concurring:
The questions which the case stated, as amended, presents for our opinion, are thus expressed in the record from the Superior Court for New Castle County :
Mrst.—Whether the judgment set forth in the case stated, being No. 181, to the November Term 1869, of the said Superior Court, is a valid and subsisting judgment.
Second.—If the said judgment is a valid and subsisting judgment, did the title to the same pass to the Wilmington and Northern Railroad Company by virtue of the acts of Assembly, mortgage, foreclosure proceeding, sale and conveyances recited in the case stated, so as to give the said Wilmington and Northern Railroad Company the right to enforce said judgment by execution issued against the defendant.
Although by the 20th section of the charter of the Wilmington and Brandywine Railroad Company, (12 Vol. Del. Laws, 142,) power was given it from time to time to borrow money for corporate purposes and to execute mortgages of all its estate real and personal, and to issue bonds to secure the payment of the sameand *249by the 3d section of the act consolidating that company with the Pennsylvania Company, making one company, and incorporating it as the Wilmington and Reading Railroad Company, it is provided that, by the consolidation and merger of the companies, they shall be one corporation possessing within this state all the rights, privileges, and franchises, and subject to all the restrictions, liabilities and duties of such corporations, companies, or railroads consolidated or merged,” yet the 6th and last section of such charter restricts the subject of mortgage to real estate of such consolidated company and like as such features in legislative acts are considered, may be taken to control the prior general provision. This seems to be the law as given at the close óf page 658 of Dwarris on Statutes (9 Law Lib.) But whether that be correct or not, the general power, in the charters of the components of the consolidated corporations could not properly be held in this state, to include debts or choses in action under the term personal estate; which, here, has beeñ considered, in its ordinary acceptation or meaning, to apply to corporal personal property— that is, moveable goods, or those chattels which a sheriff can levy upon with a fieri facias, which he can impound, and which he can sell and deliver to a purchaser: certainly a debt cannot be levied on with a fi, fa. Although a corporate franchise of toll may be subject to seizure by execution, yet this is a special provision of the statutory law of corporations, and does not affect the rule in any other respect. The decree of the Circuit Court of the United States in the suit against the trustees in the mortgage of the Wilmington and Reading Railroad Company to compel a sale of the mortgaged property, expressly excepted from its operation the Delaware franchise as not included in any power to mortgage given by the State. This favors the view that, by the 8th section of the consolidation act before quoted, nothing but real estate could be mortgaged under Delaware authority. That section is in these words: “ And that the said corporation may, from time to time, borrow money for corporate purposes and uses, and execute mort*250gages on all or part of their real estate, and issue bonds to secure the payment of the same.”
The only clause or provision, therefore, as appears to be the reasonable view to take, which clothed the Delaware and Reading Railroad Company (the consolidated company which made the mortgage) with power to bind itself by mortgage is that just quoted from its own charter. Whatever the mortgage could include, under that power was mortgaged to Trustees, and nothing more.
It is not simply a question of intention, where courts, dealing with transactions between man and man, will look beyond their mere letter, if the roles of law will allow them to do so, to reach their true purpose (their being no question of vires) ; but one only to be settled by language, taken in its obvious sense, when found in legislative acts. And no difficulty of interpretation, with respect to them, where they concern the powers conferred upon corporate bodies to borrow money, can arise, when there is constantly kept in view the fact that corporations have no inherent power, as such, to borrow money at all. They are supposed to be capable, out of the proceeds of the sales of their shares to subscribers, to provide themselves with all money necessary to promote the object of their creation. Hence it is, that power to borrow money and secure the payment of it, is made an express provision of such charters as create railroad companies and other trade corporations.
It being a rule of law, with respect to corporate bodies generally, that they have no powers but such as are granted to them expressly, or are necessarily implied as concomitants of the granted powers, I find nothing in that part of Section 6 (above quoted) of the consolidation act, which would justify us in holding that anything was intended to be made the subject of mortgage by the Wilmington and Reading Railroad Company but its real estate—its lands, tenements, and hereditaments.
This general view of the vires of corporations was in the mind of the Circuit Court of United States, no doubt, when it excluded *251from the operation of the decree the franchises granted by the State of Delaware. It is not pretended that they were sold. The roadbed and all upon it went by the sale : that is, the right (whatever it was) of the Wilmington and Reading Railroad Company to the land of its highway and everything upon or attached to it as part of the freehold, passed to the purchasers under the foreclosure sale, but nothing else under the authority of the Delaware act: for the decree could not operate in Delaware to subject to sale any property of its creation, or within its jurisdiction exclusively, but that authorized to be mortgaged by the act of February 7, 1866, viz : real estate. Neither a franchise, nor a chose in action, or any purely incorporeal right, depending for its existence upon Delaware law, could be the subject of a mortgage, confined by the terms of the power to make the instrument, to real estate. In this view, the purchasers of the property of the Wilmington and Reading Railroad Company, sold under the decree of the Circuit Court aforesaid, did not take the judgment against the Downwards. As there was no power by the act of 1866 to mortgage, or pledge, that judgment, it could not be a subject of the mortgage sale: therefore it remained, as before the sale, a judgment belonging to the Wilmington and Reading Railroad Company. ■ Now what was the effect of the sale, under the decree of the Circuit Court, upon the property of the Wilmington and Reading Railroad Company within this State ? That question I have already answered by stating that it did not touch the franchises of the company, nor a chose in action or any purely incorporeal right depending for its existence upon the law of this State. The argument of the learned counsel for the defendants raised no contention to the contrary of this : but they do insist that the effect of the sale was a virtual annulment of that company’s legal entity, and that the act incorporating the purchasers under the sale made by said decree, operated its entire extinction. In other words, they claim that, at the time of the transfer of the Downward judgment to the Wilmington and Northern Railroad Company (the new corporation) there was not in existence, *252for any purpose, thé Wilmington and Reading Railroad Company in whose behalf it was recovered : and, therefore, there could be" no authority given-to, or held by him who was the attorney of the company when it was a vital body, to make the transfer. The question is then presented—what effect had the sale, and the act incorporating the purchasers under it, upon the life of the Wilmington and Reading Railroad Company ? If they destroyed it, then, of course, all acts done in its behalf afterwards, or on its account, were pure nullities.
The counsel for the cestui que use, however, denied that the corporation of the Wilmington and Reading Railroad Company was defunct by such agency or influence; and argued to this effect, though by different language,—that nothing in and of this State exclusively, except the real estate of that company, could be touched by the sale; that every franchise or right it had- which was not necessarily involved in the sale of such estate, remained as its property: and ¡that' the act of the legislature incorpórating the Wilmington and Northern Railroad Company and clothing it with all the former company’s “ right, title, interest, property, possession, claim and demand at law or in equity of in and to such railroad with the appurtenances, and with all the rights, powers, immunities, privileges, and franchises of the corporation as whose property the same was sold, and which may have been granted thereto, or conferred thereupon, by any act or acts of the Assembly whatsoever in force at the time of such sale ” &c., did not divest the Wilmington and Western Railroad Company of any property whatever.
It is not contended by the defendant’s counsel that the legislature, in and by the act incorporating the Wilmington and Northern Railroad Company, intended to exercise its constitutional powers of revocation of charters. It is only reasonable to suppose that when such a course is intended in any case it will be marked by legislative language of purpose, direct and not inferential. While the Constitution makes no requirement of form, or method, for the act, yet, in view of the nature of such a stupendous power, and the *253consequences to flow or ensue from its exercise, a legislature (it is fair to presume) would not leave its purpose so uncertain as to require the aid of one of its own courts to ascertain and declare it. There would be some expression, in some form or other, that the act relied upon to create revocation, was intended for that purpose. I do not mean to "be understood as saying that the legislature may not ádopt its own method of revoking a charter : but I do believe the act would seem to the body to require expression of purpose to revoke, and would have such purpose distinctly put forth therein. And, looking at the subject in this light, I do not think any court of this State should yield to a mere inference of design to revoke, when language importing purpose of revocation is wanting. The proper view, I think, is, that the legislature, by the act of February 22, 1877, did not intend to revoke the charter aforesaid, but only that which is plainly expressed, as quoted above. Whether there was any power in that body to dispose of the property of the Wilmington and Reading Railroad Company, is a question, it would seem, not very difficult to answer. It is quite plain that the General Assembly which passed the act of February 22,1877, did not suppose that the sale by the Trustees under the decree of the Circuit Couft of the United States, passed anything more than the actual real estate of the Wilmington and Reading Railroad Company. This is evident from the preamble to the act, which is in these words: “ Whereas under and by force of a decree of the Circuit Court of the United States for the Eastern District of Pennsylvania, the Railroad of the Wilmington and Reading Railroad Company, with its appurtenances, was sold in pursuance of a mortgage executed by said Company under authority of the laws of this State, and it being necessary to the proper enjoyment of the rights acquired by the said sale, that the purchasers should be incorporated with authority to consolidate with any company organized or to be organized under the laws of the State ; of Pennsylvania operating such portion of the road so sold, as is situated within the State of Pennsylvania.
Therefore &c.”
*254The General Assembly were correct in this; for it was only real estate it had given the Company power to mortgage, and only that which could be sold in execution of the mortgage, or in fulfilment of the trust contained therein. But the legislature of 1877 undertook, in and by the act incorporating the purchasers under the sale by the United States Circuit Court decree, to"grant to the Company created the same property they had bought at the sale, that is, “ the railroad and its appurtenances,” and also “all the rights, powers, immunities, privileges and franchises of the corporation as whose property the same was sold, and which may have been granted thereto, or conferred thereupon by any act or acts of assembly whatsoever in force at the time of such sale ” &c. This, I respectfully submit, amounted of itself to nothing, so far as the railroad was concerned ; for the corporators owned that already. As to the other subjects of the intended grant,vas they were not capable of being sold under the decree, because not included in the mortgage, they remained the property of the Wilmington and Reading Railroad Company, only to be divested by State legislation in one of two ways—either by revocation of its charter, which in my opinion was not done by force of the act incorporating the new company, or any implication arising out of the above quoted langauge from it, or by exercising the right of eminent domain— which exercise is always by direct proceedings authorized for that purpose with provision for payment of the property taken. The act is alike silent as to revocation and taking by eminent domain.
It is very difficult to suggest any plausible reason even for the futile grant, except it be that the agent of the new company who framed the bill had not fully looked back into the legislation concerning the Wilmington and Reading Railroad Company to see what it was that the company had power to mortgage; or, if he had, that he had not considered that the franchises of the company were still left to it. As the language of the act quoted above is the samé precisely as that of the mortgage where descriptive of the property mortgaged, and of the deed also most probably to the *255purchasers, he might well have been misled by such language, and supposed that everything in Delaware, as well as in Pennsylvania, had been sold. But, as I have pointed out, the mortgage bound nothing in Delaware but «real estate, and of course the sale covered nothing else.
To make the clause of the act of 1877 above quoted a reasonable enactment (that is the duty of this Court, if it can find means of doing so) we might construe it as being intended to bestow on the new corporation like capacity and privileges, immunities, franchises, &c„, as those held by the Wilmington and Reading Railroad Company. But, however, we may think with respect to that, it is perfectly certain that the sale under the decree did not divest the company of anything but its real estate; nor could the clause of the new charter under consideration operate to that effect, for it neither revoked the former charter, nor did it provide for the exercise of the power of eminent domain with reference to the property not included in the mortgage. Adopting then what seems to be the true view—that neither debts, nor choses in action, nor franchises were, by Delaware authority, included in the mortgage of the consolidated company, they could not pass by any sale under such mortgage; and, in fact, did not pass by the sale made to the future corporators of the Wilmington and Northern Railroad Company on the 14th of December, 1876.
It does not appear by the case stated, nor was this Court informed in the argument when the debt was created by the Downwards upon which judgment in the Superior Court of New Castle County was recovered at the November Term, 1869. The mortgage, however, was made eighteen months before that time, and could not include the judgment; nor, upon the view that that instrument covered nothing but real estate, could the cause of action which supported the judgment have been embraced by it. And, independent of that view, upon the reasoning heretofore put forth, nothing incapable of manual tradition upon a sale by fi. fa. Could be considered as personal estate, the subject of mortgage. Mort*256gages of goods and chattels in Delaware were never made, much less formally legalized or recognized, until the act of March 23, 1877 (15 Vol. Del. Laws, 616).—Having thus determined that the judgment against the Downwards did not pass by the sale, by virtue of the decree of the United States Circuit Court to the purchasers of the Wilmington and Reading Railroad property, it remains to consider the other branch of the question submitted to this Court, which is—whether the said judgment is a valid and subsisting judgment ?
Reply to that question could easily be made by saying, as the judgment does not appear ever to have been paid or satisfied, it is necessarily valid and subsisting at law. This, however, would not answer the real ends of the case as presented to ns in the argument. Neither the learned counsel for the defendants, nor the counsel of the plaintiff, make any contention to the contrary of the view above taken of the mortgage sale; but the former contended that the effect of the act to incorporate the purchasers at such sale as “ The Wilmington and Northern Railroad Company ” was to extinguish and annul the existence of the old corporation of the Wilmington and Reading Railroad Company. They rely upon the phraseology of Section 1 of the act which grants to the former the property of the latter by this language “ all its rights, title, property, interest, claim and demand at law or in equity of in and to such railroad, with the appurtenances, and with all the rights, powers, immunities, privileges, and franchises of the corporation as whose property the same was sold, and which may have been granted thereto, or conferred thereupon by any act or acts of Assembly whatsoever in force at the time of such sale ” &c.
It is not pretended that the judgment itself was extinguished by the act of February 22, 1877—the first section of which in part has been quoted: the point made being merely that the Wilmington and Reading Railroad Company had no legal existence, and therefore could do no legal act, by attorney, or otherwise, at the time the transfer was made to the Wilmington and Northern Railroad *257Company. In reply to this it is sufficient to say that the first point has already been passed upon adverse to such view. The questions presented by-the case do not call for any expression on the latter.
Upon the facts as stated to us by the Superior Court of New Castle County, I am of opinion that for anything that has been shown to the contrary in the argument before us, the judgment in controversy is a valid and subsisting judgment: and that the title to the same did not pass to the Wilmington and Northern Railroad Company by virtue of the acts of assembly, mortgage, foreclosure proceeding, sale and conveyances recited in the case stated, so as to give the said Wilmington and Northern Railroad Company the right to enforce said judgment by execution issued against the defendant.