
    Mayor & Aldermen of Jonesboro’ vs. Adam M’Kee.
    A magistrate, who is a member of an incorporated town, is not thereby disqualified from trying a warrant or suit in which the corporation is a party. 
    
    In question respecting the rights and immunities of a corporation, individuals, who are not personally interested, though members of the corporation, are competent witnesses for the corporation. 
    
    Where corporators, (as such) have a private or individual interest, they are then incompetent, and cannot be examined as witnesses for the corporation.
    A person, by becoming a member of a corporation, tacitly agrees to pay such taxes, as the corporation by its charter is authorized to impose; and he may be sued for the same, under that clause of the charter, which authorizes the corporation to sue and be sued, as well as that which authorizes it to lay and collect taxes.
    A corporation is the creature of the charter, and generally, can do no act unless thereby empowered; hut some powers are incident to a corporation, although not expressly given, as to sue and be sued, purchase and sell, make by-laws, and have a common seal, 
    
    This is an agreed case, and is as follows: It is agreed that the town of Jonesborough was .incorporated by the Legislature of the State of Tennessee in the year 1815, as will more fully appear by a reference to the act of incorporation. That the officers of said corporation named in said act were duly and lawfully elected, and were qualified as the law directs. That said Mayor and Aldermen passed an ordinance, (which is duly recorded in the corporation book,) to lay a corporation tax on the lots improved and unimproved in said town, of twenty cents on every hundred dollars said lots should be valued at.— said Mayor and Aldermen appointed Samuel Jack-son and Matthew Aikin, two freeholders and members of said corporation, as assessors, to value said lots within said town. That said assessors did make said valuation, which is recorded in the corporation book, and that said Mayor and Aldermen made an order (which is also recorded in said corporation book,) that their High Constable should collect the said tax of twenty cents on each hundred dollars worth of property within said town, according to said assessment. That the defendant, Adam M’Kee, lived within the town of Jonesborough, and was a member of said corporation; and that the said corporation tax on his lot in said town, according to the said assessment amounted to six dollars. That the said Adam refused to pay said tax, for which reason this suit was brought. That Samuel Greer, who issued the warrant in this case, was at that time a Justice of the Peace for the county of Washington, and was also recorder of the corporation, and a member thereof. That Daniel G. Vance, who tried said cause, was at the time a Justice of the Peace, in and for the county of Washington, and was also a member of said corporation at the time of the trial, before said Justice: no exception was taken on the ground of the warrant being issued by the recorder, and tried by a member of the corporation, nor was any consent given. If on the foregoing statement of facts, the supreme court are of opinion, that the plaintiff is entitled to recover, then judgment to be entered up for the plaintiff, for the amount of the verdict; if not, then judgment to be' rendered for the defendant.
    
      
      а) In the case of the Washington Ins. Co. vs. Price, (1 Hop. Ch. Rep. 1,) it was held, that the Chancellor being a stockholder in the corporation, was incompetent to decide a cause m which it was a party, although he was not personally, a party on the record.
    
    
      
       Acc. Ex parte Kip. (1 Paige’s Ch. Rep. 613.) Bank vs. Hart, (3 Day’s Rep. 491.) Magill vs. Kaufman, (4 Serg. and Rawle 317.) Bloodgood vs. Overseers of Jamaica, (12 John. Rep. 285.) Falls vs. Belnap, (1 John. Rep. 386.) Union Bank of Maryland vs. Ridgly, (1 Har. and Gill 408-9.)
    
    
      
       Acc. Angel on Corporations, page 58, and ch. 5, 6 and 10. 2 Kent’s Com. 227. Comyn’s Digest, Franchises, F. 10. 9 Cowen’s Rep. 437. 3 Rand. Rep. 141.
    
   Opinion of the court delivered by

Judge Williams.

In this case, the first objection urged by counsel is, that the Justice of the .Peace who issued the warrant, and the Justice who rendered the judgment, were at the time members of the corporation, and as such disqualified to take jurisdiction. It is argued, that if they were offered as witnesses, they would be excluded on the ground of interest, and that they must be equally incompetent to officiate as judges in the suit.

As to the incompetency of members of a corporation to become witnesses; the rule appears tobe that in questions respecting the rights and immunities of a corporation, the. evidence of individuals, who are not individually interested, though members of the corporation may be received. But where corporators, as such, have a private interest, they are then incompetent, (Peake’s Ev. 155. In the courts of some of the States, it has been adjudged, that the members of an incorporated society, to whom property was devised for the support of a school, are incompetent to attest the will. Also where a suit was carried on by a board of chosen freeholders, who in their private capacity had advanced money to carry it on, a member of the board was held a competent witness, being interested in his corporate, and not in private or individual capacity, (Peake’s Ev. 155, in notes.

The case agreed^shows that Samuel Greer and David G. Vance were members of the corporation, and that their interest was only such as was common to every other citizen of the town, and member of the corporation.— If offered as witnesses they could not be excluded from giving testimony, and according to the argument, if they were not incompetent as witnesses, they must be competent, the one to issue the warrant, and the other to try the suit.

But it is argued that the act of incorporation gives no power to sue and recover the tax demanded, in the manner which has been pursued; and that a by-law, conferring this power should have been enacted before the cor-poraiion could be authorized to institute a suit by warrant before a Justice of the Peace. We believe this argument is not supported by the provisions contained in the act of incorporation, nor by the principles of the common law, applicable to corporations.

The act provides, that the corporation shall have various powers and privileges, which it is to exercise and enjoy. It confers on the corporation the power to lay and collect taxes, and when this tax was imposed, it became a debt from M’Kee to the corporation. By becoming a mem^er °f that community, he tacitly promises to pay that debt, or any tax which the corporation by its charter was authorized to impose, and for the non-payment, is liable to a suit in the name of the corporation, (3 Blk. Com. 160. An action against him for this default, may be maintained under that clause of the act which says, the corporation shall have power to sue and be sued; as well as under the clause, empowering the corporation to lay and collect taxes, which must necessarily include all means to enforce collection; none of which is so effectual as a suit at law.

It is true, (as has been argued,) that a corporation is the creature of the charter that institutes and gives it being, yet it is equally true, that some things by the common law are incident to a corporation, which it may do without any express provision in the charter of incorporation; as to sue and be sued, purchase and sell, make by-laws and have a common seal. So, that if authority to sue and be sued had been omitted out of the charter, we are of opinion that by the powers which at common law are incident to every corporation, the Mayor and Aldermen of Jonesborough could well commence and prosecute to judgment, this action against M’Kee, and therefore, judgment must be for the corporation.

Judgment accordingly.  