It is very clear, we think, that the judgment rendered against the sureties of the Rail Road Company, cannot be sustained.
The statute, [Aik. Dig. 2S0,] provides that a party against whom a judgment is rendered by a justice of the peace, may prosecute an appeal to the circuit court, upon giving bond with surety, and that if the judgment of the justice is affirmed, judgment shall be entered against the surety, as well as the principal, and execution issue against both or either.
The Rail Road Company having appeared and pleaded in the circuit court, may be considered as having waived the question of jurisdiction, and admitted that it was rightfully in court, but this waiver could only extend to those who were then parties in court. The right to render judgment against the sureties, though a consequence of the judgment-against the principal, is derived solely from the appeal bond, which when sent up by the justice, is by the statute made prima facie evidence of the facts stated in it, and that the persons whose names are signed to it, did in fact execute it as their bond. Upon this evidence the court acts summarily and renders judgment against them jointly, with the principal. But it is too clear for argument, that the court must have at least prima facie authority for rendering a judgment against persons who have no opportunity of making defence. The court must have at least the ex parte evidence afforded by the production of a bond; that they have consented that if a certain judgment is affirmed against their principal, it may be also rendered against them. But the appeal bond, which the court acted on, does not show that any judgment was ever rendered against this corporation; or, if one was ever rendered against any one, what was its amount, or to what court the appeal was taken. As an appeal bond therefore, this paper was an absolute nullity, and could not authorize the rendition of a judgment against them. The judgment must be for this cause, reversed and remanded. It is, however, pro*662per, that the other important questions made in the cause, should be considered as a guide for the future decision of the cause.
The counsel for the plaintiff in error, contended that under the charter, as originally granted, the company had not power to draw bills of exchange, and although he conceded that the power was given by the amendment to the charter, yet he insisted that it must be shown that the corporation had accepted it.
Waiving the enquiry whether a legislative grant enlarging the power of the corporation, and increasing its facilities for the transaction of business, must not be presumed to be made at the instance of the corporation, we think the exercise of the power by the corporation, is conclusive to show that the grant was accepted. The exercise of any corporate function absolutely granted to the corporation by law is when done, referred to the charter of incorporation for its support and sanction, and we are unable to perceive any difference in a grant of power in an original or amended charter. In either case, as the exercise of the power is justified by the charter authorising the act to be done, the corporation is estopped from denying its power to do the act.
In the United States v. Dandridge, [12 Wheaton, 64,] the court say, “ in relation to the question of the acceptance of a particular charter by an existing corporation, or by corporators already in the exercise of corporate functions, the acts of the corporate officers are admissible evidence from which the fact of acceptance may be inferred. It is not indispensable to show a written instrument or note of acceptance on the corporation books. It may be inferred from other facts which demonstrate that it must have been accepted,” [See also the King v. Amory, 1 Term, 588.]
The case of Randolph v. Parish, [9 Porter, 76,] is conclusive, to shew that an instrument circumstanced like the present, may be declared on as a bill of exchange, although after acceptance, it might have been treated as a promissory note. The short statement which in appeals from justices of the peace, is received in lieu of a declaration, alleges that the bill was presented for acceptance to the drawee, who refused to accept or pay the same. The bill was payable on demand, and there was therefore no necessity or propriety in a presentment for acceptance. But as technical accuracy has never been required in the pleadings in such cases as the present, the averment may be considered as a *663refusal to pay the bill on presentment. It was however necessary to prove the fact of presentment, and refusal to pay the bill, and notice to the drawer, or as an excuse for not doing so, that there were no funds in the hands of the drawee, which as we understand the bill of exceptions, the court ruled to be unnecessary.
The objection that the bill ’ appears on its face, to have been drawn by Williams, individually, and that extrinsic proof was inadmissible to prove that it was drawn by him, as the agent of the company, and was so received by the holder, is untenable. There are clear indications on the bill itself that it was not drawn by Williams, in his private character, but as president of the company, and it was certainly competent for the plaintiff to prove that fact, and that he was authorised by the company thus to charge it. Mechanics Bank of Alexandria v. Bank of Washington, [5 Wheaton, 326;] and Lazarus v. Shearer, [2 Ala. 718,] where this precise point was thus ruled in a case where the indications that the bill was accepted for another, were not near so strong as is this case.
We can perceive no objection whatever to the consolidation of these suits, as it regards the sureties, the same being assented to by the parties in court. It did not in the slightest degree affect their contract, the same persons being sureties in all the cases. The effect of the consolidation was, that if a judgment was obtained against their principal a judgment would be enterred against them for the entire amount for which they were responsible in one judgment, instead of several judgments for the several amounts, which added together, comprise the sum for which they were bound. The whole effect is, without in the slightest degree varying or increasing their responsibility, to diminish the amount of cost, for which they would otherwise be liable.
Let the judgment be reversed, and the cause remanded.