March v. Eastern Railroad , 40 N.H. 548 ( 1860 )

Sargent, J.

As we are not to decide this case upon the bill and answei’, as between any of the parties, but all the questions raised thereon are still open and to be considered and settled upon their merits hereafter, it is not material to consider the answer of those parties who have made one, in order to settle the questions now before us. This answer has, therefore, been omitted in stating the case, except so far as it objects to the jurisdiction of this court; and this portion of the answer was stated only because it contains, substantially, most of the positions relied upon by the Eastern Railroad Company to sustain their demurrer, though some other positions are taken in argument, such as that there are not proper parties to the bill, &e. So, also, the provisions of the lease are omitted in the statement of the case, except such portions as are stated in the bill, which appear to be substantially correct. In considering the questions now before us, which are only those raised by the demurrer of the Eastern Railroad Company, we are to take the facts as stated in the bill to be admitted. The questions raised by this demurrer seem to relate solely to the jurisdiction of the court, and though some of the positions relied upon are taken under the first cause assigned in the demurrer, others are evidently taken under the second cause, as there stated.

It is claimed by the Eastern Railroad Company:

1. That this court has not jurisdiction over the Eastern Railroad Company, a foreign corporation, existing without the limits of this State :

2. That the contract set forth in the bill was to be performed in Massachusetts, and therefore the court has not jurisdiction of the subject matter :

3. That the jurisdiction of the court is ousted by the agreement to refer or arbitrate, contained in the indentures:

4. That the Eastern Railroad Company is not answerable to the stockholders of the Eastern Railroad in NewITampshire, but only to the corporation :

5. That the plaintiffs have a full and perfect remedy at law, by mandamus, and therefore this court has no jurisdiction:

6. That there are no proper parties to the bill, so as to give this court jurisdiction.

In considering these questions it may be convenient to transpose their order, and begin with the last.

I. Are these plaintiffs proper parties to commence and prosecute these proceedings ? It is suggested in the argument that the bill should be dismissed because the other stockholders are not made parties. But it is well settled that when the parties interested are numerous, and the suit is for an object common to them all, some of the body may maintain a bill in behalf of themselves and others having a like interest, but in all cases where one or a few individuals of a large number institute a suit on behalf of themselves and others, they must so describe themselves in the bill. This rule applies to shareholders in a corporation as well as a private company or partnership. Dan. Ch. Pr. 290, 291; Story Eq. Pl. 107, 109, 110, 111, 113, 115; Walworth v. Holt, 4 Mylne & Craig 635; Brightly’s Eq. Jur. 529; Adams’ Eq. 319, 320. Nor is this in contravention to the general rule, that in equity all persons must be made parties who have an interest in the result; but when the parties are very numerous,., as a matter of convenience, and to prevent abatements by death, and the non-joinder of unknown parties, the court will permit a few to repi’esent the whole, and in that case the hill should expressly state that it was filed as well on behalf of other members as of those who are really made complainants. Edwards on Parties 40.

A shareholder in an incorporated company may file a bill in the behalf of himself and all the other stockholders, to restrain the directors from committing a breach of trust, as by making a contract of guarantee in behalf of the corporation which they were not empowered by the charter to make, or committing other clear excess of chartered powers. Coleman v. Eastern Counties Railway, 10 Beav. 1; Ang. &. Am. on Corp., sec. 312.

It is now no longer doubted, either in England or the United States, that courts of equity in both have a jurisdiction over corporations, at the instance of one or more of their members, to apply preventive remedies by injunction to restrain those who administer them from doing acts which would amount to a violation of charters, or to prevent any misapplication of their capital or profits which might result in lessening the dividends of stockholders or the value of their shares, as either may be protected by the franchises of a corporation — if the acts intended to be done create what in law is denominated a breach of trust. And the jurisdiction extends to inquire into and to enjoin, as the case may require that to .be done, any proceedings by individuals in whatever character they may profess to act, if the subject of complaint is an implied violation of a corporate franchise, or the denial of a right growing out of it, for which there is not an adequate remedy at law. Dodge v. Woolsey, 18 Howard 341, and cases cited. "

In Robinson v. Smith, 3 Paige Ch. 233, a principle is laid down that seems applicable to this case as here stated by these complainants. If the directors of a corporation refuse to prosecute, by collusion with those who had made themselves answerable by their negligence or fraud, or if the corporation was still under the control of those who must be made the defendants in the suit, the stockholders, who are the real parties in interest, would be permitted to file a bill in their own names, making the corporation a party defendant. And if the stockholders were so numerous as to render it impossible or very inconvenient to bring them all before the court, a part might file a bill in behalf of themselves and all others standing in the same situation. See also Cockburn v. Thompson, 16 Vesey Jr. 321; Good v. Blewitt, 13 Vesey Jr. 397; Whitney v. Mayo, 15 Ill. 251; Wood v. Draper, 24 Barb. Sup. Ct. 187, and authorities cited.

The effect of this proceeding in this way is to avoid the very multiplicity of suits complained of; for every stockholder, no matter in what jurisdiction he resides, may, if he please, in some way become a party to this proceeding, without commencing a new suit either in his own or any other jurisdiction ; nor are any of the stockholders left out and not made parties to this proceeding, as the defendants complain, because not only the directors, as individuals, but the Eastern Eailroad in New-Hampshire, are made parties, as defendants, and those stockholders in this last mentioned road who do not desire to come in as plaintiffs here, are of course represented by and in the corporation, as defendants. All the stockholders in this road, who are satisfied with the proceedings of the directors, either from the fact that they have a greater interest in the Eastezm Eailroad Company than in the New-Hampshire corporation, or from any other cause, are represented here as member’s of the corporation, and under the corporation which is made a party ;, but all those whose interests are adverse to those of the corpoi’ation, as now managed and controlled, and who do not wish to be defendants as members of the corporation, can, in this mode of proceeding, become plaintiffs, if they wish. If these plaintiffs had omitted to make the corporation of which they are members a party defendant, then there would be reason for the position assumed that all the stockholders are not parties, but all are either actual parties to the record, or are properly represented by those who are parties, and may become plaintiffs, if they are dissatisfied with their position as defendants, as members of the company.

II. The position that a mandamus would be an adequate remedy at law, and that therefore these proceedings are unauthorized, does not. seem to be relied on by the defendants’ counsel, as it has not been alluded to in their argument. How would a mandamus meet the difficulty here complained of ?

The plaintiffs complain that they do not get their dividends, but they admit that the Eastern Railroad in New-Hampshire has nothing to divide, and can divide nothing. The complaint is, that the dues of the company are not collected, and they seek a remedy for that difficulty, yet how can this court compel, by mandamus, the Eastern Railroad Company to pay over, if the court has no jurisdiction over said company in the present proceeding ?

But suppose they have jurisdiction, and issue the mandamus to that company, they have nothing in their hands, as they say, to pay over, and the Eastern Railroad in New-Hampshire and their directors say the same. How could the court, as a court of law, order one corporation to pay over any money to another, when the corporation ordered to pay denied the indebtedness, and the other, to whom the money was to be paid, admitted there was nothing due, and made no claim ? The complaint and fear of these plaintiffs is that the business will be so managed between these corporations, which are both alleged to be managed and controlled by the same interest, that their .remedy will be forever defeated. We see no reason, if the facts shall prove as stated in the bill, why the ease is not a proper case of equity jurisdiction, and one for which at common law there is no adequate remedy.

HI. The next objection, that the Eastern Railroad Company is not answerable to the stockholders of the Eastern Railroad in New-IIampshire, but only to the corporation, is not urged in the argument, and we are unable to see any ground upon which it can rest; for it is difficult to see why, if the court have jurisdiction over that corporation as well as the one in New-Hampshire, that company as well as the other should not be held to answer to these plaintiffs, since the charge is that the Eastern Railroad Company, together with the Eastern Railroad in New-Hampshire, representing a majority of its stockholders, who are also alleged to be in the interest of the Eastern Railroad Company, and the directors of the New-Hampshire road, are all together, and, by common consent, and with one common design and purpose, under color of a contract between the two roads, illegally, and in law fraudulently misapplying the funds belonging to both corporations in such a way as not only to lessen but absolutely destroy all profits of the Eastern Railroad in New-Hampshire, and swallow up all its income, to the injury of these plaintiffs, when, but for such illegal misapplication, there would be large amounts due from said Eastern Railroad Company to the Eastern Railroad in New-Hampshire, to which they would be entitled proportionably with other stockholders, as dividends, according to the true intent and meaning of the indentures between them. Why, then, are they not both answerable alike to these plaintiffs, if either is so answerable ? And there would seem to be something strange in the position that these plaintiffs have no claim on this rent except through the Eastern Railroad in New-Hampshire. The plaintiffs’ position is, that these two roads are combining to cheat them, by an arrangement between themselves, of a fund which they hold in trust for the benefit of the plaintiffs and others. The plaintiffs ask that an account may be taken of this fund, and the Eastern Railroad Company may be ordered to pay its share to the Eastern Railroad in New-Hampshire, and the latter required to divide it to the plaintiffs and others interested. Now if the facts are so— and in considering this question upon the demurrer they are to be assumed to be so — would not these plaintiffs have some claim for relief as well against the one company as the other ?

IV. Is the jurisdiction of this court ousted by the agreement to arbitrate contained in the indentures ? An agreement to refer any matter of dispute that may hereafter arise between the parties, is not unusual in contracts of insurance, of partnership, or for the construction of buildings or other works. But such agreements do not bar the parties of their remedies, either by action at law or by suit in equity upon such contracts, neither will such agreements be specifically enforced in equity; Smith v. B. C. & M. Railroad, 36 N. H. 487; so that this objection would be without weight if this were a proceeding between the parties to the indenture.

Either party might commence and maintain an action at law or a suit in equity upon the indenture, against the other party thereto, notwithstanding this agreement to refer; much less can these plaintiffs be barred from maintaining this suit, by an agreement to which they were not parties, but which has been made between the two defendants. We have seen that these plaintiffs are proper parties, bringing this bill in behalf of themselves and all others, stockholders in the New-Hampshire road, who may wish to join them, against both these railroad corporations. The agreement to refer is between two co-defendants. And can agreements between two adverse parties bind these plaintiffs, or preclude them from resorting to their equitable remedies for redress ? It therefore becomes immaterial to inquire whether these companies had, before the bringing of this bill, agreed in writing upon an arbitration and appointed arbitrators, as is' suggested in the argument of counsel, or not until afterward. If it had been done before the filing of thiábill it could make no difference. Two referees only have been agreed on, while three are required; no hearing has been had, and no notice given of any; and if it would be unjust to allow a reference to be entered into by unfriendly directors, by which the plaintiffs’ rights should be in effect definitively and forever settled, in their absence and without a hearing, it could not be less unjust to allow such a reference to proceed under the circumstances stated. And that it would be unjust to allow it to be entered into is apparent, when we examine the nature of the claim Avhich these plaintiffs set up. They.claim to be stockholders in the Eastern Railroad in New-Hampshire ; that the Eastern Railroad Company are bound by contract to pay semi-annually certain rents to their road, which the directors of that road are bound to divide and pay over to them and others ; that from some mistake or misapprehension, or from wrong intentions, the directors do not collect this rent, though a large amount of it is due, and has been for some five years accumulating, but that the directors are disposed to yield to the unjust claims of the Eastern Railroad Company, and give up said rent to them, to the injury of the plaintiffs and others. The plaintiffs also say that these directors openly avow that they are of opinion that there is no just claim for rent, either on the part of the Eastern Railroad in New-Hampshire or these plaintiffs; and the plaintiffs are desirous that this question should not be settled by those who have no faith in their claim, and who would be willing to admit it all away, and must necessarily do so, if they were to take the same positions before the referees which they have heretofore done, nor by referees selected by them, and before whom the plaintiffs and other shareholders would have no claim to be beard. And it is against any liability to have these claims thus improperly and unfairly adjudicated, that they ask the interference of this court; and if they are entitled, as they allege, to four hundred and six shares out of the four thousand nine hundred and twenty-five, the whole amount of shares in that corporation, thus owning nearly one twelfth of all the stock, to say nothing of those who have come in as plaintiffs the present term, it would seem that they ought to have a hearing somewhere, before the question is finally decided against them.

It is insisted that this agreement to refer is of the essence of the contract, an ingredient and consideration of it, and that it amounts to a waiver of the right to sue either at law or in equity. It is not to be denied that this agreement was an ingredient and consideration of the lease; and it may have been an important ingredient and consideration of it, but it can hardly be correctly said to be of the essence of the contract. It is merely incidental and collateral. It may be struck out, and the contract in all its essential parts and features would not be affected. By law such an agreement does not amount to a waiver of the right to sue upon the contract, even as between the parties to it. But suppose it were otherwise, and that all the defendants’ positions in regard to this agreement to refer were correct, what consequence would result in this case ? Neither of the parties to the indenture have commenced suits at law or in equity, nor have they any desire to do so. One cause of complaint is, that they are too willing to refer, and that they are combining, by means of such a reference, to cheat the plaintiffs of their shares of a fund which the one corporation holds, but which, in justice and equity, belongs to them, and which they cannot reach in law without the aid of the other. And if the Eastern Railroad in New-Hampshire were barred to sue at law or in equity, it would not follow that the plaintiffs may not seek their redress in court.

Y. That the contract set forth was to be performed in Massachusetts; or, in the words of the demurrer, “ that the supposed causes of suit, and each and every of them (if any such have accrued to the complainants), accrued out of the jurisdiction of this court, that is to say, within the commonwealth of Massachusetts.” It does not appear, from any thing in the bill or the indentures, where the. contract was made, or where the indentures were signed, or where the contract was to be performed, in any particular, except at the close of the first article of the agreement in said indentures, where it is stipulated that the rent which was reserved to the Eastern Railroad in New-Hampshire should be paid to the treasurer thereof, who shall demand and receive the same at the residence of the treasurer of the said Eastern Railroad Company. But it is not shown nor stated whether the residence of the treasurer of said conqjany is in New-Hampshire or in Massachusetts, nor is there any thing before us to show how that fact is. But in our view that is wholly immaterial.

1. Let us suppose that this contract was made in Massachusetts, and by its terms was to be performed there. Does it follow that no action could be maintained upon it in any other jurisdiction, if both the parties are properly there ? That cannot be claimed, for it is well settled that actions founded upon contracts are transitory, though made and even stipulated to be performed out of the kingdom. To be sure, the general rule is to be applied in such cases that the lex loci contractus is to govern in the interpretation of the contract; but an action or bill in equity may be brought upon the contract any where, where the parties are, or can be made subject to the jurisdiction of the court. Debitum et contractus sunt nullius loci. Broom Leg. Max. 414, note 3; 1 Smith’s L. C. 340; Story Conf. Laws, sec. 362, p. 299.

2. But it is said that the property on which the decree of the court is to operate, if obtained, is not in this jurisdiction, and therefore the court cannot act. Now suppose this to be so; suppose there is some specific fund out of which the money claimed by these plaintiffs must be paid, if paid at all, and that fund and the person having the charge of it, and whose duty it would he to pay it, are all out of the territorial jurisdiction of the court; that makes no difference, provided the court has or can acquire jurisdiction of the parties themselves. For while the property is not within the jurisdiction, but the party sued as defendant is within reach of their process, a court of equity will take jurisdiction, and compel the party to do right by remedies directed against his person. Great Falls Co. v. Worster, 23 N. H. 462, and cases cited. But these principles really have no application to this ease, because the facts are not as we have above supposed. There is here no specific fund from which payment of this claim must be made, if made at all. Here the bill, so far as the Eastern Railroad Company is concerned, is for the enforcement of a merely personal contract for the payment of money; and ■whether these plaintiffs seek to recover upon the ground of fraud, of trust, or of contract, is entirely immaterial, since, upon either ground, they stand well in a court of equity. For in cases of fraud, trust, or of contract, the jurisdiction of a court of chancery is sustainable, wherever the person be found, although lands not within the jurisdiction of that court be affected by the decree. Massie v. Watts, 6 Cranch 148. The court of chancery has jurisdiction to enforce the performance of contracts made between foreigners and in a foreign country, although the defendant is only temporarily within the jurisdiction of the court at the time of the service of the process upon him. Mitchell v. Bunch, 2 Paige’s Ch. 606. But, from the facts stated in the bill, it would seem that there was no lack of property of the Eastern Railroad Company within the jurisdiction of the court, by means of and upon 'which the orders and decrees of the court might readily be enforced. There is a class of actions in their nature local, because of the peculiar nature and situation of the property which is the subject matter of the litigation ; and in such cases courts of equity take jurisdiction of the suit, because the property is within the jurisdiction, though the person to be affected is elsewhei’e; and though no jurisdiction has been acquired over such person. In such cases the courts are said to enforce their decrees in rem and not in personam. But the case before us is far from coming within that class of cases.

3. But suppose that all the positions of the defendants were correct, as to the contract being made and to be performed in Massachusetts, and that, therefore, the court had not jurisdiction to enforce the contract; and that the property or fund to be affected by the decree of the court was without the jurisdiction, and that therefore the court could not act to enforce the contract as between the parties to it, yet these plaintiffs still might stand well enough here, as the foundation of their claim is not upon the contract entered into between the two defendant companies, as these plaintiffs were no parties to that contract; but they are seeking redress of these defendants because they have misapplied the funds in their hands, and appropriated them for illegal purposes, contrary to equity and good conscience, and contrary to the terms of the agreements, even between the defendants themselves, whereby the plaintiffs are deprived of their share of the rents and income which equitably belong to the New-IIampshire road, but which the Eastern Bailroad Company have either fraudulently expended, or else now hold in trust for the benefit of these plaintiffs, and others interested ; so that these plaintiffs do not stand in the position of a party to a contract, trying to enforce that contract in court, but in vindicating their own rights they ask that the defendants may be held liable, at least to the extent that tlieir own contracts, voluntarily entered into between themselves, and to which the plaintiffs were no party, would make them, when those contracts shall be legally and equitably interpreted an d applied.

4. It is contended by the defendants’ counsel, in argument, that courts of equity decline to act unless the entire thing — the whole subject matter upon which they are to act — or the persons or the organizations which control the thing in litigation — are within the reach and under the control of the court: that the actual and available power of a court of equity must be commensurate with the subject matter in litigation, and the rights of all the parties in interest, before it will act at all: that it acts for all or none; that it will dispose of the whole matter, or do nothing. No authority is cited for this position. We apprehend that the court do not inquire how far it would be in their power to render complete justice to the parties by their final process. If the parties and the subject matter of the controversy are within their jurisdiction, they will not decline to act, because the amount in controversy is large, and the amount of property within reach of the execution is small; the residue of the property of the defendants being in another government. The question as to how his judgment shall be satisfied when he gets it, is for the party who obtains it, and not for the court.

VI. Has the court jurisdiction over the Eastern Railroad Company, a foreign corporation ? This is the question upon which more stress is laid, perhaps, than upon any other position taken ; and in practice it is no doubt a question of much importance.

It belongs to evei’y government to regulate the rights, the status, and condition of its own subjects. Courts of other jurisdictions are not bound, except by what is called comity, to regard the laws elsewhere established ; but justice cannot be administered without some regard to those laws; because tbe law of tbe country constitutes an essential element and part of every contract, a limit to every right, and an ingredient in every controversy. It is, therefore, settled in all the countries of the common law, that the laws of a government where a contract was made or a transaction occurred, will be regarded, if they are material, and brought to the notice of the court. There are some exceptions to this rule, not material to be here considered.

Corporations exist every where. They are artificial persons constituted by the law, consisting of one or many persons, who are vested with the power of holding property, transacting business, maintaining suits in a corporate name, without mention of the names of the individuals of which it is composed, and without their rights or their remedies being affected by changes of the persons who are from time to time the members of the corporation.

No necessity exists for the recognition by one State of these artificial persons created by the government of another. But as corporations are but companies of individuals acting under a corporate name, the only effect of a refusal to recognize foreign corporations as such, would be to drive them to hold their property and maintain their rights in the names of the individuals of which the corporation was composed. The corporation would be compelled to allege that they were partners, doing business in a common name or firm, and they must be treated as a firm or partnership. Over such a firm, composed of members residing in another jurisdiction, it is clear that our courts would have jurisdiction, as they have of the individuals who compose it, whenever they come into our courts for redress of their own grievances ; or where they or any of them come here so that they may be served with our process, or where they have property here which, by our laws, may be made amenable to the decisions of our courts, to the extent at least of that property, and of any property of theirs which may be afterward found in our jurisdiction.

It would not, of course, be presumed, that in recognizing the personal and corporate character of a company established in another jurisdiction, any court would do so at the expense of holding that thereby such a company of individuals would be exempted from the jurisdiction of our courts as defendants, while they had the rights of persons as plaintiffs. If such bodies are recognized here as persons, with the rights of persons, it is clear that it must be so, subject to the liabilities of persons. If they can sue in our courts, they must be liable to be sued by others, and they must, in this respect, stand on the same ground as the distinct individuals who compose the corporation. If they come within reach of our process, they may have suits against them, and all their property found in this jurisdiction will be made to respond to the judgment that may be recovered against them.

A foreign corporation is permitted to sue in the courts of England. Henricus v. Dutch W. I. Co., 2 Ld. Raym. 1582. So a foreign corporation may sue in the federal courts of this country. Society v. Wheeler, 2 Gall. 105. The same has been held in most of the States of this Union, though not in all. 2 Kent Com. 285, and cases cited; Ang. & Am. on Corp., secs. 372-373; Bank of Augusta v. Earle, 13 Pet. 519. Such is the law in this State.

And as a foreign corporation can sue in our courts, there would seem to be no reason why it should not be liable to be sued here, in the same way that a domestic corporation could be. It was said to be the rule of the common law that process against a corporation must be served upon its head or principal officer, within the jurisdiction of the sovereignty where this ai'tificial body exists ; but there would seem to be no satisfactory or substantial reason why the technical rules of the common law respecting suits against corporations, should not, like many other rules respecting them, be so far modified and made to yield, as to correspond with the present state of things, and to accomplish the ends of justice, by making the property of an absent corporation liable to be attached in the same manner as the property of other absent debtors. If a foreign corporation — say an insurance company in Boston — should establish its president in New-York for the express purpose of making contracts, and should also have property there, it might seem strange if the president could not be summoned there to answer to a debt contracted there by him in the corporate name, and that a distringas could not be allowed to issue against the corporate property. Ang. & Am. on Corp., sec. 402. "We find that in this State foreign corporations were only recognized as having the same rights as domestic corporations. In Lumbard v. Aldrich, 8 N. H. 33, it was held that a corporation, created by the laws of one State, may maintain a suit in the courts of another State; and, if authorized by charter to hold real estate, it may take and hold land in this State. And as early as 1825 a statute was passed, providing “ that when any body politic or corporate are sued in this State, who have no clerk or member residing therein, on whom service can be made, an attested copy of the writ shall be delivered to the agent, overseer, or person having the care or custody of the corporate property, or part thereof in this State, thirty days,” &c., “ which shall be a good and sufficient service of said writ.” This statute would seem to have been made with a view to avoid the difficulty before alluded to, as existing at common law, in consequence of the rule that the pi'Ocess must be served upon the principal officer of the corporation in the foreign jurisdiction ; and not only so, but it provided a convenient way of making legal service upon a foreign corporation which might have either property or officers within our jurisdiction. And in Libbey v. Hodgdon, 9 N. H. 394, it was distinctly held that a foreign corporation may he sued in this State, if service can be made upon its agent or its property. In the last case, Wilcox, J., says : “ If, upon principles of law or comity, corporations created in one jurisdiction are allowed to hold property and maintain suits in another, it would be strange indeed if they should not also be liable to be sued in the same jurisdiction. If we recognize their existence for one purpose', we must also for the other. If we admit and vindicate their rights, even handed justice requires that we also enforce their liabilities, and not send our citizens to a foreign jurisdiction in quest of redress for injuries committed here. There may be difficulties in procuring legal service of a writ upon a foreign corporation, and so in case of an individual residing in a foreign jurisdiction, it may be difficult or impossible to procure such service of process upon him as to subject him to the jurisdiction of our courts. But in either case where the service can be made, or where the pei’son or corporation appears and submits to our jurisdiction, we see no objection to the authority of the court to proceed.”

“ There seems to be nothing in the character of a corporation to prevent its suing or being sued, like a natural person. It is, in legal contemplation, a person having existence, invested with rights and subjected to liabilities, and very properly a party to proceedings in courts of law or equity, whenever their rights or liabilities are drawn in controversy.”

So in Vermont it has been held that an action can be sustained against a foreign banking or other private corporation. Day v. Essex Co. Bank, 13 Vt. 97. In that case Redfield, J., says: “We can see no very good reason why artificial persons shall not be liable to suit in the courts of another State, as well as natural persons. It is not necessary to inquire how far public or municipal corporations could be held to answer suits in a foreign jurisdiction.” The same doctrine has been held in Missouri. St. Louis Insurance Co. v. Cohen, 9 Missouri 417, 441.

Although a corporation existing by the laws of one State cannot be deemed to pass personally beyond the limits of that State, and though service upon a foreign corporation might not be good, if only made upon some one of its officers passing through, or casually in this State, yet if they can appoint and have agents and attorneys who can legally appear for them and in their behalf to prosecute in our courts a claim to final judgment, it would be strange, if, when they are called to defend a suit against them, and service has been made upon such agent according to law, and he or the attorney appears, that a judgment against them should not be as valid as the one returned in their favor.

Suppose a foreign corporation should sue in our courts by attorney, and, after a protracted litigation, should fail in their suit, no one could doubt the authority of the court to render a judgment against them for costs. And suppose the suit is brought against the corporation, and the same attorney appears, could there be any more doubt of the authority of the court to render judgment against the compauy as defendant ? And suppose service to be legally made upon the agents of the corporation, and they should not appear, would not a judgment rendered against them upon default be equally valid and binding ? “ The inquiry is, not whether the defendant was personally within the State, but whether he or some one authorized to act for him in refei-ence to the suit, had notice, and appeared; or, if he did not appeal’, whether he was bound to appear or suiter a judgment by default.” Lafayette Ins. Co. v. French, 18 How. 404.

In many of the States there have been legislative enactments requiring foreign corporations to appoint resident agents, on whom service of process may be made, in order to entitle them to transact business within the State. But the service upon such agents in those cases could be no more effectual in giving the courts jurisdiction, than under our statute would be the service upon a principal member or the agent, &e., having the control and care of the corporate property, or part thereof; and that a judgment rendered in one State against a corporation chartered in and by another, where there has been such appearance or such service, will be respected in the State by which such corporation was chartered, and in which it is situated, seems to be well settled. Ocean Ins. Co. v. Portsmouth Marine Railway, 3 Met. 420; Moulin v. Trenton Mutual Life and Fire Insurance Co., 1 Dutcher 57; Lafayette Ins. Co. v. French, 18 How., ante.

In the present case the defendant corporation appears, and an appearance of the party has always been held to confer jurisdiction; Downer v. Shaw, 22 N. H. 281; except when the party appears for the sole purpose of making objection to the authority of the court to proceed. Wright v. Boynton, 37 N. H. 9. Here the appearance is clearly not made for this sole purpose, since the second ground of demurrer is in terms, “ that the said complainants have not, by their said bill, made such a case as entitles them in a court of equity to any discovery from these defendants, or to any relief against them as to the matters contained in said bill, or any of such matters.” So that it would seem that the court have jurisdiction, from this circumstance that here is a general appearance for all purposes; the objection to the jurisdiction of the court over the party defendant filing the demurrer, being only taken in connection with others going to the merits of the bill.

It will also be observed that the demurrer is not in the nature of a plea in abatement. It is not alleged that the Eastern Eailroad Company have not been properly notified ; that they have not been served with proper process, and in a proper way; and that thereby they are not properly and legally before tbe court, for tbe decision of any question which the court can properly decide. Upon such a state of facts it might probably be safely enough assumed that there has been such a service of process upon the Eastern Railroad Company as would properly and legally subject them to the jurisdiction of the court, so that a judgment upon default would have been valid and binding upon the defendant company, and could be enforced upon any property, rights or franchises of theirs within this jurisdiction. Taking the bill, therefore, pro confesso, so far as the questions raised by this demurrer are concerned, we can have no doubt that the plaintiffs are entitled to some relief as against the Eastern Railroad Company.

The demurrer is, therefore, overruled, and said company is ordered to file an answer to the plaintiffs’ bill, in ninety days.