Mobile Cotton Mills v. Smyrna Shirt & Hosiery Co. 5 Penne. 518, 21 Del. 518

Mobile Cotton Mills, a corporation created by and existing under the laws of the State of Alabama, vs. Smyrna Shirt and Hosiery Company, a corporation created by and existing under the laws of the State of Delaware.

Affidavit of Defense—Foreign Corporation—Business in this State— Statute; Compliance with—Practice. '

Judgment will be given notwithstanding an affidavit of defense which alleges simply that “ the plaintiff has not complied with the provisions of the statutes of the *519Staté of Delaware in regard to foreign corporations doing business in this State” and which fails to state in what respect the plaintiff has failed to comply with such statutes.

(November 3, 1905.)

Lore, C. J., and Grubb and Pennewill, J. J., sitting.

Henry Ridgely, Jr., for plaintiff.

George M. Jones for defendant.

Superior Court, Kent County,

October Term, 1905.

Summons Case

(No. 137,

October Term, 1905).

The following affidavit of defense was filed, viz:

“ State of Delawabe, 1 “Kent County, ‘

“ Be it remembered that on this twenty-sixth day of October A. D. 1905, before me, Walter Pardoe, Prothonotary of the Superior Court of the State of Delaware in and for Kent County personally comes Charles B. Prettyman, Treasurer of Smyrna Shirt and Hosiery Company, the defendant in the above stated suit, who having been by me duly sworn according to law doth depose and say that he is the Treasurer of the defendant in the above stated suit; that he verily believes that there is a legal defence to the whole of the cause of action in the above stated suit, the nature and character whereof are as follows, viz:

“ That the defendant corporation has a just and true set-off to a part of the cause of action, and as to the whole of the said cause of action that the plaintiff corporation has no legal right to recover thereon, because it has not complied with the provisions of the statutes of the State of Delaware in regard to foreign corporations doing business in said State of Delaware.”

(The above affidavit was signed by Charles B. Prettyman, *520Treasurer of the Smyrna Shirt and Hosiery Company, with the jurat of said Prothonotary and his seal of office attached.)

Ridgely, for plaintiff, asked for judgment notwithstanding the said affidavit of defense, for the following reasons:

First, because the affidavit contained no allegation that the plaintiff was a foreign corporation doing business in the State of Delaware.

Second. That there was no allegation in said affidavit that the particular transaction referred to was a business transaction which took place in the State of Delaware.

Third. Because the affidavit stated a conclusion of law; there being no allegation setting forth in what respect the plaintiff has failed to comply with the statutes of the State of Delaware.