by a last will, and appointed heir, is to be regarded as capable of inheriting, though its confirmation by the state should not take place until after the death of the testator. Arg. fr. 62. pr. D. 28. 5. A different opinion is held by Muhlenbruch, 1. c. p. 264 seq.

(e) const. 35. in fin. C. ibid.-const. 23. pr. C. 1. 2.-Nov. 120. cap. 1. § 2. cap. 6. § 2.— cap. 1. 3. X. 1. 41.

THIRD DIVISION.

OF THINGS.

1. Corporeal and Incorporeal.

§ 146. By "res" is meant every thing that may form an object of rights; in opposition to persona, which is regarded as a subject of rights. Res, therefore, in its general meaning, comprises actions of all kinds; while in its restricted sense, it comprehends every object of right, except actions. Certain things, however, do not admit of being owned by individual citizens (res extra commercium); consequently they are not subject to private transactions, nor can their value be defined." Things which are in commercio, are either corporeal, that is, such as are perceptible to the senses (res quæ tangi possurt); or incorporeal, that is, such as the mind alone can perceive (res quæ intelliguntur). Only rights and claims were considered by the Romans as things of the latter description.

(a) fr. 6. § 2. fr. 9. § 5. D. 1. 8.-fr. 83. § 5. D. 45. 1. Res extra commercium are: 1. the res divini juris, with respect to which, however, the Roman views are no longer applicable. 2. Of the res humani juris the res communes omnium, as the sea, the sea-shore, the banks of rivers, &c., the theatra and stadia, &c. (b) Gaius, II. 1-17.—Inst. 2. tit. 1. Dig. 1. 8. Westphal, Ueber die Arten der Sachen. Leipsic, 1788.-Hofmann, Versuche. No. 2. Darmstadt, 1831. § 1. J. 2. 2. Corporales

46

*Thus says Mackeldey in the older editions; to which Rosshirt adds, that it is uncertain what rights the Roman jurists meant to include under the head of incorporeal things, and that the Institutes enumerate only servitutes, hereditas, and obligationes. But an examination of the passages cited in note c will leave no doubt as to what the Romans understood by incorporeal things. For these passages clearly mean to say, as will be seen from the examples given by way of illustration, that rights of whatever description, and (as the Editor thinks) even duties of every kind, are incorporeal things. This opin ion will be found supported not only by common sense, but also by the logical interpretation of the passages themselves; for they declare that omnia quæ in jure consistunt (i. e. rights and duties) are incorporalia, and the instances given are explicitly designated as mere illustrations of this definition. Even Buchholtz's idea (Versuche. Berlin, 1831. No. 1.), that the Romans did not reckon the right of property among the res incorporales, appears purely arbitrary. The passages in the Corpus Juris to which he refers do not by any means warrant this supposition; for fr. 13. § 1. D. 39. 2. speaks not of the right of ownership, but of the object of the right; and const. 10. C. 7. 32. speaks, not of the corporeality of the right of ownership, but of the well known distinction between detention and juridical possession. Now it is evident that both these kinds of possession in themselves considered are of an incorporeal nature, while the object of possession may be corporeal, or, in case of quasi-possessio, incorporeal.