not re-enacted in New-York those disabling acts; but the better opinion, upon the construction of the statute for the incorporation of religious societies,a is, that no religious corporation can sell in fee any real estate without the chancellor's order. The powers given to the trustees of religious societies incorporated under that act are limited to purchase and hold real estate, and then to demise, lease, and improve the same for the use of the congregation. This limitation of the corporate power

to sell, is confined to religious corporations; *282 and all others can buy and sell at pleasure, except so far as they may be specially restricted by their charters or by statute.b Corporations have a fee simple for the purpose of alienation, but they have only a determinable fee for the purposes of enjoyment. On the dissolution of the corporation, the reverter is to the original grantor or his heirs; but the grantor will be excluded by the alienation in fee, and in that way the corporation may defeat the possibility of a reverter.c

In England, corporations are rendered incapable of purchasing lands without the king's license; and this restriction extends equally to ecclesiastical and lay corporations, and is founded upon a succession of statutes from magna charta, 9 Hen. III. to 9 Geo. II., which took away entirely the capacity which was vested in corporations by the common law. These statutes are known by the name of the statutes of mortmain, and they applied only to real property; and were introduced during the estab lishment and grandeur of the Roman church, to check the ecclesiastics from absorbing in perpetuity, in hands

England are restrained from selling or mortgaging any real estate, except under a government license in the mode prescribed.

Laws of New-York, sess. 36. ch. 60. sec. 11. This act has not been either revised or repealed. See N. Y. Revised Statutes, vol. iii. p. 298. b Corporations holding for charitable purposes, says Lord Eldon, 1 Ves. f Bea. 246, can alienate at law, but the alienee will be a trustee. • Preston on Estates, vol. ii. p. 50.

that never die, all the lands of the kingdom, and thereby withdrawing them from public and feudal charges. The earlier statutes of mortmain were originally levelled at the religious houses; but the statute of 15 R. II. c. 5, declared that civil or lay corporations were equally within the mischief, and within the prohibition; and this statute made lands conveyed to any third person, for the use of a corporation, liable to forfeiture, in like manner as if conveyed directly in mortmain. We have not in

Lord Ch. Brougham observed, that the object of the mortmain acts, was to prevent land from being placed extra commercium upon the feudal principle of protecting the lords against having tenants who never died, but that there was no intention of preventing by will the investment of monies in improvements upon land already in mortmain. Giblett v. Hobson, 3 Mylne & Keene, 517.

Co. Litt. 2. b. 2 Black's Com. 268-274, and 1 Black's Com 497. The mortmain acts apply to corporations exclusively; and trust made by feoffment, grant or devise to unincorporated bodies, for charitable uses and purposes, not deemed superstitious, have not been held to be invalid, under the mortmain act of 23 Hen. VIII. c. 10, and that of 1 Ed. VI. c. 14. Porter's case, 1 Co. 24. a. Montraple v. Martin, Cro. E. 288. Case 5 Ed. VI., cited by the A. V. Chancellor, in Wright v. Trustees of Meth. Epis. Church, 1 Hoffman's Ch. Rep. 248. Adams and Lambert's case, 4 Co. 104. b. J. C. Moore's Rep. 648. The prohibition to alienate in mortmain was qualified. The right to seize the lands as a forfeiture belonged to the mesne lords and the king, and if they remitted the forfeiture the alienation was good. The interests of the heir were not considered; he was bound by the alienation. Wilmot's Opinions, p. 9. Attorney General v. Flood, 1 Haye's Irish Exch. Rep. 130. The Assist. V. Ch. in Wright v. M. E. Church, in 1 Hoffman's Rep. 254.

In 1843, an attempt was made in the English house of commons to repeal the statutes of mortmain, and allow of the establishment of schools, hospitals, churches, religious and monastic institutions for the relief of the poor, the encouragement of charity and religion, at the pleasure and with the bounty of individuals; but the motion met with no encouragement and was withdrawn. The statute of 9 Geo. II. c. 36, is now the leading English statute of mortmains. It declares that no lands or monies to be laid out thereon, shall be given or charged for any charitable uses unless by deed, executed in the presence of two witnesses, twelve months before the death of the donor, and enrolled in chancery within six months after its execution, and be made to take effect immediately without power of revocation. The two universities, and the scholars upon the foundation of

this country re-enacted the statutes of mortmain, or generally assumed them to be in force; and the only legal check to the acquisition of lands by corporations, consists in those special restrictions contained in the acts by which they are incorporated, and which usually confine the capacity to purchase real estate to specified and necessary objects; and in the force to be given to the exception of corporations out of the statute of *283 wills, which declares, that all persons, other than bodies politic and corporate, may be devisees

of real estate.b

The statutes of mortmain are in force in the state of Pennsylvania. It has been there held and declared, by the judges of the supreme court of that state, that the English statutes of mortmain have been received, and considered the law of that state, so far as they were applicable to their political condition; and that they were so far applicable, "that all conveyances by deed or will, of lands, tenements, or hereditaments, made to a body corporate, or for the use of a body corporate, were void, unless sanctioned by charter, or act of assembly." In

the colleges of Eton, Winchester and Westminster, were excepted out of the act.

■ 32 Hen. VIII. c. 1. N. Y Revised Statutes vol. ii. p. 57. sec. 3. b If corporations are limited in the purchase of lands to lands of a specific yearly value, say 2001., and the value be within the sum prescribed when purchased, and the lands afterwards rise in value by good husbandry, or extraneous causes, the title of the corporation is not thereby affected, and the yearly value at the time of the purchase is all that the limitation requires. This is the just and equitable rule. 2 Inst. 722.

© 3 Binney's Rep. App. 626. The statutes of mortmain apply in Pennsylvania, only so far as they prohibit dedications of property to superstitious uses, or grants to corporations without a statutory license. Methodist Church v. Remington, 1 Watts' Rep. 218.

d By the statute in Pennsylvania of 6th of April, 1833, passed since the declaration of the judges mentioned in the text, all purchases of land by any corporation, or by any person in trust for one, without the license of the commonwealth, are made subject to forfeiture, and the same penalty extends to all lands held by corporations existing in other states either directly or through the medium of trustees or feoffees. Purdon's Dig. 350.

the other states, it is understood, that the statutes of mortmain have not been re-enacted, or practised upon; and the inference from the statutes creating corporations and authorizing them to hold real estate to a certain limited extent, is, that our statute corporations cannot take and hold real estate for purposes foreign to their institution. As we have no general statutes of mortmain, perhaps a legally constituted corporation in another state can purchase and hold lands ad libitum in New-York, provided their charter gave them the competent power.b A corporation may take a mortgage upon land by way

a

But in Runyan v. Lessee of Coster, 14 Peters, 122, it was adjudged, that a corporation of another state authorized to purchase and hold lands in Pennsylvania or elsewhere, is competent to purchase and hold lands in that state, subject nevertheless to be divested of the estate and to a forfeiture of it by the state of Pennsylvania, whenever that state thinks proper to institute process for that purpose. The corporation holds a defeasible estate if held without a license procured from Pennsylvania.

■ Parker, Ch. J., in First Parish in Sutton v. Cole, 3 Pick. Rep. 232. The provincial statute of Massachusetts, of 28 Geo. II. was commonly called a statute of mortmain. It was virtually repealed by the statute of 1785, which was a substitute for it; and it has been held, that a bequest in trust for pious and charitable uses was not void. Bartlet v. King, 12 Mass. Rep. 537. The Revised Statutes of Massachusetts, of 1835, continue the same provision, and deacons and church-wardens of Protestant churches are made bodies politic, competent to take donations for their churches, and for the poor thereof. Revised Statutes, part 1. tit. 12. sec. 41. The British mortmain acts were never recognized as the law of Virginia or Kentucky. Robertson, Ch. J., 4 Dana, 356. Lathrop v. Commercial Bank of Scioto, 8 Dana, 114. In Louisiana substitutions and fidei commissa are abolished, Civil Code, art. 1507. The object was to prevent property from being placed out of commerce, but it does not apply to naked trusts to be executed immediately.

This is declared to be the law in Kentucky, Lathrop v. Commercial Bank of Scioto, 8 Dana, 114. The decision in that case goes to establish the doctrine that a corporation of another state or nation, can contract and sue on contracts made by its agent in Kentucky, provided they be such as its charter authorizes, and consistent with the local law and policy of the state, and a corporation of another state can take and hold lands by purchase, mortgage or devise, when consistent with its charter, and not denied by positive law. This liberal and enlightened decision was fully considered and ably sustained.

of security for loans made in the course and according to the usage of its lawful operations; or in satisfaction of debts previously contracted in the course of its dealing. Such acts are generally provided for in the charters of incorporation; and without such a special authority, it would seem to be implied in the reason and spirit of the grant, if the debt was bona fide created in the regular course of business.a

2. To sue and be sued.

Corporations have a capacity to sue and be sued by

their corporate name.b Private monied corpora*284 tions are not *only liable to be sued like private individuals in assumpsit, for breaches of contract, but they may be sued by a special action on the case for neglect and malfeasance and breaches of duty, and in actions of trespass and trover for damages resulting from trespasses and torts committed by their agents under their authority, and the authority of such agent need not be under seal. From their inability to be arrested, corpor

Silver Lake Bank v. North, 4 Johns. Ch. Rep. 370. Baird v. Bank of Washington, 11 Serg. & Rawle, 411.

But individual members of a corporation cannot by a bill in equity sue for corporate claims without the consent of the corporation, and if the corporation neglect their rights and duties, and individual corporators wish for redress they must at least make the corporation a party defendant. Hervey v. Veazie, 24 Maine Rep. 1.

© Yarborough v. The Bank of England, 16 East's Rep. 6. Smith v. B. & S. Gas Light Co., 1 Adolph. & Ellis, 526. Maund v. Monmouth Canal Co., 1 Carr & Marshman, 330, Phil. ed. Townsend v. Susquehannah Turnpike, 6 Johns. Rep. 90. Gray v. Portland Bank, 6 Mass. Rep. 364. Chestnut Hill Turnpike v. Rutter, 4 Serg. & Rawle, 6. Fowle v. Common Council of Alexandria, 3 Peters' U. S. Rep. 398. Rabassa v. Orleans Navigation Co., 5 Miller's Louis. Rep. 461. Shaw, Ch. J., 19 Pick. Rep. 516. Rector of the Ascension v. Buckhart, 3 Hill, 193. Angell & Ames on Corporations, p. 385-391. 3d. edit. Mayor of New-York v. Bailey, 2 Denio, 433. In Ohio it has been adjudged, that corporations are liable like individuals, for injuries done, as by cutting ditches and water courses, in such a manner, as to cause the water to overflow and injure the plaintiff's land, although the act done was not beyond their lawful powers.