Thomas v. Dakin. increased by enactments made from time to time. Stat utes, sess. of 1818, p. 242, § 1, 2. 1 R. S. 702. 2 id. 234. But for those acts, every citizen copartnership or association would have had an unqualified right to commence and prosecute the business of banking. The "act to authorize. the business of banking," passed 18th April, 1838, (the act now under consideration.) he said, was a modified repeal of the restraining acts, and as such, is not only unobjectionable, but highly meritorious, inasmuch as it restores to the citizens of the state their former rights. But (he observed) it is said that it confers corporate powers upon the associations which it authorizes, and, by doing so, virtually creates corporations in conflict with a provision of the constitution of this state, in consequence of the act not having been passed in conformity with the requirements of the constitution. The counsel said that he would, in the first place, insist that the associations formed under the act of 18th April, 1838, were not corporations; such associations not possessing the atributes characterizing corporations. He said that there are four distinctive indicia which mark an aggregate corporation, and separate it from every other legal existence neither of which appertain to these associations. These are 1 A collective existence by name, created by the sovereign power, exercised directly or mediately; 2. A standing in court as a colective existence by a given name or designation, with the rights and liabilities of a party liti gant; 3. Power to take and convey title to property, acquire and give rights as a collective existence, and by its given name or designation; and 4. Power conferred by statute to make by-laws, or in other words, to prescribe rules of action for persons without their consent. As to the first of these indicia, he observed, that this characteristic is often expressed in different language. Chancellor Kent calls it "a capacity to have perpetual succession, under a special denomination, and an atificial form." 2 Kent's Comm. 277, 2d ed. This phraseology indicates mere being by name, to which may be attached the qualities of beginning, end, perpetuity, enjoyment of rights and Thomas v. Dakin. the performance of duties. Chief Justice Marshall, who always appears, when discussing a subject, to have his mind constantly fixed on the principles and true nature of things, speaks of this feature of a corporation in this way: "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. Among the most. important are immortality, and, if the expression may be allowed, individuality; properties, by which a perpetual successon of many persons are considered as the same, and may act as a single individual. Dartmouth College v. Woodward, 4 Wheat. 636. The existence of a corporation enables many persons to have succession in the enjoyment of the franchise conferred; and if its existence is perpetual, then perpetual succession. Succession, however, is a property of the individuals who' exercise the corporate rights. They succeed each other. But to say that the corporation itself has perpetual succession, which is the expression in general use, and sufficiently accurate for general purposes, appears to be a solecism, Besides, there may be aggregate corporations which have no succession. Twenty individuals may be incorporated on the principle of tontine, or in other words, till the death of all the corporators but one; and the share of each, instead of being transferable, to belong to the survivors, and the last one to take the whole corporate fund. And in a great variety of other forms, aggregate corporations may be created, without giving to them the property of succession. Every corporation will be without it, whose charter confines the exercise of its corporate rights to certain designated individuals. Perpetual succession is wholly inapplicable to corporations created for a given time. It can only apply to those which have perpetuity, of which there are many, but not near so many as there are whose existence is to continue for a definite period. Whatever there is of succession, connected with a corporation which has a fixed period for its termination, is continued succession. Thomas v. Dakin. But succession is not peculiar to corporations. It often is, and may always be, a property of voluntary associations, if the associates choose so to agree in their articles of association. Strict partnerships are frequently formed under an agreement to admit succession of membership. Almost all the voluntary associations which have been formed in this country, within the last four or five years, and there have. been not a few, for the purchase of and speculation in lands, have contained provisions for succession of associates. The joint stock companies in England, for banking and other purposes, also have succession. When, therefore, we apply the term succession to a corporation, as a property peculiar to it, we express no more than mere continuation or being. A corporation has an existence independent of succession, and is known to the law without that property. In grants of lands to corporations, the word "successors," though usually inserted, is not necessary to convey a fee simple. Ang. & Am. p. 89, c. 5,§ 5. An aggregate corporation includes the idea of an association of two or more individuals; and hence it is a collective existence. And as its existence is only in contemplation of law, it can only be known by name; and hence is a collective existence, by name. And as it can only be created by the sovereign power, exercised directly in calling it into being, or more circuitously, by prescribing certain acts, the performance of which shall constitute a body corporate, embracing those who perform them, it is created by the sovereign power exercised directly or mediately. Creation by sovereign power is the peculiar feature of the existence of a corporation. A partnership, joint stock company, and every other voluntary association, has a collective existence, and by name. But such existence and name rest on contract; they arise from the voluntary agreement of the associates; they have their origin in the will of individuals. Not so with a corporation. It derives its being from a higher source, from the sovereign power. The legislature, in which that power rests, speaks, and the corporation comes into being, with the properties of beginning, continuance and end, unless the creating power declares its existVOL. XXII. 5 Thomas v. Dakin. ence shall be perpetual-and then, with the properties of beginning and perpetual continuance. Not only the being. itself, but the name also, by which it shall be known, mustcome from the same source, to distinguish a corporation from other associations. This name, too, in the language of the books, must be a common name; that is, fixed, uniform, unchangeable, not dependent on the will of individuals. And although a corporation may have two names, one "by which it may take and grant, and another by which it may plead and be impleaded," Ang. & Am. 56, yet whatever name it has, must come from the creating power, and be conferred by it. It is impossible to conceive of a legal entity, taking, giving and enforcing rights, without a name. With its creation, therefore, must be given its name-they are inseparable. This intangible, invisible existence, can only be known by its proper designation, and the name must represent the collective existence; not an officer of the corporation, not an individual, not any thing, except the corporation. It is the name of the corporation. 2d. It must have a standing in court as a collective existence, by a given name or designation, with the rights and liabilities of a party litigant. This is obviously an essential requisite of a corporation. It can neither have nor maintain a legal existence, unless it is able to resort to the judicial tribunals of the state to enforce its rights; nor could the commuuity tolerate a being, which had power to enforce rights in its favor, and yet was not amenable to the courts of justice, so that rights might be enforced against it. As parties cannot litigate in our courts without names, every corporation must have a name by which it can sue and be sued. This is a feature which clearly distinguishes corporations from voluntary associations. No such association can sue or be sued in its assumed name; but the parties who compose it must appear before the court, or those in whom their property is vested in trust for them. The distinction is between the collective existence appearing by its name, and individuals appearing by their names. In the former case, the court recognizes the body corporate as a legal existence, having a right to be Thomas v. Dakin. heard; and in the latter, it recognizes individuals, who claim to be heard in their own right, or as trustees for others. The idea should be kept distinctly in view, that this peculiar feature of a corporation consists in the right of the corporation itself to appear in court by its own name, and not in the name of one of its officers, or of any other person as a trustee for it. Voluntary associations, often, and municipal corporations occasionally, are permitted by statute to sue and be sued in the name of some officer or trustee. The joint stock companies in England, I believe, are all permitted to sue and be sued in the name of any of their registered officers; and several of our cities and villages, which are municipal corporations, are allowed to sue in the names of their officers; but I am not aware that any private corporation in this state can sue or be sued, except in its corporate name. While a voluntary association may be allowed by statute, to sue and be sued in the name of one of its officers, without thereby becoming a corporation; so, a corporation may, by a statutory provision, sue or be sued in the name of one of its officers, without losing its corporate character. But a collective existence, irrespective of individuals, suing and being sued by its name, is a peculiar property of a corporation, and belongs to no other kind of association. 3d. Power to take and convey title to property, acquire and give rights as a collective existence, and by its given name or designation. This is another distinctive characteristic of a corporation, which separates it from all other associations. When a copartnership, or any other unincorporated company, takes a title to real or personal property, that title is conveyed to, or vests in the individual members of the company, or some of them, designated by agreement to receive it for the benefit of all. And when title is transferred by such an association to a third person, it is not conveyed by the company in its collective capacity, but by the individuals who compose it, or by those who hold the title for them. While the company buy with the common fund and sell to benefit it, and the transactions are in fact those of the association, the title to their property comes and goes, to and from, one or |