CHAP. XIII. a Court of concurrent jurisdiction, in which case there is said to be 'lis alibi pendens.' So also it has long been said to be a principle of English law that when the fact which gives rise to the remedial right amounts also to a felony, the remedy of the injured individual is postponed to the punishment of the crime; but much doubt has of late been thrown upon this alleged principle 1.

1 For the history of the rule to this effect, see Wells v. Abrahams, L. R. 7 Q. B. 554, where Blackburn, J., traces all the dicta in its favour back to the case of Markham v. Cobbe, Sir W. Jones, 147, decided in 1626. In ex parte Ball v. Shepherd (1879), 10 Ch. D. (C. A.) 667, and Midland Rail. Co. v. Smith (1881), 6 Q. B. D. 561, the rule is treated as finally exploded.

CHAPTER XIV.

PRIVATE LAW: ABNORMAL.

and ab

AMONG the modes in which the field of law may be Normal mapped out, we have already explained that which divides normal it into 'normal' and 'abnormal'; the former kind of law persons. dealing with rights as unaffected by any special characteristics of the persons with whom they are connected, the latter kind dealing with rights as so affected1. In all statements with reference to rights the standard type of personality is assumed, unless the contrary is expressed; and it is only when there is a deviation from that type that the character of the persons who are two of the factors into which, as we have seen, it is possible to analyse every right, needs any investigation. The typical person, who is thus assumed as a factor, is, in the first place, a human being, as opposed to what is called 'an artificial person 2. In the next place, he is unaffected by any such peculiarity as infancy, coverture, alienage, slavery, and so forth.

In considering the various classes of substantive rights, we

CHAP. XIV. have hitherto treated of them as normal. We are now about to treat of the effect produced upon them by abnormity of personality.

Abnormal

persons.

It was usual in old grammars to explain the cases of nouns by a diagram, in which the nominative case was represented by an upright line, from the base of which lines, representing the genitive, dative, accusative, vocative, and ablative, sloped off at gradually increasing angles. The accompanying figure may serve to illustrate in a similar manner the variations of juristic personality.

Normal person,

infant,

feme covert,

convict,

Natural

and artificial.

Artificial persons.

lunatic,

&c.,

Artificial person.

The most marked distinction between abnormal persons is that some are natural, i. e. are individual human beings, while others are artificial, i. e. are aggregates of human beings, or of property, which are treated by law, for certain purposes, as if they were individual human beings1.

I. It is by no means at the discretion of any aggregate of human beings so to coalesce as to sustain a single personality. In the words of Gaius, 'neque societas, neque collegium, neque huiusmodi corpus, passim omnibus habere conceditur: nam et legibus et senatusconsultis et principalibus constitutionibus ea res coercetur 2. Artificial persons have generally been created by a charter granted by the executive authority in

1 Supra, pp. 82, 121. Order lxxi. under the Judicature Acts provides that the word 'person' shall, in the construction of the rules, unless there is anything in the subject or context repugnant thereto, include a body corporate or politic.

2 Dig. iii. 4. 1. pr.

a State, or by a special statute passed by the legislature, but CHAP. XIV. of late years also by virtue of general statutes which prescribe the conditions under which voluntary associations may acquire a corporate character1. They may be formed wholly of natural persons, or wholly of artificial persons, or of a mixture of artificial and natural persons. They cease to exist by no longer comprising the requisite number of subordinate persons, or by the revocation or surrender of their privileges.

istics of.

The characteristics of an artificial person differ from those Characterof a group of natural persons no less than from those of a single natural person. On the one hand, it is not merely the sum-total of its component members, but something superadded to them. It may remain, although they one and all perish, 'in decurionibus vel aliis universitatibus nihil refert utrum omnes idem maneant, an pars maneat, vel omnes immutati sunt 2. The property which it may hold does not belong to the members either individually or collectively: 'quibus permissum est corpus habere collegii, societatis, sive cuiusque alterius eorum nomine, proprium est, ad exemplum rei publicae, habere res communes 3. Its claims and liabilities are its own, si quid universitati debetur, singulis non debetur; nec quod debet universitas singuli debent. Its agent, though appointed by a majority of the members, does not represent them, hic enim pro republica vel universitate intervenit, non pro singulis 5.' In all these respects true artificial persons are distinguishable from clubs and unincorporated trading partnerships, however large.

On the other hand, an artificial necessarily differs in many

1 Such as 'The Companies Act, 1862.' The Crown may delegate its power of creating corporations. 'So,' says Blackstone, the Chancellor of the University of Oxford has power by charter to erect corporations; and has actually often exerted it, in the erection of several matriculated companies of tradesmen subservient to the students.' Comm. i. p. 474.

CHAP. XIV. respects from a natural person. 'A corporation aggregate of many is invisible, immortal, and rests only in intendment.

and consideration of law. It has no soul, neither is it subject to the imbecilities of the body. Its will is that of the majority of its members, and can be expressed only by means of an agent; there are many wrongful acts of which it is obviously incapable 2; and its capacity for being the subject of rights, 'Rechtsfähigkeit,' and for performing legal acts, Handlungsfähigkeit,' is strictly limited by the purposes by which its existence is recognised.

6

The invention of corporations has been justly described by a high authority upon the subject as one which, 'perhaps more than any other human device, has contributed to the civilisation of Europe and the freedom of its states.' 'By this means,' says the same writer, municipalities were furnished with a form of government which never wore out. Charitable trusts were secured to the objects of them so long as such objects should continue to be found, the protection, improvement and encouragement of trades and arts were permanently provided for, and learning and religion kept alive and cherished in times through which probably no other means can be mentioned that would appear equally well qualified to preserve them 3.'

The purposes which artificial persons are intended to promote are very various, and such persons may perhaps be classified, according as they subserve one or other of them, under the following heads :

(1) Subordinately political, such as municipal corporations generally.

The case of Sutton's Hospital, 10 Rep. 32 b.

2 Dig. iv. 2. 9, 3. 15; cf. Metropolitan Saloon Company v. Hawkins, 4 H. and N. 87.

3 Grant, on Corporations, p. 4.

For a classification of juristic persons from the point of view of Roman law, sce Baron, Pandekten, p. 54.