(35 Kan. 193) MCCUNE MIN. Co. v. ADAMS. Filed April 9, 1886. 1. CORPORATION-ACTION-EVIDENCE-CHARTER. A copy of the charter of a corporation created under the laws of this state, duly certified by the secretary of state, under the seal of the state, is evidence of the creation of such corporation. 2. SAME-STOCKHOLDER-ACTION FOR SUBSCRIPTION. In an action by a mining company against a subscriber of stock for installments upon his subscription for stock of the corporation, such subscriber or stockholder cannot, in à collateral way, question the existence of the corporation or the regularity of its organization. Error from Crawford county. Cowley & Wiswell, for plaintiff in error. HORTON, C. J. This was an action commenced by the McCune Mining Company against W. B. Adams, before a justice of the peace of Crawford county, to recover from the defendant the sum of $95, alleged to be due the plaintiff from the defendant upon his subscription to the capital stock of that company. Judgment was given before the justice against the plaintiff and in favor of the defendant, and an appeal taken to the district court. Upon the trial, after the plaintiff had produced all its testimony, the defendant demurred thereto, which demurrer was sustained by the court. Of this complaint is made. It appears from the briefs before us that the district court decided that no testimony was introduced upon the trial showing, or tending to show, that the company had any legal existence as a corporation. The specific objection to the existence of the corporation is that it was not shown that the charter was subscribed by three persons who were citizens of this state. The plaintiff introduced in evidence a copy of its charter, duly certified by the secretary of state, and supplemented this testimony with proof of the election and qualification of the directors of the company, the adoption of by-laws by the company, and other evidence tending to show that the subscribers of the charter took all the steps supposed by them necessary to complete the incorporation. Stock was subscribed, assessments upon the stock were made, and notices of such assessments given to the stockholders. The stock-book of the company, offered in evidence, showed that the defendant, on January 18, 1884, subscribed for one share of the capital stock of the company, and attached his signature thereto. Notices were properly directed and mailed to him of the assessments upon the stock subscribed by him. The statute provides that "a copy of the charter, or of the record thereof, duly certified by the secretary of state, under the great seal of the state, shall be evidence of the creation of the corporation.' Section 9, c. 23, Comp. Laws 1879. Therefore it was unnecessary to offer any evidence showing that the subscribers to the charter were. citizens of the state. In addition to this, the defendant is estopped to deny the existence of the corporation at the time he contracted with it as such. A party cannot be permitted, in a collateral way, to question the regularity of the organization of a corporation. Pape v. Bank, 20 Kan. 440; Rice v. Railroad Co., 21 Ill. 93; Brookville, etc., Co. v. McCarty, 8 Ind. 392; Baker v. Neff, 73 Ind. 68. Thompson, in his excellent work on the Liability of Stockholders, says: "If a person, when sued by a corporation, pleads nul tiel corporation, the production of the certificate of incorporation which has been filed, and proof of user, and possibly proof of user alone, will be sufficient evidence prima facie of the fact that it is a corporate body in fact as well as in name. The rule extends further: A person who has contracted with a body in writing, by a corporate name, when sued upon the instrument in the same name is estopped to deny that the payee or obligee is such a corporation." Section 407. The bill of particulars so clearly states a cause of action that it is unnecessary to comment thereon. It is contended that some of the evidence admitted by the court was incompetent. The defendant has filed no cross-petition in error, and the question as to the competency of evidence admitted by the trial court is not relevant. We have examined the other questions presented, and, upon a careful consideration of the same, perceive no good reason for the action of the court in sustaining the demurrer to the evidence. Bequillard v. Bartlett, 19 Kan. 382; Merket v. Smith, 33 Kan. 66; S. C. 5 Pac. Rep. 394; Christie v. Barnes, 33 Kan. 317; S. C. 6 Pac. Rep. 599. The judgment of the court below will be reversed, and the cause remanded for a new trial, and w th the direction that the court overrule the demurrer to the evidence. (All the justices concurring.) (35 Kan. 146) MADDEN v. STATE. Filed April 9, 1886. 1. BAIL AND RECOGNIZANCE-ACTION-DENIAL OF EXECUTION. In an action upon a forfeited recognizance the defendant, by a verified answer, averred that he signed the instrument when it was yet incomplete, and what is commonly known as a "blank recognizance;" the blank spaces left therein for the name of the county, the offense charged, the amount in which the prisoner was held, and the court before which he was required to appear, being left unfilled, and that he attached his name to it upon the condition that another person should join him in signing the recognizance, and, when so signed, the blanks should be filled out by the co-surety, and the instrument delivered, and that, unless it was so executed, he was not to become liable thereon. He also alleged that the recognizance was not signed or completed by the other party, and therefore that he was not liable thereon.. Held, that this answer was in substance and effect a denial that the recognizance sued on had been executed by him, and a verified reply by the plaintiff denying the allegations of the answer was unnecessary. 2. SAME-LIABILITY OF SURETY. A surety is liable on a forfeited recognizance, although it was signed by him when it was incomplete, where the blanks are afterwards filled up and the instrument completed and delivered in his presence and under his direction. 3. SAME-CONDITIONAL EXECUTION-EVIDENCE. Where a surety claims and testifies that he signed the recognizance only upon the condition that another should join him as co-surety, proof that he was led to sign it by other considerations, such as indemnity furnished or property turned over to him by the prisoner, is not incompetent. 4. SAME-EXCUSING PRINCIPAL-PLEADING. Proof cannot be offered by the surety that the default of the principal was excused, unless the acts relied on to excuse the default, and which rendered the performance of the condition of the recognizance impossible, have been pleaded by such surety. Error from Ellis county. David Rathbone, for plaintiff in error. Eugene L. Rooks and D. C. Nellis, for defendant in error. JOHNSTON, J. An information charging Orson Buno with the offense of grand larceny was filed in the district court of Ellis county, and he was required to enter into a recognizance in the sum of $1,000 for his appearance at the following term of that court. He executed a recognizance with Edward F. Madden as surety, which was accepted, and he was released from custody. Failing to appear at the next term, the court adjudged the recognizance to be forfeited, and thereupon the county attorney brought this action against the surety, Edward F. Madden. The cause was tried with a jury, and verdict and judgment were given in favor of the state for the amount named in the recognizance. Objections are made that the verdict and findings of the jury are not sustained by sufficient evidence, and also to the rulings of the court on the admission of testimony. It is first contended that certain allegations in Madden's answer should have been taken as admitted because the reply of the state to such answer was not properly verified. The petition contained the requisite allegations for a recovery upon a forfeited recognizance. In his answer, Madden admitted signing the recognizance, but alleged that it was then incomplete, and what is commonly known as a "blank recognizance.". The blank spaces left therein for the name of the county, the offense charged, the amount in which he was held, and the court before which he was required to appear, were at that time unfilled; and that he signed it upon the condition that John Duncan or his wife should' join him in the execution of the recognizance, and, when so executed, that Duncan should fill up the blanks in the recognizance, and that he was not to become liable thereon unless it was so signed and executed. He alleges that the recognizance was not signed by Duncan. or his wife, nor were the blanks filled up by Duncan, and therefore that he never executed or delivered the bond upon which he was sued. In reply, the county attorney filed a general denial, signed by him self, and verified by Charles Miller, who swears that he has read the reply, and that the allegations thereof are true. It is claimed that this is not in conformity with the requirement of the Code, as it is not stated therein that the affiant Miller had knowledge of the facts sworn to by him; nor does it state that he is the agent or attorney of the plaintiff, nor any other fact conferring authority upon him to verify the reply. It is unnecessary to consider or determine whether the verification as made was sufficient, for the reason that a verified reply was wholly unnecessary. The new matter alleged in the defendant's answer did not fall within the provisions of section 108 of the Code. It is in substance and effect a denial that the bond sued on had been executed by him, and the plaintiff was not seeking a recovery upon any other. The defendant did not ask for any affirmative relief upon the instrument which he claims to have signed, and his averments respecting it only put in issue the execution of the recognizance upon which the action was brought. Upon the sufficiency of the testimony there can be little question. It is true that Madden testified that he was not to become liable on the recognizance unless the blanks therein were filled out by John Duncan, and the recognizance signed by either Duncan or his wife. But on the other side there is the evidence given by the sheriff, strongly corroborated by the testimony of other witnesses, that no such conditions were imposed or mentioned. They state that the recognizance was signed, but not completed, at the court-house, in the presence of the sheriff and prisoner, from which place they soon afterwards went to the store of a Mr. Gates, who transferred to Madden a considerable sum of money belonging to the prisoner to indemnify him on the liability which he assumed in signing the recognizance; and that, after he had been so indemnified, he directed the sheriff to fill up the blanks and complete the execution of the recognizance. The justification was then written thereon, and signed by Madden, and when the recognizance was thus completed the sheriff accepted it and released the prisoner. This testimony was sufficient to warrant the jury in finding that the recognizance was executed by the surety prior to its delivery to the sheriff and the release of the prisoner, and sufficient to authorize a recovery thereon. Objection is next made to the testimony that indemnity was given by the prisoner to the defendant for becoming his surety. Ordinarily, testimony that indemnity was given to the surety is immaterial in an action against him upon a forfeited recognizance. In this case, however, it was not improper. In his testimony Madden stated that he signed the recognizance only upon the condition that Duncan or his wife should join him as a co-surety. The testimony objected to tended to contradict this statement, and to show that no such conditions were mentioned; but, rather, that the inducement which led to the signing of the recognizance was the transfer and delivery by the prisoner to him of 41 head of cattle, county scrip to the value of $175, and $500 in cash. For this purpose we think the testimony was competent. It is finally urged that the court erred in not allowing an answer to the following question: "Now, what, if you know, kept Buno away from here?" It is said that the answer might have disclosed the fact that he had a sufficient legal excuse for his absence; but, as the issues were made up, the testimony was not competent. If the performance of the condition of the recognizance was rendered impossible by the act of God, such as sickness or death, or by the act of the state, it would have afforded a complete defense. Before this defense can be availed of, however, it must be pleaded. The answer alleged no such defense, nor was there any application to set it up by an amendment. In the absence of any allegation that would excuse the default, the proof offered was not admissible. We see no error in the record, and will therefore affirm the judg ment. (All the justices concurring.) (35 Kan. 171) ROLL and others, Partners, etc., v. MURRAY. Filed April 9, 1886. JUSTICE OF THE PEACE-APPEAL-ATTACHMENT-ORDER DISCHARGING. In an action before a justice of the peace an attachment was discharged. and afterwards a judgment was rendered in favor of the plaintiff and against the defendant upon the merits, and afterwards the plaintiff filed an appealbond attempting to take an appeal both from the judgment of the justice upon the merits and from the order of the justice discharging the attachment, and the appeal-bond was sufficient for both purposes, if an appeal from an order of a justice of the peace discharging an attachment is allowable under the statutes. In the district court that portion of the appeal which had for its object the giving to the district court power to review and retry the attachment proceedings instituted before the justice of the peace was dismissed. Held not error; that an order of a justice of the peace discharging an attachment is not appealable. Error from Jefferson county. Jackson & Royse, for plaintiffs in error. Keeler & Gephart and Mills & Wells, for defendant in error. VALENTINE, J. This was an action brought by Henry E. Roll, Norton Thayer, Thomas R. Williams, and J. B. Welsh, partners as Roll, Thayer, Williams & Co., before a justice of the peace of Jefferson county, to recover $265.89 from J. H. Murray. At the time of the commencement of the action an order of attachment was obtained, which was afterwards levied upon certain property of the defendant. Afterwards, and upon the motion of the defendant, the attachment was dissolved. The case then came on for hearing upon its merits, and judgment was rendered in favor of the plaintiffs and against the defendant for $126.55. Afterwards, and within proper time, the plaintiffs filed an appeal-bond, attempting to take an ap |