have been confidered as holding them by that tenure (a). For the fame reason it cannot levy a fine (b); neither can it be apprehended or arrefted, and therefore cannot be outlawed (c), for outlawry always fuppofes a precedent right of arrest. A CORPORATION aggregate cannot hold lands in jointenancy with a natural person, because, as the corporation never dies, the natural person cannot have the advantage of the incident of survivorship; but fuch corporation may hold lands in common with a natural person, because furvivorship is not incident to lands so holden (d). NEITHER can a corporation aggregate, by the strict rules of the common law, be feised of lands to the use of another; for this is foreign to the purpose of its inftitution; the persons, who compofe the corporation, might, in their natural capacities, have been feifed to the use of another; it would therefore be nugatory to allow them to do that in their corporate capacity, which they had power to do in their natural, as the fole purpose of incorporating them, was to confer powers upon them which they could not otherwise have (e); another reason given for this incapacity is, that the corporation aggregate could not be compelled by fubpoena to execute the poffeffion to the use, because if it disobeyed, it could not be compelled by imprisonment (ƒ). Corporatas NOTWITHSTANDING this rule, however, it is certain Frustrer of that many corporations are made trustees for charitable purposes, and are compelled to perform their trufts; which may, perhaps, however, be reconciled to the rule in this a Eliarity. (a) 33 H. 8, Br. Fealty. 15. (b) Com. Dig. tit. Fine. B. (c) 10 Co. 32. a. cites 39 Ed. 3. 13. a. Br. Utlagary 72. Corpor. 11. (e) Gilb. Ufes and Trusts 5, 170. (d) Pl. Com. 239. way; way; the truft is not vested in the corporation, as a corporation; but the natural perfons of whom it is compofed are created trustees, and their defcription as conftituent parts of a corporation, operates only as a more certain defignation of their perfons: this explanation appears the more reasonable from what is faid of a fole corporation, on the fame fubject; "that a man who is a corporation fole cannot be feised to an ufe in his corporate capacity, nor by his corporate name alone without his natural name, and then the addition of his corporate name must be confidered only as a fuller description of his person” (a). NEITHER can the King be feised to an use: he cannot in his corporate capacity for the reafon before mentioned; he cannot in his natural capacity for two reasons. 1. Becaufe, of all the lands of which he is seised, he is seised jure corona, as will appear more fully hereafter (b); and, 2. Because there is no way of compelling him to execute the ufe; for the chancery has only a delegated power from the King over the confciences of his fubjects; and the King, who is the univerfal judge of property, ought to be perfectly indifferent, and not take upon himself the defence of any perfon's estate as a trustee (c). MANY of the incapacities before enumerated as belonging to aggregate, apply equally to fole corporations; thus, when a fingle perfon who is a fole corporation commits treafon or felony, he does it not in his corporate, but in his natural capacity; and in his natural capacity alone is he fubject to punishment.: and if all the members of an aggregate corporation, under pretence of holding a corporate affembly, were to be guilty of any crime of which a collective body of men may be phyfically capable, the (a) Gilb. Uses and Trufts. ubi fupra. et vid. 2 Leon. 122. (b) Vid. page 75. (c) Gilb. Ufes and Trufts. ubi fupra. members members would, as individuals, be equally fubject to punishment, as the person who is a fole corporation.-The fame obfervation will apply to other incapacities. By the general rule of the common law, a body corporate is capable of taking any grant of property, privileges, and franchises, in the fame manner as private perfons (a); but with respect to the capacity of taking land, there is this difference between a corporation aggregate, and a corporation fole, that the former has only a corporate capacity, and therefore as a collective number of persons, the members of it cannot take lands by their corporate name, to them and their heirs, but only to them and their fucceffors; fole corporations have two capacities, their natural and corporate, and may therefore take either to them and their heirs, or to them and their fucceffors. But the law on this fubject, refpecting the King, differs from that respecting any other fole corporation; for though, like the others, he has both a natural and politic capacity, yet in general the politic capacity prevails, and land given to the King and his heirs, paffes in the fame manner as land given to him and his fucceffors; for, as applied to the King, the word "heirs" includes fucceffors, and, in early times, the word "fucceffors" was not added in the King's grants; and therefore land given to the King and his heirs, defcends to the fame person who fhall afterwards be in poffeffion of the regal dignity, though by the courfe of law, in the cafe of common perfons, it would have vested in others: thus, if a man be King by defcent on the part of his mother, and purchase lands to him and his heirs, and die without iffue, the heir on the part of his mother, who has the dignity royal, and is consequently the fucceffor, fhall have the land, although in the cafe of a common perfon, it would (a) Litt. Rep. 49, 112, 114. have defcended to the heir on the part of his father. So, if land be given to the King and his heirs, and he die without iffue, leaving a fifter of the whole blood, and a brother of the half blood, the latter fhall have the land as fucceffor, though in the case of a common person, it would have been inherited by the fifter.-If the King die leaving no fon, but two daughters, the lands he had to him and his heirs, fhall go to the eldest, though in the cafe of a common person, they would have gone to both. If the King purchase gavelkind lands, they defcend to the eldest fon alone, though in the cafe of a common person they would have been equally divisible among all the fons: But if land in gavelkind defcend from a fubject to the King and his brother, the King shall only have the moiety; yet, if the King die, leaving two fons, his moiety fhall not descend to both equally, but to the eldest son alone. The poffeffion of the Crown, however, of lands originally gavelkind, and a contrary course of defcent while they continue in the crown, only fufpends the custom and does not deftroy it; but on a feparation by grant of the lands to a fubject, it immediately revives, and the lands are again partible among the males (a). IT feems, if the King be removed, and another family fucceed to the crown, that lands given to the former King and his heirs, would, in like manner, go to the fucceffor: and if a perfon purchase lands to him and his heirs, and afterwards become King, the law is ftill the fame with respect to these lands, or indeed any lands he poffeffed by descent or purchase, unless fpecial provifion be made by act of parliament, as was done in the case of the Duchy of Lancaster in the time of Henry the fourth (b). (a) Vid. Robinson on Gavelkind, 68. (b) Vid. Pl. Com. 212. YET YET land may be intailed on the King, as well as on a subject, and then it fhall go in descent to the particular heirs, and not to the fucceffor who happens not to be the particular heir; and if the King be removed from the crown, the intailed land fhall not go to the fucceffor, but continue in the heir pointed out by the entail; and the reafon is, that the King's natural capacity, though overfhadowed by the pre-eminence of his political, yet still subfifts diftinct from it; and he who gives to the King, may give to him in the one capacity or in the other, and a gift in tail points out in what capacity the King fhall take it, the limitation being to him and the heirs of his body (a). WHAT makes this difference between the mode of defcent of lands to the King and any other fole corporation the more remarkable, is, that lands given to the latter, and his fucceffors, are intended for the fupport of his corporate dignity; but lands given to the King, though defcending according to his corporate capacity, are not confidered as intended for the support of his kingly dignity, but are as much at his private disposal as the private property of any individual is at the disposal of its owner. THE capacity of aggregate corporations to take property for the benefit of themselves and fucceffors, extends equally to perfonal and to real property: but it is a general rule that no chattel fhall go in fucceffion in the case of a corporation fole (b): and therefore if a lease for years be granted to a bishop, dean, parson, vicar, &c. and to his fucceffors, it shall go to the executor and not to the fucceffor; fo, if a man be bound in a recognizance or obliga (a) Vid. Co. Lit. 15, 16. Plow. 212-252, where the whole subject is fully discussed ; and Dyer 209, pl. 22. 7 Mod. 78. (b) Co. Lit. 46 b. 4 Co. 65. 1 Rol. 515. Dyer 48, pl. 15. Cro. E 464. |