Corporations for Charitable and Religious Uses. 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. 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. 93. Where a corporation is sued in the circuit court, it is prima facie evidence to support the averment of citizenship, that it is incorporated 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. 89. A, a citizen of New Hampshire, sued a corporation, established by a statute in Connec. ticut, in the circuit court of New Hampshire; the corporation having entered a general appear-purposes, which is endowed solely by private ance, 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. 96. A corporation for religious and charitable benefactions, is a private elemosynary corporation, 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. 98. The proper courts in the United States will interfere to prevent an abuse of the trusts conferred to British corporations holding lands here to charitable uses, and will aid in enforcing 91. The fourth section of the act of limita- the due execution of the trusts; but neither tions, of Virginia, limiting the right of action in those courts, nor the local legislature where the certain cases, to five years after the action ac- lands lie, can adjudge a forfeiture of the francrued, applies as well to corporations as to indi-chises of the foreign corporation, or of its providuals. That section has reference, not to the perty. Ibid. character of the plaintiff, but to the nature of the action. Bank of the United States v. M'Kenzie, 2 Brockenb. C. C. R. 393. 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, Corporations for Charitable and Religious Uses. thus protected, is confirmed by the ninth article of the treaty with England of 1794, so that it could not be forfeited by any intermediate legislative act, or other proceeding for the defect of alienage. Ibid. 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 obligations 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. terest may require. A private corporation is the 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 corpora tion 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. 113. Unless a power be reserved for this purpose, the crown cannot, in virtue of its preroga tive, without the consent of the corporation, alter or amend the charter, or divest the corporation of any of its franchises, or add to them, or add to or diminish the number of the trustees, or re107. A public corporation may be controlled, move any of the members, or control the adand its constitution altered and amended by the ministration of the charity, or compel the corgovernment, in such manner as the public in-poration to receive a new charter. Ibid. Corporation of the City of Washington. 115. When a charter is granted to persons who have not made application for it, until their acceptance thereof, the grant is yet en fieri. Upon the acceptance there is an implied contract on the part of the grantees, in consideration of the charter, that they will perform the duties and exercise the authorities conferred by it. Ibid. 116. Where a corporation is created for the purpose of distributing in perpetuity the charitable donations of private benefactors, and by the terms of the charter, the trustees and their successors, in a corporate capacity, are to receive, hold, and exclusively manage all the funds so contributed; the crown, upon the face of the charter, pledges its faith that the donations of private benefactors shall be perpetually devoted to their original purposes, without any interference on its part; and shall be forever administered by the trustees of the corporation, unless its corporate franchises shall be taken away by due process of law. Ibid. 114. Where a corporation is a mere trustee | out an act of the legislature, it is my will and of a charity, a court of equity will go yet farther; desire that they will as soon as possible apply and though it cannot appoint or remove a corpo- for an act of the legislature to incorporate them rator, it will yet, in a case of gross fraud or abuse for the purpose above specified; and I do further of trust, take away the trust from the corpora- declare it to be my will and intention, that the tion, and vest it in other hands. Ibid. said rest, residue, &c., of my estate should be at all events applied for the use and purposes above set forth; and that it is my desire all courts of law and equity will so construe this my said last will as to have the said estate appropriated to the above uses; and that the same should in no case, for want of legal form or otherwise, be so construed as that my relations, or any other persons, should heir, possess or enjoy my property, except in the manner and for the uses herein above specified." Within five years after the death of the testator, the legislature of the state of New York, on the application of the trustees, also named as executors of the will, passed a law constituting the persons holding the offices designated in the will, and their successors, a body corporate, by the name of "The Trustees of the Sailors' Snug Harbour," and enabling them to execute the trusts declared in the will. By the supreme court:-This is a valid devise to divest the heir of his legal estate, or at all events to affect the lands in his hands with the trust declared in the will. If, after such a plain and unequivocal declaration of the testator with respect to the disposition of his property, so cautiously guarding against and providing for every supposed difficulty that might arise, any techni cal objection shall now be interposed to defeat his purpose, it will form an exception to what is so universally laid down in all the books as a cardinal rule in the construction of wills, that the intention of the testator is to be sought after and carried into effect. If this intention cannot be carried into effect precisely in the mode at first contemplated by him, consistently with the rules of law, he has provided an alternative, which, with the aid of the act of the legislature, must remove every difficulty. Inglis v. The Trustees of the Sailors' Snug Harbour, 3 Peters, 113. 117. This constitutes an implied contract on the part of the crown with every benefactor, that if he will give his money, it shall be deemed a charity protected by the charter, and be administered by the corporation according to the general law of the land; and when a donation is made, an implied contract springs up, founded on a valuable consideration, that the crown will not revoke or alter the charter, or change its administration, without the consent of the corporation. Ibid. 118. There is also an implied contract between the corporation itself, and every benefactor, upon a like consideration, that it will administer his bounty according to the terms, and for the objects stipulated in the charter. Ibid. CORPORATION OF THE CITY OF WASH- 119. The testator gave all the rest and residue and remainder of his estate, real and personal, comprehending a large real estate in the city of New York, to the chancellor of the state of New York, and recorder of the city of New York, &c. (naming several other persons by their official description), to have and to hold the same unto 1. The plaintiff was the owner of a half ticket them and their respective successors in office, in "the fifth class of the National Lottery," auto the uses and trusts, subject to the conditions thorized by the charter granted by congress to and appointments declared in the will; which the city of Washington. The number of the were, out of the rents, issues and profits thereof, original ticket was 5591, which drew a prize of to erect and build upon the land upon which he twenty-five thousand dollars. The whole ticket resided, which was given by the will, an asy- was in the hands of Gillespie, to whom all the lum, or marine hospital, to be called "The tickets in the lottery had been sold, by the corSailors' Snug Harbour," for the purpose of main-poration of Washington; and his agent issued taining and supporting aged, decrepid and wornout sailors, &c. And after giving directions as to the management of the fund by his trustees, and declaring that the institution created by his will should be perpetual, and that those officers and their successors should for ever continue the governors thereof, &c.; he adds, "it is my will and desire that if it cannot legally be done according to my above intention, by them, with the half ticket, which was signed by him as the agent of Gillespie, the purchaser of all the tickets in the lottery. After the drawing of the prize, and before notice of the interest of any other person in the ticket No. 5591, Gillespie returned the original ticket to the managers, or commissioners of the lottery, and the agents of the corporation, and received back from the corporation an equivalent to the value of the prize drawn by Corporation of Alexandria.-Costs. it, in securities deposited by him with the cor- | to take a bond from the auctioneer. By the suporation for the payment of the prizes in the preme court: The power to license auctioneers, lottery. Held, that the corporation of Washing and to take bonds for their good behaviour, not ton were not liable for the payment of half of the being one of the incidents to a corporation, must prize drawn by ticket No. 5591, to the owner of be conferred by an act of the legislature; and in the half ticket. Shankland v. The Corporation executing it, the corporate body must conform to of Washington, 5 Peters, 390. the act. The legislature of Virginia conferred this power on the mayor, aldermen and commonalty of the several corporate_towns within that commonwealth, of which Alexandria was then one ; "provided that no such license should be granted until the person or persons requesting the same should enter into bond, with one or more sufficient sureties, payable to the mayor, aldermen and commonalty of such corporation." This was a limitation of the power. Fowle v. The Common Council of Alexandria, 3 Peters, 407. 2. The purchaser of tickets in a lottery, authorized by an act of congress, has a right to sell any portion of such ticket, less than the whole. The party to whom the sale has been made would thus become the joint owner of the ticket thus divided, but not a joint owner by virtue of a contract with the corporation of Washington, but with the purchaser in his own right, and on his own account. The corporation promise to pay the whole prize to the possessor of the whole ticket, but there is no promise on the face of the whole ticket that the corporation will pay any portion of a prize to any subholder of a share: and it is not in the power of a party, merely by his own acts, to split up a contract into fragments, and to make the promissor liable to every holder of a fragment for a share. Ibid. 3. Where, by the charter granted by congress to the city of Washington, the corporation was empowered "to authorize the drawing of lotteries," for effecting certain improvements in the city, and upon certain terms and conditions: Held, that the corporation was liable to the holder of a ticket in such a lottery for a prize drawn against its number, although the managers appointed by the corporation to superintend such lottery, were empowered to sell, and had sold, the entire lottery to a lottery dealer for a gross sum, who was, by his agreement with them, to execute the details of the scheme as to the sale of the tickets, the drawings, and the payment of the prizes. Clark v. The Corporation of Washington, 12 Wheat. 40; 6 Cond. Rep. 425. 4. It seems that the power granted in the charter "to authorize the drawing of lotteries," cannot be exercised so as to discharge the corporation from its liability, either by granting the lottery, or selling the privilege to others, or in any other manner; but the lotteries to be authorized by the corporation must be drawn under its superintendence, for its own account, and on its own responsibility. Ibid. 2. Though the corporate name of Alexandria was "the mayor and commonalty," it is not doubted that a bond taken in pursuance of the act would have been valid. Ibid. 3. The act of congress of 1804, "an act to amend the charter of Alexandria," does not transfer generally, to the common council, the powers of the mayor and commonalty; but the powers given to them are specially enumerated. There is no enumeration of the power to grant licenses to auctioneers. The act amending the charter, changed the corporate body so entirely as to require a new provision to enable it to execute the powers conferred by the law of Virginia. An enabling clause, empowering the common council to act in the particular case, or some general clause which might embrace the particular case, is necessary under the new organization of the corporate body. Ibid. 408. 4. The common council granted a license to carry on the trade of an auctioneer, which the law did not empower that body to grant. Is the town responsible for losses sustained by individuals from the fraudulent conduct of the auctioneer? He is not the officer or agent of the corporation; but is understood to act for himself as entirely as a tavern-keeper, or any other person who may carry on any business under a license from a corporate body. Ibid. 409. CORPORATION OF ALEXANDRIA. 1. The plaintiff placed goods in the hands of an auctioneer in the city of Alexandria, who sold the same, and became insolvent, having neglected to pay over the proceeds of the sales to the plaintiff. The auctioneer was licensed by the corporation of Alexandria; and the corporation had omitted to take from him a bond with surety for the faithful performance of his duties as aucItioneer. This suit was instituted to recover from the corporation of Alexandria the amount of the sales of the plaintiff's goods, lost by the insolvency of the auctioneer, on an alleged liability, in consequence of the corporation having omitted COSTS. 1. The cost of printing a statement of the case for the supreme court, was refused to be allowed as part of the plaintiff's costs. Jennings et al., Plaintiffs in Error, v. The Brig Perseverance, 3 Dall. 336; 1 Cond. Rep. 154. 2. On a writ of error to the high court of appeals of Maryland, the judgment of that court was reversed, and the judgment of the general court of Maryland was affirmed. The mandate of the supreme court was directed to the general court, and the costs of the supreme court and of the courts of Maryland were allowed to the plaintiff in error. Clarke, Plaintiff in Error, v. Harwood, 3 Dall. 342; 1 Cond. Rep. 157. 3. Costs are not to be awarded against the Costs. United States. The United States v. Hooe et al., | diction, it must be without costs. Montalet v. 3 Cranch, 75; 1 Cond. Rep. 458. 4. A judgment for costs, generally, includes all the costs belonging to the suit, whether prior or subsequent to the rendition of the judgment. If new costs accrue, the judgment opens to receive them. Peyton v. Brooke, 3 Cranch, 92; 1 Cond. Rep. 464. 5. Costs were allowed upon the dismission of a writ of error for want of jurisdiction; the original defendant being also defendant in error. Winchester v. Jackson et al., 3 Cranch, 514; 1 Cond. Rep. 612. 6. Where there appeared some ground for the prosecution, costs were refused. The United States v. La Vengeance, 3 Dall. 297; 1 Cond. Rep. 132. 7. Where a writ of error is dismissed in the supreme court for want of jurisdiction, costs are not allowed. Inglee v. Coolidge, 2 Wheat. 363; 4 Cond. Rep. 155. 8. Each party is liable to the clerk of the supreme court for the fees due to him from each party respectively. Caldwell v. Jackson, 7 Cranch, 276; 2 Cond. Rep. 490. 9. A copy of the record is not a part of the taxable costs of suit, to be recovered by one party against the other; but the party who requests the copy, must pay the clerk for it. Ibid. Murray, 4 Cranch, 46; 2 Cond. Rep. 19. 16. The court below, upon a mandamus, on reversal of its judgment, may award execution for the costs of the appellant in that court. Riddle et al. v. Mandeville et al., 6 Cranch, 86; 2 Cond. Rep. 307. 17. Where the court ordered the costs to be paid of a former ejectment brought by the plaintiffs in the names of other persons, but for their use, before the plaintiff could prosecute a second suit in his own name for the same land; this was not a judicial decision that the right of the plaintiffs in the first suit was the same with that of the plaintiffs in the second suit. It was perfectly consistent with the justice of the case, that when the plaintiffs sued the same defendant in their own name for the same land, that they should reimburse him for the past costs to which they had subjected him, before they should be permitted to proceed further. Rules of this kind are granted by the court to meet the justice and exigencies of cases as they occur; not depending solely on the interest which those who are subjected to such rules may have in the subjectmatter of suits which they bring and prosecute in the names of others; but on a variety of circumstances, which, in the exercise of a sound discretion, may furnish a proper ground for their interference. Henderson and Wife v. Griffin, 5 Peters, 151. 10. It is undoubtedly a general rule, that no court can give a direct judgment against the 18. Where several claims had been filed by United States for costs, in a suit to which they the district attorney, and, before any further are a party, either on behalf of any suitor, or any proceedings in the cause, congress remitted the officer of the government. But it by no means forfeiture, on the payment of duties, costs, and follows, from this, that they are not liable for charges: Held, that the district attorney of Mastheir own costs. No direct suit can be main-sachusetts was entitled to seventeen dollars on tained against the United States. But when an each claim. The Frances, 1 Gallis. C. C. R. action is brought by the United States, to recover 453. money in the hands of a party who has a legal 19. In taxing the costs in prize causes, where claim against them for costs, it would be a very there are several claims, some of which are disrigid principle to deny to him the right of set-posed of by a final decree of condemnation, ting up such claim in a court of justice, and turn him round to an application to congress. If the right of the party is fixed by the existing law, there can be no necessity for an application to congress, except for the purpose of remedy. And no such necessity can exist, when this right can properly be set up by way of defence to a suit by the United States. U. S. v. Ringgold et al., 8 Peters, 150. 11. The United States do not pay costs in any case. The U. S. v. Barker, 2 Wheat. 395; 4 Cond. 181. 12. No judgment or decree can be rendered directly against the United States for costs and expenses. The Antelope, 12 Wheat. 546; 6 Cond. Rep. 629. 14. The fees and compensation to the marshal, where the government is a party to the suit, and his fees or compensation are chargeable to the United States, are to be paid out of the treasury, upon a certificate of the amount, to be made by the court, or one of the judges. Ibid. while others are suspended by appeal, the prac tice is to tax the costs and expenses which have accrued, specially, upon each claim so disposed of, as a separate charge against the same, and to add thereto an average proportion of the general costs and expenses which have accrued in reference to all the claims in the cause. The Hiram and the Hero, 2 Gallis. C. C. R. 60. 20. In prize causes, the allowance or denial of costs rests in the discretion of the court; and where the capture, though made in good faith, is in law adjudged tortious, the claimant is entitled by the general practice of the court to such costs as have necessarily arisen in the prosecution of his claim, unless he has been guilty of such misconduct as amounts to a forfeiture of such costs. The Ulpiano, 1 Mason, 91. 21. When a cause is removed from a state court to the circuit court, under the act of congress, the plaintiff is entitled to recover his costs, although he obtains a verdict for less than five. hundred dollars. Ellis v. Jarvis, 3 Mason, 457. 22. If a witness, recognised for the defendant, 15. In cases of reversal, costs do not go of is marked on the indictment, and sent to the course; but in cases of affirmance they do. grand jury by the district attorney, the United When a judgment is reversed for want of juris-States, on the acquittal of the prisoner, must pay |