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Louisville Railroad Company v. Letson. 2 H. or who shall not voluntarily appear thereto.” The words, “shall not be inhabitants of,” applies as well to corporators as to persons who are not so; and if, as corporators, they are not suable individually, and cannot be served with process, or voluntarily appear in an action against the corporation of which they are members, the conclusion should be that they are not included in the exception, but are within the general terms of the statute. Or, if they are viewed as defendants in the suit, then, as corporators, they are regularly served with process in the only way the law permits them to be, when the corporation is sued by its name.

The case before us might be safely put upon the foregoing reasoning and upon the statute, but hitherto we have reasoned upon this case upon the supposition that, in order to found the jurisdiction in cases of corporations, it is necessary there should be an averment, which, if contested, was to be supported by proof, that some of the corporators are citizens of the State by which the corporation was created, where it does its business, or where it may be sued. But this has been done in deference to the doctrines of former cases in this court, upon whick we have been commenting. But there is a broader ground upon which we desire to be understood, upon which we altogether rest our present judgment, [ * 558 ] although it might be maintained upon the narrower ground already suggested. It is, that a corporation created by and doing business in a particular State, is to be deemed to all intents and purposes as a person, although an artificial person, an inhabitant of the same State, for the purposes of its incorporation, capable of being treated as a citizen of that State, as much as a natural person. Like a citizen it makes contracts, and though in regard to what it may do in some particulars it differs from a natural person, and in this especially, the manner in which it can sue and be sued, it is substantially, within the meaning of the law, a citizen of the State which created it, and where its business is done, for all the purposes of suing and being sued. And in coming to this conclusion, as to the character of a corporation, we only make a natural inference from the language of this court upon another occasion, and assert no new principle. In the case of Dartmouth College v. Woodward, 4 Wheat. 636, this court says: “A corporation is an artificial being, invisible, intangible, and existing only in contemplation of law. Being the mere creature of law, it possesses only those properties which the charter of its creation confers upon it, either expressly or as incidental to its

existence. These are such as were supposed best calculated to effect the object for which it was created. Among the most important are immortality, and if the expression may Louisville Railroad Company v. Letson. 2 H. be allowed, individuality - properties, by which a perpetual succession of many persons are considered as the same, and may act as a 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. It is chiefly for the purpose of clothing bodies of men in succession with these qualities and capacities, that corporations were invented and are in use. By these means a perpetual succession of individuals are capable of acting for the promotion of the particular object like one immortal being."

very

Again, The Providence Bank and Billings, 4 Pet. 514, it is said : “ The great object of an incorporation is to bestow the character and properties of individuality on a collective and changing body of men. This capacity is always given to such a body. Any privileges which may exempt it from the burdens common to individuals do not flow necessarily from the charter, but must be expressed in it, or they do not exist." In that case, the bank was

adjudged to be liable to a tax on its property as an indi[ * 559 ) vidual. Lord Coke, says: “Every corporation * and body

politic residing in any county, riding, city, or town corporate, or having lands or tenements in any shire, qua propriis manibus et sumptibus possident et habent, are said to be inhabitants there, within the purview of the statute.” In the case of King v. Gardner, in Cowper, 79, a corporation was decided by the Court of King's Bench, to come within the description of occupiers or inhabitants. In The Bank and Deveaux, the case relied upon most for the doctrines contended for by the plaintiff in error, it is said of a corporation, " this ideal existence is considered as an inhabitant, when the general spirit and purposes of the law requires it.” If it be so for the purposes of taxation, why is it not so for the purposes of a suit in the circuit court of the United States, when the plaintiff has the proper residence ? Certainly the spirit and purposes of the law require it. We confess our inability to reconcile these qualities of a corporation - residence, habitancy, and individuality, with the doctrine that a corporation aggregate cannot be a citizen for the purposes of a suit in the courts of the United States, unless in consequence of a residence of all the corporators being of the State in which the suit is brought. When the corporation exercises its powers in the State which chartered it, that is its residence, and such an averment is sufficient to give the circuit courts jurisdiction.

Our conclusion makes it unnecessary for us to consider that averment in the plea which denies jurisdiction on the ground that citizens

Burwell v. Mandeville's Executor. 2 H.

of the same State with the plaintiff, are members of corporations in
South Carolina, which are members of The Louisville, Cincinnati, and
Charleston Railroad Company.
The judgment of the circuit court below is affirmed.

14 H. 80; 15 H. 233.

NATHANIEL BURWELL, Complainant and Appellant, v. DANIEL CA

WOOD, William C. GARDNER, Executor of JOSEPH MANDEVILLE, deceased, and John West, Defendants.

2 H. 560. A testator, directing the continuance of a partnership of which he was a member at the time

of his death, may either bind all, or a specific part, or only so much of his assets as are

embarked in the business of the firm. An intention to render the general assets liable, is only to be made out by the use of unam

biguous language ; and as the will in question does not clearly manifest that intent, the

creditors of the firm have no claim upon the general assets. The words“ residuary legatee” may carry the real estate, where such can be made out, from

other parts of the will, to have been the testator's intention.

2h 101 103

3f

APPEAL from the circuit court of the United States for the District of Columbia. The case is stated in the opinion of the court.

Neale and Coxe, for the appellant.

Smith and Jones, contrà.

* STORY, J., delivered the opinion of the court.

[ * 573 ] This is an appeal from a decree of the circuit court of the United States for the District of Columbia, sitting in equity in the county of Alexandria.

On the 9th of July, 1836, Joseph Mandeville, deceased, by certain articles then executed, entered into partnership with Daniel Cawood, one of the defendants, for the term of three years from the 1st of September, 1835, under the firm of Daniel Cawood and Company. On the 3d of June, 1837, Mandeville made his last will, by which in the introductory clause he said: “I do hereby direct the disposal which I desire of my earthly remains after my decease, and of such real and personal property as I may possess when called hence to a future state.” He then proceeded to make sundry bequests of his real and personal estate to different persons, and then added : “ If my personal property should not cover the entire amount of legacies I have or may give, my executors will dispose of so much of my real estate as will fully pay the same.” He immediately added : “ John West, one of the defendants, formerly of Alexandria, now of Mobile, I hereby make

Burwell v. Mandeville's Executor. 2 H.

my residuary legatee, recommending him to consult with and follow the advice of my executors in all concerning what I leave to him.” The testator, on the 11th of July, 1837, made the following codicil to his will : “ It is my will that my interest in the copartnership subsisting between Daniel Cawood and myself, under the firm of Daniel Cawood and Company, shall be continued thereon until the expiration of the term limited by the articles between us; the business to be continued by the said Daniel Cawood, and the profit or loss to be distributed in the manner the said articles provide.” The testator appointed Robert J. Taylor and William C. Gardner, (one of the defendants,) executors of his will, and died in July, 1837. His will and codicil were duly proved after his death, and Taylor having renounced the executorship, Gardner took upon himself the administration of the estate under letters testamentary granted to him by the orphans' court of Alexandria county.

Cawood, after the testator's death, carried on the copartnership in the name of the firm, and failed in business before the regular expira

tion thereof, according to the articles. [ * 574 ] * The present bill was originally brought against Cawood

and Gardner, as executors of Mandeville, by the plaintiff, Burwell, alleging himself to be a creditor of the firm upon debts contracted with him by Cawood, on behalf of the firm, after Mandeville's death, namely, on a promissory note, dated the 28th of July, 1838, for $800, and on an acceptance of a bill of exchange, drawn by Burwell on the same day for $1,000, in favor of one William H. Mount, both of which remained unpaid. The bill charged the failure of Cawood in trade, and his inability to pay the debts due from the firm. It also charged that Gardner, the executor, had assets sufficient to satisfy all the debts of the testator, and all the debts of Cawood and Company; and it sought payment of the debt due to the plaintiff out of those assets.

The defendant, Gardner, put in an answer, denying that he had such accurate information as to enable him to say whether the partnership funds in the hands of Cawood were sufficient to pay the debts of the firm or not; and not admitting that the assets of the testator in his hands were liable to the payment of the debts of the firm, and requiring proof of such liability, and alleging that he had not assets of the testator in his hands sufficient to satisfy the plaintiff's claims, after satisfying two specified judgments.

The defendant, Cawood, not having made any answer at this stage of the cause, the bill was thereupon taken against him pro confesso; subsequently, he put in an answer; and thereupon it was, by consent of the plaintiff, and Cawood, and Gardner, the executor, referred to a

Burwell v. Mandeville's Executor. 2 H.

same

master to take an account of the assets of the testator, of the debts due to him, of the value of his real estate, and to settle the accounts and transactions of the firm of Cawood and Company until its termination, and of the individual partners with the firm, to take an account of the assets of the firm, and the outstanding debts of the firm, and the debts due thereto, &c.; and also to ascertain whether the debt due to the plaintiff arose in the partnership transactions, and is now due.

Cawood, by his answer, admitted generally the facts stated in the bill; but he also alleged that he neither admitted nor denied the insolvency of the firm, averring that he had satisfied claims against the firm since it terminated, to the amount of about $14,000, from the firm funds, and was engaged in the collection of the outstanding debts due thereto, and that the firm still owed debts to the amount of about $7,000.

The master made his report in May, 1841, the details of which it * is not necessary to mention. In November of the [ * 575 )

year, it was referred to another commissioner to take an account of the assets of Mandeville in the hands of his executor, who afterwards made a report accordingly. At this stage of the proceedings, John West (the residuary legatee, so called in the will) claiming to be interested in the subject-matter, the bill was amended by making West a party, and he filed a demurrer to the bill. The demurrer was afterwards set down for argument, and the court being of opinion that the assets of Mandeville in the hands of his executor (Gardner) were not chargeable with any debt contracted by Cawood in the name of the firm, after the death of Mandeville, sustained the demurrer, and dismissed the bill with costs. From this decree of dismissal the present appeal has been taken to this court.

The argument has spread itself over several topics which are not, in our judgment, now properly before us, whatever may have been their relevancy in the court below. The real question arising before us upon the record is, whether the general assets of the testator, Mandeville, in the hands of his executor, are liable for the payment of the debt due to the plaintiff, which was contracted after Mandeville's death. If they are not, the bill was properly dismissed, whatever might be the remedy of the plaintiff against Cawood, if the suit had been brought against him alone for equitable relief, upon which we give no opinion. In general, the surviving partner is liable at law only; and no decree can be made against him, although he may be a proper party to the suit in equity, as being interested to contest the plaintiff's demand, unless some other equity intervenes; and so it was held in Wilkinson v. Henderson, 1 Mylne & Keene, 582, 589.

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VOL. XV.

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