Page:Harvard Law Review Volume 12.djvu/578

558 558 HARVARD LAW REVIEW. to make political or family appointments to the Bench, scrupulous in regard to appointments even to the County Court Bench. A Hebrew by birth, Lord Herschell was the third of his race and gen- eration to do illustrious service to the law. Jessel, Benjamin, and Her- schell have all impressed their genius on the character of the common law, enriching it with their learning. Lord Herschell disclaimed his right to the name of scholar, but his great labors attained results often pro- foundly scholarly. His heart was with the cause of legal learning, and he actively aided the Selden Society, and the Society for the Study of Comparative Legislation. He had a lively interest in the Harvard Law School, and in the last autumn spoke with enthusiasm of the hope that he might soon address the school. To this end plans were being entered into at the time of his death. This interest of his brings back with greater force to us a sense of personal loss. The Assets of a Defunct Corporation. — The Queen's Bench Di- vision in Bankruptcy has recently decided that choses in action in the form of money claims held by a corporation against a bankrupt, sur- vived the dissolution of the corporation which owned them, and passed to the Crown as bona vacantia. Re Higginson and Deane., 79 L. T. Rep. 673. The case marks an abandonment of one ancient rule, and a rigid enforcement of another doctrine of the severest common law. It is not a new idea to abandon the one rule, and to say that a chose in action of a corporation does not die with it ; upon the dissolution, then, the chose in action must be treated like any other personalty, and no doubt the common law held that all personalty of a defunct corporation belonged to the Crown. A corporation, unlike a natural person, has no legal suc- cessor. This unfortunate rule is changed in all of our States by statutes providing for the appointment of a receiver, who in various ways is given the power to use all property for the payment of debts and to distribute the residue among the shareholders. In the absence of statute, or in cases not covered by the statute, courts of equity have taken a hand in modifying the law. They have in effect imposed a trust" upon all the corporate property for the benefit, first, of creditors, and second, of share- holders. This trust can be enforced whenever the court can control either the holder of the legal title or one who, like a receiver, has power to deal with it. Bacon v. Robertson, 18 Howard, 480 ; Wood v. Dummer, 3 Mason, 308. The relief thus afforded is subject to two important limita- tions. The court will not disturb a bona fide purchaser for value. Powell V. No. Missouri R. R. Co., 42 Mo. dT,. It cannot command a person over whom it has no power. Lewin, Trusts, ninth ed., 28, 29. Under this last head the principal case must fall. The Crown or the State cannot be sued, nor can it be held to the performance of a trust ; and against it the share- holders and creditors can have no remedy. A few cases have gone a step beyond the limits here laid down. Lefipx V. Roberts, 2 Wheat. 373; Bacon v. Cohea, 20 Miss. 516. A cor- poration, before dissolution, assigned a note without indorsement to a purchaser, and the purchaser was allowed to recover upon it in equity after the dissolution of the corporation. It is not clear whether these courts took the view that the note survived the death of the corporation or not. If the legal claim simply became extinct, the court was doing a bold act, but yet an act within its powers, in creating a new claim in