contended, that persons, by becoming members of a corporation during their existence, must be presumed to know their nature and operation, and are to be considered, therefore, as assenting to the subjection of their persons and property to arrest and attachment, in suits against the corporation, and as waiving the right of being made parties to the suits, by which they may be thus jeopardized.

It seems to me, however, very questionable, whether a citizen of a republic can constitutionally waive the right of self-protection, either as regards his liberty or property. I apprehend that an express contract to that effect, would be ex vi termini unconstitutional and void, as repugnant to the first principles of the rights of the individuals, and of the community.

And I am still more strongly of opinion, that the legislature cannot establish any system of law regulating contracts, which shall be based upon, or require, such a surrender of natural rights; for if it be admitted in relation to one species of dealings or contracts, why may it not be extended to all others in which two or more individuals are concerned? Why may it not be enacted that an execution obtained against one co-partner for a co-partnership debt, may be served upon the persons and estates of every other; or that in all cases of joint contract, and a judgment against one, the persons and property of all the rest, may be taken on execution? If such laws existed, the argument of consent and waiver, would be as strong against all, who after their enactment had entered into co-partnership, or made joint contracts, as it is here. It seems to me, that such a course of legislation strikes directly at the root of the provisions in the bill of rights, securing to citizens, the right of trial by jury, and of being heard in their defence, before they can be deprived of life, liberty, or estate; and that the doctrine of consent and waiver, above referred to, if followed out, must result in absolute despotism, making any laws constitutional, on the ground that those who act after their enactment in such manner as to come within their scope, thereby waive the rights which the constitution has provided for their defence, and place themselves at the mercy of the legislature.

That it is competent for the legislature to prohibit or limit certain species of contracts as being against public policy, or that they may annex to them liabilities extending to all persons

concerned in them, cannot be doubted. Thus no one could dispute the constitutionality of laws making stockholders personally liable for all debts contracted by the corporation whereof they were members. But then the remedies for enforcing such liabilities, must be consistent with their constitutional rights. For it is clear, that whatever power government may have in determining the legality of contracts, or their comprehensiveness as affecting all who may be interested in them, it cannot prescribe means of enforcing them by restraint of the personal liberty, or appropriation of the property of the subject, in any other manner than according to the provisions of the constitution made expressly for their protection.

If, therefore, the legislature intended to make stockholders individually responsible for debts contracted by the corporation during their membership, it should be by making them jointly liable as joint debtors with the corporation, or jointly or severally liable as sureties or guarantors, and thus parties to the contracts; in either of which cases they must, of necessity, be served with the legal process, by means whereof such contracts might be attempted to be enforced, and would have the right to appear, plead, and defend as parties to the suit; so that their liberty and estates could not be restrained or taken, without due process of law, consistently with the principles of the constitution.

But that the legislature should undertake to prescribe remedies for enforcing a contract made with a corporation, to which the stockholders, in their private capacities, were not, and could not become parties, and which remedies consist in arresting the persons, and attaching the estates of such stockholders, in suits in which they have no right to appear or be heard, appears to me a plain palpable violation of the first principles of our jurisprudence, whether derived from the written constitution or natural law.

Should it be said, that these objections apply with equal force to the attachment of the corporate property, in which he has an interest, because in such case he could not personally appear, plead and defend, in order to protect that interest; the answer is obvious—the property attached is not his, in any sense; he has not, individually, any right of possession, or control, or enjoyment of it; it belongs exclusively to the corporation, which is a legal person, having all legal faculties and powers compe

tent for its protection and enjoyment, and the only person to whom it in any sense legally belongs; his right of property, therefore, cannot be impaired by a legal proceeding against the corporation.

And should it be further said that service of the writ on the corporation, must be considered as notice to every member, it is plain that this does not in the slightest degree remove the difficulty, for such notice would give him no power to become a party to the suit; the utmost right he could have, would be to appear in behalf of the corporation, whose interests, in relation to the appropriation of his property, might, and in extreme cases generally would be, in opposition to his own, and who might frustrate the defence, which, were he a party competent to plead and be heard in protection of his person or estates, might be successfully maintained.

I submit these views with great distrust of their soundness, from the consideration that these laws have existed so long unimpugned, and been acted upon as valid in so many cases of extreme hardship and oppression, where it is reasonable to presume, that the utmost professional skill and sagacity have. been exerted. And particularly ought I to be doubtful, as the court in the cases Child v. Coffin, 17 Mass. Rep. 64, and Marcy v. Clark, same volume, page 330, have pronounced an opinion in favor of their constitutionality. In the first case, however, no discussion of the question seems to have been had at the bar or by the court, and in the latter, the objections appear to have been confined solely to the mode of ascertaining whether or not the party whose property is taken, is a corporator. The grounds upon which the above opinion is founded, seem not to have been touched upon in either case. They are convincing to my own mind, and compel me to the conclusion above stated, though it may be that I am misled by some fallacy or oversight which another mind may easily detect.

C. G. L.

ART. IV.—OPINION ON THE RIGHT OF SET-OFF.

CASE.

IN September, 1827, Mr. D. borrowed of an insurance company seven thousand dollars, upon his note of that date, payable

in one year, and on pledge of seventy-five shares of bank stock, as collateral security, which were duly transferred, and now stand in the name of the company, which loan was at the expiration of the time, renewed for another year. In the mean time he gave the company one premium note for one hundred and one dollars, which fell due 17th July, 1829, and another for ninety dollars, which became payable 30th November, 1829.

On 30th July, 1829, he assigned over all his right, title, and interest in these shares to the bank, who gave notice of the assignment August 1st. The bank paid the interest on the seven thousand dollar note, the 20th October, 1829, and now offer to pay the whole amount due thereon, and demand a transfer of the shares. And the inquiry is, whether the company can avail itself of this stock in any way to obtain payment of the premium notes.

OPINION.

Although the insurance company may not have any lien, properly so called, on this stock as security for payment of the premium notes, they may, I think, avail themselves of the relation subsisting between them and Mr. D. at the time of this assignment of the shares to the bank, so as to obtain the full benefit of them for this purpose.

An assignee of a claim, or chose in action, as it is technically called, stands in the same relation to the party against whom the claim exists, in which the assignor stood, and has no greater rights than he had; for an assignment makes no other change in the relative rights and liabilities of the original parties, than the substitution of the assignee in the place of the assignor. Greene v. Hatch, 12 Mass. Reports, 195. It is essential, therefore, to consider, what would be the rights or privileges of the insurance company, if Mr. D. had not made an assignment, and were now claiming a restoration of the stock upon a tender of the amount due upon the seven thousand dollar note.

And I think it very clear, that if upon the refusal of the company to transfer the stock he should commence an action to recover it, nothing more would be necessary, than for the company to institute one against him for the recovery of the premium notes, and the court would set off one judgment against the other, in conformity to the principles of law under which judicial tribunals exercise this discretionary power. And it is plain,

that in such case, the fact that the last premium note did not become due until after the right to redeem the stock accrued, would not affect this right of the company, nor the power of the court to make such set-off.

Does then the assignment affect that right on the part of the insurance company, and deprive them of this equitable privilege?

That it does not, so far as the note is involved, which became due before the assignment, is, I think, unquestionable. It is clear, that the company could set off a judgment obtained on that note, against any which the bank could obtain as such assignee; and the only question which I suppose can be raised, is, as to that which did not become due until the following November; on the ground that as the insurance company, at the time of the assignment, had no right of action on that note, it could not constitute a claim which they could enforce in contravention of the right of the bank to possession of the stock; and further, because as that note was not to become due until after the time when the seven thousand dollar note could be payable, and the right to redeem the shares on payment of it would be absolute, it is not to be presumed that the time of payment allowed on that premium note, was predicated on the credit of this stock, or any relation between the parties arising out of this transaction; and therefore that no contract can be supposed to have existed between the parties in reference to such set-off.

I am satisfied, however, that there is no sound distinction between the two notes, and that the company may set off a judgment on both, against that which the bank may obtain upon a refusal of the company to transfer the shares.

For it is to be observed, in the first place, that this right in the court to set off judgments, is not founded upon any supposed contract of the parties, that the demands should be set off one against the other; for if such a contract were supposed to exist, there would be no need of cross actions, and the claim of either party ought to be pleaded in set-off, in the action brought by the other.

But this power in the court, is founded on general principles of equity, by which it is determined that the mutual rights of parties shall be settled upon a principle of equality, so as to work ultimate justice, according to the relations actually existing