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Thomas v. Dakin. therefore, the said plaintiff, as president of the bank of Central New-York, brings suit, &c.” To the declaration was attached a notice, directed to the defendant, in these words : “ Take notice, that the following are copies of the drafts or bills of exchange, which will be given in evidence under the money counts contained in the above declaration, according to the statute, &c.” Then followed what purported to be copies of three bills of exchange : 1. A bill drawn by the defendant on Ralph Pomeroy, Esq. dated 1st February, 1839, for $1127,50, payable three months after date, to the order of the drawer and endorsed by him ; 2. A similar bill between the same parties, for $835,50, dated 6th February, 1839, payable three months after date, drawn and endorsed by the defendant ; and 3. A like bill, for $3000, dated 7th March, 1839, drawn by the defendant on Courtland Palmer, Esq., payable at sight, to the order of C. Gould, Esq. and endorsed by Charles Gould, president of the bank of Central New-York.
To this declaration the defendant, by Ward Hunt, his attorney, put in a general demurrer, and also assigned the following causes of special demurrer: 1. For that it no where appears in the said declaration, that Anson Thomas, the plaintiff in said suit, had any cause of action against the defendant for any matter or thing whatsoever ; but on the contrary, the cause of action therein stated, exists, if at all, in favor of The Bank of Central New-York; 2. For that no authority exists in law for the plaintiff to sue the defendant on behalf of The Bank of Central New-York, or upon promises made to the bank ; 3. For that by the law of this state, no association of persons not incorporated are entitled to bring an action in the name of their president, but only in their individual names; and 4. For that the act in the declaration mentioned, entitled “An act to authorize the business of banking," so far as the same purports to authorize this suit, is a violation of the provisions of the constitution of this state, respecting the creation of corporations, and is void ; and also, that the act is void, because it did not receive the assent of two-thirds of all the members
Thomas v. Dakin.
elected to the legislature of this state. The plaintiff joined in demurrer.
The cause was argued at the last term by Ward Hunt, Esq. for the defendant, and by Charles P. Kirkland, Esq. and Samuel A. Foot, Esq. for the plaintiffs.
The counsel for the defendant, presented the following points :
I. No cause of action appears in the declaration, in favor of Anson Thomas, but the indebedness and promises are all to the bank of Central New-York.
II. Associations are partnerships of individuals, and cannot delegate or transfer their right to sue to a president, but must sue in their own names unless they are a corporation.
III. The act “ to authorize the business of banking passed, &c. authorizes the creation of an indefinite number of corporations at the pleasure of individuals, and is therefore unconstitutional and void.
IV. The Central Bank is a creation of this act, and consequently illegal and void.
The first and second points he observed related chiefly to the form of the proceedings, and as he intended to submit to the consideration of the court only what he deemed material and essential difficulties in the act by virtue of which this suit is brought, he would spend no time upon them. The general principles of pleading and of the common law, clearly require that suits should be brought in the names of all persons interested in the claim prosecuted, and that no one or more can sustain a suit without joining the others. He also supposed that a declaration laying the promise to one, the indebtedness to the same person, and the suit in the name of a different person, would be clearly bąd. He insisted that in this case the symmetry and the consistency of pleading might be preserved, and yet, the proper result take plaee. The suit being in the name of the president, the promise and indebtedness should also be laid, as made and accruing to him, and by force of the statute the allegations would be sustained by the production of notes, &c. due to the bank itself. These questions, howThomas v. Dakin. ever, he said depended in a great measure upon the more important proposition that these institutions are corporations. If they are corporations, their right to sue in the name of their president is not doubted, which question he said he would proceed to consider.
Associations formed under this act are corporations. The revised statutes, 1 vol. 599, 600, declare the powers belonging to corporations, created in this state. § 1. Every corporation 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 be sued, complain and defend in any courts 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. $2. 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."
These sections may be looked upon as a legislative definition of a corporation, and wherever these powers and characteristics are found to exist, a corporation is found. In perfect accordance with this definition, is the common law description of a corporation. A corporation is known by its qualities. Whether it be called a corporation or not is of no importance, but if it possess the requisite powers it is a corporation. No particular words are necessary to its creation, nor is it necessary that it should be declared or intended to be a corporation by the legislature. 2 Jac. L. D. 91, Corp. 1. 2 Kent, 276, 3d ed. Angel & Ames, 17, 45, 6, 54, 95, 21, 23, 38. 2 Johns. Ch. R. 320, 324. 1 Kyd Corp. 4, 70.
The ordinary incidents to corporations are, 1. To have perpetual succession, or for the time limited in their charThomas v. Dakin. ters ; 2. To sue and be sued, grant and receive by their corporate name; 3. To purchase and hold lands and chattels; 4. To have a common seal; 5. To make by-laws for the government of the corporation; 6. The power of
amotion, or removal of its members. « Some of these - powers are to be taken with modification and restriction,
and the essence of a corporation consists only of a capacity to have perpetual succession under a special denomination and artificial form, and to take and grant property, contract obligations, sue and be sued by its corporate name, and receive and enjoy in common grants of privileges and immunities.” Authorities above cited. 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. It may be known by different names and may be sued in either. 2 Bac. Abr. 5. 2 Salk. 237, 451. Ld. Raym. 153, 680. A name of some kind is indeed indispensable, according to all the books, and according to the definitions cited. A corporation, therefore, is an association of individuals having: 1. Succession or existence under a special name for the period limited by its charter; 2. Power to take and grant property, contract obligations, sue and be sued under a special name, like an individual; 3. Power to receive and enjoy, in common, grants of privileges and immunities.
All associations of persons for the transaction of business are either partnerships or corporations. The law recognizes but two species of existences, corporations and natural persons, and all unions of individuals divide themselves into one of these classes. 1- Black. Comm. 123. The points of difference between partnerships and corporations are numerous and plain. In partnerships, each partner is in all cases, so far as the public is concerned, the agent of his co-partners and may bind them—may accept bills, give notes, pay money, give releases, &c. whatever may be the agreement between themselves. In corporations, the officers alone are competent to act. The acknowledgment of a debt by a partner will take it out of the statute as to all; in the case of a corporation, one member's acknowledgThomas v. Dakin. ment has no effect. A partnership is dissolved by the death of any of the partners. So by the insanity of either. So by the bankruptcy of either. In many cases by voluntary act; each party still retaining all his property in the concern. A corporator by its very definition cannot be brought to a close in any of these modes. One member of a firm can in no case sue his co-partners upon a partnership transaction, during the continuance of the partnership. A corporator on the other hand may sue or be sued by the institution of which be is a stockholder. And this very suit is brought against one of the principal and original stockholders of the Bank of Central New York.
The definition of a corporation having been given, and some of the points of difference between a corporation and partnership exhibited, it is now proposed to examine the act of 1838, to ascertain into which of these classes the associations therein authorized must be resolved. This examination, it is confidently believed, will show that they possess, not only all the necessary powers of corporations, but all the powers and immunities usually bestowed by the legislature upon banking institutions. The act in question provides—$ 15. That any number of persons may asso ciate to establish offices of discount, deposit, &c. $ 16. That they shall make a certificate, specifying, 1. The name to be used in the business ; 2. The place where the business shall be transacted ; 3. The amount of stock and the number of shares; 4. The names of the stockholders; 5. The duration of the association ; and that this certificate shall be recorded, and be evidence for and against them on all occasions. § 18 gives power to the persons thus associated in the business of banking, to purchase bullion, foreign coin, receive deposits, &c. and authorizes the exercise of such incidental powers as shall be necessary to carry on such business, and to appoint officers, agents, &c. $ 20. Shares are personal property, and unrestrictedly transfera ble. $21. All contracts on behalf of the association are to be signed by the president, &c. $ 24. The association may hold and convey such real estate as is necessary for the purpose of the association, and as may be necessary to take for