Mr. Justice STORY, dissenting.
I dissent from so much of the opinion delivered by the Court in this case, as decides that a corporation is a person within the sense of the 5th section of the act of 1797, ch. 74. I have no doubt, whatsoever, that in a legal and technical sense, a corporation is a person; and that under that denomination, it may be included within the provisions of a statute, where the language and provisions and objects of the statute equally apply to corporations and to private persons. My dissent is founded upon this ground, that neither the language nor the provisions of the 5th section of the act of 1797, ch. 74, are applicable to the case of corporations: but that they apply exclusively to private persons; and cannot, without violence to the words and the objects of that act, be strained so as to reach corporations. I think that the persons intended by the act, are such persons only as may be brought within each of the predicaments stated in the act.
The language of the 5th section is, 'That where any revenue officer, or other person hereafter becoming indebted to the United States, by bond or otherwise, shall become insolvent, or where the estate of any deceased person, in the hands of executors or administrators, shall be insufficient to pay all the debts due from the deceased, the debt due to the United States shall be first satisfied: and the priority hereby established, shall be deemed to extend as well to cases in which a debtor, not having sufficient property to pay all his debts, shall make a voluntary assignment thereof, or in which the effects of an absconding, concealed or absent debtor, shall be attached by process of law, as to cases in which an act of legal bankruptcy shall be committed.'
Now, the statute, manifestly, in this provision, contemplates two classes of cases; insolvency inter vivos; and insolvency upon the death of a debtor. It is plain that the last class cannot have been intended to include corporations; for if it were to be supposed that they could be 'deceased debtors,' yet by no reasonable use of language, can it be said that they can have executors or administrators, or estate in the hands of executors or administrators. The other class of cases, is of insolvency inter vivos. Which are these? First, cases in which a debtor not having sufficient property to pay all his debts, shall make a voluntary assignment thereof; that is, of all his property. It certainly is practicable for a corporation to be in this predicament; if by its charter and constitution it is capable of making such a general assignment. But I must say, that independent of some special and positive law; or provision in its charter to such an effect, I do exceedingly doubt, if any corporation, at least without the express assent of all the corporators, can rightfully dispose of all its property by such a general assignment, so as to render itself incapable in future of performing any of its corporate functions. That would be to say, that a majority of a corporation had a right to extinguish the corporation, by its own will, and at its own pleasure. I doubt that right; at least, unless under very special circumstances. Secondly, cases of an absconding, concealed or absent debtor. Now, it is plain, that in no just sense can a corporation be brought within the terms of this predicament. Thirdly, cases of legal bankruptcy. Such cases do not exist in relation to corporations. The general bankrupt laws of England have never been held to extend to corporations; neither have the general insolvent laws of the several states in this Union, where they exist, ever been extended to corporations. Now, my argument is this, and I wish to put it into the most precise and concise form; that the fifth section of the act of 1797, ch. 74, was never intended to apply to any debtors or persons who were not, and might not be within every one of the classes of predicaments above stated. Corporations cannot be within three out of the four predicaments above stated; and therefore I hold, that the legislature never could have intended to embrace them within the provisions of the section.