Northwestern Bank ex rel. Leach v. Machir

| W. Va. | Aug 20, 1881

PattoN, Judge,

announced the opinion of the Court:

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:

“$1,160.22. On or before the 14th day of March A. D. 1867 we or either of us promise and bind ourselves our heirs and legal representatives to pay to the Northwestern Bank of Virginia, eleven hundred and sixty dollars twenty two cents for value received with legal interest thereon from this date, as witness our hands and seals this 14th day of March 1864.

“ Joseph S. Machie, [Seal.]

“ William H. Machie, [Seal.]

“ J. P. R. B. Smith, [Seal.]”

This bond was subject to credits endorsed thereon of $369.05 paid March 18, 1867, $450.00 paid May 10, 1870, and $200.00 paid June 26, 1872. The defendants pleaded payment and usury, in which pleas the plaintiff joined. The only evidence upon the trial of the case offered by either side was the bond introduced by the plaintiff with the credits endorsed thereon. The defendants demurred to the evidence; and thejnry found a verdict for the plaintiff for the sum of $929.06 subject to the opinion of the court upon the demurrer to the evidence. On the 16th day of April, 1880, the court rendered judgment for the defendants.

From this judgment the plaintiff obtained a writ of error and supersedeas.

There was no appearance for the defendant in error in- this court; and I am left to conjecture as to the grounds of the demurrer to the evidence deemed sufficient by the court below to justify a judgment for the defendants, and to the suggestion of the counsel for the plaintiff in error, that the ground assigned by the lower court was, that the plaintiff could not recover without showing its corporate existence. If this was relied upon by the demurrant, and I can see no other which could be suggested, it is simply necessary to say, that the incorporation of the Northwestern Bank of Virginia was by a public act of the Legislature of Virginia, of which the courts will take judicial notice. It was so expressly held by the Supreme Court of Appeals of Virginia in the case of Hays v. The Northwestern Bank of Virginia reported in 9 Gratt. 127" court="Va." date_filed="1852-08-02" href="https://app.midpage.ai/document/hays-v-northwestern-bank-7668193?utm_source=webapp" opinion_id="7668193">9 Gratt. 127 as to this identical incorporation. This corporation existing under the laws of the State of Virginia prior to the formation of the State of West Virginia, was continued in existence, by § 8 art. XI of the Constitution of this State of 1863, also Constitution of 1872 art. VIII § 36.

I am of opinion to reverse the judgment of the court below and enter judgment in this Court for the plaintiff in error upon the verdict of the jury for the amount found by them and for the costs in the lower court and in this court.

Judges Haymond and GreeN CONCURRED.'

JudgmeNt Reversed.