
    The Stewart Paper Manufacturing Company v. Rau.
    ]. Several persons while partners carrying on business at a given place, having had themselves incorporated by the superior court under the name which they had previously used as partners in the business, for the purpose of carrying on a like business at the same place, their petition for incorporation reciting that the capital stock of “thirteen thousand dollars in lands, machinery, water-power, money, other material and property” was fully paid in, and the order incorporating them containing a recital to the same effect, and such persons having afterwards continued the business under the same name and at the same place, they will not be heard to deny the existence of the corporation, as against a creditor who gave credit after the charter was granted, and without notice of the business being afterwards conducted by the partnership rather than by the corporation.
    2. Drafts are not payment until they themselves are paid, there being no evidence that they were taken expressly in payment.
    May 29, 1893.
    Complaint on account. Before Judge Richard H. Clark. Rockdale superior court. September term, 1892.
    Rau sued “ The Stewart Paper Manufacturing Company, a corporation chartered by the superior court of said county,” and obtained a verdict. A motion for new trial was overruled, and defendants excepted. The plea relied on was: “ This defendant says, that it is not a corporation ; that the order of the superior court making the parties a body corporate, granted on the-day of 1886, was never accepted by the parties, nor did they organize the company mentioned in said order, nor did they exercise the powers granted by said order within two years from its passage nor at any other time, nor was there any acceptance of said act or order of incorporation, nor any attempt to exercise the powers ■conferred by it, at any time since its passage; that defendant acted, in the purchase of the articles set out in plaintiff’s declaration, in the capacity of a firm and not a corporation.”
    The motion for new trial contained the grounds, among others, that the action could not be maintained against defendants as a corporation, because there was no testimony showing that they were a corporation; and that the evidence showed that the account sued on had been merged into drafts drawn by plaintiff on defendants and accepted by them, which accepted drafts were still held by plaintiff. A further ground assigned error upon the court’s charge, for the principle of which see the first head-note.
   Judgment affirmed.

Henry Jackson and J. D. Irwin, for plaintiffs in error.

J. N. G-lenn and Abbott & Smith, contra.  