66. Every power which a corporation exercises in another state, depends for its validity upon the laws of the sovereignty in which it is exercised; and a corporation can make no valid contract without the sanction, express or implied, of such sovereignty; unless a case should be presented in which the right claimed by the corporation should appear to be secured by the constitution of the United States. Ibid.

67. A corporation can exercise no powers but those which are specially given to it. Lessee of Knowles v. Beatty, 1 M'Lean, 43.

77. And the said company, having first made a dividend of ten per cent., and, before payment thereof, laid an assessment of ten per cent., payable on the same day; it was held, that the corporation were not entitled to take the dividend of any stockholder, without an order from him, in payment of any debt due from him to the corporation, or as a set-off to the assessment, or as a charge upon any shares which might afterwards be sold. Ibid.

78. Where, during the pendency of a suit, a corporation surrenders its charter, which is accepted by the legislature, it becomes defunct, and the suit abates, unless the legislature, by some act, saves the right of action against the corporation. Greeley v. Smith, 3 Story's C. C. R.

657.

69. The necessary expenses are those incurred by the corporation in the exercise of its granted powers. Ibid.

70. The constitution of Michigan does not prohibit the legislature from creating more than one bank corporation in the same act. Falconer v. Campbell, 2 M'Lean, 195.

71. The number of banks, under the constitution, is a question of policy and not of principle. Ibid.

72. To create, in the same act, more than one corporation, is common. Ibid.

73. Under the act of 15th of March, 1837, the directors and stockholders are a corporation, and not merely a joint-stock association. Ibid.

74. The statute of Massachusetts of 1821, ch. 28, relating to the individual liabilities of the members of manufacturing corporations, is to be construed as a remedial statute, and the phrase "debts contracted," as employed therein, means not only debts in the strict sense of the term, but any liabilities incurred by the corporation. If the liability be for unliquidated damages arising from contract or tort, it relates to the time of its origin, and not of its liquidation; and, therefore, it was held, that the testimony of Edson, who was a member of the corporation at the time when the liability asserted in the present suit arose, must be rejected, although he had since sold out all his interest. Carver v. Braintree Manufacturing Co., 2 Story's C. C. R.

433.

75. Under the act of 1809, the power to lay assessments is vested exclusively in the corporation, and cannot be delegated to the directors. Ex parle Henry Winsor, 3 Story's C. C. R. 411. 76. Where the powers and privileges of the Norfolk Manufacturing Company were, by its charter, made subject to the provisions of the act of 1809, and a by-law was passed, authorizing the directors "to take care of the interests, and manage the concerns of the corporation ;" it was held, that the corporation had no power to 38*

80. A corporation established by the law of a state, may institute a suit in another state, on a contract made in the state in which the corporation was created. (The case of the Bank of Augusta v. Earle, 13 Peters, 519, cited, and the decision re-affirmed.) The Tombigbee Railroad Co. v. Kneeland, 4 Howard, 16.

3. Jurisdiction of the Courts of the United States in Suits against Corporations.

81. A corporation aggregate cannot be a citizen, and cannot litigate in the courts of the United States, unless in consequence of the character of the individuals who compose the body politic, which character must appear, by proper averments, on the record. It is not sufficient to describe such corporation as "a company legally incorporated by the legislature of and established at

in said district. The Hope Ins. Co. of Providence v. Boardman et al.,ˆá Cranch, 57; 2 Cond. Rep. 189.

82. The circuit courts of the United States have jurisdiction of suits, brought by the Bank of the United States against a bank inco.porated by a statute of a state, and of which the state is itself a stockholder, together with private individuals, who are citizens of the same state, with some of the stockholders of the Bank of the United States. Bank of the United States v. Planters' Bank of Georgia, 9 Wheat. 904; 5 Cond. Rep. 794.

83. When a government becomes a partner in any trading company, it divests itself, so far as concerns the transactions of that company, of its sovereign character, and takes that of a private citizen. Instead of communicating to it its privileges and its prerogatives, it descends to a level with those with whom it associates itself, and takes the character which belongs to its associates, and to the business which is to be transacted. Thus many states who have an in

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terest in banks, are not suable in their own courts, yet they never exempt the corporation from being sued. Ibid.

84. The Bank of the United States may sue in the circuit courts, as endorsee or bearer of a promissory note, although the original payee or endorser could not sue in those courts, being a citizen of the same state with the defendant. Such a case is not within the eleventh section of the judiciary act of September 24th, 1789, ch. 20, which was merely a limitation on the jurisdiction conferred by that act. Ibid.

85. Jurisdiction is neither given nor ousted by the relative situation of the parties concerned in interest, but by the relative situation of the parties named on the record; consequently, the eleventh amendment to the constitution, which restrains the jurisdiction of the federal courts over suits against states, is limited to those suits in which a state is a party on the record. Ibid. 86. The circuit courts of the United States have jurisdiction of a bill in equity, filed by the Bank of the United States, for the purposes of protecting the bank in the exercise of its franchises, which are threatened with invasion and destruction under an unconstitutional state law: and as the state itself cannot be made a defendant, it may be maintained against the officers and agents of the state who are appointed to execute such laws. Ibid.

87. The act to incorporate the subscribers to the Bank of the United States, of April 10th, 1816, ch. 44, gives to the circuit court of the United States jurisdiction of all suits brought by or against the bank. Osborn et al. v. Bank of the United States, 9 Wheat. 738; 5 Cond. Rep. 747.

88. A corporation aggregate, composed of citizens of one state, may sue a citizen of another state in the circuit court of the United States. Bank of the United States v. Deveaux et al., 5 Cranch, 61; 2 Cond. Rep. 189.

89. A, a citizen of New Hampshire, sued a corporation, established by a statute in Connecticut, in the circuit court of New Hampshire; the corporation having entered a general appearance, it was held, that the objection to the service, under the eleventh section of the judiciary act of 1789, ch. 20, was waived. Flanders v. Etna Ins. Co., 3 Mason's C. C. R. 158.

90. A bill in equity was filed by A, a citizen of New Jersey, against B, and the Lehigh Coal and Navigation Co., an incorporated body. A plea to the jurisdiction stated, "that four of the corporators, naming them, were citizens of New Jersey." The plea was sustained; the corporators being the real defendants, by their corporate name, and represented by their officers. Kirkpatrick et al. v. White et al., 4 Wash. C. C. R.

595.

of the United States, at Richmond, and, after it arrived at maturity, was regularly protested for non-payment; an action on the case being brought by the bank against the endorser, to recover the amount of the note, more than five years from the date of the protest, the defendant pleaded the act of limitations. Held, that the right of action is barred by lapse of time, the plaintiffs not being, in the sense of the saving act, "beyond the seas or out of the country.' The contract having been made at Richmond, at their banking-house there, between the president and directors of the branch bank and the defendant, the fact of there being an office of discount and deposite of the Bank of the United States at Richmond, and of the residence of the president and directors of the branch being fixed there, must be considered, with reference to this contract, as fixing the residence of the corporation itself in Richmond, and not in Philadelphia, so far as the saving of the act applies to the locality of the plaintiff. Ibid.

9

d

93. Where a corporation is sued in the circuit court, it is prima facie evidence to suppo averment of citizenship, that it is incorpo by a law of the state in which the action is brought, and transacts its business within it. Catlet v. The Pacific Ins. Co., Paine's C. C. R. 594.

94. If a corporation established in a foreign country, sue in the courts of the United States, and war intervene, pending the suit, this is not sufficient to defeat the action, unless it appear on the record that the plaintiffs are not within any of the exceptions which enable an alien enemy to sue. Society for the Propagation of the Gospel, &c. v. Wheeler, 2 Gallis. C. C. R. 105.

95. There is no legal difference as to the plea of an alien enemy, between a corporation and an individual. Ibid.

4. Corporations for Charitable and Religious Uses.

96. A corporation for religious and charitable purposes, which is endowed solely by private beuefactions, is a private elemosynary corpora tion, although it is created by a charter from the government. Society v. New Haven, 8 Wheat. 464 5 Cond. Rep. 489.

97. The capacity of private individuals (British subjects), or of corporations, created by the crown for religious or charitable purposes, in the United States, or in Great Britain, to hold lands or other property in this country, was not affected by the revolution. Ibid.

92. A note was discounted at the Branch Bank

99. The property of British corporations in the United States, is protected by the sixtn article of the treaty of peace of 1783, in the same manner as those of natural persons; and their title,

100. The termination of a treaty, by war, does not divest rights of property already vested under it. Ibid.

101. Nor do treaties, in general, become extinguished, ipso facto, by war between the two governments. Those stipulating for a permanent arrangement of territorial, and other national rights, are, at most, suspended during the war, and revive at the peace, unless they are waived by the parties, or new and repugnant stipulations are made. Ibid.

102. A private corporation created by the legislature, may lose its franchises by a misuser or nonuser of them; and they may be resumed by the government under a judicial judgment, upon a quo warranto, to ascertain and enforce the forfeiture. This is the common law of the land; and is a tacit condition annexed to the creation of every such corporation. Terret et al. v. Taylor et al., 9 Cranch, 43; 3 Cond. Rep. 254. 103. The grant of a corporation creates obligatious binding both on the grantor and grantees. On the part of the former, it amounts to an extinguishment of the right to bestow the same identical franchise on another corporate body, or to impair the right granted. There is also an implied contract that the founder of a private charity or his heirs, or persons appointed by him for that purpose, shall have the right to visit and to govern the corporation; and in case of its dissolution, the reversionary right of the founder to the property with which he had endowed it, should be preserved inviolate. Trustees of Dartmouth College v. Woodward, 4 Wheat. 518; 4 Cond. Rep. 526.

104. The rights acquired by the persons thus incorporated, are those of having perpetual succession, of suing and being sued, of purchasing lands for the benefit of themselves and their successors, of having a common seal, and of making by-laws. Ibid.

105. There are two kinds of corporations aggregate, such as are for public government, and such as are for private charity. Public corporations are those for the government of a town, city, or the like, and are governed by the law of the land; they have no particular founder, and consequently no particular visiter. They are founded by the government for public purposes, and the whole interest belongs to the government. Private and particular corporations for charity, are subject to the private government of those who create them, and are to be visited by them or their heirs, or such other persons as they may appoint. The only rules for their government are the laws and constitutions assigned by the founder. Ibid.

106. A college, as well as an hospital, are both private and eleemosynary corporations. Ibid.

creature of private benefaction, for a charity or private purposes: it is endowed and founded by private persons, and subject to their control, laws, and visitation. With such a corporation it is not competent for the legislature to interfere. Ibid.

108. Eleemosynary corporations are such as are constituted for the perpetual distribution of the free alms and bounty of the founder, in such manner as he has directed; and in this class are ranked hospitals and colleges. To all eleemosynary corporations, a visitorial power attaches as a necessary incident. The law has provided that there shall somewhere exist a power to visit, inquire into, and correct all irregularities and abuses in such corporations; and to compel the original purposes of the charity to be faithfully fulfilled. Ibid.

109. Of common right, by the gift, the founder and his heirs are the legal visiters, unless the founder has assigned another person to be visiter: for the founder may, if he please, at the time of the endowment, part with his visitorial power; and the person to whom it is assigned, will, in that case, possess it in exclusion of the founder's heirs. This visitorial power is, therefore, an hereditament, founded in property, and valuable in intendment of law; and stands upon the maxim, that he who gives his property, has a right to regulate it in future. Ibid.

110. It includes all the legal right of patronage, for patronage and visitation are necessary consequents upon one another. No technical terms are necessary to assign or vest the visitorial power: it is sufficient, if, from the nature of the duties to be performed by particular persons under the charter, it can be inferred that the founder meant to part with it in their favour. He may divide it among various persons, or subject it to any modifications or control, by the fundamental statutes of the corporation. But where the appointment is given in general terms, the whole power vests in the appointee. Ibid.

111. In the construction of charters, it is a general rule, that if the objects of the charity are incorporated; as for instance, the masters and fellows of a college, or the master and poor of an hospital; the visitorial power, in the absence of any special appointment, silently vests in the founder and his heirs. But where trustees or governors are incorporated to manage the charity, the visitorial power is deemed to belong to them in their corporate character. Ibid.

112. Where a private eleemosynary corporation is created by the charter of the crown, it is subject to no other control, on the part of the crown, than what is expressly or impliedly reserved by the charter. Ibid.