The statute of 1884, c. 330, requires "Every corporation established under the laws of any other state or foreign country," and hereafter having a usual place of business here, before doing business, to appoint in writing the commissioner of corporations, or his successor in office, to be its true and lawful attorney, upon whom process might be served. The statute of 1888, c. 321, allows "Manufacturing corporations established under the laws of other states," which have complied with the provisions of the statute of 1884, c. 330, to purchase and hold such real estate here as may be necessary for conducting their busi ness. By the statute of 1895, c. 311: "Foreign corporations engaged in the business of selling or negotiating bonds, mortgages, notes or other choses in action," are made subject to the provisions of the statute of 1884, c. 330. The statute of 1896, c. 391, section 1, contains a provision relating to the personal liability, under certain circumstances, of "the officers and members or stockholders in any corporation established under the laws of any other state or foreign country." See also St. 1895, c. 157. Many other instances of legislation might be given where the dictinction between a corporation proper and a mere association or organization is shown to be clearly in mind. Unless the principal defendant can be considered a corporation, it can not be sued here under the name which the laws of Pennsylvania authorize it to use. Such laws have no extra-territorial force or effect. The trustee, therefore, was properly discharged. In the opinion of a majority of the court, the order discharging the trustee and dismissing the action must be affirmed. Note. Joint stock companies with transferable shares perhaps could be formed at common law, or under the law merchant, without special authority. (See Harrison v. Heathorn, 6 M. & G. 79; Mexican & S. A. Co., 5 Jur. N. S. 615, 27 Beav. 480.) But it has been said that acting as a corporation, without authority, was an indictable offense at common law. (Kinder v. Taylor, 3 L. J. 68; Duvergier v. Fellows, 5 Bing. 248, 5 M. & P. 403, 4 Am. & E. Enc. 185, note 2.) But acting as a corporation also included the idea of a limited liability of members, and so far as innocent third parties were affected, this could not be done without authority. By the Bubble act of 1719 (6 Geo. 1, c. 18), joint stock companies were declared to be common nuisances, members were subjected to penalties, and it was an offense for brokers to deal in their shares. This act was repealed in 1825 (6 Geo. IV, ch. 91), though perhaps not often, if ever, enforced for a long period before. In 1826, banking companies were allowed to sue in the name of a certain officer, after complying with certain rules, and in 1834, the crown was permitted to extend this privilege generally to joint-stock companies. In 1844 (7 & 8 Vict., c. 110) all companies were allowed to be incorporated, but the partnership liability was continued, but in 1855, they were permitted to organize with a limited liability (18 & 19 Vict., and 19 & 20 Vict., c. 47). In 1862, all former acts relating to companies were consolidated into one act for the incorporation of companies, which, with some modifications, is still the law in England. In the United States, most of the states have provided for joint stock companies, with transferable shares, and in some cases with limited liability, but the rules of partnership are applied so far as possible where the statutes under which they are formed are silent. 1. As to suits-1896, State v. Adams Express Co., 66 Minn. 271, 38 L. R. A. 225, (Service of summons may be made on local agent of such foreign joint stock company); 1889, Imperial Ref. Co. v. Wyman, 38 Fed. Rep. 574, 3 L. R. A. 503 (limited partnership created in Pennsylvania can not sue in the United States courts, as a "citizen" of that state, citizens of other states); 1881, Fargo v. L., N. A. & C. R. Co., 6 Fed. R. 787 (is a citizen of state creating for purpose of suing and being sued in United States courts); 1876, Maltz v. American Ex. Co., 1 Flip. (U. S.) 611, Fed. Cas. 9002, 3 C. L. J. 784 (is a citizen of creating state for purpose of being sued in United States courts); 1875, Wescott v. Fargo, etc., Co., 61 N. Y. 542 (president of such an institution is a corporation sole for purpose of suits) But see note 1, p. 31. 2. As to failure to comply strictly with statute-1896, Staver, etc., A. Mfg. Co. v. Blake, 111 Mich. 282, 38 L. R. A. 798 (technical non-compliance with law does not make members liable as general partners, but see next case); 1889, Vanhorn v. Corcoran, 127 Pa. St. 255, 4 L. R. A. 386 (failure to comply makes members liable as general partners). 3. As to taxation-1885, State v. State Board of Assessors, 47 N. J. L. 36, 27 L. R. A. 684, 13 Am. & Eng. Corp. Cas. 403, 31 Atl. 220 (Pennsylvania partnership association may be taxed in New Jersey as foreign corporation); 1892, People, etc., v. Coleman, 133 N. Y. 279, 16 L. R. A. 183, 37 Am. & Eng. Corp. Cas. 1, supra, p. 15 (joint-stock companies in New York, are not corporations for purposes of taxation); 1889, People, etc., v. Wemple, 117 N. Y. 136, 6 L. R. A. 303, 29 Am. & Eng. C. C. 610 (the United States Express Company, a joint stock company, may be taxed in New York as an incorporated company.) 4. As to status generally-1896, Rouse, Hazard & Co. v. Detroit C. C. Co., 111 Mich. 251, 38 L. R. A. 794; 1891, Allen v. Long, 80 Texas 261, 26 Am. St. Rep. 735, 38 Am. & Eng. Corp. Cas. 68 joint stock companies are governed by general principles of partnership); 1890, Oliver's Estate, 136 Pa. St. 43, 20 Am. St. Rep. 894 (partnership association is an artificial person, members do not own the property, and death of member does not dissolve). See also, 1890, Fifth Avenue Bank v. Colgate, 120 N. Y. 381, 8 L. R. A. 712; 1889, Abbott v. Hapgood, 150 Mass. 248, 5 L. R. A. 586, 22 N. E. Rep. 907; 1889, Tilge v. Brooks, 124 Pa. St. 178, 2 L. R. A. 796; 1888, Jennings' Appeal, 2 Monaghan 184 (Pa.), 2 L. R. A. 43; 1900, State v. U. S. Express Co., 81 Minn. 87, 83 Am. St. R. 366. Sec. 32. (3) From fraternity or society. LEWIS v. TILTON ET AL. 1884. IN THE Supreme Court OF IOWA. 64 Iowa 220-223, 52 Am. Rep. 436. The petition, as amended, states that the defendants and others formed a benevolent society for the prevention and suppression of intemperance, known and designated as the Ottumwa Temperance Reform Club, and that they were chosen to represent such society as its executive committee: that in March, 1878, the defendants entered into a written contract of lease with plaintiff, by the terms of which said Ottumwa Temperance Reform Club was to and did occupy the premises described in said lease, at the yearly rental of fifteen hundred dollars (a copy of said lease is attached to the petition); that by virtue of said lease the defendants, and the society of which they were members, occupied said premises from March 1, 1878, to July 1, 1879, and enjoyed all the benefits resulting from such occupancy; that these defendants verbally contracted with the Ottumwa Gas Light Company to furnish said Ottumwa Temperance Reform Club the gas required to light said opera house and rooms thereunder; that by virtue of said verbal understanding the gas company did from time to time, and as required, furnish said club a large amount of gas; that said club was not incorporated at the time the above contracts were made, and is not now; and that said account for gas has been assigned to plaintiff. Upon the grounds above stated, the plaintiff sought to make the defendants individually liable. To the petition there was a demurrer, which was sustained, and the plaintiff filed an amended petition, stating various acts and things done, and reaffirming all the allega-/ tions of the petition, and thereupon asked judgment against the defendants individually. To the amended petition the defendants deThe demurrer was sustained, and the plaintiff excepted, and, electing to stand thereon, appealed. SEEVERS, J. 1. As we understand the petition, the verbal contract entered into with the gas company is an original undertaking on the part of the defendants. At their request the gas was furnished the club, and, of course, it seems to us the defendants are bound to pay for the gas so furnished. It matters not to whom it was furnished. The gas company had the right to expect that the defendants would pay for whatever was furnished at their request. There is no allegation that credit was extended to the club, and the only presumption which can be indulged in is that the credit was extended to the defendants. As they contracted, they must pay. 2. The more serious question is whether the defendants are individually liable under the lease, which, on its face, shows that it was entered into between the plaintiff, as party of the first part, and the Ottumwa Temperance Reform Club, party of the second part, and is signed by the plaintiff, and by the defendants as follows: "Executive Committee of the Ottumwa Temperance Reform Club, R. L. Tilton, It is insisted that the lease shows that credit was extended to the club, and that the contract was made with it; that the principal was named, and therefore the defendants can not be made individually liable. This line of argument possibly would be conclusive if there was a principal. But there is none. The club is a myth. It has no legal existence, and never had. It can not sue or be sued. The defendants contracted in the name of a supposed principal; that is, they claimed there was a principal for whom they were acting, but it now appears that there was no principal known to the law. under the allegations of an amended petition, it should be assumed, we think, that there was, as a matter of fact, a body of men associated together for a benevolent purpose, who had assumed the name above stated, for the avowed purpose, by their united efforts, of suppressing intemperance. There is, however, some doubt in our minds whether it can be said that the plaintiff extended credit to an organization that had no legal existence. As the law does not recognize such an organ 12-WIL. CASES. But, ization, we are at a loss to know how or why it can be said as a matter of law that the plaintiff contracted with and extended credit to a mere myth. In legal parlance, the organization can not be named. It has no habitation or place of abode. It is also insisted that a fund was provided for the payment of debts, and hence it must be presumed that the plaintiff contracted in reliance upon such fund, and therefore the defendants can not be made individually liable. What the fact may be we are not advised, but certainly this does not appear on the face of the petition, and we have looked into the lease, and there is no provision in it from which such an inference can be drawn. It is also insisted that there is no known legal principle or rule under which the defendants can be made liable. It is said that they are not parties. This is true; that is to say, these defendants could not bind any other members of the organization as a partner in a joint enterprise, or a contract as to which he had no knowledge, and to which he did not assent. But we think "those who engaged in the enterprise (that is, became members of the organization) are liable for the debts. They contracted, and all are included in such liability who assented to the undertaking or subsequently ratified it." It was so held in Ash v. Guie, 97 Pa. St. 493; Fredendall v. Taylor et al., 26 Wis. 286; and this rule is supported to some extent by what was said by this court in Keller v. Tracy, 11 Iowa 530, and Drake v. The Board of Trustees, 11 Iowa 54. But, it is said, these defendants did not contract. They certainly represented that they had a principal for whom they had authority to contract. They, for or on behalf of an alleged principal, contracted that such principal would do and perform certain things. As we have said, there is no principal, and it seems to us that the defendants should be held liable, and that it is immaterial whether they be so held because they held themselves out as agents for a principal that had no existence, or on the ground that they must, under the contract, be regarded as principals, for the simple reason that there is no other principal in existence. We think the demurrer should have been overruled. Reversed. Note. See cases cited under White v. Brownell, infra, p. 187. Sec. 33. (4) From stock exchange. BELTON v. HATCH. 1888. IN THE COURT OF APPEALS OF NEW YORK. 109 New York 593–594, 4 Am. St. R. 495. Appeal from judgment of the general term of the supreme court in the first judicial department, entered upon an order made May 29, 1885, which affirmed a judgment in favor of defendant, entered upon an order overruling a demurrer to certain portions of the answer. GRAY, J. Plaintiff, as the assignee of one Des Marets, formerly a member of the New York Stock Exchange, sues to recover the proceeds received by that organization from a sale of the membership, or, as it is sometimes technically termed, the seat of said Des Marets. It is alleged by plaintiff in his complaint that Des Marets, for many years a member of the New York Stock Exchange, in October, 1883, became insolvent, and, under the laws governing that body, was suspended; that subsequently its governing committee determined that the failure was caused by doing business in a reckless and unbusinesslike manner, and resolved that Des Marets was ineligible for readmission, and in December following the failure the stock exchange, pursuant to its constitution and by-laws, disposed of his membership and seat for the sum of $25,000, which sum it retained and refused to pay over to plaintiff, who demanded it as Des Marets' assignee. The complaint also alleges that the New York Stock Exchange is an unincorporated association, organized and located in New York city; that its members have voluntarily established certain rules, conditions and articles of association or copartnership, which are designated as their constitution and by-laws, which are signed and consented to by the members and which govern them, their officers and committees, and which control in the conduct of the transactions and concerns of the association and are binding and obligatory upon the members. The answer of the defendant, after admitting the allegations of the complaint which I have mentioned, sets forth much of the constitution and by-laws of the exchange, and alleges the distribution of the proceeds of the sale of Des Marets' membership to have been made among his creditors in the exchange, pursuant to their provisions. The plaintiff demurred to this portion of the answer on the ground that it was insufficient in law upon its face. Although this matter was not stated as a separate defense, totidem verbis, yet as it was affirmative in its nature and constituted the defense and justification of the association in disposing of Des Marets' membership and in retaining the proceeds arising from such disposition, we shall not consider the demurrer as improperly interposed and will dispose of the questions raised by these pleadings. Their decision involves the legal relations to each other of the members composing the association of the New York Stock Exchange, and the extent and validity of the powers reserved by its constitution and by-laws, and conferred upon its officers and committees in the management of its affairs and in the control over a member. The New York Stock Exchange is a voluntary association of individuals, united, without a charter, in an organization for the purpose of affording to the members thereof certain facilities for the transaction of their business as brokers in stocks and securities, and a convenient exchange or sales-room for the conduct of such transactions. It can not be said to be strictly a copartnership, for its objects do not come within the definition of one. A copartnership results from a contract between the parties by which they agree to combine their property or labor, or both, in some common enterprise and for a common profit, |