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1824.

Osborn

V.
U. S. Bank.

which is well understood to be, and which this Court, in the case of Deveaux, has recognised to be, little more than the mere common place or formula of such an act. The name of a corporation is the symbol of its personal existence; a misnomer there is fatal to a suit, (and still more fatal as to other transactions.) By the incorporating clause, a name is given it, and, with that name, a place among created beings; then usually follows an enumeration of the ordinary acts in which it may personate a natural man; and among those acts, the right to sue and be sued, of which the Court, in Deveaux's casc, very correctly remarks, that it is “a power which it not incident to a corporation, is conferred by every incorporating act, and is not understood to enlarge the jurisdiction of any particular Court, but to give a capacity to the corporation to appear as a corporation in any Court which would by law have cognizance of the cause if brought by individuals." With this qualification, the clause in question will be construed, as an enumeration of incidents, instead of a string of enactments; and such a construction is strongly countenanced by the concluding sentence of the section ; for, after running through the whole routine of powers, most of which are unquestionably incidental, and needed no enactment to vest them, it concludes thus: “and generally to do and execute all and singular the acts, matters, and things, which to them it shall and may appertain to do." And, in going over the act, it will be found, that whenever it is contemplated to vest a power not incidental, it is done by a specific provision, made

1824. the subject of a distinct clause; such is that power

to transact the business of the loan-office of the Osboro

United States. And, indeed, there is one section U.S. Bank.

of the act, which strikingly exhibits the light in which the law-makers considered the incorporating clause. I mean the tenth; which, notwithstanding that the same clause in the seventh section, which is supposed to confer this sweeping power to sue, confers also, in terms equally comprehensive, the power to make laws for the institution, and "to do and execute all and singular the matters and things, which to them it shall and may appertain to do,” contains an enactment in the following words: “that they shall have power to appoint such officers, clerks, and servants, under them, for executing the business of the corporation, and to allow them such compensation for their services respectively, as shall be reasonable; and shall be capable of exercising such other powers and authorities for the well governing and ordering the officers of the said corporation, as shall be prescribed by the laws, regulations, and ordinances, of the same;" a section which would have been altogether unnecessary, had the seventh section been considered as enacting, instead of enumerating and limiting, I consider the incorporating clause, then, not as purporting the absolute investment of any power, but as the usual and formal declaration of the extent to which this artificial should personate the natural person, in the transactions incident to ordinary life, or to the peculiar objects of its creation ; and, therefore, not vesting the right to sue in the Courts of the United

1824.

Osborn

V.8. Bank.

States, but only the right of personating the natural man in the Courts of the United States, as it might, upon general principles, in any other Courts of competent jurisdiction. And this, I say, is consonant to the decision in Deveaux's case, and sustained by abundant evidence on the face of the act itself. Indeed, any other view of the effect of the section, converts some of its provisions into absolute nonsense.

It has been argued, and I have no objection to admit, that the phraseology of this act has been varied from that incorporating the former Bank, with a view to meet the decision in Deveaux's case. But it is perfectly obvious, that in the prosecution of that design, the purport of Deveaux's case has been misapprehended. The Court there decide, that the jurisdiction of the United States depended, (1.) on the character of the cause, (2.) on the character of the parties; that the Judiciary Act confined the jurisdiction of the Circuit Courts to the second class of cases, and the incorporating act contained no words that purported to carry it further. Whether the legislative power of the United States could extend it as far as is here insisted on, or what words yould be adequate to that purpose, the case neither called on the Court to decide, nor bas it proposed to decide. If any thing is to be inferred from that decision on those points, it is unfavourable to the sufficiency of the words inserted in the present act. For, the argument of the Court intimates, that where the Legislature propose to give jurisdiction to the Courts of the United States, they do

Osborn

V. S. Bank.

1824. it by a separate provision, as in the case of the

action of debt for exceeding the sum authorized to be loaned. And on the words of the incorporating section, it makes this remark, “ that it is not understood to enlarge the jurisdiction of any particular Court, but to give a capacity to the corporation to appear as a corporation in any Court, which would by law have cognizance of the cause if brought by individuals. If jurisdiction is given by this clause to the federal Courts, it is equally given to all Courts having original jurisdictior. and for all sums, however small they be.” Now, the difference of phrascology between the former act and the present, in the clause in question, is this : the former has these words, “may sue and be sued, &c. in Courts of record or any other placc whatsoever;" the present act has substituted thesc words, “in all State Courts having competent jurisdiction, and in any Circuit Court of the United States." Now, the defect here could not have been the want of adequate words, had the intent appeared to have been, to enlarge the jurisdiction of any particular Court. For, if the Circuit Courts were Courts of record, the right of suit given was as full as any other words could have made it. But, as the Court in its own words assigns the ground of its decision, the clausc could not have been intended to enlarge the jurisdiction of the State Courts, and therefore could not have been intended to enbirge that of the federal Courts, much less to hcve extended it to the smallest sum possible. Therefore it concludes, that the clause is one of mere enumeration, cou

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taining, as it expresses it, “ the powers which, if 1824. not incident to a corporation, are conferred by

Osborn every incorporating act, and are not understood to

U.S. Bank. enlarge," &c. If, then, this variation had in view the object which is attributed to it, the words intended to answer that object have been inserted so unhappily as to neutralize its influence; but, I think it much more consistent with the respect due to the draftsman, who was known to have been an able lawyer, to believe that, with such an object in view, he would have pursued a much more plain and obvious course, and given it a distinct and unequivocal scction to itself, or at least have worded it with morc marked attention. This opinion is further supported, by considering the absurdities that a contrary opinion would lead to.

A literal translation of the words in question is impossible. Nothing but inconsistencies present themselves, it' we attempt to apply it without a reference to the laws and constitution of the United States, forming together the judicial system of the Union. The words are, “ may sue and be sued, &c., in any State Court having competent jurisdiction, and in any Circuit Court of the United States." But why should one member of the passage be entitled to an enacting effect, and not the residue ? Yet, who will impute to the Legislature or the draftsman, and intention to vest u jurisdiction by these words in a State Court? I do not speak of the positive effect; since the failure of one enactment, because of a want either of power to give or capacity to receive, will not con

Voz. IX

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