is to be considered as an offence at common law; and the words of Best, C. J., in a subsequent case, are confirmatory of this opinion. "There can be no transferable share of any stock, except the stock of corporations, or of joint stock companies created by acts of Parliament. Indeed, the members of corporations cannot assign their interest, and force their assignees into the corporation, without the authority of an act of Parliament. Such authority is expressly given by the Bank acts, the South Sea acts, and by other statutes, creating companies that possessed stock, which it was deemed proper to render transferable. The pretending to be possesed of transferable stock, is pretending to act as a corporation and pretending to possess a privilege which does not belong to many corporations.

"But where the shares are not transferable at the mere unre. stricted option of the holder, the association, as far as relates to that matter, will be legal. In the case of The King v. Webb, which has been so often referred to, the shares could not be transferred to any person who would not enter into the original covenants: nor could more than twenty be held by the same person, unless they came to him by operation of law; and the object of the society, which was to supply the inhabitants of Birmingham, being shareholders, with bread and flour, virtually limited the transfer of shares to persons residing in the neighborhood. And the Court of King's Bench gladly availed themselves of these circumstances, in order to hold the association legal. So, in Pratt v. Hutchinson,† which was the case of a building company, no person could become a member of the company until he had made himself a party to the partnership articles, nor until he had been proposed and approved by a certain majority of persons present at the meeting of the society. And the Court held, that these restrictions on the transfer of the shares préserved the legality of the association.'

From these cases, the difficulty is evident, of ascertaining, satisfactorily, the peculiar characteristics of a corporation. Aside from the transferability of stock, which will be hereafter examined, it would appear, that "corporate bodies alone can use a common name for the purpose of suing, contracting, conveying, or accepting conveyances;" and that they "have the power of binding their members by the acts resolved upon in the manner prescribed by their charters, which power they derive from their corporate character."

*4 Bing. 267.

+15 East, 511; and see Davies v. Hawkins, 3 Mau. & Selw. 488.

These are, substantially, the second, third, and fourth requisites before stated. The first, viz., collective existence by name, is not alluded to in these cases, and doubtless because, the Statute did not declare it illegal to assume to be, but to act, as a body corporate, and the attention of the Court, consequently, was not turned to that feature of a corporation.

There is some further, though less direct light on the subject, in our own state.

This Court in the case of The People vs. Morris, [13 Wend. 335,] speak of the properties of a corporation in this manner"They (towns) possess every requisite to constitute them corporations, besides being declared to be so by statute. Each town, as a body corporate, has capacity to sue and be sued ; to purchase and hold real estate; to make such contracts, and hold such personal property as may be necessary to its corporate and administrative powers; and to make such order for the disposition, regulation and use of its public property as may be conducive to the interests of the inhabitants."

The Legislature declared, by statute, in 1830, what should be the incidents to all corporations thereafter created.

The Act is as follows:

"1. Every corporation, as such, 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 Court 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." [1 R. S. 599-600.]

The first, second, fourth, and sixth incidents are essential; the third and fifth, ordinary and convenient.

The counties and towns of this State have, by statute, the essential requisites of corporations. [1 R. S. 364; 337.] The laws giving them are in the following words:

66

"§ 1. Each county, as a body corporate, has capacity,

"1. To sue and be sued in the manner prescribed by law : "2. To purchase and hold lands within its own limits, and for the use of its inhabitants; subject to the power of the Legislature over such limits:

"3. To make such contracts, and to purchase and hold such personal property as may be necessary to the exercise of its corporate or administrative powers: And,

"4. To make such orders for the disposition, regulation, or use of its corporate property, as may be deemed conducive to the interests of its inhabitants."

"§ 1. Each town, as a body corporate, has capacity,

"1. To sue and be sued, in the manner prescribed in the laws of this State:

"2. To purchase and hold lands within its own limits, and for the use of its inhabitants, subject to the power of the Legislature over such limits:

"3. To make such contracts, and to purchase and hold such personal property, as may be necessary to the exercise of its corporate or administrative powers: And,

"4. To make such orders for the disposition, regulation or use of its corporate property, as may be deemed conducive to the inte rests of its inhabitants."

The counties and towns, having been previously created, and then existing by name, became possessed, on the passage of these sections of the Statute, of all the essential features of corporations; and yet they are not considered, strictly, corporations. Chancellor Kent denominates them Quasi Corporations. [2 K. C. 278, 2d ed.] And this Court, in the case of The People vs. Morris, (13 Wend. R. 335,) holds them to be political, or municipal corporations. They are, certainly, not private cor

porations; for, although they have all their essential requisites, they have other characteristics, so important and controlling, as to place them in another class of legal entities. They do not embrace a few individuals and exclude the many. They cover the whole community. All may come within their jurisdiction. They have legislative, judicial, and executive properties. Their powers are exercised for the public benefit, and not for the advantage or profit of a few. Their existence and properties show the uncontrolled power of the Legislature to create legal beings and cast them from any mould, new or old, and the impossibility of confining the exercise of that power to any known forms of legal existences.

*

Chancellor Kent has given the essence of an aggregate corporation with more accuracy than any other author. He says, "And the essence of a corporation consists only of a capacity to have perpetual succession, under a special denomination, and an artificial form, and to take and grant property, contract obligations, and sue and be sued, by its corporate name, and to receive and enjoy, in common, grants of privileges and immunities." [2 K. C. 277, 2d ed.]

No controversy has ever arisen, within my knowledge, except the present, which turned on the single question, what are the essential features of a corporation? The cases on the English Statute, blend that with other subjects, and not one of them is placed entirely on that ground. It is not strange, therefore, that there should be looseness of thought and inaccuracy of expression on the subject.

After giving to it the fullest reflection and examination in my power, I submit to the better judgment of the Court, the four essential requisites above stated, as the only ones which enter into and form the essence of a corporation.

The next step in the argument, is to examine our Statute which authorizes the business of banking, and see if the associations which it permits have these essential features of a corporation. Before proceeding to that, however, I will revert to, and dispose of, the alleged corporate feature, which consists of the transferability of stock.

It will be observed, that this property is not mentioned by any author, nor in any case, except the English cases, as a corporate attribute. It appears to have originated wholly from the English Statute; and the error of considering it a corporate property, has arisen, I apprehend, from a want of care in judging of it, as a distinct offence, which it is by that Statute, instead of judging of it as a corporate act, and as such, an offence by the Statute. A few references to the language of the Act, and the decisions upon it, will show this.

The recital is" And whereas, in many cases, the said undertakers and subscribers have presumed to act as if they were corporate bodies, and have pretended to make their shares transferable or assignable without any legal authority," &c. And the enactment is, that such undertakings, " and more particularly the acting or presuming to act as a corporate body, the raising, or pretending to raise, transferable stock, transferring, or pretending to transfer, or assign any share in such stock, without legal authority, &c., shall be deemed illegal and void."

"The offences," says Mr. Collyer, "which are more particularly pointed out by the Statute, are, the presuming to act as a corporate body; the raising transferable stock; the transferring such stock."

The transferring of stock is thus obviously a distinct offence from that of presuming to act as a corporate body. Either might