Tuttle vs. Walton. company, and standing in his name on their books, agreeably to the provisions of the act of 1822, entitled "An Act to make Bank and other stock subject to execution." On 6th June, 1843, when the Sheriff was proceeding to sell, the company gave public notice of their lien upon the stock, by virtue of one of their By-laws, which is in the words following, to wit: "No stockholder, who is indebted to the institution, as payer or endorser on any note or notes laying over and dishonored, shall be permitted to transfer his stock. The company shall in that case be considered a creditor in possession, and such possession, and such dishonored note or notes, shall constitute a lien on the stock, which shall be held subject to the payment of such note or notes." At the sale the plaintiff in execution and the plaintiff in error (Tuttle) became the purchaser of the stock, and having procured the Sheriff's certificate of that fact, made demand upon the defendant in error, (Walton,) who was the secretary and treasurer of said company, charged with the duty of making transfers of the stock, for a transfer of the stock thus brought, agreeably to the act of 1822. Walton refused to make the transfer, whereupon the plaintiff in error brought his action in the court below, to which action the defendant pleaded the lien of the company upon said stock in pursuance of the By law before recited, and the notice of it given at the Sheriff's sale. Upon the trial the defendant confessed judgment, subject to the opinion of the court on the plea of lien and notice, the plea being admitted to be true in fact. The court below sustained the plea, and the error is alleged to be in that decision. The decision of the court was excepted to on a number of grounds. It is not necessary to state here, much less to advert with any particularity to many of those grounds of error. The questions made by the record are 1st. Whether the By-Law of the company be valid between Glendenning and the company? 2dly. If valid as between Glendenning and the company, is it valid as between his creditors and the company. And 3dly. Whether it is valid as between the purchaser at Sheriff's sale under the provisions of the act of 1822, with notice given at the time of sale, and the company. There doubtless are various ways of stating the points at issue. I think the above form truly states them. It is obvious that the contest here is between the lien of the Bank by virtue of its By-law, and the title of the purchaser of the stock, claiming under a judgment against the owner, in favor of a creditor without notice of that lien. I know of no instance in our State, in which the sustainability of such a lien has been directly adjudicated, as between the Bank and strangers; and no case in the course of the very able argument before this court, has been adduced on either side, wherein that question has been made and decided. In every view of this case, the court is compelled to pass upon the validity of the By-law. The pleadings with marked distinctness present that question. The defendant comes into the court below with the by-law of the company in his hand, and having plead it in bar of the plaintiff's action, demands the judgment of the court. He tenders the issue in behalf of the company. Through him the company sets up this lien,-upon that issue the judgment is awarded, upon which error is assigned, and the same is Tuttle vs. Walton. is still before this court. The defendant in error has had his day in the court below, and now has his day in this court. It is now the demand of the plaintiff in error that we pass upon the sufficiency of the defence to his action in the court below. That defence was rested upon the lien created by the By-law, and the existence of that lien depends upon the legality of the By-law. The court below (a court of law) is the only tribunal before which that issue could be made. Certainly the only tribunal to which the plaintiff in error could resort, for the purpose of testing the By-law of the company, was that to which he did resort, and the action which he brought, the proper process. He could not go into a court of equity, because of the remedy open to him at law. This was fully settled by Lord Mansfield, in 2 Burrows, 780, also by Lord Eldon in 17 Vesey, 327. The latter is the case of Adley, complainant, vs. The Whitstable Company. This was a company incorporated by act of Parliament for the purpose of dredging for oysters. According to a By-law, any freeman of the company who should send oysters to market, from any oyster grounds other than the oyster grounds of the company, should forfeit ten pounds, for the use of the company, and if he refused to pay the forfeiture, he should thenceforth be excluded from all share in the profits to be thereafter realized. The complainant becoming obnoxious to the penalty, and also to the disfranchisement, filed his bill, insisting that the By-law was invalid, and demanding that the company account with him for his share of the profits. The Chancellor held that if the By-law was pronounced by a court of law invalid, he would hold the defendants to account, but not until then. "Upon these grounds," said Lord Eldon, " unless I can be satisfied that the party has such a remedy at law as ought to bar his application to a court of equity, I conceive he has a right to apply here for such relief, as under all the circumstances he is entitled to, provided these By-laws are not valid, a question which I am unwilling to prejudice, by expressing any opinion upon it; but if a court of law will inform me that this is not a good By-law, even on the state of this record, I shall find means of giving to the plaintiff the benefit resulting from his title in this concern if not forfeited at law under the By-law. The mode of trying that question appears to me to be an action, unless some more convenient course can be suggested." The course indicated by Lord Eldon is precisely that taken by the plaintiff in error-an action against that officer of the company, whose duty it is, under the charter, to make transfer of the stock. In the case decided by Lord Eldon, the action, he thought, ought to be against that officer, charged with the payment of the profits of the company. This authority I refer to for the purpose of proving that the validity of the By-law is properly before this court, and that by the pleadings the ultimate question, upon which the rights of these parties turn, is its validity. Before entering upon the discussion of the prime question thus brought before us, a few preliminary facts and principles may, with propriety, be stated. The objects contemplated in the charter of the Augusta Insurance and Banking Company are two-fold, to wit: Insurance and banking.Prin. Dig. 81, 6th and 10th section of the charter. The power of general ysurance and banking conferred upon the same company, I will not say raordinary in our State, but certainly a very broad grant; the exerwhich should be held strictly within the authority of the charter. hird section of the charter, the stockholders, among other things, Tuttle vs. Walton. are clothed with power" to make, ordain, and establish such By-laws, rules and regulations, as they may deem expedient and necessary to carry into effect- the objects of the institution, provided such By-laws, rules and regulations, be not repugnant to the laws or constitution of this State or the United States." It is under this clause that the right to make the By-law in question, and before recited, is claimed by the defendant in error. In relation to private corporations, I remark, they are limited strictly to the exercise of those powers which are specifically conferred. The exercise of corporate franchises, being restrictive of individual right, cannot be extended beyond the letter and spirit of the act of incorporation.-4 Peters, 168. They can take nothing by implication. When they claim. a power, they must show the authority, either in the letter or conclusively ascertained spirit of their charter. And when the exercise of a power and the right of a citizen come in conflict, and the power is doubtful, courts of justice will lean towards the citizen; for sound and sufficient reason-because all corporate powers are in derogation of common right. This rule is not too stringent; and its equity and policy will be seen at once, by reference to the vast monitary and commercial advantages, which combined capital, associated mind, and concentrated effort, give to the corporation over the citizen. The common law is jealous of corporate powers. In England, these bodies are held to their charters with unswerving rigidity and ceaseless vigilance. In this country the rule had better be narrowed than enlarged. Whilst I would in no case interfere with the vested rights or conceded franchises of a corporation, no matter how numerous those rights, or how unequal and unjust those franchises, because I believe that all the interests of society would be involved in inextricable embarrassment by such interference; yet, at the same time, I am satisfied that the safety of those interests demands that courts of justice see to it that the rights and franchises claimed are in fact within the grant from the Legislature. The claim of power here is to make a by-law, which creates a lien in derogation, as I believe, of common right. Now, how far has the Legislature conferred upon the Augusta Insurance and Banking Company such a power? It is not contended that the power to create such a lien is expressly given in the charter; if it were so given, the question would be at rest. It is contended that the power is conferred in the grant of power to make bylaws. Now, I hold that this company has under its charter no more power to make by-laws than it would have had without the provision in the charter in relation to them; and farther, that this company has under its charter no more powers to make by-laws than any association of individuals, for commercial or other objects, would have at common law. A power to make by-laws is incident to corporations without any grant.-Bacon's Abridgment, Title Corporation, D. Now, what is the restriction imposed at common law upon the power thus incident to corporations? They may make such by-laws as are consistent with their charter, and not repugnant to the laws of the land, and none other.-Bacon's Abridgment, Title By-Laws, E. Lord Bacon asserts that it is of the nature and essence of a by-law not to be in contradiction to the laws of the land, "which," says he, "though it may be præter the general law of the realm, it cannot be contra." By adverting to the restrictions upon the power Tuttle vs. Walton. this company to make by-laws, it will be seen that they are just such as the common law imposes. The power to make by-laws is limited to such as "are not repugnant to the laws or constitution of this State or the United States"-in other words, such as are not repugnant to the laws of this realm, the fundamental law, the statute law, and the common law. This corporation stands here, then, just as it would stand in England under the common law; and just as it would stand in this country, without any enactment as to the power to make by-laws. The power of legislating in subordination to the laws of the land, to effect a lawful object, as between themselves, is incident to all associations. The only object which the Legislature could have had in saying anything at all about by-laws in this charter, must have been this; that is, inasmuch as corporations are not creatures of the common law, but exist in this country only by Act of the Legislature, and in England only by Act of Parliament or Letters Patent, to place this corporation, so far as concerns its by-laws, upon the same footing with private associations at common law. It was urged by counsel for defendant in error that the charter extending the power to such by-laws, &c., as the stockholders may deem expedient and necessary to carry into effect the objects of the institution, legalizes all by-laws which they, in their view of what is expedient and necessary, might enact. The answer to this argument is, first, the by-law must not only be expedient, but it must be necessary. And is such security for the debts of this company as the by-law provides necessary to the object either of insurance or banking? The company might well take risks, and discount paper, without such security. If, indeed, such a by-law is sustained upon the score of its necessity, then, upon the same principle, by-laws which, in their march, tread down all the rights of the citizen, may be sustained. I apprehend that this clause of the charter is to be considered rather as descriptive of the objects about which the company may legislate, than as defining the extent of the legislative power. But, secondly, this clause is certainly subordinate to the proviso of the Act, whose object is to define and limit the power of making by-laws. This proviso is not consistent with that clause, as construed by counsel for defendant in error, but it is consistent with the meaning I put upon it. And in the construction of statutes, it is the duty of the court, if possible, to give effect to all their provisions. I have already stated that the title of the plaintiff in error to the stock of Glendenning is derived under a judgment against him-the stock being brought to sale under the provisions of the Act of 1822, "Entitled an Act to make bank, and other stock, liable to execution." It becomes necessary to look more closely to that Act, in order to exhibit the character of the lien of the judgment, and the rights of the purchaser claiming under it, as contrasted with the lien of the by-law. The first section declares that shares or stock owned by any person in any of the banks, or other corporations, in this State, shall be subject to be sold by the sheriff, or his deputy, under execution. The 2d and 3d sections prescribe the manner of the sale. The 4th section requires the sheriff to give to the purchaser a certificate of the sale. The 5th section makes it the duty of the officer of the bank, whose business it is to make tranfers of stock books of the bank, or other corporation, upon presentation of the ot of sale, to make a transfer of the stock sold to the purchaser. 6 makes all transfers of stock, by the owner, after judgment Tuttle vs. Walton. obtained void, provided notice of the obtainment of the judgment is served on the proper officer of the bank or other corporation. The last section may be dismissed here, as it is considered as having no relevancy to the cause. Before the passage of this Act, bank stock was not liable to levy and sale. Creditors of stock owners were compelled to go into Courts of Equity, to subject the stock, in which court all counter-claims to, and liens upon, it were cognizable. Now it is placed upon the same footing with any other personal property. The Act of 1822 recognizes the owner as holding the entire title, and recognizes the stock, in the hands of the owner, like his slaves, as "prima facie" disencumbered of liens. It directs a sale, and by necessary implication, gives to the purchaser the absolute title, which title, like any other, is liable to be contested by any lien valid in law, and paramount to the lien of the judgment. The Act farther gives to the purchaser the means of procuring the evidence of his title, to wit, a transfer on the books of the company. It commands the bank to make the transfer. The sovereignty of the State speaks in her law, and obedience must follow, unless the bank can show, upon the authority of the same sovereignty, cause for her disobedience. The onus of setting aside the purchaser's title is cast by the law upon the bank. In the cause at this bar, she has taken that onus; first, by refusing to make the transfer, and secondly, by her plea to the plaintiff's action. The lien of the judgment attaches the moment it is open, and binds all the property of the defendant from that time.—— Prin. Dig. 426, 452. At the time the plaintiff's judgment was rendered, therefore, it created a lien upon all the property which Glendenning held in this stock. It is impossible to escape from the conclusion, that the legislature designed to put bank stock upon the same footing with other personalty. It is true that the purchaser at sheriff's sale gets the title of the defendant, and no more. In this case, what title had the defendant in the stock, at the time judgment was rendered against him? I have shown the entire title, by the Act of 1822, until that title is weakened by a valid lien, or claim, as in any other case of property bought at Sheriff's sale. Now, in opposition to the purchaser's title thus acquired, and as a defence to his action, to make that title available, the defendant sets up what he claims to be an older and valid lien, and asks the decision of the court upon the validity of that lien. What, then, is the issue made? Is it not manifestly an issue made between the lien of the judgment and the lien set up in defence? If the By-law and the lien which it creates are valid, then Glendenning held only the legal estate in the stock encumbered with the lien, and Tuttle got that legal estate and no more. But if the By-law be invalid for any cause, and the lien be in consequence void, as against the judgment lien, then Glendenning held the whole property in the stock, and the purchaser, Tuttle, acquired that and no less. These considerations demonstrate that this is no contest between Tuttle merely, as a volunteer purchaser with notice, and the bank. If that were the contest, it would even then be a serious question, under the law and facts of this case, whether he did not acquire a perfect title. But it is not. It is a contest between the judgment lien of a creditor, and the lien set up by the bank, predicated on the By-law, and that lien, as I have before said, depends upon the validity of that B law. The notice at the sale can avail the bank nothing. If the li |