Wilmington & Manchester Rail Road v. Saunders, 48 N.C. 126, 3 Jones 126 (1855)

Dec. 1855 · Supreme Court of North Carolina

48 N.C. 126, 3 Jones 126

THE WILMINGTON AND MANCHESTER RAIL ROAD COMPANY vs. JOHN A. SAUNDERS et al. Executors OF DANIEL SAUNDERS.

The acceptance of a charter and the organization of a corporate body under such charter, may be proved by a witness who saw the alleged corporators in the use and exercise of the franchises and powers conferred by the Act of incorporation.

This was an action of assumpsit, tried, before his Honor, Judge Ellis, at the last term of New-JIanover Superior Court.

The plaintiffs declared on the following promissory notes :

“ “Wilmington, N. C., June 10, 1850. •

“ $500. One year after date I promise to pay to the Wilmington and Manchester Eail-Eoad Company, at the Wilmington Branch of the Bank of the State of North Carolina, Wilmington, five hundred dollars, being half of the balance of my subscription to the capital stock of the said company.” (Signed by the defendant’s, testator.)

Also on another note for the same sum, identical with the above, except that the credit was eighteen months instead of twelve. The Act of incorporation was put in, and a witness was called to prove that the plaintiffs were a corporation, regularly organised, and exercising the franchises and powers granted by this Act. This evidence was objected to by the defendants, who insisted that the fact could not be proved by parol declarations of the witness, but that the books of the company should be shown for the purpose of showing their organization, but it was admitted by the Court; for which the defendants excepted.

Yerdict and judgment for plaintiffs. Appeal by defendants.

Moore, for plaintiffs.

W. A. Wright, for defendants.

Nash, C, J.

The action is in assumpsit upon two promissory notes, payable on their face, to the plaintiffs, and expressed to be, one, for “ half of the balance of my subscription to the capital stock of the said company,” and the other for the other half, and expressed in the same terms. In the course of the trial below, a witness was called to show that the plaintiffs were a corporation, regularly organised, and exercising the franchises and powers granted by the Act of incorporation. The testimony was objected to by the defendant, but received by the Court. In this the Court committed no error. When it is shown, in such a case, that a charter has been granted, then, those in possession and actually exercising corporate rights, shall be considered as rightfully there, against wrong-doers, and all who treated or acted with them in their corporate character. The sovereign alone has a right to complain of the usurpation where there is one. Tar River Navigation Company v. Neil, 3 Hawks. Rep. 520 ;, Elizabeth City Academy v. Lindsey, 6 Ire. Rep. 476. The Act incorporating the plaintiffs, forms part of the case; the parol evidence to show that they wTe-re acting under it, and enjoying the franchises granted to them, was competent evidence against tho- defendant. lie had treated with them as a corporation, lie was a subscriber to the capital stock; had paid a: portion of the subscription, and gave the notes sued on for the balance. We can see no-reason why he should not pay them. There is no error in the-judgment below, and it is affirmed.

Per Curiam.

Judgment affirmed.