no inspection can be compelled. This was decided after much consideration in the case of The Mayor of Southampton v. Greaves,' notwithstanding several modern cases, in which the granting such applications, in case of corporations, seemed to have been considered as a matter of course. In that case the corporation brought an action against the defendant for tolls, and the Court denied an application to inspect. A similar application had been refused in an action of trespass, where the defendant justified under the corporation of Ipswich, for distraining for a toll for repairing the quay,' and in many other instances." In the case of the Utica Bank v. Hilliard,' it was held, the defendant could not compel the cashier of the bank to produce the books and papers, by a subpœna duces tecum. The court said, the course for proving the books or papers of a bank, when it is the adverse party, is to give notice to produce them, and on its non-compliance, to show the contents by inferior evidence in the cause. "The effect of this motion for a duces tecum," said the court, "would be to compel a party to produce evidence against himself; true, the books are ordinarily in possession of the cashier; how? He holds them as the officer, the agent, or the servant of the bank; in the same manner as an attorney holds the papers of his client. The cases, in which the production of papers may be coerced by subpana, are, where they are the property of a competent witness; or at least, where they do not belong, exclusively, to the adverse party; when he can say, these are my papers." A bank depositer, it has been held in Massachusetts, has a right, on proper occasions, to inspect the bank books; the 18 T. R. 590; see the opinions of Lord Hardwicke and C. J. De Grey, there cited. 2 Mayor of Lynn v. Denton, 1 T. R. 689; 3 T. R. 303; Mayor of London v. Lynn, 1 H. Bl. 511; and see Davies v. Humphreys, 3 M. & Sel. 223. * Per Lawrence, J. 8 T. R. 595; Hodges v. Atkins, 3 Wils. 398. 42 Starkie on Evid. 734. 55 Cowen (N. Y.) R. 419. bank officers having charge of them, being so far agents of both parties.' And such are the best evidence of the authority of the officers and agents of a corporation to bind the corporation by contract.* $ 19. In an action of debt for the penalty of a by-law, the time when it was made, the parties by whom it was made, their authority to make it, the by-law itself, and the breach of it by the defendant, must be set forth; that the Court may judge both whether the by-law be good, and whether the defendant be a proper object of the action.3 ' Union Bank v. Knapp, 3 Pick. Mass. R. 96. 2 Narragansett Bank v. Atlantic Silk Co. 3 Met. (Mass.) R. 282. 3 Kyd, 167; Hob. 211; 1 Stra. 539; Stuyvesant v. Mayor, &c. of New York, 7 Cowen (N. Y.) R. 608; see Chap. X. § 8. CHAPTER XIX. OF THE VISITATORIAL POWER. $ 1. To render the charters or constitutions, ordinances, and by-laws of corporations of perfect obligation, and generally to maintain their peace and good government, these bodies are subject to visitation; or in other words, to the inspection and control of tribunals recognized by the laws of the land. Civil corporations are visited by the government itself, through the medium of the courts of justice;' but the internal affairs of ecclesiastical and eleemosynary corporations are, in general, inspected and controlled by a private visitor. This difference in the tribunals naturally results from a difference in the nature and objects of corporations. Civil corporations, whether public or private, being created for public use and advantage, properly fall under the superintendency of that sovereign power whose duty it is to take care of the public interest; whereas, corporations, whose object is the distribution of a private benefaction, may well find jealous guardians in the zeal or vanity of the founder, his heirs, or appointees. Lord Mansfield, in commenting upon the convenience of the tribunal of a visitor, observes; "It is a forum domesticum, 12 Kyd on Corp. 174; 2 Kent, Comm. 241; Amherst Academy v. Cowles, 6 Pick. (Mass.) R. 433, Parker, C. J.; Binney's Case, 2 Bland (Md.) Ch. R. 141. 2 Per Holt. C. J., 1 Show. 252; 1 Black. Comm. 480; 2 Kyd on Corp. 174; 2 Kent Comm. 240; Binney's Case, 2 Bland. (Md.) Ch. R. 141. The Regents of the University of Maryland v. Williams, 9. Gill & Johns. (Md.) R. 401. In Murdock's Appeal, 7 Pick. (Mass.) R. 303, it was held, that the common law of England, as to the visitation of eleemosynary corporations, is the law of Massachusetts, except so far as it has been repealed, as to the visitors of Phillips Academy, by the statute of 1823, ch. 50, § 3, which gives a limited appeal to the Supreme Court from their decrees or sentences. calculated to determine sine strepitu all disputes that arise within learned bodies; and the exercise of it is in no instance more convenient, than in that of elections. If the learning, morals, or proprietary qualifications of students were determinable at common law, and subject to the same reviews as in legal actions, there would be the utmost confusion and uncertainty; while he, who has the right, may possibly be kept out of the profits, of what is in itself but a temporary subsistence. This power, therefore, being exercised properly and without parade, is of infinite use." In this country, where there is no individual founder or donor, the legislature are the visitors of all corporations founded by them for public purposes, and may direct judicial proceedings against them for abuses or neglects, which at common law would cause a forfeiture of their charters.2 The visitatorial power, in England, of the bishop over the ecclesiastical corporations within his diocese, finds its origin and rules in the ecclesiastical polity of that country; and as this does not apply to our religious institutions, we propose in this chapter to treat of the power of visitation, in reference to eleemosynary corporations only. $ 2. Private and particular corporations, founded and endowed by individuals for charitable purposes, are, without any special reservation of power to that effect, subject to the private government of the founder and his heirs; not from any ecclesiastical canons or constitutions, but by appointment of law, as an incidental right, arising from the property which the founder had in the land or funds assigned to support the charity. The origin of such a power, says Lord Hardwicke, The King v. the Bishop of Ely, 1 Black. R. 82. * Amherst Academy v. Cowles, 6 Pick. (Mass.) R. 443, Parker, C. J. * Per Holt, C. J., Phillips v. Bury, Skin. 447; S. C. 1 Ld. Raymd. 5; S. C. 2 T. R. 346; Ca. Parl. 45. To this celebrated judgment of Lord Holt we would refer our readers, as it is reported in 2 T. R. 346, from his Lordship's own manuscript. Eden v. Foster, 2 P. Wms. 326; AttorneyGeneral v. Rigby, 3 P. Wms. 145; Green v. Rutherforth, 1 Ves. 472; At is the property of the donor, and the power every one has to dispose, direct, and regulate his own property; like the case of patronage, cujus est dare, ejus est disponere; and therefore, if either the crown or the subject creates an eleemosynary foundation, and vests the charity in the persons who are to receive the benefit of it, since a contest might arise about the government of it, the law allows the founder, or his heirs, or the person specially appointed by him to be visitor, to determine concerning his own creature.' Although the rule, that in the absence of any appointment of visitors by the founder, the visitatorial power rests in his heirs, seems always to have been recognized as law in this country, yet the difference between the condition of heirs in England, where the inheritance descends to the eldest son or brother, and in this country, where it vests in all the children, male and female, indifferently, is such as would render the rule extremely difficult of application in practice, especially after a considerable lapse of time and many descents cast. If such inconveniences are found to be numerous and formidable in practice, the remedy, it is presumed, must be sought in legislative interposition. But the founder may, if he please, at the time of endowment, part with his visitatorial power, and the person to whom it is assigned will, in that case, possess it to the exclusion of the founder's heirs. No technical terms are necessary to assign or vest the visitatorial torney-General v. Gaunt, 3 Swanst. 148, n. 1; The Case of Queen's Coll. Camb. 1 Jac. R. 20, 400; Dartmouth College v. Woodward, 4 Wheat. R. 673, 674, per Story, J.; Murdock, appellant, &c. 7 Pick. (Mass.) R. 329, per Parker, C. J.; Murdock v. Phillips Academy, 12 Pick. (Mass.) R. 244; Allen v. M'Keen, 1 Sum. C. C. R. 276; Sanderson v. White, 18 Pick. (Mass.) R. 334, 335, Shaw, C. J. 'Green v. Rutherforth, 1 Ves. 472, per Lord Hardwicke; Eden v. Foster, 2 P. Wms. 325; Gilb. Eq. R. 78; Sel. C. in Ch. 36; Attorney-General v. York Archbishop, 2 Russ. & Mylne, 717. 2 Sanderson v. White, 18 Pick. (Mass.) R. 335, 336, where see the subject briefly and luminously discussed by Mr. C. J. Shaw. Eden v. Foster, 2 P. Wms. 325; Attorney-General v. Middleton, 2 Ves. 327; St. Johns College v. Todington, 1 Bl. R. 84; S. C. 1 Burr. 158; Attorney-General v. Clare College, 3 Atk. 662; S. C. 1 Ves. 78; Dart |