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existence, is undoubted; and was, so far back as the reign of Edward 3., allowed to have been long settled as clear law (a).. There are indeed certain corporations which exist solely by force of the common law. Of this sort are the King himself, all bishops, parsons, vicars, churchwardens, and some others, who virtute officii are corporations (6); the law having affixed to their respective capacities from time immemorial, without any express power from the Crown, certain properties of a corporation. Even in corporations of this description, the King's consent is to be implied, at least as a member of the community (c).

A corporation by prescription, is a corporation which has existed from time immemorial, and of which it is impossible to shew the commencement, by any particular charter: as the city of London and many others (d). In this case the King's original consent is presumed, and it is supposed that the charter is lost or destroyed, by time or accident.

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The King's consent to the formation of a corporation is expressly given in the case of his granting a charter. This need not be done by any particular forin of words, the usual expressions are "creamus, erigimus, fundamus, incorporamus;" but any equivalent words, as constituimus, &c. will suffice (e). A grant to a set of men that they may have " Gildam mercatoriam," a mercantile meeting or assembly, is sufficient to incorporate them (ƒ). So a gift of land. from the King to the burgesses, citizens or commonalty, of such a place, was conceived to be sufficient to incorporate them under such collective name (g). And if the King grant to the men of Dale that they may elect a Mayor every year, and that they may plead and be impleaded by the name of Mayor and Commonalty; this seems to be sufficient to incorporate them (h). And there are many instances of grants by charter to the inhabitants of a town, "that their town shall be a free borough," and that they shall enjoy various privileges and exemptions, without any

(a) Bract. lib. 2. c. 24. f. 55, 6. 49 Edw. 3; 3, 4. 49 Ass. p. 8. Bro. Ab. tit. Corpor. 15, Prescription, 15. 10 Co. 33, b. 1 Rol. 512.

(b) 1 Bla. Com. 472. 1 Kyd. 39, 40.
(c) 1 Kyd. 41.
(d) 2 Inst. 330.

(e) 2 Rol. Ab. 197. 10 Co. 30. Styles, 198.

(f) Ibid. 1 Rol. Ab. 513.

(g) 7 Edw. 4. 14 Bro. Corpor. 54.

(h) 21 Edw. 4. 56. Bro. Corpor. 65; but 21 Edw. 4, 57, b. seems contra.

"direct clause of incorporation; and yet by virtue of such char"ter, such towns have been uniformly considered as incorporated (a). Nor is it necessary that the charter should expressly confer those powers, without which a collective body of men cannot be a corporation, such as the power of suing and being sued, and to take and grant property; though such powers are in general expressly given (b). A grant of incorporation to the citizens or burgesses of such a city or borough, especially an old grant, is good, without the words " their successors (c),”

A grant of lands to the men or inhabitants of Dale, hæredibus et successoribus suis, rendering rent, makes them a corporation as to these lands (d): and if the King grant hominibus de Islington to be discharged of toll, this is a good corporation to this intent but not to purchase (e). If the words of the charter be doubtful, they may it seems be explained by contemporaneous usage (f): and this, added to the wording of a charter in various respects, may establish a corporation to be Sa prescriptive corporation, though there be a recent charter containing words of creation only, without words of confirmation (g). 20 cartel

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But though it is the province of the Crown to constitute corporations, it cannot compel any body to accept its charter. The benefit prima facie conferred by a grant of incorporation, may be counterbalanced by some conditions with which it is accompanied: and it has therefore become an established rule that the grant must be accepted by the voluntary consent of a majority of those men whom it is intended to incorporate, otherwise the grant will be void (h). A patent procured by 'some few persons only shall not bind the rest; nor can a town be incorporated without the consent of the major part of the inhabitants (i); nor even then is it compulsory on any one to become a member (k). If however a smaller number than a majority of an indefinite part of an existing corporation be sufficient to constitute a lawful assembly for doing corporate

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acts, it seems the same number may effectually accept a new 'charter (a). No particular ceremony is necessary to constitute an acceptance of the charter by the grantees: their non objecting for even a short period of time seems to determine their election; and to render the acceptance irrevocable (b). And this is a matter to be tried by a jury (c).

It is admitted on all hands, that the charter by which a body is incorporated must be accepted, as it is offered: part of its provisions cannot be rejected, and part accepted; and a partial acceptance is, in such case, an acceptance in toto (d). But there appears to be some doubt whether, if a new charter be given to a corporation already in being, and acting under a former charter, or (which is equivalent thereto) prescriptive usage, such corporation already existing is at liberty to accept the new charter pro tanto only, rejecting the remainder. That Athey may reject the new charter in toto, is indubitable; because the King cannot take away, abridge, or alter any liberties or privileges granted by him or his predecessors, without, the consent of the individuals holding them (e). And in the case of "The King v. The Vice-Chancellor, &c. of Cambridge (f)," Lord Mansfield said, that" an old corporation is not obliged to accept a new charter in toto, and to receive either all or more of it; and that they may act partly under it and partly under their old charter or prescription." That however was a case in which the question rather was as to the acceptance of one of several unconnected and independent statutes or charters to which perhaps there may be no objection. But to hold that a corporation is at liberty to accept parts only of entire and dependent provisions offered them by a charter, would be to permit them, and not the King, to make it. By rejecting part of a consecutive provision, an alteration may be effected in the grant which renders it wholly different from that which the King meant to confer. This distinction seems to have been taken by Mr. J. Buller, in "The King v. Amery (g),"¿ " ,in which he observed, "that the averment in the plea before him

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(a) 1 T. R. 588.

(b) 4 Mod. 269. 1 Salk. 167. 1 Ld. Raym. 29, 32. 1 T. R. 587. 3 Ibid. 189.

(c) Ibid.

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(d) 3 Burr. 1656.

(e) See preceding notes, 1 Kyd. 67. (f) 3 Burr. 1656.

(g) 1 Term Rep. 589.

proceeded

proceeded on a mistake, by supposing that a charter may be accepted in part, and rejected as to the rest. The only instance in which I have ever heard it contended that a charter could be accepted in part only is, where the King has granted two distinct things, both for the benefit of the grantees: there I know that some have thought that the grantees may take one and reject the other. However that may be, it cannot extend to this case. This corporation must either have accepted in toto, or not at all; if they could have accepted a part only of the charter, they would have been a corporation created by themselves, and not by the King. If a charter directed that the corporation should consist of a mayor, aldermen, and twenty-four common councilmen, they could not accept the charter for the mayor and aldermen only, omitting the common councilmen.”

The charter should give the corporation a corporate name (a): but it may have a name by implication; as if the King should incorporate the inhabitants of Dale with power to chuse a mayor annually, though no name be given, yet it is a good corporation by the name of mayor and commonalty (b). And corporations may change their names, as they frequently do in new charters, and they still retain their former rights and privileges (c). As it is the King's charter that creates corporations, so his Majesty may by his charter mould and frame them in the first instance as he thinks fit; and may by the consent of the corporation afterwards remove or grant additional rules for their governance, consistently with principles of law (d). In ecclesiastical and eleemosynary foundations, the King or the founder may give them rules, laws, statutes, and ordinances, which they are bound to observe: but corporations merely lay, constituted for civil purposes, are subject to no particular statutes; but to the common law, and to their own by-laws, not contrary to the laws of the realm (e). And in such case, without express words the various incidents to corporations apply (f). The constitution of a corporation as settled by Act of Parliament cannot be varied by the acceptance of any charter inconsistent with it (g). And when it is intended

(a) 1 Bla. Com. 474, 5. 10 Rep. 28.

(b) 1 Salk. 191.

(c) 4 Co. 87. Ld. Raym. 1239. (d) 3 Mod. 13.

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(e) Ld. Raym, 8,

(f) See 1 Bla. Com. 475. See Bac. Abr. Corporations, D.

(g) 6 T. R. 268.

that a corporation should be established, vested with powers or privileges which by the principles of the common law cannot be granted by the King's charter, then recourse must be had to the aid of an Act of Parliament; as if it be intended to grant the power of imprisonment, as in the case of the College of Physicians; or, to confer an exclusive right of trading, as in the case of the East India Company; or when a court is erected with a power to proceed in a manner different from the common law, which is the case of the Vice-Chancellor's Court in the two Universities (a), But it has been well observed (b), that most of those statutes which are usually cited as having created corporations, either confirm such as have been previously created by the King; as in the case of the College of Physicians, which was erected by charter in the tenth year of Henry the 8th., and afterwards confirmed in Parliament by an Act of the 14th and 15th of the same King (c); or they permit the King to erect a corporation in futuro, with such and such powers, as in the case of the Bank of England (d), and the Society of the British Fishery (e); so that the immediate creative act is usually performed by the King alone, in virtue of his royal prerogative.

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Though, as before observed (f), the Crown may grant to any city the privilege of having Justices of their own within themselves; yet a charter granting jurisdiction to Borough Magistrates over a district not within the Borough, does not exclude the County Justices without express words. And though such charter contain words of reference to former charters, in which exclusive jurisdiction is given to the Borough Justices within the Borough, and add that they shall have jurisdiction within the new district in tam amplis modo et formá, &c.; yet if there be in that latter charter a saving clause of the rights of the Crown, and of all other persons, the Borough Magistrates have only a concurrent jurisdiction with the County Justices (g).

It is now settled that the King may not only grant to a subject a power and licence to erect a particular specified

(a) Vid. Cro. Car. 73, 87, 88. Jenk. 97, 117.

(b) 1 Bla. Com. 473.

(c) 14 and 15 Hen. 8. c. 5. Vid. 8. Co. 114.

(d) 5 and 6 Wm. and M. c. 20.
(e) 23 Geo. 2. c. 4.

(ƒ) Ante, 120. 2 Stra. 1154.
(g) 3 T. R. 279, and 4 Ibid. 456.

corporation;

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