specific acts of a larger class. There the pleader must, by averment, bring his contract, if it be valid at all, within the purview of the exception from the major prohi

[6] At common law and under the statute (Code, § 3349), that the form and terms of the contract for future delivery of commodities are free from indicia of illegality did not-does not-conclude the inquiry of il-bition. His obligation is affirmative. 'The legality vel non, for the real intention of the parties may be found by recourse to proper evidence tending to show the "nature of the true transaction and the circumstances attending it." Hawley v. Bibb, supra; Code, 8 3349.

contract being valid upon its face, with us the presumption of intention to validly engage refers the contract to the law that will sustain it-that sanctions its validity. The result under the South Carolina system and that under our own would be, in substance, [7] If a contract for the future delivery of the same; but the burden of allegation and commodities is fair on its face without in-proof is not, as indicated, the same. Hence dicia of illegality refuting the presumption it must be held, as indicated, that this genthat parties do not intend to make an illegal eral rule applies, namely, that he who would contract of that character-obviously (omit- defeat a contract, valid on its face, for ilting, at this stage, consideration of our stat- legality, has the burden of allegation to that ute [Code, § 3349]) the assertion of such a end. 9 Cyc. p. 762; Gafford v. Speaker, 125 contract, with a view to the enforcement of Ala. 498, 27 South. 1003; 5 Mayf. Dig., p. 371. its obligations would not require the pleader thereof to affirm that the intention of the parties in the premises was to deal in the property, and not to wager upon market fluctuations. To conclude otherwise would be to initially impose upon a party to a contract, fair upon its face, the duty of allegation of his innocence and of the validity of his contract, when and as he engaged, and, in consequence, to lay upon him the onus of sustaining the allegations. The presumptions stated refute any such conclusion.

Has our cited statute altered this matter as respects the assertion in pleading of such contracts? We think not. There is nothing in the statutes on this subject, which are a codification of the act approved March 7, 1907 (Gen. Acts 1907, pp. 448, 452), whereupon it could be contended that the legislative intention was to deny the application of the mentioned presumptions to contracts free from illegality on their faces. Indeed, from the provision made in section 2 of the act (Code, § 3351) with respect to the effect, prima facie, of evidence of certain, defined character, the necessary implication is that the Legislature did not intend to impose the burden of allegation and proof upon a party asserting, with a view to its enforcement, a contract for future delivery.

Counts 1, 2, 4, and 5 of the amended complaint stated a cause of action in each. Without attempting particularity in the statement, upon their respective averments, these counts set forth contracts for the sale of stipulated quantities of cotton, for delivery at designated points, at a specified price and grade. The substance of the contracts was that appellees, who were cotton brokers, agreed to sell certain quantities of cotton "for account" of appellant. The consideration shown in these counts, moving from appellant to appellees, was 50 cents per bale. There is nothing in the contracts therein set forth evincing any other intention of the parties than to deliver the commodity-to deal in the substance, and not to merely wager upon the market changes. The contracts were, on their faces, valid. They consist with legal undertakings. The objection, taken by the demurrers and argued in brief for appellant, that the counts should have contained other allegations excluding the elements working invalidity, as provided in the cited statutes, cannot be approved. The court below, therefore, did not err in so ruling on this phase of the demurrers.

[8, 9] If the pleas purporting to assert that the contracts declared on were ultra vires the corporation were predicated upon the idea A very different statutory status was in- that the contracts were, on their faces, wagvolved in Gist v. W. U. Tel. Co., 45 S. E. 344, ering transactions, and therefore void and 23 S. E. 143, 55 Am. St. Rep. 763. There the without the corporate powers of the defendstatutes expressly laid the burden of proof ant, what has been said before in respect to upon any one seeking to enforce a right or the contracts will suffice to indicate our obligation arising out of a contract for fu- opinion that that theory cannot be approved. ture delivery; and, besides, the major statute If the corporation possessed the power to of the system of laws there considered con- lawfully deal as the contracts on their faces demned every future delivery contract "un- show was undertaken, it is evident, upon auless" the engagement possessed the elements thority, that ownership of the cotton, at the requisite to make a valid contract of that time of contracting, engaged to be delivered, character under that system. It was there was not with the defendant, or that it had ruled that no cause was stated, "unless" the no lands in cultivation wherefrom cotton, for requirements of the system, to render such a such delivery, might be gathered, are not escontract valid, were affirmatively alleged. sential to constitute a valid contract for the One of the differences between that system future delivery of the community. Hawley and our own (Code, c. 67, art. 5) is that be- v. Bibb, 69 Ala. 52, 55. Ultra vires must be tween a general prohibition with a legal ex- especially pleaded when to be offered in

Pl. & Pr. 95; 10 Cyc. p. 1056; Bank v. Pence, | 619, 632. The action was on a note given 59 Neb. 579, 81 N. W. 623. The presumption by Savage and others to the Planters' & is that contracts by corporations are justified by their powers. Boulware v. Davis, 90 Ala. 207, 211, 8 South. 84, 9 L. R. A. 601; Ala. Ins. Co. v. C. A. & M. Ass'n, 54 Ala. 73. In such matters, the burden of proof follows the burden of allegation.

Original pleas 3 and 4 will be set out in the report of the appeal. They were demurred to upon the ground, among others, that the allegation that the contracts were ultra vires the corporation was a conclusion of the pleader. The demurrer was sustained. The court holds that while, under the authority of Hawley v. Bibb, supra, the averments of these pleas, preceding the summary allegation of ultra vires, did not, if true, lead to the result that the sales of the cotton for future delivery were ultra vires the corporation (if the corporation was authorized to lawfully deal as the contracts on their faces show was undertaken), the concluding allegation of ultra vires was not subject to the demurrer interposed; and therefore the court erred in sustaining the demurrer to original pleas 3 and 4.

Merchants' Bank. Among other pleas filed
was the fifth, wherein it was alleged "that
said bank, at the date of said note, had no
power or authority to make a contract, and
that the said note was null and void."
There the effort was by the payers to defeat
their obligation to the corporation by the
assertion of its want of power to contract.
Here the corporation itself would assert its
want of charter power to contract as plain-
tiff alleges. Of the plea quoted this court,
through Goldthwaite, J., said: "In the ac-
tion of the court in sustaining the demur-
rer to the *
* fifth pleas, there was
no error.
The same objection ap-
plies to the second and fifth pleas, both of
which assert legal conclusions instead of
facts."

The method and sufficiency of pleading ultra vires was considered in Life Association v. Cook, 20 Kan. 19, 27. It was there said: "In this case, if the defendant Westerman wished to raise by her answer the question that the loaning of money by the plaintiff to Cook on real estate security in Kansas was ultra vires, and forbidden, she should have pleaded its charter, or the laws of the state where it was organized, or both such charter and laws, and on the trial produced the same evidence." There are many instances in our reports where the principle illustrated by the cases cited has been noted and applied. The writer, therefore, dissents

4 not subject to the demurrer, and hence would affirm the judgment appealed from.

In this ruling the writer is unable to concur. The proposition affirmed by the ruling (limiting its statement to character of action here presented is that the want of corporate power is sufficiently pleaded, in bar of the recovery sought, by the simple allegation that the contract in question was "ultra vires the corporation," or was ultra vires the charter of the corporation." | from the ruling holding original pleas 3 and Corporations are creatures of special statutes or general law authorizing their organization, and possess only such powers as are expressly granted, or such as are necessary to carry into effect the powers so expressly granted. Chewacla Lime Works v. Dismukes, 87 Ala. 344, 346, 6 South. 122, 5 L. R. A. 100; 10 Cyc. p. 1096, and notes thereon. What the powers and properties of such creatures of the law are is, as in all cases of the construction or interpretation of written instruments, an inquiry for the court and not for the jury. 1 Thomp-murrer. son's Com. on Corp. § 1237; S. M. & M. R. R. Co. v. Anderson, 51 Miss. 829, 834. It is an elementary rule that a plea must set up the facts constituting the defense, and not the pleader's legal conclusion deduced therefrom. 16 Ency. Pl. & Pr. p. 564; 12 Ency. Pl. & Pr. p. 1024 et seq.; 31 Cyc. p. 49 et seq.

[10] Plea 6, as originally filed, alleges an intention entertained by the "defendant" inconsistent with a valid contract of this character. Such an intention must be common to the parties in order to render the contract illegal. Hooper v. Nuckles, 39 South. 711. The plea was defective on that account, and the court did not err in sustaining the demurrer thereto.

[11] Plea 7 was patently subject to the de

It appears to have been but a reiteration of Code, § 3350. That section's sole office is to exclude a certain class of persons, firms, or corporations from the provisions of the preceding section 3349. Plea 7 contained no averment challenging the validity of the contracts declared on, or asserting, in any degree, the corporation's want of power to so engage.

[12] Plea 5 was also addressed to count 3 as amended. It was a common count. The plea omitted to allege that the contracts to which it referred were the bases of liability declared on in amended count 3. The

In this instance, the variety of the general allegation of ultra vires depended upon the charter powers, express and implied, of the private corporation. To justify, against the demurrer, this general allegation, the pleader must be accorded the prerogative to construe the defendant's unpleaded charter. | demurrer taking this point was well susBroad Street Hotel Co. v. Weaver's Adm'r, | tained. 57 Ala. 26. This cannot, under principle and authority, be permitted. The question in hand was, in principle, decided in Savage &

[13] As amended pleas 3, 4, and 6 set forth the corporate powers of the defendant, as a predicate for the allegation that the

* * *

warrant the addition of third persons as parties defendant to a bill for divorce and alimony. [Ed. Note. For other cases, see Divorce, Dec. Dig. § 72.*]

6. DIVORCE (§ 66*)-VENUE-STATUTES-CON

STRUCTION.

corporation. In its charter it was author- defeat the claims of his wife to alimony will not ized "to buy, sell, hold or mortgage personal property." Granting, as appears prima facie, that the contracts described were valid, no reason occurs to us, nor has any been pointed out, why the dealing indicated was not within the corporate power to buy and sell personal property. It could not be doubted that the corporation has thereunder the power to buy and sell cotton. If such power it had, it would seem to necessarily result that it could engage to sell as, on their faces, these contracts purport to do. The court did not, therefore, err in sustaining the demurrer to amended pleas 3, 4, and 6.

For the error indicated, the judgment is reversed, and the cause is remanded. Reversed and remanded. All the Justices, save the writer, concur.

MCCLELLAN, J., dissents.

(174 Ala. 315)

PUCKETT et al. v. PUCKETT. (Supreme Court of Alabama.

Nov. 21, 1911.) 1. DIVORCE (§ 62*)-VENUE-STATUTE-BILL. Under Code 1907, § 3801, providing that bills for divorce may be filed in the chancery

district in which the defendant resides or in which parties resided when the separation occurred, it was improper to file the bill in the district in which the separation occurred, where the parties at that time resided in another district.

[Ed. Note. For other cases, see Divorce, Cent. Dig. §§ 208-216; Dec. Dig. § 62.*] 2. EQUITY (§§ 160, 220. 362*)—PLEADING-JURISDICTION-PRACTICE.

While the question of jurisdiction is usually raised by a plea in abatement, a bill disclosing on its face that it is not filed in the proper jurisdiction is subject to demurrer, or to be dismissed on motion.

[Ed. Note. For other cases, see Equity, Cent. Dig. §§ 397, 497, 758-761; Dec. Dig. §§ 160,

220, 362.*]

Pleadings must be construed most strongly against the pleader, and, if a bill be susceptible of two constructions, one rendering it good and the other bad, the latter must be indulged. [Ed. Note.-For other cases, see Equity, Cent. Dig. $8 386-389; Dec. Dig. § 153.*] 4. DIVORCE (§ 65*)-PARTIES.

Where a bill by a wife for divorce and alimony included third persons other than the husband as parties defendant, the addition of such parties, who are not material so far as a bill for divorce is concerned, and who can be proper parties only when necessary to secure the payment of the decree for alimony, should such decree be rendered, will not give a court, which did not have jurisdiction of the husband alone, jurisdiction to try the action.

[Ed. Note. For other cases, see Divorce, Dec. Dig. § 65.*]

5. DIVORCE (§ 72*) — PARTIES - BILL-SUFFICIENCY.

The mere allegation of a suggestion that a husband could dispose of his property so as to

Code 1907, § 3801, which is part of a distinct chapter on the subject of divorce and alimony, provides how the jurisdiction and venue of a suit for divorce shall be determined. Held, that such determines the jurisdiction and venue of suits for divorce, regardless of sections 3093 and 6110, relating to venue.

[Ed. Note. For other cases, see Divorce, Dec. Dig. § 66.*1

FENDANT.

7. DIVORCE (§ 62*)-PARTIES-"MATERIAL DEUnder Code 1907, §§ 3093, 6110, providing that bills must be filed in the district in which the defendants or a material defendant reside, a material defendant being a necessary or indispensable party, the husband is the only material defendant to a suit by a wife for divorce and alimony, and hence a bill for divorce and alimony cannot be filed in a district other than that in which he resides.

[Ed. Note.-For other cases, see Divorce, Dec. Dig. § 62.*

For other definitions, see Words and Phrases, vol. 5, p. 4406.]

Appeal from Law and Equity Court, Morgan County; Thomas W. Wert, Judge.

Bill for divorce and alimony by Anna B. Puckett against Leonard R. Puckett and others. From a decree for complainant, defendants appeal. Reversed and remanded.

Kyle & Hutson, for appellants. Tidwell & Sample, for appellee.

MAYFIELD, J. [1] This bill is for divorce and alimony. It was filed in the Morgan county law and equity court. Code, § 3801, provides that "bills for divorce may be filed in the chancery district in which the defendant resides, or in the district in which the parties resided when the separation occurred; if the defendant is a nonresident, then in the district in which the other party to the marriage resides." Paragraph 2 of the bill, which sets forth the facts as to the residence, and the separation of the parties, states that they lived together as husband and wife in Morgan county, Ala., up to about May, 1907, when they both removed to Birmingham, Ala., "and they lived together as husband and wife for about six weeks; that at the expiration of said time complainant came back to Morgan county to visit her mother, who was then very sick; that, after coming back on said visit to her mother, the respondent would never permit complainant to return to Birmingham, but insisted that she live with her father and mother."

Said paragraph further shows that after complainant had returned to Morgan county, as is above averred, she lived for a while with the father and mother of respondent, who resided in that county; that "during

vorce and alimony, which specifies the grounds | Otherwise, the bill would nave to be disupon which divorce may be granted, the missed. mode of procedure, etc., and expressly provides, in section 3801, as to the particular courts and districts in which bills may be filed.

It thus follows that the bill as to respondent's demurrer should have been sustained. In fact, the bill in its present form does not contain equity. We will not, how-Count 2 was voluntarily withdrawn by the ever, dismiss it, for the reason that it may be amended so as to show jurisdiction and venue in the courts of the county of Morgan.