Tbe plaintiff in error was convicted of burning certain threshing machines, with the intent to injure the insurers, The German Farmer’s Fire Insurance Company.
A question is presented involving the legal existence of the insurance company for corporate purposes, which was made one of the main points in controversy on the argn
The insurance law, under which the company acted, requires certain preliminary steps, and the preparation of articles, called in the law a charter, to be filed with the secretary of state. This charter is to be approved by the attorney general (if found in proper form and properly executed), and the attorney general is to certify such approval to the secretary of state, who is thereupon to appoint three persons, who are to certify, under oath, the payment of stock, or the possession of capital and assets required by law. The statute then proceeds in the following terms: “Copies of such certificate shall be filed in the office of the secretary of state, whose duty it shall then he to furnish the corporation with a certified copy of the charter and certificates aforesaid, which, upon being filed by them in the county clerk’s office of the county in which such company is located, shall be their authority to commence business and issue policies, and the same may be used in evidence for or against such corporation.” — Bess. L., 1859, p. 1083, § 9.
The objection here seems to be, that no proof was given that the copy of certificates and charter furnished by the secretary of state, had been filed in the clerk’s office.
The insurance shown, wras admitted -to be such as could be -lawfully made, if the company was in condition to act under the statute. The inquiry is, therefore, narrowed down to the question, whether a policy made before filing such papers with the county clerk, is void.
There being, then, a corporation capable of contracting, on the performance of certain things to be done after the corporate existence is perfect, the question, whether it is a body corporate, does not arise; and we are only to see whether a failure to perform the conditions referred to by a corporation in being, can be set up by private persons to avoid corporate contracts.
We find no support for any such doctrine. The statute has not declared such contracts void, and the rule seems well settled, that they are, at most, but violations of duty to the state, which the state can punish by proceedings to forfeit the charter, or enforce penalties for the misdemeanor. The validity of corporate action, as between the parties, was discussed in Swartwout v. Mich. Air Line R. R. Co., 24 Mich., 389, and it is not necessary to consider the subject at length. If there was a contract in existence between the owner of the property burned and the insurance company, which was valid between the parties, then the company would be injured by the burning, and the accused would be liable if he committed the act, whether he, himself, had ever dealt with the corporation, or not. It was held in Cahill v. Kalamazoo Mutual Ins. Co., 2 Doug. R., 124, that a party dealing with a corporation is estopped from denying its legal existence; and had the filing of papers in the county clerk’s office been prelim-
Objection was also made to parol proof of the authority of agents, and of the official character of the corporation officers. The latter question was decided in Cahill v. Kalamazoo Mutual Ins. Co., before cited, and in Druse v. Wheeler, 22 Mich. R., 439. Persons in the actual and unobstructed exercise of office, must be held to be legal officers, except in proceedings where their official character is the issue to be tried as against themselves. As intimated in the latter case, the title to office can never be tried collaterally. The power of a corporation to appoint agents by parol, was recognized, and asserted, in City of Detroit v. Jackson, 1 Doug. R., 106, as beyond controversy.
The prosecuting attorney, on the trial, having accepted the jury as first made up, one of them was challenged peremptorily by the defendant, and another was,drawn in his
We also think there was no error in allowing a witness for the prosecution, after the case of the defendant was closed, to answer a question bearing upon the value'of the property insured. The record does not show that it may not have been 'directly in rebuttal of evidence in defense, and if not, there is nothing to enable us to see that it was beyond the legitimate discretion of the circuit judge. The record does not fully disclose what defendant’s proofs tended to show.
Several assignments of error are based upon rulings permitting questions to be answered, which were excepted to, but the answers to which are not given. The-law can never infer that a party has been injured in matters of testimony, by any thing but the admission of improper evidence, or the exclusion of his own- proofs. It can never be presumed that a witness has answered a question in any particular way, when no' answer is returnéd in the record. The party excepting, man show what -the answer was, and if he does not see fit to introduce'it- into the bill of exceptions, thére can be no presumption that he was prejudiced.
A' similar • remark will apply to an objection made to allowing one of the witnesses, on cross-examination, to answer whether he had not taken, and kept, a certain telegram. The case does not show what 'it- was, or how it had been introduced into the cause; and it is impossible, without further statements, to see whether it had any bearing or not, or how the evidence affected the controversy.
It is also objected, that the charge of the court permit
We find no error in the record, and the judgment must be affirmed.