28 Vt. 93 | Vt. | 1855
The opinion of the court was delivered by
I. We think it is sufficiently settled in this state that, in a suit in favor of a corporation, upon the plea’of the general issue, the plaintiff is not required to adduce proof of the corporate existence; Boston Type & S. Foundry v. Spooner, 5 Vt. 93. Such defense should be "made by way of plea in abatement or in bar.
EC. The right of the secretary to bind the company by an assignment of its dues, without recourse, upon receiving the amount, does not seem very important. If it were, we should be inclined to regard it, as matter of course, in every officer entrusted with the collection of the debts of 'a company. But if the debt was or was not legally assigned so as to vest an equitable interest in the claim in M. Wires, and nothing more could be effected by any assignment, even under the corporate seal in pursuance of the vote of the company, in either case, it will not affect this suit unless the transaction operated to extinguish the debt. That is not a question in which the defendant Peck is concerned. It is between M-Wires and the company.
m. We think it did not extinguish the debt. The case finds that, upon the dissolution of the partnership of defendants, Mr. Peck promised to pay this debt; and we think we are not bound against the judgment of the court below, and the common mode of •transacting such affairs, and the ordinary presumptions arising therefrom, to infer that the promise was without consideration. It was at the time of the dissolution; and if it formed a part of the dissolution it was upon sufficient consideration. And it would be 'a strange presumption to suppose it did not form one of the steps in the dissolution.
IV. This being so, the defendant Wires is a mere surety as between the defendants; and it was no want of good faith in the defendant Wires to procure a brother to buy the claim, and if done bona
Judgment affirmed.