Thomas v. Dakin. the death, resignation or removal from office of such president, but may be continued and prosecuted to judgment against his successor." After reading these provisions, argument surely is unnecessary to show that the suits are to be brought in the name of and against the person holding the office of president; and that the office is used in the statute merely as a description of the person. Another consideration arises in this connection; and that is, that when a president, who is either plaintiff or defendant, dies, the suit, though not abated, is suspended until a successor is appointed; and when so appointed, the suit does not proceed, of course, against him without any proceeding in court, but "according to such rules as the courts of law and equity may direct:" which proceeding would naturally be a suggestion on the record of the death of the president in whose name the suit was pending, and the appointment of his successor, and an order thereon that the suit proceed in the name of the successor. How unlike is all this to a corporation. A corporation never dies; that is, if not perpetual, it lives out its known and appointed day. It has as we have already seen, a continued existence, or in other words, a continued succession. A suit in its name never abates; for it never dies, resigns or removes. What sort of a corporation, therefore, must that be, which has not a continued existence by name, so as to have a continued standing in court? But again: The statute in respect to suits brought in the name of or against the president is only permissive. The language is, "all suits," &c. " may be brought," &c; “ all persons," &c. "may maintain actions," &c. Hence, any association or individual who is banking under the law may sue in the name of the association, and the latter, in his own name. In like manner, any creditor of any such association or individual may sue the associates or individual; either course would undoubtedly be attended with great difficulties in respect to parties, when such a suit should be attempted in favor of or against the members of an association, and probably would be impracticable for any useful Thomas v. Dakin. end; but still, the right so to sue remains. Here, it may be said, how entirely unlike a corporation; there is not even an approach to an analogy. A right to sue in the names of the individual members of a company is an exclusive attribute of a voluntary association; it has not the most distant resemblance to a corporate power. A suggestion was made by the counsel for the defendant, in the course of his argument, that the statutory provision in the 22d section, that "all judgments and decrees obtained or rendered against such president for any debt and liabili ty of such association, shall be enforced only against the joint property of the association," was analogous to the legal effect of a judgment against a corporation. And so it is; but what of that. Many rights and liabilities of voluntary associations are analogous to those of corporations. The question is, whether it is a peculiar feature of a corporation. If it is, then several other statutory provisions in regard to judgments upon joint liabilities may be said to have the same effect. Our statute declares, that on the arrest of one of several joint debtors, a judgment may be rendered against all, and enforced against the joint property of all. 2 R. S. 377. The statutory regulation of suits by and against a limited partnership is, that "suits in relation to the business of the partnership, may be brought and conducted by and against the general partners, in the same manner as if there were no special partners." 1 R. S. 766, § 14. The effect of the judgment, of course, is to bind the copartnership property. This legislative enactment, respecting suits by and against limited partnerships, is very similar in form, and cannot be distinguished in substance from that respecting suits by and against the banking associations; and yet, I apprehend, that no one ever seriously thought a limited partnership had any thing in common with a corporation, except perhaps that in chancery, the general partners, as lately held by the chancellor, and the directors of a corporation, are responsible as trustees of their respective common funds. But such responsibility is far too general to be called a peculiar corporate attribute. . Thomas v. Dakin. THIRD Has every association power to take and convey title to property, acquire and give rights as a collective existence, and by its given name or designation? The parts of the statute supposed to be applicable to this feature of a corporation, are in the twenty-fourth section. That section, after specifying the purposes for which an association may purchase, hold and convey real estate, enacts: "and all conveyances of such real estate shall be made to the president, or such other officer as shall be indicated for that purpose in the articles of association; and which president or officer, and his successors, from time to time, may sell, assign, and convey the same," &c. On comparing this provision of the statute, with what has been said concerning, and in illustration of this third corporate feature, the wide difference will be seen, between a corporation's taking and granting, by its corporate name, and taking and granting in the manner directed by this act. There is no room to doubt, but that every conveyance is to be made to the person who fills the office of president, or to some other person who holds some other office in the association. The associates of each association have, therefore, a right of selecting a trustee of their real property from the whole body of their agents, from their president down to their porter. The legislature has not even designated the trustee. They have only said, if you select none for yourselves, then we will select for you, your president; but, as we allow you to elect your president and other officers, we give you unrestricted choice. The right of selection, therefore, is uncontrolled; and is as full, as the right of the members of any voluntary association, to select a trustee for themselves, to take the title to their real property for their benefit. It appears to be so clear, that the associations do not take or grant real estate by their collective name, if they can be considered as having one for any purpose, that it seems unnecessary to spend more time with this branch of the argument. The next question is, where is the title to the personal property of the associations? The answer is obvious. The Thomas v. Dakin. statute having made no provision on the subject, it is where the common law places it, viz: in the members of the respective associations; and subject to such custody, control and management, as they have designated and agreed to, in their respective articles of association. And this shows, that the right, still belonging to the associations, to sue in the names of their members, is no shadow, but a practical reality. The vesting of the title of the real property of the associations in a trustee, who is always selected by themselves; and of their title to their personal property, in the members of the associations, shows how impossible it is, to hold them to be corporations. FOURTH AND LAST: Has every association power conferred by the statute to make by-laws, or in other words, to prescribe rules of action for persons without their consent? The only expression in the statute, which, by the greatest stretch of imagination, can be said to have any relation to this power, is found in the eighteenth section; that section. gives and prescribes the power of the associations, and states it to be, "to carry on the business of banking, by discounting bills," &c., in the manner specified in their articles of association, for the purpose authorized by this act. On this part of the subject, it seems sufficient to say, that whatever authority is given to the associations by these words of the act, is merely permissive, and that whatev er regulations or rules it authorizes the associations to make, such regulations and rules are to be specified in their articles of association; and, of course, are purely matters of contract, and derive their whole force and authority from the consent of the parties to be bound by them, This, as we have seen, is a feature peculiar to the bylaws of voluntary associations, and distinguishes them from corporations. The by-laws of the latter, deriving their force from the statute, and emanating from the sovereign power, bind those subject to them without their consent t; while those of the former, deriving their force from consent, and emanating from contract, only bind those subject to them with their consent. The very terms employed, show Thomas v. Dakin. the difference between incorporated and unincorporated companies; and terms are no unimportant indication of thought. The former is a corporation, the latter a voluntary association; the former, exists by force of a statute-the latter, by force of a contract; and so their respective bylaws: one binds by contract, and the other by statute. In concluding this analysis and examination of the statute, one remark seems to be required in regard to these associations having, in different forms, several of the general powers of corporations. It is true that they have; and so have all citizens of full age, all voluntary associations, and every being, who has and exercises legal rights, and prosecutes judicial remedies. Franchises are rights which can only emanate from the sovereign power, and are generally granted to corporations, but often to individuals and companies not incorporated; and the legislature oftentimes confers the privilege of possessing and enjoying property, and exercising rights, upon persons and associations, not otherwise allowed by lawand such privilege is also generally conferred in the form of an act of incorporation: hence, at an early day, the idea was suggested, that these were incidents to corporations; but they are not peculiar to them, and so it has been decided in England. Lord Holt, in the case of The King v. The City of London, Skin. 310, held, that neither "the actual possession of property, nor the actual enjoyment of franchises, are of the essence of a corporation:" and this position has received the sanction of Chancellor Kent, in his valuable commentaries. 2 Kent's Comm. 277, 2d ed. Had these associations been authorized in the very form they now are, but to carry on some other business than banking, hitherto conducted in this state solely by corporations, it probably would never have entered into the mind of any man to think they were corporations, or even like such bodies, though his ingenuity may have been on the rack, for some plausible ground for a dilatory defence to a just demand. The statute must be considered as a modified repeal of the restraining act, and in thus repealing it the legislature |