Bank of the United States v. Deveaux. 5 C.

decisions are not cited as authority; for they were made without considering this particular point; but they have much weight, as they show that this point neither occurred to the bar or the bench; and that the common understanding of intelligent men is in favor of the right of incorporated aliens, or citizens of a different State from the defendant, to sue in the national courts. It is by a course of acute, metaphysical and abstruse reasoning, which has been most ably employed on this occasion, that this opinion is shaken.

As our ideas of a corporation, its privileges and its disabilities, are derived entirely from the English books, we resort to them for aid, in ascertaining its character. It is defined as a mere creature of the law, invisible, intangible, and incorporeal. Yet, when we examine the subject further, we find that corporations have been included within terms of description appropriated to real persons.

The statute of Henry VIII., concerning bridges and highways, enacts, that bridges and highways shall be made and repaired by the "inhabitants of the city, shire, or riding," and that the justices shall have power to tax every "inhabitant of such city," &c., and that the collectors may "distrain every such inhabitant as shall be taxed and refuse payment thereof, in his lands, goods and chattels."

Under this statute those have been construed inhabitants

who hold lands within the city where the bridge to be re- [89] paired lies, although they reside elsewhere.

Lord Coke says, "every corporation and body politic residing in any county, riding, city, or town corporate, or having lands or tenements in any shire, quæ propriis manibus et sumptibus possident et habent, are said to be inhabitants there, within the purview of this statute."

The tax is not imposed on the person, whether he be a member of the corporation or not, who may happen to reside on the lands; but is imposed on the corporation itself, and, consequently, this ideal existence is considered as an inhabitant, when the general spirit and purpose of the law requires it.

In the case of The King v. Gardner, reported by Cowper, 79, a corporation was decided, by the court of king's bench, to come within the description of "occupiers or inhabitants." In that case the poor rates, to which the lands of the corporation were declared to be liable, were not assessed to the actual occupant, for there was none, but to the corporation. And the principle established by the case appears to be, that the poor rates, on vacant ground belonging to a corporation, may be assessed to the corporation, as being inhabitants or occupiers of that ground. In this case Lord Mansfield notices and overrules an inconsiderate dictum of Justice Yates, that a corporation could not be an inhabitant or occupier.

Bank of the United States v. Deveaux. 5 C.

These opinions are not precisely in point; but they serve to show that, for the general purposes and objects of a law, this invisible, incorporeal creature of the law may be considered as having corporeal qualities.

It is true that as far as these cases go they serve to show that the corporation itself, in its incorporeal character, may be considered as an inhabitant or an occupier; and the argument from them would

be more strong in favor of considering the corporation [ *90 ] *itself as endowed for this special purpose with the character of a citizen, than to consider the character of the individuals who compose it as a subject which the court can inspect, when they use the name of the corporation, for the purpose of asserting their corporate rights. Still the cases show that this technical definition of a corporation does not uniformly circumscribe its capacities, but that courts, for legitimate purposes will contemplate it more substantially.

There is a case, however, reported in 12 Mod. 669, which is thought precisely in point. The corporation of London brought a suit against Wood, by their corporate name, in the mayor's court. The suit was brought by the mayor and commonalty, and was tried before the mayor and aldermen. The judgment rendered in this cause was brought before the court of king's bench and reversed, because the court was deprived of its jurisdiction by the character of the individuals who were members of the corporation.

In that case the objection, that a corporation was an invisible, intangible thing, a mere incorporeal legal entity, in which the characters of the individuals who composed it were completely merged, was urged and was considered. The judges unanimously declared that they could look beyond the corporate name, and notice the character of the individual. In the opinions, which were delivered seriatim, several cases are put which serve to illustrate the principle, and fortify the decision.

The case of The Mayor and Commonalty v. Wood, is the stronger because it is on the point of jurisdiction. It appears to the court to be a full authority for the case now under consideration. It seems not possible to distinguish them from each other.

If, then, the congress of the United States had, in terms [ *91 ] enacted that incorporated aliens might sue *a citizen, or that the incorporated citizens of one State might sue a citizen of another State, in the federal courts, by its corporate name, this court would not have felt itself justified in declaring that such a law transcended the constitution.

The controversy is substantially between aliens, suing by a corpo

Bank of the United States v. Deveaux. 5 C.

rate name, and a citizen, or between citizens of one State, suing by a corporate name, and those of another State. When these are said to be substantially the parties to the controversy, the court does not mean to liken it to the case of a trustee. A trustee is a real person capable of being a citizen or an alien, who has the whole legal estate in himself. At law, he is the real proprietor, and he represents himself, and sues in his own right. But in this case the corporate name represents persons who are members of the corporation.

If the constitution would authorize congress to give the courts of the Union jurisdiction in this case, in consequence of the character of the members of the corporation, then the Judicial Act ought to be construed to give it. For the term citizen ought to be understood as it is used in the constitution, and as it is used in other laws. That is, to describe the real persons who come into court, in this case, under their corporate name.

That corporations composed of citizens are considered by the legislature as citizens, under certain circumstances, is to be strongly inferred from the Registering Act. It never could be intended that an American registered vessel, abandoned to an insurance company composed of citizens, should lose her character as an American vessel; and yet this would be the consequence of declaring that the members of the corporation were, to every intent and purpose, out of view, and merged in the corporation.

The court feels itself authorized by the case in 12 Mod.,

(on a question of jurisdiction,) to look to the character of [92] the individuals who compose the corporation, and they think that the precedents of this court, though they were not decisions on argument, ought not to be absolutely disregarded.

If a corporation may sue in the courts of the Union, the court is of opinion that the averment in this case is sufficient.

Being authorized to sue in their corporate name, they could make the averment, and it must apply to the plaintiffs as individuals, because it could not be true as applied to the corporation.

Judgment reversed; plea in abatement overruled, and cause remanded.

LIVINGSTON, J., having an interest in the question, gave no opinion. 5 C. 57; 8 W. 464; 9 W. 738, 904; 5 P. 479; 13 P. 519; 14 P. 60; 2 H. 497; 14 H. 80; 15 H. 233; 16 H. 314; 18 H. 331, 480.

Matthews v. Zane's Lessee. 5 C.

HOPE INSURANCE COMPANY OF PROVIDENCE v. BOARDMAN et al.

5 C. 57.

Whether a corporation aggregate can be sued in the courts of the United States depends upon the citizenship of its members.

ERROR to the circuit court of the United States for the district of Rhode Island. The record described the plaintiffs below as citizens of the State of Massachusetts, and the defendants as a corporation created by the legislature of Rhode Island.

Ingersoll, for the plaintiffs.

Adams, for the defendants.

[ * 61 ]

*THE COURT having, in the case of The Bank of the United States v. Devereux et al., decided that the right of a corporation to litigate in the courts of the United States depended upon the character (as to citizenship) of the members which compose the body corporate, and that a body corporate as such cannot be a citizen, within the meaning of the constitution, reversed the judg ment, for want of jurisdiction in the court below.

2 H. 9; 18 H. 331.

[ *92 ]

*MATTHEWS v. ZANE'S LESssee.

5 C. 92.

THE question in this case was, whether lands lying within the limits of the Zanesville land district, created by the act of March 3, 1803, (2 Stats. at Large, 237, s. 6,) could be sold at the Marietta land office, after the passage of that act.

P. B. Key, for the plaintiff.

Harper, for the defendant.

Hodgson v. The Marine Insurance Company of Alexandria. 5 C.

MARSHALL, C. J., stated the opinion of the court to be, [99] that the decision of the court below was correct; that the

erection of the Zaneville district suspended the power of sale in the Marietta district.

Judgment affirmed.

7 W. 164; 9 H. 421.

HODGSON V. THE MARINE INSURANCE COMPANY OF [100]
ALEXANDRIA.

5 C. 100.

If insurance be made for whom it may concern, undue concealment as to the parties interested cannot be alleged.

In such a case, the policy covers the property of a belligerent, unless there is an express warranty that it is neutral property.

A promissory note given for the premium, is a sufficient consideration for the contract of in

surance.

A valuation, not fraudulent, is binding.

An innocent misrepresentation, not material to the risk, does not avoid the policy.

It is not necessary, in an action of covenant on a sealed policy, to aver an abandonment in

the declaration

ERROR to the circuit court for the District of Columbia, in an action of covenant on a policy of insurance, whereby the defendants caused Hodgson, for George F. Straas, and others, of Richmond, as well in his own name, as for and in the name and names of all and every other person and persons, to whom the same did, might, or should appertain, in part or in all, to be insured $8,000 on the brig Hope, from St. Domingo to her port of discharge in the Chesapeake, the vessel being valued at $10,000. In one count the vessel was averred to be the property of Straas & Leeds, and in another of Leeds. The loss was by capture and condemnation. The defendants pleaded eight pleas. The first three terminated in issues of fact.

The fourth plea was, in substance, that the vessel was condemned as property of enemies of Great Britain; and that the insurance was made upon the property only of American citizens who were neutrals. To this plea there was a demurrer.

The fifth plea was, in substance, that the plaintiff, when he obtained the insurance, knew it was the practice of the defendants not to insure a vessel for more than her reasonable value; and to induce