Sec. 1. Definitions.' A PERSON: "A corporation is an artifi- 1819. Chief Justice Marshall, in Trustees of Dartmouth College A COLLECTION OF INDIVIDUALS: "The word 'corporation' 1886. Victor Morawetz, Law of Private Corporations, 2d ed., § 1, A FRANCHISE: "A corporation is a franchise created by the c. 1745. Comyn's Digest, Franchise (F) F. 1. Angell & A. Corp., §§ 1-65; Beach, § 1; 1 Bl. Com., *467; Boone, ch. 1; Clark, ch. 1; Cook, ch. 1; Elliott, §§ 1-20; Field, ch. 1; Grant, p. *1-*9; 2 Kent Com., p. *267; 1 Kyd Corp., Int.; Taylor, ch. 1-5; 1 Thomp., ch. 1. Sec. 2. Tests. As to whether a particular institution is a corporation or not the tests are: (1) "The merging of the individuals composing the aggregate body into one distinct, artificial existence." BD TIBBYBA WARNER AND RAY v. BEERS.' BOLANDER v. STEVENS. 1840. IN THE COURT FOR THE CORRECTION OF ERRORS. 23 Wendell (N. Y.) Reports, pp. 103-190. [In the first above entitled cause, the declaration commenced in the name of "Joseph D. Beers," described as "President of the North American Trust and Banking Company, an association doing business in the city of New York, under and by virtue of an act of the legislature of the state of New York, entitled 'an act to authorize the business of banking,' passed April 18th, 1838, who prosecutes for and on behalf of the said association;" and then was set forth in the usual form a count on a promissory note by the third endorsee against Warner and Ray, as endorsers. The declaration also contained the common money counts, and the insimul computassent, alleging the debts to have arisen, and the promises to have been made to "the said association," and concluded with the words "to the damage of the said association of five hundred dollars; and therefore the said plaintiff, as president as aforesaid, brings suit," etc. The declaration in the second suit was like the preceding, except that it contained only the common money counts, and the count on the insimul computassent. To these declarations, demurrers were put in by the defendants respectively. In the first suit, the following cause, among others, of demurrer was assigned, viz.: V. The institutions or associations authorized and intended to be created by the act entitled "An act to authorize the business of banking" are corporations or bodies politic, and the act expressly allows the creation of an indefinite and unlimited number of such corporations, at the pleasure of any persons who may associate for that purpose. The act is, therefore, a violation of the ninth section of the seventh article of the constitution of this state, and is absolutely void. The defendant in the second cause also interposed a demurrer assigning special causes similar to the special causes in the first count; the fourth special cause being in these words: "For that the act in the declaration mentioned, entitled 'An act to authorize the busi 1 Statement of facts partly omitted. Arguments omitted. Opinions by Bradish, president of the senate, Walworth, chancellor, and Root, senator, omitted; also, part of the opinion of Senator Verplanck. A brief analysis of each of the opinions given in this case is given in a note by the reporter on pp. 103-105. ness of banking,' so far as the same proposes to authorize this suit, is a violation of the provisions of the constitution of this state respecting the creations of incorporations, and is void; and also that the said act is void, because the same did not receive the assent of two-thirds of all the members elected to the legislature of this state, by which legislature the said act purports to have been passed." The two demurrers were brought to argument before the supreme court, at the January term, 1840, and judgment given in both cases for the plaintiffs. The court referred, for the reasons of the judgment, to the opinions delivered by Chief Justice Nelson, Mr. Justice Bronson and Mr. Justice Cowen, in the case of Thomas v. Dakin, 22 Wendell 9 et seq. Both causes were removed by writs of error to the court for the correction of errors, and were brought on to argument on the 18th February, 1840.] By SENATOR VERPLANCK. The decision of these causes seems to me to depend wholly upon that of the question, whether or no associations with constitutions, powers and incidents, similar to those authorized under the general banking law, are bodies corporate and politic; or, in other words, whether the general banking law of 1838 is void, because it was not passed with the express assent of two-thirds of all the members of the legislature. The supreme court think that they "must, on these records, presume the general banking law to have been passed by two-thirds of all the members of the legislature." Judge Cowen adds: "We must clearly do so until the fact is denied by plea. The requisite constitutional solemnities must always be presumed to have taken place until the contrary shall be clearly shown. Should the defendant withdraw his demurrer, and plead specially that the law in question did not receive the assent of two-thirds as required by the constitution, it will then be in order to pass upon the validity of such an objection." Judge Bronson concurs more briefly to the same effect. Now, it appears to me that this point was rightly presented on the demurrers in these cases, so as to authorize and demand the decision of the court. From our official knowledge of the facts of the law-from those facts being spread out on our journals-from the actual inspection of the record by some of us, we all well know that the act was not passed by the vote of two-thirds of each house of the legislature. We must then meet directly, and settle the question whether the associations formed under the general banking laws are, or are not, "bodies politic and corporate."} [Definition-Artificial personality.]-What, then, is the strict definition of the phrase bodies politic and corporate? Definitions differ in their character according to the nature of the thing to be defined. See infra, p. 373. Infra, p. 19. $ For statement of provisions of the general banking law of 1838, see Thomas v. Dakin, infra, p. 21. Strict and essential definitions can generally be given of the terms of positive jurisprudence, and particularly so in the extremely technical and artificial system of the ancient English law. This is remarkably the case, for instance, in regard to our common law terms of real estate, as fee, lease, warranty, grant, covenant, reversion, remainder, etc.; all of which are defined precisely and essentially, not explained by mere attributes. Bodies corporate belong to that system, and thence do we immediately derive them. What, then, is a body corporate? What is its necessary and essential meaning? "It is called a body corporate," says Lord Coke, "because the persons composing it are made into one body." "It is only in abstracto, and rests only in contemplation of law." 10 R. 50. So again, he says, 1 Inst. 202, 250, "Persons capable of purchasing are of two sorts-persons natural created of God, and persons created by the policy of man, as persons incorporated into a body politic." If, leaving the quaint scholastic teaching of the father of English law, we come to the clearer and directer sense of our own Marshall, we find the same prevailing idea. "A body corporate is an artificial being, invisible, intangible, existing only in contemplation of law. Being the creature of law, it possesses only the properties conferred upon it by its charter. Among the most important of these are immortality, and, if the expression may be allowed, individuality." 4 Wh. R. 636; 1 Peters' R. 46. Again; "It is precisely what the act of incorporation makes it; derives all its powers from that act, and is capable of exerting its faculties only in the manner which that act authorizes." "Within the limits of the properties conferred by its charter, it can," says Blackstone, "do all acts as natural persons may." "In corporations," says Prof. Woodeson, "individuals are invested by the law with a political character and personality, wholly distinct from their natural capacity." "A corporation," says Kyd on Corporations, 13, "is not a mere capacity, but a political person in which many capacities reside." Thus, then, the essential legal definition that covers the whole ground, and expresses the very essence of the being of a body corporate, is this: "It is an artificial legal person, a succession of individuals, or an aggregate body considered by the law as a single continuous person, limited to one peculiar mode of action, and having the power only of the kind and degree prescribed by the law which confers them." Such is the established notion of our common law. Such, too, as far as I can trace it, is the doctrine of the modern civil law, as modified by the jurisprudence of the European continent. "Communities that are lawfully established (i. e., corporations)," says Domat, one of the great teachers of the ante-revolutionary French civil law, "are in the place of persons, and their union, which renders common all their interest, makes them to be considered as one single person." Domat, Civil Law, Lib. 1, tit. 15. To the same effect a somewhat older Italian civilian speaks, Oldradus De Ponte, as quoted by Sir Robert Sawyer, in his very able and learned argument in the case of the city of London, 8 St. Tr. 1175. "Licet non habent veram personam, habent personam fictione juris." So the older |