the settled principles of the common law, be seized under a fieri facias. The substantial reason is that corporations are generally created in consideration of an obligation on their part to perform certain public duties; from which it follows that the object of their creation might be defeated if their franchises could be seized in execution by any creditor, who might or might not be able to exercise them.2 § 7854. Nor is Property Necessary to Enjoyment of Corporate Franchises. The principle which exempts from execution the franchises of a corporation equally exempts such of its property as is necessary for the enjoyment of its franchises. Accordingly it has been held that a section of the road-bed of a turnpike company is not subject to execution. "The inconvenience would be excessive if the right of the company could be cut up into an indefinite number of small parts and vested in individuals." Upon the same principle it has been held that a house occupied by a collector of tolls on a canal is exempt from levy and sale under a writ of fieri facias against the canal company. The court proceed upon the 1 Gue v. Tide Water Canal Co., 24 How. (U. S.) 257, 263; Stewart v. Jones, 40 Mo. 140; Munroe v. Thomas, 5 Cal. 470; Thomas v. Armstrong, 7 Cal. 286; Winchester &c. Turnp. Co. v. Vimont, 5 B. Mon. (Ky.) 1; Arthur v. Commercial &c. Bank, 9 Smedes & M. (Miss.) 394, 431; s. c. 48 Am. Dec. 719; Ludlow v. Hurd, 6 Am. Law Reg. 493; Hatcher v. Toledo &c. R. Co., 62 Ill. 477; Seymour v. Milford &c. Turnp. Co., 10 Ohio, 476; Freeman on Ex., § 179; Talcott v. Township of Pine Grove, 1 Flipp. (U. S.) 120. 'Susquehanna Canal Co. v. Bonham, 9 Watts & S. (Pa.) 27; 8. c. 42 Am. Dec. 315. Upon the same principle, it has been held that a corporation has no power, unless such power is given by statute, to transfer its franchises and corporate rights. Those franchises are in the nature of a trust committed to the corporation by the public, and upon obvious grounds they cannot barter away this trust to another unless the legislature has permitted them to do so. Philadelphia v. Western Union Tel. Co., 11 Phila. (Pa.) 328. See ante, § 5352, et seq. Gue v. Tide Water Canal Co., 24 How. (U. S.) 257; Ammant v. New Alexandria &c. Turnp. Co., 13 Serg. & R. (Pa.) 210; s. c. 15 Am. Dec. 593; Susquehanna Canal Co. v. Bonham, 9 Watts & S. (Pa.) 27; s. c. 42 Am. Dec. 315. See also ante, §§ 5358, 5373. Contra, State v. Rives, 5 Ired. L. (N. C.) 297, 306. Ammant v. New Alexandria &c. Turnpike Co., 13 Serg. & R. (Pa.) 210; 8. c. 15 Am. Dec. 593. ground that the property is essentially necessary to the enjoyment of the corporate rights and privileges of the company; and that, such being the case, it could make no difference whether it was situated upon the site of the canal or upon adjacent ground.' It was on like grounds extended to the locks, wharf, house, and land belonging to a canal company, and necessary to the operation of the canal. Within the same principle has been included a corporation organized "to protect life and property in or contiguous to burning buildings, and to remove and take charge of such property,”—this being regarded as a quasi-public body, whose property is necessary to the carrying out of the public objects for which it was created." § 7855. Cases to Which This Exemption does not Extend. This exemption is founded alone on the consideration that the corporation has public duties to perform, and that it would be disabled from performing them by the deprivation of the property thus exempted. The reason upon which the exemption is founded has no application to ordinary business corporations, formed for mining, manufacturing, or trading, with the continued existence of which the public has no special concern. Such corporations are now freely allowed to be created under enabling statutes, and the power conferred upon them by such statutes can scarcely be called franchises. If their property is sold under execution, the purchasers may as freely incorporate themselves to own and use it, or they may own and use it without becoming so incorporated. The principle, therefore, has no application to such corporations, but their property is vendible in execution equally with that of individuals. In other directions the exemption extends 1 Susquehanna Canal Co. v. Bonham, 9 Watts & S. (Pa.) 27; 8. c. 42 Am. Dec. 315. The same exemption was extended to the cars belonging to and used by a railroad company, and upon the same grounds. Covey v. Pittsburgh &c. R. Co., 3 Phila. (Pa.) 180. But see ante, § 7851. "Gue v. Tide Water Canal Co., 24 How. (U.S.) 257, 263. Boyd's Appeal (Pa.), 15 Atl. Rep. 736. It was therefore held that its property was not leviable under an execution apart from its franchises, but that proceedings must be had under the act of 1870. Ibid. • This is substantially the view of Mr. Freeman, as shown by a learned note in 15 Am. Dec. 595. no further than the reason on which it is founded. Property which is not necessary to the performance, by a corporation, of its public duties, is not within the exemption. Thus it has been held that a canal basin is not a legitimate incident to a railroad, having no authorized canal connection, and is not protected from levy and sale on execution against the railroad company. So, where a corporation abandons a portion of its franchises, the property which it employed in the exercise of those franchises becomes subject to execution. Thus, where a railroad company ceases to use a portion of its road for public purposes, and proceeds to take up and carry away the rails, they may be levied upon and sold." § 7856. Decisions Denying This Exemption. - Decisions are not wanting which deny that the property of corporations is exempted from execution on the theory of being necessary to the performance of their public duties. These decisions concede that the franchise of a corporation cannot be taken in execution, unless the State has so provided, because the purchaser would thereby become a new corporation; but they hold that the property of a corporation may be taken in execution, like the property of an individual, unless the legisla ture has seen fit to declare, as a principle of public policy, an exemption in its favor. Plymouth R. Co. v. Colwell, 39 Pa. St. 337; s. c. 80 Am. Dec. 526. Benedict v. Heineberg, 43 Vt. 231. 'State v. Rives, 5 Ired. L. (N. C.) 297; Atlanta v. Grant, 57 Ga. 340. The opinion in this case by Bleckley, J., though short, contains the following striking observations: "The franchise to be a corporation is what constitutes an artificial person. That is breath or being, and not property. You cannot sell it any more than you can sell the life of a man. But things, and the right to use things for profit, are property, whether in the hands of a corporation, or of a natural person. A chartered railroad is property. The rights and privileges conferred by charter to use it as an instrument of transportation, are also property; for they adhere to it as accessories or incidents, and add to its value. Without them the railroad, as such, would be almost, or quite, useless. To own it, would be like owning a horse, with no right to ride him or drive himno right to put him to labor. This would be owning materials merely; the iron and timbers, the earth and masonry, of the railroad; or the hide and flesh and bones of the horse. Whatever belongs to a corporation is subject to be applied to the payment of § 7857. Statutes Abolishing This Exemption. — It is stated by Mr. Freeman, in a learned note in the American Decisions,' that in most States statutes have been enacted under which franchises, and all property connected therewith, may be made available in satisfaction of judgments recovered against their owners. A tendency has been discovered in one case to construe such a statute strictly, on the theory of its being in derogation of the common law; but this means no more than that, the statute having created a power which did not exist before, and prescribed the mode of its exercise, the levying officer cannot go outside of the statute for his authority to proceed, or for a direction as to the manner of proceeding.' § 7858. Levying upon the Franchise of Taking Tolls and upon Tolls to Accrue under a Franchise. There is some confusion in the decisions upon this subject. The Supreme Court of the United States have held that the franchise or right to take toll on boats going through a canal, is not vendible in execution, unless there is a statute so providing; because such franchise is an incorporeal hereditament, which cannot be seized under a fieri facias, under the principles of the common law. The same court, in an earlier decision, held that, under a statute of Indiana prohibiting the sale of lands and tenements under execution until the rents and profits thereof for its debts. It has no exempt property. 1 15 Am. Dec. 596. Thus, in 1870, the Legislature of Pennsylvania passed an act providing that the franchises and other property of corporations might be 391 sold on execution. Philadelphia &c. R. Co.'s App., 70 Pa. St. 355; ante, 7849. 'James v. Pontiac &c. Plank Road Co., 8 Mich. 91. That the rule of the strict construction of statutes is an infringement upon legislative power, see the author's views, ante, § 3014. Gue v. Tide Water Canal Co., 24 How. (U.S.) 257, 263. Compare Tippets v. Walker, 4 Mass. 595, where the power to levy on the franchise of taking tolls was doubted by Parsons, C. J.; and also the statement of Gray, J., in Richardson v. Sibley, 11 Allen (Mass.), 65, 71; s. c. 87 Am. Dec. 700, 704. 6241 a term not exceeding seven years should have been first offered for sale at public auction, etc., the tolls to be paid by the public for using a public bridge during a period of time within the period named in the statute, in the particular case for one year, might be levied upon and sold under an execution. But as the tolls, when collected, would be in the possession of the judgment debtor, the remedy of the creditor was surrounded with such embarrassments that equity would aid him, by the appointment of a receiver, to collect the tolls and pay them into court for his benefit.1 § 7859. Effect of Levy upon Personal Property Subject to Existing Mortgages.- The effect of the levy of an execution upon personal property of a corporation which is subject to existing mortgages, as for instance, upon the rolling stock of a railway company, is said to give the levying creditor & lien as to any interest of the mortgagors which is subject to the levy, such as possession coupled with a beneficial use,2— which we suppose means that the purchaser at the execution sale might acquire a right to the beneficial use of the property until the prior mortgagee should elect to foreclose, or to take possession under his mortgage. But where a suit to foreclose has been brought, and in such suit a receiver has been appointed, and, under the orders of the court, the receiver has taken possession of the mortgaged property, it seems that no rights are acquired by the levying creditor.* § 7860. Levying upon the Assets of a Dissolved Corporation, or a Corporation in Liquidation. It seems that an execution cannot be levied upon the assets of dissolved corporation, unless the statute law so provides; because, at common law the land reverted to the grantor, and the personalty fell into the hands of the State. In such a case the remedy Ibid. Compare ante, § 6200. Ante, 6718. In an old case which was an information against the mayor and commonalty of Colchester for not repairing a bridge, it was said that if the corporation be |