bers as aliens, (unless they be alien enemies,) may sue in the federal courts. (c) They may sue upon a mortgage taken upon lands as security for a debt. (d) 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

der 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 Rob. Pr. 134. In Connecticut, corporations are liable to the process of foreign attachment, and the officers can be made parties, and held to answer on oath. Knox v. Protection Ins. Co. 9 Conn. 430. See Brumly v. Westchester, M. B. So. 1 Johns. Ch. 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 (N. B.) 276. Corporations show by proof, on the trial, that they are a corporation. Carmichael v. Trustees of School Lands, 3 Howard (Miss.) 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. Clark v. N. J. Steam N. Co. 1 Story C. C. 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. Cleckner, 5 Watts & Serg. 181. Nor can a foreign corporation be sued in New York under their Attachment Act, which only contemplated the case of a liability to arrest. M'Queen v. M. M. Co. 16 Johns. 6. But its property may be attached by a process in rem. Clark v. New Jersey Co. 2 Story C. C. 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. 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 effect ive service can be made upon it or its property. Libby v. Hodgdon, 9 N. H. 394. Martin v. Bank of Alabama, 14 Lonis. 415. U. S. Bank v. Merchants' Bank, 1 Rob. (Va.) 573.

(c) Society for Propagating the Gospel v. Wheeler, 2 Gallison, 105. Henriques v. Dutch W. India Co. 2 Lord Raym. 1535.

(d) Silver Lake Bank v. North. 4 Johns. Ch. 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 (N. Y.) 59. Angell & Ames on Corporations, 3 edit. 376.

other states, and may be now considered as the general law of the land. (a) 1

1

(5). Of their right to hold to charitable uses.

It has been a question of grave import and difficult solution,

(a) Williamson v. Smoot, 7 Martin (Louis.) 31. N. Y. Firemen Ins. Co. v. Ely, 5 Conn. 560. Portsmouth Livery Company v. Watson, 10 Mass. 91. Taylor v. Bank of Alexandria, 5 Leigh, 471. Bank of Edwardsville v. Simpson, 1 Missouri, 184. Lathrop v. Commercial Bank of Scioto, 8 Dana, 114. Stewart v. U. S. Ins. Co. 9 Watts, 126. Bank of Washtenaw v. Montgomery, 2 Scam. 422. Bank of Augusta v. Earle,

13 Peters U. S. 519-591. Guaga Iron Co. v. Dawson, 4 Black. (Ind.) 202.· Bank of Marietta v. Pindall, 2 Rand. 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 Carr. & P. 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, 169. S. C. 3 Sim. 338. Brown v. Minis, 1M'Cord (S. C.) 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 permitted to establish an agency in Virginia for discounting notes, or carrying on other banking operations, nor could an action be sustained in Virginia by the bank on a note thus acquired. This limitation to the general rule, that a foreign corporation may sue, is the same in effect as that prescribed by the New York statute, and which will not allow the corporation of any other state or country to do any act, or maintain a suit on any contract arising therein, which is not allowed to be done by any domestic corporation. It was in this view that the court, in the case of Randolph, held, that the Ohio Bank could not make a primary contract in Virginia, in relation to banking business, as by discounting notes, though, if the same be done in Ohio, the bank could sustain a suit thereon in Virginia. The court in Virginia raised, but did not decide, the question, whether the bank in Ohio might not make a secondary contract in Virginia, for carrying into effect the contract originally made in Ohio. A point bearing on this was decided in the English case of Henriques, where a suit by a Dutch corporation, on a recognizance of bail taken in England, was sustained; and in the case of the Silver Lake Bank v. North, where a mortgage taken in New York, on lands in that state, to secure a bank loan made in Pennsylvania was enforced.

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. This is true only where a corporation confines its business to the state in which it is created. Where it makes contracts and owns property in another state, the rule is different. Moulin v. Trenton Ins. Co. 1 Dutch. (N. J.) 57. 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.

whether a corporation, instituted as a charity, could be permitted to become the cestui que trust of lands devised for charitable uses. Corporations are excepted out of the statute of wills in England, and in New York and most of the other states; and it has been decided that they cannot be directly devisees at law. (b) But in England, by the statute of 43 Eliz. ch. 4, commonly called the statute of charitable uses, lands may be devised to a corporation for a charitable use, and the Court of Chancery will support and enforce the charitable donation. The various charitable purposes which will be sustained are enumerated in the statute; and the administration of justice, in this or any other country, would be extremely defective, if there was no power to uphold such dispositions. The statute of Elizabeth has not been reënacted in New York, New Jersey, Pennsylvania, or Maryland, and probably not in any of the United States, though it may not have been abrogated in some of them; (c) and the inquiry then is, whether

It may now be considered as a settled principle of law, that a corporation in one state or country may not only sue, but may make valid contracts, in another, provided their charter warrants such contracts, and there is no positive disability by statute for a corporation to make such contracts in the state where they are made. As a general rule, personal rights and contracts have no locality, and the laws of comity apply in their fullest extent between the several states of the Union. This whole doctrine was definitely established in the Supreme Court of the United States, in the case of the Bank of Augusta v. Earle, 13 Peters U. S. 519, where it was held, in a clear and able opinion, delivered by the chief justice, that the purchase by a competent agent in Alabama of a bill of exchange, by an incorporated bank of another state, was a valid contract. A foreign corporation may contract according to the laws in another state, and according to the rate of interest in such other state, though that rate be higher than in its own state, when neither the charter nor the laws of such other state prohibit it. Frazier v. Willcox, 4 Rob. (Louis.) 517.

In several of the states, banking corporations, incorporated out of the state, are prohibited by statute from exercising banking powers within it.

(b) Jackson v. Hammond, 2 Caines' Cases in Error, 337.

(c) The statute of Eliz. is in force in North Carolina, (1 Hawks, 96;) and in Kentucky the statute of charitable uses of 43 Eliz. is held to be in force, and was never repealed; and, consequently, though there be a defect or want of cestui que use to take the use, or, if the use be too indefinite and uncertain to be enforced independent of the statute, yet the Court of Chancery will obviate the difficulty, and give it effect as near the general intent as may be, under the cy pres doctrine. Gass & Bonta v. Wilhite, 2 Dana

2 Day v. Newark Man. Co. 1 Blatch. C. C. 628. Mumford v. Am. Life Ins. Co. 4 Comst. 463. City Bank of Columbus v. Beach. 1 Blatch. C. C. 425. N. Y. Floating Derrick Co. v. Jersey Oil Co. 3 Duer, 648. Mutual Benefit Life Ins. Co. v. Davis, 12 N. Y. 569. Bard v. Poole, 12 N. Y. 495.

a court of equity has power to execute and enforce such trusts as charities, independent of any statute, and when no statute declares them unlawful. The statute of wills merely * ex- *286 cepts corporations from the description of competent devisees; and there is nothing in the Act declaring it unlawful for a corporation to take for a charitable use. They are left in the same state as if the statute of wills had not been passed; and the question is, whether a court of equity may sustain and enforce a devise to or for the use of a corporation, provided the object be a charity in itself lawful and commendable. (a)

The case of The Baptist Association v. Hart (b) was one in which a bequest of personal property to the plaintiffs, as trustees, failed for want of an incorporation; but the reasoning in the case has thrown embarrassment over this question. It was there said that the statute of Elizabeth did give validity to some devises to charitable uses which were not valid without the aid of the statute; and the opinion of the chief justice seemed rather to be (for there was no authoritative decision of the court on the point) that the original interference of chancery on the subject of chari

(Ken.) 170. In that case it was held, that the objects and purposes of the articles of association of the people called Shakers were charitable and pious, and valid in law; that the statute of 43 Eliz. was pro tanto revocation of the prior statutes of mortmain; and though a corporation, according to the principles of the common law, could not be seised to a use, yet, since the statute of Elizabeth, the courts have maintained devises to corporations, in trust for charitable uses; that where a trust was for a charitable use, its being a perpetuity was no objection to it; that, as there was no restraint in Kentucky similar to the Mortmain Act of 9 Geo. II., religious societies might acquire and hold property for religious purposes in other modes than that pointed out in the Act of 1814. The exception in the English statute of wills, prohibiting devises to corporate bodies, is omitted in the Kentucky statute of wills. 4 Dana, 356. In Massachusetts, the statute of 43 Eliz. c. 4, is in force so far as to determine what are gifts to charitable uses. Sanderson v. White, 18 Pick. 328. It is adopted in principle and substance in Massachusetts. Going v. Emery, 16 Pick. 107. Burbank v. Whitney, 24 Pick. 153. And in Connecticut the statute of Elizabeth was virtually reenacted as early as 1702.8

(a) In the case of the Trustees of Phillips Academy v. King, 12 Mass. 546, it was adjudged that an aggregate corporation was capable, from its nature, unless specially disqualified, of taking and holding property as a trustee.

(b) 4 Wheaton, 1.

* In Indiana, the principles of the statute of 43 Eliz. c. 4, have been adopted, and are in force, with one or two exceptions. M'Cord v. Ochiltree, 8 Black. (Ind.) 15. The statute of 43 Elizabeth is not in force in Maryland. Wilderman v. Baltimore, 8 Md. 551.

1 Bequests to unincorporated societies are sustained, where the object is competent and the designation sufficiently clear. 2 Sandf. Ch. 133. Potter v. Chapin, 6 Paige, 639, 649.

ties, where the cestui que trust had not a vested equitable interest, was founded on the statute of Elizabeth; and that, independent of the statute, a court of equity would not sustain a charitable bequest, where no legal interest was vested. The accuracy of this conclusion remains yet to be established by judicial sanction; and there is a recent and direct authority against it in the case of The Orphan Asylum Society v. M'Cartee, (c) in which it was decided, in New York, by Chancellor Jones, after a very elaborate discussion and consideration, that a devise of lands to exécutors, in trust for a charitable corporation, for charitable purposes, was a legal and valid trust, to be enforced in equity. Lord Northington, in the case of The Attorney-General v. Tancred, (d) affirmed that devises to corporations, though void under the statute of wills, were always considered as good in equity if given to charitable uses; and that the uniform rule of the Court of *287 Chancery, before as well as at and after the statute of Elizabeth, was, that where the uses were charitable, and the grantor competent to convey, the court would aid even a defective conveyance to uses. This same principle has been advanced in other cases, and by very high authority. (a) The weight

(c) See p. 288, note.

*

(d) 1 Eden, 10. 1 Wm. Blacks. 91.

(a) Sir Joseph Jekyll, in Eyre, v. Countess of Shaftesbury, 2 P. Wms. 119. See, also, 2 Vern. 342; Lord C. J. Wilmot, in Attorney-General v. Lady Downing, Wilmot's Opinions, pp. 24, 33; 1 Bro. C. C. 15; 7 Vesey, 69; Lord Eldon, in Attorney-General v. The Skinner's Company, 2 Russ. 416; Sir John Leach, in Attorney-General v. The Master of Brentwood School, 1 Myl. & K. 376. In the case of the Attorney-General v. Mayor of Dublin, 1 Bligh, N. S. 347, Lord Redesdale declared that the statute of Elizabeth created no new law on the subject of charitable uses, but only a new machinery and ancillary jurisdiction. It is stated, in Duke on Uses, p. 163, that Symons sold lands, by bargain and sale, to Fleming, upon confidence to perform a charitable use, which he declared by will. The bargain was never enrolled, and yet the lord chancellor decreed a sale of the lands by the heirs, to be applied according to the limitation of the use. This was the 24 Eliz., and before the statute of charitable uses. Chancellor Walworth, in 7 Paige, 80, places reliance on this case as evidence of the common-law jurisdiction of chancery over charitable uses. Lord Hardwicke, in Attorney-General v. Middleton, 2 Vesey, 327, held, that before and independent of the statute of Elizabeth, the Court of Chancery did exercise original jurisdiction in cases of charities at large, and not regulated by charter. It was, in the cases of charities, afterwards provided for by the statute of Elizabeth. Lord Chancellor Sugden, in the case in Ireland of the Incorporated Society v. Richards, 1 Con. & Law. 58, S. C. 1 Dru. & War. 258, reviews and analyzes all the cases, and concludes that there was an inherent jurisdiction in chancery existing before, after, and at the time of the statute of 43 Eliz., sustaining devises to charitable uses, though void at law.