The facts are sufficiently stated in the opinion of the chief justice. The bill complains against the defendants and directors of the Concord Railroad, and alleges that they, in violation of law and of the charter and by-laws of the corporation, have loaned or deposited with certain corporations or individuals large sums of money which ought to have been paid to the treasurer, and, as the complainant believes, without any adequate security for the safe keeping of these deposits or loans, and prays that they may be restrained by injunction. To this bill there is a general demurrer, and the questions before the court are those which arise on this demurrer. The demurrer must be taken to admit all the allegations which are well pleaded.
A very material allegation is, that these deposits or loans have been made in violation of law, and of the charter and by-laws of the corporation.
In Gould's Pleading, ch. 3, sec. 16, the doctrine on the subject of private statutes and by-laws is laid down as follows:
"In pleading particular customs or private statutes, not only must the facts which bring the case within the custom or statute be alleged, but the custom or statute itself — or at least so much of it as is material to the case — must be recited by the party complaining or defending under it. But the recital, in these cases, is not to be deemed matter of law; for such customs and statutes, although they may respectively furnish the rule of decision in cases falling within them, are no part of the general law of the land, but, like private records, prescriptions, deeds, etc., are regarded and treated in pleading as matters of fact, of which the courts of justice cannot judicially take notice. Hence it is, that the existence of any such custom or statute may be denied by plea, and that, when so denied, it must be proved as a fact, and can be tried only on an issue in fact; whereas matter of law, properly so called, can never be denied in pleading."
In Merrill v. Plainfield, 45 N.H. 126, it is held that matter of public law cannot properly be alleged in pleading. Of that the court judicially takes notice, as arising on the facts. In this case, the very object of the demurrer is to determine what the law is on the facts alleged. So, the allegation that these proceedings are contrary to law is not well pleaded, and is not admitted by the demurrer. *Page 37
The allegation of violation of the charter and by-laws of the corporation is equally imperfect, according to the citation from Gould. The charter and by-laws, or, at least, that part of them relied on, should have been especially recited. They are facts of which the court cannot judicially take notice, and of which it knows nothing, excepting in as far as they are brought to its notice by the pleadings and the proofs. It is impossible for the court to determine what the result of the general law, taken in connection with the charter and by-laws and applied to the facts alleged, will be.
The allegation, then, that the facts charged are in violation of the law, and of the charter and by-laws of the corporation, being insufficiently pleaded, is not admitted by the demurrer, and the question cannot now be determined by the court. The bill, of course, may be amended so as to show what part of the charter and by-laws, taken in connection with the general law, has been violated by the proceedings complained of.
The demurrer is ore tenus. If the objection had been assigned as cause of demurrer, it is probable that the bill would have been at once amended, and an answer filed, so that the matter would have been ready for the investigation of the facts, if denied, or the determination of the law by a hearing on the bill and answer.
For this reason, the amendment, if desired, ought to be allowed without terms.
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