ence as a corporation.' Under general statutes, framed on the model of those of New York, where it is necessary to prove the corporate existence, it may ordinarily be proved by introducing in evidence copies of its articles of association, filed in the office of the Secretary of State, where that mode of organizing a corporation is prescribed by the governing statute; and also by a record of the articles of association in the office of the register of deeds of the county where the principal place of business of the corporation was established, where the governing statute requires the articles of association to be so recorded.2 § 7700. Filing of Articles and Election of Officers. — Under a general enabling statute, such as that mentioned in the preceding section, the mode of proof, corresponding to the proof of a charter and user thereunder, is proof of an organization by filing articles of association, or of incorporation, under the enabling statutes, and of the election of the proper corporate officers. Such was the mode under a general statute of New York, which provided (1) that the usual certificate in such cases should be filed in the office of the county clerk, and a duplicate thereof with the Secretary of State; (2) that "when the certificate shall have been filed as aforesaid, and ten per cent of the capital named paid in, the persons who shall have signed and acknowledged the same, and all others who thereafter may be holders of any share or shares of said capital stock, and their successors, shall be a body politic and corporate, in fact and in name, by the name stated in such certificate," etc. Under this statute it was held that, although the ten per cent of capital was never paid in, the filing of the certificate, as required by the first section, and an election of officers and proceedings in furtherance of the object of its creation, constituted the body a de facto corporation, entitled to carry on its enterprises, have its day in court, and divide 1 See, for example, Gen. Stats. Wash., § 1499; Knapp &c. Co. v. Strand, 4 Wash. 686. As was done, with approval, in Brown v. Corbin, 40 Minn. 508; 8. c. 42 N. W. Rep. 481. Laws N. Y. 1852, ch. 228. 6113 its revenue among the holders of the shares of its capital, until the State should interpose and ask that it be dissolved.1 § 7701. Organization in Fact and User thereunder. - On principles already considered,' other decisions are to the effect that, for the purposes of civil actions, an organization in fact and user under it, is sufficient proof of corporate existence, although there may have been irregularities or omissions in the first instance. In these cases the principle is applied that a substantial or colorable compliance with the law is the most that can be demanded in a litigation between private parties, where the question arises collaterally, and where the State suffers the assumed corporation to exist. But, on the other hand, we find expressions of opinion to the effect that there must at least be an organization in good faith, under some existing charter or general law.* - When, § 7702. Corporate Books and Records as Evidence of Organization and User. The primary evidence of the organization of a corporation is to be sought for in its records. therefore, the issue is raised by the pleadings whether or not a corporation has been organized under its act of incorporation, or other enabling statute, its book of entries containing the articles of association, signed by the associates, and other record of its proceedings, is properly admitted in evidence Silk Co., 3 Met. (Mass.) 282; Buncombe Turnp. Co. v. M'Carson, 1 Dev. & B. (N. C.) 306; McFarlan v. Triton Ins. Co., 4 Denio (N. Y.), 392; Wood v. Jefferson County Bank, 9 Cow. (N. Y.) 194; Vawter v. Franklin College, 53 Ind. 88; Grays v. Turnpike Co., 4 Rand. (Va.) 578; Crump v. United States Min. Co., 7 Gratt. (Va.) 352; 8. c. 56 Am. Dec. 116; Highland Turnp. Co. v. M'Kean, 10 Johns. (N. Y.) 154, 156; 3. c. 6 Am. Dec. 324; Bill v. Fourth Great Western Turnp. Co., 14 Johns. (N. Y.) 416; Reynolds v. Myers, 51 Vt. 444; but see Lucas v. Bank, 2 Stew. (Ala.) 147. to prove the fact of organization;' and an organization may be shown by the minutes of the corporation without producing its lists of subscribers. So, the books of the commissioners, appointed under a charter to receive subscriptions to the stock of a projected line of railway, are competent evidence to establish the facts recorded therein, relating to the performance of their duties. § 7703. Records Need not Show Acceptance of Charter. As already seen, a body of men cannot be forced to become incorporated for private purposes without their own consent; and therefore it is necessary to the existence of such a corporation that the charter, or other enabling statute, shall have been accepted by those named therein in the case of such charter, or by others in the case of a general enabling statute." But it is not at all necessary that the fact of such an acceptance should be proved by the records of the corporation, as, for instance, by an express vote to that effect entered upon those records. In the case of a special charter, an acceptance will no doubt be presumed in many cases, the same as the acceptance of a deed-poll will be presumed, where it is manifestly beneficial to the grantees. Certainly, after considerable lapse of time, and a continued exercise of the powers granted to the corporation, the presumption becomes irresistible that the charter has been accepted." St. Joseph &c. Co. v. Shambaugh, 106 • Middlesex Husbandmen v. Davis, 3 Met. (Mass.) 133; Narragansett Bank v. Atlanta Silk Co., 3 Met. (Mass.) 282; Whitmore v. Fourth Cong. Soc., 2 Gray (Mass.), 306; Stone v. Congregational Soc., 14 Vt. 86; Bank v. Allen, 11 Vt. 302. Thus, the acceptance of a charter by a railroad company is sufficiently proved by showing that the act was passed at the request of the directors designated therein, or by the construction and use by the company of a part of § 7704. Proof by Witnesses under Notice to Produce Corporate Books. After notice to a corporation to produce the books of the corporation, containing the records of the organization, the plaintiff may, in case of a refusal by the corporate agents to do so, prove the de facto existence of the corporation by witnesses, and that the certificate of incorporation, as required by law, was filed with the proper officers.1 § 7705. Where the Corporation is Unconditionally Incorporated. There is a line of early holdings to the effect that where a statute unconditionally incorporates a body, the existence of the corporation is sufficiently proved by the production of the statute declaring it to be such, in which case, if created by a public act, the court will take judicial notice of its existence, and of course a plea of nul tiel corporation will be bad on demurrer. But the writer has submitted the view that this principle can have no just application, except in those cases where, as in the case of municipal or other public corporations, the assent of the corporators is not necessary." § 7706. Judicial Notice of the Existence of Corporation.The author accordingly conceives the true principle to be that, wherever it is competent for the legislature to create a corporation by an unconditional declaration of the fact that the corporation exists, and the legislature has made such a declaration, as in the case where a municipal corporation is created by an act of the legislature,—the judicial notice which the courts will take of the statute, will carry with it a judicial 415; Farmers' &c. Bank v. Troy City Bank, 1 Dougl. (Mich.) 457; Southhold v. Horton, 6 Hill (N. Y.), 501; Wood v. Coosa &c. R. Co., 32 Ga. 273. But see Cahill v. Kalamazoo Ins. Co., 2 Dougl. (Mich.) 124; s. c. 43 Am. Dec. 457. • Hammett v. Little Rock &c. R. Co., 20 Ark. 204; McKiel v. Beal Estate Bank, 4 Ark. 592. Ante, § 7692. knowledge of the fact of the existence of the corporation; but that, as to private corporations, which cannot come into existence except by the consent of the persons who are incorporated, their existence is to be established by proof, when properly controverted, like any other fact in issue.1 § 7707. Proof by Acts or Admissions by the Opposite Party. A common way of proving the existence of a corporation is by proving acts of the opposite party which from their very nature admit its existence, and in many cases raise an estoppel against such party from denying it. In the absence of documentary evidence of the organization of a corporation, evidence that the defendant was present at the organization of a company as a corporation, was elected and acted as president, and signed the note in suit as such, is prima facie proof of the existence and organization of the corporation, as in effect the admission of a party. So, where a defendant is sued under a name which implies a corporate existence, the fact that it is a corporation may be inferred from its having issued the obligation sued on under that name, by its president and secretary.1 8 7708. Letters Patent, Certificate of Incorporation, Articles of Association, etc.—It may be stated, as a general rule, that letters patent issued by the Governor, as in Pennsylvania," articles of incorporation, sometimes called certificates of incorporation, filed in the proper public office or offices, or the cer 1 Ante, § 7692; Portsmouth Livery Co. v. Watson, 10 Mass. 91; Ministerial &c. Fund v. Kendrick, 12 Me. 881; Towson v. Havre-de-Grace Bank, 6 Har. & J. (Md.) 47; 8. c. 14 Am. Dec. 254. ■ Ante, §§ 518, 1853, 3453, 3683, 7647. Haynes v. Brown, 36 N. H. 545. Bon Aqua Imp. Co. v. Standard Fire Ins. Co., 34 W. Va. 764; &. c. 12 S. E. Rep. 771. • Dorsey Harvester Rake Co. v. Marsh, 6 Fish. Pat. Cas. 387. That -вее the validity of such letters patent cannot be questioned collaterally, Cochran v. Arnold, 58 Pa. St. 399, 405. Fresno Canal &c. Co. v. Warner, 72 Cal. 379; 8. c. 14 Pac. Rep. 37; 2 Rail. & Corp. L. J. 86; Knapp &c. Co. v. Strand, 4 Wash. 686; s. c. 3 Pac. Rep. 1063; Vanneman v. Young, 52 N. J. L. 403; s. c. 20 Atl. Rep. 53; Bates v. Wilson, 14 Colo. 140; 8. c. 24 Pac. Rep. 99; Dannebroge &c. Min. Co. v. Allment, 26 Cal. 286. |