Now, wherein is this a departure from the general rule of law? It seems to be uniformly conceded that if a party contract with a corporation after it has forfeited its corporate existence, he is estopped to set up the forfeiture. And it is said the corporation, when sued, is estopped to deny its corporate capacity assumed in a contract. But how can it pay debts, if it cannot collect dues? So, it is almost uniformly said, that irregularities in organization cannot be set up in bar of a suit by the corporation. See Eaton v. Aspinwall, 19 N. Y. R. 119; The Methodist, &c. v. Pickett, id. 482.

Why, then, is not the general proposition a sound and reasonable one, that where persons are assuming to act as a corporate body, under a law authorizing such corporation; where, in short, user is existing, under a pretended organization, and a party contracts with such body as a corporation, he should be estopped to deny their corporate existence? What, in fact, is here involved but, in a wide sense, irregularity of organization? And why is it not the duty of the contracting party to inquire in the one case as well as the other? And may not the corporation have been led to act upon its means, in one case as well as the other?

If the name in which the contract may have been made simply, prima facie, imply a corporation, while, in fact, the company is not assuming to be a corporation, but only a partnership, this fact may be shown. See Jones v. The Cincinnati Type Foundry Company, infra. Such is the law in some of the other states. See Case v. Benedict, 9 Cush. 540; Worcester, &c. v. Harding, 11 id. 285; Jones v. The Bank of Tennessee, 8 B. Mon. 122; Jones v. The Cincinnati Type Foundry Company, at this term (1).

The remaining paragraphs admit that the mortgagee was a corporation at the date of the mortgage, but aver that under the laws of Ohio and Indiana she had consolidated with an Ohio company, under a new name. The terms of the consolidation are not given; neither the dates nor provisions of the alleged statutes of this state or Ohio are stated; no facts, indeed, are set forth, upon which any

May Term, 1860. HUBBARD

V.

CHAPPEL.

May Term, legal question can be raised. These paragraphs are bad 1860. for uncertainty. See Wright v. Bundy, 11 Ind. R. 398. STURGIS Per Curaim. The judgment is affirmed with 5 per cent. RODMAN. damages and costs.

V.

C. B. Smith, W. J. Smith, and J. M. Washburn, for the appellants.

J. D. Conner and W. Z. Stuart, for the appellee.

(1) Ante, 89.

STURGIS and Another v. RODMAN.*

APPEAL from the Marion Circuit Court.

Per Curiam.-Suit by Rodman agains Sturgis and Ellis, to recover money deposited with them by the plaintiff. The defendants were non-residents of the state, and proceedings in attachment were had. Ozias Bowen was summoned as garnishee. Several creditors of Sturgis and Ellis filed their claims under the attachment, and final judgment was rendered against Sturgis and Ellis, and Bowen as garnishee, by default.

Several errors are assigned, but we shall not notice them, as no steps were taken in the Court below to correct them. It has been settled by several decisions that in judgments taken by default, the defendant must make his application to the Court below to correct the error, if any exist, before bringing the case here.

The appeal is dismissed with costs.

*This case was decided on the 8th of June. A petition for a rehearing was filed on the 7th of August, and overruled on the 23d of November.

PARISH and Another v. HEIKES.*

A paragraph of an answer setting up the pendency of another cause which ought to be joined, must state facts showing that the causes are such as may be joined. The general allegation that the causes ought to be joined, or that the notes sued on were made by the same parties on the same day, is not sufficient.

Upon affidavit by the plaintiff's attorney that the plaintiff is a non-resident, &c., an order against him to answer interrogatories may be stricken out; and the overruling of a motion by defendant for a continuance till the next day to enable him to file an affidavit of the materiality of such answers, is not an abuse of discretion, where it appears by an undertaking for costs that the plaintiff was a non-resident.

APPEAL from the Tippecanoe Court of Common Pleas. HANNA, J.-Suit by an assignee against the maker of promissory notes.

Answer, first, denial; second, payment; third, usury; fourth, that another suit between same parties was pending in same Court for another note given at same time, and that said causes of action ought to be joined, or the plaintiff pay the costs of one of the suits, &c; fifth, denial of assignment.

Interrogatories were also filed, which the plaintiff was required to answer by an order to that effect.

There was a demurrer sustained to the fourth paragraph of the answer, because it did not state facts sufficient. Reply in denial as to the second and third.

Upon the affidavit of the attorney of the plaintiff, of the non-residence and absence from Court of plaintiff, the order to answer interrogatories was, upon the calling of the cause for trial, stricken out, and a motion to continue until the next day to enable the defendant to file an affidavit of the materiality, &c., of an answer thereto, was overruled.

Upon the trial, the notes and assignments were admitted in evidence without proof of their execution, or any written notice (2 R. S. p. 97) that they would be offered in evidence.

*This case was decided on the 12th of June. A petition for a rehearing was filed on the 23d of July, and overruled on the 3d of December.

May Term, 1860.

PARISH

V.

HEIKES.

May Term, 1860.

PARISH

V.

HEIKES.

These various rulings were each questioned, and are now objected to here as erroneous.

The demurrer was properly sustained; the paragraph did not state facts showing that the causes of action were such as might be joined. 2 R. S. p. 43. The general allegation that they ought to be joined was not sufficient; nor that the notes were executed on the same day and by the same parties.

A legitimate mode of informing the Court of the absence of the plaintiff, was by affidavit, which presented a sufficient reason for the order of the Court in reference to the answer to interrogatories.

The motion to delay the case was then addressed to the sound discretion of the Court. We do not perceive any abuse of that discretion, especially when we take into consideration the fact that an undertaking for costs was filed with the complaint, which implied the non-residence of the plaintiff.

The statute, 2 R. S. p. 97, has reference to writings of fered in evidence, other than those pleaded as the foundation of the action, or defense. The State v. Hart, 12 Ind. R. 424.

Per Curiam.-The judgment is affirmed with 1 per cent. damages and costs.

D. Mace and J. L. Miller, for the appellants.

S. A. Huff and R. Jones, for the appellee.

APPENDIX.

VAIL V. HEUSTIS.*

A party may purchase a bill of exchange at any rate of discount; but if it be shown that the transaction was not, in its inception, real, but a mere device to evade the statute against usury, the money advanced will be regarded as a loan.

Where the bill was drawn by a partner upon the firm, to his own order, and accepted by him in their name and indorsed to another, the question whether the payee could maintain a suit upon it at maturity, is immaterial in determining the character of the transaction.

APPEAL from the Dearborn Court of Common Pleas. DAVISON, J.-Heustis, the plaintiff below, brought this action against Vail, who was the defendant, upon the indorsement of a bill of exchange for the payment of 750 dollars. The bill bears date Cincinnati, June 29, 1857; was drawn by the defendant, payable to himself, at the branch of the bank of the state of Indiana, at Lawrenceburgh; was accepted by Bates, Neil, and Vail; and indorsed by the payee to the plaintiff. The complaint shows that the acceptors did not pay the bill when it became due, upon presentation at the place where it was made payable, of which the defendant had due notice, and that the bill remains due and unpaid, &c.

The defendant answered1. By a general denial.

2. That the bill was drawn, accepted, and indorsed at

*This case was decided at the November term, 1859, but was mislaid, and not found in time for publication in its proper place.

A petition for a rehearing was filed January 21, 1860, and overruled May 8. The case is followed in a case between the same parties, ante, 85, where, not being able to find the names, the Reporter, by mistake, says "there is no such case."