Nashua Savings Bank v. Land, Mortgage Agency Company

• Decision Date: 16 March 1903
• Docket Number: No. 167,ANGLO-AMERICAN,167
• Parties: NASHUA SAVINGS BANK, Petitioner , v. LAND, MORTGAGE, & AGENCY COMPANY
• Court: U.S. Supreme Court

189 U.S. 221

23 S.Ct. 517

47 L.Ed. 782

NASHUA SAVINGS BANK, Petitioner,

v ANGLO-AMERICAN LAND, MORTGAGE, & AGENCY COMPANY.

No. 167.

Submitted January 29, 1903.

Decided March 16, 1903.

This was an action by the defendant in error, a British corporation, in the circuit court for the district of New Hampshire, against the Nashua Savings Bank, a New Hampshire corporation, to recover an assessment made by such corporation in pursuance of its charter and by-laws, upon defendant's subscription to a thousand shares of its stock.

The case was tried before the circuit judge and a jury, and resulted in a verdict for the plaintiff by direction of the court, and a judgment against the bank in the sum of $7,131.10, which was affirmed on writ of error by the circuit court of appeals. 48 C. C. A. 15, 108 Fed. 764.

Messrs. John S. H. Frink and A. T. Batchelder for petitioner.

[Argument of Counsel from pages 222-224 intentionally omitted] Messrs. Omar Powell, Gilbert A. Davis, and Daniel L. Cady for respondent.

[Argument of Counsel from pages 224-227 intentionally omitted] Mr. Justice Brown delivered the opinion of the court:

The assessment in question had been made by the directors of the company, in pursuance of their amended articles of association, which declared that 'the directors may, from time to time, make such calls as they think fit upon the members in respect of all moneys unpaid on their shares, and each member shall pay the amount of every call so made upon him to the persons, and at the times and places, appointed by the directors.'

1. In order to prove the incorporation of the plaintiff company, as well as the liability and rights of the stockholders, the deposition of an attorney and solicitor of the supreme court of judicature in England, who was also managing director of the plaintiff company, was read in evidence. His testimony showed that the plaintiff was a corporation organized with limited liability under five different acts of Parliament, from 1862 to 1880, copies of which he produced and delivered to the commissioner, stating that these copies were 'issued by authority, being printed by Her Majesty's printer, and are as such by law receivable in evidence without further proof.' To the admission of the statutes the defendant excepted upon the ground that they were not proved according to the established rules of law.

As these statutes were the basis of the plaintiff's corporate existence, and its right to bring this action, they must undoubtedly be proved as facts. Liverpool & G. W. Steam Co. v. Phenix Ins. Co. 129 U. S. 397, 445, 32 L. ed. 788, 793, 9 Sup. Ct. Rep. 469. While it was stated by this court in the early case of Church v. Hubbart, 2 Cranch, 187, 238, 2 L. ed. 249, 266, that foreign judgments are usually and most properly authenticated either by an exemplification under the great seal, by a copy proved to be a true copy, or by the certificate of an officer authorized by law, which certificate must itself be properly authenticated, the circuit court of the United States sitting in New Hampshire may, under Rev. Stat. § 721 (U. S. Comp. Stat. 1901, p. 581), declaring that 'the laws of the several states,' with certain exceptions, 'shall be regarded as rules of decision in trials at common law in the courts of the United States,' receive such evidence of the authentication of foreign statutes as the practice of the courts in that state may authorize and justify. M'Niel v. Holbrook, 12 Pet. 84, 89, 9 L. ed. 1009, 1011; Connecticut Mut. L. Ins. Co. v. Union Trust Co. 112 U. S. 250, 255, 28 L. ed. 708, 710, 5 Sup. Ct. Rep. 119; Vance v. Campbell, 1 Black. 427, 17 L. ed. 168. The 'laws of the several states' with respect to evidence within the meaning of this section apply, not only to the statutes, but to the decisions of their highest courts. Bucher v. Cheshire R. Co. 125 U. S. 555, 582, 31 L. ed. 795, 798, 8 Sup. Ct. Rep. 974; Ex parte Fisk, 113 U. S. 713, 720, 28 L. ed. 1117, 1120, 5 Sup. Ct. Rep. 724; Ryan v. Bindley, 1 Wall. 66, 17 L. ed. 559.

The law of New Hampshire upon this subject appears to have been settled in Hall v. Costello, 48 N. H. 176, 2 Am. Rep. 207, in which an attorney, resident in New Hampshire, who had gone to Canada to investigate Canadian law, was permitted to state orally what he found the law to be, as embodied in the Queen's proclamation of neutrality. To same effect are Barrows v. Downs, 9 R. I. 446, 11 Am. Rep. 283; Jones v. Maffet, 5 Serg. & R. 523. There is an even greater reason for permitting a local attorney, of thirty years' experience, who, as he states, was intimately acquainted with the English company or corporation laws, to produce as evidence of such laws copies of the statutes printed by authority of the English government, and used as proofs of statutes in the English courts.

It would appear that such authentication of foreign laws would be deemed sufficient in the English courts, as in Lacon v. Higgins, 3 Starkie, 178, it was held that the French Code was sufficiently proved by a witness—a French vice consul—who produced a book printed by authority of the French government, which the witness stated contained the French Code, upon which he acted in his office as vice consul. In most, if not all, of the states of this Union statutes have been passed permitting laws of sister states to be proved simply by the production of a book containing what purports to be an authorized edition of such laws printed by state authority. Emery v. Berry, 28 N. H. 473, 61 Am. Dec. 622. While the same liberality is not extended to foreign laws required to be proved as facts, it would seem like sticking in the bark to hold that a foreign expert might testify orally as to what such laws were, and not be able to produce what purports to be the official edition of such laws, and to testify as to the authenticity of such edition, and to the fact that it was received as evidence in the domestic courts of that country. To the average mind it would seem as though there was much less liability to mistake in a printed copy of a statute from the official printer, than in a copy written and compared by an ordinary scrivener. The evidence was properly received.

2. Exception was also taken to the declaration, in that it contained no averment or allegation upon what conditions the plaintiff was authorized to make assessments. In this connection, it is insisted that the declaration should have averred that such an assessment was necessary to pay the debts of the plaintiff, or was made for the benefit of its creditors; that it is also defective in that it contains no averment of notice of such assessment to defendant, or that defendant ever made an express promise to pay such assessment; and no direct allegation that defendant was a stockholder at the time the assessment was made. It appears, however, by the act of 25 and 26 Vict., chap. 89, 'for the incorporation, regulation, and winding up of trading companies and other associations,' that the articles of association, 'when registered, . . . shall bind the company and the members thereof to the same extent as if each member had subscribed his name and affixed his seal thereto, and there were in such articles contained a covenant on the part of himself, his heirs, executors, and administrators, to conform to all the regulations contained in such articles, subject to the provisions of this act; and all moneys payable by any member of the company, in pursuance of the conditions and regulations of the company or any of such conditions or regulations shall be deemed to be a debt due from such member to the company, and in England and Ireland to be in the nature of a specialty debt.' It also...