Page:Federal Reporter, 1st Series, Volume 1.djvu/575

 KELLEï V. MIoSISSIPPI OENT. B. 00. 567 �failnre to make the question by some proper proceeding admits the corporate existence. The necessity, then, for some proceeding to abate the suit is obvions. If there be any appearance, except to make that contest, the matter is «nded in favor of the existence, for afterwards ail parties are estopped to deny it. Muscatine v. Funk, 18 lowa, 469. The marshal cannot safely assume to determine the question and refuse to execute the writ, particularly in a case like this, where there has been a corporation which bas issued bonds a,nd built a railroad, and as to which there are outward and tangible evidences of continued existence. �The plaintifE may take a judgment at bis peril, and if there be no corporation it is void, as we have seen. Thornton v. BaUway, 123 Mass. 32. But I do not see that he is entitled to this as a matter of right, nor that the stockholders or others interested should be compelled to submit to such a judgment without a preliminary contest over the fact of corporate ex- istence; because, if there be a corporation, the judgment by default is binding, and ail opportunity to make other defences is gone. This throws on ail interested the peril of deter- mining the important question of existence for themselves, "without the aid of judicial inquiry into the disputed facts, and is an immense advantage to a plaintiff ; and it would, in my opinion, be a reproach to the law to permit it, upon any technical theory that the officers and stockholders are not parties, and therefore cannot plead in the suit. That they are not parties, even "when served with process, cannot be denied. Bronson v.La Crosse R. Co. supra; French v. Bank, 7 Ben. 488; S. C. 11 N. B. E. 189; Apperson v. Ins. Co. 38 N. J. L. 272; Blackman v. R. Co. 58 Ga. 189. �How, then, can the def ence be made ? It is said in Oxford Co. V. Spradeen, 46 Ala. 98, that there is no precedent for a plea by a corporation of its own non-existence; that it is an inappropriate plea and an inconsistency in itself ; but it is intimated in McCullougk v. Ins. Co. Id. 376, that such a plea is permissible in cases of misnomer and dissolution. In W. U. Tel. Co. V. Eyser, 2 Cold. 141, Mr. Justice Belford says that such a plea by the corporation itself is not anomalous, and ��� �