tion, for with that, in fuch a case, the common person, who is the founder, has nothing to do; or the King, by his charter, may referve as well the nomination of the perfons, as the name and conftitution of the corporation, to the person who is to be the founder; then the latter must name the persons, and declare by what name they shall be incorporated, and what powers they fhall exercise; and when he has done this, then they are incorporated by virtue of the King's letters patent, and not by the common person, for he is but an instrument, and it is the King who makes the corporation, in such case, in the same manner as if all had been comprehended in the letters patent themfelves, according to the maxim, that " qui, per alium facit, per fe ipfum facere videtur" (a).

THE incorporation ought, in fact, to precede the dotation, because before the incorporation, there is no capacity to take as a corporation (b); but, it is not necessary that in the letters patent the licence to incorporate and the licence to endow fhould be in diftinct independent clauses, or that the licence to incorporate should, in the order of expreffion, precede that to endow.

KING Henry the fourth, by his letters patent, dated the fixth year of his reign, reciting that Robert Ramsay was feifed in fee of a house in the parish of St. Margaret, in London, called the Sun, notwithstanding the ftatute of mortmain, of his fpecial grace, and for zol. gave licence to Ramfay to grant a rent of 20 merks iffuing out of the faid house "to a certain chaplain, who fhould celebrate divine service at the altar of the bleffed Mary, in the church of St. Magnus, London, every day, for the falvation of the said Robert and his wife Joan, to have and

(a) 38 Ed. 3, 14 b. 22 E. 4, Grant 30. 2 H. 7, 13. a. b. 20 H. 7, 7. cited 10 Co. 33 b. (b) Vid. 10 Co. 26 b.

to

to hold to the fame chaplain and his fucceffors, chaplains of the faid chauntry, celebrating divine fervice in the church aforefaid, at the altar aforefaid, for ever, according to the appointment of the faid Robert in that behalf to be made:" and afterwards, on the 10th of June, 1407, Ramfay, by his deed indented tripartite, founded, ordained, and erected the faid chauntry, and appointed one John Meadow to be the first chaplain to do the faid divine fervices; and, by the fame deed, further granted to the faid John Meadow, the first chaplain, 10 merks of yearly rent iffuing out of the said house, to have to him and his fucceffors, chaplains of the said chauntry, at four usual feasts in London to be paid, with a clause of distress, to him and his fucceffors; and further appointed, by the fame deed, that he himself should present to the faid chauntry during his life; and that after his deceafe Joan his wife fhould prefent to it during her life; and after her decease the parfon and churchwardens of the faid church of St. Magnus and their fucceffors. After the death of John Meadow, and several intermediate vacancies, Richard Fowcher was prefented to the faid chauntry, and for rent arrear entered the faid house, the door being open, and took a cup for a diftrefs, on which an action of trespass was brought by the mafter of the house, and the whole matter being brought before the Court of King's Bench on demurrer, the cafe was adjourned into the Exchequer chamber, and there, before all the judges of England, feveral objections were made against this licence and grant; among which this was one, that admitting there was here an incorporation by implication, yet the incorporation ought to be before the licence to endow, but that here the licence was before the incorporation, and therefore void: but it was refolved, in answer to this objection, that it was not neceffary that the

E

licence to found the chauntry fhould be first, and that to grant the rent fubfequent, for that the law would conftrue that to precede which ought to be firft; though in the prefent cafe the aid of fuch conftruction was not wanted, for that the licence to found and the licence to grant were cotemporaneous (a).

NEITHER is it neceflary that the corporation fhould be actually in existence at the time of the licence to grant to it; it is fufficient that it exift at the time of the grant made: thus in the cafe of Ramfay before mentioned, it was objected, that the licence was to grant to "a certain chap"lain," which was void for uncertainty, and because there was not any fuch chaplain till Ramfay had named and appointed one, and that therefore the grant would be to one who was not in rerum natura; in the fame manner as if the King gave licence to grant to the mayor and commonalty of Iflington, when, in fact, there was no fuch corporation, it would be void, though the inhabitants of Iflington were afterwards incorporated by the name of Mayor and Commonalty, because there was no fuch corporation in existence at the time of the grant;-but this objection was over-ruled, and it was refolved that the grant was good, for that all the grants of chauntries were in the fame form, and although there were no fuch chaplain at the time, yet that was not to the purpose (b); to which, it might have been added, that this was not in truth a grant to a perfon not in existence, but a licence to grant, at a future time, to a person then exifting.

It is not neceffary that all the perfons who are to be the conftituent members of the corporation fhould be named in the letters patent; it is fufficient that a power of future

(a) 2 H. 7, 13. a. b. cited at large in Sutton's Hofpital Case, 10 Co. 27. 28.

(b) Id. ibid.

nomination

nomination or election be given; this is exprefsly decided by one of the resolutions in the cafe of Sutton's Hospital. -King James the firft, by his letters patent bearing date the 22d day of June, in the 9th year of his reign, granted to Thomas Sutton licence to found an hofpital for the relief of poor, aged, maimed, needy, or impotent people (a), and a free-school for the maintenance and education of poor children or scholars (b); "and also that the faid Thomas Sutton, during his life, and, after his death, the governors thereinafter named and their fucceffors, and the furvivors and furvivor of them, and his and their fucceffors for ever, and the governors thereof, for the time being, and their fucceffors, fhould have full power, licence, and lawful authority, at his and their wills and pleasures respectively, from time to time, and at all times thereafter, to place therein fuch MASTER or head of the faid hofpital as to him the faid Thomas Sutton during his life, and after his death to the faid governors and their fucceffors, and to the furvivors and furvivor of them, and to his and their fucceffors, and to the governors thereof for the time being, and their fucceffors, fhould feem convenient (c);" and, in a subsequent (d) part of the fame letters patent, appointed fifteen perfons by name, "and the MASTER of the hospital, and fuch person and perfons as should, from time to time, be master or masters of the said hofpital, during the time that they should be master or masters thereof, to be the firft and present governors of the lands, poffeffions, revenues, and goods of the hospital of King James, founded in the Charter-houfe, within the county Middlesex, at the humble petition and only cofts and charges of Thomas Sutton, efquire, and that they and the

(a) 10 Co. 8 b. (d) Id. 10. a.

(b) 10 Co. 9. a.

(c) 10 Co. 8 b.

E 4

furvivors

furvivors of them, and fuch as the furvivors and survivor of them should, from time to time, elect, to make up the number fixteen, when, and as often as any of them or any of their fucceffors should happen to decease, or be removed from being governors or governor thereof, fhould be incorporated and have perpetual fucceffion, and be one body corporate and politic

Sutton, on the 30th of October, in the fame 9th year of the King, by a writing fealed with his feal, and bearing date the fame day and year, appointed one John Hutton to be the first master of the hospital (a).

IT was objected (b) to the validity of this incorporation, that the King, by his letters patent, intended to make a prefent corporation, which his words exprefsly imported; but that no incorporation could be until Sutton had named a mafter, and that nomination being fubfequent to the letters patent, the latter were repugnant in themselves, and void.

To this it was anfwered (c), that fuch an objection would extend to the fubverfion of a great number of corporations; for that when a corporation is created by letters patent, power is ufually given by the fame patent to the body to choose a mayor, aldermen, or bailiffs, or governors, or the like; and yet they are immediately incorporated by the fame letters patent, though the election of the mayor or other officer be future. And, it is true, adds Lord Coke, this was immediately by the letters patent a corporation in abstracto, but not in concreto till the naming of the mafter.

IN confequence of the diffolution of the monaftries and other religious houfes, the poor, who had derived a very

(a) Id. 16. a.

(b) Id. 23 b.
b. v.
finem.

(c) Id. 31. a. vid. eund. 27

confiderable