Northwestern Bank of Virginia fo Use of Leach v. Machir
| Decision Date | 20 August 1881 |
| Citation | 18 W.Va. 271 |
| Parties | NORTHWESTERN BANK OF VIRGINIA FOR USE OF LEACH v. MACHIR et al. |
| Court | West Virginia Supreme Court |
Absent, JOHNSON, President.[a1]
The act incorporating the Northwestern Bank of Virginia by the Legislature of Virginia was a public act, of which the courts will take judicial notice; and in an action by the bank it is not required to prove its incorporation. This corporation existing under the laws of Virginia prior to the foundation of the State of West Virginia, its existence was preserved by art. XI §8 of the Constitution of 1863, and art VIII §36 of the Constitution of 1872.
Writ of error and supersedeas to a judgment of the circuit court of the county of Mason, rendered on the 16th day of April, 1880, in an action of debt in said court then pending wherein the Northwestern Bank of Virginia for use of Thompson Leach was plaintiff and William H. Machir and J. P. R. B Smith were defendants, allowed upon the petition of said plaintiff.
Hon Joseph Smith, judge of the Seventh judicial circuit, rendered the judgment complained of.
The facts of the case are fully stated in the opinion.
A. I. Boreman, for plaintiff in error:
The record does not disclose the grounds of the decision and judgment of the circuit court, but it is believed from what transpired at the time of the rendition of said judgment, that the court was of opinion, that there was not sufficient evidence of the corporate existence of the said Northwestern Bank of Virginia. The appellants insist that the circuit court erred in giving judgment for the defendants on the ground supposed.
If the said bank were a private corporation, no proof of its corporate existence was required under the pleadings. It is believed that the statute, (Acts 1875, p. 160), covers the case. At all events there is no plea putting in issue the corporate existence of the bank. The only pleas were payment and usury, both setting up affirmative matter to be proved by the defendants. If such evidence was required, the evidence in the case was sufficient. Anderson v. Kanawha Coal Co. 12 W.Va. 526. Defendants by executing the single bill sued on, (which is not denied by the pleadings) payable to said bank by its corporate name, were estopped by their deed from denying its corporate existence. Anderson v. Kanawha Coal Co. 12 W.Va. 526. Angel & Ames on Corporations § 635, (Lathrop's edition 1866). The last named authority says, " Where a cognizance, mortgage, note, or other instrument, is given to a corporation, as such, the party giving it is thereby estopped from denying the corporate existence of the corporation, and no further proof is necessary until such proof is rebutted."
But the Northwestern Bank of Virginia is a public corporation, of which the court will take judicial notice. It was incorporated Feb'y 5, 1817 (2 Rev. Code 1819 ch. 201 p. 93), and its charter was extended from time to time, until by act of the General Assembly of Virginia, passed March 26, 1861 (Acts 1861 p. 129) it was further extended for 20 years from April 1, 1863. Hays v. N.W. Bank of Va. 9 Gratt 127. By art. IX § 8Const. of W.Va. 1863, the laws of Virginia not repugnant to that constitution were continued in force in W.Va. until altered or repealed by the Legislature; and so also by art. VIII § 36 Const. of W.Va. of 1872.
There was no appearance for defendant in error.
This was an action of debt brought in the circuit court of Mason county by " The Northwestern Bank of Virginia, a corporation under the laws of the State of Virginia," which sued for the use and benefit of Thompson Leach, surviving partner & c., against William H. Machir and J. P. R. B. Smith, surviving obligors of themselves and Joseph S. Machir, deceased. The action was founded on a writing obligatory in the following words and figures, to wit:
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