Lessee of Overmyer v. Williams.

of Carter et al., 14 Peters, 131. They say: "The right of a IN BANK.

1846.

corporation, in this respect, is like an alien, who has the Dec. Term, 'power to take, but not to hold lands. And although the land 'thus held by an alien may be subject to forfeiture, after office 'found, yet, until some act is done by the government, according to its own laws, to vest the estate in itself, it remains with 'the alien, who may convey it to a purchaser. But he can 'convey no estate, which is not defeasible by the Commonwealth. This principle has received the sanction of this Court, in Fairfax v. Hunter, where it is said to be incontrovertibly settled, by the fullest authority, that the title acquired by an 'alien, by purchase, is not divested until office found." They proceed to say, that doctrine clearly establishes the right of the lessees of plaintiff to hold the premises in question, until some act shall be done by the Commonwealth of Pennsylvania, according to its laws, to divest that right, and vest the estate in itself. The legal estate is, accordingly, in the lessee of the plaintiff, and the defendant cannot set up any right of forfeiture, which the State of Pennsylvania can alone assert.

error.

BIRCHARD, J. From the bill of exceptions, the determination of this question will dispose of the three assignments of Did the deed of John Overmyer, executed in 1839 to the Ohio Railroad Company, divest him of title to the land described in the deed? The plaintiff in error assumes that it did not, for the alledged reason, that the corporation had no power to receive the title. At common law, corporations had the capacity to purchase and alien lands unless restrained by statute. or their charters. 2 Kent's Com. 227, and cases there cited.

Owing to the lawish manner in which corporations are granted in modern times, a safer rule has obtained. The better and true doctrine which now is generally recognized, is, that corporations have such powers only as are specifically granted by the act of incorporation, or as are necessary to carry into effect the powers expressly granted. 2 Cranch's Rep. 127; 15 Johns. Rep. 358; 5 Conn. Rep. 560; 12 Ohio Rep. 12.

IN BANK.

1846.

Lessee of Overmyer v. Williams.

The purchase in this case was made, as is shown by the proof, Dec. Term, for the express purpose of securing the right of way, and the timber growing on the land, which was needed in constructing the track of the road, and was actually so used. The superintendent states that, after several ineffectual attempts to procure timber for the making of the road by purchase, he found it necessary to resort to the purchase of lands in the vicinity of the road to supply the materials for making the superstructure; and, in accordance with that view, the company made the purchase of the land in question.

We look, then, to the charter of this company (O. L. vol. XXIV, 320) in order to determine whether the deed of 1839 is void. The 3d section confers the power of "purchasing, hold'ing, selling, leasing, and conveying estates, real, personal and mixed, so far as the same shall be necessary for the purposes ' hereinafter mentioned, and no further;" "and they shall have, enjoy and exercise all the powers, rights and privileges, which 'corporate bodies may lawfully do, for the purposes mentioned in this act." The purposes referred to are declared, in the subsequent sections of the act, among other things, the building of a railroad not exceeding one hundred feet in width.

The 12th section gives the right "to enter, use and excavate any lands which may be wanted for the site of the road, or for any other purpose necessary and useful for the construction ' and repair of said road and its works."

Section 13 contains a paragraph which reads thus: "That the president and directors of said company, or a majority of 'them, or any person authorized by them, or a majority of them, may agree with the owner or owners of any land, earth, tim'ber, stone or other materials, or any improvements which may be wanted for the construction or repairs of said road, or any ' of their works, for the purchase, use or occupation of the 'same."

In view of these grants of power, it would seem that the purchase in question was expressly authorized by the charter. Timber was needed for the construction of the road, and power

Arndt v. Arndt.

1846.

was intended to be granted so ample, that it might be procured IN BANK. at all events. The first, and preferred mode of procuring it, Dec. Term, was by purchase, upon mutual agreement with the owner; and it is evident from the whole scope of the charter, that the Legislature preferred that the company should make the necessary acquisitions of property, by purchase, to a resort to the other means conferred upon them, to wit, the exercise of the delegated right of eminent domain. The company did just what a prudent man would have done under like circumstances, and the charter justified them, because it was the intention of the Legislature (and which intent is to be gathered from the act of incorporation) to authorize purchases of all necessaries at fair prices, and in the mode most economical, least likely to give cause of offence, and least prejudicial to the rights of others.

Judgment Affirmed.

GEORGE ARNDT VS. CHRISTIAN J. ARNDT.

A judgment rendered in the Court of Common Pleas of Pennsylvania, when the service is upon land only, and the defendant never within that State, is not prima facie evidence of debt in Ohio.

Such judgment binds the property seized, but beyond this, is a nullity.

The same faith, credit and effect will be given here to a judgment pronounced in
Pennsylvania that it has by law or usage there.

THIS Action is in Debt, reserved in the County of FAIRFIELD.

The action is founded on a judgment of the Court of Common Pleas for Adams county, in the Commonwealth of Pennsylvania. The record of this judgment shows the service was made by the levy of an attachment on the interest of the defendant in a certain tract of land in said Adams county.

Arndt v. Arndt.

1846.

IN BANK. To the declaration in this suit, on this record from PennsylDec. Term, vania, the defendant has plead specially in bar of the action, that he was never served with process; that he did not appear in the suit, neither by himself or his attorney, and that he was never within the jurisdiction of the State of Pennsylvania.

The plaintiff has replied to this plea, that the defendant was brought before the Court by an attachment served on his land in Pennsylvania; and to this replication the defendant has filed a general demurrer.

J. B. Hart and H. H. Hunter, for Plaintiff.

The only question is as to the effect in the State of Pennsylvania of a judgment rendered in that State in a suit commenced by foreign attachment.

The record of which profert is made in the declaration, shows service of the writ by an attachment of all the interest of the defendant in a certain tract of land on the 3d day of October, 1836; and that judgment was rendered on motion, April 25, 1837, for real debt, $432.60, and interest from 15th September, 1836.

After the manner of Pennsylvania records, which ordinarily, I believe, only shows the beginning and conclusion of things, it does not appear whether the defendant appeared, or whether judgment was rendered by default.

We assume that it was by default, that being the most probable.

It being a personal action for the recovery of a debt, and not a proceeding in rem, and the Court having competent jurisdiction, we claim that the effect of the judgment is general, and concludes the party so that he cannot controvert it or aver against it, unless by statute of Pennsylvania the effect of the judgment shall be limited.

The form of the process by which the subject matter is brought before the Court, or the manner in which it is to be served, whether by seizure of property, or personally, we think

Arndt v. Arndt.

1846.

can make no difference, provided it be such as, according to IN BANK. the law of the State, is prescribed to give jurisdiction to the Dec. Term, Court to pronounce upon the evidence as to the amount of the plaintiff's demand.

Every State or sovereignty has the right and power to prescribe in what manner causes shall be brought before its judicial tribunals to be adjudged. Under the Constitution and laws of the United States, and the judicial determinations, especially of the Supreme Court of the United States, the effect of a judgment in every other State is made the same as in the State in which it is rendered. So far as the present case is concerned, this question, we understand, is conceded.

The State of Pennsylvania has provided that suits may be brought by foreign attachment, to be served by the seizure of property; and their statute expressly provides that judgment may be rendered therein, not merely to subject the property seized to a sale, but generally. The effect of such judgment is not declared by statute; nor is the effect of a judgment, where personal service of process is had, so declared. The effect is therefore a legal consequence as much in the one case as the other.

An abridgment of the laws of Pennsylvania on the subject of foreign attachment, will be found in Purden's Digest, 5th edition, page 436, &c.

By the 1st section, it is in substance provided: "That it 'shall be lawful for the plaintiff, at the third term after execu'tion of the writ, if he shall have filed his declaration, to take 'judgment for default of appearance, unless the attachment 'before that time be dissolved."

Section 2d provides "that after judgment, as aforesaid, the ' plaintiff may have a writ of scire facias against the garnishee." Section 9th provides "that after judgment, and before exe'cution executed, the plaintiff shall give security that if the 'defendant will, within a year and a day, disprove, or avoid the debt recovered, or discharge the same with costs, the plaintiff 'shall restore the goods or effects, or value thereof, attached," &c.