ing the analogy of the law of corporations. Union Express Co., 50 Barb. 157.

In a later case, an action was brought by a shareholder in the same company against Fargo, its president, to recover for the loss of articles entrusted to it for transportation. The defense was that the owner of an interest in the company could not maintain such an action against it, which it was claimed was like an action by a partner against the partnership. The action was sustained by the court below. Westcott v. Fargo, President, 6 Lans. 319. Upon appeal, the opinion was delivered by Dwight, one of the commissioners of appeal. Upon a review of the statutes, he declared that the president or treasurer of one of these joint-stock companies or associations was to be regarded, for the purposes of an action against the company, substantially as a corporation sole; that such companies possessed some powers and privileges of corporations not possessed by individuals or partnerships, and that an action upon a liability of the company might be maintained by one of its members. Westcott v. Fargo, 61 N. Y. 542.

Later the United States Express Company, the very company whose officer is here sued, objected to the imposition of a tax upon its corporate franchises and business computable upon its capital stock, under an act taxing corporations, joint-stock companies and associations incorporated or organized under any law of the state. Its contention was that it was neither so incorporated nor organized. The right to impose the tax was sustained, Judge Danforth saying: "The agreement which brought many persons into one artificial body was so framed as to accomplish that end, and in proposing to conduct its affairs by the power given to it in the mode prescribed by the legislature, they must be deemed, for the purposes of the act in question, to be incorporated-that is, formed or united under the law of the state, whether the artificial body be termed a corporation, a joint-stock company or association." People, ex rel. Platt, v. Wemple, 117 N. Y. 136.

Questions have also arisen respecting the right to remove to the federal courts actions between the president or treasurer of such companies and other persons.

In New York, it was held, in a suit by Fargo as president of such a company organized in New York, that the company was to be considered like a corporation, a citizen of New York, and the action was removable to the United States court, if the other party was a citizen of another state. Fargo v. McVicker, 55 Barb. 437.

In the United States Circuit Court for the District of Michigan, Judge Brown (now justice of the supreme court) held that such a company formed in New York was to be deemed a citizen of New York without regard to the citizenship of its members. Maltz v. American Express Co., 1 Flip. 611.

In another case in the federal courts, the action was brought by Fargo as president of such a company against a citizen of a western state, and Judge Gresham held that such a company was a citizen of New York and could maintain an action in those courts, notwithstand

ing the fact that some of its shareholders were residents of the state in which the defendant resided. Fargo v. L., N. A. & C. Ry. Co.,

6 Fed. Rep. 787.1

In the case last cited and in some of the other cases, the conclusion reached has not been deemed invalidated by the fact that some of the New York statutes speak of such companies and associations as unincorporated.

In Liverpool Ins. Co. v. Massachusetts, 10 Wall. 566, the supreme court of the United States held that an English joint stock association, which was endowed with certain corporate powers, must be considered by our courts to be a corporation, notwithstanding the acts of parliament declared that such associations should not be held to be corporations.

[Test of Corporate Existence.]-Whether an aggregation of individuals united in an artificial body is a corporation or not is to be determined rather by the faculties and powers conferred upon the body than by the name or description given to it.

Upon this review, I have reached the conclusion that the United States Express Company is a corporate entity, empowered to sue and be sued, not, as is usual, in a corporate name, but in the name of designated officers. To such a corporation the act of 1890 does not apply, and this action was therefore properly brought against Wood as treasurer, whose status in the suit is not that of an individual but of a representative of the company.

This reason can not, therefore, prevail.

[Points of opinion relating to sufficiency of evidence are omitted.] The rule to show cause should be discharged.

NOTES TO ARTICLE I.

1. Definitions: For the authorities favoring one or the other of the definitions given above, see notes to Articles II, III and IV, infra, pp. 72, 109, 157. Definitions of corporations will be found in the following cases: 1804, Head v. Providence Ins. Co., 2 Cranch (U. S.) 127, on 167; 1809, Bank of United States v. Deveaux, 5 Cranch (U. S.) 61; 1819, Trustees Dartmouth Col. v. Woodward, 4 Wheaton 518, on 636, 667; 1839, Thomas v. Dakin, 22 Wendell (N. Y.) 9, 70, 104, supra, p. 19; 1840, Warner v. Beers, 23 Wendell (N. Y.) 103, 123, 124, supra, p. 2; 1841, People, ex rel. Bank of Watertown, v. Assessors, etc.. 1 Hill (N. Y.) 616, 620; 1844, Louisville C., etc., R. Co. v. Letson, 2 Howard (U. S.) 497, 552; 1860, The Ohio Ins. Co. v. Nunemacher, 15 Ind. 295; 1861, Ohio and Mississippi R. Co. v. Wheeler, 66 U. S. (1 Black) 286, 295; 1872, Railroad Commissioners v. P. & O. C. R. Co., 63 Maine 269, 277; 1872, Thompson v. Waters, 25 Mich. 214, 223; 1875, Board of Commrs. Tipp. Co. v. L. M. & B. R., 50 Ind. 85, 108; 1878, State v. M. L. S. & W. R. Co., 45 Wis. 579, 592; 1882, Balt. & P. R. Co. v. Fifth Baptist Church, 108 U. Š. 317, 330; 1890, United States v. Trinidad Coal & C. Co., 137 U. S. 160; 1898, Andrews Bros. v. Youngstown Coke Co., 86 Fed. R. 585.

2. The New York Bank Cases: The second resolution adopted by a vote of 22 to 3, in the case of Warner v. Beers, supra, p. 14, that the associations organized under the banking act of 1838, "are not bodies politic or corporate, within the spirit and meaning of the constitution," did not settle the law that 'These views have been substantially overruled in 1900, Great Southern Fire Proof Hotel Co. v. Jones, 177 U. S. 449.

such associations were not corporations for any purpose, but only that they were not so "within the spirit and meaning" of the constitution. See particularly 1841, People v. Assessors of Watertown, 1 Hill (N. Y.) 616, 618; 1845, De Bow v. People, 1 Denio (N. Y.) 9, 14; 1845, Gifford v. Livingston, 2 Denio (N. Y.) 380, 382; 1850, Gillet v. Moody, 3 N. Y. 485. The decisions, generally, after Warner v. Beers, treated these institutions for most purposes as corporations. The cases are: 1840, Parmly v. Tenth Ward Bank, 3 Edw. Ch. 395; 1840, Delafield v. Kinney, 24 Wend. 345; 1841, People v. Assessors of Watertown, 1 Hill 616; Bank of Watertown v. Assessors of Watertown, 25 Wend. 686; 1842, Willoughby v. Comstock, 3 Hill 389; 1842, People v. Supervisors of Niagara, 4 Hill 20; 1843, Leavitt v. Tylee, 1 Sandf. Ch. 207; 1844, Supervisors of Niagara v. People, 7 Hill 504; 1844, Boisegerard v. New York Banking Co., 2 Sandf. Ch. 23; 1844, Matter of Bank of Dansville, 6 Hill 370; 1845, Gifford v. Livingston, 2 Denio 380 (Court for Correction of Errors, overruling 1845, De Bow v. People, 1 Denio 9 (Supreme Court); 1843, Leavitt v. Yates, 4 Edw. Ch. 134; 1846, Sagory v. Dubois, 3 Sandf. Ch. 466, 485; 1848, Leavitt v. Blatchford, 5 Barb. 9; 1850, Cuyler v. Sanford, 8 Barb. 225; 1850, Gillet v. Moody, 3 N. Y. (Comst.) 479; 1851, Palmer v. Lawrence, 5 N. Y. (1 Seld.) 389; 1852, Talmage v. Pell, 7 N. Y. (3 Seld.) 328; Tracy v. Talmage, 18 Barb. 456; 1855, Gillet v. Phillips, 13 N. Y. (3 Kern.) 114; 1858, Leavitt V. Blatchford, 17 N. Y. 521; 1859, Codd v. Rathbone, 19 N. Y. 37.

3. The Michigan Discussion: Sec. 2, art. 12, of the constitution of Michigan, 1835, provided, "The legislature shall pass no act of incorporation, unless with the assent of at least two-thirds of each house." In 1837 (Sess. L. 1837, p. 76), an "Act to organize and regulate banking associations" was passed. The constitutionality of this act came before the United States circuit court for Michigan for adjudication in 1840, in the case of Falconer v. Campbell, 2 McLean C. C. (7th Circuit), 195; Federal Cases, 4620; 10 Myers' Fed. Dec., 18, infra p. 287; the question as to whether the act had received the required majority was argued, but it was held not properly raised by the demurrer. The court held the law constitutional; that the associations were corporations, and that an indefinite number might be created, or provided for, by one general act. In 1844, in the case of Green, receiver of bank of Niles v. Graves, 1 Douglass (Mich.) 351, the same points were argued before the supreme court of Michigan, and the law was held unconstitutional, because it attempted to create corporations, and an indefinite number of them at one time; this, it was held, could not be done, because the constitution meant to require a twothirds vote in the creation of each and every corporation. This holding has been followed since, in regard to the banking act of 1837, but not extended to other general corporation laws. See 2 Doug. (Mich.) 160, 195; 1 Mich. 119, 120, 121, 482, 512; 2 Mich. 287; 5 Mich. 259; 13 Mich. 151; 16 Mich. 258, and 45 Mich. 510. Also 1849, Nesmith v. Sheldon, 48 U. S. (7 How.) 812.

4. Later holdings: Many of the same points have been discussed in the New York courts as to the nature of their joint-stock associations, as were in the bank cases. People v. Coleman, 133 N. Y. 279, supra, p. 15, is the best case. Others are: 1867, Waterbury v. Merchants' Union Express Co., 50 Barb. (N. Y.) 157; 1869, Fargo v. McVicker, 55 Barb. 437; 1875, Westcott v. Fargo, 61 N. Y. 542; 1886, Van Aernam v. Bleistein, etc., 102 N. Y. 355, 16 American and Eng. Corp. Cas. 103; 1889, People, ex rel. Platt, v. Wemple, 117 N. Y. 136, 29 American and Eng. Corp. Cas. 610; 1892, McCabe v. Goodfellow, 133 N. Y. 89, 37 American and Eng. Corp. Cas. 73.

5. Note as to the fourth test above given: This is qualified in many of the states by the rule that the decisions of the courts of the state creating the institution in question, as to whether it is a corporation or not, will be deemed controlling. See 1871, Taft v. Ward, 106 Mass. 518; 1880, Railroad Co. v. Pearson, 128 Mass. 445; 1883, Gleason v. McKay, 134 Mass. 419, infra, p. 167; 1895, Gregg v. Sandford, 12 C. C. A. 525, 65 Fed. Rep. 151, 48 Am. and Eng. Corp. Cas. 292. In Liverpool Insurance Co. v. Massachusetts, 10 Wall. (U. S.) 566, the supreme court applied the rule given as the fourth test above, and held an

English insurance company to be a corporation, notwithstanding the act of parliament under which it was created expressly provided it should not be so considered. This holding, however, was not necessary to the decision of the case. But in 1889, Chapman v. Barney, 129 U. S. 677, the same court held it would follow the decisions or the statutes of the states in which the institution was organized as to its nature. For further upon this point, see note to Article V, infra, p. 175; 1900, Great Southern F. Hotel Co. v. Jones, 177 U. S. 449.

ARTICLE II. THE CORPORATION AS A PERSON.

Sec. 6. For most purposes a corporation is considered as a person having, as such, rights, duties and liabilities.

"For by incorporation it acquires jus personæ, and becomes persona politica, and is capable of all civil rights habendi et agendi.' Per Attorney-General, Quo Warranto, v. London, 3-8 as given in Comyn's Digest, Corporation, under Franchises (F) F. I. Also, 8 Howell's State Trials, p. 1039, on 1155.

(1) And particularly, having rights: (a) Under the common law.

TRUSTEES OF THE UNIVERSITY OF NORTH CAROLINA v. FOY AND BISHOP.'

1805. IN THE COURT OF CONFERENCE OF NORTH CAROLINA. Murphy (N. C.) Reports 58-92, 3 American Dec. 672.

I

LOCKE, J., delivered the opinion of the court. The legislature of North Carolina, in the year 1789, granted to the trustees of the university "all the property that has heretofore or shall hereafter escheat to the state." And by another act, passed in the year 1794, they also granted, "the confiscated property then unsold." By an act passed in the year 1800, they declared, "that from and after the passing of this act, all acts and clauses of acts, which have heretofore granted power to the trustees of the University, to seize and possess any escheated or confiscated property, real or personal, shall be and the same is hereby repealed and made void.

"And be it further enacted, That all escheated or confiscated property which the said trustees, their agents or attorneys, have not legally sold by virtue of the said laws, shall from hence revert to the state, and henceforth be considered as the property of the same, as though such laws had never been passed."

1 Statement of facts (except as given in opinion), arguments and dissenting opinion of HALL, J., omitted. Also parts of the opinion of the court by LOCKE, J.

3-WIL. CASES.

The trustees of the university, in pursuance of the powers vested in them by the act of 1789, have brought this suit to recover the possession of a tract of land escheated to the state before the passing of the repealing act in the year 1800. The defendants have pleaded this repealing act in bar, by which they allege the power of the trustees to support this action is entirely destroyed. It is therefore now to be considered how far the trustees have title under the act of 1789, and in the next place, how far they are divested of that title by the repealing act of 1800.

[After holding the act of 1789 passed the title to the trustees, and some remarks as to the general constitutional provisions, proceeds:]

Some light will be thrown upon this subject by examining the nature of corporations, how property can be taken from them, and how they can be dissolved. Corporations are formed for the advancement of religion, learning, commerce or other beneficial purposes. They are either aggregate or sole, and created by grant or by law. [Rights.] When they are once erected, they acquire many rights, powers, capacities and some incapacities, 1 Black. 475, as (1) to have perpetual succession; and therefore all aggregate corporations have necessarily the power of electing members in the room of those who die, to sue and be sued and to do all other acts as natural persons; (2) to purchase lands and to hold them for the benefit of themselves and successors; (4) to have a common seal; (5) to make by-laws for the better government of the corporation. These corporations can not commit crimes, although their members may in their individual capacity. The duties of those bodies consist in acting up to the design for which they were instituted. Let us next inquire how their corporate property can be taken from them and how they may be dissolved. A member may be disfranchised or lose his place by his own improper conduct, or he may resign. A corporation may be dissolved by act of parliament, which is boundless in its operation; by the natural death of all its members, in case of an aggregate corporation; by surrender of its franchises into the hands of the king, which is a kind of suicide; by forfeiture of its charter through negligence or abuse of its franchises, in which case the law judges the body politic to have broken the condition on which it was incorporated, and therefore the incorporation to be void; and the regular course is to bring an information in the nature of a quo warranto, to inquire by what authority the members now exercise their corporate power, having forfeited it by such and such proceedings. Black. 485; 3 Black. 263. None of these prerequisites have been done in the present case.

I

We are then led to inquire into the soundness of an argument greatly relied on by the defendant's counsel, that those who create can destroy. The legislature have not pretended to dissolve the corporation, but to deprive them of a part of the funds that were deemed to be vested in them, and to transfer those funds to the state. England the king's consent to the creation of any corporation is absolutely necessary, either given expressly by charter or by act of par

In