[§ 3050 plaintiff must allege fully the requisite diversity of citizenship, to which end 21 the domicile and citizenship of the other parties must be averred in good form and substance,22 and that they are of different states from the pleader's side of the controversy; 23 and it must be averred that the corporation is one formed and existing in a named state, a general allegation that it is a "citizen" thereof not being good pleading.24 If the suit is by an alien, incorporation in and citizenship of a state must be ascribed to defendant corporation,25 and the like is required when a state sues a corporation.2

26

In a suit by assignee of a corporation it may be necessary to allege that the corporation could have sued if no assignment had been made,

21 Thomas v. Ohio State University, 195 U. S. 207, 49 L. Ed. 160.

When plaintiff founds any right to invoke federal jurisdiction on the citizenship of defendant corporation he must truly and properly plead it. Texas & P. R. Co. v. Cody, 166 U. S. 606, 41 L. Ed. 1132, aff 'g 67 Fed. 71.

22 Resident" held to import citizenship where defendant is alleged to be a corporation (in a removal petition). Vestal v. Ducktown Sulphur, Copper & Iron Co., Ltd., 210 Fed. 375.

"An association of persons not incorporated, formed for [banking purposes] who were at the time the cause of action arose and still were engaged in said business at" a point in Nebraska shows individual domicile there. United States Exp. Co. v. Kountze Bros., 8 Wall. (U. S.) 342, 19 L. Ed. 457.

*

*

23 Averment of "a corporation * under and by virtue of the laws of Kansas and Nebraska" shows no diverse citizenship from a Kansas plaintiff. St. Joseph & G. I. R. Co. v. Steele, 167 U. S. 659, 42 L. Ed. 315.

24 The approved form is "that the defendant is a corporation organized and existing under the laws of the named state. Averment simply that it is a "citizen" is bad. Parker Washington Co. v. Cramer, 201 Fed. 878. General allegation of incorporation in given state shows citizenship.

Dodge v. Tulleys, 144 U. S. 451, 36 L.
Ed. 501.

"Foreign corporation formed under and created by the laws of" New York is good. United States Exp. Co. v. Kountze Bros., 8 Wall. (U. S.) 342, 19 L. Ed. 457.

"A body corporate by the act of" Maryland held good. Marshall v. Baltimore & O. R. Co., 16 How. (U. S.) 314, 14 L. Ed. 953.

Citizenship in Mississippi is not averred by alleging that defendant is a New York corporation located in Mississippi and doing business there. Germania Fire Ins. Co. v. Francis, 11 Wall. (U. S.) 210, 20 L. Ed. 77.

Formerly the citizenship of the corporators must have been pleaded. Breithaupt v. Bank of State of Georgia, 1 Pet. (U. S.) 238, 7 L. Ed. 127. But this was based on the now exploded doctrine that citizenship was that of the stockholders rather than the domicile where it was created.

25 Piquignot v. Pennsylvania R. Co., 16 How. (U. S.) 104, 14 L. Ed. 863.

26 Averment that defendant is "a body politic in the law of and doing business in California" does not show it to be a California corporation which the state could sue originally in the supreme court. Pennsylvania V. Quicksilver Co., 10 Wall. (U. S.) 553, 19 L. Ed. 998.

and this must be well pleaded by stating the facts of citizenship and domicile; 27 but where the case comes under the exception an averment that the assignor could have sued is needless.28

In the federal courts allegations of the inhabitancy of the corporation or of the residence of the parties also may be made for the place of fixing or choosing the district within a state where suit shall or may brought.29

The jurisdictional averments must be made, usually in the introduction to the bill or declaration, but they suffice if anywhere in the pleadings 30 and the whole record may be looked to in aid of the allegations when they are questioned.31 The allegations will be fairly construed 32 and an allegation of present existence in a state will be taken as one that the corporation was created there.33 The judicial notice taken of the existence and name of the federal corporation will take the place of allegations of such facts or even overcome them if untrue.34 The judicial notice that can be taken of a state corpo

27 Allegation that assignor was "doing business in" a state does not show that it was created there. Brock v. Northwestern Fuel Co., 130 U. S. 341, 32 L. Ed. 905.

28 New Orleans v. Quinlan, 173 U. S. 191, 43 L. Ed. 664.

29 Judicial Code, § 51.

To aver that defendant is a "citizen" of Kentucky and a "resident' of the district does not entitle plaintiff, a nonresident, to sue it there under the Act of 1887. Southern Pac. Co. v. Denton, 146 U. S. 202, 36 L. Ed. 943. See also Shaw v. Quincy Min. Co., 145 U. S. 444, 36 L. Ed. 768. The former act allowing suit where it was "found" was repealed by the act referred to.

30 Muller v. Dows, 94 U. S. 444, 24 L. Ed. 207.

tion by diversity of citizenship therein alleged. Mexican Cent. R. Co. v. Pinkney, 149 U. S. 194, 37 L. Ed. 699.

Allegation that defendant is "a citizen of a state without alleging that it is a corporation thereof is bad, but was cured by demurrer to a replication supplying such allegation. Lafayette Ins. Co. v. French, 18 How. (U. S.) 404, 15 L. Ed. 451.

31Resident of Delaware" does not import citizenship there, but aided by other parts of the record suffices. Sun Prtg. & Pub. Ass'n v. Edwards, 194 U. S. 377, 48 L. Ed. 1027.

32 Direct averments of citizenship will not be impeached by a forced construction of subsequent allegations. Railroad Commission v. Louisville & N. R. Co., 225 U. S. 272, 56 L. Ed. 1087.

33"Is" a corporation of a state imports that it was originally created there, and when admitted by answer suffices. Sun Prtg. & Pub. Ass’n v. Edwards, 194 U. S. 377, 48 L. Ed. 1027. 34 Judicial notice of incorporation and existence, see § 428, supra, § 3087, infra.

[$ 3051 ration will supply what is lacking in a bare allegation of citizenship,35 or an allegation of incorporation without stating of what place,36 and the judicial notice of state laws taken by the federal courts may show an equivocal allegation to be bad.37

§ 3051. Pleading substance of actionable right-In general. It follows from the capacity to sue and be sued like a natural person that a right of action either by or against the corporation will be pleaded according to the general law of pleading with only such adaptations as may be necessitated by its impersonal nature and by the relationship which may subsist between it and the adverse litigant, for example where it is sued by or sues its stockholder. The next few ensuing sections treat of some of the facts which are commonly alleged in adapting the pleadings to the rules of the general law. As to the substantive allegations in an action on a contract, or on a tort, or on an equitable right, appropriate general treatises will advise the reader.38 To those causes of action which are peculiar to the internal relations of the corporation with its stockholders and officers, and those which are peculiar to the enforcement of the rights of corporate creditors, other parts of this treatise are particularly devoted.39 The specific chapters herein on Injunction, Mandamus, Quo Warranto, and Mortgages are referred to in addition to the others.40

corporation is a citizen of a state cannot prevail against the court's judicial knowledge of the contrary. Texas & P. R. Co. v. Cody, 166 U. S. 606, 41 L. Ed. 1132, aff 'g 67 Fed. 71.

35 Allegation by name and that it "is a citizen" suffices where judicially known to be a corporation. Covington Drawbridge Co. v. Shepherd, 20 How. (U. S.) 227, 15 L. Ed. 896.

36The [C. Co.] of Covington is a corporation and citizen of the state of Indiana" is sufficient. Covington Drawbridge Co. v. Shepherd, 21 How. (U. S.) 112, 16 L. Ed. 38.

University, 195 U. S. 207, 49 L. Ed.

160.

38 See general works on pleading; contracts; torts; negligence; equity; real property; and the like.

Complaint for slander of plaintiff's merchandise by corporation held good. Waters-Pierce Oil Co. v. Bridwell, 103 Ark. 345, Ann. Cas. 1914 B 837, 147 S. W. 64.

39 Actions between corporation and stockholders, see Chapter 17, supra, and chapter on Stock and Stockholders, infra.

Actions and proceedings between corporation and officers or directors, see Chapter 42, supra.

Remedies of creditors, see chapters on Execution, etc., and Creditors' Bills; Insolvency; Bankruptcy; Receivers; Forfeiture, Dissolution and Winding Up, infra.

40 See the chapters so entitled.

The allegations should, where the corporation is suing, ascribe the right to it 41 by its name,42 or by succession or change of name,43 and where the suit is brought, as by some statutes it may be, in the name of the president or other officer, it should be alleged as the corporation's and not as "plaintiff's" cause of action.44 The title or right of the corporation need only be pleaded as good against the defendant, and when it sues as a trustee it need not plead a right good as against the other party to the trust.45 If the corporation is sued the liability should be ascribed to it, and for this purpose it may be described as "defendant" whenever that is capable of certain application.46 It should be sued by name or with allegations of succession or change of name.47 As already stated, the fact of incorporation and of corporate existence is not now regarded as a part of the cause of action, except those like subscriptions to stock, etc., which are predicated in part on that very fact; and it need not be alleged either by or against the corporation unless that is necessary to make out the cause of action, or unless statutes or the practice of the jurisdiction require it for the purpose of showing the capacity of the corporation to sue or for the purpose of jurisdiction.48 It may be assumed as a general working rule, however, that for one or the other reason such allegations will be needed. Statutory conditions on the right to sue need be pleaded only when the statute itself requires it or when they enter into the very cause of action sued on.49 In order to hold a corporation as a responsible co-party with other defendants, who bore no official relation to it, there must be some. allegation imputing wrongdoing or complicity to it, and a general allegation that it is responsible will not suffice.50

of shows that the defendant corpora-
tion rather than its receiver or other
person or other corporation is charged
under a statute making either liable.
Cincinnati, H. & I. R. Co. v. McDou
gall, 108 Ind. 179, 8 N. E. 571.
47 §§ 3041, 3045, supra.
48 §§ 3042-3044, 3049, supra.
49 § 3048, supra.

50 A bank may not be held as a codefendant in a suit to charge a guardian and his sureties with waste on a bare allegation that there was an embezzlement by the guardian for which the bank was responsible. Bank of Virginia v. Craig, 6 Leigh (Va.) 399.

$ 3052. Charter and by-law provisions entering into right of action. The charter and by-law provisions enter into causes of action only by virtue of their being impliedly or expressly a part of some contract with the corporation, or some limitation on power to contract or hold property, or some limitation on authority of officers. or agents, or some basis of notice or other equity, etc. It is therefore necessary to plead them affirmatively only when they are an incident to the contract or right asserted.51 They are most frequently pleaded defensively.52 There are a great many decisions containing dicta or holding in round terms that "the" charter need not be pleaded, or should be pleaded, which only mean that corporate existence must be or need not be alleged; in other words, that "a" charter or incorporation must be alleged in some form. This allegation is for the purpose of naming and identifying the party primarily, though incidentally it may raise an implication of the requisite power.53 In most cases, but not all, the manner and means by which or the agents through whom the corporation acted and was represented need not be alleged beyond a general allegation that it did the act or was responsible,54 leaving it to the proofs to show binding action under the charter and by-laws if issue be made thereon. If the pleaded right is based on a charter with a condition therein imposed, both the charter and the fact of performing the condition. must be alleged.55 It is sometimes necessary to plead the charter in order to show that an alleged wrong was a wrong.56 On the other

51 Nearly all such cases will arise in suits between the corporation and its members or officers, and hence will not be within the scope of this chapter. See Chapters 17, 42, supra, and Stock and Stockholders, infra.

Sometimes the receiver will sue basing his rights on the charter or bylaws, and as to such actions see also chapter on Receivers, infra.

Actions for relief or for recovery of money or property received under ultra vires contract or transaction, see § 1604 et seq., supra.

See generally $$ 501-503, 511-519, supra, as to effect and subject-matter of by-laws. Compare also those portions of this work dealing with actions relating to the subject-matter of the particular by-law.

52 See § 3078, infra.

53 See such cases §§ 3042-3044, supra. 54 § 3055, infra.

55 Under charter granting a toll franchise for making improvements which will facilitate a certain use of a river, it must be alleged in action for tolls that use was so facilitated. Swift River & B. B. Improvement Co. v. Brown, 77 Me. 40.

56 In action for libel of a foreign corporation by ascribing a purpose to exercise a power granted by its charter, the charter must be pleaded to make out the cause of action. Hahnemannian Life Ins. Co. v. Beebe, 48 Ill. 87, 95 Am. Dec. 519.