Argument for Defendant in Error.

nunc pro tunc as of June 25, 1891, being the days when the original bill of exceptions was signed and filed.

By direction of this court, the question whether the writ of certiorari prayed for should issue was argued with the merits of the case.

Mr. George P. Miller for plaintiff in error.

Mr. Alfred L. Cary and Mr. F. C. Winkler for defendant in error.

I. Under the Wisconsin statute the service of the process was the prima facie time of the commencement of the action. Sec. 27, c. 138, Rev. Stat. of 1858. The other time recognized is delivery to the officer "with the intent that it shall be actually served." Ibid. One of these two things must be shown to have been done in this action within ten years after the rendition of the judgment sued on. The plaintiff's proofs show a judgment rendered in Michigan May 13, 1862. Had they shown service within the ten years it would have made the plaintiff's prima facie case. But it showed service only on the 3d day of June, 1872, just three weeks after the ten years expired. It was incumbent therefore on the plaintiff to prove the delivery to the marshal with the proper intent within the ten years. He rested without attempting it. On the evidence before the court he had no claim to a recovery against the defendant.

II. The logical effect of the decisions and of the act of Congress (Rev. Stat. § 5154) would seem to be that upon the conversion of a state bank into a national bank, all of its property, rights, privileges and franchises, including its corporate existence, would pass to and be merged in the national bank. What necessity for and how could the state bank exist after it had been stripped of all its property, rights and franchises? If it could still exist as a state corporation for any purpose, it would still be under the control of the state, which is obnoxious and repugnant to the authority exercised by Congress over national banks. The act of Congress certainly does not

Opinion of the Court.

contemplate the existence of two banks after the conversion. Hence the state bank must cease to exist for all purposes. National Bank v. Colby, 21 Wall. 609; Casey v. Gallie, 94 U. S. 673, 678; Farmers' & Mechanics' Nat. Bank v. Dearing, 91 U. S. 29, 33.

Plaintiff's conversion into a national bank was completed July 13, 1865, nearly seven years before this action was commenced, and if we are right, plaintiff ceased to exist as a corporation at that time.

MR. JUSTICE GRAY, after stating the facts as above, delivered the opinion of the court.

By the uniform course of decision, no exceptions to rulings at a trial can be considered by this court, unless they were taken at the trial, and were also embodied in a formal bill of exceptions presented to the judge at the same term, or within a further time allowed by order entered at that term, or by standing rule of court, or by consent of parties; and, save under very extraordinary circumstances, they must be allowed by the judge and filed with the clerk during the same term. After the term has expired, without the court's control over the case being reserved by standing rule or special order, and especially after a writ of error has been entered in this court, all authority of the court below to allow a bill of exceptions. then first presented, or to alter or amend a bill of exceptions already allowed and filed, is at an end. United States v. Breitling, 20 How. 252; Müller v. Ehlers, 91 U. S. 249; Jones v. Grover & Baker Co., 131 U. S. appx. 150; Hunnicutt v. Peyton, 102 U. S. 333; Davis v. Patrick, 122 U. S. 138; Chateaugay Co., Petitioner, 128 U. S. 544.

The duty of seasonably drawing up and tendering a bill of exceptions, stating distinctly the rulings complained of and the exceptions taken to them, belongs to the excepting party, and not to the court; the trial court has only to consider whether the bill tendered by the party is in due time, in legal form, and conformable to the truth; and the duty of the court of error is limited to determining the validity of exceptions duly ten

Opinion of the Court.

dered and allowed. Hanna v. Maas, 122 U. S. 24. Any fault or omission in framing or tendering a bill of exceptions, being the act of the party and not of the court, cannot be amended at a subsequent term, as a misprision of the clerk in recording inaccurately or omitting to record an order of the court might be. In re Wight, 134 U. S. 136.

The writ of certiorari prayed for must therefore be denied, and the case must be determined upon the original bill of exceptions.

By that bill of exceptions it appears that before the last trial the defendant, by leave of court, amended its answer by adding, as a distinct defence, that "said defendant denies, upon information and belief, that at the time of the commencement of this action the said plaintiff was, or is now, a corporation created or organized under the laws of the State of Michigan, or under the laws of any other State, Territory or government; and said defendant further specifically denies, upon information and belief, that said plaintiff, at the time of the commencement of this action was, or at any time since then has been, or is now, a corporation."

Section 4199 of the Code of Wisconsin provides that "in actions by or against any corporation it shall not be necessary to prove on the trial the existence of such corporation, unless the defendant, by his answer duly verified, shall have specifically denied that the plaintiff or defendant, as the case may be, is a corporation."

The scope of this section is shown by comparing it with the general provisions of section 2655 of the same code, that the answer of the defendant must contain "a general or specific denial of each material allegation of the complaint controverted by the defendant, or of any knowledge or information thereof sufficient to form a belief." A denial of the fact that the plaintiff is a corporation must be specific and not general, and a denial of any knowledge or information thereof sufficient to form a belief is not enough. Crane Co. v. Morse, 49 Wisconsin, 368; Concordia Savings Association v. Read, 93 N. Y. 474. But an express denial that the plaintiff is a corporation is not the less specific, because made upon informa

Opinion of the Court.

tion and belief; and such a denial puts in issue the existence of the corporation. The plaintiff's objection to the form of the answer cannot be sustained.

The defence in question is in terms and effect a denial that the plaintiff at or since the time of the commencement of this action was or is now a corporation. This was not merely misnomer, properly pleadable in abatement only; it was, in substance, nul tiel corporation, which is a good plea in bar, although it would have been waived by the first answer to the merits of the case, but for the leave, expressly granted by the court, to plead it afterwards. Baltimore & Potomac Railroad v. Fifth Baptist Church, 137 U. S. 568, 572; Society for Propagating the Gospel v. Pawlet, 4 Pet. 480, 501; Jones v. Foster, 67 Wisconsin, 296.

The evidence offered by the defendant on this point wholly failed to support this defence, and at most only proved that the plaintiff sued by the wrong name. It showed no more than that the plaintiff corporation, having been originally created by the laws of Michigan, had, in accordance with the National Banking Act, become a national bank, and its name been changed accordingly, without affecting its identity, or its right to sue upon obligations or liabilities incurred to it by its former name. Act of June 3, 1864, c. 106, § 44; 13 Stat. 112; Rev. Stat. § 5154; Metropolitan Bank v. Claggett, 141 U. S. 520; Atlantic Bank v. Harris, 118 Mass. 147; City Bank v. Phelps, 86 N. Y. 484, and 97 N. Y. 44.

The admission of this evidence was objected to by the plaintiff, upon the very ground that it did not prove the non-existence of the plaintiff as a corporation; and an exception to its admission was duly taken and noted, and embodied in the bill of exceptions.

The plaintiff afterwards renewed the objection, by moving "that all of the defendant's evidence be stricken out, for the reason, if it be assumed to be correct, it has not made out any case." The reason assigned by the judge for refusing to grant this motion was his erroneous opinion that on the proof as it stood "the Michigan Insurance Bank became defunct and ceased to exist in 1865, when the national bank

Syllabus.

was organized;" and the plaintiff again excepted in due form.

Although the subsequent proceedings had at the trial, and stated in the original bill of exceptions, do not appear on this record to have been excepted to, yet those proceedings may properly be considered for the purpose of showing, as they do beyond doubt, that the judge's rulings in favor of the defendant proceeded solely upon the incompetent evidence to the admission and consideration of which the plaintiff had persistently excepted; and that it was only by the judge's statements that that evidence was decisive against the plaintiff's right to recover, even if the action was not barred, and that he should instruct the jury accordingly, that the plaintiff was induced not to put in any testimony upon the issue of the statute of limitations. If the plaintiff had put in its testimony on that issue, the case would have stood just as it did when before this court at a former stage; and, as was then adjudged, a direction to return a verdict, without submitting that issue to the jury, would have been erroneous, and would have entitled the plaintiff to a new trial. 130 U. S. 693.

The admission of the incompetent evidence on the issue of nul tiel corporation having thus clearly prejudiced the plaintiff, the order must be

Judgment reversed, and case remanded, with directions to set aside the verdict and to order a new trial.

MR. JUSTICE BREWER dissented.

LUDELING v. CHAFFE.

ERROR TO THE SUPREME COURT OF THE STATE OF LOUISIANA.

No. 178. Argued and submitted January 8, 1892. - Decided February 29, 1892.

The highest court of a State decided that a judgment of another court of the State, granting a petition to revive a judgment under a statute of limitations of the State authorizing this to be done upon citation "to