tion of the king's or contrary to it. But this kind of liberties, when they have been granted by the king, are as it were possessed, and he to whom they are granted * * will be in possession until he has lost it from abuse or non-user." 1 Bract. Twiss's Trans., p. 55. By the time of Edward III, the absolute necessity of the king's consent to the erection of a corporation seems to be fully established, 49 Edward III, 4; 49 Ass. 8; Viner Corp. B.; 1 Kyd Corp. 42, 44; Bro. Corp. 15; Angell & Ames, § 67. By the civil law the sovereign's consent was necessary also, either by statute, senatus consultum, or constitution of the emperor. Digest 47, Lib. 22, 23; also 3, 4, 1; Hunter's Roman Law, 314; 1 Brown Civil Law, 101, 102; 1 Domat, Civ. Law, Title II, § 2, No. 15.

2. At the present time.-In England, the king or queen alone, when a corporation is intended with privileges, which, by the principles of the English law, may be granted by the king, is qualified to create a corporation by his or her sole charter. Thus the city of Annapolis, in Maryland, was incorporated by a charter from Queen Anne, when she held the government of the province. When, on the other hand, it is intended to establish a corporation vested with powers which the king can not himself grant, recourse must be had to an act of parliament; as if it be intended, for example, to grant the power of imprisonment, as in the case of the College of Physicians; or to confer a monopoly, as in the case of the East India Company; or when a court is erected, with a power to proceed in a manner contrary to the rules of the common law. Angell & Ames Corp., § 68.

There seems now to be the following methods of creating corporations in England:

1. By royal charter, now usually exercised by the king, by virtue of his prerogative in foreign affairs, for creating companies for governing and trading with the colonial possessions in Africa and the East Indies. Recent creations of this sort are the North Borneo Company, 1881 (State Papers, vol. lxxiii, p. 932); The Royal Niger Company, 1886 (Hertslet, Treaties, vol. xvii, p. 118); Imperial British East Africa Company, 1889 (State Papers, vol. lxxix, p. 641); and the British South Africa Company, 1889 (Hertslet, Treaties, vol. xviii, p. 134). These are quite similar to, though differing in some respects from, the Virginia (1609), Massachusetts Bay (1629), and Hudson's Bay, Companies (1670), for colonizing and trading in North America, and the East India Company (1600), for a like purpose in India.

2. By parliament,-public companies,-such as railways, canals, waterworks, etc., those engaged in a public undertaking that requires the exercise of the power of eminent domain. These are incorporated by special act of parliament in each case after investigation and report upon the necessity, but are regulated (unless expressly excepted) by the general provisions of the Companies Clauses Acts of 1845.

3. By registration.-All private business, social, or benevolent companies having more than twenty members (or if banking, more than ten members), under the general incorporation law of 1862, called the Companies Act. See Ency. of Laws of Eng., Companies, Chartered, vol. iii, p. 148; Company, p. 162, and Public Company, vol. x, p. 545; also, Railways, vol. xi, p. 1.

Sec. 52. Same. (c) Common law.

THE GOVERNOR v. ALLEN AND MCMURDIE.1

1847. IN THE SUPREME COURT OF TENNESSEE. 8 Humphrey (27 Tennessee) 176-184.

TURLEY, J., delivered the opinion of the court.

On the 18th day of August, 1843, G. A. Davie, who had been elected trustee for the county of Montgomery, executed his bond, 1Arguments omitted.

with G. P. Allen and Robert McMurdie his sureties, to the governor in and over the state of Tennessee, in the penal sum of $3,000, to be void upon condition that he received and securely kept and paid over the school-funds of said county, as the law directs. This bond was acknowledged in open court at the August term, 1843, of the county court of Montgomery. The condition of this bond being broken, a suit thereon was commenced at the July term, 1846, of the circuit court of Montgomery, in the name of Aaron V. Brown, governor, in and over the state of Tennessee, against G. P. Allen and Robert McMurdie, two of the obligors. To the declaration the defendants filed a general demurrer, which was sustained by the circuit judge, and judgment given accordingly, from which an appeal in error is prosecuted to this court.

The question presented for consideration upon this demurrer is whether a suit at law can be maintained upon this bond, in the name of the governor of the state. By the 43d section of the act of 1838, ch. 148, and the 41st section of the act 1840, ch. 38, the trustees of the different counties of this state, before the reception of the portion of common school fund belonging to their counties under the general law for distributing it to them, are required to enter into bond, with two or more securities, for the proper performance of their duties in relation thereto, to the superintendent of public instruction and his successors in office. The bond sued on then, in this action, is not a good statutory bond, according to all the decisions of the state courts upon such subjects and the question necessarily is whether it can be held to be a good common law bond to be sued upon in the name of the governor of the state.

Before entering into a general investigation of this subject we deem it proper to premise that the bringing this suit in the name of Aaron V. Brown, governor and successor of James C. Jones, gives no additional strength to the action which it would not have had, provided the suit had been brought merely in the name of the governor of the state, and that the question must be examined as if it had been so brought, for if the bond be not a good common law bond when made payable to the office of the governor as such, the making it payable to a particular governor described eo nomine and his successors could not sustain the action, for in such case, the suit would not enure to his successors, but must be brought in his name if alive, and if not, in the name of his personal representative. The bond in this case, in point of fact, was not executed to any particular governor, co nomine, but to the governor in and over the state of Tennessee, then can an action at law be maintained upon it? The solution of this question depends upon the fact whether a bond can upon common law principles be executed to the governor of the state. In the case of Polk v. Plummer and others, 2 Humph. 506, Judge Reese, who delivered the opinion of the court, says, "that when a statute directs a bond for the public benefit to be made payable to the governor or other functionary having legal succession, the office is the payee, and the successor, whether described eo nomine, either in the statute or

bond, or not, may yet maintain the action, such officer being made by form of the statute and for the public benefit, quod hoc, a corporation sole." There is no reason whatever, for questioning the general truth of this proposition; it is sustained by the judgment of the supreme court of North Carolina in the case of the Justices of Cumberland v. John Armstrong and others, 3 Dev. 284, where it is held that the acts of assembly which direct the justices of the county courts to take bonds to themselves in their official capacity confer on them, as to such bonds, a corporate character.

But it must be admitted in both these cases that, if they be only quoad corporations, and the bonds be not within the statute authorizing them, they will not enure by succession. But is a governor of a state only quoad a corporation sole? We think not. It is true it is held in the case of Polk v. Plummer and others to be quoad that particular transaction a corporation sole, but that was all that it was necessary to hold him in that case; but it is not determined that he is not a corporation sole for other purposes besides those in which bonds are directed by statute to be made payable to him. Blackstone, in the first volume of his Commentaries, page 469, says: "A corporation sole consists of one person only, and his successors in some particular station, who are incorporated by law, in order to give them sole legal capacities and advantages, particularly that of perpetuity, which in their natural persons they could not have had." In this view the king is a sole corporation; so is a bishop, and so is every parson and

vicar.

Now the governor constitutes the executive department of the state; he is vested by the constitution of the state with great and important powers to be executed for the benefit of the state, and it is absolutely necessary that there should be no interregnum in his office, to avoid many and great inconveniences; this can not be unless we apply to him the maxim of the common law, applicable to the king, that he never dies; this maxim of the common law (like most, if not all, of them) is based upon wise conceptions, and not upon any foolish reverence for kings or belief in their sanctity or immunity from the common lot of mankind, but upon the necessary assumption that the state, which protects and cares for all, never ceases to exist, but that it is always alive and active in the performance of its duties to the citizen. The state, being an ideality, can only be conceived of through the public functionaries who constitute the different departments by which it exists; therefore, to hold that it never dies is necessarily to hold that those who constitute its necessary departments never die. The departments by which the government of Great Britain exists are the king and houses of parliament; the king is the executive of the nation, and he and the two houses of parliament are the legislature; there is never in contemplation of law an interregnum in either of these departments, for the law-making and the law-executing power being absolutely necessary to the existence of the state, if they cease to be, the state pro tempore ceases to exist, which would be a solecism in a gov

emment not destroyed by invasion or rebellion, and thrown back upon the primitive principles of society.

The governor of this state is the executive of it; it is one of his duties, among many others, to see that the laws of the state are executed and obeyed; this is a great and fundamental duty, without the proper observance of which society might and would necessarily be greatly distracted, and the proper security of life, liberty and property seriously endangered for the purpose of enforcing the execution of the laws, and the protection of the state from rebellion and invasion; he is the commander of the forces of the state; to hold that there can be an interregnum in this office would be to hold to the temporary anarchy of the state, and in order to hold that there is no such interregnum we must hold that the governor, as such, never dies; to do this he must be a corporation sole, with succession in office. Such we think he is, constituted so by the organization of our state government, and not by any particular statute or statutes; and therefore when bonds are directed to be made payable to him in his official capacity, they are payable to him in his capacity as a corporation sole quoad that particular transaction.

If the governor of the state be a corporation sole, then he may be a trustee, and that, too, in things not connected with his office; for it is well settled that corporations, both aggregate and sole, may be trustees for others. A bond, then, executed to a governor of a state voluntarily, which violates no public policy or private morality, but on the contrary is made to secure a public right, may be sued upon at law in the name of the governor, for the benefit and use of those interested in it, and that, too, though there be no express statute authorizing it. There is no case to be found contradicting this position.

In the case of The United States v. Thos. Tingley, 5 Pet. 114, it was held "that a bond voluntarily given to the United States, and not prescribed by law, is a valid instrument, upon the parties to it, in point of law, because the United States have in their political capacity a right to enter into a contract, or take a bond not previously provided by law, and the United States, being a body politic, may within. the sphere of the constitutional power granted to it enter into contracts not prohibited by law and appropriate to the just exercise of those powers.

io

In the case of Hibbits v. Canada et al., 10 Yerg. 465, it was held by this court that when an administration bond was made payable to James Hibbits, chairman of Smith county, and his successors in office, instead of the governor, as is directed by law, "that no action at law could be maintained on the bond in the name of a successor, but that the bond was valid at common law as a voluntary bond, and that a suit at law might be maintained upon it in the name of the personal representative of Hibbits." The chairman of the county court is not a corporation sole, and, therefore, upon his death he has no successor, and a bond executed to him without authority by statute necessarily descends to his personal representative, and must be sued upon in his name. 18-WIL. CASES.

The case of Polk, Governor, v. Plummer et al., in 2 Humph. 500, holds, as we have seen, in a too restricted sense, that the governor is a corporation sole when a bond has been executed to him by statutory provision. In the case of Jones, Governor, v. Wiley et al., 4 Humph. 146, a bond was taken from the clerk of Roane county court, payable to Newton Cannon and his successors in office, but taken before the wrong tribunal, it was held that the bond was not a good statutory bond, but that it was a good common law bond, and might be sued upon in the name of Cannon's personal representative, but not in the name of his successor. But Newton Cannon was not a corporation sole, and, therefore, could have no successors, and even if the bond had been made payable to him calling him governor, it is probable it would have been held to be a description personal only.

In the case of The Justices of Carroll County Court v. Buchanan, 2 Murph. 40, it is held by the supreme court of North Carolina that a guardian bond made payable to the justices of Carroll county is void at common law, because it was held that the justices of the county court are not a corporation, and their individual names were not used in the bond or suit; but it may be doubted whether, if the bond was executed in pursuance of the statute, the justices would not, under the authority of the case of The Justices of Cumberland v. Armstrong, 3* Dev., be considered a corporation quoad that transaction.

In the case of the governor for use of the State Bank v. Twitty et al., 1 Dev. 153, it was held by the supreme court of North Carolina that a sheriff's bond in a sum different from that directed by law, made payable to John Branch, governor, and his successors was not a good statutory bond, and could not be sued upon in the name of Gabriel Holmes, governor, and his successors. This case is the same with that of Jones, Governor, v. Wiley et al., 4 Humph. 46, and was decided as that was, for the same reason, to wit, that the bond is payable to the governor as an individual eo nomine, and not to his office, and, therefore, descends to his personal representative. These are all the cases to which we have been referred as conflicting with the view we have taken of this case. We think, as we have endeavored to show, that they are not in conflict with it.

Upon the whole, then, we are of opinion that the execution of this bond being voluntary, and for the purpose of securing a fund belonging to the county of Montgomery, donated to it by the state, and for which the trustee of the county was bound to enter into bond and security before he received it, the mistake of the county court in not taking this bond, payable to the superintendent of public instruction, but to the governor of the state, though it vitiates it as a statutory bond, does not avoid it at common law, but that the governor of the state being a corporation sole, a suit may be maintained upon it in his name for the benefit of the county of Montgomery.

We therefore reverse the judgment of the circuit court, overrule the demurrer and remand the case for further proceeding.

Note. It is frequently said that corporations do not exist by common law with us. That, perhaps, is true in regard to private corporations; but so far