Thomas v. Dakin

22 Wend. 9 | N.Y. Sup. Ct. | 1839

Lead Opinion

T}ie following opinions were delivered :

By Chief Justice Nelson.

This is an action brought by the plaintiff, as president of the Bank of Central New-York, an association formed under what is familiarly known as the General Banking Law, passed April 18, 1838, to recover several demands due the institution.

The defendant has demurred to the declaration, and urges the unconstitutionality of the law by way of defence; and it is insisted, in his behalf: 1. That the associations formed under this law are corporations; and 2. That a general law authorizing the creation of these bodies, is inconsistent with the ninth section of the seventh article of the constitution-. On the part of the plaintiffs, it is urged in reply: 1. That the associations are not corporations ; 2, That if they be, the act authorizing them may be passed by a majority bill > and 3. If within the ninth section, still the law may be passed by two-thirds of the members elected.

Are these associations corporations? In order to determine this question, we must first ascertain the properties essential to constitute a corporate body, and compare them with those conferred upon the associations; for if they exist in common, or substantially correspond, the answer will be in the affirmative. A corporate body is known to the law by the powers and faculties bestowed upon it, expressly or impliedly, by the charter ; the use of the term corporation in its creation is of itself unimportant, except as it will imply the possession of these. They may be expressly conferred, and then they denote this legal being as unerringly as if created in general terms. It has been well said by learned expounders, that a corporation aggregate is an artificial body of men, composed of divers individuals, the ligaments of which body are the franchises and liberties bestowed, upon it, which bind and unite all into one, and in which consists the whole frame and essence of the corporation. The “ franchises and liberties,” or, in more modern language, and as more strictly applicable to private corporations, the powers and faculties, which are usually specified as creating corporate existence, are: 1. The capacity of perpetual succession ; 2. The power to sue and be sued, and to grant and receive in its corporate name; 3, To purchase and hold real and personal estate ; 4. To have a common seal, and 5. To make by-laws. These indicia were given by judges and elementary writers at a very early day: since which time the institutions have greatly multi.plied, their practical operation and use have been thoroughly tested, and their peculiar and essential properties much better understood. Any one comprehending the scope and purpose of them, at this day, will not fail to perceive that some of the powers above specified are of trifling importance, while others are wholly unessential. For instance,, the power to purchase and hold real estate is no otherwise essential than to afford a place of business; and the right to use a common seal, or to make by-laws, may be dispensed with altogether. For as to the one, it is now well settled that corporations may contract by resolution, or through agents, without seal; and as to the other, the power is unnecessary, in all cases where the charter sufficiently provides for the government of the body. The distinguishing feature, far above all others, is the capacity conferred, by which a perpetual succession of different persons shall be regarded in the law as one and the same body, and may at aU times act in fulfilment of the objects of the association as a single individual. In this way, a legal existence, a body corporate, an artificial being, is constituted ; the creation of which enables any number of persons to be concerned in accomplishing a particular object, as one man." While the aggregate means and influence of all are wielded in effecting it, the operation is conducted with the simplicity and individuality of a natural person. In this consists the essence and great value of these institutions. Hence it is apparent that the only properties that can be regarded strictly as essential, are those which are indispensible to mould the different persons into this artificial being, and thereby enable it to act in the way above stated. When once constituted, this legal being created, the powers and faculties that may be conferred are various—limited or enlarged, at the discretion of the legislature, and' will depend upon the nature and object of the institution, which is as competent as a natural person to receive and enjoy them. We may, in short, conclude by saying, with the most approved authorities at this day, that the essence of a corporation consists in a capacity: 1. To have perpetual succession under a special •name, and in an artificial form; 2. To take and grant property, contract obligations, sue and be sued by its corporate name as an individual; and 3. To receive and enjoy in common, grants of privileges and immunities.

We will now endeavor to ascertain with exactness the powers and attributes conferred upon these associations by virtue of the statute. The first fourteen sections (1 to 14) prescribe the duties of the comptroller in furnishing notes for circulation, taking the required securities, &c. The 15th provides, that any number of persons may associate to establish offices of discount, deposite and circulation. The 16th, that they shall make and file a certificate, specifying: 1. The name to be used in the business; 2. The place where the business shall be carried on ; 3. The amount of capital stock, and number of shares into which divided; 4. The names of the shareholders; 5. The duration of the association. The 18th confers upon the persons thus associating, the most ample powers for carrying on banking operations, together with the right “ to exercise such incidental powers as shall be necessary to carry on such business; also to choose a president, vice president, cashier,,and such other officers and agents as may be necessary. By the 21st and 22d sections," contracts, notes, bills, &c. shall be signed by the president and cashier; and all suits, actions, &c. are to be brought in the name of, and also against the president for th.e time being; and not to abate by his death, resignation or removal, but to be continued in the name of the successor. 24th section : The association may purchase and hold real estate, &c. the conveyance to be made to the president, or such other officer as shall be designated, who may sell and convey the same free from any claim against shareholders, 19th section : The shares of capital stock to.be deem? ed personal property, transfería ble on .the books of the association ; and every person becoming a shareholder by such transfer,' shall succeed to all the rights and liabilities of the |prior holder. 23d section : No shareholder to be personally , liable; and the association is not to be dissolved by the death. •or insanity of any shareholder,

' 1, Upon'a perusal of these provisions, it will appear that -' the association acquires the power to raise and hold for com?- , jnon use any given amount of capital stock for banking pur? .poses,, which, when subscribed, is made personal property, • and the several shares transferrable the same and with like .effect as in case of corporate stock; to assume a common name under which to manage all the affairs of the associa? tion; to choose all officers and agents that may be necessary for the purpose, and remove and appoint them at pleasure. It will hence be seen, that although the association may be composed of a number of different persons, holding an interest in the capital stock, its operations are so arranged that- they do not appear in conducting its affairs ; all aré so bound together, so moulded into one, as to constitute but a single body, represented by a common name, or names, (the knot of the combination,) and in which all the business of the institution is conducted by common agents. In this, way it purchases and holds real and personal property, contracts obligations, discounts bills, notes and other evidences of debt, receives deposites, buys gold and silver bullion, bills of exchange, &c., loans money, sues and is sued, &c. It is true, some portion of the business is conducted in the assumed name, and some in the name of the president for the time being; but this in no manner changes the character of the body. A corporation may have more than one name; it may have one in which to contract, grant, &c., "and another in which to sue and be sued; so it may be known by two different names, and may sue and be sued in either ; and the name of the president, his official name, or any other, will answer every purpose. 2 Bacon’s Abr. 5. 2 Salk. 451. 2 id. 237. Ld. Raym. 153, 680. The only. material circumstance is, a name, or names, of some kind, in which all the affairs of the company may be conducted. So much, and no more, is essential to give simplicity and effect to the operation. An artificial being is thus plainly created, capable of receiving all the ample powers and privileges conferred upon the associations, and of managing their diversified concerns in an individual capacity. AH business is to be conducted in a common or proper name.

2. This artificial being possesses the powers of perpetual succession. Neither sale of shares, or death of shareholders affect it; if one should sell his interest, or die, the purchaser or representative, by operation of law, immediately takes his place. § 19. Nor can the insanity of a member work a dissolution. Id. Officers and agents for conducting the business of the association are secured. In case of vacancy, by death or otherwise, the place may at once be filled. 18. For the entire duration, therefore, of the association, and which may be without limit, <§> 16, sub. 5, the whole body of shareholders, though perpetually shifting, constitute the same uniform, artificial being which is to be engaged through the instrumentality of officers and agents in conducting the business of the concern, and no member is personally liable. <§> 23. Then, as to the powers conferred, without again specially recurring to them, it will be seen at once that the associations possess all that are deemed essential, according to the most approved authorities, to constitute a corporate body. They have a capacity: 1. To have perpetual succession under a common name, and in an artificial form; 2. To take and grant property, contract obligations, to sue and be sued by its corporate name, in the same manner as an individual; 3. To receive grants of privileges and immunities, and to enjoy them in common. All these are expressly granted, and many more, besides the general sweeping clause, “ to exercise such incidental powers as shall be necessary to carry on such business,” (meaning the business of banking,) under which even the seal and right to make by-laws are clearly embraced, if essential in conducting the affairs of the institution.

II. Assuming that the associations are to be regarded as corporate bodies, was it competent for the legislature to enact the law by a majority bill ? The solution of the question depends upon a construction of the ninth section of the seventh article of the -constitution, which, leaving out what is not material, is as follows: “ The assent of two-thirds of the members elected to each branch of the legislature, shall be requisite to every bill” “ creating, continuing, altering or renewing any body politic or corporate.” Before the adoption of the constitution, (1822,) corporations were formed: 1. Under general laws; and 2. Under particular statutes. The former were confined to a few specified cases, such as religious societies, colleges, academies, &c. It has been strongly urged for the plaintiff, that the above clause was intended to apply exclusively to the latter mode; and that a general law may still be passed by a majority. The proposition is undeniable, that the object of the clause was to check the undue multiplication of these bodies ; this was the prevailing evil complained of, and aimed at. The particular powers and privileges that had been conferred upon those already existing, were not deemed disproportioned to the purposes for which they were created. Nor was it denied but that they were frequently useful, if not necessary, in enabling comparatively small capitalists to combine, and thus co-operate with larger ones, in the various public enterprises of the day, for the amelioration and improvement of the condition of the countrv. and the developement of her capacity and resources. But they were sought from the legislature for objects not called for by these considerations, and in numbers disproportioned to the public wants. The latter was emphatically true in respect to banking institutions. Upon this view, it is most manifest that the construction contended for by the plaintiff, would operate as a virtual repeal. It removes at once all the force of the restraint—in an aspect of the case, too, in which, above all others, it should be brought most strongly to bear, if we are influenced by the considerations which suggested it. If the convention feared the undue multiplication of these institutions from particular statutes, much more might they from general laws, under which they might be created in unlimited numbers at will. The force of this view was felt upon the argument; and the counsel attempted to evade it by assuming that the great evil existing, and at which the clause aimed, was not so much the multiplication of corporations, as the grant of exclusive privileges which the general law avoided. Even were we to concede the premises, the conclusion would not follow. Practically, and for every business purpose, exclusive privileges are still conferred. Comparatively few citizens, in the nature and condition of things, cart associate and participate in the enjoyment of the grant. The business requires capital, skill, confidence, &c. The framers of the law well knew all this, and could not have been influenced by the expectation that all would become members of banking associations. So far as the enjoyment of exclusive privileges by the few are unjust and hurtful to the many, the evil is not removed, and practically nex'er can be, by the general law. Its bad effects may be modified through its action upon the business of the country, by means of the competition of the several associations—nothing more. But the great error of the argument consists mainly in regarding an incident or circumstance that enhances the injurious effect of the evil, as the evil itself. The mere exclusiveness of privileges alone, against which the clause is supposed to be directed, can be of but little concern. Their injurious influence depends: 1. Upon their mature and extent; and 2. Upon the objects and purposes for which bestowed; They may be granted extrava* gantly, in proper cases; and are prejudicial when even spar* ingly bestowed for improper objects. The privileges under a general law may be unreasonable in number an'd degree, as well as under particular statutes; and the object of them such as is calculated seriously to interfere with private and public rights. Guarding them against the mere exclusiveness of privileges, and not against their extent and purpose, would have been but an idle restraint. In every view, it will be found that the policy of the clause applies as strongly to the general as to the particular laws.

It was further urged, that the general laws for the tncorpo* ration of religidus societies, &c. existing at the adoption of the constitution, and since continued in force, could not be sustained if the one under consideration failed. Not so. They were not abrogated by that instrument: the thirteenth section of the seventh article only abrogates “ such of the said acts, and parts thereof, as are (were) repugnant to the constitution.” These were not repugnant, any more than existing charters. The ninth section, the only one bearing at all on them, is prospective, and operated only upon future legisla* tion, leaving in full force all existing laws on the subject.

III. May this general law be constitutionally enacted by the assent of two-thirds of the members elected to each branch of the legislature ?

Two different constructions of the ninth section are claim* ed. For the defendant it is urged, that according to its true intent and meaning, each corporation thereafter to be created by the legislature must receive the direct assent of two thirds of the members elected : While for the plaintiff it is insisted, that the provision is fairly complied with, when the assent of two-thirds is given to a general statute, establishing a system for the admission of voluntary associations to corporate privileges : in other words, when the assent is indirectly given to the creation of each. If we regard the clause as intended to check the undue multiplication of these bodies, it is quite clear that the former interpretation will most effectually attain the object. It secures a perpetual restraint upon their creation, both in respect to the deliberation and judgment to be bestowed, as well as to the assent to be given in each particular application: whereas in case of a general law, when once enacted, all further check upon the legislature is at an end. The latter interpretation, however, cannot be said to be ineffectual. It gives full scope to the clause in respect to all the legislation essential to the creation of such bodies : none can claim existence, except by a law passed in obedience to its injunction. The check operates upon the grant of corporate powers to each, but with diminished force. The material difference betwixt the two constructions consists mainly in the mode of applying the restriction to the action of the legislature: the one necessarily making it bear directly upon the grant of privileges; the other, only through an established system of law devised for the purpose.

Recurring to the section, <§> 9, it will be seen, that the words descriptive of the nature and character of the “ bill,” and which' distinguishes it as falling within the restriction, only import one “creating” “any body politic or corporate.” How or in what mode the “bill” shall create them—what shall be its particular provisions—whether it must create directly, or may do so indirectly, is not prescribed, and of course must depend upon the construction to be given to it. One thing it secures in terms, that however the “ bill ” may be framed, if it creates a corporation, it can pass only by two-thirds. Hence it may be argued with considerable effect, that the framers of the constitution did not intend to restrict the discretion of the legislature in respect to the form and provisions of the bill, its particular arrangement and detail: whether it might or might not embody provisions creating one or more corporations at the same time,- or provide for their creation at will for specified objects upon cer= tain stipulations and conditions to be first complied with ; but that they intended simply to inhibit the passage of whatever bill might be devised, creating directly, or indirectly, these institutions. This view presents, undoubtedly, the strongest ground upon which the construction contended for by the plaintiff can be placed. The contrary one, beside giving greater force and effect to the clause, it must be admitted is not altogether destitute of support from the phraseology.

To create a corporation “ by bill-,” would seem naturally enough ro require that the bill should purport, on the face of it, to create one ; that the corporate body should be the direct result of its enactment into a law; and there is plausibility in saying, that one formed by voluntary association under a general statute, is not created “ by bill.” But the section should be construed to mean the same as if the phrase “ by law ” had been used instead of “ by bill,” for the bill cannot be said to create any thing till passed into a law ; it is the law, not the bill, properly speaking, that creates the corporation, and the latter term is obviously used in the same sense with the former. The clause would then read thus : “ The assent of two-thirds,” &c. “ shall be requisite to every lata creating,” &c. Now, though it might at first strike the mind somewhat absurdly to contend that these corporations thus created under a general statute, are created by bill within the words of the constitution, yet when ive fix upon the obvious meaning of the term, the difficulty, in a measure, disappears : for it must be admitted that corporations formed under the general act are created by law. All the powers and privileges possessed, and which constitute the corporate body, are derived directly from it. The •association itself is a nonentity: it receives all its vitality from the law, and is, emphatically, the creature of it. What adds considerable force to this view is, that unlpss we hold those thus constituted to be created by bill within the meaning of the constitution, it will be impossible-, upon consistent reasoning, to bring any statute, even one purporting to create them, directly within the restriction: for even in that case, the bill or law does not create one absolutely and by its own force, any more than this general statute. Some act is still necessary to be done by the persons intended to be incorporated; they must, at least, assent to the terms prescribed, and frequently first perform onerous stipulations and conditions. The legislature cannot compel a citizen to be a private coiporator; it is his concurrence and performance of the conditions, if any, that gives to the law all its effect. 4 Burr. 2200. 3 T. R. 240. 1 id. 575. 2 Mass. R. 279. The most that can be said, therefore, in endeavoring to distinguish this statute from particular acts of incorporation, is, that the conditions and stipulations to be performed preliminarily to corpprate existence under the one, will usually be more numerous and important than those under the other. They are alike indispeñsable in both cases. The difference consists in the nature and amount of the acts to be performed, not in the principles .upon which'the corporation is constituted. In neither case is it created absolutely by the bill or law, but in each upon consent and performance of the conditions of the grant by the corporators. An illustration of the force and correctness of this view may be seen by a reference to the course of legislation in cases of particular acts of incorporation. Charters for building rail or-macadamized roads, canals, turnpikes, &c. often simply provide' that certain commissioners may open books for subscriptions to stock; and when a given amount is raised, the subscribers shall assemble and elect directors, who are empowered to conduct all the affairs of the company, and are clothed with the necessary powers for the purpose. Several charters like the above will be found on the statute book, and their constitutionality is not questioned. Bank charters may be granted in the same manner ; and it appears to be conceded that any number of them may be embraced in the same bill. If it be said that the place .of business of each institution being fixed, the legislature will still be enabled to determine upon the propriety of the several grants, the subject matter of the applications being thus brought directly under the exercise of their judgment; it may be answered, that even the place of business may be left to the discretion of the directors to be chosen, as it will not be pretended that there is any thing in the constitution forbidding this delegation of power.

. Then we have a bill embracing an indefinite number of banks without restriction as to the persons upon whom the privileges and powers are conferred, or as to the places where the institutions are to be carried on, and which confessedly, (if any number may be included, which I do not see can be denied,) may be enacted into a law by two-thirds. It is obvious that corporations thus created, do not differ very materially from those formed under the general law, either in respect to the mode in which they come into existence, or to the operation of the constitutional check upon the legislature. The practical difference would be found more remarkable for perplexing and embarrassing legislation over the subject, in case the construction contended for by the plaintiff be maintained, than in securing a more effectual restraint upon the powers of this body. For, though their assent would be direct in the grant of corporate powers to each, still, if there may be an indefinite number embraced in the bill, without restriction as to persons or places of business, their means of exercising a sound discretion upon the subject matter, would afford but few, if any, advantages, over those to which they have access in the more enlarged consideration of it, when deliberating upon the propriety of establishing a general law under which the institutions may be created by voluntary association. But, leaving out of the discussion the idea that has been suggested, that any number may be embraced in one bill, and taking the most restricted construction contended for, the argument is brought down to the single question which has already been stated, namely, whether the assent of two-thirds required by the 9th section must be directly given to each particular grant, or may not be indirectly through an established system of law for the creation of corporations, as in the case before us ? The words of the clause, it is admitted, are not decisive upon either view; and their legal import not free from doubt and difficulty, as I think has been shewn. In such a case I agree that the court ought not to pronounce the statute unconstitutional. The opinion of the legislature is entitled to great consideration and the highest respect upon the question ; and in a case of serious or reasonable doubt may be safely admitted as controlling. When it clearly oversteps its bounds, the judicial authority may be effectually invoked and their acts annulled ; and in such cases, I trust, it will always be found ready to do its duty. This will afford every necessary protection to the citizen and other departments of the government.

Upon the whole, I am of opinion: 1. That these- associations are corporations; 2. That the legislature possesses no power to pass a general law like the one under consideration , by a majority bill; and 3. That they may pass it by two-thirds of the members elected.

The plaintiff is therefore entitled to judgment on the demurrer, with leave to amend on the usual terms.

By Cowen, J.

The plaintiff declares as president of the Bank of Central New-York, an association formed under the general banking law of April, 18, 1838, in assumpsit on a debt which he avers to be due to “ The Bank of Central New York,” the name of the institution, not to the members of the association jointly, naming them by their baptismal names, in the manner of stating a debt due to a partnership.

To this declaration, it is objected, in the first place, that, admitting the plaintiff has a right to sue, the debt is not set forth according to its legal effect, because it is not stated as directly due to the plaintiff. The words of the statute, <§, 21, are, “ that all suits, actions and proceedings, brought and prosecuted by, or on behalf-of such association, may be brought or prosecuted in the name of the president thereof.” Under this statute, the proper course of pleading is to show, in the first place, that a debt is due to the association ; and then, that the nominal plaintiff was president at the time of declaring. That is done in this instance, and in apt words, provided the names of the real creditors are sufficiently designated by the general name, “ The Bank of Central New-York.”

The second point taken is, that associations under the act are mere partnerships of individuals, and cannot delegate the right of suing to the president in his own name, but must sue in their own baptismal names, unless they are a corporation. This is true at the common law. The parties holding the legal interest must sue in their own names ; and they must all sue as natural persons, and all be named as plaintiffs. But it does not follow that the president or other person may not be enabled, by a special act of the legislature, to bring an action in his name as president, for a debt due to a partnership. The power of the legislature to give a right of action to one man in his own name, for a debt due to another, has always been exercised fr.om the earliest period of our legal history ; and it is now too late to draw it in question. We have an instance in debts due upon promissory notes, which are made transferable by statute from the original creditor, so as to authorize actions in the name of the transferee. So of the assignees of insolvents ; and what is still more pertinent, in the statute 5 Geo. IV. ch. 73, and several other acts down to 7 Geo. IV. ch. 67, we have statutes giving similar powers to certain officers or agents of banking partnerships, in England, Ireland and Scotland. The 5 Geo. IV. ch. 73, § 5, enacts, “ That all actions and suits, to be commenced or instituted by or in behalf of any such society or copartnership, against any person or persons, &c. for recovering any debts, or enforcing any claims or demands due to such society or copartnership, &c. shall and lawfully may, from and after the passing of this act, be commenced or instituted and prosecuted in the name of such public officer, for the time being, of such society or copartnership,” &c. The officer appointed by the English statutes to sue, is, in general, the secretary of the society or copartnership. The reason and history of their provisions, together with pertinent abstracts from the statutes themselves, will be found in Van Sandan v. Moore, 1 Russ. R. 458 to 462, and note (a) to p. 460. The history is there given, and the course of legislation approved by Lord Eldon ; and the abstract is furnished by the reporter. The usual form and tenor' of an act enabling such society or copartnership to sue and be sued in the name of its officer, is given in Colly. on Part. 654, 5, Am. ed. of 1834. Thus we have a direct legislative and judicial authority for the power in question, even admitting the “ Bank of Central New-York,” to be a partnership.

If it be a partnership, however, perhaps the declaration is defective on demurrer, in not correctly, or rather not fully describing the persons to whom the debt is due. It is not due to an artificial person, which can be described by a collective name, unless “ The Bank of Central New-York” be a corporation. In declaring on, or in any way describing a contract in pleading, you must always set it forth according to its legal operation and effect; or, at least, it must not be set forth contrary to its legal operation and effect. Lawes on Pl. 62, ed. of 1808, Portsmouth, N. H. Steph. on Pl. 289, ch. 2, § 5, Rule 6, Ed. of 1824, Philad. Gould’s Pl. 156, lst ed. ch. 3, § 174, et seq. A debt due to a copartnership may be expressed in the contract as a debt owing to the firm ; but, in legal effect, it is due to all the members of the firm, and is uniformly so stated in pleading. If the action be in their own right, and in the ordinary form, it is well known that they must all be made parties in fact, and all their names set forth as plaintiffs in declaring. The omission of any names, or a variance in stating them, will be a ground of nonsuit at the trial, Colly. on Partn. 397, 399, Am. ed. of 183; and by parity of reason, where the defect appears on the face of the declaration, it furnishes a ground of demurrer. The farthest that any court has gone towards sustaining an action in the name of a firm, was probably in Pate v. Bacon & Co. 6 Munf. 219. The case was on error, after issue and trial; from which it came before the court of appeals of Virginia. The ground of decision is not stated; but the action was allowed in the mere collective name, and I presume the court felt authorized to intend, after verdict, that Bacon fy Co. was the name either of a natural person or a corporation. In the case at bar, there is no room for such intendment. Where the action is, as here, properly in the name of one person entitled to sue in respect to a claim due to others, greater generality may be tolerated in stating the names of the claimants, if the objection be not raised till after verdict; though I believe the indulgence has never been allowed on demurrer. In Wright v. Welbie, 1 Chit. R. 49, the nominal plaintiffs sued on a policy of insurance upon a ship. The declaration averred the interest to be in “ A. and B. (named,) and certain persons trading under the firm of Messrs. William and John Bell & Co.and that the policy was effected for the use of the said “ A. and B. and said Messrs. William and John Bell & Co.” After verdict, and on motion in arrest because the parties in interest were not all named at length, none of the judges denied that the objection would have been fatal on special demurrer, though they refused to arrest the judgment. The real foundation of their refusal' to interfere, is probably stated by Holroyd, J., p. 54, viz : that the interest of the owners, and therefore the title of the plaintiff to sue, though defectively set forth, must yet be presumed to have been fully proved at the trial, with all the requisite particulars. The court therefore refused the motion in arrest. The general ground of this refusal is stated and illustrated in 1 Wms. Saund. 228, a, note (1).' Such a defect, says the learned annotator, is not any jeofail .after verdict. In the case at bar, however, the defendant raises the.objection by demurrer. A general demurrer is perhaps sufficient, though of this there is certainly some doubt; and it is questionable whether the defect is reached by any one among the assignments of special causes. If the objection be properly raised, I am strongly inclined to think that the plaintiff must fail, unless we are entitled to treat the bank as a corporation. In the latter view alone could it, in strictness, be presented on the record by a collective name. If it be not a corporation, then the declaration, in legal effect, expresses on its face that the debt is due to a joint stock company, which we cannot avoid seeing must consist of natural persons who are not named. Such a company is always a copartnership, or at least joint tenants, unless it be incorporated. Colly. on Partn. 626, 640, Am. ed. of 1834. It is so treated by the English statutes to which I referred as authorizing suits in the name of the secretary, I am aware it may be said that the great object of the statute was to avoid the common law difficulty of finding out and detailing all the names of which the firm may be composed; and Mr. Chitty, in his recent publication (A. D. 1836) of new precedents, expressly recommends a form under the general banking law of England, (7 Geo. IV. ch. 46,) which lays the debt or promise to “the said company” generally. Vid. 1 Chit. Prec. p. 12, Form No. 13, Am. ed. of 1839. He refers to no statute nor adjudged case as giving a direct sanction to such a form of declaring, nor am I informed of any ; and the doubt arising on the validity of the objection, and the form in which it is raised, has led me more seriously to inquire whether, in any view, it may not be entirely obviated by considering the bank for which the plaintiff sues, as a corporation. If it be so, then the debts declared on as due from the defendant must be taken, in legal effect, as belonging to an artificial person, by the name which that person has taken under the statute ; and they could not have been declared upon as due to a copartnership.

The general banking law provides, that any person or association of persons, may legally transfer to the comptroller a portion of public debt, or equal portions of public debt and bonds and mortgages on real estate, § 2,7 ; and may then issue a corresponding amount of bank notes to circulate as money. <§> 3, 14. Such person or association may make the notes obligatory, and payable on demand at their place of business, after having executed and signed them in the manner prescribed by law. § 3. The signa-»ture to notes, &c. and all contracts, is to be by the president or vice president and cashier, § 21; any number may associate to establish offices of discount, deposite and circulation, with an aggregate amount of capital not less than $100,000. In order to render the association legally efficient, they shall make and file with the county clerk a certificate, specifying “ the name assumed to distinguish such association, and to be- used in its dealings,” its place of business, “ amount of the capital stock of such association ;” the names, &c. of the shareholders, and the number of shares held by each ; the period at which such association shall commence and terminate. § 16. The association may carry on the business of banking by discounting, &c. receiving deposites, buying and selling bullion, foreign coins and bills of exchange, in the manner specified in their articles of association, &c.; by loaning money on real and personal security; “ and by exercising such incidental powers as shall be necessary to carry on such business.” They may choose one of their number as president of such association, and appoint a cashier and such other officers and agents as their business may require, and remove them, &c. <§>18. They may provide in their articles for an increase of their capital. <§> 20. The shares of the association shall be deemed personal property, transferable on the books, <§> 19; and the association may purchase, hold and convey real estate for certain purposes, viz: such as shall be necessary for its immediate accommodation, &c. or mortgaged to it as security, or conveyed to it in satisfaction of debts, or purchased by it under judgments, &c. The conveyances to be made to the president or such other officer as shall be indicated, &c. in the articles, &c. “ and which president or officer, or his successor,” &c. may sell the same, free from any claim of the shareholders, &c. ; and it shall not deal in real estate except for the purposes specified. <§> 24. The association is bound to keep on hand specie to not less than I2-|- per cent, of their issues. <§> 33. Such association shall not be dissolved by the death or insanity of any shareholder., <§> 19. But the association shall send to the comptroller, semi-annually, a sworn statement of its amount of stock paid in or secured. “ The value of the real estate of the association,” the shares of stock held by it, “ the amount of debts due to the association, &c. the amount of debts due by such association,” &c. for six months preceding the statement, and the average amount of specie possessed by the same during each month, &c. <§> 26. And if such association shall neglect, &c. or shall violate any of the provisions of the act, “ such association may be proceeded against and dissolved by the court of chancery, in the same manner as any monied corporation may be proceeded against and dissolved.” <§> 27.

The comptroller is first to engrave and print the bills, and cause them to be countersigned by his appointee, to be numbered, registered, and delivered to the association in amounts proportioned to the securites assigned to him. <§> 1, 2. 7. He is to inquire into and approve the public debt or bonds and mortgages, <§> 2, 7, 8, which are to remain in his hands as securities for the prompt payment of the notes of the association ; and on default of the makers, such securities may be sold by him, and the avails appropriated to the payment. <§> 4, 11, 12. He may give the association powers to receive dividends and revoke them in his discretion, and may change and transfer stocks, § 5, and re-assign bonds and mortgages. <§> 9. The plates, &c. are to remain in his custody. §> 13.

Suits, actions and proceedings by or against such association, may be brought in the name of the president, or against him ; and shall not abate by his death, resignation or removal from office, but may be continued in the name of his successor; and all judgments and decrees against the president, are operative only against the joint property of the association, which may be taken and sold by execution. >§> 21, 22. No shareholder is liable in his individual capacity, unless he is declared to be so by the articles. <§> 23.

The Bank of Central New-York is avowedly an association of persons formed under this law; in which there is no proviso, such as we find in the British statutes giving partners a right to sue by their officer, that nothing contained in the act shall be construed to create a corporation, Colly. on Part. 655, Am. ed. 1834; and it was denied by the counsel for the plaintiff, that their constituents are either a partnership or a corporation ; nor did they favor us with any definite class of legal formation, to which the bank can be reduced. In view of a constitutional question, which I think does not arise, but which the' counsel seemed to suppose more formidable than any other, their efforts were directed mainly to establish the position, that at any rate associations under the banking law are not corporations. They said there are four distinctive indicia which mark an aggregate corporation and separate it from every thing else: 1. A collective existence by name, created by the sovereign power exercised directly or mediately ; 2. A standing in court as a collective existence by a given name or designation, with the rights and liabilities of a party litigant; 3. Power to take and convey title to property, acquire and give rights as a collective existence, and by its given name or designation ; 4. Power conferred by statute to make bylaws, in other words, to prescribe rules of action for persons without their consent.

Independent of authority and general reasoning, I have had very great difficulty, on a simple reading, to avoid seeing plain, direct and express enactments in the general banking law, conferring all the requisites thus demanded by counsel. 1. I read of a collective existence, i. e. a body of men associated under a name conferred mediately, i. e. through the certificate of association, by the sovereign power, which is the legislature. 2. As such collective existence, I read that the association has a standing in court, perhaps in its own name, or at least in the name of its president. It recovers judgments for debts due to it, and execution is levied on its property, upon a recovery against it. 3. I read of power to take and convey title to property, acquire and give rights ; all this to be done, as it must be in every corporation, by its agents, but certainly in its collective name and designation ; for the statute demands that the name which it assumes shall be used in all its dealings. 4. I shall have occasion to show that under a general provision of the act, there can be no doubt of its power to make by-laws. There are various considerations connected with this short view of the question, which may perhaps tend to the illustration, distinctness and strength of that view.

The associations formed under the act may, like our ordinary banks, elect their president, cashier and directors, confer on the latter as I have assumed and intend to show, the power to make and repeal by-laws, to regulate elections, and through their proper agents in the name of the. association, to exercise all the other functions of our ordinary incorporated banking institutions. The latter are well known as aggregate moneyed corporations. It cannot be denied that a voluntary association or partnership might, temporarily, also elect the like officers and agents, confer upon them nearly the same powers, and perform about the same functions,, without any charter or act of incorporation whatever. Colly. on Partn. 621, Am. ed. 1834. There is, however, much difference between the power, duration and legal effect : a corporation aggregate is in law an individual entirely distinct from its members, each of whom may hold shares or interests in the corporation, legally transferable in virtue of its charter; whereas, a voluntary association is made up of individuals not distinct from, but belonging in their own names and rights to the company. Their shares or interests are common to all; and, except so far as these may be made up of property in possession, they cannot be transferred so as to create any thing more than an equitable right in the assignee. Hence a voluntary company, asserting that it is possessed of stock transferrable at the option of the holder, has been said to be punishable for pretending to act as a corporation. Coll. on Part. 624. The members of a copartnership are joint tenants in the stock and all the effects of the company; and, on the death of each, his interest in the common choses in action, at law, survives to the other members, while his interest in the common land and choses in possession passes, as an undivided share, to his heirs or personal representatives. Id. 4, 5, 63. The nature of these interests and the course of succession are, in some respects, modified by the court of chancery. Id. 70, 71. All the members must, as we have in part before seen, be named in suits by or against the company, the right or liability to which, on the death of one, survives to all the others. Id. 386, 395, 420, 427, Each is individually liable for the whole debts due from the company, id. 212, and may release and discharge all the debts due to them. Id. 239, One may enter upon, use or otherwise control all the common property, real or personal; indeed he may, in general, convert it to his own use, subject to an account. Id. 211. All the remedies inter se, with few exceptions, are by action of account or bill in equity. Id. 143. The firm cannot, in general, sue or be sued by any one of its members, for this would involve the absurdity of a man being both plaintiff and defendant on the same record. Id. 143, 644, 5. Partnerships are dissoluble, not only by death or insanity, but by the bankruptcy of a member; a general sale of his partnership effects by execution ; his attainder of felony, if it result in his civil death ; an assignment by himself of all his interest, and the marriage of a partner who is a feme sole. Indeed, the better opinion is, that,, however strong the provisions against a dissolution may be in the articles of copartnership, the whole concefn may be dissolved at any tjme, by the act of a single partner, at his own mere pleasure. Even during the continuance of the partnership, he may interrupt its proceedings, by interdicting any single measure, though agreed on' by a majority of the firm, At least this is generally so at law-, and the power, it is apprehended, can be but partially qualified by a court of chancery. Id, 58, § 2. 3 Kent’s Comm. 53, 4, 3d ed. It would seem clearly to follow, if it has ever been disputed, that any powers, though jointly conferred on others, as to act in the direction of affairs, or use a common seal, may be revoked at the pleasure of either partner.

Most of these incidents, it is impossible for the partners to avoid by any stipulations in their articles of connection ; and in proportion as any body of men is authorized by statute to hold property and sue and fee sued without such incidents, they approach the character of a corporation. While they continue partners, they are considered as natural persons merely, as so many joint tenants or tenants in common of all their property. In proportion as, by statute, they cease to be so, they become an artificial person. These two are the only persons known to the law, according to the language of the great commentator. 1 Black. Comm. 123, “Persons,” says he, “are divided by the law into either natural persons or artificial. Natural persons are such as the God of nature formed us. Artificial are such as are created and devised by human laws, for the purposes of society and government, which are called corporations or bodies politic. In another part of his work, id. 467, he shows the advantages of corporations over partnerships or voluntary companies, He says, “ corporations are formed in order to preserve entire and forever, those rights and immunities which, if they, were granted only to those individuals of which the body is composed, would, upon their death, be utterly lost and extinct.” In a mere voluntary assembly, he admits the individuals that compose it, might act up to the purposes for which they associated, so long as they could agree to do so ; “ but they could neither frame nor receive any laws of rules of their conduct; none at least which would have any binding force, for want of coercive power to create a suffix cient obligation ; and when they are dispersed by death or otherwise, how shall they transfer their advantages to others, equally unconnected with themselves ? So, also, with re* gard to holding estates or other property, if land be granted for the common purpose to twenty individuals not incorporated, there is no legal way of continuing the property to any other persons for the same purpose, but by endless conveyances from one to another, as often as the hands are changed. But when they are consolidated and united into a corporation, they and their successors are then considered as one person in law ; as one person, they have one will, which is collected from the sense of the majority of the individuals: this one will may establish rules and orders for the regulation of the whole, which are a sort of municipal laws of this little republic g or rules and statutes may be prescribed to it at its creation, which are then in the place of natural laws : the privileges and immunities, the estates and possessions of the corporation, when once vested' in them, will be forever vested, without any new conveyance or new successions ; for all the individual members that have existed from the foundation to the present time, or that shall ever hereafter exist, are but one person in law, a person that never dies: in like manner as the river Thames is still the same river, though the parts which compose it are changing every instant.” In this quotation, I have taken the words of Blackstone as he applied them, by way of example, to the case of a college in one of the English universities g and without quoting him literally throughout, have confined myself to such things as the learned author considers peculiar to every aggregate corporation. These are, in short, the receiving of peculiar laws, and the making of bylaws for itself g perpetual succession, both as to its privileges and property; the having one will, as collected from the power of the majority to make by-laws ; and the being but one person in law, a person that dies not, but continues the same individual, though its parts may change. See also Ang. & Ames on Corp. 23.

Let us see how far these characteristics of a corporation are collectable from the general banking law. It is quite obvious that the associations formed under that statute receive certain laws which are not applicable, without legislative aid, to any voluntary association of natural persons. Such is the law of exemption from individual liability for the debts of the, company; of exemption from a'dissolution by the death or insanity of any member; the law conferring the complete legal right on each member to transfer his share in the stock of the company ; and the right to compel the comptroller and his successors to act as trustees in the affairs of the association, so long as it shall exist, which may be a thousand years, if its articles fix a limitation so long. Such is the law which confers the right to elect a president, and of pleading and being impleaded through him and his successors. He and his successors are also compellable to hold the real property of the company in trust, or as an agent, and to transfer it from time to time. Such too is the law which confers the power to make by-laws, and have a common seal, which I shall presently notice as being the result of, though not expressly conferred by, ‘ the statute in question. By giving the association power to fix in its articles the time of its .duration, the statute cuts off the power of dissolution at the pleasure of an individual, or from any other causes than such as it enumerates.

No part of the statute declares, in terms, that in respect to the persona] property of the association, such as its specie in the vaults, money on deposite, bullion purchased and debts due, it shall hold otherwise than as a partnership; and so with regard to its beneficial interest in the stocks, bonds and mortgages assigned to the comptroller, or its land, a conveyance of which it is to take in the name of the president. It is, however, the real owner of the whole. The statute declares that it shall take a name; and that the association thus named shall, after, prescribing its own duration, assign the securities to the comptroller; that it may hold specie, receive deposites, make loans, and hold real esta.te. It is impossible for a single member, as a partner may, to transfer an absolute right in any of the common effects to a third person, at least none which are tangible to any execution which may be issued against the president. Besides, the latter or the vice president, with the cashier, are to sign all contracts, including, it is presumed, all" contracts of sale and assignment as well as others—as in other banking institutions, he and the cashier may be placed under the control of the board of directors. It is difficult to conceive of any other form in which a contract can be made. The power is permanent, and may pass in succession from the president, &c. to his successors, controlled by the directors and their successors, perhaps through thousands of years. The association must, in the nature of things, be continued by a succession of members during the term for which it has elected to enjoy the privileges conferred, and to assume the duties imposed by the statute. It must take a name, says the statute, “ to be used in its dealings.” It must continue to hold that name. By this it must be known and identified ; and a simple legislative declaration that it might own or hold property or rights of any kind, would therefore seem to imply that the title should be commensurate with its existence. The statute, in various places, not only presupposes, but expressly declares, that the association shall have absolute rights of property. It deals in the name taken : that is, it contracts, acquires property, and transfers it-in a course of dealing as an individual. This is true, at least of the beneficial interest in its real estate, and is literally true of its bonds and mortgages. In both these latter, it continues to hold title as a cestui que trust. Nay more : I do not see why, in respect to its . real estate, it may not be deemed legally seized or entitled in fee, or of a less estate. The conveyance must, it is true, be taken in the name of the president, or some other person. But the latter is a mere agent or conduit-: the association pay the price, which should, in order to be true and give a proper character to the purchase, be mentioned in the deed of conveyance. Then how is he to convey, except as an agent in the name of his principal, the association ? And if he be called on to grant, for example to convey a fee or less interest in a rent, how is that to be done without the ordinary form of affixing the common seal of his principal ?

The question is, can the various attributes conferred by the statute exist in any other than a body politic and corporate ? Such a body, whatever it may be called in common parlance or otherwise, can be known in legal classification by its attributes alone. It is agreed by all the books, that no particular words are necessary to create a corporation. An express declaration that a certain association shall be a corporation, is not necessary: equivalent words are sufficient. 2 Jac. Law Dict. 94, Corp. 1. 2 Kent’s Comm. 276, 3d ed. Ang. & Ames on Corp. 17, 45. Accordingly, the king’s charter granting property to a body of men by name, or conferring certain privileges on them, has been holden to make them a corporation. A grant of land by the king, to the inhabitants of B., their heirs and successors, rendering rent, is one instance. 2 Jac. Law Dict. 94, Corp. I. A like case occurred in our own courts, where the words received a similar construction. Denton v. Jackson, 2 Johns. Ch. R. 320, 324. But words still short of these have been held sufficient. A grant of land by the king to the good men of the town of Islington, rendering rent, without saying to hold to them, their heirs and successors, of itself creates a good corporation perpetual. 1 Kyd on Corp. 4. Dy. 100, pl. 70. Kyd remarks, at the page quoted from his work, that when the king demised to townsmen at a certain rent, it was necessarily implied that they were capable of enjoying property in their collective or corporate capacity, And see per Savage. Ch. J., in North Hempstead v. Hempstead, 2 Wendell, 133, 4. So in respect to the grant of a privilege. If the king grant to the good men of Islington to be discharged of toll, they shall be deemed incorporated for the purpose of claiming and enforcing the privilege, 2 Jac. Law Dict. 94, Corp. 1. 1 Kyd on Corp. 9. So of a grant to a body of men to hold mercantile meetings. 2 Kent’s Comm. 276, 3d ed. 2 Johns. Ch. R. 325 ; an instance commented upon in the case of Sutton’s Hospital, 10 Co. R. 23, 28, 30, &c. The principle of these and the like cases is, that words of the king granting that a body of men shall have the power to hold property or enjoy privileges, amount by the force of the phrase, by operation or implication of law, to the creation of a corporation; in other words, it is a virtual declaration that the grantees shall hold and transmit, not by succession to their heirs or distributees as natural persons, thus dividing and confounding the inheritance, but as a corporation aggregate, a single individual, in order that the estate may be kept entire. I need scarcely observe, that the words of an act of parliament, or of our state legislature, have at least equal force with a royal grant. That this has been so understood judicially, see several instances in Denton v. Jackson, 2 Johns. Ch. R. 325.

Among other peculiar privileges conferred on these associations and not enjoyed by natural persons, I allude to that of the exemption of its members from personal liability for debt. This is mentioned by Angelí and Ames in their Treatise, as peculiar to a private aggregate corporation, Angell & Ames on Corp. 349, and the cases there cited at p. 23 ; they notice it as a striking distinction between a corporation and a partnership.

Let us now inquire whether the power of making by-laws is conferred. That, with several other powers of a corporate character, if they exist at all, must be referred to the general clause in the statute, giving the associations a right to exercise such incidental poioers as shall be necessary to carry on their business. One of these necessary powers is obviously to make by-laws. Who ever heard or supposed that a board of directors with power to enact by-laws, is not necessary in every aggregate banking institution ? That such a power is necessarily incidental to the carrying on its business, is sufficiently evinced by the fact that no such institution has ever found itself able to proceed without it. I do not deny that partners may, by agreement, confer that power even on the majority of a board of directors; but the power Would be, like any other, revocable at the will of the constituent. In an aggregate corporation it is permanent, and this is doubtless the reason why Blackstone and others mention it as a distinctive characteristic. 1 Kyd on Corp. 69. Ang. & Ames on Corp. 58. No reason was mentioned in argument, nor can I conceive any, which exempts associations created under the general banking law, from a necessity which has heretofore, in all similar cases, been deemed imperious; and so far as articles of association under the act have come under our notice, they have expressly conferred the power of making by-laws on a majority of the board of directors. Art. 4, <§> 2, of the North American Trust Company, for instance, an association established in the city of New-York, after a previous declaration that its charter should terminate on the 1st November, A. D. 2301, and providing for a permanent board of forty directors, enacts as follows : " The board of directors shall have authority to determine, &c. and to make such by-laws, rules and regulations, for the management of the business of the association, and the government of themselves, officers and agents, as they may think expedient, not inconsistent with law or these articles of association; and such by-laws, rules and regulations to alter at pleasure.” The board immediately after, enacted fifteen pages of by-laws, every one of which would seem necessary to a prudent conduct of their business. Among these they regulated the transfer of stock, and provided for fixing the compensation of officers by the directors. There can be no doubt that any other necessary corporate power, such as devising and using a common seal, is equally within the general clause of the statute, if the use of such a seal should • become necessary in the transaction of business; and it has been said clearly to be so, where the corporation undertakes to grant an incorporeal hereditament. Per Bayley, J. in Harper v. Charlesworth, 4 Barn. & Cress. 575. 6 Dowl. & Ryl. 589. Indeed, it was said on the argument, and not denied as I recollect, that some associations under the act had already devised and adopted a common seal. Though a partnership might also devise and agree on tho power to affix a seal, yet this, like a partnership power to make by-laws, would be revocable at the pleasure of each. A common seal is not, however, essential to the more important business of a moneyed corporation ; and the power to make or use one might doubtless be interdicted without at all detracting from the essential characteristics of a corporation. The right of an aggregate corporation to contract in general without seal, is perfectly well settled by modern authority. Ang. & Ames on Corp. 109, 110. Steele v. The Owego Cotton Manufacturing Co. 15 Wendell, 265, 6.

The power to make by-laws ivas very properly treated by the learned counsel for the plaintiff, as the most distinct characteristic of a body politic; and they labored, though I think clearly without effect, to show that associations under the general banking law do not possess the power. Yet at the same time they admitted, that no corporation in the state could fulfil the object of its creation without such power. That admission alone, if correct, we have seen brings the power, as a necessary one, within the general clause of the statute. The act of the legislature is, in itself, but the outline, the covering to the machinery within. The moment we are over the threshold, we see a board of directors, a legislature made permanent and indissoluble for hundreds or thousands of years. In the language of Blackstone before cited, “ as one person they have one will, which is collected from the sense of the majority of the individuals; this one will may establish rules and orders for the regulation of the whole, which are a sort of municipal laws of their little republic.” The third article of the North American Trust Company, <§> 1, is framed in that spirit. It is in these words s “ All the power, rights and privileges of each and all the associates, and those who may become such by virtue of these articles, are hereby irrevocably delegated to and vested in, and shall be exercised only by a board of directors, and such officers and agents as they shall appoint.” The subsequent articles provide for the perpetual election and succession of the members of the board. Here resides that one will, mentioned by Blackstone, which regulates the whole, which acts as that of one person and under one name. Here we see more distinctly the corporation described by Grotius, whose definition we shall by and by cite in another connection, united in name with one constitution, or one spirit, (spiritum unum.') Here is a majority acting and binding the whole, irrespective of consent from the constituent, except by his representative; in short the same power is exercised in the same form and with the same effect, as by an ordinary safety fund bank direction. The directors make the laws and alter and repeal them at their pleasure; they elect the president, vice president and cashier. These and all other powers are irrevocably delegated to them through a tract of future time, longer perhaps than the most sanguine republican would assign for the duration of his ,,national institutions. If the powers of a body politic and corporate can yet be denied of an institution such as we have been contemplating, the definitions of learned writers would seem from the earliest day, to be a mere series of mistakes. That, however, will not be pretended; and it may be useful in the present connection to notice a few which are most famil* iar to the students of our law.

After a corporation is formed and named, says Black* stone, 1 Black. Comm. 475, “ it acquires many powers, rights, capacities and incapacities. Some of these are necessarily and inseparably incident to every corporation ; which incidents, as soon as a corporation is duly erected, are tacitly annexed of course, as 1. To have perpetual succession. This is the very end of its incorporation ; for there cannot be a succession forever, without an incorporation, &c. 2. To sue or be sued, implead or be impleaded, grant or receive by its corporate name, and do all other acts as a natural person may. 3. To purchase lands and hold them for the benefit of themselves and their successors, &c. 4. To have a common seal, &c. 5. To make by-laws; &c. The same powers are mentioned in 2 Kent’s Comm. 277, 3d ed.

As to the first requisite of perpetual succession, Kyd observes, when it is said that a corporation is immortal, we are to understand nothing more than that it is capable of an indefinite duration, 1 Kyd on Corp. 17 ; and, indeed, it is well known that our common banks are none the less regarded as corporations, because their charters are limited to a term of years. It is enough that they enjoy the right of succession for that term. As to the second requisite of á corporation using its own name in suits, and in grants, &c. this is not essential; clearly it may be an act of the legislature, and the books say even by prescription, to a certain pxtpnt, sue or defend in one name and deal in another ; and, fey parity, it may deal in real estate by one name, and personal estate in another. Angel Ames on Corp. 56, and the books there cited. It was not, therefore, much insisted on the argument, that, because the legislature had provided for litigating all the disputes of these associations in the name of the president, &c. or that the association should take or convey real estate in his name, they necessarily came short of a corporation. Should a statute provide that all our incorporated banks should litigate, or deal in real estate, in the name of the president, it would hardly be contended that they were the less corporations for that reason. The remark by Blackstone, in respect to the other acts which they must have power to perform as h natural person may, has relation, of course, to such powers only as they may exercise within the limits of the corporate authority granted. 1 Kyd on Corp. 70. Angel & Ames on Corp. 2. Several of the other requisites mentioned by Blackstone, are doubtless not essential, though they may be ordinarily incident to a corporation. The dealings of a moneyed corporation may, as we have seen, be mostly conducted without the use of a common seal, and they might be totally restrained from dealing in lands without ceasing for that reason, to be a corporation. Accordingly, Mr. Kyd says : “ It is material to observe that, though many things be incident to a corporation, yet to form the complete idea of a corporation aggregate, it is sufficient to suppose it vested with the three following capacities: 1. To have perpetual succession under a special denomination and under an artificial form; 2. To take and grant property, to contract obligations, and to sue and be sued by its corporate name, in the same manner as an individual; 3. To receive grants of privileges and immunities, and to enjoy them in common: These alone are sufficient to the essence of a corporation.” 1 Kyd on Corp. 13, 69, 70; adopted in terms, 2 Kent’s Comm. 277, 278, 3d ed. How far these three essentials may still be qualified, we have before seen. It does not entqr into essentials, that the association should be able to litigate in its corporate name. If an association then; be' created with power in itself and successors, under any name or several names, to take and grant property, to contract obligations, to enjoy privileges and immunities in common, with the incidental power of impleading and being impleaded by any name, we seem to have a complete corporation aggregate, although many things mentioned as usually incident to it be omitted. See 1 Kyd on Corp. 13. In Sutton’s Hospital, 10 Coke, 28, the essential requisites are also enumerated ; and they will be found not to exceed the measure already supposed.

The great and essential object to be attained by the creation of a corporation, is continuity [sometimes called immortality] and individuality; “ properties,” says Ch. J. Marshall, “ by which a perpetual succession of many persons are considered as the same, and may act as the single individual. They enable a corporation to manage its own affairs, and to hold property without the perplexing intricacies, the hazardous and endless necessity of perpetual conveyances for the purpose of transmitting it from hand to hand.” Dartmouth College v. Woodward, 4 Wheat. 636. Angel & Ames on Corp. 2. A peculiar sort of individuality, and a peculiar mode of succession, for a particular purpose, and not allowed by the general law to natural persons, enter into every definition of a corporation that I have seen. 1 Kyd on Corp. 2, 3. With us, there can be no recent creation of such an artificial person except by statute. 2 Kent’s Comm. 276, 3d ed. No agreement of individuals can so far alter the nature of things ; and, as we have seen of persons, there can be only two kinds, natural and artificial, so there can be but two modes in which property is transmitted by succession. The one takes place between natural persons, of which we have an example in descent on the death of the ancestor; the other is between predecessors and successors in a corporation aggregate or sole. The one may be called a natural, and the other an artificial succession ; and it is evident that the latter cannot exist independent of a corporation, any more than the former without natural persons. 1 Kyd on Corp. 2. 3.

In the associations created by the banking law, great care has been taken to introduce and maintain corporate succession in every part of the system. I have already endeavored to show, that the beneficial interest in all its real and personal property belongs to any association formed under that' law, as an individual. If I have succeeded, it follows that such association is a corporation. The principle of succession is equally maintained in respect to the president, for the purpose of receiving conveyances of real estate and selling it; and so when he acts as the prgan of maintaining actions in right of the association, and defending actions brought. All these rights, powers and duties, pass in perpetual succession from president to president during the existence of the company. The president and his successors thus come to enjoy, in the nature of a sole corporation, a perpetual trusteeship in the real estate, and a perpetual power or control over it, together with the suits of the company. “ From their having perpetual succession, and suing and being sued in their political character, single persons of both these descriptions have” (without much propriety, as Mr. Kyd thinks,) “ been uniformly, in the books of English law, called corporations.” Kyd on Corp. 19, 20. “ A sole corporation, as its name implies, consists only of one person, to whom and his successors belongs that legal perpetuity, the enjoyment of which is denied to all natural persons.” Angel & Ames on Corp. 18, 19. 1 Black. Comm. 469. It need scarcely be remarked that the president of one of the banking associations in question, comes fully within the general definition. In England, sole corporations are mostly employed to hold in succession the rights and property of the ecclesiastical establishment; and it is said they cannot take personal property in succession, but only real. Sole corporations are not common in the United States. Angel & Ames on Corp. 19, 20. But it is not perceived why an officer, or other person authorized to hold property, real or personal, to him and his successors, be not a sole corporation within the plain meaning of the definition. The chamberlain of London, who may take a recognizance to him and his successors, in his politic capacity, in trust for orphans, was said to be a sole corporation in trust. Byrd v. Wilford, Cro. Eliz. 464. It was there said by Gawdy and Fenner, Js. that the chamberlain was á special corporation for that purpose ; and an obligation may as well go in succession as land. So of the comptroller who takes an assignment of stocks, bonds and mortgages, to hold under the general banking law. Surely these would not, on his death, go to his executors. They are holden by him in trust, to pay the debts of the association ; and would pass to his successors. He is equally a corporation sole, for this special purpose, according to the English definition. The supervisor of a town may sue or be sued. 2 R. S. 387, 8, § 96 and 100, 2d ed. Suppose he were authorized to hold lands and chattels to him and his successors, in trust for his town, would he not be a sole corporation, as the board of supervisors or loan officers are an aggregate corporation in respect to lands which they hold for the county ? Denton v. Jackson, 2 Johns. Ch. R. 325. The grand test of a corporation is the mode in which property succeeds from one to another. When it does not go to the heirs of the holder as a natural person, it passes to the successor or successors, because it is holden in a corporate capacity. The holders are therefore said to be a person or body politic and corporate, in opposition to their natural capacity. Thus, all property must be holden by natural persons or corporations.If the property of an association under the general banking law be not holden in the natural capacity of the different members as partners, the only alternative remaining is a holding by corporations aggregate or sole. No third description of person is known to our law. None was known to the Roman law. See 1 Browne’s Civil and Adm. Law, 141. None to any system of laws with which we are acquainted. There are two cases in 1 Roll’s Abr. 515, which shew still more distinctly that the president of an association, and the state comptroller, must be considered each as sole corporations. One is where a president of a college of physicians recovers, in that character, a penalty against a party for. practising without license. Another is where the master of an hospital recovers, in that character, the arrears of the annuity due to the hospital. On the death of either,the interest in the judgment recovered passes to his successor, and not to his executor ; and simply because the debt thus goes in succession, and Toller says they are each a special or sole corporation like the chamberlain of London before mentioned. Toll. on Ex. ch. 4, § 3, p. 136, ed. of 1803. See also 1 Wms. Ex. 546, ed. of 1832. Atkins v. Gardener, Cro. Jac. 159. This matter is very fully illustrated in 2 Black. Comm. 431, 2.

It has been impossible for me to see the force of the argument that, because the legislature have constantly avoided to call • these associations, or any of their machinery, a corporation, therefore we cannot adjudge them to be so. If they have the attributes of corporations, if they are so in the nature of things, we can no more refuse to regard them as such, than we could refuse to acknowledge John or George to be - natural persons, because the legislature may, in making provisions for their benefit, have been pleased to designate them as belonging to some other species. Should the legislature expressly declare each of them to be corporations, without giving them corporate succession, or other artificial attributes, the declaration would not make them so. On the other hand, even an express legislative declaration that certain associations are not included in the definition of corporations, vyould not change their character, provided they should in fact be clothed with all the essential powers of corporations. Suppose the legislature should attempt to create an ordinary safety fund bank, with its usual machinery, by a majority vote ; could the bank thus created maintain its ground, merely because the statute might, in conclusion, declare that such bank should not be called or known as a corporation ? The restrictive provision in the constitution was levelled at the thing, not the name; at that species of legal being, already known to the law as a corporation, not what the legislature1 might call so.

I before remarked that, in the statute before us, the legislature no where disavow the intent to create corporations. On the contrary, they went on conferring attribute after attribute, till at length they seem themselves to have viewed the associations, for the formation of which they had been providing, as moneyed corporations. Accordingly they expressly declare, by <§> 27, that if any association to be formed under the act, should omit to fulfil the various duties required, “ It shall be proceeded against and dissolved by the court of chancery, in the same manner as any moneyed corporation may be proceeded against and dissolved.” By recurring to the proceedings prescribed in such case, it will be seen that they can scarcely be made applicable to any body of men other than a moneyed corporation. The ordinary jurisdiction of chancery, though of familiar application in the dissolution and winding up the concerns of a partnership, was very properly treated as unequal to the purpose of dissolving one of these associations.

There was nothing incompatible with this view in the constant previous use of the word association. This is said to signify “ confederacy, or union for particular purposes, good or ill.” Johns. Dict. 4to. Association, 2. In that sense it is a generic term, and may indifferently comprehend a voluntary confederacy, which is a partnership dissoluble by the persons who formed it, or a corporate confederacy, deriving its existence from a statute, and dissoluble only by the law. For the first, there is no need of a statute or charter. Natural persons, as they were created and exist, were enabled to form it, but they are tied down and must continue natural persons, until the legislature coming to their aid, disenthrals them, and with their own consent, transforms them collectively into a single person of another species. This has been likened, by Sir John Davies, to the creative power of Deity. He says :

“ Of this we find some foot-steps in our law,

Which doth her root from God and nature take ;

Ten thousand men she doth together draw,

And of them all one corporation make.”

Grotius calls a corporation consociatio, which signifies association, He applies the term to a people, which is properly considered a corporation in respect to its power of individual action and ownership. The late Chief Justice Savage, in North-Hempstead v. Hempstead, 2 Wendell, 135, says: “ The state of New-York owns a large quantity of land, which belongs to the people of the state, not in their individual, but in their political capacity. The people, therefore, are not tenants in common in those lands; and an entry upon the lands, without the license of the corporation, (the state,) would be a trespass. The same relation exists in all corporate property, whether it belongs to a county, a town, a city, a college, an academy, a church, or a bank.” Grotius, speaking of the state, substantially furnishes Blackstone’s definition of a corporation. I quote from Book II. ch. 9, <§> 8. “ Isocrates, and after him the Emperor Julian, said that states were immortal i that is, they might possibly prove so; because the people is one of those kind of bodies, (populus est ex eo corporum genere,) that consist indeed of separate and distinct members, but are, however, united in name (unique nomini suhjectum est,) as having one constitution only, according to Plutarch ; one spirit, (spiritum unum,) as Paulus speaks. Now this spirit or constitution in the people, is a full and complete association for political life, (est vita, civilis consociatio plena atque perfecta.) And the first and immediate effect of it is the sovereign power, the bond that holds the state together, the breath of life which so many thousands breathe, as Seneca expresses it. For these artificial bodies are like the natural. The natural body continues to be still the same, though its particles are perpetually upon an insensible flux and change, whilst the same form remains, as Alphenus, from the philosophers, argues.” In the second subdivision of the same section, he adopts the like comparison with Blackstone, between a corporation and the Thames. Grotius there quotes Heraclitus, who said, “ We cannot go down twice into the same river; which Seneca very judiciously explains, viz. the name of the river continues, though the water is continually gliding along. So Aristotle, comparing a river to the people, said, the river retains the same name, though some water is always coming and some going.” Much of this which I have quoted from Grotius, is referred to in the notes to 1 Kyd. on Corp. 18. It is there given in the original Latin. The word Consociatio is translated, indifferently, consociation or association. Ainsworth’s Diet, quarto, translates it partnership, consociation, &c. In the Jesuit’s Diet, of 1616, it is rendered association, both in English and French. In an approved translation of Grotius, A. D. 1738, it is rendered association; and by the same word in a French translation of the same book, A. D. 1724. The reference in ICyd is to the third book of Grotius: it should have been to the second. On the whole, it turns out that the word association used in the general banking law, so far from being incompatible with the common law idea of a corporation, is perfectly consistent with it, and has been-. used by standard writers as signifying the same thing.

It was said on the argument, that should one of the associations created by the banking law refuse to elect a president, it could have no standing in court; that it would want one of its integral parts. If that were so, it is no more than what may happen to an acknowledged corporation. If that cease to perform its appropriate functions, or, in other words, is guilty of non-user, it may be proceeded against and ousted by quo warranto. 2 R. S. 483, § 39, sub. 3, 2d ed. 2 Kyd on Corp. 448, 9, et seq. Angel & Ames on Corp. 77. The better opinion is, however, that so long as members capable of choosing officers exist, the omission will not ipso facto work a dissolution, but a mere suspension at most. Angel & Ames on Corp. 77. Nor is it by any means certain, that a corporation created under the general banking law, may not sue or be sued by its corporate name. The statute merely gives an option to sue the president, or bring actions in his name. § 21, 22. The right to sue or be sued in the corporate name, is not expressly prohibited ;• and such capacity being an implied incident of every corporation, there is a doubt whether it can be taken away without an express prohibition. There would be more question in respect to the power of contracting independent of the president, inasmuch as the statute has declared, § 21, that contracts shall-be signed by him. But a presiding officer is not, in the nature of things, essential to all kinds of corporate action. It was said, in the case of Sutton’s Hospital, 10 Co. Rep. 28, 9, that an aggregate corporation might be complete, though it had only a body without a head ; and several instances are there given. Again : suppose, that on the failure to elect a president, the members of the association must all implead and be impleaded as partners; the being put to such a remedy is not decisive against the association being considered as a corporation in other respects. Statutes of express incorporation are sometimes so framed as to give the creditor a choice to sue the association either as a corporation or as a partnership. Allen v. Sewall, 2 Wendell, 327, 338. In short, the forms or modes in which the corporation is to perform its several functions, is not the test. ei For,” as Grotius says, a we must know that there may be several forms of one and the same artificial thing, as a legion has one form of command, and another of engagement.” Book 2, ch. 9, § 8, sub. 2.

In endeavoring to identify this artificial thing, or, more properly, person, I have, so far, confined the survey mainly to the books of the common law, and other books which have given us features and lineaments as known from the most ancient days to the passing of the revised statutes. The latter, it will be found, have not varied the description. 1 R. S. 602, 2d ed. They declare as follows: § !._ ce Every corporation, as such, has power: 1. To have succession by its corporate name, for the period limited in its charter ; and when no period is limited, perpetually : 2. To sue and bé sued, complain and defend, in any court of law or equity: 3. To make and use a common seal, and alter the same at pleasure: 4. To hold, purchase and convey such real and personal estate as the purposes of the corporation shall require, not exceeding- the amount limited in its charter: 5. To appoint such subordinate officers and agents as the business of the corporation shall require, and to allow them a suitable compensation : 6. To make by-laws not inconsistent with any existing law, for the management of its property, the regulation of its affairs, and for the transfer of its stock. <§> II. The powers enumerated in the preceding section, shall vest in every corporation that shall hereafter be created, although they may not be specified in its charter, or in the act under which it shall be incorporated.”

Regarding then “ The Bank of Central New York” as a corporation, the pleader brings assumpsit against the defendant, and declares in the name of “ Anson Thomas, who is president of the Bank of Central New York,” an association of persons formed for the purpose of banking under the provisions of the act, &c. entitled, &c. who prosecutes on behalf of said association, pursuant to the provisions of said act, &c. For that whereas the said defendant, heretofore, &c. on, &c. at, &c. was indebted unto the said “ Bank of Central New-York,” for so much money, &c. and at the conclusion gives copies of three bills of exchange drawn by the defendant, payable to his own order, and endorsed by himself in blank. My conclusion upon this form is adverse to the objection made by the defendant’s counsel, that no cause of action appears in Anson Thomas, unless the defendant’s further objection be well founded, which is, that the act to authorize the business of banking, by providing for an indefinite number of corporations at the pleasure of individuals, is unconstitutional and void on its face. If void, the association is still but a partnership; and the declaration remains open to the objection that the names of the natural persons composing the firm are not stated.

The words of the constitution are, that “ the assent of two-thirds of the members elected to each branch of the legislature, shall be requisite to every bill creating any body politic or corporate.” The restriction intended to be imposed, I am of opinion, relates entirely to the number of members whose assent is required, and not to any particular form in which the corporation is to be created, nor to the number of corporations provided for by the bill. It is perfectly well known that the legislature have always exercised the right of passing general statutes authorizing associations of individuals to incorporate themselves on complying with certain provisions. These incorporations have generally been for religious, literary or manufacturing purposes ; and instances are too familiar with every one to require a quotation of examples. It is obvious that the same power must always have been understood to exist with reference to any other objects. It was as well understood when the new constitution was adopted, as at any time since; and had the restraint now contended for been desirable by the framers, nothing was easier than to say so. We must understand the constitution as recognizing the known modes of legislation, when nothing is said in it to the contrary. The assent required to the bill is, in its own nature, immediate, and is given in the form of an immediate assent. But the bill need not and cannot, in any case, of itself, create a private corporation. Such an act interferes with individual property. The act of creation is in the nature of a bargain between the government and private persons. The act must, therefore, be conditional, unless a previous assent be given by 'those who propose to be incorporated. The artificial being can never be considered as complete in its legal conformation, until the charter is accepted in some form. I speak of private corporations. It is agreed that it may be otherwise in regard to counties, towns, villages, and other corporations merely municipal, such as are political in their character, or created for the purposes of civil government, in a certain district of country. These are exceptions to the two-third clause in the constitution, inasmuch as they do not come within the reason which led to its enactment. The People v. Morris, 13 Wendell, 325. And as the taxation and other burthens which follow their creation, are but the taking of private property for public use, in consideration of the compensation derived from corporate privileges, the legislature have not considered it necessary that every individual whose rights may be incidentally affected by their operation, should give his assent. That was never so in respect to a private corporation. See Angel & Ames on Corp. 46, 47, and the cases there cited. This must always be formed by voluntary associates, under the sanction of an act of incorporation.

It was supposed, on the argument, that this conventional feature in the associations to be formed under the banking law, destroyed their character as corporations, which were said to be the mere creatures of the legislature, or of the sovereign power. As that can never be the sole creative power, the argument of course fails. Both partnerships and private corporations are conventional, so far as the members are concerned. The difference consists in this, the former is authorized by the general law among natural persons, exercising their ordinary powers; the latter by a special authority, usually, if not necessarily, emanating from the legislature, and conferring extraordinary privileges: among the most prominent of which are concentrated, permanent, individual existence and operation, with corporate succession of membership, rights and liabilities. Substitute, as is done by some books, Kyd on Corp. 2, 3, continuation or being for succession, yet the distinction is the same. What more striking power of continuation, than is awarded by the general banking law ? A law which literally confers on the beings of its creation a duration of existence any where within the power of numbers : almost seeking to realize,1 what has heretofore been considered a fanciful attribute even when predicated of corporations, immortality, ox eternal duration. Perpetual successions, is however, the term made use of by the law. 1 Kyd on Corp. 2. “ The distinction,” says Kyd, id. 3, “ between the succession of a community not corporate, and that of a corporation, is this : that the first has succession in a natural manner, as one generation succeeds another ; the second has succession as a community modified, or put into a particular form, and under a special denomination, as of a mayor and commonalty, bailiffs and commonalty, or the like, which is a complex kind of succession, being both natural and artificial.”

It was also said the legislature must give the name of the corporation. That is true enough, but it may be done either in the statute itself, or the act may allow the corporation to choose its own name. Such has been the constant course under our statutes authorizing the incorporation of religious institutions, and some others. It is well settled that the king alone may delegate the power both of creating and naming corporations. 1 Kyd on Corp. 50. Can there be a doubt that legislative delegation would be equally efficient ? It has, I believe, been exerted and long acted upon without question, in the case of the Regents of the University. The creation of the name, as well as the corporation itself, may be by an act of the sovereign power, exerted either mediately or immediately, according to circumstances.

Being clearly of opinion that the legislature had the constitutional power to authorize the creation of an indefinite number of corporations, be they of one sort or another, by a two-thirds vote, it becomes unnecessary for me to inquire, at much length, whether a general corporation law may actually demand the same constitutional number of voices, as if it had been confined to the direct creation of a corporate bank by name. It was not denied on the argument that such general law was equally within the letter, nor have I been able to see that it is not as much within the spirit of the constitution, as an ordinary bank charter. The evil complained of, and which operated more than any other upon the mind of the convention, I have no doubt was the already inordinate multiplication of banking institutions, and the danger of their increase under the facilities of a mere majority vote. The convention were desirous to avert the curse of an irredeemable paper currency, a necessary consequence of excessive banking. See per Yates, J. in Myers v. Irwin, 2 Serg. & Rawle, 372, 3. That a general banking law is so obviously clear of all tendency to that consequence, as to warrant us in judicially restricting the meaning of the constitution to certain kinds of moneyed corporations, when the words it uses extend to all, seems to me an argument which cannot be sustained for a moment, either historically, or by any rule of judicial construction. It is said that the passage of general laws creating corporations had never been corruptly procured f The same thing may be said of statutes incorporating many institutions for private purposes. If we are to take practical corruption as the limit, it follows that a majority vote will be effectual in creating all sorts of corporations, except those whereof we may have heard of imputed corruption. That would be to dismiss the express prohibitory words of the constitution, and go upon the ground of hearsay and conjecture. If not, we must nullify the clause ; for I believe it was not contended on the argument, that we could be judicially satisfied by the reception of legal evidence.

But this branch of the argument need not be pursued j for it was agreed on both sides, at the bar, that we must, on this record, presume the general banking law to have been passed by two-thirds of all the members elected to both houses. We must clearly do so until the fact is denied by plea. The requisite constitutional solemnities in passing an act which has been published in the statute book, must always be presumed to have taken place until the contrary shall be clearly shown. Should the defendant withdraw his demurrer, and plead specially that the law in question did not receive the assent of two-thirds, as required by the constitution, it will then be in order to pass upon the validity of such an objection.

Being clear that the plaintiff’s declaration is sufficient in substance, and that he has technically and aptly set forth his cause of action according to the statute, I think there should be judgment for him, with leave to withdraw the demurrer, and plead on payment of costs.

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Concurrence Opinion

By Bronson, J.

I concur fully in the opinions expressed by my brethren, that associations formed under the general banking law are corporations, and that the assent of two-thirds of all the members elected to each branch of the legislature was necessary to the passing of the act. But, as at present advised, I cannot concur in the opinion that the legislature has the constitutional power, although two-thirds may assent, to provide by a general law for the creation of an indefinite number of corporations at the pleasure of any persons who may associate forth at purpose.

It was conceded on the argument, that the demurrer does not reach the objection that the act was not passed by a two-thirds vote ; and I have not, therefore, considered the question whether we can look beyond the statute book. A plea may render it necessary for us to pass upon that -question.

Judgment for plaintiff

Case Details

Case Name: Thomas v. Dakin

Court Name: New York Supreme Court

Date Published: Oct 15, 1839

Citation: 22 Wend. 9

Court Abbreviation: N.Y. Sup. Ct.