Herbert v. Nashville Bank , 1 Stew. & P. 286 ( 1832 )

Collier, J.-

The defendant in error prosecuted an action of debt in the County Court of Madison,-on a promissory note for the payment by the plaintiffs;, of the suin'of one hundred and eighteen dollars- and sixty one cents, “to the Nashville Bank,” payable at the Branch ar Winchester. There is no allegation in the declaration, that the “Bank” -is a body politic. The plaintiffs demurred to the declaration, and the demurrer was overruled: whereupon they pleaded by leave of the Court, nil debet, and proposed to plead r„ul iiel corporation, which plea, the plaintiffs refusing to verify by affidavit, was rejected by the Court. On the trial, the defendant’s counsel read to the jury, from Scott’s edition of the Tennessee laws, an act incorporating the “ Nashville Bank having first proved by the testimony of. witnesses, that the book from which he read was published by authority of the Legislature of that¡ State; to all which the. plaintiffs objected. .

The questions raised upon the demurrer, to the declaration, can not now be revised. This Court has repeatedly decided, that a defendant who has pleaded over, upon his demurrer being overruled, can not allege error in the judgment on demurrer, if the declaration sets forth a cause of action. The adequacy of the cause of action disclosed in the declaration, is not questioned ; but it is insisted that the corporate character of the defendant should have been shewn by a suitable averment. The justness of this argument need not be examined, it is enough to remark, that on the general issue, the note being payable to the defendant eo nomine, its capability to contract and sue, is prima facie admitted.

Under the second section of the act of ’24, “ to regulate .proceedings at Common Law/’ the Court had the right to require of the plaintiffs some evidence that the plea which was disallowed, went to the merits of the action. It was not necessarily interposed to prevent an unjust recovery, but may have been pleaded for the purpose of gaining an advantage over the defendant, because it was not prefaced with proof of a corporate character.

The view which we have taken of this case, shews the act read from the statute of Tennessee to prove a corporate character, to have been proof superfluous. ' Whether the statute book of a sister State, published under the proper authority, can be read in evidence in our Courts, is a question on which we are much divided, and therefore decline considering it. We all, however, concur in the opinion, that if the only-evidence of an authority for publication, is the declaration of witnesses, ore terms, the book is' inadmissible : but the corporate character of the defendant not being in issue, the judgment must be affirmed,

Crenshaw, J.

In this case the declaration does not aver that the Nashville Bank is a body corporate, nor does the fact appear from any part of the record.

I lay it down as an incontrovertible proposition, that an action cannot be sustained without a person, plaintiff, either natural, or artificial. No one will seriously contend, that the expression “ Nashville Bank,” means a natural person; if then it imply such á person as could maintain an action, it must be ah artificial one, and be incorporated.

The word Bank does not ex vi termini imply a corporation; for it may mean other things as well as a monied institution: thus, in common' parlance, we' say, a bank of sand, a bank of corn, as well as a bankof money: besides there have been, and am yet, Banks and other associations of individuals, for various purposes, which were never incorporated.

I have no doubt but that the Nashville Bank lias been incorporated by an act of the legislature, yet as the record does not inform ms of the fact, we cannot officially know' it.

We are bound ex officio to take notice of the' acts’ of our own State, whether they be public or private,' but the acts of another State, we cannot know unless brought to .our knowledge through the medium of the record.

We are bound to know that our own banks are corporations, because our laws have made them so : hence they may sue by their corporate names, without averring that they are corporations: but we cannot know that the banks in Tennessee are corporations, unless it had been so averred in the declaration..

It not appearing then from the record, that there is any plaintiff, either natural or artificial, who can sustain the action, the objection is fatal on a writ of error, whatever in other respects may have been the state of the pleadings. For there is a manifest distinction between an improper or disabled party and no party at all. An objection on the first ground may be waived by pleading to the merits of the action ; but where there is no party, as in the case before us, the objection is fatal, even after verdict and judgment.

I am aware that this Court at an early period of its existence decided, that if a party plead over to the merits of the action after his demurrer has been overruled, he thereby abandoned his cause of demurrer, and could not afterwards assign it as error in this Court. Not believing this ever to have been the, law, I for one am now prepared to overrule that principle of decision, and to settle the law on its true ground. It cannot comport with reason and justice, nor is it good law, that by pleading over the party shall be placed in a worse condition than if he had not demurred, the Court having erroneously overruled his demurrer.

X am also' of opinion that it was _ erroneous to receive evidence of the statute of Tennessee by which the Nashville Bank ivas incorporated. •

1st. Because there being no averment in the declaration, that the Nashville Bant was a body corporate, tinder the state of the pleadings, no evidence of the statute was receivable. For evidence could not cure or supply the omission of a material averment in the declaration, and which averment was necessary to mate out a legal plaintiff to the action.

2d. Because if evidence ¿fithe statute wasreceiva-ble, yet the evidence offered was illegal and inadmissible : for I hold that there are but two modes by which the statute of another State can be proved or become authentic testimony in our Courts, viz.

1st. Under the seal of the State from which the statute comes, pursuant to the provision of the act of Congress, and

2d: A certified copy by our Secretary of State, according to the provision of our act of Assembly.

These two modes of authenticating the statutes of other States being prescribed by Congress and by our legislature, are sufficient of themselves for every purpose of evidence, and do virtually supersede the more doubtful and uncertain mode which it is alleged to have been the practice under the Common Law.

I am for a total reversal.

Perry, J. not sitting.