Fargo agt. McVicker.

Judge BLATCHFORD, New York Newspapers, April 7, 1869; Mathews agt. Lyal, 6 McLean, 13; Gordon agt. Longest, 16 Peters, 97; Kanouse agt. Martin, 15 How. (U. S.) 198.)

III. Beyond all question the appeal to the general term therefore cannot be sustained. The operative thing, the force of the statute which has removed the cause from the state court and positively forbidden its further action, is certainly not the subject of appeal. To permit eflectual appeal from conclusions merely, from certain conditions, so to speak, which are required to precede the operation of the law, effectual in itself, would be an anomaly in juris prudence.

It follows that the cause being in the circuit by operation of law must there proceed, or be thence remanded by the circuit itself.

Third-The decision of the special term of the supreme court was right. The action must, under the very terms of the acts of congress, be regarded as "commenced by a citizen of the state in which the suit is brought against a citizen of another state," to employ the language of the act of 1789; and the controversy must be regarded as pending between "a citizen of the state in which the suit is brought and a citizen of another state," in the language of the act of 1867.

I. Either Mr. Fargo, or the company of which he is president, must be regarded as the party plaintiff. If Mr. Fargo be the plaintiff, the decision of the special term, is of course right.

1. It cannot be claimed that the fact that other parties had stock in the company has anything to do with the question. It no where appears, that such parties had any interest, joint or in common, with Mr. Fargo. There is nothing to show that Mr. Fargo was a stockholder in the company, nor does the act, in pursuance of the provisions of which the suit was brought, require that he should be a stockholder; to be president of the company. It does not appear, therefore,

Fargo agt. McVicker.

that Mr. Fargo could have been joined with any other party as plaintiff in bringing the action.

2. Mr. Fargo, therefore, has brought the suit, if he be the plaintiff, in a representative capacity, not as a stockholder, and by virtue of the act which permits the "joint stock company or association," so to sue in the name of its president. The second section of the act designates him as "the nominal plaintiff" in the suit. (Sess. L., 1849, 389, 3 R. S., 5th ed., 777. And see especially, Wormwell agt. Haithlone, 6 Bing., 19 E. C. L., 301; Bartlett agt. Pent land, 1 Barn. and Ad. 702, 20 E. C. L., 757; Harrison agt. Timmins, 4 Mees. and Wels., 510.)

As such, he is the party to the record-the plaintiff in the action; and it has been most explicitly held that in such and kindred cases, the "party" is the party to the record, whether he sue in his own right or in representative capacity. (Bank U. S. agt. Planters' Bank, 9 Wheat., 904; The Governor agt. Madrazo, 1 Peters, 110; Gill agt. Stebbins, 2 Paine, C. C. R., 417; Chappedelaine agt. Decheneaux, 4 Cranch, 506; Childress agt. Emery, 8 Wheat., 642.)

The interest of other parties in the stock of the company, therefore, certainly has nothing to do with Mr. Fargo's character upon the record. He takes his character there utterly irrespective of the stockholder of the company, for a president of a joint stock company may have no community of interest with the stockholder.

If Mr. Fargo be the party plaintiff, of couse, therefore, and under express authority, the decision of the special term was right.

II. If the "joint stock company or association" be the plaintiff, the decision is equally plainly right.

1. As has been said with respect to the possible joinder of any stockholder with Mr. Fargo, it can have nothing to do with the question of who is the party to the action, for, as the president of such an association, need not be a stockholder, it does not follow that Mr. Fargo could have joined

Fargo agt. McVicker.

with any other person in bringing this suit in any form; so it may be said that the citizenship of the stockholders of the company has nothing to do with the question. The action is brought by Mr. Fargo, as plaintiff, in the interests of others, of course; or by the company or association in his name, irrespective of the stockholders as such.

2. The action is brought, in this respect, by the company in the name of its president. The company is a corporation, and the corporation must be regarded as a citizen of the state which gives it its corporate character. The company, unless Mr. Fargo be the plaintiff, is the plaintiff in the

action.

a. The action, in this view, is brought by the company, as appears by the very terms of the act itself.

The language of the first section of the act, in providing that the company may sue, &c., &c., determines that it is the company which brings the action. In the second and fourth sections, the company is also plainly regarded as the party. (Sess. L., 1849, 349.)

b. The company is the party, and is a corporation, and must be conclusively regarded as a citizen of the state from which it derives its corporate character.

If a corporation it must be so regarded. (Point third.) The company is a corporation.

This is apparent without elaborate discussion of the point, which, however interesting its investigation might be, will not be here even attempted.

By act of 1849, and by the subsequent acts of 1851, 1854, 1867, and 1868, (Sess. L. 1849, 389; Sess. L., 1851, 838; Sess. L., 1854, 558; Sess. L., 1867, 576; Sess. L., 1868, 599), such companies are given every attribute of corporations. They are expressly clothed with all corporate powers and privileges (except that their members are not exempt from individual liability for debts of the company, which exemption, however, was never a necessary concomitant of corporate existence; and besides, the partial and

Fargo agt. McVicker.

indeed complete liability of stockholders for debts of undoubted corporations of which they are members, exists in many instances) except the express power to adopt a common seal, which, however, such companies can adopt for themselves for that is a power incident to every corporation, (Angell and A. on Corp., 8th ed., §§ 110, 117,) or, if they be corporations, are given express legal power to adopt. (1 R. S., 599.)

1. They can sue and be sued in a name not necessarily the name of a member, and suit thus brought, may be continued in the name of the successor of the nominal party.

2. The property of the company may be represented by shares of stock, which stock may be increased or diminished.

3. The affairs of the company may be managed by a board of directors.

4. The death of a member works no change in the company.

5. Such associations have a legal entity, capable of perpetual existence, of that succession which is called the immortality of corporations, and is the essence of corporate being.

6. They can contract in a name in significance and legal effect a corporate name. (Anonymous, 1 Salkeld, 191; Smith agt. The Plank Road Co., 30 Ala., 650; Angell and A. on Corp., $$ 99, 100.)

7. They can take and hold real estate and other property in perpetuity.

The act of 1867, could only have been intended to apply to corporations. It limits the power of such associations. to hold real estate. It provides that they shall hold no more than is necessary for their business. The limitation has for its object the very object of the old statutes of mortmain, to prevent powerful corporations from absorbing and holding land in perpetuity. Certainly no such limita

Fargo agt. McVicker.

tion could be intended for mere partnerships. (Sess. L., 1867, 576.)

Nor does any act forbid their being corporations. The act of 1849, provides that nothing therein contained shall be construed to confer on the companies any of the rights or privileges of corporations, except as therein specifically provided; and the act of 1854, declares that no court shall so construe that act, as to give such associations any rights and privileges of corporations. These acts, and the others referred to, however, give all the rights, privileges and attributes of corporations to the associations, denying the common (but far from universal) privilege of exemption from individual liability to the members. Thus created, thus given right, privilege and power, it is apparent (especially as the legislature has constitutional power to create corporations by general law) that these associations must be regarded as corporations.

In pure logical precision, nothing can be known of anything except through its attributes. These associations have all the attributes of corporations. In strict consequence, therefore, it cannot be said they are not corporations.

Such companies come within every definition of what costitutes a corporation. They have been expressly decided to be corporations in well reasoned opinions. (1 Blackstone's Com., 472, 485 American Notes; Angell and A. on Corp., $110; Sanford agt. Supervisors, 15 How., 172; Waterbury agt. The Am. N. E. Co., 50 Barb., 157; and see the line of decisions respecting the character of banking associations from The People agt. The Bank of Watertown, 1 Hill, 616; to Robinson agt. The Bank of Attica, 21 N. Y., 406.) Such associations are made corporations by the constitution of the state. (Constitution, art. 8 §§ 1, 3.)

If the company be a corporation it must be conclusively regarded as a citizen of the state which has given it its corporate character, and of course the decision of the special term was right.