drawn, and others to be filed, argued and decided upon.

A corporation may sue in this state, in its corporate name, and need not aver in the complaint how it became a corporation, nor that it is such. And a default, or answer in denial of the cause of action, admits the capacity of the plaintiff to sue. Harris vs. The Muskingum, &c., Co. 4 Blackf. 267 and cases cited; Hubbard vs. Chappel, 14 Ind. 601.

But there may be an answer of nul tiel corporation, at the commencement of the suit. The cases supra; and Morgan vs. Lawrenceburg, &c. 3 Ind. 285; Ind. Dig. p. 318. Such answer, it is now settled in this state, is an answer in abatement, and must therefore precede answers to the merits. Jones vs. The Cincinnati, &c. Co., 14 Ind. 89; McIntyre vs. Preston, 5 Gil. (Ill.) 48, Phoenix, Bank &c. Curtiss, 14 Conn. 437. And upon the trial of an issue of fact on such answer, or on a reply thereto, the proof is limited to the question of the existence, de facto, of a corporation, under an authority sanctioning such a corporation, de jure. In other words, mere irregularities in organization cannot be shown collaterally, where there is no defect of power. The Bank of Toledo vs. The International Bank, 21 N. Y. 542. and the authorities supra. See the cases cited in Abb. Pl. (N. Y.) p. 179; also Ewing vs. Robeson et al., 15 Ind. 26. And where such answer denies the existence at the commencement of the suit, of a corporation which is shown to have once existed, the answer should particularly set forth the manner in which the corporate powers ceased. Ind. Dig. § 63, p. 319. A faulty answer in this respect was erroneously held good in Morgan vs. Lawrenceburg, &c. 3 Ind. supra.

We have asserted above, that the issue of nul tiel corporation is upon the existence of a de facto corporation, where one de jure is authorized; and upon this fact rests the doctrine of estoppel to deny the existence of a corporation, in certain cases. The estoppel goes to the mere de facto organization, not to the question of legal authority to make an organization. A de facto corporation that by regularity of organization might be one de jure, can sue and be sued. And a person who contracts with such corporation, while it is acting under its de facto organization, who contracts with it as an organized corporation, is estopped, in a suit on such contract, to deny its de facto organization at the date of the contract; but this does not extend to the question of legal power to organize. Hence, if an organization is completed where there is no law, or an unconstitutional law, authorizing an organization as a corporation, the doctrine of estoppel does not apply. Harriman vs. Southam, 16 Ind. 190; Brown et al vs. Killian, 11 Ind. 449. See 15 id. 395. So, if the plaintiff suing in a name importing prima facia a corporation, in fact it is not

assuming to act as a corporation, but only as a partnership, this fact may be raised by an answer alleging want of parties in interest to the suit. Farnsworth vs. Drake, 11 Ind. 101. See Brown vs. Killian, (supra). The sixteenth paragraph of the answer averred the non-performance of a condition precedent by the corporation, it having failed to tender to the defendant a certificate of stock. The paragraph was bad. The New Albany Co. vs. McCormick, 10 Ind. 499.

Considering the amount recovered in this case, the circumstances attending the trial, the evidence given, and that which was absent, and all the surroundings, we think the court should have sustained the motion that was made for a new trial.

PER CURIAM:-The judgment is reversed, with costs. Cause remanded, with leave to amend, &c.

CHAPTER IV.

THE CHARTER.

LEGISLATIVE CONTROL UNDER THE CONSTITUTION.

TRUSTEES OF DARTMOUTH COLLEGE V. WOODWARD. SUPREME COURT OF THE UNITED STATES, 1819.

(4 Wheat. 517.)

Power of the Legislature Over Corporations.

Marshall, C. J.: This is an action of trover, brought by the trustees of Dartmouth College against William H. Woodward, in the State Court of New Hampshire, for the books of records, corporate seal, and other corporate property, to which the plaintiffs allege themselves to be entitled.

A special verdict, after setting out the rights of the parties, finds for the defendant, if certain acts of the legislature of New Hampshire, passed on the 27th of June and on the 18th of December, 1816, be valid and binding on the trustees without their assent, and not repugnant to the constitution of the United States; otherwise, it finds for the plaintiffs.

The Superior Court of Judicature of New Hampshire rendered a judgment upon this verdict for the defendant, which judgment has been brought before this court by writ of error. The single question now to be considered is, do the acts to which the verdict refers violate the constitution of the United States?

This court can be insensible neither to the magnitude nor delicacy of this question. The validity of a legislative act is to be examined, and the opinion of the highest law tribunal of a state is to be revised; an opinion which carries with it intrinsic evidence of the diligence, of the ability and the integrity with which it was formed. On more than one occasion this court has expressed the cau

As to the legislative control over corporations, see Charles River Bridge Co. v. Warren, 11 Pet. (U. S.) 420 (1837); Thorpe v. Railroad Co., 27 Vt. 140 (1855); Greenwood v. Freight Co., 105 U. S. 13 (1881); Commonwealth v. Eastern R. Co., 103 Mass. 254 (1869); Railway Co. v. Lackey, 78 Ill. 55 (1875); Commonwealth v. Essex Co., 13 Gray. (Mass.) 239 (1859); Detroit v. Plank Road Co., 43 Mich. 140 (1880).

tious circumspection with which it approaches the consideration of such questions, and has declared that in no doubtful case would it pronounce a legislative act to be contrary to the constitution. But the American people have said, in the constitution of the United States, that "no state shall pass any bill of attainder, ex post facto law, or law impairing the obligation of contracts." In the same instrument they have also said "that the judicial power shall extend to all cases in law and equity arising under the constitution." On the judges of this court, then, is imposed the high and solemn duty of protecting, from even legislative violation, those contracts which the constitution of our country has placed beyond legislative control, and, however irksome the task may be, this is a duty from which we dare not shrink.

The title of the plaintiffs originates in a charter dated the 13th day of December, in the year 1769, incorporating twelve persons therein mentioned, by the name of "The Trustees of Dartmouth College," granting to them and their successors the usual corporate privileges and powers, and authorizing the trustees, who are to govern the college, to fill up all vacancies which may be created in their own body.

The defendant claims under three acts of the legislature of New Hampshire, the most material of which was passed on the 27th of June, 1816, and is entitled "An act to amend the charter, and enlarge and improve the corporation of Dartmouth College." Among other alterations in the charter, this act increases the number of trustees to twenty-one, gives the appointment of the additional members to the executive of the state, and creates a board of overseers, with power to inspect and control the most important acts of the trustees. This board consists of twenty-five persons. The president of the senate, the speaker of the house of representatives, of New Hampshire, and the governor and lieutenant-governor of Vermont, for the time being, are to be members ex-officio. The board is to be completed by the governor and council of New Hampshire, who are also empowered to fill all vacancies which may occur. The acts of the 18th and 26th of December are supplemental to that of the 27th of June, and are principally intended to carry that act into effect.

7 The majority of the trustees of the college have refused to accept this amended charter, and have brought this suit for the corporate property, which is in possession of a person holding by virtue of the acts which have been stated.

It can require no argument to prove that the circumstances of this case constitute a contract. An application is made to the crown for a charter to incorporate a religious and literary institution. In the application it is stated that large contributions have been made for the object, which will be conferred on the corp

oration as soon as it shall be created. The charter is granted, and on its faith the property is conveyed. Surely in this transaction every ingredient of a complete and legitimate contract is to be found.

The points for consideration are:

1. Is this contract protected by the constitution of the United States?

2. Is it impaired by the acts under which the defendant holds? 1. On the first point it has been argued that the word "contract," in its broadest sense, would comprehend the political relations between the government and its citizens, would extend to offices held within a state for state purposes, and to many of those laws concerning civil institutions which must change with circumstances and be modified by ordinary legislation; which deeply concern the public, and which, to preserve good government, the public judgment must control; that even marriage is a contract, and its obligations are affected by the laws respecting divorces; that the clause in the constitution, if construed in its greatest latitude, would prohibit these laws. Taken in its broad, unlimited sense, the clause would be an unprofitable and vexatious interference with the internal concerns of a state, would unnecessarily and unwisely embarrass its legislation, and render immutable those civil institutions which are established for purposes of internal government, and which, to subserve those purposes, ought to vary with varying circumstances. That as the framers of the constitution could never have intended to insert in that instrument a provision so unnecessary, so mischievous, and so repugnant to its general spirit, the term "contract" must be understood in a more limited sense. That it must be understood as intended to guard against a power of at least doubtful utility, the abuse of which had been extensively felt, and to restrain the legislature in future from violating the right to property. That anterior to the formation of the constitution a course of legislation had prevailed in many, if not in all, of the states, which weakened the confidence of man in man and embarrassed all transactions between individuals by dispensing with a faithful performance of engagements. To correct this mischief, by restraining the power which produced it, the state legislatures were forbidden "to pass any law impairing the obligation of contracts," that is, of contracts respecting property, under which some individual could claim a right to something beneficial to himself; and that, since the clause in the constitution must in construction receive some limitation, it may be confined, and ought to be confined, to cases of this description; to cases within the mischief it was intended to remedy.

The general correctness of these observations cannot be controverted. That the framers of the constitution did not intend to