that the functions of these commissioners ceased at the end of the year for which they were elected."

A clause in a charter, which directed that the aldermen should be chosen annually, was held to be only directory, and not to determine the office at the end of the year after election; but that the person legally elected and sworn into the office, should continue until his death or removal, in the same manner as a person elected into the office of mayor.1

In Kentucky, in case of a failure to elect officers on the day appointed, the old officers retain their powers, and may act until superseded by a new appointment.2

Kent thinks the better opinion to be, that, though the officers of a corporation be required by the charter to be annually elected, yet, if the time of election under the charter slips, the old corporate officers continue in office after the year, and until others are elected.3

$ 14. Baron Comyn says: "If a corporation refuses to continue the election of officers till all die who could make an election, the corporation is dissolved." But where the corporators, without the presence of any officers, or any act to be done on their part, possess the power to assemble and choose officers, to carry into effect the objects of the incorporation, a neglect to choose officers at the proper time will not work a dissolution, but will merely suspend the exercise of the powers of the corporation until proper officers are chosen. Thus, it

1 Prowese v. Foot (in Error,) 2 Brown, Parl. Cases, 289; S. P. Pender v. Rex (in Error,) Ib. 294.

* Weir v. Bush, 4 Lit. (Ken.) R. 433.

32 Kent Comm. 238. The statute 11 Geo. I. c. 4, was made expressly to prevent the hazard of a dissolution of the corporation from the omission to elect on the day. This statute is considered, however, to be delaratory, and was introduced to remove doubts and difficulty. Ib.

4 Com. Dig. 273, tit. Franchise, c. 4. If a corporation consists of several integral parts, and some of those are gone, and the remaining parts have no power to supply the deficiency, the corporation is dissolved. 1 Roll. Abr. 514.

was held, in New York, that the owners of drowned lands under the act of 1807, who were a quasi corporation, and through inadvertence made no election of commissioners, did not lose, by their neglect, the power of election, though the time and place for the annual meeting of the owners were fixed by law. The court observed: "There is nothing in the nature of the duties to be performed, which necessarily requires a continued succession of commissioners. The officers of towns are required to be chosen by the people, annually, at their several town meetings; yet, if a part of those officers should die before the expiration of the year, and the inhabitants of the town should, from any cause, neglect to hold their annual town meeting, it would not prevent them from supplying the vacancy at their next anniversary meeting for that purpose. The officers thus chosen would possess all the powers of their predecessors, in the same manner as if there had been an uninterrupted succession."1

2

In Slee v. Bloom, Chancellor Kent held, that corporate power, which may have been abused or abandoned, cannot be taken away but by regular process. And per Savage, C. J. : "The plaintiff's have acted as trustees upon the matter, and, in bringing their suit, colore officii, and before an objection to their right can be sustained by the defendant, on the ground that they were not regularly elected, he must show that proceedings have been instituted against them by the government, and carried on to a judgment of ouster."

'Per Chan. Walworth, Philips v. Wickham, 1 Paige (N. Y.) Chan. R. 597. And see Rose v. Turnpike Co. 3 Watts (Penn.) R. 46; Weir v. Bush, 4 Litt. (Ky.) R. 433; Blake v. Hinkle, 10 Yerg. (Tenn.) R. 218; Lehigh Bridge Co. v. Lehigh Coal Co. 4 Rawle (Penn.) R. 9; Smith v. Natchez Steamboat Co. 2 How. (Miss.) R. 478; Spencer v. Campion, 9 Conn. R. 536.

Slee v. Bloom, 5 Johns. (N. Y.) Ch. R. 379.

3 See Trustees of Vernon Society v. Hills, 6 Cowen (N. Y.) R. 23; and see also Silver Lake Bank v. North, 4 Johns. (N. Y.) Ch. R. 373. But see chapter on the Dissolution and Revival of Corporations.

CHAPTER V.

OF THE POWER TO TAKE, HOLD, TRANSMIT IN SUCCESSION, AND ALIENATE, PROPERTY.

§ 1. To enable it to answer the purposes of its creation, every corporation aggregate has, incidentally, at common law, a right to take, hold, and transmit in succession, property, real and personal, to an unlimited extent or amount.' Accordingly, as the incident supposes the principal, it has been held, that a grant of lands from the sovereign authority to the inhabitants of a county, town, or hundred rendering rent, would create them a corporation for that single intent, or confer upon them a capacity to take and hold the lands in a corporate character, without saying, to them and their successors. And where it was evident, from the different clauses of several local acts of parliament, that conservators of a river navigation were to take and transmit lands by succession, although they were not created a corporation by express words, they were considered from the possession of this incident to be incorporated by implication; so that they were entitled to sue, in their corporate

2

1

Litt. R. 49, 112, 114; Co. Litt. 44 a, 300 b; 1 Sid. 161 w; 10 Co. 30 b; Kyd on Corp. 76, 78, 104; Com. Dig. tit. Franchise F. 11, 15, 16 17; Dy. 48 a; 4 Co. 65 a; 1 Black. Comm. 478; 2 Kent Comm. 227; M'Cartee v. Orph. As. Soc., 9 Cowen (N. Y.) R. 437; The Banks v. Poitiaux, 3 Rand. (Virg.) R. 141; Widow, &c. Reynolds v. Commissioners of Stark County, 5 Ohio R. 205; Lathrop v. Comm. Bank of Scioto, 8 Dana (Ken.) R. 119; Binney's case, 2 Bland (Md.) R. 142; Overseers of Poor of Boston v. Sears, 22 Pick. (Mass.) R. 122.

* Dyer, 100 a, pl. 70, cited as good law by Lord Kenyon, 2 Term. R. 672; 2 Kent Comm. 225; North Hempstead v. Hempstead, 2 Wend. (N. Y.) R. 109; Stebbins v. Jennings, 10 Pick. (Mass.) R. 188; Soc. for Prop. Gospel v. Town of Pawlet, 4 Peters R. 480.

name, for an injury done to their real estate, and in that character received their tolls.' After the issuing of letters patent by the governor, in compliance with the requisition of an act of the general assembly creating a corporation, a deed to convey land to the company is good and effectual, in Pennsylvania, for that purpose, although they may not have been so far organized as to have elected their officers; and their assent to it will be presumed.*

The principal benefit of incorporation is, that by it the combined funds of a body of men may, through a long course of time, be steadily applied to the attainment of objects of public convenience or private utility, notwithstanding the changes, which, through the accidents of life, must be constantly going on among the members of the corporation. As a matter of general law, the amount, so to be held and applied, must, necessarily, be indefinite; since no rule could be laid down ascertaining the means essential to effect the various purposes of incorporated companies. This amount, therefore, and under the name of capital stock in case of moneyed corporations, is usually fixed by the legislature, in the act or charter of incorporation, with special reference to the purposes of the particular grant. As sound policy always requires that the capital stock should be restricted within reasonable limits, so it is easy to see that, to enable the company to answer the purpose of its incorporation, it may also require that the capital stock should amount to such a sum as would make it efficient for that purpose. And hence it is not uncommon for the charter, or act of incorporation, to provide, that the capital stock, or a certain amount of it, shall be subscribed, or paid in, before the company shall be at liberty to act under their charter.* Where, however, a bank is incorporated, with the privilege of creating

Tone Conservators v. Ash, 10 B. & C. 349; Bridgewater Canal Co. v. Bluett, Ibid. 393.

'Rathbone v. Tioga Navigation Co. 2 Watts & Serg. (Penn.) R. 74.

3

* Dartmouth College v. Woodward, 4 Wheat. R. 518.

Bend v. Susquehannah Bridge, &c. 6 Har. & J. (Md.) R. 128.

a stock not less than one sum nor greater than another, it may commence business with the smaller capital, and afterwards increase it to the larger.' And though a bank charter provided that the capital stock "may consist" of a certain amount, divided into shares of a certain amount each, and "shall be paid" in the following manner, &c., one dollar on each share in sixty, and one in ninety days after subscription, "the remainder to be called for as the president and directors may deem proper, &c.," and there was no clause expressly restricting the operation of the bank, until a certain amount of the stock was subscribed, the word "may" was construed in its ordinary sense, and not, by the common rule, as synonymous with the word "must;" so that it was decided that a boná fide subscription of the capital stock, prescribed by the charter, was not a condition precedent to the corporate existence or legal operation of the bank. Even if the charter does contain a clause restrictive of the operation of a bank, until a certain amount of its stock is subscribed, it would be difficult to maintain that a collusive subscription, got up between the original subscribers and the commissioners, for the purpose of evading such a clause, could be permitted to be set up to the injury of the subsequent purchasers of the stock, who became bona fide holders, without participation in or notice of the fraud. Indeed, if the subscription was fraudulent, although the subscribers would not be permitted to avail themselves of the same, yet their subscription would not be a nullity; but the law would hold the parties bound to their subscription, and compellable to comply with all the terms and responsibilities imposed upon them thereby, in the same manner as if they were bona fide subscribers. If, by charter or act of incorporation, the stock of the company is divided into a certain

1 Gray v. Portland Bank, 3 Mass. R. 364.

2 Minor et al. v. The Mechanics Bank of Alexandria, 1 Peters R. 46.

3 Per Story, J., Ibid. See Walker v. Devereaux, 4 Paige (N. Y.) Chan. R. 229.

♦ Ibid.; and Walker v. Devereaux, 4 Paige (N. Y.) Chan. R. 229; and see Selma and Tennessee Railroad Co. v. Tipton, 5 Alabama R. 787.