Sec. 333. Pleading-general denial under the code.

S. K. DAVIS ET AL. V. NEBRASKA NATIONAL BANK OF OMAHA.

1897. IN THE SUPREME COURT OF NEBRASKA. 51 N. E. Rep. 401-402, 6 Am. & Eng. Corp. Cas. (N. S.) 593.

IRVINE, C. The Nebraska National Bank of Omaha sued the plaintiffs in error on a promissory note alleged by the petition to have been made by the defendants below to the order of the Nebraska National Bank of Beatrice, and by the latter bank indorsed and transferred to the plaintiff. The plaintiff recovered judgment for the amount of the note. The petition alleged that the plaintiff was a corporation organized under the laws of the United States. The answer specifically denied plaintiff's corporate existence. No evidence was introduced on the subject. The instructions of the court entirely ignored the issue, and the court refused a peremptory instruction to find for the defendants, as well as a special instruction submitting to the jury for determination the corporate existence of the plaintiff.

It will be observed that there existed no privity of contract between the defendants and the plaintiff bank whereby the defendants were estopped to deny the corporate capacity of the plaintiff, nor are any other grounds of estoppel pleaded. The defense interposed was, therefore, a valid defense in this action. It has been several times held that a general denial does not present the issue, but that it must be raised by a specific denial in the nature of a plea in abatement. Insurance Co. v. Robinson, 8 Neb. 452; Dietrichs v. Railroad Co., 13 Neb. 43, 13 N. W. Rep. 3; Herron v. Cole Bros., 25 Neb. 692, 41 N. W. Rep. 765; Swift & Co. v. Crawford, 34 Neb. 450, 51 N. W. Rep. 1034. But a special denial of the character indicated is sufficient to present the defense (Sunapee v. Eastman, 32 N. H. 470; Greenwood v. Railroad Co., 10 Gray 375), and such a plea casts the burden of proof of corporate existence upon the plaintiff (see cases cited in 5 Enc. Pl. & Prac. 82). At the common law there existed some controversy as to whether nul tiel corporation should be pleaded in abatement or whether it might be pleaded in bar. The Nebraska cases cited intimate that this court has considered it to be in the nature of a plea in abatement. But this is immaterial, because under our code defenses of both characters may be presented in one answer. Hurlburt v. Palmer, 39 Neb. 158, 57 N. W. Rep. 1019; Association v. Peterson, 41 Neb. 897, 60 N. W. Rep. 373; Herbert v. Wortendyke (Neb.), 68 N. W. Rep. 350. It is probable, as suggested in the bank's brief, that this and other defenses were purely technical and devoid of merit. The plea was, however, one of which the defendants might legally avail themselves. The bank was notified by the special plea that it would be called upon to establish its corporate existence. It entirely failed to do so, and the judgment must for that reason be reversed.

Reversed and remanded.

Sec. 334. Proof of corporate existence-special charter.

UNITED STATES BANK v. STEARNS.1

1836. IN THE SUPREME COURT OF NEW YORK. 15 Wend. (N. Y.) 314-317.

[Assumpsit by the bank to recover overpaid money.]

I

The cashier of the Buffalo Branch Bank testified that the plaintiffs had a banking house in Philadelphia, where they had carried on banking business for many years, under their charter. The defendant insisted that the plaintiffs were bound to prove themselves a corporation by the production of their charter. The judge decided that the charter need not be produced, because the act of incorporation of the Bank of the United States was a public act, which, for certain purposes, constituted the bank the financial agent of the general government, and gave the United States an interest in the stock, and because the presentation of the checks and the receipt of the money was an implied admission of the existence of the corporation. The jury found for the plaintiffs. The defendant asks for a new trial. SAVAGE, C. J. The least proof which has been held sufficient is the production of an exemplification of the act incorporating the plaintiffs, and evidence of user, under their charter. Wendell 555. In one case it was held that the act of incorporation might be read from the statute book, printed by the printer to the state. 9 Cowen 205-6. The evidence of user in this case was enough, but there was no evidence at all of the act of incorporation. No exemplification was produced, nor even the act read or produced in the statute book. One or the other is indispensable when the suit is brought by corporations created by our own statutes But when a suit is brought by a foreign corporation, as the plaintiffs must be considered in this court, I apprehend an exemplification should be produced, if required. The courts of the state of New York have no judicial knowledge of acts of congress creating corporations. When they are necessary, as evidence, they must be proved as the acts of our sister states must be proved. In my opinion the proof of the existence of the corporation was insufficient. The transaction of business by the defendant with the plaintiffs was probably an admission that they had capacity to transact business as a company, but not that they were an incorporated company. Many commercial companies not incorporated do business by officers and agents, and are capable of suing, but not otherwise than in their individual capacities.

New trial granted.

Note. See next case, and Packard v. Old Colony R. Co., 168 Mass. 92; supra, § 142; also, President, Directors, etc., of Bank of U. S. v. Dandridge, 12 Wheat (U. S.), 64; supra, § 237.

Statement abridged; only part of opinion given.

Sec. 335. Proof of corporate existence under general incorporation laws.

BALTIMORE AND POTOMAC R. R. CO. v. FIFTH BAPTIST CHURCH.1

1891. IN THE SUPREME COURT OF THE UNITED STATES.

S. Rep. 568-576.

137 U.

[Action on the case by the church against the railroad company for damages for maintaining a continuous nuisance by noise and smoke to plaintiff's enjoyment of its property. Judgment below for the church.] MR. JUSTICE GRAY. The declaration was headed "The Fifth Baptist Church of Washington, D. C., by its Trustees, v. The Baltimore and Potomac Railroad Company," and alleged that the plaintiff was a body corporate in the District of Columbia, under and by virtue of the general corporation act of May 5, 1870, ch. 8o, § 2; 16 Stat. 99, 100; Rev. Stat. D. C., §§ 533-544.

The defendant pleaded in bar: 1. "That the said plaintiff was not at the time of commencement of this suit, and never was, a body corporate or politic, as set forth and alleged in and by said declaration." 2. Not guilty. The plaintiff joined issue on these pleas.

The plaintiff, upon the issue presented by the first plea, and to prove its user of corporate rights, offered the following evidence, which was admitted against the defendant's objection and exception: 1. The original of the following certificate of incorporation, signed and sealed by the six persóns named therein:

"We, C. C. Meador, George M. Kendall, John N. Henderson, Samuel M. Yeatman, James C. Deatley and Šamuel S. Taylor, of Washington City, in the District of Columbia, do hereby certify that we have been duly elected 'Trustees of the Fifth Baptist Church of Washington City, D. C.' (commonly called 'the Island Baptist Church'), and that this certificate is made, signed and sealed for the purpose of obtaining corporate rights and privileges for the said 'Fifth Baptist Church,' a religious society worshipping at present in their church edifice on D street, south, between Four-and-a-half and Sixth streets, in said City of Washington, under the provisions of an act of congress approved May 5, 1870, entitled 'An act to provide for the creation of corporations in the District of Columbia by general law.'

"In testimony whereof, we hereunto set our hands and affix our seals this twenty-fourth day of August, in the year of our Lord one thousand eight hundred and seventy-one."

Annexed to this paper were a notary public's certificate of its acknowledgment on the same day by these six persons, an affidavit of one of them, dated May 1, 1885, that the statements in the certificate of incorporation were true, a memorandum of the recorder that the paper was recorded September 5, 1871, and another memorandum that it was recorded May 1, 1885.

1 Statement abridged. Only the part of the opinion relating to proof of corporate existence is given.

2. A recorder's copy of the certificate of incorporation, acknowledgment and affidavit, as recorded May 1, 1885.

3. That in the year 1871 it became necessary for the plaintiff, în order to complete its church edifice, to borrow money upon a mortgage of its land, and that to promote this object, and upon the recommendation of its finance committee, a special meeting was called, and was held on July 2, 1871, at which the church (which had been known as the Island Baptist Church) resolved to become incorporated under the name stated in the above certificate of incorporation, and elected as its trustees the six persons named therein, and fixed their term of office at three years, and thereupon that certificate was prepared and signed by the trustees and recorded.

4. Three deeds, respectively dated September 26, 1871, September 18, 1872, and November 10, 1874, from the six persons named in the above certificate of incorporation, describing themselves as "trustees of the Fifth Baptist Church of Washington City, D. C.," reciting its incorporation under the general corporation act, and its resolution authorizing them to execute the deeds, and conveying the church building and land, in trust and by way of mortgage, to secure the payment of various sums of money.

5. Two deeds of release of the same building and land, dated November 9, 1874, from the grantees to the grantors in the first two of the trust deeds aforesaid.

6. The record of the judgment in the former action between these parties.

The plaintiff also introduced, without objection, evidence tending to show "that its present church edifice was begun about the year 1866, and was completed at a cost of about $22,000, exclusive of the ground; that the property is worth about $30,000, and has been occupied and used by the plaintiff's society or congregation since the year 1867 as its place of religious worship, and that during the period covered by this suit its actual church membership, consisting, as in all Baptist churches, of persons who have been baptized after a profession of faith, numbered about four hundred persons, exclusive of the persons attending services there as members of the congregation who were not members of the church."

It may be that, as held by the court below in 4 Mackey 43, at a former stage of one of these cases, the original certificate of incorporation, not stating the date of election or the term of office of the trustees, nor supported by affidavit, as required by statute, was not sufficient of itself to prove the plaintiff's existence as a corporation, either de jure or de facto; and that the adding of an affidavit to the certificate, and recording it anew, since the commencement of these actions, could not avail the plaintiff.

But the certificate of incorporation, as originally drawn up, taken in connection with the other evidence now introduced, and especially the record of the former action in which this plaintiff as a corporation recovered judgment against this defendant without any objection being taken to the plaintiff's capacity to sue, is clearly competent and suf

ficient, as between these parties, to prove that the plaintiff had in good faith attempted to legally organize as a corporation, and had long acted as such, and was at least a corporation de facto, which is all that is necessary to enable it to maintain an action against any one, other than the state, who has contracted with the corporation, or who has done it a wrong. Bank of United States v. Dandridge, 12 Wheat. 64, 72; Conard v. Atlantic Ins. Co., 1 Pet. 386, 450; Chubb v. Upton, 95 U. S. 665; Williamsburg Ins. Co. v. Frothingham, 122 Mass. 391; Searsburgh Turnpike Co. v. Cutler, 6 Vt. 315; Cincinnati, etc., Railroad v. Danville & Vincennes Railroad, 75 Ill. 113; Stockton & Linden Co. v. Stockton & Copperopolis Railroad, 45 Čal. 680.

It is objected that the evidence admitted, if sufficient to prove that the plaintiff was a corporation, did not prove that it was the corporation which brought this action, because the evidence was that the corporate name was "The Fifth Baptist Church of Washington, D. C.,” whereas the action, as stated in the declaration, was brought by "The Fifth Baptist Church of Washington, D C., by its Trustees."

It may well be doubted whether the words "by its trustees," as here used, are part of the name of the plaintiff. They may have been inserted, like "by attorney" or "by next friend," to indicate by whose agency, and not in whose behalf, the action is brought. By the general corporation act, both the title in real estate, and the right to sue, are vested in the trustees "by the name and style assumed as aforesaid," that is to say, in the name and behalf of the corporation. Act of May 5, 1870, ch. 80, § 2; 16 Stat., 99, 100; Rev. Stat. D. C., SS 534, 539, 540.

But if these words in the declaration can be taken as part of the plaintiff's name, the most that is shown is a mistake in that name. While nul tiel corporation, or that the plaintiff is not and never was a corporation, is a good plea in bar, because it goes to show that the plaintiff can never maintain any action whatever; yet misnomer, or mere mistake in the name of a corporation plaintiff, which does not affect its capacity to sue in the right name is pleadable in abatement only, and is waived by pleading to the merits. Bro. Ab. Misnomer, 73; Society for Propagating the Gospel v. Pawlet, 4 Pet. 480, 501; Christian Society v. Macomber, 3 Met. 235, 237; Gould Pl., ch. 5, $79.

Affirmed.

Note. See note preceding case. See 1900, Fish v. Smith, 73 Conn. 377, 84 Am. St. R. 161.

Sec. 336. Power to confess judgment.

SHUTE v. KEYSER.

1892. IN THE ARIZONA SUPREME COURT. 37 Am. & Eng. Corp. Cas. 61-63.

KIBBEY, J. ✶✶✶ Appellants very earnestly contend that a corporation has no power to confess a valid judgment; that, therefore, the pretended judgment against the Old Dominion Copper Mining Company