« ForrigeFortsett »
ed after that time, are declared to be void, as against the receivers to be appointed, and as against the creditors.a This last provision is to be taken as a qualification and limitation of the generality of a similar provision, already mentioned, in the act of 1825.b
Ibid. vol. ii. p. 469. sec. 71. In Missouri, by statute upon the dissolution of any corporation, the president and directors, or managers thereof, at the time of its dissolution, are made ex officio trustees to settle its concerns. R. S. of Missouri, 1835.
Under the English bankrupt system, a voluntary payment to a creditor, under circumstances which must reasonably lead the debtor to believe bankruptcy probable, is deemed a fraud upon the other creditors, within the meaning of the bankrupt law, and the money can be recovered back by the assignees. Poland v. Glyn, 2 Dowling & Ryland, 310. The New. York provision falls far short of the English rule, in the check given to partial payments, but it has the merit of giving a clear and certain test of an act of insolvency. In Indiana, it has been held, that a bank forfeited its charter : 1. When it contracted debts to a greater amount than double that of the deposits ; 2. For the issuing of more paper, with a fraudulent intention, than the bank could redeem ; 3. When it made large dividends of profits, while the bank refused to pay specie for its notes ; 4. Embezzling large sums of money deposited in bank for safe keeping. State Bank v. The State, 1 Blackford's Ind. R. 267.
A corporate body as well as a private individual, when in failing circumstances, and unable to redeem its paper, may, without any statute provi. sion, and upon general principles of equity, assign its property to a trus. tee, in trust to collect its debts and pay debts and distribute as directed. It has unlimited power over its property to pay its debts. A corporation may also, like an individual, give preferences among creditors, when honestly and fairly intended and done. The doctrine is well established in equity. Union Bank of Tennessee v. Ellicott, 6 Gill & Johnson's Rep. 363. The state of Maryland v. Bank of Maryland, Id. 205. Revere v. Boston Copper Company, 15 Pick. Rep. 351. Catlin v. Eagle Bank of New Haven, 6 Conn. Rep. 233. See also, infra, p. 532. Conway, es parte, 4 Arkansas Rep. 302. Flint v. Clinton Company, 12 N. H. Rep. 430. Dana v. The Bank of the United States, 5 Watts of Serg. 223. Bank of U. S. v. Huth, 4 B. Monroe, 423. In Robins v. Embry, 1 Smedes f Marshall, Miss. Ch. R. 207, the chancellor admits, that a corporate body may make an assignment of the corporate property in trust equally and rateably to pay its debts, but as their assets are a trust fund for all the creditors, he ably examined and opposed the doctrine, that corporations like individuals may give preferences among creditors. Ib. p. 259–266.
I have, in this lecture, gone as far into the law of corporations as was
consistent with the plan and nature of the present work; and, for a more full view of the subject, I would refer to the Treatise on Private Corporations Aggregate, by Messrs. Angell & Ames, as containing an able and thorough examination of every part of the learning appertaining to this head ; and as being a performance which deserves and will receive the respect and patronage of the profession. A new and enlarged 3d edition of that Treatise appeared in 1846, and the work is vastly improved and ad. mirably digested.
OF THE LAW CONCERNING PERSONAL PRO
OF THE HISTORY, PROGRESS, AND ABSOLUTE RIGHTS
Having concluded a series of lectures on the various rights of persons, I proceed next to the examination of the law of property, which has always occupied a pre-eminent place in the municipal codes of every civilized people. I purpose to begin with the law of personal property, as it appears to be the most natural and easy transition, from the subjects which we have already discussed. This is the species of property which first arises, and is cultivated in the rudest ages ; and when commerce and the arts have ascended to distinguished heights, it maintains its level, if it does not rise even superior to property in land itself, in the influence which it exercises over the talents, the passions, and the destiny of mankind.
To suppose a state of man prior to the existence of any notions of separate property, when all things were common, and when men, throughout the world, lived without law or government, in innocence and simplicity, is a mere dream of the imagination. It is the golden age of the poets, which forms such a delightful picture in the fictions, adorned by the muse of Hesiod, Lucretius, Ovid, and Virgil. It has been truly observed, that the first
*man who was born into the world killed the second ; and when did the times of simplicity begin? And yet we find the Roman historians and philosophers, a rivalling the language of poetry in their descriptions of some imaginary state of nature, which it was impossible to know, and idle to conjecture. No such state was intended for man in the benevolent dispensations of Providence ; and in following the migrations of nations, apart from the book of Genesis, human curiosity is unable to penetrate beyond the pages of genuine history; and Homer, Herodotus, and Livy, carry us back to the confines of the fabulous ages. The sense of property is inherent in the human breast, and the gradual enlargement and cultivation of that sense, from its feeble force in the savage state, to its full vigor and maturity among polished nations, forms a very instructive portion of the history of civil society. Man was fitted and intended by the author of his being, for society and government, and for the acquisition and enjoyment of property. It is, to speak correctly, the law of his nature ; and by obedience to this law, he brings all his faculties into exercise, and is enabled to display the various and exalted powers of the human mind.b
• Sallust Cat. sec. 6. Jugur. sec. 18. Tacit. Ann. lib. 3 sec. 26. Cic. Orat. pro.
P. Sertio, sec. 42. Justin. lib. 43. ch. 1. b Selden, in his Uxor Ebraica, lib. 1. ch. 1, gives the following definition of the law of nature : Naturale jus appellamus quod ab ipso nature auctore seu numine sanctissimo in ipsis rerum primordiis cordi humano inditum præscriptumque est ; adeoque posteritati universe regularitur perpetuo erat semperque est observandum ac immutabile. Lord Kames considers the sense of property to be a natural appetite, and, in its nature, a great bless. ing. Sketches of the History of Man, b. 1. sk. 2. The institution of marriage and the institution of private property, and of government and law, have been considered, by the wisest statesmen and philosophers of every age, as the foundation of all civilization among mankind.
“ The voice of Law, said Hooker, in his Ecclesiastical Polity, b. 1., is the harmony of the world, all things in heaven and earth do her homage, the very least as feeling her care, and the greatest as not exempled from hor power.” The greatest of the ancient sages, Aristotle, Plato, and Cicero expressed the same idea. The essence of freedom, said Plato (De Legg.)
Occupancy, doubtless, gave the first title to property, in lands and moveables. It is the natural and original
method of acquiring it; and upon the principles of *319 universal *law, that title continues so long as occu
pancy continues. There is no person, even in his rudest state, who does not feel and acknowledge, in a greater or less degree, the justice of this title. The right of property, founded on occupancy, is suggested to the human mind, by feeling and reason, prior to the influence of positive institutions. There have been modern theorists, who have considered separate and exclusive property, and inequalities of property as the cause of injustice, and the unhappy result of government and artificial institutions. But human society would be in a most unnatural and miserable condition, if it were possible to be instituted or reorganized upon the basis of such speculations. The sense of property is graciously bestowed on mankind, for the purpose of rousing them from sloth, and stimulating them to action ; and so long as the right of acquisition is exercised in conformity to the social relations, and the moral obligations which spring from them, it ought to be sacredly protected. The natural and active sense of property pervades the foundations of social improvement. It leads to the cultivation of the earth, the institution of government, the establishment of
consisted in the supremacy of law over personal will, whether it be the will of the one, the few, or the many. So, Aristotle (Politics, b. 1.) declared that Government pertained to man in his most perfect state, and entered into the very constitution of human nature. Man could not strictly be man without it. Existence in the state was requisite to the completion of his humanity, and essential to his protection against his own wants and vices.
· Grotius, Jure B. & P. b. 2. ch. 3. sec. 4. Mare liberum, ch. 5. Al the writers on international law concur in the doctrine that occupancy is essential to the title to land newly discovered and vacant. Puff. Droit de la Nat. liv. 4. ch. 4. Vattel, Droit des Gens, liv. 1. ch. 15.
Quod enim nullius est id ratione naturali occupanti conceditur. Dig. 41. 1. 3.