The allegation in the bill, that the acts complained of were in violation of law, is not admitted by the demurrer. Matter of law is not, in equity any more than at law, a proper subject of substantive averment, or of traverse or avoidance, and, consequently, not a subject of admission in the pleadings. It is the province of the court to apply the law to the facts alleged, and I have not been able to find anything in the general laws of this state whereby the deposit of corporate funds by the directors of a railroad corporation, in the way complained of here, is prohibited. Of course, it is to be understood that we are not considering, upon this demurrer, under what circumstances it might be the duty of the court to protect the rights and interests of stockholders in a corporation by enjoining its directors against any specified use or disposition of the corporate funds. It is sufficient, in the present position of the case, that there does not appear to be any general law making the acts complained of absolutely illegal.
But the bill further alleges, that the acts or the defendants were in violation of the charter and by-laws of the corporation. Those portions of the charter and by-laws, which it is claimed have been violated, are not set out in the bill, and so are not before the court; and it is obviously impossible for the court to say whether the deposit of money belonging to the corporation, in the way charged, was a violation of the charter and by-laws or not. For this reason, it is plain a decree cannot be entered for the plaintiff on the bill as it now stands, *Page 38 and the demurrer must be sustained, unless the plaintiff amends his bill by setting out so much of the charter and by-laws of the corporation as will show the court whether the injunction he asks should be granted.
I agree that the amendment should be allowed, without terms, for the reason given by the chief justice.
SMITH, J. The bill alleges, that the directors of the Concord Railroad Corporation have deposited, or loaned to certain individuals and corporations, large sums of money, in violation of law and the charter and by-laws of the corporation, and asks that they may be enjoined from such acts.
It is never necessary to state the general law of the land in any pleading. The courts are bound to apply the law as they know it to be, to the facts stated in the pleadings, without regard to any erroneous statement of the law made in those pleadings. Murch v. Concord Railroad,29 N.H. 32.
The bill does not recite that portion of the charter and by-laws of the corporation, which it is alleged have been violated. This is as necessary as it is to recite the facts which bring the case within the operation of a private statute. Such private statutes must be proved as facts, and courts do not take judicial notice of them.
Arguments, or inferences, or matters of law, ought not to be stated in the pleadings, and, if stated, they will not be taken as admitted, though not denied, if the facts on which the conclusions are founded, and from which they are drawn, are properly denied or avoided by the allegation of new facts. 1 Daniell's Ch. Pl. Pr. 601, 602. Merrill v. Plainfield,45 N.H. 133.
As a demurrer admits only such allegations as are well pleaded, it follows that the facts in this case, charged to be in violation of the law, and of the charter and by-laws of the corporation, being insufficiently pleaded, are not admitted by the demurrer.
The bill, under the practice and statutes of this state, can be amended, and I think it should be without terms, for the reasons given by the chief justice.
Demurrer allowed, unless the plaintiff amends.