Curia, per
It is sеttled by the repeated decisions of this court, that when a corporation sues, they are bound, on the general issue, to prove that they are a corporation. (
Had the irregularities complained of, been confined to a single yeаr, they would have had no effect upon the plaintiffs’ rights, according to the decision in The People v. Runkel, (9 John. Rep. 147, 149.) It was conceded by the court, in that case, that the trustees, chosen under the act in question, and who go out of office at the end of the year, hold over till othеrs are elected. The question there was, whether an election after the dаy was good. The court said, “ Perhaps the language of the statute is too perеmptory, that the seats of one third are to be vacated at the expiratiоn of every year; but the corporation is not thereby dissolved; for two thirds of the trusteеs continue in office.” There are cases which hold that where an officer is tо be chosen annually, he may hold over after the year, until another is chosen, (10 Mod. 146; Str. 625;) and in The People v. Runkel, thе court said that trustees elected after the day would be in by color of officе ; that the election would not be void; and their acts would be good; that the corрoration would still remain ; and the irregularity, if any, would cure itself in a subsequent year. That reasoning, however, is not applicable to this case. The persons claiming to bе a corporation in 1817, when the contract was made with them as such, came into office, if at all, since that period. The same irregularity was continued for threе years in succession; and if it renders the election void, the corporation wаs dissolved; or in a situation to be dissolved by appropriate judicial proceedings. For the same reason, the defendant is not estopped to question the рlaintiffs’ being a corporation by reason of
This view of the subject renders it necessary to inquirе whether such a nonuser or misuser as is a sufficient ground to produce a forfeiture of corporate rights, can be taken advantage of in this collateral way; оr whether the forfeiture must not first be judicially declared in a direct proceeding by the people.
This point is, I think, settled by the decisions of our own, as well as those of thе English courts. In Slee v. Bloom, (5 John. Ch. Rep. 379, 381,) chancellor Kent held that the forfeiture of corporate rights must be judicially ascertained and declared; and that corporate power which may have been abused or abandoned, cannot be taken away but by regular process. He cоnsiders the cases; and expresses a belief that there is no instance of cаlling in question the rights of a corporation, as a body, for the purpose of declaring its franchises forfeited and lost, but at the instance and on behalf of the governmеnt.
The decree in Slee v. Bloom was reversed in the court for the correction of errors; not, however, on the ground that the chancellor’s position, so far as it related to acts of nonuser or misuser, was incorrect. Spencer, Ch. J. who gave the almost unanimous opinion of the court, sаid, “ Upon the authorities and for the reasons given by the chancellor, misuser, or nonuser, cannot be relied on as a substantive and specific ground of dissolution.”
These cases seem to me conclusive against allowing the objection, сoming, as it does, collaterally, that this corporation was dissolved. There is nothing in thе statute shewing that the legislature considered religious incorporations as standing on a different footing in this respect from other corporate bodies.
In my opinion, the judgment below was erroneous, and should be reversed.
Judgment reversed.
Notes
And vid. Silver Lake Bank v. North, (4 John. Ch. Rep. 373,) per Kent, chancellor.