The opinion of the Court was delivered by
Williams, Ch. J.It is not considered in this stale that a corporation plaintiff is obliged to produce their charter in evidence on trial of the general issue. The defendant may deny the existence of a corporation by a special plea, either in abatement, or bar. The plea in bar in this case was traversed, and it was necessary for the plaintiffs to prove their existence as a corporation. The plea of the general issue admitted nothing which should be proved under the other plea. The question is, whether the evidence was sufficient for that purpose, and it is sufficient to say that the question was settled in the case of Searsburgh Turnpike Co. v. Cutler, 6 Vt. R. 315.
The establishment of corporations, or the authority to individuals to act as such, and the powers and privileges incident thereto, are granted by act of the legislature. The grants are usually prospective, and the association to be thereafter formed. To prove the grant, it is generally necessary to produce the charter or act of the legislature, or a copy thereof. But this is dispensed with in some cases. The existence is some times presumed from the acts of the parties, as the party is not at liberty to deny the existence of a corporation when he has dealt with them as such, as the latter act presupposes their existence. The acceptance and organization are matters of fact which may be proved like other facts. They are not required to keep *307any records, and although their proceedings may be recorded by their officers, yet such records are not the only proof of their proceedings. The acceptance and organization are to be inferred from their acts, and from their-exercising the powers and privileges given them by their charter.
It is urged that the act of incorporation, which declares that they shall take no benefit of the act, but that the same shall be wholly void, unless the bank shall commence, and be in operation within one year from the passing of the act, required of the plaintiffs to prove that the bank went into operation within one year. But this fact was to be proved in the same manner as the -acceptance of any charter. If, in point of fact, they were doing business as a bank under the charter and were exercising corporate powers, it was, at!east,prima facie evidence, that the requirements of this section had been complied with, but if the defendant could insist that the grant was void on this account, the burthen of proof was turned on him. Besides, it ' is very questionable whether this objection could be raised at all, in a suit between the bank and individuals. It was a question between the state and the bank — the grantor and grantee— whether they were properly and legally exercising their corporate powers. The decision of the court on this question was -correct.
There remains another question, whether the plaintiff was entitled to judgment on the note, which bears date in March 1837, and is described in the declaration as dated in 1827. It is with reluctance that we are compelled to pass on this question as we learn that it was not noticed at the trial below. If it bad, it would have been undoubtedly corrected by ah amendment. The counsel on both sides, probably, did not notice the mistake, and the note was read without any objections. As the case is drawn up, however, there is evidently error in the judgment of the county court, as the note varies from the description of it in the declaration. There is no count *308for money had and received, on which it could be received in evidence, or on which judgment could be rendered.
For this latter objection, now for the first time made, the judgment of the county court must be reversed.