may be capitally punished for any capital offence:(x) but under the age of seven he cannot. The period between seven and fourteen is subject to much uncertainty for the infant shall, generally speaking, be judged prima facie innocent; yet if he was doli capax, and could discern between good and evil at the time of the offence committed, he may be convicted and undergo judgment and execution of death, though he hath not attained to years of puberty or *465] *discretion.(y) And Sir Matthew Hale gives us two instances, one of a girl of thirteen, who was burned for killing her mistress; another of a boy still younger, that had killed his companion, and hid himself, who was hanged; for it appeared by his hiding that he knew he had done wrong, and could discern between good and evil: and in such cases the maxim of law is, that malitia supplet ætatem. So also, in much more modern times, a boy of ten years old, who was guilty of a heinous murder, was held a proper subject for capital punishment, by the opinion of all the judges.(z) With regard to estates and civil property, an infant hath many privileges, which will be better understood when we come to treat more particularly of those matters: but this may be said in general, that an infant shall lose nothing by non-claim, or neglect of demanding his right; nor shall any other laches or negligence be imputed to an infant, except in some very particular cases. It is generally true, that an infant can neither aliene his lands, nor do any legal act, nor make a deed, nor indeed any manner of contract that will bind him. But still to all these rules there are some exceptions: part of which were just now mentioned in reckoning up the different capacities which they assume at different ages: and there are others, a few of which it may not be improper to recite, as a general specimen of the whole. And, first, it is true, that infants cannot aliene their estates: but infant trustees, or mortgagees, are enabled to convey, under the direction of the court of chancery or exchequer, or other courts of equity, the estates they hold in trust or mortgage, to such person as the court shall appoint.(a) Also it is generally true, that an infant can do no legal act: yet an infant, who has had an advowson, may present to the benefice when it becomes void.(b) For the law in this case dispenses with one rule, in order to maintain others of far greater consequence: it permits an in*466] fant to present a clerk, who, if unfit, may be rejected by the bishop, rather than either suffer the church to be unserved till he comes of age, or permit the infant to be debarred of his right by lapse to the bishop. An infant may also purchase lands, but his purchase is incomplete: for, when he comes to age, he may either agree or disagree to it, as he thinks prudent or proper, without alleging any reason; and so may his heirs after him, if he dies without having completed his agreement. (c) It is, further, generally true, that an infant, under twenty-one, can make no deed but what is afterwards voidable: yet in some cases(d) he may bind himself apprentice by deed indented or indentures, for seven years; and(e) he may by deed or will appoint a guardian to his children, if he has any. Lastly, it is generally true, that an infant can make no other contract that will bind him:13 yet he may bind himself to pay for is necessary meat, drink, apparel, physic, and such other necessaries; and like (*) 1 Hal. P. C. 25. (2) Ibid. 26. (*) Foster, 72. (a) Stat. 7 Anne, c. 19. 4 Geo. III. c. 16. (b) Co. Litt. 172. (d) Stat. 5 Eliz. c. 4. 43 Eliz. c. 2. Cro. Car. 179. 13 It has been considered that a bill of exchange, or negotiable security, given by an infant during his minority, is in no case binding on him, though given for necessaries, (2 Camp. 562, 563. Holt, C. N. P. 78. 1 T. R. 40. 4 Price, 300. Chit. on Bills, 5 ed. 22:) and most clearly so, if not given for necessaries. Carth. 160. But, infancy being a personal privilege, the infant only can take advantage of this. 4 Esp. 187. An infant is not liable on an account stated, even though the particulars of the account were for necessaries. 1 T. R. 40. See 2 Stark, 36, where otherwise in equity. 1 Eq. C. Abr. 286.-CHITTY. This rule is providently intended for the benefit of the infant, that he may be enabled to gain credit for such things as are suited to his degree and station. The term 1 wise for his good teaching and instruction whereby he may profit himself afterwards.(f) And thus much, at present, for the privileges and disabilities of infants.15 (f) Co. Litt. 172. necessaries, used by lord Coke, is a relative one; and the question, as to what are necessaries, must be determined by the age, fortune, condition, and rank in life of the infant, (see 8 T. R. 578. 1 Esp. Rep. 212. Carter, 315,) which must be real, and not apparent. Peake, 229. 1 Esp. Rep. 211. The question, as to what are necessaries, is for a jury. 1 M. & S. 738. Liveries ordered by a captain in the army for his servant have been considered necessaries. 8 T. R. 578. Regimentals furnished to a member of volunteer corps may be recovered as necessaries. 5 Esp. 152. But it has been held that a chronometer is not necessary for a lieutenant in the navy, when he was not in commission at the time it was supplied. Holt, C. N. P. 77. An infant has been held liable for a fine on his admission to a copyhold estate. 3 Burr. 1717. But it has been said, that if an infant is the owner of houses, and it is necessary to have them put in repair, yet the contract to repair will not bind him at law; for no contracts are binding on an infant but such as concern his person. 2 Roll. Rep. 271. But in equity, an agreement by an infant to pay compound interest on mortgage to prevent foreclosure is binding. 1 Eq. C. Abr. 286. 1 Atk. 489. An infant is liable for necessaries furnished to his wife and family, (1 Stra. 168,) or for the nursing of his lawful child, (Bacon, Max. 18,) but not for articles furnished in order for the marriage. 1 Stra. 168. He is liable for so much goods supplied him to trade with as were consumed as necessaries in his own family. 1 Car. Rep. 94.—CHITTY. 15 The general rule is that the contracts of an infant are voidable by him. Oliver vs. Houdlet, 13 Mass. 237. Whitney vs. Dutch, 14 ibid. 457. Yet there are some contracts so clearly prejudicial that they are held to be not merely voidable, but absolutely void. Such is the contract of suretyship. Maples vs. Wightman, 4 Conn. 376. So a negotiable note, as such, is merely void, though the contract which forms the consideration of the note may be otherwise. The infant cannot be precluded (as is the maker of a negotiable note as against an endorser or bona fide holder) from going into an examination of the consideration. Earle vs. Reed, 10 Metc. 387. McMinn vs. Richmond, 6 Yerg. 9. Although it be true that all the contracts of an infant are voidable, it would be manifestly unjust to allow him to retain the consideration received by him and reclaim that which he has parted with. Therefore, if an infant sell goods and receive the money for them, he shall not be permitted to recover back the goods without returning the money. Badger vs. Phinney, 15 Mass. 359. Kitchen vs. Lee, 11 Paige, 107. Bailey vs. Barnberger, 11 B. Monroe, 113. Infants are liable for their torts in the same manner as persons of full age. Bullock vs. Babcock, 3 Wend. 391. Wherever, however, the inducement to the action is a contract, and the gravamen is fraud in the contract, the infant cannot be ousted of his privilege by an election of a form of action ex delicto. Thus, infancy is a good bar to an action founded upon a false and fraudulent warranty upon the sale of a horse. West vs. Moore, 14 Verm. 447. An infant is liable in trover, although the goods were delivered to him under a contract, and although they were not actually converted to his own use. Vasse vs. Smith, 6 Cranch, 226. Lewis vs. Littlefield, 3 Shep. 233. When property is bailed to an infant, his infancy is a protection to him for any non-feasance so long as he keeps within the terms of the bailment; but when he departs from the object of it, it amounts to a conversion of the property, and he is liable to the same extent as if he had taken it in the first instance without permission. Towne vs. Wiley, 23 Verm. 355. An infant who has represented himself to be of full age, and thus procured a credit, is not estopped by such representation from setting up his infancy in avoidance of the contract. Burley vs. Russell, 10 N. Hamp. 184. He is answerable, however, to the party injured in action on the case in damages. Fitts vs. Hall, 9 N. Hamp. 441. Wallace vs. Morss, 5 Hill, 391. An infant may, however, be liable for the debts contracted by his wife before mar riage; for, as he is competent by law to enter into the marriage relation, he must also be competent to bear all the responsibilities of such relation. It is evident that, as the wife's personal property becomes his, though an infant, the creditor of the adult wife would be deprived of all remedy if the husband could set up his infancy as a bar to the action. Butler vs. Brick, 7 Metc. 164. An infant who has a guardian or parent who supplies his wants cannot bind himselt for necessaries. Guthrie vs. Murphy, 4 Watts, 80. Wailing vs. Toll, 9 Johns. 141. Angel vs. McLellan, 16 Mass. 28. If a minor is supplied-no matter from what quarter-with necessaries suitable to his estate and degree, a tradesman cannot recover for any other supply made to the minor CHAPTER XVIII. OF CORPORATIONS. WE have hitherto considered persons in their natural capacities, and have treated of their rights and duties. But, as all personal rights die with the person; and, as the necessary forms of investing a series of individuals, one after another, with the same identical rights, would be very inconvenient, if not impracticable; it has been found necessary, when it is for the advantage of the public to have any particular rights kept on foot and continued, to constitute artificial persons, who may maintain a perpetual succession, and enjoy a kind of legal immortality. These artificial persons are called bodies politic, bodies corporate, (corpora corporata,) or corporations: of which there is a great variety subsisting, for the advancement of religion, of learning, and of commerce; in order to preserve entire and forever those rights and immunities, which, if they were granted only to those individuals of which the body corporate is composed, would upon their death be utterly lost and extinct. To show the advantages of these incorporations, let us consider the case of a college in either of our universities, founded ad studendum et orandum, for the encouragement and support of religion and learning. If this were a mere voluntary assembly, the individuals which compose it might indeed read, pray, study, and perform scholastic exercises together, *468] so long as they could agree to do so: but they *could neither frame, nor receive, any laws or rules of their conduct; none, at least, which would have any binding force, for want of a coercive power to create a sufficient obligation. Neither could they be capable of retaining any privileges or immunities: for, if such privileges be attacked, which of all this unconnected assembly has the right, or ability, to defend them? And, when they are dispersed by death or otherwise, how shall they transfer these advantages to another set of students, equally unconnected as themselves? So also, with regard to holding estates or other property, if land be granted for the purposes of religion or learning to twenty individuals not incorporated, there is no legal way of continuing the property to any other persons for the same purposes, but by endless conveyances from one to the other, as often as the hands are changed. But when they are consolidated and united into a corporation, they and their successors are then considered as one person in law as one person, they have one will, which is collected from the sense of the majority of the individuals: this : just after. The rule of law is that no man may deal with a minor: the exception to it is that a stranger may supply him with necessaries proper for him, in default of supply by any one else; but his interference with what is properly the guardian's business must rest on an actual necessity,-of which he must judge in a measure at his peril. It is the tradesman's duty to know not only that the supplies are unexceptionable in quantity and sort, but also that they are actually needed. When he assumes the business of the guardian for purposes of present relief, he is bound to execute it as a prudent guardian would, and, consequently, to make himself acquainted with the ward's necessities and circumstances. The credit which the negligence of the guardian gives to the ward ceases as his necessities cease; and, as nothing further is requisite when these are relieved, the exception to the rule is at an end. Gibson, C. J. Johnson vs. Lines, 6 W. & S. 82. Kline vs. L'Amoureux, 2 Paige, 419. Perrin vs. Wilson, 10 Missouri, 451. The promise of an infant cannot be enforced against him upon a mere acknowledgment, nor upon a partial payment after he comes of age. A direct promise to pay is necessary, or an express agreement to ratify his contract. Yet no new consideration is necessary. The moral obligation resting upon him to pay a just debt-or, perhaps more accurately, to compensate a benefit actually received and enjoyed-is sufficient consideration to sustain an express promise to pay. Whitney vs. Dutch, 14 Mass. 457. Thompson vs. Lay, 4 Pick. 48. Wilcox vs. Roath, 12 Conn. 550. Curtis vs. Patton, 11 S. & R. 305. Ordinary vs. Wherry, 1 Bailey, 28. Hinely vs. Margarite, 3 Barr. 428.-SHARS WOOD. one will may establish rules and orders for the regulation of the whole, which are a sort of municipal laws of this little republic; or rules and statutes may be prescribed to it at its creation, which are then in the place of natural laws: the privileges and immunities, the estates and possessions, of the corporation, when once vested in them, will be forever vested, without any new conveyance to new successions; for all the individual members that have existed from the foundation. to the present time, or that shall ever hereafter exist, are but one person in law, a person that never dies: in like manner as the river Thames is still the same river, though the parts which compose it are changing every instant. The honour of originally inventing these political constitutions entirely belongs to the Romans. They were introduced, as Plutarch says, by Numa; who, finding, upon his accession, the city torn to pieces by the two rival factions of Sabines and Romans, thought it a prudent and politic measure to subdivide these two into many smaller ones, by *instituting separate societies of every [*469 manual trade and profession. They were afterwards much considered by the civil law;(a) in which they were called universitates, as forming one whole out of many individuals; or collegia, from being gathered together: they were adopted also by the canon law, for the maintenance of ecclesiastical discipline; and from them our spiritual corporations are derived. But our laws have considerably refined and improved upon the invention, according to the usual genius of the English nation: particularly with regard to sole corporations, consisting of one person only, of which the Roman lawyers had no notion; their maxim being that "tres faciunt collegium."(b) Though they held, that if a corporation, originally consisting of three persons, be reduced to one, “si universitas ad unum redit," it may still subsist as a corporation, "et stet nomen universitatis.”(c) Before we proceed to treat of the several incidents of corporations, as regarded by the laws of England, let us first take a view of the several sorts of them; and then we shall be better enabled to apprehend their respective qualities. The first division of corporations is into aggregate and sole. Corporations aggregate consist of many persons united together into one society, and are 1 In Corporations are public or private. Public corporations are such as have been created for the purposes of municipal government, including all the inhabitants within a certain district or territory: such are cities, towns, boroughs, &c. Private corporations include, properly, all others,-religious, literary, charitable, manufacturing, insuring, or moneylending associations, as well as railway, canal, bridge, and turnpike companies,-with which in number and variety no country so abounds as the United States. Charters of incorporation granted by the legislatures of the States to all private corporations are considered as executed contracts within the protection of art. 1, s. 10 of the constitution of the United States, which declares that "no State shall pass any law impairing the obligation of contracts." The Trustees of Dartmouth College vs. Woodward, 4 Wheat. 518. the popular meaning of the term, nearly every corporation is public, inasmuch as they are all created for the public benefit. Yet if the whole interest does not belong to the government, or if the corporation is not created for the administration of political or municipal power, it is a private corporation. Thus, all bank, bridge, turnpike, railroad, and canal companies are private corporations. In these and other similar cases the uses may, in a certain sense, be called public; but the corporations are private, as much so as if the franchises were vested in a single person. The state, by virtue of its right of eminent domain, may take private property for public purposes upon making compensation. It may delegate this power to a private corporation, by reason of the benefit to accrue to the public from the use of the improvements to be constructed by the corporation. But such delegation of power to be used for private emolument as well as public benefit does not clothe the corporation with the inviolability or immunity of public officers performing public functions. Grier, J. Randle vs. The Delaware & Raritan Canal, 1 Wallace, C. C. Rep. 290. There are some persons and associations who have a corporate capacity only for particular specified ends, but who can in that capacity sue and be sued as an artificial person. These bodies are termed quasi corporations. Yet, as it is not essential to a corporation that it should be vested with all the usual powers of corporations, but only that it should be clothed with perpetual succession and be recognised by the law as an artificial person, such bodies really are corporations.-SHARSWOOD. kept up by a perpetual succession of members, so as to continue forever; of which kind are the mayor and commonalty of a city, the head and fellows of a college, the dean and chapter of a cathedral church. Corporations sole consist of one person only and his successors, in some partcular station, who are incor porated by law, in order to give them some legal capacities and advantages. particularly that of perpetuity, which in their natural persons they could not have had. In this sense, the king is a sole corporation;(d) so is a bishop; so are some deans, and prebendaries, distinct from their several chapters; and so is every parson and vicar. And the necessity, or at least use, of this institution will be very apparent, if we consider the case of *a parson of a church *470] At the original endowment of parish churches, the freehold of the church, the churchyard, the parsonage house, the glebe, and the tithes of the parish, were vested in the then parson by the bounty of the donor, as a temporal recompense to him for his spiritual care of the inhabitants, and with intent that the same emoluments should ever afterwards continue as a recompense for the same care. But how was this to be effected? The freehold was vested in the parson; and, if we suppose it vested in his natural capacity, on his death it might descend to his heir, and would be liable to his debts and encumbrances: or, at best, the heir might be compellable, at some trouble and expense, to convey these rights to the succeeding incumbent. The law therefore has wisely ordained, that the parson, quatenus parson, shall never die, any more than the king; by making him and his successors a corporation. By which means all the original rights of the parsonage are preserved entire to the successor: for the present incumbent, and his predecessor who lived seven centuries ago, are in law one and the same person; and what was given to the one was given to the other also. Another division of incorporations, either sole or aggregate, is into ecclesiastical and lay. Ecclesiastical corporations are where the members that compose it are entirely spiritual persons: such as, bishops; certain deans, and prebendaries; all archdeacons, parsons, and vicars; which are sole corporations: deans and chapters at present, and formerly prior and convent, abbot, and monks, and the like, bodies aggregate. These are erected for the furtherance of religion, and perpetuating the rights of the church. Lay corporations are of two sorts, civil and eleemosynary. The civil are such as are erected for a variety of temporal purposes. The king, for instance, is made a corporation to prevent in general the possibility of an interregnum or vacancy of the throne, and to preserve the possessions of the crown entire; for immediately upon the demise of one king, his successor is, as we have formerly seen, in full possession of the regal rights and *471] dignity. Other lay corporations are erected for the good government of a town or particular district, as a mayor and commonalty, bailiff and burgesses, or the like: some for the advancement and regulation of manufactures and commerce; as the trading companies of London, and other towns and some for the better carrying on of divers special purposes; as church-wardens, for conservation of the goods of the parish; the college of physicians and company of surgeons in London, for the improvement of the medical science; the royal society, for the advancement of natural knowledge; and the society of antiquaries, for promoting the study of antiquities. And among these I am inclined to think the general corporate bodies of the universities of Oxford and Cambridge must be ranked: for it is clear they are not spiritual or ecclesiastical corporations, being composed of more laymen than clergy: neither are they eleemosynary foundations, though stipends are annexed to particular magistrates and professors, any more than other corporations where the acting officers have standing salaries; for these are rewards pro opera et labore, not charitable donations only, since every stipend is preceded by service and duty: they seem therefore to be merely civil corporations. The eleemosynary sort are such as are constituted for the perpetual distribution of the free alms, or bounty, of the founder of them to such persons as he has directed. Of this kind are all hospitals for the maintenance of the poor, sick, and impotent: and all colleges both in our universities and out(e) of them: which colleges are founded for two pur (d) Co. Litt. 43. () Such as Manchester, Eton, Winchester, &c. |