If any merchant or trader, at any time after the said four-and-twentieth day of June, one thousand seven hundred and twenty, shall suffer any particular da mage in his, her, or their trade,commerce, or other lawful affairs, by occasion or means of any undertaking or attempt, matter or thing, by this act declared to be unlawful, as aforesaid, and will sue to he relieved therein, then, and in every such case, such merchant or trader shall and may have his and their remedy for the same, by an action or actions to be grounded upon this statute, against the persons, societies or partnerships, or any of them, who, contrary to this act, shall be engaged or interested in any such unlawful undertaking or attempt : and in every such action, the plaintiffshall or may recover treble damages, with full costs of suit.
By s. 21, if any broker, or person act ing as a broker, shall bargain, sell, buy, or purchase, or contract or agree for the bargaining, &c. of any share or interest in any of the Undertakings by the act de dared illegal, he shall be rendered inca pable of acting as a broker, and forfeit 5001., one moiety to the King, and the other to the informer.
S. 25, this act is not to prohibit the car rying on of any home or foreign trade in partnership, in such manner as has been usually and may be legally done, except in insurances, &c.
These enactments have for many years since the passing of them, in 1721, not been enforced, except in the instance of one Cafwood, Michaelmas, 8 George 1., Strange Rep. 472, and Lord Raymond, 1361, who was fined 51. and imprisoned during his majesty's pleasure, for being the projector of an unlawful undertaking to trade to the North Sea. In the inter val between that time and the present, (1808) many institutions have been form ed and carried on in direct violation of the act, such as fire and life insurance companies, which are all beneficial to the community, as they necessarily would be, if carried on with regularity and good faith. The success of these insti tutions has given rise to many specula tions in more recent times, which were not of such obvious utility ; and a Mr. Dodd, having projected a distillery, by a joint-stock company, became an object of jealousy to some private distillers, who applied to the court of King's Bench for leave to file a criminal informatiOn against him ; upon which the court pro nounced him within the words of the act, which prohibit the raising of joint stock shares; but refused to interfere, on account of the length of the time during which the statute had lain dor mant.
The words of this statute are so clear, that, to the writer of this article, it ap pears strange that they could ever be misunderstood. They prohibit all com binations in trade, except partnerships and lawful corporations established by act of parliament, or royal charter ; and when the nature of mercantile contracts is considered, the law could not safely do otherwise ; for it would leave the unwary open to the grossest frauds, and the most ruinous self-delusion. A cor poration is not the mere fanciful essence which it is ignorantly deemed to be : it is a combination, formed upon a strict view of legal principle, and the com merce of mankind ; upon the only plan on which large bodies of men can be enabled to contract with individuals. In trusting to a corporation, there must be a permanent fund, oat of which to answer all obligations, because no individual is answerable personally. Corporations must be confined only, therefore, to those cases in which dealings are simple, and in which a permanent fund can be kept together. Partnerships depend alto gether upon individual responsibility, and can therefore not safely be composed of many persons ; for in suing and being sued, all the partners must be named. This inconvenience has been attempted to be remedied by making acts of Parlia ment, to enable certain fire companies, the Albion, Globe, &c. to sue and be sued by their chief clerk, without mak ing them corporations : yet, as they stipulate not to be answerable beyond their individual shares, it will be found difficult, if not impossible, to levy exe cution upon them, and the party must still sue out one or two thousand writs of fieri facias, for a debt of 201. Such is the consequence of interfering with the established common law. The result will be found to be, that, in all such cases, the public deal with a body of people upon honour and good faith only, and each individual embarks all his fortune in such concerns, and, being once en gaged in them, continues still liable. Whether it would be feasible to give further facility to the erecting of trad ing corporations, considering the advan tages of some such institutions, is there fore a question of great difficulty, both in political economy and legislation.