author: Wood, Judge.

text:
    Elizabeth Sheets v. J. Baldwin’s Administrators.
    The plea of the statute of limitations is a defence not to he favored.
    Where an issue has heen made up, or the-defendant is in default, he will not, unless under peculiar circumstances, he allowed to put in that plea.
    This was an Action of Assumpsit, from the county of F airfield.
    The declaration contains the usual common counts. The defendants plead the general issue, and gave notice of set off. The cause was tried on these pleadings, in the court of Common Pleas, to a jury, at the February term of said court, 1842, and a verdict and judgment for the plaintiff for $2,900.
    From this judgment an appeal was perfected by the defendants to the Supreme Court; and at the last November term of said court, the counsel for the defendants submitted their motion for leave to add to the pleadings the statute of limitations and payment, and in support thereof offered the affidavit of *one of the defendants, that the [121 defence was meritorious, and that the pleas sought to be filed were omitted in the court below, by the oversight and mistake of defendant’s counsel.
    They also offered to prove that notice of this motion was served on the plaintiff, a few days before the last November term of the Supreme Court, and in time to enable her to, prepare for trial. This motion was reserved, and the question raised, is, should it be sustained ?
    H. H. Hunter, for defendants, in support of the motion.
    The statute (Swan’s Stat. 684. sec. 129) confers upon this court the power to permit this particular plea, as well as any other, to be filed as an amendment.
    To entitle a party, either plaintiff or defendant, under the law to amend, the law requires that he shall show good cause and shall pay the costs. Having done this in such way as ought, in a fair course of administering justice, to be holden by the court to be “good cause,” the granting of leave devolves upon the court as a duty, which it has no right, except by the exercise of arbitrary power, to refuse to perform. In granting the leave, the statute requires the court to “ lay the parties under such equitable rules and restrictions as they may conceive to be necessary to prevent delay. This, at first view, might seem to have reference, exclusively, to the party asking leave to amend. But such is not the intent of the provision. It relates equally to both parties. If, for instance, the plaintiff ask leave to amend his declaration, to avoid a technical variance, the doing of which would, not be a surprise on the defendant, the court, in the language of the law, “ to prevent delay,” would rule the defendant to a trial, notwithstanding the amendment. So, if the defendant asked leave to amend, the court would take care that he or the plaintiff should be ruled to-such measures as would prevent delay. But generally, delay in the administration of justice is a secondary matter — that is to say, the substantial objects of justice ought not to be sacrificed because its attain-122] ment, or the means necessary *to its attainment, may lead to some-delay in the proceedings. If the consequence of a motion is to produce delay, the court ought to be careful that the granting of it is-necessary for the ends of justice. But if the granting of the motion do not involve delay, either to give the party moving, time to avail himself of benefit under the motion, or to give the opposite party time to meet the new state of the case, it is, to my mind, difficult to conceive a sound reason, why leave to amend ought not, as a general rule, to be granted.
    Tet we have been gravely told in this case, that this particular plea is always presumed to be dishonest — that an honest man will not plead it — and that the rules of this court peremptorily forbid that it shall be pleaded, under all circumstances, out of rule.
    Whatever authorities of other courts may be found in the books, seeming to establish such a rule for their guidance, it is to be hoped that this court, which, as yet, has not adopted any such rule, (but the reverse, for years, on the circuit, as I am informed,) will never adopt it.
    There is, as I conceive, a very plain and simple rule which may be adopted, and which will tend to the advancement of justice to both parties, and leave in the hands of the court reasonable means to 'prevent injustice by an improper grant of leave to file the plea out of rule
    This rule is simply, as above intimated, to comply with what the statute requires, to wit: to require the party applying for leave to-show good cause.
    The danger to be feared, is, that the statute might be used t'o bar an-honest claim. This may be guarded against, as a general rule, by requiring the applicant to file an affidavit that the plea is meritorious, or to disclose such other facts as, in the judgment of the court, shall' be deemed “ good cause.”
    It is true, the court would still be liable to be imposed upon by ■false affidavits. But that is an incurable difficulty. And because there may be such instances of dishonesty, it is no reason why honest men should be deprived of their just rights. *The legal pre- 123 ■sumption, from a well known rule of necessity, is, that affidavits for all similar purposes are true.
    Upon these considerations, therefore, it appears to me that the only remaining question is, whether the ground laid in the affidavit, and ■arising out of the circumstances of this case, affords “ good cause.”
    It is explicitly stated in the affidavit, that the plaintiff admitted to the affiant that she had received payment of her demand (except a small part which would not be barred by the plea) from the intestate of the defendants. And further, that it was intended to have set up the defence, but that it was omitted through an oversight in the pleader who prepared the issue.
    Here, then, is matter which, if proved by a credible witness, would defeat the plaintiff’s right to recover on the merits. Under these circumstances, to cut off the defence which the law gives, seems to be extremely harsh.
    But, beyond this, it is proper to look at the other circumstances of the case. The defendants are administrators of an estate; their intestate, to whom the facts were known, by which, by possibility, a conclusive defence on the merits could be made out, is not here to communicate the necessary information; they can not be presumed to know the facts as he knew them. The character of this claim, itself, is siso important to be noticed. It is the claim of a hireling — a domestic, house servant — for 29 years’ services ; upon its face, it is preposterous to suppose that such a period of time between such parties would remain, as is claimed, wholly uncompensated. Yet, even if the intestate himself were living, who would expect that he could produce evidence ■establishing the facts of his various weekly, monthly, or yearly payments of his hired girl ?
    I insist, therefore, that if ever there was a ease, in which justice demanded that this court should exercise their discretion, favorably for a party asking leave to plead, it is this ease.
    The whole contest has been in relation to the statute of limitations : and we have, on all sides, been so much occupied with '-Uhat sub- [124 jeet, that scarcely any thing has been said about the additional notice of payment. At the same time that we moved for the one, we also moved for the other. I apprehend there can be no question about the latter.

      As to the character of the plaintiff’s claim, I presume the counsel will not controvert that it is as stated above.
    The court is referred to the following eases as authorities to show that, in recent times, the defence of the statute of limitations is regarded as a defence consistent with honesty and good morals — that the statute is to be construed “ like all other statutes of general utility, so as to effect the intention of the Legislature.” Davis v. Miner and wife, 1 Howard’s Miss. 190, 191; 11 Wheaton 310; 3 Peters, 278 Peck, 315.
    T. Ewing, on the same side.
    This is a motion for leave to 'amend the pleadings, by filing a plea,, or notice of the statute of limitations. The cause shown for the-amendment is sufficient if the court will suffer this plea to be filed out of rule. The 129th section of the practice act, Swan’s Stat. 684, allows, and, as we suppose, directs, the Supreme court to suffer the parties to amend their pleadings, on good cause shown, and on payment of costs, laying the parties under equitable rules — not as to the defence which they shall set up, but to prevent delay. And we do not perceive why this defence, given by statute, should be put under the ban of the court. If it be not a defence in furtherance of justice, and in prevention of wrong, why did the Legislature give it ? If it be-such defence, why should the court deny to it the ordinary indulgence given to other defences? We suppose it ought to be treated as all other forms of plea are treated.
    The statute of limitations is not only a legal defence, but it is a defence which is regarded with favor in courts of equity. They even apply it where it would not apply, under like circumstances, in a suit at law.
    The question before the court relates to a rule of practice, estab125] lished, or to be established, by our own courts, under our 4own statutes. The practice of other courts in other countries, or States, has nothing to do with it. It involves no general, and all-pervading principle. Authorities, therefore, do nothing to prove this plea ought not to be allowed. On the contrary, if courts are right in holding,, as all courts do hold, that the law giving the defence is a just law, and if we deduce from that, what is a necessary consequence, that the defence under it is a just defence, it is against principle to forbid a party to make that defence, on the Same application, and under the same circumstances, as all other just defences are allowed to be made.
    In Edward Williams’s Administrators v. The Administrators of Isaac Williams, 5 Ohio, 445, the court expresses its view in general terms, respecting the defence of the statute of limitations, in these words: “ We think such statutes should be enforced, like every other legislative act, according to the intention of the lawmaker, as expressed in the act itself.”
    P. Van Trump, for the plaintiff, argued against the motion.
    The section in our statute, upon which this motion is made, is as follows;
    “ That, when any cause is removed, by appeal, into the Supreme court, the appeal shall be tried upon the pleadings made up in the court of Common Pleas, unless for good cause shown; and, on payment of costs, the said court should permit either, or both parties, to alter their pleadings ; in which ease, such court shall lay the parties under such equitable rules and restrictions as they may conceive necessary, to prevent delay.” Swan’s Stat. 684.
    As this question has not been adjudicated in this court, it is well to look to the decisions of our sister States, upon statutes of a similar character, and of much stronger phraseology, as to the discretion of the court in granting amendments. The statute of Massachusetts is as follows;

      “ The court in which any civil action is pending, may, at any timer before judgment rendered therein, allow amendments, ’¡’either in [126 form or substance, of any process, pleading or proceeding, in such action, on such terms as shall be just and reasonable.” Revised Statutes, 608, sect. 22, being a republication of the act of 1784.
    Now, what are the decisions of the Supreme court of Massachusetts upon this statute, as to the plea of the statute of limitations ?
    Perkins v. Burbank, 2 Mass. 81. This was an action of assumpsit, to which the defendant had pleaded the statute of limitations in time, but defectively, the plea not having covered all the' counts in the declaration. The defendant moved the court for leave to amend his plea, so as to cover all the counts. Parsons, C. J. : “ The rule of this court, respecting amendments, authorizes the plaintiff to amend his declaration, at any time before joinder in demurrer, on paying cost, or granting a continuance, at the election of the defendant. ■ The right to amend, then, is of course. But, the rule has not taken away the discretionary power of the court to grant amendments, whenever the justice of the case shall require it.
    - “ But, I have never known the court to .go so far as to grant an amendment, or a repleader, after joinder in demurrer, when the proposed amended or new plea does not go to the merits of the action, which can not generally be said of this plea of the statute of limitations. If any equitable cause was shown, in aid of this motion, as that the defendant has lost the benefit of evidence, by the death or absence of his witnesses, or that his papers have been destroyed, or lost, amongst which was material evidence for him, the court might be ‘induced to grant it; but, without some such ground it is noi to be favored, especially when the action is still open for trial upon the general issue.” Motion denied.
    The statute of New York is as follows :
    ‘‘ The court in which any action shall be pending, shall have power to amend any process, pleading, or proceeding in such action, either in form or substance, for the furtherance of justice, on such terms as 121] shall be just, at any time before judgment *rendered therein.” Revised Statutes of New York, 424, of vol. 2, sect. 1.
    Hallagan v. Golden, 1 Wend. 302. After issue joined, the defendant moved for leave to add the plea of the statute of limitations, and .a notice of set off, to a plea of the general issue, which had been put in by the attorney, for the purpose of saving a default, in the absence of the defendant, and of counsel, who had been instructed as to the nature of the defence.
    Savage. C. J. “ That part of the motion which asks for leave to add a notice of set off, is granted ; but the application to add the plea of the statute of limitations is denied, with costs. Such a plea is never allowed to be added after issue joined.”
    I wish the court to take special notice of the statement of facts in the above case, in 1 Wendell, because they are precisely analogous to the state of facts detailed in the affidavit of Thomas B. Cox, one of the administrators.
    Beach v. Fulton Bank, 3 Wend. 574. The rule in New York is so strong that they will not allow, even in a court of chancery, an amendment of an answer of the defendant, setting up the statute of limitations. In the case of Beach v. Fulton Bank, the defendants asked leave to amend their answer, so that they might avail themselves of the statutes against usury. But the court of errors refused the application, and assimilated the motion to an offer to set up the statute of limitations, upon the ground of its being a strictly legal, and not un equitable defence.
    Savage, C. J., in delivering the opinion of the court against allowing the amendment, thus speaks of the analogy existing between that •motion and an offer to plead the statute of limitations : “ In the case of the Utica Insurance Company v. Scott, 6 Cowen, 606, in granting the amendment, it was expressly declared, that the defendants should not plead a new unconscionable defence. It was said, that the plea permitted to be amended, was of the same character But, in that case, *the Supreme court felt constrained to consider the ease as [128 if the demurrer had, in the first instance, been correctly decided in that court, where the judgment would have been for the plaintiffs, with leave to the defendant to amend. ' The amendment extended to the same plea. The defendant had a right, to draw a good plea to embrace the defence originally intended. So, in the case under' consideration, had the answer been adjudged defective, in not presenting the defence which the defendants intended to present, I should be of opinion that they ought so to amend as to present the defence which they attempted, unsuccessfully to rely upon. Such, however, is not their case. They .ask to prove a defence which is distinct from that which they have presented, and which they had sworn they believed to be the true one. In Hallagan v. Golden, 1 Wend. 302, the court refused liberty to the defendant to add a plea of the statute of limitations after issue joined ; .and though no reasons are given in the report, the reason assigned, when the decision was made, was that given in 1 Archb. Pr. 124, which was also referred to ; that, where leave is given to add a new plea, it will only be done under particular circumstances, and then the new plea must go to the merits ; and, therefore, the court has refused to add the plea of the statute of limitations. This plea, as was said in 2 Wils. 253, excludes the merits. In Jackson v. Varick, 2 Wend. 294, it was said the rule was uniform, if a party neglects to plead the statute of limitations, he loses his plea. It is a strict defence ; and if the party lets it slip, the court will not relieve him. Had the defendants, in these two cases, pleaded the statute of limitations defect ively, leave would probably have been given to amend according to the principle of the ease of the Utica Insurance Company v. Scott. But none of these cases afford a precedent for admitting an additional plea, or answer, of a defence which is not to be favored.”
    Jackson v. Varick, 2 Wend. 294. This was an action for mesne profits. The defendant pleaded the general issue alone, and afterwards applied for leave to add a plea of the statute of ^limitations, on [129 an excuse offered by the attorney in the cause, that he had been advised by counsel to put in such plea, without regard to the plea of the .statute of limitations. It appeared in the ease that the defendant was a purchaser, under a covenant of warranty of the premises, for the mesne profits of which the action was brought.
    Sutherland, Judge. “ It is said that the defendant will not be able-to recover from his grantor beyond six years interest on his covenant of warranty, and that, therefore, this case should form an exception to the general rule which governs these cases. We do not think so. The rule is uniform, that if a party neglects to plead the statute of limitations, he loses his plea. The statute of limitations is a strictdefence, and if the party lets it slip, the court will not relieve him. The motion is denied, with costs.”
    The statute of amendments of Maryland, is in the following words :
    “ That the court of law shall have full power and authority to> order and allow amendments to be made in all proceedings, whatsoever, before verdict, so as to bring the merits of the question between the parties fairly to trial,” etc. 1 Dorsey’s Laws of Maryland, 233, sec. 4.
    Perkins v. Perkin’s Executors, 1 Harris and McHenry, 400. In this ease, the court, after full argument, refused leave to amend a plea, of the statute of limitations already filed.
    Wall’s Executor v. Wall, 2 Harris and Gill, 79. This was an action-of debt, on a bond for the payment of money. The defendant pleaded payment, and also, the statute of limitations, within rule day, but pleaded the statute defectively. In the court below, he moved to amend the plea of the statute, which the court granted ; to reverse which decision, the ease was carried up into the court of Appeals. Archer, Judge. “ The plea of limitations has been adjudged not to-be a plea to the merits ; and the universal practice has accordingly been, never to permit it to be amended, and to demand that it should' be filed by the rule day.”
    *Lamott v. McLaughlin, 3 Har. and McH. 324. This was-an action of trespass vi et armis. The defendant pleaded the statute of limitations, but pleaded actio non accrevit infra duos armos, instead of actio non accrevit infra tres annos. The plea was demurred to, and motion made for leave to amend :
    “ The court, on full deliberation and examination of the authorities, determined that, as the plea of limitations was not a plea to the merits, it should not be received after the rule day, nor amended, if pleaded defectively.”
    State for the use of Johnson et ux. v. Green’s Executor, 4 Gill and Johnson, 381. “The plea of the statute of limitations can not be-amended, though the amended plea is filed before the rule day has expired. But if a plaintiff amends Ms declaration, the defendant may plead limitations anew.”
    It will thus he perceived by the court that, in those States having-statutory provisions similar to ours upon the subject of amendments, the courts have uniformly held, as well lately as at an early day, that a defendant could not add a plea of the statute of limitations after he had suffered the time to pass by in which he had the strict right to file such a plea. Indeed, some of the decisions have gone so far as to refuse to have the plea amended, even when the plea itself, and the amendment proposed, were both within the rule day, prescribed for pleading. It will be no answer to our objection, to file this plea, to say that these decisions are by other tribunals, and not binding upon this court. There would be some force in this proposition, were those decisions based upon the mere rules of each particular court; but when they are the offspring of a judicial construction of statutory provisions, similar to, and even stronger than our own, uniformity of practice, as well as conformity in our judicial system, imperiously demands of this court an adherence to the decisions of tribunals so respectable as are those of New York and Massachusetts.
    It will not do to establish the precedent here, that a party may makeup an issue upon the merits in the court below, experiment upon that issue there, by a full trial upon the facts, *and then, in this [131. court, move to file’ a plea which does not reach the merits, but sets up a strictly legal and technical defence.
    H. Standee,ut submitted an argument on the same side.
   Wood, Judge.

The one hundred and twenty ninth section of the practice act, (Swan’s Stat. 684,) confers upon the court full power, on an appeal, to permit a change of the pleadings by either or both the-parties, in any ease, on payment of costs, or by imposing such equitable restrictions as may be conceived necessary to prevent delay. It is a sound discretion, with which the court is invested, and should be so exercised in laying down general rules, as to promote the administration of justice, and not with a view to meet any particular case.

The transcript shows the case at bar was tried to a jury in the Common Pleas, in February, one thousand eight hundred and forty two, and if the pleadings did not then present the proper points in, the defence, all concerned had full knowledge of such deficiencies.

The cause was pending in the Supreme court, at November term, one thousand eight hundred and forty-two, and no motion was then made-to amend the pleadings, and it appears to us, from any thing shown in support of this motion, that it is, under the circumstances, entirely too late.

It is true, one of the defendants is of the opinion, the statute of limitations is a meritorious defence; but all the authorities, ancient and modern, and they are numerously cited by counsel, show, that, as a general rule, such defence is inequitable, and not to be favored, and that the court will lend its aid to effect a trial on the merits, when it will sit, at least passive, while a defendant asks its assistance, to close the door against such inquiry, and to avail himself of his own laches, in not paying the debt, by the bar imposed by the statute, unless he avails himself of such plea, within the rule day. We do not say no case can be presented where this leave to plead the statute, out of rules, should not be given; but the circumstances, to let in the defence, must be peculiar.

*The authorities show a concurrent course of decisions in the English and American courts, that, after the expiration of the rule day, or when the issue is closed, or a party is in default, the plea of the statute of limitations ought not to be permitted ; that it is a strict legal defence, and which a party may, and must, at his peril, see that he pleads in time, or its benefits to him are lost.

The plea of payment is unnecessary in assumpsit. The defendants can avail themselves of payment under the general issue, and no change of issue should be permitted, to let in such plea.

Motion overruled.


source: Caselaw Access Project

author: Birchard, Judge.

license: Public Domain

text:
    Henry Lewis and Samuel Lewis v. The President, Directors and Company of the Bank of Kentucky.
    A joint action against a drawer and indorser, may be brought under the statute by a foreign bank, as well as by banks incorporated in this state.
    In such action, the plaintiff may declare in a count for money lent and advanced, and under it, recover the statutory damages upon a protested bill, without an averment of protest.
    The declaration need not contain an averment of protest.
    Objections not taken on the circuit, will not be heard in bank'.
    This is a Writ of Error to the Supreme Court of Hamilton county.

      The action was assumpsit, in which the plaintiff declared as follows :
    “ The President, Directors and Company, of the Bank of Kentucky, plaintiffs, complain against Henry Lewis and Samuel Lewis, defendants, in a plea of trespass upon the case, upon promises, etc.; for that, whereas the said defendants, on the twenty-sixth day of April, 1842, at ihe county of Hamilton, and state of Ohio, aforesaid, were indebted to the said ^plaintiffs in the sum of four thousand dollars, for [133 - so much money before that time lent and advanced by the said plaintiffs to the said defendants at their instance and request, and in consideration thereof, then and there promised to pay to the said -plaintiffs the said sum of money when they should be thereto thereafter' requested, yet the said defendants disregarding their said promise, and although often requested, have not as yet paid the said sum of money,. nor any part thereof, but to pay the same have hitherto refused and still do refuse to the damage of said plaintiffs of six thousand dollars, and therefore, they bring suit,” etc.

      Plea — Non assumpsit.

    At the April term, 1843, of the Supreme Court, a trial was had, the • cause being submitted to the court, without the intervention of a jury, and judgment rendered in favor of the plaintiff, for $3,357.50.
    A bill of exceptions was taken upon the trial, setting forth that—
    ‘‘ On the trial of this cause, the counsel for plaintiff offered in evidence a bill of exchange, drawn by Henry Lewis, indorsed by Samuel Lewis, for $3000, dated, Cincinnati, December 22, 1841, and directed to Joseph Landis & Co., New Orleans, payable four months after date. It was admitted that notice of demand and nonpayment was duly served on defendants. The notarial certificate of protest was • also offered in evidence, on which was indorsed two separate charges of $3.50 each, purporting to be charged for nonaceeptanee and nonpayment ; upon this evidence the court found the issue joined for the plaintiffs, and assessed their damages at $3,357.50. The defendant moved for a new trial on the ground that the finding was against the - evidence, and that the finding should have been for the defendant, but the court overruled the motion and directed judgment to be entered.. To which action of the court, the defendant excepted, and prayed that - this their will of exceptions, might be sealed, which is done accordingly.”
    *Chase and Ball for the plaintiff in error.
    The plaintiffs were not entitled to recover the amount found. The bill was for $3,000. It fell due on the 25th day of April, 1842. The • •plaintiffs, if entitled to recover at all, could have judgment only for the amount of the bill, damages, charges of protest, and interest on the principal from the 25th day of April, 1842, to the 3d day of April, 1843. These sums would be — bill, $3,000; damages, $180; charges, $7; interest, 11 months 7 days, $168.50; making in all $3,355.50 — whereas, the amount found by the court was $3,357.50, 'There is a manifest error, therefore, in the finding, for which the judgment must be reversed.
    The finding was also erroneous, in including the two sums of $3.50 each, indorsed on 'the back of the notarial certificate, as charges of protest. We admit that the notarial certificate is evidence of the facts of dishonor and protest. It is, however, proof of nothing else. It is not proof of notice to the parties of demand and nonpayment. It is not proof of the amount and legality of the notary’s charges. It would be very dangerous to extend the credit given to notarial certificates, so as to render distinct and positive proof of matters so important as notice and charges, unnecessary. In the present case, however, there is not even a notarial certificate of the amount of charges. The certificate relates to the facts of dishonor and protest. It makes no mention of charges. Some person has indorsed two sums of $3.50 each, on the back of the certificate, one of which purports to be for nonacceptance, and the other for nonpayment. Surely, an unattested, uncertified memorandum, like this, can not be received as -evidence. To include these charges, then, in the finding was error, and the judgment mnst therefore be reversed.
    The plaintiffs were not entitled to recover damages. The right to damages upon bills of exchange is the creature of the statute. The decision of the court in the caae of Case v. Heffner, 10 Ohio, 180, settles, beyond controversy, the point that no damages can be recovered, 135] unless the bill upon which *the suit is brought, has been legally protested. In the ease of Crawford v. Wolcott, 11 Ohio, 145, it was further decided that the right to statutory damages depends on facts, which must be so presented that the defendant may contest them before the jury. Both these adjudications are supported by the soundest reasons. The first, indeed, merely reaffirms the express provision of the statute. The second is founded on the fundamental maxim, in pleading, that the declaration must show a title or right of action in ■the plaintiff. When the title to the subject of the action is statutory, the circumstances which the statute declares to be essential to the -creation of the title must be substantially set forth in the declaration. This is the elementary doctrine of pleading. It is laid down in 1 Chitty, 404, 405, and is supported by the cases reported in 1 Hall, 318; and 13 Johns. 428. When we examine the declaration in the case before the court, with reference to this doctrine, we find no averment of a single fact necessary to show a title to statutory damages. It contains but a single count for money lent and advanced. It does not aver the existence of a bill; it does not aver that it was drawn on persons without the state ; it does not aver that it was legally protested. All these circumstances are essential to a title to damages. Not one of them is averred. The declaration, then, is fatally defective. The court are referred to the case in 2 Douglass, 679, in which, for want of a sufficient averment of a demand and notice in an action against an indorser, judgment was reversed on error; and also, to 1 Durnford and East. 87 ; and 4 Durnford and East. 256.
    The counsel for the defendants in error will probably endeavor to break the force of this argument, by alleging that this suit was brought by a bank under the 9th section of our statute regulating judicial proceedings where banks and bankers are parties, Swan’s Stat. 149. We deny the correctness of this assumption. It was neither averred nor proved that the plaintiffs sued as a bank, or were a bank. But waiving, for the present, this denial, we insist that a bank can not recover statutory damages without laying a foundation for recovery by proper ^averments. Our reasons are these: the statute authorizes [136 banks to sue drawers and indorsers of bills jointly, and recover a joint judgment for the amount found to be due. Now, damages are not a part of a debt due. They are given by way of penalty with a view to secure prompt payment of bills of exchange, so important to commerce. If, then, the defendants in error chose to sue for the amount due on the bill, without averring the circumstances essential to a title to damages, they waived their claim to the penalty given by the statute, and confined themselves to the amount of the bill and interest.
    The present statute giving damages on protested bills of exchange, was passed in 1831, while the act regulating banks and bankers was passed in 1824. By no construction, then, can the act of 1824 be made to authorize the recovery, in an action for money lent, of the six per cent, damages given by the act of 1831. It is no answer to say that the act of 1810 gave ten per cent, damages on protested bills, and that these damages could be recovered in an action under the statute of 1824. The act of 1810 is repealed. The right which it is now sought to enforce, accrued, if at all, under the act of 1831. It is a different right from that secured by the act of 1810 in similar circumstances. Can it be enforced under an act which could not have been intended to apply to it unless its framers were animated by the spirit of prophecy ? We think not.
    We maintain, finally, that the plaintiffs were not entitled to recover at all upon the pleadings and evidence, and that the judgment must be reversed—
    First; Because there was no averment that the plaintiffs were a body corporate, and without such averment no action in the name of a corporation can be sustained.
    Second: Because there was no proof that the plaintiffs were a body corporate.
    Third: Because there was no averment that the plaintiffs were bankers or a bank ; and without such averment no action could be sustained under the statute regulating banks and bankers.
    Fourth : Because there was no proof that the plaintiffs were a bank or bankers.
    Fifth : Because if it were admitted that the plaintiffs were averred and proved to be incorporated and a bank, still they were a foreign hank, and therefore not entitled to maintain an action under the statute.
    1. We suppose that it is indispensable that the plaintiffs, in every action, should aver in themselves a capacity to sue. Where an individual sues, it is enough to give him a name, Where partners sue, the partnership must be averred. Where a corporation sues, the fact of incorporation must be averred. If this averment be omitted altogether, as it was in this case, there can be no title in the plaintiffs to maintain their action. A suit might as well be brought in the name of the letters of the alphabet. Every fact that is essential to the plaintiff’s right of action must appear in the declaration. The fact of incorporation, in the present case, was essential. But it no where appeared from the declaration. And this, going as it does to the title of the plaintiffs, is fatal on error. The only exceptions to this rule, and even these are admitted with some hesitation, are, where the plaintiffs are incorporated by a public statute of the State in which the suit is brought, of which courts are bound to take notice ; and where the contract was made by defendant with the plaintiffs by their corporate name.
    2. But if there had been an averment of incorporation, it would not have helped the plaintiffs, for there was no proof of it on the trial. Was such proof necessary ? It must be remembered that the plaintiffs, if shown to be a corporation at all, by the pleadings, were shown to be a foreign corporation. Now, whatever difference of opinion there may be as to the necessity, in general, of proving the fact of incorporation, under the general issue, there is none as to the necessity of such proof where the plaintiff is a corporation of another state or country. In such a caso, the act of incorporation must be proved in the same manner as any other foreign law. Dutch West India Company v. Vanmoses, 1 Strahan, 613 ; same case, *2 Ld. Raymond, [138 1532; National Bank of St. Charles, v. De Bernales, 1 Carr, and Payne, 569.
    The weight of authority seems to be in favor of the rule that the incorporation of the plaintiff must be proved under the general issue, in all eases, except where the contract sued on was made with the corporation by its corporate name, in which case the defendant is estopped from denying the fact of incorporation ; and when the act of incorporation is a public act of the state or nation, in the courts of which the suit is brought. These exceptions are established by the cases of Duchess Man. Co. v. Davis, 14 Johns. 245 ; Henriques v. Dutch West India Co. 2 Ld. Raymond, 1535.
    The general rule itself is stated in Kyd on Corporations, 292; and Angell and Ames on Corporations; 179; and is established by a great number of eases, among which we will cite only Jackson v. Plumbe, 8 Johns. 378 ; Bill v. 4th West. Turn. Co. 14 Johns. 416 ; Bank of Utica v. Smalley, 2 Oowen, 778 ; Bank U. States v. Stearns, 15 Wend. 315 ; Central Man. Co. v. Hartshorn, 3 Conn. 201 ; Hargrave v. Bank of Illinois, 1 Breese, 84 ; Reese v. Conococheague Bank, 5 Rand. 326 ; Henriques v. Dutch West India Co. 2 Ld. Raym. 1535. These citations show that the general rule, as we contend for it, is recognized by the elementary writers in highest repute, and by the judicial tribunals of the most commercial nation in the world, and the most commercial state in the Union,' as well as of other states. It is questioned by a decision of the Supreme Court of this state, made on the circuit, by Judges Hitchcock and Wright, in the case of the Methodist Church v. Wood, 5 Ohio, 286. Of the eases cited to sustain that decision, that in 1 Peters, 386, is the strongest. It must be considered that this ease was one where the contract sued on was entered into by the defendant with the corporation, by its corporate name, and therefore the ease falls within one of the exceptions above stated ; and the decision of the point was placed on this ground. The opinion expressed by the court, therefore, that the fact of incorporation need not be proved 139] ?n trial, must be regarded as obiter dictum. *The case in 4 Peters mostly follows the case in the first volume. The case in 1 Bos. and Pull. 40, cited in note 1 Carr, and Payne, 569, has no bearing on the question. The plaintiffs in that ease, did prove their corporate existence, but there was a misnomer in the declaration, and the court held that a misnomer could only be taken advantage of by a plea in abatement. The authority of 1 Saunders, 340, also relied on by our own court and the Federal court, is in favor of the rule we contend for. It establishes the points that the fact of incorporation must be averred, and that a plea in abatement is only good in case of misnomer. In this state of the authorities, we conceive that, if the case required it, we might very properly ask the court to reconsider the decision made on the circuit, and reduce corporations within the reasonable and well supported rule which requires proof of the fact of incorporation on trial.
    3. We insist that the plaintiffs can not recover, because the declaration contained no averment that they were bankers o.r a bank. This averment, we apprehend, is indispensable to sustain an action under the act regulating banks and bankers ; and this action was brought under that act. Now, if the plaintiffs would avail themselves of a statute, they must aver the facts which bring them within its provisions. No rule is better settled than this. The plaintiffs in the present case omitted to do so. They were, therefore, not entitled.to judgment.
    4. The same reasoning which evinces the necessity of the averment that the plaintiffs were bankers or a bank will establish the necessity of proof to that effect.
    5. We maintain, finally, that a foreign bank can not maintain an action for money lent and advanced under the statute. All the provisions of the act regulating banks and bankers show that it was intended to apply solely to domestic banks. It imposes no liability and grants no right to banks created by other states.
    But it may be urged that this suit is not brought under this statute, but under the act relating to bills of exchange, one of the sections of 140] which authorizes a joint action against the ^drawers and indorsers by any holder of a bill. The answer to this is, that the plaintiffs did not bring themselves within the act by their averments or proof. If they did, it would not avail them; for the statute, though it gives a joint action to the holders of protested bills, does not change the law as to the form of action. The declaration contains a single count for money lent. It has been established that under a count for money had and received against drawer or indorser, a bill may be given in evidence. Harris v. Clark, 10 Ohio, 5. It is equally well settled that, under a count for money lent against drawer or indorser, the reverse is true. Rockefeller v. Rohinson, 17 Wend. 206.
    Under whatever aspect, therefore, we regard this judgment, it seems that it ought to be reversed.
    Having seen the reply of the. defendants in error, we merely add a word in answer. The bill of exceptions shows that the judgment was upon the evidence stated in it. Of course there was no other. If the points now made were not all of them made on the trial, it was because the case was tried in the midst of a press of business. This, however, will not relieve the. court from the duty of considering them; now that they are distinctly pressed.
    Storer and Gwynne, for defendants in error.
    The plaintiffs in error, having appended to their proceedings their bill of exceptions, ask the court to reverse the judgment rendered at their last term in this county.
    They assign several errors, but two of which can be predicated on the record; the others, even if valid, can not be relied on, as the case stands.
    It is clear, that every ground'of exception is supposed to have been taken, when the bill is presented and signed, saving those errors which appear in the pleadings ; and after judgment, it is always presumed that every material fact necessary to sustain the suit was proved, else that judgment would not have been rendered.
    *Now, it is not asserted in the bill of exceptions that, either [141 on trial it was required that the corporate character of the plaintiff should be proved, or, their right to sue, as such, questioned; nor, on the motion for a new trial, was it insisted that there was no evidence of the fact now asserted, being left unproved, or any suggestion that it was necessary to be established.
    But we need not suggest a question of legal propriety merely, but refer to the whole tenor of the decisions to sustain the position we have assumed; and we appeal to the judges who tried the cause, to examine their notes, and ascertain if any such point, as that which the plaintiffs in error now present, was taken, in any form or shape, hy their counsel, in the progress of the cause, or in any of its stages.
    The declaration was drawn as our statute requires, in all cases where “ banks or bankers sue.” It contained the count for money lent, as the provisions of that statute require. The cause of action was the bill of exchange, filed in the cause. The defendants pleaded the general issue. Their liability to pay was fully proved by the depositions in the papers; and now it is said on these facts no judgment could have been legally rendered.
    First: Because there was no evidence that the plaintiffs were a body corporate.
    To this error we have already alluded, and think that there is no ground upon which it can now be made ; the language of the bill of exceptions refers to no such point, nor can be construed to include any such exception. If the proof contended for was necessary to be offered before a recovery was had, then the court could not have decided finally without it. Can it now be said it was not made ? If no bill of exceptions had been taken, that result would have been inevitable ; and does the mere fact that there is a statement in the bill of exceptions, “ that no other proof was made,” change the case ? We think not. We believe the fair reading of the bill of exceptions confines the whole ground of error, to the right of the party recover-142] ing, to the charge for the protest made by the notary ; *and this point, we feel assured, the court, who sat here at nisi prius, will remember was the principal burden of the counsel’s application for a new trial. When the ease was heard by the court on submission, the question alone was argued, whether the plaintiffs in the suit were entitled to damages. The right to recover the amount of the bill and interest is not disputed; and yet it is now sought to make a new issue, upon the supposition that the court erred, when, in truth, no foundation for such an inference exists.
    But is it true, that it is necessary, in any. case when the general issue only is pleaded, to prove the act of incorporation ?
    It was held otherwise, in the Methodist Church ease, 5 Ohio, 283 ; Portsmouth Livery Company v. Watson, 10 Mass. 91.
    In Conard v. The Atlantic Insurance Company; 1 Pet. 450, .Judge Story says, “ It is to be considered that this is a trial on the merits, and by pleading to the merits the defendant necessarily admitted the capacity of the plaintiff to sue; if he intended to take the exception, it should have been done by plea in abatement, and his omission so to do was a barrier to this objection.”
    On this practice we have relied, since the decision in 5 Ohio, already alluded to. Unless a plea in bar, or abatement, is interposed, the corporate name of the plaintiff has always been held to be admitted. It is said a counter decision has been made by this court on the circuit, but as we have not seen it as emanating from any official source, we can not state its application. Is there any distinction between domestic and foreign corporations ? If there is, we can not perceive it. Both are the subjects of proof, and proof of either may be required by the interposition of the appropriate plea.
    Second : It is said, however, that it is not averred that the plaintiffs were incorporated, in sufficiently technical lauguage. The suit is brought in the name of The President, Directors and Company of the Bank of Kentucky.
    This allegation has always been deemed sufficient, as the history of our practice will exhibit, whenever it is appealed to. *And it is [143 settled, by a series of adjudications, that it is not necessary to Set forth the modern which the plaintiffs were incorporated. In United States Bank v. Haskins, 1 Johnson’s Cases, 132, the averment was, that “ The President, Directors and Company of the Bank of the United States,” sue as plaintiffs, and, on demurrer to a plea in abatement, by the defendant, that the plaintiffs had not set forth the mode, etc., in which they-were created a body corporate, it was held that the allegation was sufficient, and the demurrer was sustained. So, in the Bank of Utica v. Smalley, 2 Cowen, 778 ; Dutchess Cotton Manufactory v. Davis, 14 Johns. 245 ; Bank of Michigan v. Williams, 5 Wend. 482. On this point we conclude no more need be said.
    Third: It is urged that there could be no recovery, because the plaintiffs can not avail themselves of the statute regulating banks and bankers, unless they aver and prove themselves to have been, (and Still sustain that character,) of the one or the other of this description of persons.
    The answer to this suggestion is fully contained in our reply to the point just stated, for, if the allegation, as made in the declaration, is sufficient, then the fact must be conceded. The statement of the corporate name implies its powers, and when that name is explicit, in so much that the very purpose of its erection is to be clearly understood from it, how can it be said that any further explanation of what it is, or what its rights are, should be required in the pleadings.
    Fourth : Another ground is assumed — that a foreign bank can not maintain an action against the drawer and indorser, jointly, in the mode provided in our statute, already referred to, The opposite opinion has always heen asserted and acted on. In our state courts, foreign corporations have been' compelled to adopt this practice, or else pay costs, if separate suits should be instituted. Shortly after the law was passed, the Circuit Court of the United States adopted the practice, and it has prevailed there until the present time ; and in Fullerton et al. v. The Bank of the United States, 1 Pet. 614, the precise question came up, and the court say, “ the act was conceived 144] *in the true spirit of distributive justice ; violated no principle ; was easily introduced into the practice of the courts of the United States; has been there acted upon through a period of eight years, and has been very properly treated as a part of the law of the court.” And again: “ It was passed for the relief of the defendant, and is effectual in relieving him from a weight of costs : nor does it subject the defendants to any inconvenience from a joint action, since it secures to each every privilege of pleading and defence of which he could avail himself, if severally sued.” Thus far the Supreme Court of the United States, and their language, is the best commentary upon the wisdom and justice of the law which has for the last twenty-three years been the rule of practice in all cases where banks and bankers have sought relief in our courts. We regard the remedy as applicable to all corporations who sustain the relation of banks-, who seek redress in our tribunals. Our legislature can as well prescribe the remedy in one case as another, and while the- contract is preserved in all its integrity, the form to be pursued by litigants can not be dispensed with. If they invoke the aid of our tribunals, they must place themselves on the same ground with ordinary suitors.
    Fifth; It is further contended, that damages can not be recovered, on a foreign bill, unless the protest is averred to have been made in the declaration ; and, therefore, the remedy sought against the plaintiffs in error was not warranted by the practice of the courts. We here repeat the received opinion of the whole bar, and the bench, on this point also, who have acted on the belief, that if the count for money lent is sufficient to charge the indorser and drawer for one purpose, it is for all. If no special averment of presentment and notice is necessary, why should there be of protest ? The law has already disposed with the former, and, to our apprehension, has as clearly disposed with the latter. Look, for a moment, at its provisions. The case referred to, as decided by this court, Crawford v. Wolcott, 11 Ohio, 145, does not apply, as it does not embrace the question n-ow discussed. It is the ordinary suit of one individual 145] against the other, on a foreign bill; and *in every such action the.averment must be explicit before the penalty attaches. In the pleading under the bank law, a simple statement is permitted, yet no one important material fact required to be proved in ordinary trials is intended to be dispensed with ; tbe plaintiff must still furnish the legal evidence to sustain his count, though he is not required to be specific in the allegations in his pleadings.
    If it is unnecessary to aver the fact of protest, is it requisite as the opposite counsel contend, that it should appear that the bill was drawn upon a person living without the state, before damages can be recovered ? We think not; for, if it was, then the declarations must be special, and all the formality of an ordinary count must be pursued. The pleading, also, would be anomalous ; for, if it is proper to aver the name of the place where the bill was drawn, then the whole bill should be set forth; and, if so, the action is defeated ; for, unless the simple money count is adopted, the statute does not permit the joinder of the parties.
    The object of the statute was to prevent the multiplicity of suits, and to save, éven in the remedy permitted, all unnecessary costs ; but if, beyond it, we seek to make averments in the declaration for one purpose, why not for all, and, in the end, give up the proceeding altogether ?
    Sixth : The counsel for the plaintiffs in error again say, that there is no averment that charges were incurred, and there is no proof of such charges. The first branch of this objection has been disposed of in considering the last error. The second depends upon the evidence furnished by the protest. Now the protest is evidence of the demand, and has been so ruled repeatedly. Bryden v. Taylor, 2 Bay, 411; Nichols v. Webb, 8 Wheat. 333 ; Turnsby v. Sumrale, 2 Pet. 179 ; Charaim v. Fowler, 3 Wend. 193. If it is evidence of one fact, why not of every incident connected with the fact, and surely that the fee was paid.
    The deposition on file, to which the bill is attached, is that of the notary. On- the back of his protest he certifies the amount of fees, $3.50, the usual charge for the service he rendered. *Is not [146 that prima facia evidence that it has been paid ? Is it not an universal rule that the fees of the notary are paid before he parts with the bill he protests ? and is not the possession of. that bill and protest by the plaintiff, in trial, sufficient proof that he has paid the charges incurred ?
    Seventh : It is, also, stated that more interest is charged than was lawful. The allegation is not definitely made, and it is not understood by us whether the excess of interest is included in the judgment, or deduced from the bill. In either case, there is no evidence of the fact, and it will be difficult to find any, for we have never heard of it, as yet.
    If the judgment is for too much, it may yet be remedied by a deduction of the overcharge. But how is such an assumption sustained ? Not by the bill of exceptions certainly; and if by the draft, it will furnish ground for relief to the amount of the excess, and nothing more. But the case was tried upon its merits. No such objection was made, and none pretended to exist, while the trial was in progress, and we can not perceive with what propriety the claim is now asserted.
    On the whole, we can not find any reasonable ground upon which any of the errors are to be sustained, and we ask the court to affirm the judgment with costs.
   Birchard, Judge.

Several errors are assigned in this record:

First: That the declaration is insufficient.

The declaration is the common count, authorized by the act to regulate judicial proceedings where banks and bankers are parties ; Swan’s Stat. 149, sec. 9 ; and it contains no averment that the plaintiffs were a body corporate. It is urged that the omission of this averment is fatal. If it shall be found that such averment is necessary, the conclusion would follow, inasmuch as the defect would go to the very title of the plaintiff.

In suits brought by corporations created by the laws of this state, this general form of pleading has always been held sufficient. Is it not equally so in the case of suits by foreign corporations ? Upon principles of comity, such corporations have always been allowed to 147] sue in this, and other states of the *Union. In many of the states, if not in all, it has been held sufficient to declare in the corporate name, without setting forth the act itself. Bank of United States v. Haskins, 1 Johns. Cases, 132.

In the case of the Bank of Michigan v. Williams, 5 Wend. 482, the court say ; “ a corporation, when it sues, need not set forth its title in the declaration, but it must show, by evidence, upon the trial, that it is a body politic, having legal authority to make the contract which it seeks to enforce.” So in the case of Jackson v. Plumbe, 8 Johns. 295, and in Dutchess Cotton Manufactory v. Davis, 14 Johns. 378, it is held that, where a corporation sues, they need not set forth, by averment in the declaration, how they were incorporated : but, upon the general issue pleaded, they must prove that they are a corporation.

To this point, the authorities are numerous.

The next question upon the pleadings, is, whether foreign hanks, suing in this state, can avail themselves of the act regulating proceedings where hanks and bankers are parties, so as to maintain a joint action against a drawer and indorser.

The.mode of prosecuting suits within the courts of this state, is under the control of the legislature. What rules they may see proper to make, must be guides, as well to foreign as to domestic corporations. One object of the statute was, to prevent multiplicity of suits, and the consequent oppressive costs of litigation. The case of the Bank of the United States v. Fullerton, 1 Peter, 614, is in point, and sustains this declaration. The reason of the law is alike applicable to foreign and domestic banks, and there is no occasion to restrain the natural import of its words.

Nor has the objection, as to the want of an averment, that the plaintiff is a bank, any greater force; for, while it should, undoubtedly, appear that the plaintiff comes within the qualification of the statute, in order to take advantage of its provisions, we are of opinion that it is sufficiently apparent, upon the face of this declaration, that the suit is brought by a bank, *A formal averment of that fact, in [148 the body of the declaration, would, therefore, be superfluous.

Another error assigned is, that proof was not made of the plaintiff below being incorporated.

The absence of this proof does not distinctly appear upon the bill .of exceptions, and it is only made out by inference. But it is well remembered, by the judges who sat upon the trial, that no such question was then made. The case was tried, and conducted throughout, as if that fact were admitted. If the party intended to avail himself of any such defect of proof, the objection should have been made at the time, or, at least, some notice given of it in the bill of exceptions. In the case of Perkins v. Dibble, 10 Ohio, 433, it was held, that an objection, not taken on the circuit, will not be considered in bank. The court there say, “ the objection would have been fatal, if taken at the time of trial on the circuit. If, however, it had been made, no doubt the defect of testimony would have been supplied,” Ibid. 437. In almost every trial, there are facts necessary to make out the case, which, by the parties, are treated as admitted, without requiring formal proof. To make the absence of express proof, in such cases; ground for error, after verdict and judgment, would be unfair, and attended with great inconvenience. The rule adopted in the case of Perkins Dibble, is salutary, and we feel no disposition to depart from it.

But, it is claimed for the defendant in error, upon the authority of a circuit decision, reported in 5 Ohio, 283, that a plea of the genera] issue admits the corporate capacity of the plaintiff, and that where a defendant intends to object the want of capacity to sue, he should have pleaded that matter specially, in abatement or in bar. As the question is one of importance in pleading and practice, it may be well to consider it. The case cited, is that of the Methodist Episcopal Church v. Wood, 5 Ohio, 283, and the authorities relied upon for the doctrine there laid down, are 1 Peter, 386, 450 ; 4 Peter, 591; 1 Bos. and Pul. 40 ; 1 Mass. 482, 484 ; 1 Saun. 34(), n. 2.

*The case of the Methodist Episcopal Church v. Wood, was that of a corporation created by a law of this state, of which the court were bound to take judicial notice. The question was not whether they had a charter, and were acting in a corporate capacity, but whether they had, in all things, complied with this act of incorporation. In the case of Conard v. The Atlantic Insurance Company, 1 Peter, 450, which was an action of trespass, the court held that no evidence of corporate capacity was required on a plea to the merits, upon the ground that the plea necessarily admitted that capacity, and that the objection could only be made on a plea in abatement. But, it is worthy of remark, that no such position seems to have been taken by counsel, and no authority to sustain the doctrine is cited; and the court proceed to say that, independent of that ground, the agreement upon’ which the trial was had, as well as the admission of the bond, “ was certainly prima facie evidence of an admission of the corporate capacity of the plaintiff, and sufficient to throw the burden of proof upon the other side.” The case of the Society for the propagation of the Gospel v. Town of Pawlet and Ozias Clarke, 4 Peter, 480, 510, which was an action of ejectment, is similar to the preceding, save that the point was argued ; for Justice Story remarks, that the evidence of corporate capacity is sufficient; and the certificate to the Circuit Court was, that the plaintiffs have shown that they have a right to sue. The case of The Proprietors of Kennebec v. Call, 1 Mass. 482, holds that a private act must be proved, and that the court would not take judicial notice of it. This was upon the general issue, in an action of trespass, and was not applicable to the case under consideration. For the plea of non assumpsit is much broader than that of not guilty in trespass, where many defences are inadmissible under the general issue. And, in the subsequent case of Portsmouth Livery Company v. Watson, 10 Mass. 92, it was hold, that foreign eorporations are to be proved ; and satisfactory proof will be required as of any .other fact, material in issue to the country ; though of the state corporations, the court are judicially informed.

*The case of Mayor of Stafford v. Bolton, 1 Bos. and Pul. 40, [150 Was an action on the case for tolls, in which the plea was “ not guilty,” and proof of corporate existence was made ; but there being a misnomer, it was held that advantage could be taken of it only by plea in abatement. The principle there decided, and that contained in the note to 2 Saund. 240, is nothing more than that a misnomer of a corporate plaintiff, like that of a natural person, is not to be taken advantage of on plea to the merits.

We should feel at liberty, therefore, notwithstanding what is said in the case of The Methodist Episcopal Church v. Wood, to adopt, upon this question, such rule as would best accord with general principles, and the analogies of the law. Now, what does the plea of non assumpsit admit? Nothing. It denies the whole cause of action, and right to recover. It neither admits the making of the contract, nor the capacity of either party to contract. It denies the contract, in toto. It puts the- plaintiff upon proof of a right to recover, and he must prove a full right. What the plaintiff is bound to prove, the defendant may disprove. He may show that no cause of action ever existed, by any proof tending to establish that fact. Corporations are creatures of the statute. They are artificial beings, having no natural powers, nor any existence independent of the charter creating them. So that one mode of maintaining the issue of non assumpsit, where the plaintiff claims to be a body corporate, is to show that no such artificial being ever existed ; for, a nonentity can not contract, nor be contracted with. So far, then, as reason and principle go, it would seem that the plea of non assumpsit does put in issue the capacity to sue, where the plaintiff claims to be a body corporate. And that, by no rule of logic can it be said that a plea, which is a denial in toto, admits, either in whole or in part, what'it expressly denies.

This doctrine, moreover, is well established by authority, as in the cases of The Dutchess Cotton Manufactory v. Davis, 14 Johns. 238 ; Portsmouth Livery Company v. Watson, 10 Mass. 92 ; Bank of Michigan v. Williams, 5 Wendell, *432 ; Hargrave v. The Bank of Illi- [151 nois, Breese, 84; Bank of Auburn v. Weed, 19 Johns. 300 ; Farmer’s and Mechanics’ Bank v. Rayner, 2 Hall, 195 ; Jackson v. Plumbe, 8 Johns. 295 ; where the earliest authorities are cited, viz: Hob. 21 ; 2 Ld. Raymond, 1535 ; 1 Kyd on Corporations, 292, 293 ; Peters v. Mills, Bull. N. P. 107.

Upon the whole, we think the true rule is that settled in Massachusetts and New York, and recognized in other states, that in suits brought by corporations of our own state the court will take judicial notice of their capacity to sue, while those claiming to be foreign corporations must prove their corporate character under the general issue.

As an additional reason for this distinction, the courts of this state are not presumed to be acquainted with foreign charters. They have not iheans of information as to their nature and extent; and this remark is equally applicable to the people of the state. While, on the other hand, the corporators have full knowledge of, and the means to establish, their capacity and powers. The issue for them is affirmative, and when they would come into court the onus probandi should be theirs.

A third error assigned is, that the finding includes damages at six per cent., and seven dollars, the costs of protests.

The costs of protest were properly allowed if the proof was sufficient. The bills were duly protested. The notarial certificate was sufficient evidence of the protest, and the fact of protest was, to say the least, some evidence that legal costs were made in protesting for non acceptance, and for non payment, because these acts are never performed gratuitously. We have no doubt but that we should have refused a new trial, if a jury had allowed such charges on even so slight evidence as this. When substantial justice has been done by a verdict, a court should not disturb it, although found upon slight evidence And when, by consent of parties, a court, is substituted for a jury, and, in like manner, finds the facts of the case, a revisory court ought to treat their finding with equal' respect. The error, if there be any, is in a matter of fact and not of law.

*The same may be said of the objection, that the computation is too large, by two dollars ; that it should have been $3,355.50, instead of $3,357.50. Were this true, it would be a small matter. But the bill of exceptions does not very clearly show that the error exists. The presumption arising from the fact that the computation was made subject to the inspection of the counsel of both parties, is that the judgment was taken for the right sum, and the difference is too trifling to justify the four members of this court in going into a minute calculation, with a view to fix the amount to a fraction.

The last and remaining point is as to the right of the defendant to protest damages.

Upon this we are not embarrassed with difficulty. The form of pleading is permitted by the statute, and is sufficient, by virtue of its provisions. The proof, to entitle the party to such damages in suits of this description, is the same as is required in those cases where the statutes have not dispensed with specific allegations in pleadings. The law makes the common count sufficient for the bank. Its policy would be defeated, were we to hold it sufficient for one purpose only. True it is, that the damages now given on protested-bills are those prescribed by the act of 1831; yet this act only limits to six per centum damages, which were allowed at a higher rate under the act of 1810, and which were recoverable in this form when the act of 1824 took effect.

Judgment affirmed.


author: Read, Judge.

text:
    *John Baggs v. David Loudenback.
    In an action upon a renewed note, into which illegal interest has been incorporated, the consideration may be inquired into, and the illegal interest deducted.
    In every case the consideration may be inquired into for the purpose of detecting illegal interest, and disallowing it, unless there has been a voluntary and full liquidation and payment of interest between the parties.
    This is a Writ of Error to the court of Common Pleas of Champaign county.
    The action below was. assumpsit on a note of hand, dated the 34th of January, 3841, for $89, made by Baggs, payable to Loudenback, or order, one day after date. The defendant below plead non assumpsit, and gave notice that he would offer in evidence the following facts :
    “ That on or about the 12th day of March, 1836, this defendant gave to one David Markley his note for $104, payable nine months after date ; which note was afterwards sold by said Markley to the. plaintiff before said note became due ; and a short time after it became- due defendant paid plaintiff twenty dollars, to be credited thereon, to wit; on or about the last of January, 1837; also, in or about the month of June, (the day not recollected,) 1837, he paid the plaintiff forty dollars more, as payment of part and parcel of the amount then due of the original sum; and at that time took up the old note and gave a new one for the amount then due, payable about one year after the first mentioned note became due, and including the interest on said residue, at the rate of 75 cents per month; which interest was embodied in the said note; and when the second note became due, this defendant took it up, and gave another, or third note, for the amount of the second note, and the amount of interest on the third note, at the rate of one dollar per month; which third note was payable one year after the date thereof, and which amount of interest was embraced in said third note, from the time the third note became 154] *due until the 12th of October, 1839. This defendant allowed the plaintiff interest on the amount then due, at the rate of one dollar per month; and at the last mentioned date, the defendant gave the plaintiff a note, payable three months after date, calling for seventy-seven dollars, which was for the amount then due, and interest, at the rate aforesaid, and also interest on the said last note, at the rate of one dollar per month; and afterward, defendant gave plaintiff the note on which the present suit is brought, the consideration of which is the note calling for seventy-seven dollars, and interest thereon, at the rate of one dollar per month, until the note upon which this suit is brought became due.
    “ The only just and legal amount due from the defendant to the plaintiff is the amount of $104, for which the first note was given, subject to the payments and credits aforesaid, with interest, at the -rate of six per cent, per annum, thereon, on the principal, after it became due, until the first payment was made as aforesaid, and interest on the residue until the second payment was made, and the remaining residue and interest thereon, up to the 17th of February, 1841, the date of plaintiff’s judgment — making,in all, about the sum of fifty-five dollars; which sum defendant is ready and willing to pay, together with all costs with which he ought to be taxed.”
    Upon the trial the following bill of exceptions was taken;
    “ The counsel for defendant asked the court to charge the jury that, as there had been frequent settlements, by taking up one note and giving another, between the parties, it was competent for the jury to go back to the original loan of money for which the first note was given, and to examine each of the settlements which had taken place between them in the case ; and if more than six per cent, interest had been computed, to disallow it, and reduce the plaintiff’s claim accordingly: except, however, so far as legal interest had been made principal by the agreement of the parties. This charge the court declined giving ; and the court charged the jury that the note, upon which the suit was brought, having been given on a settlement between the parties, was binding on them ; and that *the plaintiff had a right [155 to recover the amount of it, with six per cent, interest, from the time it fell due.”
    Under this charge the ver dict and judgment were in favor of the plaintiff, for the full amount; and thereupon this writ of error is brought.
    D. S. Bell, for plain tiff in error.
    The transcript presents to the court but one point of law; and that is this: On loans of money for short periods, and taking up one note and giving another, as often as such loans become due, paying the interest in advance, by including the same in the note, is the giving of each note such a payment on settlement between the parties, that the court will not look behind it to ascertain whether the interest so stipulated to be paid is unlawful or not? If such renewals are settlements, and such that the court will not go behind to afford relief against usurious contracts, then the plaintiff in error in this case has no relief; and persons loaning money at unlawful rates of interest would always have it in their power te evade the law, by making short loans and frequent renewals.
    John H. Young, for defendant in error.
    The questions made and argued by the counsel for defendant, Baggs, are understood to have been settled by the Supreme Court of Ohio, on the circuit. It is said that that court have refused to permit a person, who gives a note or bond for a 'certain sum of money, to show that a portion of the sum mentioned in the note or bond, as principal, was in fact, usurious interest. But it is said, in these and the like cases, the defendant has his remedy in chancery, provided the usury included in the note, etc., is so large as to amount to oppression, and to shock the moral sense, but not otherwise.
    In the ease at bar, there is no agreement to pay more than six per cent, interest on the amonnt of the note. If in this note was embraced any usury, or more than six- per cent, on *the original amount [156 loaned, it has become principal here by the contract of the parties. If there have been settlements between the parties, and now this note the result of the final settlement, there is nothing left for inquiry or interference, by' this court. If this note were for the payment of a specific amount, with thirty or fifty per cent., it would be clearly repugnant to the statute, and open for the action of the court. But when the contract, embracing every thing that might theretofore have been illegal, has been executed and settled between the parties, will a court of law go behind that contract to ascertain if it be not possible that the defendant has paid more than six per cent. ?
   Read, Judge.

The record presents but the single question, whether upon suit brought upon a renewed note, into which illegal interest has been incorporated, it is competent to look behind the note to ascertain the fact, and strike the illegal interest out. The court below held that the renewed note must be treated as payment, and conclusive between the parties.

The act fixing the rate of interest provides that all creditors shall be entitled to receive interest on all money, after the same shall become due, either on bond, bill, note, etc., at the rate of six per centum, per annum, and no more. Swan’s Stat. 465.

This is an act in restraint of avarice, and should be liberally construed. It is designed to prevent sharp and unconscionable men from taking advantage of misery or misfortune, to raise money out of straitened circumstances, sudden calamity or necessity. In all civilized communities it has been found necessary to enact laws to prevent extortion on the loan of money. In most countries, it works a forfeiture of the whole debt tainted with usury. In- our state, the law is more mild — not affecting the debt, but simply forbidding a recovery of the illegal interest. No forfeiture being worked by our statute, furnishes an additional reason why it should be liberally construed to effect the object intended.

*It would be an entire violation of all these principles, as well as the direct letter of the law, to permit the statute to be evaded by simply incorporating the illegal interest into the body of the renewed note, or written evidence of debt, and then determine that the consideration could not be inquired into for the purpose of detecting the illegal interest, and disallowing it. It is not to the form of the evidence of debt the law looks, but to the thing done; and the statute says the creditor shall recover interest at the rate of “ six per centum, per annum, and no more.” How, then, can it be said that the renewal of a note for the loan of money and the incorporation of illegal interest into such renewal will put the usury beyond inquiry or the reach of the statute ?

This statute embraces every form of indebtedness ; and the consideration, in every case, may be inquired into, and the illegal interest be disallowed; or, where it has been paid, may be treated as payment of the original debt, and be deducted therefrom, unless, in cases where there has been a complete settlement and liquidation between the parties, and voluntary payment of interest.

A majority of the court are clearly of the opinion that the court below erred.

Judgment reversed.