#### *Taylor’s Adm’r v. The Bank of Alexandria.

November, 1834,

Richmond.

Foreign Corporations* — Power to Sue in Virginia Courts —A corporation of the district of Columbia, or of any state of the union, and even a foreign corporation, may maintain suits in the courts of Virginia.

Same — Suits by — Proof of Incorporation.† — It is not necessary for such corporation to shew in its declaration how it was incorporated; it may prove that it is incorporated under the general issue.

Federal Statutes — Evidence of — Printed Copies of Acts of Congress.‡ — The printed copies of the acts of congress, distributed to the executives of the several states to be distributed among the people, are proper evidence of the statutes therein contained, without other authentication.

Statute — Date of — Variance between Pleading and Proof — Effect.—A statute is alleged in pleading to have been passed by congress, to wit, in 1811; but the statute given in evidence bears date in 1810; as the date is pleaded under a scilicit, the variance is immaterial.

Promissory Notes — Extinguishment§—Bond of In», dorser. — A. makes a promissory note to B. who indorses it to a bank, which discounts it for accommodation of the maker; the note not being duly paid, the indorser B. gives bond with surety to the bank for the debt: Held, this bond, not being yet paid, does not extinguish A.’s simple contract debt to the bank.

Debt, in the circuit court'of Frederick, by the president, directors and company of the bank of Alexandria, assignees of Jonah Thompson, against the administrator of Bushrod Taylor, upon a promissory note negotiable at that bank, for 4800 dollars. The declaration was, in substance, thus: The president, directors and company of the bank of Alexandria (being an incorporated bank and body politic by that name, established at Alexandria in the district of Collumbia, by virtue of the act of assembly, entitled ‘ ‘an act for establishing a bank in the town of Alexandria,” and of another act of assembly, entitled “an act concerning the bank of Alexandria,” and there ever since lawfully continuing an incorporated bank, with privilege &c. by force of the said acts of assembly, and of certain acts of the congress of the U. States, for such purpose made and provided, that is to-say, the act of congress, passed the 15th February 1811, entitled “an act concerning the bank of Alexandria, ” whereby the ^charter was continued till the 4th March 1821, and another act of congress, passed the 2nd March 1821, entitled “an act to extend the charter of certain banks in the district of Columbia,” whereby the charter of the bank of Alexandria was. extended to the 3rd March 1836) as assignees of Jonah Thompson, complain of Eben Taylor administrator of the goods &c. of Bushrod Taylor deceased, in custody &c. of a plea, that he render the plaintiffs 4800» dollars, which from them he unjustly detains; for that whereas the said Bushrod, in his lifetime, to wit, on &c. at &c. made his certain note in writing, with his name thereto subscribed, and to the court shewn, whereby he promised to pay to the said Jonah, sixty days after the date of the note, 4800 dollars, for value received, negotiable at the bank of Alexandria aforesaid, for the use of the said Bushrod; and the said Jonah, afterwards, in the lifetime of the said Bushrod, to wit, on &c. at &c. the contents of the note being then unpaid, by indorsement thereon, assigned and transferred the same to the plaintiffs, and delivered it to them, to be by them negotiated and discounted, in due course of business, and according to the custom and usage of the said bank and the laws in such case made and provided; and the note was accordingly negotiated and discounted at the said bank, for the use of the said Bushrod, to whose use and credit the proceeds of the discount were carried and placed; whereof said Bushrod, in his lifetime, to wit, on *181■&c. at &c. had notice; by reason whereof, ■and by force of the laws in such case made and provided, an action accrued to the plaintiffs to demand and have of the said Bushrod in his lifetime, and the defendant his administrator since his death, the said sum of 4800 dollars, after the expiration of the time appointed for the payment thereof ; yet &c.

The defendant put in a general demurrer to the declaration ; and he pleaded, 1. the general issue; and 2. a special plea in bar, that after the institution of this suit by the plaintiffs, to wit, on &c. at &c. Jonah Thompson, their assignor, with Jacob Hoffman his surety, executed a bond to the plaintiffs, sealed with their seals, and to the court shewn, in “discharge and payment of the said debt and negotiable note in the declaration mentioned, and then and there delivered the bond to the plaintiffs, and the same was then and there accepted by them in discharge of the said debt and negotiable note; concluding with a verification. To this last plea the plaintiffs demurred generally. And the court gave judgment for the plaintiffs on the defendant’s demurrer to the declaration, and ■on their demurrer to his last plea.

Upon the trial of the general issue, the defendant filed exceptions to opinions of the court; from which it appeared — -1. That the plaintiffs offered in evidence, as public statutes, two acts of assembly of Virginia, ■one passed in 1792, “for establishing a bank in the town of Alexandria,” and the other passed in January 1801, ‘ ‘concerning the bank of Alexandria,” as the same were printed and published by authority, in the printed editions of the acts of each of those ■sessions of assembly, and distributed to the clerks of the county courts &c. and two acts of congress, one passed the 15th February 1810, entitled “an act concerning the bank ■of Alexandria,” and the other passed the '2nd March 1821, “to extend the charters of banks in the district of Columbia,” — that is to say, the printed copies of those acts ■of congress, in two pamphlets containing the sessions acts of congress, which pamphlets were transmitted to the executive of Virginia, and by the executive to the clerks of the county courts &c. to be distributed among the justices &c. Whereupon, the ■defendant’s counsel objected to the reading •of the two acts of congress from the printed editions of the same, without further authentication and proof that they had been-truly copied from the rolls, — insisting that those acts of congress were either foreign or private acts, or both, and ought to be authenticated as such; but the court overruled the objection and admitted the said printed copies as evidence; to which opinion the defendant’s counsel excepted. 2. The defendant then objected to the reading of the first mentioned act of congTess, entitled “an act concerning the bank of Alexandria,” because this act was passed on the 15th February 1810, and not the 15th February 1811, which “was the date of the act of that title mentioned in the declaration; but the court overruled this objection also; and the defendant’s ■counsel excepted.

The defendant then demurred to the evidence ; which was, 1. The two acts of assembly of Virginia, and the two acts of congress before mentioned. 2. The promissory note on which the action was founded: it was a note payable sixty days after date to Jonah Thompson or order, for 4800 dollars, expressed to be for value received, and negotiable at the bank of Alexandria (with a note at the foot that it was for the maker’s use), signed by Bushrod Taylor, and indorsed and assigned by Thompson to the bank of Alexandria, the signatures of both being admitted. And 3. parol evidence, that the note was discounted at bank for the accommodation of the maker, and the proceeds placed to his credit. And then the defendant offered in evidence a bond executed by Jonah Thompson and Jacob Hoffman, in the penalty of 14,473 dollars, with condition, that whereas Thompson had indorsed a note of Bushrod Taylor for 4800 dollars, which was discounted at the bank of Alexandria, and had been protested for non-payment, and the bank, at Thompson’s request and for his relief, had caused suit to be instituted on the note against Taylor’s representative, in the circuit court of Frederick, and the debt then amounted to 7236 dollars; therefore if Thompson should pay the said debt, with interest &c. on or before &c. then the obligation to be void; but it was understood and provided, that Thompson should have credit for whatever sums of money should, in the meantime, be recovered in the suit aforesaid, after deducting all costs of suit. And this being all the evidence in the cause, the defendant demurred thereto; and the court ruled that the plaintiffs should join in the demurrer, which thereupon they did.

There was a verdict for the plaintiffs for the debt demanded, with interest &c. subject to the opinion of the court on the demurrer to evidence. The court held that the law on the demurrer was for the plaintiffs, and gave them judgment: from which the defendant appealed to this court.

*Leigh, for the appellant.

Johnson, for the appellees.

*

Foreign Corporations. — See monographic *note*on “Corporations (Private)” appended to Slaughter v. Com., 13 Gratt. 767.

†

 Suits by Corporation — When Proof of Incorporation Necessary. — On this subject, see *foot-note*to Jackson v. Bank of Marietta, 9 Leigh 240. The principal case was cited to the point in Jackson v. Bank of Marietta, 9 Leigh 245; Hart v. B. & O. R. Co., 6 W. Va. 336; Anderson v. Kanawha Coal Co., 12 W. Va. 537; Greenbrier Lumber Co. v. Ward, 30 W. Va. 48, 3 S. E. Rep. 230. See further, monographic *note*on “Corporations (Private)” appended to Slaughter v. Com., 13 Gratt. 767.

‡

Federal Statute — Evidence of. — See Code 1887, § 3330. Statutes of Sister State — Proof by Persons Learned in the Law. — In Dickinson v. Hoomes, 8 Gratt. 409, it was contended by counsel that the testimony of a Kentucky lawyer was not admissible to prove certain statute laws of that state since no foundation had been made for its introduction as secondary evidence, by proof of inability to obtain copies of the statutes. *Judge Monoube,*in discussing the point, said: “The citation from Story’s Conflict of Laws, § 637, 641, certainly gives support to the position that as a general rule a foreign statute law must be proved by an authentic copy if to be had. The courts of some of the states, and the supreme court of the United States, are of opinion, ‘that the connexion, intercourse and constitutional ties which bind together these several states, require some relaxation of the strictness of this rule,’ and ‘ have accordingly held that a printed volume purporting on the face of it to contain the laws of a ■sister state is admissible as *prima facie*evidence, to prove the statute laws of that state. ’ 1 Green!. 13v. .§ 489, and cases cited in note 2, among which is the case of *Taylor*v. *Bank of*Alexandria, 5 *Leigh*471. But I incline to think that the doctrine of primary and secondary evidence does not apply to the case, and that a foreign law, whether written or unwritten, may be proved by a person who is learned in that law, without laying any foundation for the introduction of secondary evidence. This is the principle of a late decision of the Court of Queen’s Bench, cited by one of the counsel for the appellants from 55 Eng. C. L. R. 250, 267.”

§

Promissory Notes — Extinguishment.—See principal case cited in Feamster v. Withrow, 12 W. Va. 652. See further, monographic *note*on “Bills, Notes and Checks” appended to Archer v. Ward, 9 Gratt. 622.

TUCKER, P.

The court is of opinion, that there is no error in the judgment.

If the object of the demurrer to the declaration was, to try the right of a foreign corporation to sue, that right is settled by the case of Bank of Marietta v. Pindall, 2 Rand. 465, in which my brother Cabell has, with his accustomed clearness, established the affirmative of the proposition, upon the soundest reason, even if it could have been doubted, since the case of Henriques v. Dutch West India company, 2 Dd. Raym. 1532, where a judgment having been rendered for the company, it was, on a writ of error in parliament, assigned for error, that a foreign corporation could not sue; but the judgment was affirmed, thus affirming also the right to sue. 2 Bac. Abr. Corporations, F. 2, p. 12. There could be nothing then in this objection. If the object of the demurrer was to assert the necessity of presentment and demand at the bank of Alexandria, that objection is conclusively met by the fact, that the promissory note was not payable there, though it was negotiable there; Barrett v. Wills, 4 Leigh 114. If the defect for which the defendant de*182murred, was any want of form in pleading the acts of congress for the continuance of the corporate powers of the bank, two answers present themselves : 1. that it was not necessary to set forth in the declaration, how the company was incorporated, but it would have been sufficient for the plaintiffs, on the general issue, to prove their incorporation ; Grays v. Turnpike Company, 4 Rand. 578, following the long established principles of the english courts: 2. even if it had been necessary, the most that can be said is, that it has been informally pleaded; and upon the general demurrer here, the defendant could not take advantage of want of form. The fact of the incorporation, and the continuance of the charter, is substantially alleged.

Then as to the exceptions. It was moved to exclude the acts of congress as evidence ; first, because they were not *duly authenticated. The evidence offered was a copy of the laws printed under the orders of congress, by the public printer, and distributed by law to the executives of the several states, for the purpose of distribution among the people. In England, the printed statute books have been at times admitted as evidence of public acts of parliament. Phil. Eaw of Ev. [307.]* So in Virginia, our printed statute book is evidence of the acts of the general assembly. The printed statute book of any government thus seems to be evidence of the statutes of that government. And who doubts it as to the laws of the U. States? Their printed statute book is every day referred to as evidence of the public acts of congress. It is received in all courts of the union, as evidence that cannot be controverted, of the statutes which it contains. Now, among those statutes are the statutes relating to this bank of Alexandria. Even if they were private statutes (which I do not think they are), yet that would only prove that they must be pleaded, but it would not invalidate the evidence that they were passed. Of that, the proof is as complete, as of any act, however universal in its character. If, indeed, we could consider, as to this matter, the laws of congress for the district of Columbia, in the light of the statutes of another power, we should at least place them on the footing of the laws of our sister states. And we concur in the opinion expressed by the supreme court of Pennsylvania, that the laws of a sister state, printed by public authority, are admissible evidence without other authentication. Thompson v. Musser, 1 Dall. 462; 1 Stark. Eaw of Ev. part 2, p. 163, note 2†. Secondly, it was objected, that the act of congress having been misrecited as to date, was not admissible in evidence to prove the incorporation of the plaintiffs. As to this, without examining whether the case is precisely like those of Mowry v. Miller, 3 Leigh 561, and Arthur v. Crenshaw, 4 Leigh 394, it is sufficient to remark, that the whole of this recital is. under a videlicet. The material and substantive part of the allegation is, that the charter *of the bank of Alexandria was continued by certain acts of congress to that effect and for that purpose passed; and then there comes the videlicet, 1 ‘that is to say, the act of congress passed the 15th February 1811, entitled &c.” In Jackson v. Henderson, 3 Leigh 196, the declaration alleged a presentment for payment when the bill became due and payable, to wit, on the 27th December, which was the fourth day after the time appointed for payment of the bill; yet it was held the plaintiff might prove presentment on the third day. See also 7 Moore 266, and 1 Bing. 23, where exactness as to the day is held immaterial, as the date of presentation was stated under a scilicit.

Easily, it was designed, we suppose, by the demurrer to evidence, to present the question whether Thompson’s bond was not a discharge of the demand against Taylor. On this point too we are agreed, that as it was not proved that it was accepted as a satisfaction, or that it had been paid, it did not extinguish the demand against Taylor. Thompson was a mere guarantee; and the contract of a guarantee or surety, or other person only collaterally bound, though under seal, does not by operation of law, entinguish the debt of the principal. White v. Cuyler, 6 T. R. 176. The admission that the guarantee is only collaterally bound, implies that the principal still remains directly bound. Taylor’s estate is certainly indebted to somebody. It was confessedly indebted to the bank; and, unless Thompson’s bond was accepted as a discharge, or has been paid by Thompson, Taylor’s estate is certainly not yet indebted to him, and must, therefore, continue indebted to the bank.

Judgment affirmed.

*

New York edi. of 1820.

†

Ingraham’s edi. Boston, 1828.