determine and agree what it shall be. It is given by contract and not by Statute. It comes from the will of individuals, and not from the one sovereign power. Besides, the associations have no common name by which they are known; by which they take and give title and make contracts, and by which they sue and are sued. Nor have they two names, one by which they may take and grant, and another, by which they may sue and be sued. They have only one name, and that for a single purpose, viz: "to be used in their dealings." They neither take, nor grant, nor make contracts in that name, nor do they sue, nor are they sued by it, as will be more distinctly seen when other sections of the Statute are examined.

SECOND: Has every association a standing in Court, as a collective existence by a given name or designation, with the rights and liabilities of a party litigant?·

The clauses of the Statute which relate to this part of the subject, are found in the twenty-first and twenty-second sections. These are as follows: "and all suits, actions and proceedings brought or prosecuted by or on behalf of such association, may be brought or prosecuted in the name of the president thereof." "All persons having demands against any such association, may maintain actions against the president thereof."

The ground taken by the Counsel for the defendant is, that the suits permitted by these provisions of the Statute, are to be brought and prosecuted in the name of the office of the president of the association, and not in the name of the person who fills the office and that each association has, therefore, a name given to it by Statute, by which it sues and is sued.

This is obviously an erroneous construction of the Act. The It is title of this very cause is a practical evidence of the error. in the name of Anson Thomas, president, &c.; and not in the

name of The President of the Bank of Central New York. The language of the Statute shows, that the office of president is referred to as a mere description of the person, in whose name the suit may be brought, and against whom it may be maintained. The words are; "all suits, &c., " may be brought or prosecuted in the name of the president thereof," and not in the name of the office of president thereof. So, "all persons" &c., "may maintain actions against the president thereof," and not against the office of president thereof. But there are other clauses in these same two sections of the Statute which are conclusive of its construction.

If the suits may be brought in the name of the office of president, or maintained against the office of president; then no suit, brought in the name of that office, or against it, would abate by the death, resignation, or removal of the officer. But in the twenty-first section, the Legislature provide; that no "suit, action, or proceeding," "brought or prosecuted in the name of the president thereof," "shall abate by reason of the death, resignation, or removal from office of such president, but may be continued and prosecuted according to such rules as the courts of law and equity may direct, in the name of his successor in office." So also, in regard to suits against the president, the twenty-second section contains the following provision; " which suits or actions shall not abate by reason of 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, the former, 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 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 name 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 twenty-second section, that "all judgments and decrees obtained or rendered against such president for any debt and liability 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 Chancel

lor, 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.

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