Imatges de pàgina
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the general corporation of the town in which they claim to act; but it is on all fuch occasions uniformly decided, that no commonalty or corporation can make another corporation or commonalty, either by ufage or prescription, or by any other means than by the authority of the King's charter empowering them to do so, by express words (a).

BUT it is admitted (b), that the mayor and commonalty of London may make a fraternity or company within the city, which, however, will be no more than a voluntary affociation, from which each of the members may retire whenever he pleases.

AND in later times, it is faid by the court, that, "though the city of London cannot make a corporation, as that can only be created by the crown; yet they may make a fraternity or fellowship:" and the court thus distinguishes between a corporation and a fraternity," that a corporation is properly an invefting of the people of the place with the local government thereof, and therefore their laws fhall bind strangers; but that a fraternity is fome people of a place united together in respect of a mystery and business, into a company, and their laws and ordinances cannot bind ftrangers, because they have not a local power or government" (c).

THIS diftinction, however, is certainly made in very inaccurate terms; it seems to imply, that the name of corporation, and the powers belonging to fuch a body, can be enjoyed only by a corporation invefted with the "local government" of a place, and that all the companies of trades within towns and cities, are only voluntary affociations, and can exercise no corporate powers, which is

(a) Vid. 49 Aff. p. 8. 49 Ed. 3. 3, 4. scription 15. 10 Co. 33 b. 1 Rol. 512. (b) Vid. the last cited authorities.

Bro. Corpor. 15,45. Pre-
Sid. 291. 2 Keb. 53.
(c) Salk. 193.

certainly

certainly not true; for when fuch companies are incorpo rated by the King's charter, they are as much corporations, as the general corporate body of the town or city in which they are. But the true diftinction feems to be this, that a company incorporated by the King's charter, can act as a corporation by its own intrinfic powers without the affistance or protection of the corporation of the town; but that a company established by the authority of the mayor and commonalty of London, though allowed to be a legal institution, cannot act of itself as a corporation, but its members must affert their claim of privileges under the prescriptive right of the mayor and commonalty to eftablish such a company: a diftinction which seems to be fupported by the following cafes.

A BYE law was made in the city of London, reciting, that the company of minstrels were an ancient company, and that great mischief and debauchery had happened, on account of feveral foreigners having fet up dancing schools; for which reafon, it was ordered, that all perfons using thofe arts, not being free of that company, fhould, on notice, by fummons of the beadle, accept their freedom, under a penalty of 10l. one half to the mayor and commonalty, and the other half to the company of muficmafters. The court held, that a bye law which obliged dancing mafters to be of the company of musicians, could not be good: and Holt C. J. faid, the musicians were no corporation; they were a brotherhood or club, to meet and drink and talk together, and no more; the city might make a guild or fraternity of dancing masters, though they could not make a corporation, and then it were reasonable to oblige the dancing masters to be of that company, though they could not oblige them to be of a company foreign to their profeffion (a).

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To a habeas corpus directed to the court of the mayor of London, the cuftom of London was returned, "that

the porterage from any veffel on the river, and the meterage of corn, roots, &c. imported or exported, belonged to the city, upwards from Staines-bridge to London-bridge, and downwards as far as Yendal in Kent; and also another custom to make bye laws, confirmed by Richard the fecond, where any of their cuftoms wanted a suitable remedy." And further, "that in the eighteenth year of King James the firft, a bye law was made by the corporation, that the corn porters fhould be a company, with twenty-four affiftants, who fhould be called free porters, and should work at a particular fettled rate; and that none but the free porters should intermeddle in importing or exporting any corn, roots, &c. within the limits mentioned in the custom, on pain of zos. for every offence, except in time of danger or urgent neceffity, or in the cafe of perishable goods, the forfeiture to be recovered by action, in the name of the chamberlain, and four hundred porters were appointed for the future; and, that the free porters had ever fince used and exercised this bye law, till the defendant intruded by carrying barley, though a free porter was prefent, by which he forfeited zos. which the plaintiff, as chamberlain, was intitled to have, and for which he fued in the mayor's court" (a).

AFTER a long argument on the validity of the custom, and the bye law, as founded on it, the court held both to be good, and, of course, recognized the power of the city of London to establish such a company, and the manner of enforcing the privileges of its members (b).

(a) Fazakerley v. Wiltshire. (b) Vid. tit. Bye Law.

I Str. 462.

It was formerly afferted, that the act of incorporation must be the immediate act of the King himself, and that he could not grant a licence to another to erect a corporation (a): but the law has long been fettled otherwise; and he may not only grant a licence to a subject to erect a particular corporation, but give a general power by charter to erect corporations indefinitely. The chancellor of the univerfity of Oxford has by charter such a power, and has actually often exerted it, in the erection of feveral matriculated companies, now fubfifting, of tradesmen fubfervient to the students (b).

THIS power is moft frequently exercised in the case of eleemofynary or charitable corporations, when a licence is granted to a subject to erect such a corporation, and to endow it with poffeffions or revenues; in which cafe the donor is called the founder.

THE word "foundation," as applied to fuch corporations, is taken in two different fenfes, which Sir Edward Coke diftinguishes by the terms "fundatio incipiens," and "fundatio perficiens," for as to the politic capacity, the act of incorporation is metaphorically called the foundation, that being the beginning, as a foundation "quafi fundamentum capacitatis" preceding the whole: but as to the dotation, the first gift of the revenues is called the foundation, and he who gives it is the founder in law (c).

A PRIVATE perfon might have been, in the latter sense, the founder of an abbey or priory, as well as the King; and if the poffeffions, with which he endowed it, had been of ever so small a value, and the King had afterwards endowed it with large poffeffions, yet the private perfon ftill continued founder. If a common perfon had founded a chauntry,

(a) Vid. 2 H. 7. 13 a. b. 10 Co. 27 b. (c) 10 Co. 33. a paffim. 1 Rol. 514.

(b) Bl. Com. 474.

and

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and afterwards the King had tranflated it into a monaftery, and endowed it with poffeffions, yet the common perfon continued to be confidered in law as the founder; fo, if a fubject had been the founder of an abbey or priory, and the King, after the statute of 25 H. 8, c. 21, by which the King was declared to be the head of the church, had tranflated the abbot, or prior and monks, into dean and chapter, the foundership would ftill have remained in the fubject (a): fo, if the King had erected a chapel and given it poffeffions, by which he was the founder; though the feculars had afterwards been tranflated into regulars, yet the King would still have been the founder, because he gave the first poffeffions (b). And it is faid, by Sir Edward Coke, that the foundership is fo infeparably incident to the blood of the founder, that it cannot be granted over, and that if a fubject founder fhould grant his foundership to the King by deed inrolled, it would be a void grant (c).

BUT if the King and a common perfon give poffeffions to a corporation at the fame time, on its original creation, the King, by his prerogative, fhall be the founder (d).

WITH refpect to the mode of erecting fuch corporations, where there is a fubject founder, this difference is to be obferved; either the King expreffes the words of incorporation, defigns the place, appoints the number, and gives them a constitution and a name by his charter, so that the corporation is complete; and then the founder or donor has nothing more to do, than to make the dotation, without any inftrument comprehending any words of incorpora

(a) 3 H. 7, 6 b. cited 3 Co. 74. a. 2 Inst. 68.

(b) 38 Aff. 22. I Rol. 514.

(c) 11 Co. 77. a. 78. a. cites temp. Hen. 8, Brooke tit.

(d) 50 Aff. 6. 1 Rol. 514. 9 Co. 129 b. 2 Inft. 68. cites 44 Ed.

3. 24, 25.

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