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Thomas v. Dakin.

binding force, for want of coercive power to create a sufficient obligation; and when they are dispersed by death or otherwise, how shall they transfer their advantages to others, equally unconnected with themselves? So, also, with regard to holding estates or other property, if land be granted for the common purpose to twenty individuals not incorporated, there is no legal way of continuing the property to any other persons for the same purpose, but by endless conveyances from one to another, as often as the hands are changed. But when they are consolidated and united into a corporation, they and their successors are then considered as one person in law; as one person, they have one will, which is collected from the sense of the majority of the individuals; this one will may establish rules and orders for the regulation of the whole, which are a sort of municipal laws of this little republic; or rules and statutes may be prescribed to it at its creation, which are then in the place of natural laws: the privileges and immunities, the estates and possessions of the corporation, when once vested in them, will be forever vested, without any new conveyance or new successions; for all the individual members that have existed from the foundation to the present time, or that shall ever hereafter exist, are but one person in law, a person that never dies; in like manner as the river Thames is still the same river, though the parts which compose it are changing every instant." In this quotation, I have taken the words of Blackstone as he applied them, by way of example, to the case of a college in one of the English universities; and without quoting him literally throughout, have confined myself to such things as the learned author considers peculiar to every aggregate corporation. These are, in short, the receiving of peculiar laws, and the making of bylaws for itself; perpetual succession, both as to its privileges and property; the having one will, as collected from the power of the majority to make by-laws; and the being but one person in law, a person that dies not, but continues the same individual, though its parts may change. See also Ang. & Ames on Corp. 23.

Let us see how far these characteristics of a corporation

Thomas v. Dakin.

are collectable from the general banking law. It is quite obvious that the associations formed under that statute receive certain laws which are not applicable, without legislative aid, to any voluntary association of natural persons. Such is the law of exemption from individual liability for the debts of the company; of exemption from a dissolution by the death or insanity of any member; the law conferring the complete legal right on each member to transfer his share in the stock of the company; and the right to compel the comptroller and his successors to act as trustees in the affairs of the association, so long as it shall exist, which may be a thousand years, if its articles fix a limitation so long. Such is the law which confers the right to elect a president, and of pleading and being impleaded through him and his successors. He and his successors are also compellable to hold the real property of the company in trust, or as an agent, and to transfer it from time to time. Such too is the law which confers the power to make by-laws, and have a common seal, which I shall presently notice as being the result of, though not expressly conferred by, the statute in question. By giving the association power to fix in its articles the time of its duration, the statute cuts off the power of dissolution at the pleasure of an individual, or from any other causes than such as it enumerates.

No part of the statute declares, in terms, that in respect to the personal property of the association, such as its specie in the vaults, money on deposite, bullion purchased and debts due, it shall hold otherwise than as a partnership; and so with regard to its beneficial interest in the stocks, bonds and mortgages assigned to the comptroller, or its land, a conveyance of which it is to take in the name of the president. It is, however, the real owner of the whole. The statute declares that it shall take a name; and that the association thus named shall, after prescribing its own duration, assign the securities to the comptroller; that it may hold specie, receive deposites, make loans, and hold real estate. It is impossible for a single member, as a partner may, to transfer an absolute right in any of the common effects to a third person, at least none which are tangible to any execu

Thomas v. Dakin.

tion which may be issued against the president. Besides, the latter or the vice president, with the cashier, are to sign all contracts, including, it is presumed, all contracts of sale and assignment as well as others-as in other banking institutions, he and the cashier may be placed under the control of the board of directors. It is difficult to conceive of any other form in which a contract can be made. The power is permanent, and may pass in succession from the president, &c. to his successors, controlled by the directors and their successors, perhaps through thousands of years. The association must, in the nature of things, be continued by a succession of members during the term for which it has elected to enjoy the privileges conferred, and to assume the duties imposed by the statute. It must take a name, says the statute, "to be used in its dealings." It must continue to hold that name. By this it must be known and identified; and a simple legislative declaration that it might own or hold property or rights of any kind, would therefore seem to imply that the title should be commensurate with its existence. The statute, in various places, not only presupposes, but expressly declares, that the association shall have absolute rights of property. It deals in the name taken that is, it contracts, acquires property, and transfers it in a course of dealing as an individual. This is true, at least of the beneficial interest in its real estate, and is literally true of its bonds and mortgages. In both these latter, it continues to hold title as a cestui que trust. Nay more: I do not see why, in respect to its real estate, it may not be deemed legally seized or entitled in fee, or of a less estate. The conveyance must, it is true, be taken in the name of the president, or some other person. But the latter is a mere agent or conduit: the association pay the price, which should, in order to be true and give a proper character to the purchase, be mentioned in the deed of conveyance. Then how is he to convey, except as an agent in the name of his principal, the association? And if he be called on to grant, for example to convey a fee or less interest in a rent, how is that to be done without the ordinary form of affixing the common seal of his principal?

Thomas v. Dakin.

The question is, can the various attributes conferred by the statute exist in any other than a body politic and corporate? Such a body, whatever it may be called in common parlance or otherwise, can be known in legal classification by its attributes alone. It is agreed by all the books, that no particular words are necessary to create a corporation. An express declaration that a certain association shall be a corporation, is not necessary: equivalent words are sufficient. 2 Jac. Law Dict. 94, Corp. 1. 2 Kent's Comm. 276, 3d ed. Ang. & Ames on Corp. 17, 45. Accordingly, the king's charter granting property to a body of men by name, or conferring certain privileges on them, has been holden to make them a corporation. A grant of land by the king, to the inhabitants of B., their heirs and successors, rendering rent, is one instance. 2 Jac. Law Dict. 94, Corp. I. A like case occurred in our own courts, where the words received a similar construction. Denton v. Jackson, 2 Johns. Ch. R. 320, 324. But words still short of these have been held sufficient. A grant of land by the king to the good men of the town of Islington, rendering rent, without saying to hold to them, their heirs and successors, of itself creates a good corporation perpetual. 1 Kyd on Corp. 4. Dy, 100, pl. 70. Kyd remarks, at the page quoted from his work, that when the king demised to townsmen at a certain rent, it was necessarily implied that they were capable of enjoying property in their collective or corporate capacity, And see per Savage, Ch. J., in North Hempstead v. Hempstead, 2 Wendell, 133, 4. So in respect to the grant of a privilege. If the king grant to the good men of Islington to be discharged of toll, they shall be deemed incorporated for the purpose of claiming and enforcing the privilege, 2 Jac. Law Dict. 94, Corp. 1. 1 Kyd on Corp. 9. So of a grant to a body of men to hold mercantile meetings. 2 Kent's Comm. 276, 3d ed. 2 Johns. Ch. R. 325; an instance commented upon in the case of Sutton's Hospital, 10 Co. R. 23, 28, 30, &c. The principle of these and the like cases is, that words of the king granting that a body of men shall have the power to hold property or enjoy privileges, amount by the force of the phrase, by operation or implication of law,

Thomas v. Dakin.

to the creation of a corporation in other words, it is a virtual declaration that the grantees shall hold and transmit, not by succession to their heirs or distributees as natural persons, thus dividing and confounding the inheritance, but as a corporation aggregate, a single individual, in order that the estate may be kept entire. I need scarcely observe, that the words of an act of parliament, or of our state legislature, have at least equal force with a royal grant. That this has been so understood judicially, see several instances in Denton v. Jackson, 2 Johns. Ch. R. 325.

Among other peculiar privileges conferred on these associations and not enjoyed by natural persons, I allude to that of the exemption of its members from personal liability for debt. This is mentioned by Angell and Ames in their Treatise, as peculiar to a private aggregate corporation, Angell & Ames on Corp. 349, and the cases there cited at p. 23; they notice it as a striking distinction between a corporation and a partnership.

Let us now inquire whether the power of making by-laws is conferred. That, with several other powers of a corporate character, if they exist at all, must be referred to the general clause in the statute, giving the associations a right to exercise such incidental powers as shall be necessary to carry on their business. One of these necessary powers is obviously to make by-laws. Who ever heard or supposed that a board of directors with power to enact by-laws, is not necessary in every aggregate banking institution? That such a power is necessarily incidental to the carrying on its busi ness, is sufficiently evinced by the fact that no such institu tion has ever found itself able to proceed without it. I do not deny that partners may, by agreement, confer that power even on the majority of a board of directors; but the power would be, like any other, revocable at the will of the constituent. In an aggregate corporation it is permanent, and this is doubtless the reason why Blackstone and others mention it as a distinctive characteristic. 1 Kyd on Corp. 69. Ang. & Ames on Corp. 58. No reason was mentioned in argument, nor can I conceive any, which exempts associations created under the general banking law, from a neces

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