real estate to a certain limited extent is, that our statute corporations cannot take and hold real estate for purposes foreign to their institution. (a)1 As we have no general statutes of mortmain, perhaps a legally constituted corporation in another state can purchase and hold lands ad libitum in New York, provided their charter gave them the competent power. (b)2 A corporation may take a mortgage upon land by way of security for loans made in the course and according to the usage of its lawful operations; or in satisfaction of debts previously contracted in the course of its dealing. Such acts are generally provided for in the charters of incorporation; and without such a special authority, it would seem to be implied in the reason and spirit of the grant, if the debt was bona fide created in the regular course of business. (c)

(a) Parker, Ch. J., in First Parish in Sutton v. Cole, 3 Pick. Rep. 232. The provincial statute of Massachusetts of 28 Geo. II. was commonly called a statute of mortmain. It was virtually repealed by the statute of 1785, which was a substitute for it; and it has been held, that a bequest in trust for pious and charitable uses was not void. Bartlet v. King, 12 Mass. Rep. 537. The Revised Statutes of Massachusetts of 1836, continue the same provision, and deacons and churchwardens of Protestant churches are made bodies politic, competent to take donations for their churches, and for the poor thereof. Revised Statutes, part 1, tit. 8, sec. 39. The British mortmain acts were never recognized as the law of Virginia or Kentucky. Robertson, Ch. J., 4 Dana, 356. Lathrop v. Commercial Bank of Scioto, 8 Dana, 114. In Louisiana, substitutions and fidei commissa are abolished. Civil Code, art. 1507. The object was to prevent property from being placed out of commerce, but it does not apply to naked trusts to be executed immediately.

(b) This is declared to be the law in Kentucky; Lathrop v. Commercial Bank of Scioto, 8 Dana, 114. The decision in that case goes to establish the doctrine that a corporation of another state or nation can contract and sue on contracts made by its agent in Kentucky, provided they be such as its charter authorizes, and consistent with the local law and policy of the state; and a corporation of another state can take and hold lands by purchase, mortgage, or devise, when consistent with its charter, and not denied by positive law. This liberal and enlightened decision was fully considered and ably sustained.

(c) Silver Lake Bank v. North, 4 Johns. Ch. Rep. 370. Baird v. Bank of Washington, 11 Serg. & Rawle, 411.8

But it is presumed to be held or conveyed for corporate purposes until the contrary is proved. Farmers' L. & T. Co. v. Curtis, 3 Seld. 466. See State v. Mansfield, 3 Zabr. 510. State v. Newark, 1 Dutch. 315.

2 State v. B. C. & M. R. R. Co. 25 Vt. 433. Steamboat Co. v. McCutcheon, 18 Penn. 13. Thompson v. Swoope, 24 Penn. 474.

3 Farmers' L. & T. Co. v. Clowes, 4 Edw. Ch. 575.

2. To sue and be sued.

Corporations have a capacity to sue and be sued by their corporate name. (a) Private moneyed corporations are not *only liable to be sued like private individuals in assumpsit *284 for breaches of contract, but they may be sued by a special action on the case for neglect and malfeasance and breaches of duty, and in actions of trespass and trover for damages resulting from trespasses and torts committed by their agents under their authority, and the authority of such agents need not be under seal. (b) From their inability to be arrested, corporations are to

(a) But individual members of a corporation cannot, by a bill in equity, sue for corporate claims without the consent of the corporation; and if the corporation neglect their rights and duties, and individual corporators wish for redress, they must at least make the corporation a party defendant. Hersey v. Veazie, 24 Maine Rep. 1.2

(b) Yarborough v. The Bank of England, 16 East's Rep. 6. Smith v. B. & S. Gas Light Co. 1 Adolph. & Ellis, 526. Maund v. Monmouth Canal Co. 1 Car. & Marshman, (606,) 330, Phil..ed. Townsend v. Susquehannah Turnpike, 6 Johns. Rep. 90. Gray v. Portland Bank, 3 Mass. Rep. 364. Chestnut Hill Turnpike v. Rutter, 4 Serg. & Rawle, 6. Fowle v. Common Council of Alexandria, 3 Peters's U. S. Rep. 398. Rabassa v. Orleans Navigation Co. 5 Louis. Rep. 461. Shaw, Ch. J., 19 Pick. Rep. 516. Rector of the Ascension v. Buckhart, 3 Hill, 193. Angell & Ames on Corporations, pp. 385-391, 3d edit. Mayor of New York v. Bailey, 2 Denio, 433. In Ohio, it has been adjudged that corporations are liable like individuals, for injuries done, as by cutting ditches and water-courses, in such a manner as to cause the water to overflow and injure the plaintiff's land, although the act done was not beyond their lawful powers. Rhodes v. Cleveland, 10 Ohio Rep. 159. Individuals are liable, if

1 One state, as a corporation, may institute a suit in another. Hines v. The State of North Carolina, 10 Smedes & Marsh. R. 529.

A right to sue includes a right to refer. Alexandria Canal Co. v. Swann, 5 How. U. S. 83. Brady v. The Mayor, &c. of Brooklyn, 1 Barb. S. C. Rep. 584. A suit will not lie against a corporation for a dividend, without a previous demand. State v. Baltimore & O. R. Co. 6 Gill R. 363.

2 As to the power of a court of equity over corporations at the suit of a single stockholder, see Salomons v. Laing, 12 Beav. 339. Dodge v. Woolsey, 18 How. U. S. 331. Kean v. Johnson, 1 Stockt. 401. Hodges v. Screw Co. 3 R. I. 9. R. R. Co. v. Harris, 27 Miss. 517. R. R. Co. v. Wheeling, 13 Gratt. 40. As to how far single stockholders are bound by acts of the corporation beyond its powers or modifying its original charter, see above cases and ex parte Johnson, 31 E. L. & Eq. 430. Insurance Co. v. Connor, 17 Penn. 136. Insurance Co. v. Hobart, 2 Gray, 543. The acceptance of an amendatory act changing materially the charter does not bind a non-assenting member. R. R. Co. v. Harris, 27 Miss. 517.

8 The same doctrine is established in New York. Hay v. The Cohoes Co. 2 Comst. R. 159. (S. C. 3 Barb. S. C. Rep. 42.) Tremain v. Same, id. 163. As to the liability of corporations for the acts of their agents, see note (1,) post, p. [291.] And Delmonico v. The Mayor, &c., of N. Y. 1 Sandf. (Law) R. 222. McCombs v. Town Council of Akron,

15 Ohio R. 474. Watson v. Bennett, 12 Barb. R. 196.

be sued by original writ or summons; and at common law, they might be compelled to appear by distress or seizure of their property. (a) A foreign corporation, in the character of its mem

in the commission of a lawful act, damage thereby accrues to another, provided he could have avoided it with due care. Lambert v. Bessey, T. Raym. 421. A railroad company is not responsible for a building set on fire and destroyed by a spark from a railroad engine, provided there was no negligence on the part of the company, and there was the exercise of due care and skill. The damage was the unavoidable and casual result of the performance of a lawful act.1 Burroughs v. Housatonic R. R. Co. 15 Conn. Rep. 124. S. P. infra, vol. iii. 436.

(a) The process, pleadings, and other proceedings at law and equity, in suits by and against corporations, and the competency of corporators as witnesses in suits in which the corporation is a party, are fully discussed, and with a reference, in the most ample manner, to English and American authorities, in Angell & Ames's Treatise on Corporations, ch. 18. See infra, p. 290. Upon judgment and execution against a corporation for a debt, its property, real and personal, may be attached or seized and sold, as in the case of individual defendants. It is the ordinary practice. Buchanan, Ch. J., in State of Maryland v. Bank of Maryland, 6 Gill & Johnson, 219. Slee v. Bloom, 5 Johnson's Chancery, 366. S. C. 19 Johnson's R. 456. Pierce v. Partridge, 3 Metcalf, 44. Perry v. Adams, id. 51. The Queen v. The Victoria Park Co. 1 Adolph. & Ellis, N. S. 288. If a railroad company contracts debts which it is unable to pay, the better opinion would seem to be, that the wood and iron on the railway may be taken on execution and sold, and the purchaser acquires thereby a right of property in the articles, and may take possession of them and carry them away, though the company be thereby rendered unable to execute its corporate purpose, and may in consequence forfeit its charter. See this question very ably discussed in the American Law Magazine, vol. iv. No. 8, for January, 1845. This very point has since been decided in the State of North Carolina v. Rives, 5 Iredell's N. C. Rep. 297. It was held that the R. R. company's interest in land might be sold with the fixtures and materials,

1 Railroad v. Yeiser, 8 Barr's R. 366. McCready v. South Carolina R. R. Co. 2 Strobh. R. 356. Under a statute in Massachusetts, making railroads liable for injuries done to buildings by fire communicated by their engines, it was held that the corporation was liable for injuries done to a house which had been set on fire by sparks from a shop, which was destroyed by fire communicated by the engine. Hart v. Western R. R. Corporation, 13 Met. R. 99. In Piggot v. Eastern Counties R. Co. 3 Man. G. & Scott's R. 229, it was held that the onus was on the company to show due care. See, also, Huyett v. P. & R. R. 23 Penn. 373. Aldridge v. G. W. R. Co. 3 M. & G. 515. Where cattle are trespassers on a railroad, their owners cannot maintain an action against the railroad company for injuries to the cattle by the passage of the trains. Vandegrift v. Rediker, 2 New Jersey R. 185. Clark v. Syr. & U. Co. 11 Barb. R. 112. But the circumstances under which the owner of cattle is liable as a trespasser differ in different jurisdictions. N. Y. & E. R. R. v. Skinner, 19 Penn. 298. C. & M. R. R. v. Patchin, 16 Ill. 198. C. H. & D. R. R. v. Waterson, 4 Ohio St. 424. See further as to liability for negligence by railroads, Marsh v. New York & E. R. Co. 14 Barb. R. 364. Willetts v. Buffalo R. Co. 14 Barb. R. 585. Munger v. Tonawanda R. Co. 4 Comst. R. 349. Brand v. Schenectady & T. Co. 8 Barb. R. 368. Phil, & Read. R. v. Derby, 14 How. U. S. 468. C. C. & C. R. Co. v. Elliot, 4 Ohio St. 474. Trow v. Vt. C. R. R. Co. 24 Vt. 487

bers as aliens, (unless they be alien enemies,) may sue in the federal courts. (a) They may sue upon a mortgage taken upon

and the purchaser takes and holds them until the charter expires, and then the land reverts to the original proprietor. The corporate franchise cannot be sold, nor does the sale dissolve the corporation. See, also, the right to sell the fixtures, in Ranney v. Orleans N. Company, 6 Robinson's Louis. Rep. 381. But on the other hand, in Winchester and L. Turnpike Road Company v. Vimont, 5 B. Monroe, 1, it was adjudged that a turnpike road was not the subject of sale, even under a decree in chancery, to pay debts. The stock belonged to individuals, and not to the company. The mere road belonged to the company as a right of way only for particular uses, and when it ceases to be thus used, the land reverts to the grantors. The purchaser at such a sale would not acquire any valuable right, for corporate powers would not follow the purchase. A sale of the road would not carry a right to the tolls, for that would be the sale of a chose in action, which cannot be thus effected. The only proper remedy for the creditor under this decision, if not under that in the preceding case, is by decree, applying by a receiver the net tolls to the payment of the creditor. In Pennsylvania, corporation franchises cannot be sold on execution, but under their sequestration act of 16th June, 1836, though turnpike roads, railroads, and canals may be the subject of sequestration for debt, yet where the public have an interest in them, the court may order that the revenues be applied in the first place to keep the works in repair. The Susquehanna Canal Company v. Bonham, 9 Watts & Serg. 27. At common law the first process or summons against a corporation was to be served on the mayor, president, or other head officer. The statute law of New York, (N. Y. Revised Statutes, vol. ii. p. 457,) has simplified the common-law proceeding, by directing that the writ, or first process, against a body corporate, be served on the president, presiding officer, cashier, secretary, or treasurer; and if the process be returned served that the plaintiff, instead of being driven to compulsory and vexatious steps to compel an appearance by distringas, may enter an appearance for the defendants, of course, and proceed as in cases of personal actions against natural persons. The Revised Codes of Virginia, (1 R. C. 1819,) and of North Carolina, (1 R. S. 1837,) have a similar provision for the service of process on corporations. 1 Robinson's Pr. 134. In Connecticut, corporations are liable to the process of foreign attachment, and the offi cers can be made parties, and held to answer on oath. Knox v. Protection Ins. Co. 9 Conn. Rep. 430. See Brumly v. Westchester M. B. So. 1 Johns. Ch. Rep. 366, S. P. So in the province of New Brunswick, by statute of 6 Wm. IV., c. 33, a writ of summons is substituted for the original writ, and a corporation may be proceeded against in a summary way. Kerr's N. B. Rep. 276. Corporations show by proof, on the trial, that they are a corporation. Carmichael v. Trustees of School Lands, 3 Howard's Miss. Rep. 84. Williams v. Bank of M. 7 Wendell, 539. But corporations are not liable to be sued out of the state, except upon foreign attachment in rem, under local statutes. Clarke v. N. J. Steam N. Co. 1 Story's Rep. 531. Bushel v. Commonwealth Ins. Co. 15 Serg. & Rawle, 176. A public municipal corporation cannot be sued out of the county in which it is situated. Lehigh County v. Kleckner, 5 Watts & Serg. 181. Nor can a foreign corporation be sued in New York under their attachment

(a) Society for Propagating the Gospel v. Wheeler, 2 Gall. Rep. 105. Henriques v. Dutch W. India Co. 2 L. Raym. 1535.

lands as security for a debt. (a) The same rule, allowing *285 corporations of one state to contract and sue in their corporate name in another, has been declared in several of the other states, and may be now considered as the general law of the land. (b) 1

act, which only contemplated the case of a liability to arrest. M'Queen v. M. M. Co. 16 Johnson, 6. But its property may be attached by a process in rem. Clark v. New Jersey Co. 1 Story, C. C. R. 531. A foreign corporation cannot be sued as trustee for effects in their hands, under the attachment act in Massachusetts. Union T. Road v. N. E. M. Ins. Co. 2 Mass. Rep. 37. Peckham v. N. Parish in H. 16 Pick. 286. But they may in rem under the attachment act of Pennsylvania. Bushel v. Commonwealth Ins. Co. 15 Serg. & Rawle, 176. Angell & Ames on Corporations, 334-342, 2d edit., and in New Hampshire and other states under their foreign attachment law, or whenever effective service can be made upon it or its property. Libbey v. Hodgdon, 9 N. H. Rep. 394. Martin v. Bank of Alabama, 14 Louis. R. 415. U. S. Bank v. Merchants' Bank, 1 Rob. Va. R. 573.

(a) Silver Lake Bank v. North, 4 Johns. Ch. Rep. 370. It is now settled by statute, (N. Y. Revised Statutes, vol. ii. p. 457,) that a foreign corporation may, upon giving security for the payment of the costs of suit, prosecute in the courts of the state, in the same manner and under the same checks as domestic corporations. A state is a corporation, and may sue in another state. Delafield v. The State of Illinois, 2 Hill's N. Y. Rep. 159. Angell & Ames on Corporations, 3d edit. 376.

(b) Williamson v. Smoot, 7 Martin's Louis. Rep. 31. N. Y. Firemen Ins. Co. v. Ely, 5 Conn. Rep. 560. Portsmouth Livery Company v. Watson, 10 Mass. Rep. 91. Taylor v. Bank of Alexandria, 5 Leigh, 471. Bank of Edwardsville v. Simpson, 1 Missouri Rep. 184. Lathrop v. Commercial Bank of Scioto, 8 Dana, 114. Stewart v. U. S. Ins. Co. 9 Watts's Rep. 126. Bank of Washtenaw v. Montgomery, 2 Scammon's Rep. 422. Bank of Augusta v. Earle, 13 Peters's Rep. 519-591. Guaga Iron Co. v. Dawson, 4 Black. Indiana Rep. 202. Bank of Marietta v. Pindall, 2 Randolph's Rep. 465; but in this last case it was held, that the bank of another state could not enforce a primary contract made in Virginia. A foreign corporation is permitted to sue in the English courts. Henriques v. Dutch W. India Co. 2 Lord Raym. 1532. S. C. 1 Str. 612. 2 Ibid. 807. National Bank of St. Charles v. De Barnales, 1 C. & Payne, 569. Angell & Ames on Corporations, 314, 315, 2d ed. So, a sovereign may sue in England, in equity as well as at law. Hullett v. King of Spain, 1 Dow & Clarke's Rep. 169. S. C. 3 Simons, 338. Brown v. Minis, 1 M'Cord's S. C. Rep. 80. In this case a shade of doubt was thrown over the question, but there was no decision. In the case above mentioned, from 2 Randolph, the court held, that as it was the policy of Virginia to restrain all banking operations by corporations not established by their own laws, a bank in Ohio could not be per

1 But a corporation can only be sued in the jurisdiction where its business is done. N. J. R. R. Co. v. M. C. R. R. Co. 5 McL. 444. Nor does the accidental temporary presence of its officers in the foreign state give jurisdiction. Moulin v. Insurance Co. 4 Zabr. 222. A corporation, though a citizen for the purpose of giving the U. S. courts jurisdiction in suits with the inhabitants of other states, is not entitled under the constitution of the United States to the privileges of citizens in other states. Warren Co. v. Etna Co. 2 Paine, C. C. 501. Tatem v. Wright, 3 Zabr. 429.