1. The essential quality of a corporation is the power granted by the sovereign to persons designated and described, to act in a corporate capacity. The acts of this corporation before the day when the statute went into effect were wholly void. But when on and after that day persons were found with the consent and under the authority of the designated corporators, and without objection on the part of the sovereign power, actually exercising the corporate powers, and claiming and using the franchise, they constituted a corporation de facto; and the lawfulness of their organization cannot be impeached collaterally in an action to recover an assessment.

2. The court are of opinion that the notes were, under the by-laws of this company, absolute funds of the plaintiff corporation. Under the decision in Long Pond, Ins. Co. v. Houghton, 6 Gray, 77, they may be collected at the pleasure of the directors, without reference to any other equality of assessment than that of requiring the payment of an equal proportion of each note held by the company at the time the assessment is made ; and these absolute funds are to be exhausted before any assessment *449can be made under the statute liability for losses. This results from the terms of the 8th by-law, and gives full effect to its stipulations that the notes shall be the absolute funds of the company, that they shall be collected by assessment, and that they shall be exhausted before any farther assessment is made upon the insured.

The assessments upon these notes, not having been made upon the principles above stated, are of no validity or effect; and the absolute funds not having been exhausted, no assessments for losses could be made on any farther liability.

Judgment for the defendant.