Open main menu

Page:Harvard Law Review Volume 2.djvu/182

This page needs to be proofread.


gestion is offered with diffidence, that a real or fancied analogy in the civil law may be the true foundation on which the doctrine rests. The early English law of corporations is borrowed almost wholly from the Roman law.^ This certainly creates an antece- dent probability in favor of the suggestion offered. Domat says, •* If a corporation were dissolved by order of the Prince, or other- wise, the members would take out what they had of their own in the corporation."^ This confines the application of the rule to members ; but it may have been regarded as applying to any donor of a corporation, or may, at least, have furnished an analogy.

The doctrine itself, whatever its basis may have been, was uni- formly quoted by judges and text- writers as accurate,' excepting in one case.*

The disposition of the personalty of a corporation on its disso- lution was not discussed by the early writers, undoubtedly because of the insignificance at that time of personal property. No ex- pression of judicial opinion on the matter is to be found. Kyd*s remark^ probably represents the generally received opinion at the time he wrote.*

The statement was made by Blackstone^ that " the debts of a corporation either to or from it are totally extinguished by its dissolution.'* This remark has been repeated by later authors, and has led to some confusion. It was, undoubtedly, an error. The only authority cited to support it is Edmunds v. Brown.® The Company of Woodmongers had been dissolved. It had given a

^ Mackenzie, Studies in Roman Law, 149; Grant on Corp. 2.

«VoLU. bk.i. tit. 15, § 2, t 8.

Mackenzie (Studies in Roman Law) tayt that no poiitive rule can be laid down at to what became of the property of a ditsoWed corporation; that it yaried according to the nature of the corporation.

  • I Roll. Abr. 816 a; Moore, 282, 283, pi. 435; per Lord Hardwicke in Atty.-Gen. v,

Gower, 9 Mod. 224, 226; per Lord Mansfield in Burgess v. Wheate, i W.Bl 123, 165; Law of Corp. 300; Wood, Inst. bk. i. c. yiii.; i Blackst. Com. 484; 2Kydy 516; Bell's Principles (Scotch), § 2190.

  • Johnson v. Norway, Winch, 87, and Co. Lit. 13 b, Hargrave*s note. In the case as

reported no decision is given. The only authority is Hargrave's statement that in Lord Hale's MS. it is said that the court finally decided that the land should go to the lord, not to the donor.

» Supra.

  • The same statement is made by counsel arguendo in Colchester v. Seaber, 3 Burr.


V I Com. 484. * I Ler. 237.