Grubb v. Mahoning Navigation Company

• Decision Date: 01 January 1853
• Citation: 14 Pa. 302
• Parties: Grubb versus Mahoning Navigation Company.
• Court: Pennsylvania Supreme Court

14 Pa. 302

Grubb versus Mahoning Navigation Company.

Supreme Court of Pennsylvania.

ERROR to the Common Pleas of Jefferson county.

W. P. Jenks, for plaintiff in error, contended that the act of assembly and act of incorporation and charter were evidence merely of a right to exist; but that evidence should have been given of the acceptance of the charter and an organization under it. That the existence is alleged in the declaration, an organization being averred in it: 10 Mass. 97, Portsmouth Livery Company v. Watson. That proof of notice to pay was necessary: 3 Pa. Rep. 149; 4 Whar. 12; 3 id. 198; 4 Yeates 350. As to the third error, that evidence should have been given that the defendant below, at the time he made the subscription, paid the two dollars required by the act to be paid: 10 Watts 364 B. F. Lucas, for the Company.—That the charter, in pursuance of the act, gave existence to the company. That if notice to pay was necessary, the want of it should have been pleaded in abatement. But that it was not necessary; that notice is to be proved only when the penalty is sued for: Gray v. M. N. Company, 2 W. & Ser. 162. That the objection as to the non-payment of two dollars per share, was not raised in the court below: 3 Pa. Rep. 71.

The opinion of the court was delivered by BELL, J.

That a plaintiff corporation need neither aver nor prove the fact of its incorporation, unless that fact be put in issue by a proper plea pleaded, would seem to be the doctrine declared in the case of Zion Church v. St. Peter's Church, 5 W. & Ser. 215. Other cases of authority, however, hold that though the charter of incorporation need not be specially set out in the pleadings, it is incumbent on the plaintiff to prove it on the trial of the general issue: Bank of United States v. Haskins, 1 Johns. Cases 132; Jackson v. Plumbe, 8 Johns. Rep. 378; Dutchess Cot. Man. v. Davis, 14 Johns. Rep. 238. If the former be the true rule, the present plaintiff below went further than he could rightfully have been called on to go; if the latter, I think it is clear the proof given was fully competent to establish the asserted fact. The act of incorporation provides, that when sixty shares of the capital stock of the company shall have been subscribed, the commissioners may, and after the whole number of shares are subscribed, shall certify the fact to the Governor, who shall thereupon create and erect the subscribers into a body politic and corporate, in deed and in law, by the name, style, and title of the "President, Managers, and Company of the Mahoning Navigation Company," by which name the said subscribers shall enjoy all the immunities and privileges of a corporation, among which is specially enumerated the power of bringing actions at law. The plaintiff accordingly averred and proved the act of Assembly, the certificate of the commissioners, and the letters-patent issued in pursuance of the act, by the Governor of the Commonwealth. Clearly this was all it was necessary to do, in order to establish the corporate existence. From the moment the letters-patent were issued, the subscribers, including the defendant below, became a corporation for every practicable purpose: 10 Wend. 267; 8 Greenleaf 365; 2 W. & Ser. 79. The subsequent formal organization of the company, by the election of its officers, was not at all necessary to perfect the corporate being. This was required only for the convenient transaction of its business, not to confer upon it the capacity to act. An examination of all the cases, with features similar to that before us, will show that no more was required to establish the plaintiff's title to sue, than was exhibited here.

But it is insisted that as the plaintiff chose, though unnecessarily, specifically to allege in the narr. as a part of his case, that the company had been duly organized in pursuance of the act of incorporation, by the election of the designated officers, he was bound to prove it, under the...