Our first inquiry should be as to whether the plea of the general issue did or did not admit the corporate existence of the plaintiff. There are but few better-settled rules of pleading than that by pleading to the merits the defendant admits the capacity of the plaintiff to sue; and although when applied to corporations there is some diversity of opinion as to its applicability, still upon principle and authority we think there is no sufficient reason for excepting a corporation plaintiff out of the general rule.

It has been held by the supreme court of the United States that, by pleading to the merits, the defendant necessarily admits the capacity of the plaintiff to sue: Conard v. The Atlantic Insurance Co., 1 Pet. 387; Yeaton v. Lynn, 5 Id. 224. In Massachusetts it has been held that the defendant, by pleading non assumpsit, admitted the existence of the corporation: Kennebec Purchase v. Call, 1 Mass. 485; Inhabitants of Sutton v. Cole, 3 Pick. 232; Zion Church v. St. Peter's Church, 5 Watts & S. 215. In New Hampshire, that the general issue is a waiver of all exceptions to the person of the plaintiff: School District v. Blaisdell, 6 N. H. 197; Proprietors v. McIntire, Id. 527. In Alabama and Ohio, that a plea to the merits admits the capacity of the plaintiff to sue: Prince & Garrett v. Com. Bank of Columbus, 1 Ala. 242 [34 Am. Dec. 773]; Methodist Epis. Ch. of Cincinnati v. Wood, 5 Ohio, 286; Lewis v. Bank of Kentucky, 12 Id. 132 [40 Am. Dec. 469]. In Vermont, the same question was discussed at great length, reviewing the English and American decisions, and it was decided that the defendant, by pleading the general issue, admitted the corporate existence of the plaintiff: Bank of Manchester v. Allen, 11 Vt. 302; Phenix Bank v. Curtis, 14 Conn. 438 [36 Am. Dec. 492]. Such has also been the decision of the courts of Maine: Penobscot Corp. v. Lamson, 16 Me. 224 [33 Am. Dec. 656]; Savage Man. Co. v. Armstrong, 17 Id. 34 [35 Am. Dec. 227].

In New York, the contrary doctrine has been held: yet the decisions in that state have not been uniform. We find it decided in the case of Jackson ex dem. The Trustees of Union Academy of Stone Arabia v. Plumbe, 8 Johns. 378, that, under the general issue, the plaintiff must prove the existence of the corporation; while, on the other hand, in the case of Carpenter & Rose, Overseers etc., v. Whiteman et al., 15 Id. 208, the same court decided that the defendant, by pleading the general issue, admitted the capacity of the plaintiff to sue; and in the case of The Bank of Auburn v. Aikin, 18 Id. 137, it was held that the

plea of nul tiel corporation was a good plea. But the more recent decisions of the courts of that state seem to have settled the question differently, as will be seen by reference to the decisions in Bank of Auburn v. Weed, 19 Id. 300; Clark v. Niblo, 6 Wend. 236; Bank of Utica v. Smalley, 2 Cow. 770 [14 Am. Dec. 526], and Proprietors etc. of Southold v. Horton, 6 Hill, 501. So that we must admit that in New York, under the general issue, the plaintiff would be bound to prove its corporate existence and capacity to sue.

In addition to the authorities to which we have referred as opposed to the decisions of New York, we may add that of the case of The Society for the Prop. of the Gospel v. Pawlet, 4 Pet. 501. The opinion of the court was delivered by Judge Story, and he there not only sustains the doctrine fully that the general issue admits the corporate existence of the plaintiff, but he adds, "to sue in the particular action which they bring.”

And the question has been expressly decided by this court in the case of McKiel v. R. E. Bank, 4 Ark. 594. The question. arose upon the plea of general issue; the court said: "The bank being a public corporation, its existence was not required to be proved, as the court was bound judicially to take notice of it."

This decision we think well sustained by the authorities, and conclusive as to the effect of the plea of the general issue, when pleaded to an action brought by a public corporation. Had this been a foreign or a private corporation, a question of interest might have arisen as to the extent of the admission: because it by no means follows that, by admitting the corporate existence and character of the plaintiff, there must also be a still further admission in regard to the rights which that existence and character confer. The first is an admission of the existence and character of the plaintiff. The second, as to the rights and powers which may be exercised under it. For example, the admission of the existence of the person in his individual character is necessarily an admission of all the rights to contract which the law confers upon the citizen. The admission of the existence of one as administrator or guardian is an admission of the rights and powers conferred by law on him as such. But where an artificial plaintiff is created, its rights and powers depend, not on the general law, but on the particular act creating it, and are limited and prescribed by the act itself. And, unless the act be a public law, of which the court should take judicial notice, it becomes a matter of inquiry upon the trial, not whether the plaintiff has a corporate name and existence, but whether

power has been conferred upon it to make the particular contract in suit. And as the plea of non assumpsit raises the question of the validity of the contract, we are not prepared to say that the plaintiff in such case should not show that power was conferred authorizing such contract to be made.

If, therefore, the act under which this corporation was brought into existence is a public law, defining the powers and capacities of the corporation to contract, the court was bound judicially to take notice of it, and no proof under the issue upon this point was necessary. Of this there can be no doubt. The act is of a general nature: providing for the incorporations of towns generally, and conferring general and uniform powers on each, amongst which is the power to contract for the benefit of the town incorporated as fully as natural persons might: Dig., sec. 1, p. 971.

The defendant having, by his plea, admitted the corporate existence and character of the plaintiff, and the law having declared its right to contract, of which the court was bound to take notice, the only question presented by the issue was, whether the contract was in fact made as alleged in the plaintiff's declaration, and the damages which might arise from a breach of it.

The circuit court, therefore, erred, not in rejecting the record offered in evidence, but in refusing to permit the plaintiff to produce other evidence and progress with his cause, and in rendering judgment against the plaintiff for costs.

The judgment of the Hempstead circuit court must, there fore, be reversed, and the cause remanded to be proceeded in according to law, and not inconsistently with this opinion.

CORPORATION IS NOT REQUIRED TO PROVE ITS EXISTENCE UNDER GENERAL ISSUE: Lewis v. Bank of Kentucky, 40 Am. Dec. 469, and cases cited in the note. The court in Lindauer v. Delaware Mut. Safety Ins. Co., 13 Ark. 465, said that it was not settled in that state whether the general issue admitted the corporate existence of a foreign corporation unless such a doctrine followed from the principal case. In Mississippi, O. & R. R. Co. v. Cross, 20 Id. 449, the principal case was cited to the point that a plea of the general issue admitted that the plaintiff was a corporation.

JUDICIAL NOTICE WILL BE TAKEN OF EXISTENCE OF CORPORATION created under the laws of the state, but not of foreign corporations: Lewis v. Bank of Kentucky, 40 Am. Dec. 469, and note. The principal case was cited in Hammett v. Little Rock & N. R. R. Co., 20 Ark. 206, in reference to taking judicial notice of foreign corporations.

CAPACITY OF CORPORATION TO CONTRACT NOT ADMITTED BY PLEA OF GENERAL ISSUE, but the charter of the corporation must be produced: Phenia Bank v. Curtis, 36 Am. Dec. 492.

CLARKE V. BANK OF MISSISSIPPI.

[10 ARKANSAS, 516.]

WHERE PARTY CLAIMS BENEFIT OF SAVING IN STATUTE OF LIMITATIONS, it is of vital importance that it be shown that he is entitled to it by express enactment, because his claim to exemption, being against the current of the law, and founded upon exceptions by no means co-extensive with its effective provisions, all presumptions are against him. SAVING OF STATUTE OF LIMITATIONS HAS NEVER BEEN AS LIBERALLY CON. STRUED as its effective provisions, and if a party is not expressly within the saving, all that is inferred is simply that the legislature did not think that there was any sufficient cause for a prolongation of the right of such party to sue beyond the legal time allowed to suitors generally. CORPORATION CREATED BY AND TRANSACTING BUSINESS IN STATE is to be deemed an inhabitant of such state, capable of being treated as a citizen for all the purposes of suing and being sued, and it can dwell only within the sovereignty of its creation, and can not migrate to another sovereignty.

FOREIGN CORPORATIONS ARE NOT WITHIN THE SAVING OF Statute of LIMITATIONS of March 25, 1839, excepting persons "being beyond the limits of the state," that saving applying only to natural persons; but they do come within the saving of the act of limitations of 1844, which extends the privilege to "all persons who reside beyond the limits of this state" at the passage of the act. ADMISSION OF BOOK CONTAINING PUBLIC LAWS OF ANOTHER STATE, purporting to be published by authority, and to be printed for the state, is not error, although it contained no certificate of authentication, nor anything but what purported to be such acts and the indices thereto, nor any signatures to the acts, nor any act or other authority authorizing its publication; the burden of discrediting the book is on the one opposing its admission.

ORAL EVIDENCE THAT PERSON WAS STOCKHOLDER in foreign bank will not be admitted where it appears that he had obtained a certificate of stock, and that such certificate was deposited in the bank. EXISTENCE AND CAPACITY OF FOREIGN CORPORATION TO SUE IS ADMITTED by a plea of the statute of limitations.

REFUSAL TO ADMIT EVIDENCE THAT PLAINTIFF, A FOREIGN CORPORATION, HAD INSTITUTED ACTIONS in this state, and that a mortgage had been executed to it, and recorded, is not error where the issue was whether the plaintiff was a non-resident, so as to come within the exception in the statute of limitations.

DEBT on two promissory notes, both drawn March 7, 1840, one payable in twelve months and the other in two years. The action was brought by the Bank of Mississippi, a foreign corporation, on the first of December, 1845. Plea, the statute of limitations. The plaintiff filed a replication alleging the nonresidence of the bank; and the defendant rejoined that certain stockholders in the bank were residents of this state; that after

the cause of action arose, and more than three years before this action, the bank had an agent residing here, and that the bank did not continue to be a non-resident from the time the action accrued, on which issue was taken. The plaintiff, against the defendant's objection, to prove its incorporation, introduced book, the title-page reading: "Laws of the state of Mississippi, embracing all acts of a public nature from January session, 1824, to January session, 1838, inclusive. Published by authority. Jackson. Printed for the state of Mississippi. 1838." The book was not authenticated, nor was there anything but what purported to be the acts and the indexes to them; there were no signatures to the acts. The defendant then attempted to prove that one Gaines was a stockholder in the bank, and was a resident of Arkansas, but the court would not allow parol evidence that he was a stockholder, it appearing that he had obtained a certificate of stock which was deposited in the bank. The defendant then, to prove that the plaintiff had not been a non-resident, offered to prove that it had brought suits in this state, and that a mortgage of lands here had been executed to it and recorded; but the evidence was excluded. The court ruled that the plaintiff need not prove its incorporation, and that the extract read proved that there was such a corporation in Mississippi. Verdict and judgment for the plaintiff. The defendant brought error.

Pike, and Ringo and Trapnall, for the plaintiff.

Meany, contra.

By Court, SCOTT, J. The main question presented is, whether or not the plaintiff below, a banking corporation created by the legislature of Mississippi, was within the savings of our statute of limitations.

The enacting clause of ours, like that of the statute of James, does not contemplate the character of the plaintiff, but looks simply to the action. Not so, however, with the saving clause; that looks not to the action, but alone to the character of the plaintiff, and if in any case a plaintiff be saved from the operation of the statute at all, it is because alone of being within the description of persons who are the objects of the saving clause. It is, therefore, not important, to the operation of the statute, who brings the suit, for lapse of time will equally bar the action by whomsoever the proceedings might be set on foot. Hence, Sir Eaidly Wilmot remarked, in the house of commons, that infants, like all other persons, would be barred by an act limiting