#### Bank of Galliopolis *vs*Trimble, *&c.*

Error to the Greenup Circuit.

Pet. & Sum.

*Case*139.

The case stated,

Judgment of *the*

A partial assign* ment of a nota transfersno right of action to the assignee.

*Corporations. Lex fori. Comity.*

*July 7.*

Judge Beeok

delivered the opinion of the Court.

In October, 1839, David Trimble and the other defendanls in error, executed their note to the President, Directors and Company of the Bank of Galliopolis, for two thousand dollars, payable in three months. Upon this note the Bank, in June, 1840, sued by petition and summons, in the Greenup Circuit Court.

• The defendants filed various pleas,, and the case was continued till 1841, when additional pleas were filed, and among them a plea of set-off for Bank notes issued by the Bank and held by the defendants, to the amount of the note sued on. Subsequently, by agreement, all the pleas were withdrawn, except the plea of payment, and the defendants had leave to give in evidence any matter which could be relied upon by special plea.

In October, 1843, the law'and facts were submitted to the Court and the case tried.

The Court was of opinion that (he defendants, in virtue of the laws of the State of Ohio, where the Bank had been chartered and was located, had a right to set-off the notes of the Bank against the note sued on, and accordingly rendered a judgment in bar of the plaintiff’s action, and for the defendant’s cost.

To reverse that judgment, the plaintiffs prosecute this writ of error.

In the revision of the case we will first examine the question whether the Court was right in allowing the set-off.

It appears that in February 1841,' the plaintiffs assigned one thousand dollars of their claim to one Nash and the resedue to one Brazier. These assignments, it may be proper here to remark, did not, according to the case of *Elledge*vs *Straughn,*(2 *B. Monroe,*81,) transfer the *600legal title of the note in the suit to the assignees. *Thai*still remained in the assignors, but in trust for the benefit of the assignees.

The laws of a sister State regulating set-offs, can have no operation in this State, in a suit ■on a note.

At what precise time the defendants acquired and became the holders of the notes, which were the subject matter of the set-off, does not appear. The presumption is almost conclusive that it was not till long after the commencement of the suit, and is also justified that it was not till after the defendants had actual notice of the assignment to Nash and Brazier.

At the July and October terms 1840, the defendants filed several pleas, but no set-off was plead or relied on, and the cause was continued on their motion. In January, 1841, the Bank failed, and shortly afterwards its notes fell down to between 10 and 20 cents to the dollar. In March following the defendants tendered to the Bank the notes sought to be set-off. There is no proof whatever of their holding them prior to that time. Notice of the transfer was given some time before the tender. The defendants, therefore, in our opinion, failed to show that they were the proprietors or holders of the notes prior to the assignment, and of course to the commencement of the suit. The *onus*of proving that fact devolved upon them: *Ogden vs Carnley,*(2 *Johnson’s Rep.*277.)

Assuming then, that the set-off was not acquired till after suit brought, and after notice of the assignment, it follows, according to the laws of Kentucky, that the defendants could not render it available against the plaintiffs, had there been no assignment; nor, waiving that view of the case, as against the assignees, who were the beneficiaries and entitled as such to have their rights protected: *Hawthorn vs Roberts, (Hardin’s Rep.*70;) *Bibb*vs *Saunders,*(2 *Bibb,*87; 1 *Litt.*206,) upon the first point, and upon the second *Littlejohn*vs *Stores,*(3 *John. Rep.*426;) *Raymond vs Squire,*(11 *John. Rep.*49;) *Briggs*vs *Bow,*(19 *John. Rep.*96.)

We are not satisfied that the statutes of Ohio, which were in evidence upon the trial below, and which are copied into the record, would have authorized the set-off, had they been in force in Kentucky and binding upon the Court. But we cannot admit that those statutes by any *601«fie -or law obcomity, can have any operation-or are errtiGed to any consideration by the-Courts of Kentucky, and -more especially if in conflict with ouflaws, or the recognized rules-of practice in our judicial proceedings.

Set-off is connected with the remedy which is governed by the .law *ofthe-forum.*■and not by the *lex loci {'contractus.*

.'Obligors in .-a note given to a corporation are estopped to deny .-the existence o'f the corporation.

That the.charter of a corporation, has been forfeited can only be made to appear by a direct proceeding, not collateially.

But if a charter of a Bank, chartered in one State, expire by ‘its teims, suits *602depending in the name of the eor. poration in other States, abate and a subsequent statute of the State of the corporation cannot have the effect -to revive the suit.

*601Set-off is a mode of defence, essentially, not a part, •connected with the remedy, which according to the well settled and universal doctrine-is governed by the law ©f *■the forum,*and not by the *-lex loci contractus.*The •forms of remedies, the modes of proceeding and the execution ofjudgments, are to be-regulated solely and exclusively by the laws of the place where the action is instiluted. (Story’s *Con. Laws, 468-9;*Ib*id*481; *2 Kent,*462.)

If then there were no other questions in the cause, .it would result that the judgment-of Ihe^Court below-must be reversed. But other questions are raised and relied upon by the defendants, involving the right of the plaintiffs to sustain their action,-and which wili-now be ■noticed.

And 1st.-It was contended that the charter -of the ■Bank had been forfeited before the note in .question -was executed.

2dly. That the charier expired according to its -terms -after the commencement of the suit, and before the trial.

In regard to 'the first objection, it is a sufficient answer: that the defendants were estopped to deny that there was ■such a corporation, by the very terms of their.note, in •which they "promise to pay the-President, Directors and -.Company of tbe bank of Galliopolis,” &c.

Besides, we entirely concur in opinion-with the Gircuit .Judge, that whether there had or not been a forfeiture of the charter by *non user or misuser,*or for a failure to ■comply with the requisitions thereof in any respect, was ci matter which could not collaterally have been gone .into and rendered available in this controversy. The question of forfeiture could only be determined by a direct judicial proceeding: (2 *Kent*312.)

As to the second objection, it seéms to us that the expiration of the charter was in effect an abatement of -the -suit, and presented an obstacle *to*the further .prosecution *602of it, for the removal of which the laws of Ohio could not be relied upon and rendered available.

The statute of a sister State providing for the prosecuting • of the rights of the corporations which may expire by the terms of their charter *in the name*of the last managers as *trustees,*does not have the effect to revive in Ky. a suit brought in thename of such corporation.

Nor will such statutes passed after the charter has expired, declaring that suits pending at its expiration, shall not abate, have an operation in Ky. to keep alive a suit in the name of the corPorotion.

The charter of the Bank according to its terms expired on the 1st. January 1843; after that period we are aware of no rule of practice or statutory provision in Kentucky, or of any common law principle, which authorized the further prosecution of the suit, in the name of the expired corporation. The abatement of the suit was a necessary consequence of the-expiration of the charter; as much so, as ifthe plaintiff had been a natural person and had died. The only enquiry then is whether the further prosecution of the suit could be sustained by the laws of Ohio. We find in the record, duly authenticated copies of two statutes of the Ohio Legislature, one passed on the 7th March 1842, and the other on the 10th March 1843.

The first act'provides substantially that upon the dissolution of any corporation, by the expiration of the term of its charter or otherwise, thedirectors or managers ofthe affairs of such corporation acting last before its dissolution, shall be constituted trustees of th'e creditors and stockholders of the corporation; and vests them with full power to settle theaffa-irs of such dissolved *coporation.*And it further provides that the *persons,*so constituted trustees, “shall have authority to sue by the name of the trustees of such dissolved corporation.”

The act of-March 1843, passed after the charter expired, and which purports to be amendatory to the act of 1842, provides that no suit pending in the name of any Banking corporation, shall abate or be discontinued by the dissolution of such corporation, but such suit may be prosecuted to final judgment by the creditors, assignees, receivers or trustees having the legal charge of the assetts of such *dissolved*corporation, in the corporate name thereof. This act also provides that if any suit, which may have been pending, in the name of any such dissolved corporalion, shall have abated prior to the passage of the act, by means of the dissolution of such corporation, the same shall be and is revived, and shall be proceeded in by the creditors, assignees, &c., having the legal charge of the assetts of such dissolved corporation,, *603*<m*the name of such corporation, in all respects as if such abatement had not occurred. The corporation of the Bank of Galliopolis is no doubt embraced by these acts, which in Ohio would have authorized the prosecution of this suit to final judgment in thecoporate name, after the expiration of the charter. But this authority to proceed with the suit in the corporate name, even in Ohio, would not result from any resuscitation or extension of the dissolved corporation *;*for there is nothing in either of the acts, indicating any intention to revive or extend the charter of any such corporation for any purpose whatéver.

Comity requires that the tribunals of the States' shall be open- to' *604bther' States as they are to1 the citizens,-

*603The object of the acts seems to have been to provide for the preservation and administration of the effects of dissolved corporations. For this purpose trustees are appointed, and particular modes of judicial proceeding are authorized.

Assuming then, that there was no revivor or extension of the charter of the Bank after its expiration, and that the corporation was dissolved and so continued, the question is whether the laws of Ohio, regulating the mode of judicial proceeding in such case, can have any extra-territorial operation, or whether by any rule of comity, the Courts in Kentucky are bound to notice and be governed by them? We think not. These laws as to the revival and further prosecution of a suit in the name of a dissolved corporation, are not only applicable to the remedy, but they emphatically provide and regulate it. That the laws of Kentucky, the *lex fori,*should govern as to the remedy, is, as we have seen, well settled upon principle and authority. There certainly can be no justice or propriety, in authorizing a foreigner to prosecute a suit in the name of a dead plaintiff, a dissolved, extinct corporation, in virlue of the laws of Ohio, when the same privileges are denied by the laws of Kentucky to its own citizens. The rule laid down by that eminent jurist, Justice Story, in his conflict of laws, page 469, upon this subject, is undoubtedly the correct one.

He says : “All, that any nation can be justly required to do, is to open its own tribunals to foreigners, in the same manner and to the same extent as they are open to *604its-own subjects, and to give them the same redress, a& to-rights and wrongs; which it deems fit to acknowledge in its own- municipal- code for natives and residents.”

i’dtdgft c'orjiorations, by1 the iUles of comity observed by civilized corom-uni. fies, aré'allowed to contract and sub in thfeir corporate name, within other States, when the contract or suit is not re'pugnant to the law of the plabb or1 its established policy. J&dby'tbe same Tule it should permit a suit brought in the name of1 a1 foreign corporation to progress ill conformity with the provisions of a statute, tho’ the' charter’ had expired by its terms.

Upon the vvhóle then, we are of opinion that upon thetermina-tion of the charter of 'the Bank, this suit was virtually abated, and that the Court below instead of hearing and deciding it upon the merits, should have dismissed it. The proceeding in regard to the trial was *coram non fudice,*and the judgment, therefore, a nullity. Bui as it is possible other testimony may- be adduced upontbe return1 of-the cause in-support of the action-, the judgment is reversed and the cause remanded that a new trial may be granted and further proceedings had.

The dissent of

Chief Justice Ewing.

I dissent from so much of the opinion just read, as abates the suit regardless of the statutes-of Ohio-, which authorize all *svitspending,*to progress in the corporate name. The statute of Ohio creating' the charter, has no force here:- yet by a rule of universal comity, among,all civilized- nations, repeatedly- recognized by this Court, a corporation created by- the statutes of a foreign State, has been allowed to make contracts and su-e here, in its corporate name, whenever such contract or suit is-not repugnant to our laws-, or any established policy of the Stat: *Lathrop*vs *The Commercial Bank of Scioto,*(8 *Dana,*114.) That same rule *of comity*which would so far respect *the*statutes of Ohio, as to authorize the suit to be instituted and psosecuted here in the corporate name, while the corporation is in being, should so far regard the statutes of the same State reviving and continuing the right to perpetuate the suit in the name of the defunct- corporation. as to prevent its abatement. It may be as well-said that the statute of Ohio, which gives the right to sue in the corporate name, applies to and regulates the *remedy*only-, as that the perpetuation of the suit in the corporate name applies lo and regulates the remedy only. Both statutes prescribe a remedy unknown to our laws, yet the refusal of remedy in either case, amounts to as *denial of right.*And that comity which would allow the *605temedy in the one case, as the means of enforcing a *recognized right,*should not, with a view to the same end, refuse it in the other. One and one essential *attribute*of a corporation, is the right to sue in the corporate name; that 'attribute is revived arid perpetuated as to all suits pending at the time of its enactment, and should be so far respected by the Courts here, upon principles of comity, as to allow the suit to progress in the corporate name, as the *only means*of enforcing an *undoubted right.*

*Beatty*for plaintiff: *Hord, Apperson and Payne*for defendants.

Our statutes have provided a mode and regulated the manner in which the chose in action of deceased *natural persons*may be collected, namely, the appointment and due qualification of an administrator, here, in whom the legal title and right to sue, and revive and progress with suits pending, are vested, and there exists no necessity or propriety, upon principles of comity or otherwise, as the means of reaching the asserted right, to depart from our own established modes of proceeding, out of comity or respect for a statute of Ohio, authorizing the suit to progress in the name of a dead man. The cases are, therefore, as I conceive, not analogous. Besides, as a statute of Ohio may create and bring into being a corporation or *artificial person,*which will be respected as such by our Courts, so a statute of that State can revive and perpetuate the *being*of such artificial person, wilh all, or a part of its attributes, which should equally be respected by our Courts. But a statute of Ohio cannot *create*or *bring*into being a *natural person,*or invest him with the active attributes to sue or progress with a suit; and should such an attempt be made, there is no principle of comity among civilized nations, which should induce them to regard such unusual attempt, or render it proper, with a view to the ends of justice, to pursue it.