Camden & Amboy Rail-Road & Transportation Co. v. Remer , 4 Barb. 127 ( 1848 )

Hand, J.

The parenthetical allegation in the bill, “ (who were authorized so to do,)” I think may be applied to a designation of the officers who could act for the company. It is not to be supposed that so important a matter was intended to slip into the pleadings in a manner so curt, loose and indefinite. The main question then, for I do not think the difficulties suggested orally by the defendants counsel are tenable, is, should the complainants have averred their authority to purchase Kohl’s supposed interest in the judgment Remer had obtained? This judgment was recovered in this state, but the complainants were a corporation in New Jersey, and the purchase, as appears by the assignment, was made in that state. Corpora-lions must be constituted in some place; but by comity of nations, they are permitted to sue in a foreign country, (Silver Lake Bank v. North, 4 John. Ch. Rep. 370; 4 Wheaton, 518; Story’s Eq. PI. 55; 5 Wend. 482,) and now our statute allows this to be done. (2 R. S. 457.) It is said, correctly no doubt, that corporations must be subject to the laws of the state where they exercise their powers, wherever chartered. (13 Pet. Rep. 589. Angell & Ames on Corp. 122, and note.) What effect the purchase of this claim in New Jersey, if legal there, will have on the remedy here, it is not necessary now to determine. (11 Paige, 635.) At common law, corporations could hold and purchase property of any kind, though not so by the civil law. (1 Bl. 478. 2 Kent. 281, and cases there cited. Angell & Ames on Corp. 110, and cases there cited.) By various restrictions the power to do so is now very much abridged. The modem doctrine is, to consider corporations as having such powers as are specifically granted by the act of incorporation, or are necessary for the purpose of carrying into effect the powers expressly granted, and as not having any other. (2 Kent, 298, and cases there cited. Bank of Augusta v. Earle, 13 Pet. Rep. 587. 15 John. Rep. 358.) And it is well settled that the complainant must have not only an interest in the subject of the suit, but a title to institute the suit. (Mitf. 155, 231. 8 Ves. 398. Story’s Eq. PL §§ 261, 318, 549.) But notwithstanding this rule, it seems that a corporation need not set forth its title in the pleadings, but may show on the trial its corporate existence, and that it had power to make the contract it seeks to enforce or make available. (Norris v. Staps, Hob. 211. Bank of Michigan v. Williams, 5 Wend. 482, and cases there cited. The M. and F. Ins. Bank of Georgia v. Jauncey, 1 Barb. Sup. Court Rep. 486. And see 1 Chit. Pl. 331; 1 Saund. Rep. 340, n. 2; Angell & Ames on Corp. 568, 9, and cases there cited.) This may not seem very logical pleading, at least in equity, but perhaps the rule may be a safe one. Such seems to have been the practice adopted by the pleaders in the case of the Silver Lake Bank v. North, (supra.) The M. & F. Bank of Georgia v. Jauncey,. was in equity. However, I believe all the cases in this state, and in England, except The Silver Lake Bank v. North, which are cited in Angell & Ames on Corporations, were cases at law; and most of them merely decide that the charter need not be set out; which is undoubtedly correct. The cases in 4 John. Ch. Rep. 370, and 1 Barb. Sup. Court Rep. 486, are all I have been able to find in a court of equity bearing on this point. Norris v. Staps, with which the rule seems to have originated, was a case at law, and the averments were much more full than in the principal case. And besides, the defendant there pleaded nil debet. Still, I cannot see why the pleading, in this respect, should not be as full at law as in equity, and perhaps it is as well to have a uniform rule. The demurrer must be overruled and the defendants must have 40 days to answer on payment of costs. In case of their default, the bill may be taken as confessed.