Opinion of the Court by
A number of errors have been assigned in this cause; the court, however, deem it unnecessary to decide but one of them. The Bank of Illinois brought an action of assumpsit in the court below, on a bill of exchange, against Jones, as an indorser. Jones pleaded non assumpsit. On the trial, no evidence was given that the bank was a corporation. The defendant below moved the court to instruct the jury, that the plaintiffs could not recover unless the incorporation was proved, which instruction the court refused to give. It was conceded on the argument, that if the plaintiffs below have been incorporated, that the act of incorporation is a private act. The court are of opinion that the rule is well settled, that private incorporations must prove their corporate character upon the plea of non assumpsit. See 8 Johnson’s Rep. 378, and the cases there cited.
The refusal of the court below to give the instructions asked for is error. The judgment must be reversed and the cause remanded to the circuit court of Gallatin county for further proceedings. As the court deem another trial necessary upon this point, they think it unnecessary to decide the other questions arising in the case. They however suggest, for the consideration of the counsel on both sides, whether a protest is necessary in this case. And whether, in case the striking out the name of one of the indorsers, would be a bar to the action, if such fact should not be pleaded, Puis darrein continuance.
Judgment reversed.