Den ex dem. Lorrillard v. Van Houten

10 N.J.L. 270

Opinion

Ewing, C. J.

The first reason assigned Ibr a new trial is, that the instrumental witness of the deed of assignment of the mortgage should have been produced and examined, or his evidence taken by commission; and that, though he was proved to reside out of the state, secondary evidence was inadmissible. In Vandoren v. Vandoren, 2 Penn. 1022, this court said, the rule which now obtains is, that if the subscribing witness resides out of the reach of the process of the court, his hand-writing may be proved. The rule in England as laid down by Starkie, 2 volume 338, is, that secondary evidence may bo given if the witness is abroad and beyond tho process of the court, whether lie be domiciled there or not, as in Ireland. The same rule is adopted in the courts of several of the states of the union, although in others a different rule has prevailed.

The second reason for new trial is, that it was not proved on the trial that the President, Directors and Company of the Paterson Bank were a corporate body.

* A number of cases were cited to prove, that in an action by a corporation, on a plea of the general issue, proof must be made of the existence of the corporation There may be strong reasons for requiring a corporation bringing a suit to shew it has legal existence and therefore a capacity to come into court and maintain such suit. The present action, however, is not by a corporation but by an ordinary person on a mortgage assigned to him by the corporation. In such case the admission by the defendant himself in the deed of mortgage under his hand and seal is, as against him, sufficient proof, when uncontradicted, of the existence of the corporation. Henriques v. The Dutch West India Company, 2 Lord Raym. 1535; Dutchess Cotton Manufactoring Company v. Davis, 14 John. 245. In the latter, case, Chief Justice Thompson said i The defendant having “ undertaken to enter into a contract with the plaintiffs in their corporate name, he thereby admits them to be duly constituted a body politic and corporate under such name.5’ In the Mayor, &c. of Carlile v. Blamire, 8 East 487, the issue was, whether the corporation was known by a certain name at the time when the ancestor, under whom the defendant; claimed, granted a water course to it, and the deed of that ancestor describing the corporation by that name, was held to be sufficient evidence against the defendant that the corporation was then known by that name, especially as it was not encountered by any other evidence.

Judgment for the plaintiff,

Note by the Repobteb. — -Notwithstanding the cases cited by the defendant’s counsel, from the New-York reports, the later, and, I think, better opinion is, that upon the general issue it is not necessary to prove the corporate capacity of tho plaintiffs. In the case of Conard v. The Atlantic Insurance Company, 1 Peters’ Rep. 450, Justice Story says, “ the first exception is, that the corporate capacity of the plaintiffs was not regularly proved, before the introduction of the respondeniia bond. It is to be considered that this was a trial upon the merits; and by pleading to the merits the defendant necessarily admitted the capacity of the plaintiffs to sue. If he intended to take the exception, it should have been done by a plea in abatement, and his omission so to do was a barrier of tin's ob - jection.” See also the case of Den ex dem. State of New-Jersey v. Holmes and Dunham, 2 Penn. Rep. 1050, under what circumstances a corporation may be presumed.