of which, without any vow to relinquish intercourse with the laity lived together in common, in order to serve the interests and objects of the church; and such were those, who, under the authority of the bishop, were employed as religious missionaries.1

The church of England, in its aggregate description, is not by the common law a corporation, and cannot receive a donation eo nomine; but a grant to a church of a particular place, vests the fee in the parson and his successors, by the common law. The ecclesiastical establishment of England was adopted by the colony of Virginia, together with the common law in respect to it, so far as applicable to the circumstances of the Colony; and the statute of Virginia of 1776, confirming to the church its right to lands, was not inconsistent with the constitution or bill of rights of Virginia. Ecclesiastical corporations of all denominations have been created, to a greater or less extent, since the revolution, in almost every State of the Union. They are commonly called, in the United States, religious corporations; and that description is given to them in the act of the State of New York, providing generally for the incorporation of religious societies, in an easy and popular manner, and for the purpose of managing, with more facility and advantage, the temporalities belonging to the church or congregation."

In this country, it is not only obvious, but it has been so expressly held, that no ecclesiastical body has any temporal power to enforce its decisions and ordinances. Its jurisdiction is only advisory, or over the conscience of those who have voluntarily subjected themselves to a spiritual sway. Where a civil right depends upon an ecclesiastical matter, it is the civil tribunal, and not the ecclesiastical, which is to decide. Therefore, where, as well from the testimony, as from the terms of a charter incorporating a church, it is apparent that it was in full connexion with a synodical body, and not inde

1 2 Domat, Civil Law, 452.

Pawlet v. Clark, 9 Cranch, (U. S.) R. 294. * 2 Kent, Comm. 221, 222.

pendent of it, as a congregation, if a portion of it secede, the rest, however small in number, secure their corporate existence, and are entitled to all the privileges and property of the corporation.1

Lay corporations are divided into eleemosynary and civil. Eleemosynary corporations are such as are instituted upon a principle of charity; their object being the perpetual distribution of the bounty of the founder of them, to such persons as he has directed. Of this kind are hospitals for the relief of the impotent, indigent, and sick, or deaf and dumb. And of this kind, also, are all colleges and academies which are founded where assistance is given to the members thereof, in order to enable them to prosecute their studies, or devotion, with ease and assiduity. The reason why the institutions of Oxford and Cambridge are not considered as eleemosynary is, that the stipends which are annexed to particular magistrates and professors, are pro opera et labore, and are not merely charitable donations, since every stipend is preceded by service and duty. Darmouth College, in New Hampshire, on the other hand, is an eleemosynary corporation, because it was founded by private benefactors for the distribution of private contributions. And the corporation of Dartmouth College would not be an ecclesiastical corporation, even if it was com

1 Per Johnston, Ch. in Harmon v. Dreher, 1 Speer's (S. C.) Eq. R. 87. See also Keyser v. Stanisfer, 6 Ohio R. 363. The legal tribúnals of the state have no jurisdiction over the church, or the members thereof, as such; and the ecclesiastical judicatories are not authorized to interfere with the temporalties of a religious society incorporated. Per Ch. Walworth, in Baptist Church v. Hartford, 3 Paige's (N. Y.) Ch. R. 296. Where there is a trust, however, a court of equity is bound to see it executed according to the intention of the original founders of the charity. Attorney General v. Pearson, 3 Meriv. Ch. R. 264; and see post Ch. on Power of Corporations to take and hold property.

21 Kyd, 26; American Asylum at Hartford v. Phoenix Bank, 4 Conn. R. 272.

31 Black. Comm. 472.

• Dartmouth College v. Woodward, 4 Wheat. 681.

posed entirely of ecclesiastical persons, because the object of it is not entirely ecclesiastical.'

Civil corporations include not only those which are public, as cities and towns, but private corporations created for an infinite variety of temporal purposes. They comprehend institutions of learning, and it has been long established that the universities of Oxford and Cambridge, in England, notwithstanding their subjection to the influence of the church, are civil corporations; though anciently they were deemed ecclesiastical. But the most numerous, and, in a secular and commercial point of view, the most important, class of private civil corporations, and which are commonly called "companies," consists, at the present day, of banking, insurance, manufacturing and extensive trading corporations; and likewise, of turnpike, bridge, canal and railroad corporations, and others established for the encouragement and promotion of individual adventure." Corporations of this class, by a combination of capital and skilfully directed labor, have wonderfully contributed to the commercial prosperity of our country, and at no former period were they ever more rapidly increasing numerically than at the present. It is deemed proper, therefore, to consider them with some attention, as distinguished from common partnership associations and simple joint-stock companies, and in connection with the restricted and limited powers with which they are often created and are to be governed. A trading association may be but a mere partnership; or it may have corporate powers to a small extent, and sub modo; or it may be invested with corporate functions to a considerable and yet limited extent; or it may exist with all the incidental functions and peculiar privileges which a grant of unconditional corporate power confers.

'Dartmouth College v. Woodward, 4 Wheaton; and 4 Black. Comm. 471. 21 Black. Comm. 471.

* The second sort of communities, says Ayliffe, in his Civil Law, extends itself to those persons who have to do with temporal affairs only, as the colleges, and the corporations of merchants, tradesmen and artificers, usually called “companies." These he calls secular.

There is an obvious and striking difference between a company established for private hazard and profit by an act or charter of incorporation, and an ordinary copartnership. The latter is simply a voluntary contract,' or the result of such a contract, whereby two or more persons agree to combine their property or labor, or both, for the purpose of a common undertaking and the acquisition of a common profit; and the gain or loss is to be proportionally shared between them. But this definition greatly falls short of a company established as a body corporate, which, though originating in a voluntary contract, is the result not only of that, but of its confirmation by special legislative authority. This confirmation is indispensable to enable the parties to the compact to sue and be sued, as a company, by a general name, to act by a common seal, and to transmit their property in succession. One, if not the principal and main, inducement, in procuring an act of incorporation, is to limit the risk of the partners, and to render definite the extent of their hazard; for it is a perfectly well settled rule of law, that each member of a common partnership, whether active, nominal, or dormant, is the accredited agent of the others, and, as such, has authority to bind them, to the extent of their private property, by any simple contract he may make, either respecting the goods or business of the concern, or by negotiable instruments in its behalf, to any person dealing bona fide. This personal responsibility of stockholders is inconsistent with a perfect body corporate. Therefore,

1 Gow on Part.

2 Smith on Mercantile Law.

See the above authorities, and Hess v. Werts, 1 S. & Rawle (Penn.) R. 350.

As per Tilghman, C. J., in Myers v. Irwin, 2 S. & Rawle (Penn.) R. 731. One of the greatest distinctions, in contemplation of law, between partnership and corporate companies, is that, in the first, the law looks to the individuals of whom the partnership is composed, and knows the partnership no otherwise than as being such a number of individuals; while in the second, it sees only the creature of the charter, the body corporate, and knows not the individuals. George's View of the existing (English) Law, 29.

where an execution issued against a corporation by the name of the "President, Directors and Company," with special instruction to the officer to take their bodies, for want of estate, no authority was communicated to him thus to do.'

With the view of encouraging persons to an active and useful employment of their capital, a species of partnership has been introduced, in different parts of the world, with a restricted personal responsibility, and which, on that account, may be called a quasi corporation, and therefore is entitled to attention in treating of private civil commercial corporations.

Though the English law does not admit of partnerships with a restricted responsibility, they have been established in different parts of the continent, and in this country. In France, by the celebrated ordinance of 1673, la Société en commandite, or a limited partnership, was introduced for promoting the interests of the mercantile community and the benefit of the public, by which one or more persons were associated with one or more sleeping partners, who furnished a certain proportion of capital, and were liable only to the extent of the funds furnished. This peculiar kind of partnership has been continued by the new commercial code of France. It has been introduced into the civil code of Louisiana, under the title of Partnership in Commendam.* On account of its tendency to invite dormant capital into active and useful employment, it has obtained a very considerable extent of favor throughout the United

'Per Parsons Ch. J. in Nichols v. Thomas, 4 Mass. R. 232. See also Man v. Chandler, 9 Ibid. 335; Commonwealth v. Blue Hill Turn. Cor., 5 Ibid. 420; Marcy v. Clark, 17 Ibid. 333; Brewer v. Glocester, 14 Ibid. 216; Merchants Bank v. Cook, 4 Pick. (Mass.) R. 414; Andrews v. Cullender, 13 Ibid. 484; Atwater v. Woodbridge, 6 Conn. R. 223; Adams v. Wiscasset Bank, 1 Green. (Me.) R. 361.

* Lord Loughborough, in Cooke v. Eyre, H. Black. R. 48, says, “In many parts of Europe, limited partnerships are admitted, provided they be entered on a register; but the law of England is otherwise, the rule being that, if a partner shares in advantages, he also shares in the disadvantages."

3

* Repertoire de Jurisprudence, par Merlin, tit. Société, art. 2, Code de Commerce, b. 1, tit. 3, § 1.

• Civil Code of Louisiana, art. 2810.