#### Jackson’s Adm’x v. The Bank of Marietta,

February, 1838,

Richmond.

(Absent Bbooke, J.)

Suit by Corporation — Failure to Prove Incorporation— Effect* — Case at Bar. — A bank brings a suit in Virginia, declaring that it is a corporate company by act of the legislature of Ohio; plea, the general issue; at the trial, defendant demurs to plaintiff’s evidence; the demurrer contains no direct proof of the legal incorporation of the bank, nor can the fact be fairly inferred from the evidence stated in the demurrer: Held, this defect of evidence is fatal to the plaintiff’s case.

Same — Same—Same—Same.—Nor can the want, in the demurrer to evidence, of this necessary proof to entitle the bank to recover, be supplied by resort to a demurrer to the declaration, which was overruled, whereby the averment therein contained, of the legal incorporation of the bank, was admitted.

Pleading — Admissions—Effect.—No admission made, directly or by inference, in one part of a party's pleading, can be referred to in aid of another plea, or to supply evidence necessary to be given under it.

*94This .was an action of assumpsit on a promissory note, brought in the circuit court of Harrison, by the president, ^directors and company of the bank of Marietta, the holders of the note, against the administratrix of Jackson, the indorser thereof to the bank. The declaration alleged, that “ the plaintiffs were a body corporate and politic created by an act of the legislature of the state of Ohio, passed ” prior to the making of the note, “whereby the bank was incorporated for a term of years not yet expired; ” and then contained several special counts on the note, and counts for money lent, and for money had and received. The defendant demurred generally to the whole declaration, and to each and every count; and she pleaded, 1. the general issue, and 2. that the note was indorsed by her intestate at Harrison in Virginia, and that the plaintiffs were not, and never had been, incorporated by any law of Virginia ; and the plaintiffs demurred generally to the second plea. The court overruled the defendant’s demurrers to the declaration, and sustained the plaintiffs’ demurrer to the second plea. The cause was then tried on the general issue. The defendant at the, trial filed a demurrer to the evidence, and there was a verdict for the plaintiffs, subject to the opinion of the court on the demurrer. The court gave judgment on the demurrer for the - plaintiffs, and the defendant appealed to this court.

The demurrer set out the evidence adduced at the trial, which consisted of the note on which the action was brought (a note, namely, made 'by M’Calley to Jackson, negotiable and payable at the bank of Marietta, and the same note on which the action of The Bank of Marietta v. M’Calley was broug-ht, which was,, before this court in 1824, reported 2 Rand. 465,) the indorsement of the note by Jackson to the bank, and his direction at the foot thereof to credit the drawer; the discounting of the note by the bank for the accommodation of M’Calley, the maker, and his receipt of the proceeds ; the institution of suit on the note, against M’Calley, in the name of the plaintiffs, in which the ^defendant’s intestate Jackson was their counsel; a judgment in that suit for the defendant, which was afterwards reversed by the court of appeals, and judgment entered for the plaintiffs ; the proceedings upon that judgment, and the failure of the plaintiffs to make their money out of M’Calley ; and a letter from Jackson to the president of the bank, which was adduced to shew, that he had dispensed with proof of demand and notice of dishonour. There was no direct evidence, that The Bank of Marietta was, as the declaration alleged, a corporation chartered by the legislature of Ohio.

Several questions were presented by the record, and among them the same point on which the two preceding cases of The Bank of U. States v. Jackson’s adm’x, and The Bank of, the Metropolis v. The Same, were decided ; and the cause was argued at the same term with those cases, and the court gave judgment in it, but afterwards set aside the judgment, and directed another argument. The cause was again argued by Grattan for the appellant, and Stanard for the appellees. The decision of this court turned on a single point — namely, that the demurrer to evidence contained no proof, .that the plaintiffs were an incorporated' company by act of the legislature of Ohio, as the declaration alleged them to be.-

*

Suits by Corporations — Proof of Incorporation, — In a suit by or against a corporation, it was necessary at common law to prove the existence of the corporation whenever that fact was put in issue by proper plea; and it was held that the plea of nonassumpsit put such fact in issue. Gillett v. American Stove, etc., Co., 29 Gratt. 567, citing the principal case. To the same effect, see the principal case cited in Hart v. B. & O. R. R. Co., 6 W. Va. 350; Anderson v. Kanawha Coal Co., 12 W. Va. 537; Central Land Co. v. Calhoun, 16 W. Va. 375. In accord, see Grays v. Turnpike Co., 4 Rand. 578; Rees v. Conococheague Bank, 5 Rand. 326; Taylor v. Bank of Alexandria, 5 Leigh 471. But see Va. Code 1887, sec. 3280.

In Hays v. Northwestern Bank, 9 Gratt. 130, it is said: ‘ ‘But it is insisted that the evidence in support of the plaintiff’s action was insufficient in this, that there was no proof that the plaintiff was an incorporated institution authorized to sue; and the case of *Jackson v. The Bank of*Marietta, 9 *Leigh*240, is relied upon in support of the objection. That was an action of assumpsit by a bank alleged to have been incorporated by an act of the legislature of Ohio; the plea was nonassumpsit, and there was a demurrer to the plaintiff’s evidence filed by the defendant. The court held that proof of the plaintiff’s incorporation was necessary to maintain the action; and none having been given, there was judgment for the defendant. But this is an action by a bank incorporated by the legislature of Virginia, and the act for its incorporation is a public act of which the courts will judicially take notice. Stribbling v. The Bank of the Valley, 5 Rand. 132. In that case the court *exoMcio*took notice of the act incorporating the Bank of the Valley; and the Northwestern Bank was incorporated by the same act. It was not necessary, therefore, that it should have been specially given in evidence to the jury.”

For further information on this subject, see monographic *note*on “Corporations (Private)” appended to Slaughter v. Com., 13 Gratt. 767.

PARKER, J.

There is a preliminary point in this case, which at the suggestion of the court has been reargued, and upon which the judgment in my opinion must be reversed, and judgment entered for the appellant.

There is no direct evidence in the record, that The Bank of Marietta was ever incorporated, and no proof at all of the fact, unless it can be inferred by the court from the evidence stated in the demurrer. I am of opinion, that there is nothing in that evidence, from which the court can reasonably infer that the plaintiffs *were an incorporated company. The evidence only tends to prove, that they were trading and doing business, as if they were incorporated. Every fact reasonably to be inferred from the evidence, is as consistent with the idea that the Bank of Marietta was one of those unincorporated associations; so common in our country, which have usurped the privilege of banking, as that this privilege had been conferred by law. The execution' of the note by M’Calley; its indorsement; its negotiability at the bank; and its actual negotiation, are facts which appear to me to have no bearing upon the question of incorporation or no incorporation. They do not admit the existence of a corporation, although they may admit the trading or contracting with persons claiming to hold that artificial character. The same circumstances concurred in almost all the cases (hereafter mentioned) in which it has been held, that a corporation suing, must at the trial, where the general issue is pleaded, prove that it is a corporation. Nor can the recovery of the amount of the note from M’Calley by a judgment of this court (see 2 Rand. 465,) influence the decision of this question. The points arising in that case, did not make it necessary for the court to enter into the inquiry whether the plaintiffs were an incorporated company or not. The court, from the nature of the pleadings, were bound to presume (as mr. Stanard in that case properly argued) that the plaintiffs had proved they were a corporation, or they could not have maintained their action. And, moreover, if the court had decided that there was such proof in that case, this adjudication of a fact would not bind the defendant in this action. To say that the jury could infer the fact here, from the finding that the Bank of Marietta had, on some occasion, successfully maintained an action in one of our courts, against another defendant, where the question might not even have been raised or thought of, would be to bind the defendant in the case now under *consideration, by proceedings to which she was neither party nor privy.

Some reliance has been placed upon the defendant’s special plea, that the plaintiffs *95had never been incorporated by a law of this ■state, as an indirect admission that they were incorporated by a law of Ohio, as the declaration averred. But this appears to me to be a strained and unauthorized inference. It might have been said with equator greater plausibility, that the overruled demurrer to the declaration, admitting the fact of the incorporation, would have authorized the jury, without further proof, to find it. But it is a rule well settled, that one branch of a pleading cannot be referred to in support of another. No admission made, directly, or by inference, in a party’s pleading, can be referred to, to help or aid another plea, or to supply evidence necessary to be given under it.

It has been said, that no proof of the plaintiffs being an incorporated company wae called for, and that the case proceeded upon the concession that there was such an incorporation. But we have no right to say this, if the plea of non assumpsit imposed upon the plaintiffs the burden of producing such proof. This was a call upon them to supply it, in the only mode that we can recognize as proper or necessary. It was, in effect, a legal requisition upon them to prove every material allegation in their declaration, and every fact ■essential to the maintenance of their action. We may regret, that the practice of allowing demurrers to evidence, sometimes tends to surprise a plaintiff, by his1 inadvertently ■omitting evidence which could easily be supplied ; but this has never been urged as a reason for not holding him to the proof made necessary by the nature of the defence.

Then the only remaining question is, whether the plea of non assumpsit put in issue the fact of the plaintiffs being a legal corporation. I understood the counsel for the appellees as hardly contesting this principle. It is, *asl think, clearly established by the following cases, which either directly adjudge, or proceed upon the assumption, that although it is not necessary in the declaration to aver the incorporation, it is necessary, under the general issue, to prove it. Grays v. Turnpike Company, 4 Rand. 578; Rees v. Conococheague Bank, 5 Rand. 326 ; Taylor’s adm’r v. Bank of Alexandria, 5 Leigh 471; Henriques v. Dutch E. I. Co., 2 Ld. Raym. 1532, 5; Norris v. Staps, Hob. 211; Jackson v. Plumbe, 8 Johns. Rep. 295; Bill v. Fourth Western Turnpike Co., 14 Id. 416 ; Bank of Auburn v. Weed, 19 Id. 300 ; Portsmouth Livery Co. v. Watson, 10 Mass. Rep. 91 ; Bank of Utica v. Smalley, 2 Cowen 770.

The other judges concurred. Judgment reversed.