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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 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, such authority is merely permissive, and that, whatever 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 by-laws 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; 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 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 by-laws: 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 Legisla ture oftentimes confers the privilege of possessing and enjoying property, and exercising rights, upon persons and associations, not otherwise allowed by law-and 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 The King, vs. The City of London, (Skinner's Rep. 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 K. C. 277, 2 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 have thought proper, and for the very best reasons and most laudable. motives, to protect the community from injury, while they restored to every citizen, his unquestioned right to use his funds for banking purposes. In doing this, the Legislature thought it judicious, to require from the associations, full semi-annual statements of their affairs; [Section 26, of the Act,] as the law then and still requires like annual statements from the incorporated banks of this State, [1 R. S. 593, §19, 20; 3 R. S. 287, §31;] to keep a certain amount of specie on hand, [§33, of the Act;] and other like regulations for the public security; and

these have been alluded to by the Counsel for this defence, as showing that the associations are corporations. With equal soundness and cogency might he argue, that because a corporation can maintain a suit by its corporate name, and an individual can maintain one by his name, therefore, a corporation is an individual.

One proposition is self-evident, and although alluded to heretofore, should be distinctly stated in this place, and that is; if these associations are corporations by reason of possessing their essential requisites, they must have all those requisites, whatever they are—or in other words, must have the essence of corporations. If there are four essential requisites, and they have but three; or there are three, and they have but two; or there are two, and they have but one; they cannot be corporations.

On the whole, we insist, that these associations, judged of solely by the power and attributes given to them by the Statute, do not possess the essential requisites of corporations, and, of course, are not for that reason, corporations.

It is admitted, as has already been stated, that they are not so by explicit legislative enactment-and as corporations can only be created in one or the other of these modes, the argument seems conclusive.

But there is yet another and controlling argument against these associations being adjudged corporations, and that is derived from the manifest intention of the Legislature.

Legislature.

Intention of the The first evidence of that consists, in not only the entire omission of the Legislature to declare, by direct and explicit enactment, that the associations shall be corporations, as they have done in every case, without exception, where corpora

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tions have been created by special or general acts; but in their caution, manifested throughout the whole Statute, to avoid every expression which might countenance such an idea. No person can read this Statute and hesitate for a moment in saying, that the Legislature never intended to constitute these associations corporations. If they had, how obvious the course. They had only to adopt the forms of some of our other general acts of incorporation; but, instead of that, they have studiously avoided all of them. There is a single provision in the Law, which of itself is decisive of the intention of the Legislature. I allude to the clause in the nineteenth section, that, no association shall "be dissolved by the death or insanity of any of the shareholders therein". Why such a provision, if these associations are thought, or intended to be corporations? But if voluntary associations, then it was pertinent and proper; and like similar provisions often introduced into articles of co-partnership and joint stock companies, where there are numerous members, and consequently frequent deaths.

Statute.

History of the The history of the origin, progress, and final passage of the Statute, also shows, with unvarying light, the intention of the Legislature.

It may not be time mispent, to give a pretty full account of this important Statute, which already exercises a great, and must hereafter, a far greater influence on the business, morals, and destiny of this State. By reason of my professional connection with one of the principal institutions organized under it, on a cash capital, and the very first of that character which was organized in the State,* I have bestowed great attention on this Law, and feel an unwavering assurance, vastly increased by the argument of this cause, that it will confer unnumbered bless

*I allude to "The American Exchange Bank," established in the city of New York, the project of which was formed and presented to the public by the Board of Trade of that city.

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