needy and to enrich and ennoble humanity which is not to a great extent done through the instrumentality of corporations."

In recent years there has been not only wonderful growth in the number and size of separate corporations, but also an extraordinary tendency to combine, into authorized consolidations, or unauthorized "trusts." About 1900, it was estimated that the capital of great corporations formed in one or other of these ways was in the great industrial enterprises as follows: Railway consolidations, $9,000,000,000; industrial (manufacturing), $7,000,000,000; street railroads, $1,800,000,000; municipal service, $2,700,000,000; telegraph and telephone, $280,000,000; or a total of nearly $21,000,000,000, or about one-fifth of the total wealth of the United States. Very recently, too, there has been a great increase in corporation formation; corporations (having over $1,000,000 capital stock) were formed in the United States, with nearly $895,000,000 capital stock in 1914; with $426,000,000 in 1915; and $2,708,000,000 in 1916; and those (30,000 in number) with over $100,000 in 1916 had $3,529,000,000 capital. Similar, but not so great, increase in corporate activity has characterized other great commercial countries.

Bibliography.- History: Baldwin, S. E., 'Freedom of Incorporation' (in 'Modern Political Institutions,' Boston 1898); id., History of the Laws of Private Corporations in the Colonies and States' (ib., 1909); Davis, J. P., "Corporations: A Study of Origin and Development (New York 1905); Davis, J. S., 'Essays in the Earlier History of American Corporations (Harvard_University Press, 2 vols., 1917); Evans, F., "The Evolution of the English Joint Stock Trading Company (in Columbia Law Review, Vol. VIII, pp. 339, 461, 1908); Lasky, H. J., The Early History of Corporations in England' (in Harvard Law Review, p. 561, 1917); Radin, Max, 'Legislation of Greeks and Romans on Corporations (Columbia University Press, 1909); Scott, W. R., Constitution and Finance of English and Irish Joint Stock Companies to 1720) (3 vols., Cambridge, England, 1910-12); Williston, S., History of the Law of Business Corporations before 1800' (in Harvard Law Review, pp. 105, 149; 3 select Essays in Anglo-American Legal History,' p. 195). Theory of Corporate Existence: Canfield, G. F., Scope of the Corporate Entity Theory (in Columbia Law Review, 1917); Freund, E., Legal Nature of Corporations' (University of Chicago Studies in Political Science, 1897); Gierke, O., Political Theories of the Middle Ages,' translated by Maitland (Cambridge, England, 1913); Machen, A. W., Jr., 'Corporate Personality) (in Harvard Law Review, Vol. XXIV, pp. 253, 347, 1911); Maitland, F. W., The Unincorporated Body); The Body Politic'; Moral Personality) (three collected papers, Cambridge University Press, pp. 271320, 1911); Pollock, Sir F., Has the Common Law Received the Fiction Theory of Corporation' (in Law Quarterly Review, Vol. XXVII, p. 219, 1911); Smith, H. A., The Persona Ficta' (in Juridicial Review, Vol. XXVI, p. 59, 1914).

HORACE L. WILgus,

Professor of Law, University of Michigan. CORPORATIONS, Legal. Characteristics. In general the legal status of a cor

Its

portation is that of a person, with a name in which to do business, own or convey property, sue and be sued. It is normally managed by a board of trustees or directors, and officers, such as president, secretary, treasurer, etc. Its powers are those given at its creation. existence continues notwithstanding the death, withdrawal or insolvency of its members, or the transfer of shares, if it has a capital stock divided into shares. Its rights and obligations are its own, and not those of its members. Its creditors must look to it and to its property alone for payment, and not to its members, unless they have not paid for shares, or have wrongfully appropriated its property.

Classes. Corporations are: Aggregate, created with a capacity to have more than one member at a time; or Sole, with capacity to have only one member at a time. Reduction to one member does not make an aggregate a sole corporation. Either may be: Ecclesiastical composed of ecclesiastical persons, for ecclesiastical purposes, and subject to ecclesiastical jurisdiction; or Lay, for temporal purposes, as "maior or communaltie, baylifes and burgesses," and other business, social and literary purposes. In the United States, where there is no established church, church organizations, when incorporated, are Religious Corporations, and really lay corporations to manage the church business, without, and subject to no, ecclesiastical jurisdiction, except under the agreement of membership. Lay corporations are Eleemosynary (or charitable)- for the distribution of the alms of the donor or founder, as in the case of hospitals, colleges, etc.; and Civil,— for other purposes.

Civil corporations are: Public,- for governmental purposes, as the State, municipal corporations, etc.; Quasi-public (more properly, Public Service corporations),- for private gain but also to perform some public function as railroad, telegraph, etc., companies; and Private,

for advancing the interests of individuals in their private capacities. They are "not-forprofit," i.e., for the benefit of other than the members, as colleges, etc.; and for "profit,"either pecuniary or otherwise. These are nonstock, i.e., without capital stock and for some benefit other than pecuniary, as a literary society, or college fraternity; and stock (or moneyed),- for pecuniary profit by way of dividends on a capital stock. These classes are not mutually exclusive, some corporations are within two or more of them.

In England, lay corporations are: Trading and Non-trading. They may be "chartered," by the king; or "Statutory," formed under acts of Parliament. These are usually called companies. The Non-trading are Municipal, for local government, or Eleemosynary, for charitable and benevolent purposes. Companies under the Companies Acts may be limited by shares, limited by guarantee and unlimited, according to the liability of the members. Other associations, resembling corporations, but without full corporate powers, or a "personal status," separate from the members exist both in England and the United States. They are: public, as counties, townships, parishes, school districts, etc.; territorial units for governmental purposes, or institutions, such as asylums, penitentiaries, State universities, etc., controlled by boards, with quasi-corporate powers; or private, such

as miners' federations, labor unions, etc., stock exchanges, boards of trade, partnerships, syndicates, cost-book mining companies, joint-stock companies, trusts and partnership associations limited.

Joint stock companies are similar to corporations, but unless excluded by contract or statute, there is an unlimited individual liability of the members for the acts of the managers. The capital stock is usually divided into transferable shares, represented by certificates, and an owner is not an agent of the company unless he is so appointed. Recently "Trusts" have been organized for business purposes, with the legal title and power of managing the property vested in trustees, subject to the trust deed, the beneficial interest being represented by transferable trust certificates. In the absence of notice and agreement to the contrary the trustee is liable to third parties as an owner, and to the beneficiary for breach of trust. Partnership Associations, Limited, are created under statutes of Pennsylvania, Ohio, Michigan, etc., with powers very like corporations, with a capital stock, transferable shares and limited liability of members; the property is held and conveyed, and suits, by or against, are in the association name; they are not corporations for suits in the Federal courts, as a citizen of the creating State, without alleging and proving that no member is a cocitizen of the other party. The New York joint stock companies and some of the English insurance companies are similar.

Continental Systems.- Corporations are "Juristic Persons" in the Continental law, following the Roman. However, associations similar to those noted above exist. They are provided for in the Civil and Commercial codes. The general term is "Associations" (Societas, Genossenschaft), which includes both. Juristic persons are Public, as the state itself (Fiscus); Charitable (Stiftung or Foundation), the property, rather than its owners or managers, being personified. There are Trading, or Non-trading partnerships, syndicates, joint adventures, for profit, and associations for a common enterprise not for profit. The members are co-owners, but not partners. The Trading or Mercantile (provided for in the Commercial codes) are: Société en nom Collectif (offene Handelsgesellschaft), equivalent to our general partnership, but considered a juristic person in the Italian and Japanese law, so that death or withdrawal of a member does not dissolve, as it does in English, French or German law. Société en Commandite (Kommanditgesellschaft), with members with limited, and others, usually the managers, with unlimited, liability, corresponding to the English and American special or limited partnerships. Société Anonyme (Aktiengesellschaft), or joint stock corporation with transferable shares, limited liability of members, and managed by directors elected by shareholders. Société commandite par actions (Kommanditgesellschaft auf Aktien), a combination partnership and corporation, with shares, shareholders with limited liability, and managing partners with unlimited liability.

Tests of Corporate Existence. The line of demarcation between an incorporated and an unincorporated body is not sharply defined. There is no universally accepted mark of a "juristic person," which excludes associations

not such. The American courts have suggested these tests in the creating State: (1) There can be no valid corporation without legislative authority; (2) when the legislative intent is clear, that will control in the creating State; (3) when this is not clear, resort must be had to powers conferred, and which, in order to make a corporation, must merge and vest the rights and liabilities of the individuals into one distinct, artificial existence. The courts of other States, however, will come to their own conclusions, from the powers conferred, and will not be bound by the legislative or judicial declarations of the creating State.

Creation of Corporations.- Coke said the essentials are: Lawful authority; persons to be incorporated; name; place; apt words. Lawful authority may be either by common law; act of Parliament; king's charter; prescription; to which may be added, implication and consolidation. By the common law, kings, bishops, parsons, vicars, deans, governors and officers generally are held to be corporations sole, "by the universal assent of the people from remote ages," and from necessity in order that they may carry out their official functions. For the same reason, the English "Parliament," the "United States" and the separate States, are held to be corporations aggregate, but the "British Empire," the "United Kingdom" and the "Church of England," are not. The king is the state. Australia, however, is considered a corporation sole. By legislative act-in 1523 Parliament incorporated the "Colledge of Physitians," and the king "in Parliament» has alIways claimed the power to erect corporations, as well as "without" Parliament. Like power inheres in the United States Congress, and in the State legislature, without express constitutional provision, and may be exercised by special or general act, if constitutions do not forbid. The colonial and State legislatures, in our early history, acted by special acts only. The Roman legislature acted either way. In 1597 a general law was passed for the incorporation of hospitals in England, and from 1844 to the present, various "Companies Acts" have been passed for the incorporation of companies by simple acts of registration. Public service corporations are usually provided for by special acts, embodying however various "general clauses," and monopoly or eminent-domain power, for jurisdiction contrary to the common law can be conferred only by Parliament, if to be exercised within the United Kingdom. On the continent, corporations are formed under the general provisions of the civil and commercial codes, but the legislatures of the several States may act otherwise. In 1778 Protestant churches were allowed freely to incorporate in South Carolina. In 1784 churches were incorporated in New York under general laws; in Delaware in 1787; in Pennsylvania in 1791; canal companies in North Carolina in 1795. In 1808 Massachusetts regulated manufacturing companies by general law, and in 1811 New York, by general law, provided for their incorporation. In 1838 the Florida constitution directed the legislature to "pass a general law for the incorporation of all churches," and forbade their creation by special act. In 1845 Louisiana made a similar provision for all corporations "except for political or municipal purposes." New York (1846) made similar provisions, while

Ohio (1851) said "The general assembly shall pass no special act conferring corporate powers. Corporations may be formed under general laws; but all such laws may from time to time be altered or repealed.” One or the other of these provisions now exists in nearly all the State constitutions, put there to secure equality of privilege, uniformity of powers and to prevent fraud, corruption and loss of time, incident to special legislation. There is no such limitation in the Federal Constitution, so Congress may act either by special or general act. In the manufacturing act of 1808, Massachusetts reserved the right to amend or repeal it. After the decision of the Dartmouth College Case in 1819, holding that an accepted corporate charter constituted a contract, the obligation of which could not be impaired by subsequent State legislation, State constitutions and incorporation laws usually provide that corporation charters shall be subject to repeal or amendment. The inhibition in the United States Constitution, against impairing the obligation of contracts, is on the States only. The United States government is one of express powers, and such as are necessarily implied therefrom, and so Congress (except in the Territories and District of Columbia, where it has a general legislative power), can create corporations only to carry out some of these express or implied powers. King's charter "Anciently, a gild, either religious or secular could not legally be set up without the King's license," and in 1179 many "adulterine gilds" were amerced by Henry II. Bracton (c. 1260) said it was the exclusive prerogative of the king to grant franchises. However, as late as 1523, the Pope incorporated religious bodies in England. The bishops of Durham (a county Palatine) claiming jura regalia from the Conquest, incorporated the "Barkers and Tanners" at Gateshead, and granted charters to the city in 1565, 1602 and 1780. In 1376 it was held that only by the king could new corporations be created, though he could license another, as the chancellor of Oxford University, to create corporations to operate in Oxford. The Tudor sovereigns incorporated many "rotten boroughs," for political reasons. Henry VII granted charters to John and Sebastian Cabot in 1496, 1498 and from then to Victoria many great trading and colonizing companies have been incorporated by the English sovereigns.

In the United States, in colonial times, the king chartered corporations, e.g., William and Mary College (1693). Governor Andros of New York (1675, fisheries), William Penn (1682, trading), and Lord Baltimore, exercised such authority, but since the American Revolution the power is vested exclusively in the legislature, and not in the chief executive. Prescription -A body which has claimed and exercised unquestioned, corporate powers so long as to raise a presumption that a charter existed, but lost by the lapse and accidents of time, is said to exist by prescription, which is sufficient until the contrary is proved. Implication Coke says "of ancient times the inhabitants or burgesses of a ville or burg were incorporated when the king granted to them to have a merchant gild." The king's charter to the "men of Dale and their successors," or an act of Parliament granting an estate in fee to the "Conservators of the river Tone, and their

successors made them a corporation. Consolidation this is now only by express legislative authority whereby two or more corporations unite to form a third, although in 1377 it was said one corporation could be so united to another as to succeed to its rights.

Persons to be incorporated.- Coke says these may be either natural or artificial, but where the statute says "Three or more persons may incorporate," natural persons only are meant; however, in most of the States statutes authorize the consolidation, merger or amalgamation of two or more corporations into another, or the holding of shares in another. Sometimes incorporators are required to be citizens or inhabitants of the State, but not usually. A person incapable of contracting probably cannot be an incorporator, but incompetent persons may succeed to the ownership of shares. In the Roman and Continental law, a "bunch of property,"-a "foundation," or an "inheritance" might be incorporated, but in the English and American law it seems persons only can be incorporated, although possibly an "image of an Indian God" may be, under the English law. Persons become members only by consent, in complying with the charter and by-laws, in non-stock corporations; but by the ownership of shares in stock corporations, either by original subscription, purchase from a former owner, or by operation of law. Subscriptions may be either: (1) to commissioners appointed to open books for that purpose; (2) in the incorporation paper, under general laws; (3) on a preliminary subscription paper; (4) agreement with a promoter; (5) contract with the corporation after it is formed; (6) underwriting; (7) application, allotment and notice. (1) and (2) are statutory and effective at once by force of the statute if it is followed. In (3) the corporation is not yet in existence, and if the paper reads: "We the undersigned hereby subscribe the shares set opposite our names," there are four theories in the American courts: (a) A mere offer to the future corporation, revocable by withdrawal, death or insolvency, anv time before the corporation comes into existence and accepts; (b) A binding contract as soon as all the stock agreed upon is subscribed, the mutual subscriptions being considerations for one another, and since the group of subscribers is the same after, as before, incorporation, they then can enforce it in the corporation name. This accords with the intention and purpose of the parties. Only a few courts so hold however, the majority following rule (a); (c) Only an offer to the future corporation, but a contract among the subscribers, as soon as the subscription is complete. This recognizes the right of revocation as to the corporation, but not as to the subscribers. The result is not clear; (d) A binding agreement if, before incorporation, the subscribers have relied on the subscriptions to pay for property for the future corporation, and they cannot be placed in statu quo. (4) Subscriptions to promoters, before incorporation, are generally held to be enforceable by the corporation, when it comes into existence against either the subscriber, or the trustee; In (5) there is no difficulty about parties or consideration, and the subscription may be either oral or in writing; (6) An underwriter agrees to take the stock not subscribed by the public, for a commission, or at a discount from the price

to the public. The purpose is to guarantee the taking of the stock within a specified time;_(7) Application, allotment and notice is the English method, where application is made to the promoters, who allot part or all the shares applied for, the contract being completed when the notice of allotment is dispatched. The effect of a completed subscription contract is to make the subscriber a member, whether or not he has paid, received a certificate or been registered as owner. He impliedly agrees to pay, upon call, the amount stated.

Name.- The early authorities said a name is of the very essence of the corporate institution, the knot of their combination without which corporate acts could not be performed. It is usually given by charter, but may be acquired by user. General laws require the name to be stated in the incorporation paper, and it must not be the same as another in the same jurisdiction. It may be protected as a trade mark, and its unfair use may be enjoined. A change of name does not change the identity of the corporation.

Place.-An old authority says: "There must be a place certain where to fix and bottome the corporation," for "without a place no incorporation can be made." General laws require the location of the "principal office," or "place of business to be stated in the incorporation paper. Places within and without the incorporating state may be stated.

Proper words. "But not restrained to any certain and legal and prescript form of words." Any, indicating an intention to incorporate, as "incorporate," "found," "erect," "create," "form," or others, will do.

Incorporation.- Acceptance of all (not part of) the terms offered by the lawful authority by the persons to whom made is essential. Promoters usually have the papers prepared, and secure the acceptance by the persons to be incorporated; they stand in a fiduciary relation both toward such persons, and the corporation, if formed, and are liable for unfair dealing, to both. In a special act, or a charter from the king, the terms, conditions and forms of organization are set forth, and may be accepted formally by resolution, or informally by acting under them. A contract then results between the corporation and the state, constitutionally exempt from subsequent amendment or repeal, unless such right is reserved.

Charter. The document containing the grants is called the charter. If a special act, after acceptance it is not only a contract, but also a law of that state, which every citizen thereof is bound to know. When the act is general, then the details of any proposed corporation must be set out in an "Incorporation Paper» (usually prepared by the promoters), often called Certificate of Incorporation, Articles of Association, Memorandum of Association, etc. The general law usually requires the purposes, name, place, capital stock, amount subscribed, number of shares, names of incorporators or subscribers, to be stated in this incorporation paper, which must be signed, and acknowledged in a specified way by a certain number of incorporators, and then filed, recorded or registered in designated public offices. Other provisions as to organization, powers, voting, meetings, transfers of shares, reports, amendments, dissolution and winding up are

usually found in the general laws. These and the incorporation paper, executed as required, become the charter, and have the effect both of a law and a contract, as under a special act.

Compliance with Conditions.- Substantial compliance with the conditions precedent of the general law makes a de jure corporation, i.e., one invulnerable against the direct attack by the State. What are conditions precedent and what conditions subsequent are difficult to determine. Are the things to be done by the incorporators, or by the corporation? If the former, they are conditions precedent; if the latter, subsequent. In most States, a certain number of incorporators, written articles stating everything specified, executed in the precise way indicated, and filed as directed, are conditions precedent to de jure corporate existence.

De Facto Corporations. In the United States, failure in some of these particulars does not make the effort abortive entirely. A good faith effort to organize under a valid law, colorable compliance therewith and corporate user, although some condition has not been complied with,- results in a corporation de facto, valid as to all the world except the state in a direct attack for non-compliance with such condition. In a majority of the States it acquires a corporate status, and the members escape individual liability, as in a de jure corporation. Some deny this, in eminent domain proceedings by it, or to enforce preliminary subscriptions, or in suits against the members by persons not estopped by dealing with it as a corporation. De facto existence is not recognized in England or on the Continent.

Some courts go further and say that whenever a group of persons hold themselves out as a corporation, and thereby induce others to deal with them as such, it and they are estopped to deny the corporate existence, if it would be inequitable to do so. Some say estoppel arises only on matter of fact and not of law; others that there is estoppel only when there is de facto existence; and others deny the doctrine entirely.

Commencement of Corporate Existence. -Some statutes read "upon filing the incorporation paper the corporation shall be deemed to be in existence," before stock is subscribed or organization effected. They require the incorporators after filing the incorporation paper to take subscriptions, and when the requisite amount is subscribed to call a meeting of the subscribers to organize. Only an inchoate existence seems possible until there are stockholders and organization. The weight of authority so holds, but there is authority to the contrary.

Where to Incorporate.-Arizona, Delaware, District of Columbia, Maine, New Jersey (formerly), Porto Rico, South Dakota and West Virginia have more liberal incorporation laws, and lower fees, than many other States. Business men dislike divulging business secrets, making reports and being hampered in their operations, and so prefer incorporating in the "liberal States.» To answer "where," various matters are to be considered, requiring careful attention and_comparison by a competent attorney.

Corporate Rights.-"By incorporation it acquires jus persona, and is capable of all civil rights of having and doing." So run the old authorities, and so was the Roman law. "No

freeman ought to be disseized," "No person shall be deprived of life, liberty or property," and "No State shall deny to any person the equal protection of the law," all include corporations; and generally the word person in statutes includes corporations, if the subject matter permits.

Of course a corporation has no body to be assaulted, beaten, imprisoned, hung or electrocuted, although old cases discussed the situation when it lost its head by the death or imprisonment of the dean of a chapter. It cannot "eat, drink or be merry," marry, have children, heirs, brothers or sisters, although "to-morrow it may die." It has no sex, race or color, but whether it is it or they has been discussed. It may have a good will, good or bad reputation and be slandered, libeled or maliciously prosecuted. It may be a "respectable and responsible person," but not a "colored person," or a "rogue or vagabond." In England and Germany it may be an alien enemy if incorporated, domiciled or controlled by agents, in the hostile state. The inferior courts of the United States have held otherwise if only incorporated in the hostile state.

In the United States a corporation is a citizen of the incorporating State, regardless of the citizenship, domicile or residence of its members, for suits in the Federal courts, and an inhabitant of the district in which it has its principal place of business. It can do business and have agents in other States, and sue and be sued there.

On the other hand, it is not a citizen of the incorporating State, within the meaning of the clause "the citizens of each State shall be entitled to all the privileges and immunities of citizens in the several States." Nor can it, nor its officers for it, refuse to produce its books and papers in evidence, because they would incriminate it It has, however, whatever other rights are given it by its charter. And in general, a corporation has the same rights to sue either at law or in equity to protect or vindicate its rights as a natural person_has.

are

Corporate Liabilities.- Corporations subject to the general duties and obligations imposed upon other persons by the law, and are liable for breaches thereof. In the Roman law, Ulpian (ad edictum, 198-217 A.D.) said: "just as the prætor allowed an action on behalf of a municipality, he thought the edict should allow actions against one."

Torts.- Corporations are now held liable for torts both in England and America. Such liability was of slow growth due to the "artificial personality» theory, current in the Middle Ages. In 1234 Gregory IX authorized the excommunication of ecclesiastical corporations, but in 1245 Innocent IV forbade such "as the innocent may be caught by a sentence of this kind." In 1348, in England, "The corporation is invisible, incorporeal, Trespass does not lie against it, for capias nor exigent, lies not against a commonality," and in 1356 "Nor can they commit treason, or be outlawed or excommunicated, for they have no souls." This was frequently repeated (Coke 1600; Blackstone 1765) until down into the 19th century and corporations were thought not to be liable for torts or crimes of misfeasance. However, they were held in England for forcible disseizin (1357), and trespass (1371, 1430,

1454); negligence (Massachusetts 1810); conversion (England 1812); nuisance (Pennsylvania 1818); trespass to land (Delaware 1839); assault and battery (Florida 1842); deceit (Ohio 1846); false imprisonment (England 1851); malicious prosecution (Connecticut 1853); but denied in England until 1890 or 1904; libel (England and United States 1858); but only since 1880 for slander; exemplary damages (Illinois 1858); and tort in an ultra vires transaction (United States 1858).

Crimes. Corporations were punished very early for delinquencies. The liberties of London were seized in 1245, for a false judgment by its magistrates, in 1264, for joining the barons against the king, in 1284, because the mayor, being bribed, connived at the bakers making their penny loaves six ounces too light, and many others, to the quo warranto in 1683, for extortion in tolls and the publication of a seditious libel. In 1811 a corporation was indicted for not repairing a bridge in England, and in 1812 in Massachusetts; in 1846, in England for disobeying a court's order, and obstructing a highway, followed by New Jersey in 1852; in 1876 for criminal libel in Missouri; in 1879 for Sabbath-breaking in West Virginia; in 1892 for keeping a disorderly house in New Jersey; in 1900 for criminal negligence, in not maintaining a bridge, causing death and equivalent to manslaughter by Canada Supreme Court. The United States courts refuse to go so far. Corporations, however, are generally held criminally liable for violations of pure food, anti-rebate, anti-trust and revenue laws, as well as for public nuisances. They are not yet held liable for higher felonies, the requisite criminal intent supposed to be impossible and the punishments provided inapplicable.

Powers. In England corporations chartered by the king have a general capacity to do anything not forbidden, while one created by an act of Parliament has only a special capacity to do what is expressed,-"only that and nothing more." Yet both have the incidental power of succession, to contract, grant, sue in its name, purchase property, have a seal and make bylaws. The doctrine of special capacities has obtained in the United States from the beginning, and for all corporations. This has led to the doctrine of ultra vires, beginning in 1804 in the United States, and in 1846 in England, based on four principles: (1) a corporation has no powers except those granted by its charter; (2) whoever deals with it must know these; (3) stockholders should not be subjected to risks not contemplated; and (4) the state is interested that the powers shall not be exceeded. An entirely executed contract will not be disturbed at the suit of either party; so, too, a wholly executory contract will not be enforced, or damages allowed for its breach by either party. In England, in many States, and by the Federal courts, an ultra vires act is legally void, because of incapacity of the corporation; in many other States, void because illegal as against public policy; but in New York and others valid and enforceable whenever it would be inequitable not to do so. When such contract is executed by one party but not by the other, the decisions divide: those holding it is void will allow no suit on the contract, but permit recovery in quasi contract or tort for benefits conferred if unjust to refuse; while