Commercial Ins. & Banking Co. v. Turner
| Citation | 8 S.C. 107 |
| Parties | COMMERCIAL INSURANCE AND BANKING COMPANY v. TURNER. |
| Decision Date | 08 February 1877 |
| Court | United States State Supreme Court of South Carolina |
Where the plaintiff alleges in its complaint that it is a banking corporation doing business in another State, and created under the laws of that State, and of the " Congress of the United States of America," and the answer merely denies " each and every allegation of the complaint," setting forth no objection to the action on the grounds " that the plaintiff has not legal capacity to sue," or " that there is a defect of parties plaintiff" as required by § 167 of the Code, the plaintiff will not be required to prove at the trial its capacity to sue.
BEFORE CARPENTER, J., AT EDGEFIELD, MARCH, 1876.
This was an action by a plaintiff styling itself the Commercial Insurance and Banking Company against J. L. Turner.
The action was at first brought in the name of " J. C Fargo, Cashier of the Commercial Insurance and Banking Company, Augusta, Ga.," plaintiff. The defendant demurred, and answered the complaint, and in June, 1875, the plaintiff obtained an order " that the pleadings be amended so as to make the Commercial Insurance and Banking Company plaintiff. An amended complaint was then filed by the plaintiffs, the Commercial Insurance and Banking Company alleging: " 1. That they are a banking corporation doing business in the State of Georgia, and created under the laws of Georgia and of the Congress of the United States of America; and in other paragraphs setting forth a promissory note for $327.90, signed by the defendant, payable to the order of T. W. Carwile & Co., and endorsed by them in blank and alleging that the note was the property of the plaintiffs; that it had ben protested for non-payment, and that no part thereof had been paid.
The answer of the defendant stated " that he denied each and every allegation of said amended complaint," and asked that said complaint be dismissed with costs.
At the trial T. W. Carwile was examined as a witness for the plaintiffs. He testified that he was a member of the late firm of T. W. Carwile & Co.; that the note sued upon was given to said firm and transferred by them to plaintiffs for value; that he knew the plaintiffs' place of business to be in Augusta, Georgia, and that he had had frequent business transactionss with them for several years. The plaintiffs here closed, and defendant moved for a nonsuit upon the grounds that the plaintiffs had not made out their case, and that they had not proved that they were an incorporated banking company by introducing the statute of Georgia under which they claimed to be duly created, incorporated and doing business.
His Honor the presiding Judge overruled the motion, holding that as the defendant had not, in his answer, made the objection specifically, the plaintiffs were not bound to show that they were an incorporated company by introducing the statute.
The defendant's counsel excepted to the ruling, and, the case having been submitted to the jury, they found a verdict for the plaintiff.
The defendant afterwards appealed.
Abney , for appellant:
The respondent in this action failed to prove that it was duly incorporated, after alleging it in the amended complaint which was denied. A motion by the appellant for nonsuit was made and refused by the Court. The appellant now submits that the motion should have been granted, and asks this Court to reverse the judgment.
The answer may contain a general or specific denial.-Code, § 172.
The general denial allowed by the Code corresponds very nearly with the general issue in actions of assumpsit and of debt on simple contract at common law.- McKyring vs. Bull , 16 N.Y. 297. " Its effect is to cast the burden of proof on the plaintiff." - Texier vs. Gonin , 5 Dwar. 389; Academy of Music vs. Hackett .
" The established doctrine now is that no Court takes judicial notice of the laws of a foreign country, but they must be proved as facts." -Story on Conflict of Laws, § 637.
The best testimony of proof shall be produced which the nature of the thing admits of. This rule applies to the proof of foreign laws as well as other facts.- Ib. , § 639.
" The United States Bank has been held to be a foreign corporation, so that an exemplification of its charter must be produced to prove its corporate character; for of the Acts of Congress creating corporations, a State Court has no judicial knowledge." -Angell & Ames on Corp., § 633, 8th edition.
" In an action by a corporation, it must be prepared to show its evidence of incorporation." - Ib. , § 632.
If the respondent had been chartered under a private statute even of this State, the Courts would not take judicial notice of it unless it was referred to in the pleadings by its title and the day of its passage.-Code, § 186.
In England, and in some States of this country, the rule is that when a body corporate institutes legal proceedings, either on contract or to recover real property, it must at the trial under the general issue prove the fact of incorporation , unless, indeed, the Act of incorportaion be a public Act, which the Courts are bound to notice ex officio .-Angell & Ames on Corp., § 632.
In some of the other States it is not required; but in those States, however, an exception is made in case of foreign corporations.- Ib. , § 633; Society vs. Young , 2 New Hamp., 310; Lord vs. Bigelow , 8 Vt. 445; Lews vs. Bank of Kentucky , 12 Ohio 132; Throop vs Hatch , 3 Abb. 23; Phinney vs. Phinney , 17 How. 197.
" Where a foreign corporation appears in Court it must establish its right to bring the suit and to make the contract it seeks to enforce." -Angell & Ames on Corp., § 633, n.
" A corporation in a foreign country may sue as such in the Courts of England, but they must prove that they are incorporated in that country; and it will be left to the jury to say whether the body so incorporated is the same which sues." - National Bank of St. Charles vs. DeBernales , 1 Carr & P., 569.
In one case in South Carolina it was held doubtful whether a foreign corporation could even sue in this State in their corporate character.- Vide Brown, Green & Co. vs. Minis , 1 McC. 80. In a later case, however, upon a copy of the Act of the Legislature of North Carolina incorporating the plaintiffs, duly authenticated, being produced , the Court sustained the action.- Vide The Bank of Cape Fear, endorsee , vs. Stinemetz, endorser , 1 Hill 44.
If the respondents had introduced in evidence a printed copy of the statutes of Georgia containing the statute whereby it was created, the statutes would have been presumptive evidence of the fact of incorporation.-See Rev. Stat., p. 678, § 441.
Whenever it appears that the evidence is insufficient to make out the plaintiff's case, or where there is total failure of proof for that purpose, it is the duty of the Judge to order a nonsuit whether the plaintiffs consent or not.- ...
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