CHAPTER XVIII.

OF THE PROCESS, PLEADINGS, AND EVIDENCE, IN SUITS, BY AND AGAINST CORPORATIONS, AT LAW AND IN EQUITY.

IN treating in this chapter of the process, pleadings, and evidence in actions, and suits by and against corporations, we shall confine ourselves to actions at law and suits in equity in ordinary cases, as separate chapters, are devoted to the proceedings in mandamus, and informations of the nature of quo

warranto.

It may be premised, that it has been shown in a preceding chapter, that corporations may bring, both at home and abroad, the same actions for the recovery of their debts and property, and for redress for injuries, as natural persons.' Even in ejectment, they may now proceed in the ordinary way, without executing a power of attorney, authorizing a third person to enter and make a lease on the land, as was formerly the practice.'

$ 1. In England, and in some States of this country, the rule is, that when a body corporate institutes legal proceedings, either on a contract, or to recover real property, it must, at the trial, under the general issue, prove the fact of incorporation,' unless indeed the act of incorporation be a public act,

1 See ante, Chap. XI.

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Adams on Eject. 193; St. George's Church v. Nestles, 3 Johns. (N. Y.) R. 115.

Norris v. Staps, Hob. 21; Henriques v. Dutch West India Co. 2 Ld. Ray. 1535; 1 Kyd, 292, 293; Peters v. Mills, Buller, N. P. 107; Jackson v. Plumbe, 8 Johns. (N. Y.) R. 295; Dutchess Cotton Manufactory v. Davis, 14 Johns. (N. Y.) R. 245; Bank of Auburn v. Weed, 19 Johns. (N. Y.) R. 303; Bill v. Fourth Western Turnp. Co. 14 Johns. (N. Y.) R.

which the courts are bound to notice ex officio.' It is, however, generally admitted, that a corporation may declare in its corporate name, without setting forth in the declaration the act of incorporation, if the act be private. The proof of incorporation seems to have been held equally necessary in case of motions made by corporations, as in suits brought by them." But though in an action by a corporation, it must be prepared to show its evidence of incorporation, yet it is not so when the action is to recover lands, the legal title of which is in trustees for the use of the corporation, and the suit is in their name.1

In many of the States, on the other hand, the rule is well established, that if in a suit brought by a corporation the de

414; Ernst v. Bartle, 1 Johns. (N. Y.) Cas. 319; Utica Bank v. Smalley, 2 Cow. (N. Y.) R. 778; Vernon Society v. Hills, 6 Cow. (N. Y.) R. 25; Wood v. Jefferson County Bank, 9 Cow. (N. Y.) R. 205; Williams v. Bank of Michigan, 7 Wend. (N. Y.) R. 540; United States v. Stearns, 15 Wend. (N. Y.) R. 314; Wolf v. Goddard, 9 Watts (Penn.) R. 544 ; Agnew v. Bank of Gettysburgh, 2 Har. & Gill (Md.) R. 478; Rees v. Conocheaque Bank, 5 Rand. (Va.) R. 326; Hargrave & Jones v. Bank of Illinois, 1 Breese (Ill.) R. 84, 86; Central Manf. Co. v. Hartshorne, 3 Conn. R. 199; Middletown Bank v. Russ, Ibid. 135.

1 Agnew v. Bank of Gettysburgh, 2 Har. & Gill (Md.) R. 478; Dutchess Cotton Manufactory v. Davis, 14 Johns. (N. Y.) R. 245; Rees v. Conocheaque Bank, 5 Rand (Va.) R. 326; Vance v. Bank of Indiana, 1 Black. (Ind.) R. 80; Carmichael v. Trustees, &c. 3 How. (Miss.) R. 84.

* United States Bank v. Haskins, 1 Johns. (N. Y.) Cas. 132; Utica Bank v. Smalley, 2 Cow. (N. Y.) R. 770; Dutchess Cotton Manufactory v. Davis, 14 Johns. (N. Y.) R. 245; Bank of Michigan v. Williams, 5 Wend. (N. Y.) R. 482; Grays v. Turnp. Co. 4 Rand. (Va.) R. 578. But see Rees v. Conocheaque Bank, 5 Rand. (Va.) R. 326; Central Manuf. Co. v. Hartshorne, 3 Conn. R. 199; 2 Virginia Cas. 297; Zion Church v. St. Peter's Church, 5 W. & S. (Penn.) R. 215.

3 Grays v. Turnpike Co. 4 Rand. (Va.) R. 578.

Wolf v. Goddard, 9 Watts (Penn.) R. 544. And see Binney v. Plumley, 5 (Vt.) R. 500. Where a charter provided that each should pay to the trustees for the time being of a certain corporation, his proportion of certain expenses, and empowered the trustees to sue for the same, the action should be in the name of the trustees, who might declare both in their natural and official capacities. Comfort v. Leland, 3 Whart. (Penn.) R. 81.

fendant plead the general issue, it is an admission of the corporate existence of the plaintiffs, which dispenses with all proof on their part to that point. There is no rule of pleading, it has been said, more universal, than that by pleading to the merits, the defendant admits the capacity of the plaintiff to sue; and no reason can be shown why a corporation should be placed on a different footing, in this particular, from a natural person. In those States, however, in which the courts hold, that under the general issue it is not necessary to prove the corporate existence of the plaintiffs, an exception is made in case of foreign corporations. The United States Bank has been held to be a foreign corporation, so that an exemplification of its charter must be produced to prove its corporate character; for, of the acts of Congress creating corporations, a State court has no judicial knowledge.*

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Although from an old precedent," and from a note of Serjeant Williams, it appears, that the plea of nul tiel corporation was once a good plea in bar to an action by a corporation, yet in England and in those States of our own country, in which

Proprietors of Monumoi Great Beach, 1 Mass. R. 159; Christian Society in Plymouth v. Macomber, 3 Metcalf (Mass.) R. 235; School District . Blaisdell, 6 New Hamp. R. 197; Concord v. McIntire, 6 New Hamp. R. 527; Whittington v. Farmer's Bank, 5 Har. & Johns. (Md.) R. 489; Taylor v. Bank of Illinois, 7 Monroe (Ky.) R. 584; Methodist Church r. City of Cincinnati, 5 Ham. (Ohio) R. 286; Prince v. Com. Bank of Columbus, 1 Alabama R. 241. In a suit by a corporation, the declaration need not contain a profert or averment of charter. The want of a charter may be pleaded in abatement or perhaps in bar; but the defendant, by pleading the general issue and going to trial, waives the objection. Zion Church v. St. Peter's Church, 5 W. & S. (Penn.) R. 215.

2 Prince v. Com. Bank of Columbus, 1 Alabama R. 241.

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Society, &c. v. Young, 2 New Hamp. R. 310; School District of Blaisdell, 6 N. Hamp. R. 198; Lord v. Bigelow, 8 Vermont R. 445. In the case of a foreign corporation, under a plea of the general issue, the defendant may call in question the corporate character of the plaintiff. Lewis v. Bank of Kentucky, 12 Ohio R. 132.

United States Bank v. Stearns, 15 Wend. (N. Y.) R. 314.

5 Year Book, 2 Edw. 4, 34.

Saund. R. 340 a. b. n. 2.

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a corporation plaintiff is bound to prove incorporation under the general issue, upon the principles of good pleading, it would, upon the ground, that it amounts to the general issue, be bad on special demurrer.' The rule holds with regard to foreign as well as domestic corporations. In those States, on the other hand, where, under the general issue, a corporation plaintiff is not bound to prove their incorporation, the plea is good; and in such States, if special pleading be dispensed with by statute, and notices of grounds of defence substituted, the defendant, if he would avail himself of an objection to the corporate existence or character of the plaintiff, must give notice of his objection, or he cannot avail himself of it.* Though the fact of incorporation is to be proved, yet after a verdict in favor of plaintiffs, who sue as a corporation, the court will presume, that the fact of their being a corporation, and capable of suing in their aggregate capacity, was conceded or proved at the trial.'

1 Bank of Auburn v. Weed, 19 Johns. (N. Y.) R. 300; Farmers & Mechanics Bank v. Rayner, 2 Hall (N. Y.) R. 195; and see Kennedy v. Strong, 10 Johns. (N. Y.) R. 291; 1 Tidd, Prac. 559, 560; 1 Chitty Pleading, 467, 497. But any ground of defence which admits the facts alleged in the declaration, but avoids the action by matter which the plaintiff would not be bound to prove in the first instance, on the general issue, may be specially pleaded. Bank of Auburn v. Weed, 19 Johns. (N. Y.) R. 300. Corporations are sometimes created ipso facto, et eo instanti, by the mere passage of a statute; but more frequently the statute declares, and points out the mode in which the legal body may thereafter be brought into existence. It is to corporations of the latter class, and to actions in which the plea of nul tiel corporation may be pleaded to the statute of New York which declares, that in suits brought by a corporation created by or under any statute of this State, it shall not be necessary to prove, on the trial of the cause, the existence of such corporation; unless the defendant shall have pleaded in abatement, or in bar, that the plaintiffs are not a corporation, Propr. &c. of Southhold v. Horton, 6 Hill (N. Y.) R. 501; and 2 N. York R. St. 458, § 3.

* Farmers & Mechanics Bank v. Rayner, 2 Hall (N. Y.) R. 195.

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* Proprietors of Monumoi Great Beach v. Rogers, 1 Mass. R. 159. Christian Society in Plymouth v. Macomber, 3 Metcalf (Mass.) R. 235.

• British American Land Co. v. Ames, 6 Met. (Mass.) R. 391; Williams v. Bank of Michigan, 7 Wend. (N. Y.) R. 539.

$ 2. The existence of a corporation, incorporated by private act, may be proved either by an exemplified copy of the act, authenticated by affixing thereto the seal of the State, without other proof,' by a sworn copy of the same, or by admission;* all such proof being accompanied by proof of acts of user under the act or charter; such as, that shortly after the passage of the act, the company had an office or place of business, where the business, to carry on which they were incorporated, was carried on, and that the affairs of the company had been managed by directors from time to time chosen;' and the acts and admissions of a party, as the acting as the president of the corporation, and giving a note to it in its corporate name, is prima facie evidence of user. Where the corporation was a domestic corporation, the printed statute book, as printed by the printer of the State, has been admitted as evidence of the act of incorporation; but in case of a turnpike company, the appointment of inspectors by the governor, and the certificate of the inspectors that the road was completed, and that the gates were erected, are not sufficient evidence of the existence of the corporation. But the evidence of user seems to be necessary to accompany the evidence of the act of incorporation, only when something is

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Ibid. Wood v. Jefferson County Bank, 9 Cow. (N. Y.) R. 194; Utica Insurance Company v. Tillman, 1 Wend. (N. Y.) R. 555; Bank of Michigan v. Williams, 5 Wend. (N. Y.) R. 478; Williams v. Bank of Michigan, 7 Wend. (N. Y.) R. 540; Utica Ins. Co. v. Cadwell, 3 Wend. (N. Y.) R. 296; State v. Carr, 5 New. Hamp. R. 367; United States v. Johns, 4 Dallas R. 416; Searsburgh Turnp. Co. v. Cutler, 6 Vermont R. 315; United States v. Johns, 1 Wash. C. C. R. 363.

Gospel Society v. Young, 2 New Hamp. R. 310.

Utica Ins. Co. v. Tillman, 1 Wend. (N. Y.) R. 556; United States Bank v. Stearns, 15 Wend. (N. Y.) R. 314.

• Bank of Michigan v. Williams, 5 Wend. (N. Y.) R. 478; Williams v. Bank of Michigan, 7 Wend. (N. Y.) R. 540; Searsburgh Turnp. Co. v. Cutler, 6 Vermont R. 315; State v. Carr. 5 New Hamp. R. 367.

Wood v. Jefferson County Bank, 9 Cow. (N. Y.) R. 205, 206, and the

case of Chenango Bank v. Noyes, there cited.

Bill v. Fourth Western Turnp. Co. 14 Johns. (N. Y.) R. 416.