Thomas v. Dakin. 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 organ 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 Thomas v. Dakin. by Gawdy and Fenner, Js. that the chamberlain was a 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, They are holden by him. on his death, go to his executors. 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, allproperty 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 succes Thomas v. Dakin. sor, 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, would 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 legislature' 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 ex Thomas v. Dakin. pressly 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, 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, Thomas v. Dakin. 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, § 3. "Isocrates, and after him the Emperor Julian, said that states were immortal: 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 subjectum 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 vitæ 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. Grolius 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 Dict. quarto, translates it partnership, consociation, &c. In the Jesuit's Dict. of 1616, it is rendered association, both in VOL. XXII. 14 |