President of the Bank of Utica v. Smalley

[Woodworth, J. No indebtedness appears in the case. Did it not lie with you to show affirmatively that he was indebted ?] Spencer. We suppose not; but that it lay with the other side to show that he was not indebted. His being clear of debt is a condition precedent, by the statute, and should be strictly complied with ; especially as the transfer was for the mere purpose of making the party a witness. But the plaintiffs have not proved themselves to be a corporation. This was necessary beyond all doubt. (Jackson v. Plumb, 8 John. 378, and the cases there cited. Bank of Auburn v. Aiken, 19 John. 300.) That the charter is a public act, makes no difference. This, per se, is not enough. If it be, the decision in the Bank of Auburn v. Aiken is not law. Nul tiel corporation was there holden a bad plea, because it amounted to the general issue, and the party was put to plead the latter. Both the charters of the Auburn and Utica banks are declared public acts, and if the acts not only prove themselves, but the existence of the banks also it would be nonsense to say that the general issue involves the question of corporation or no corporation.' The plaintiffs must show a compliance with the terms of this public act, before they can claim to be recognized as a plaintiff. This is matter in pais. Again: here is a material variance from the name given by the charter. They must sue, by their corporate name. By this only are they known. In Gilbert v. The Nantucket Bank, the corporation were defendants, and we agree that a defendant must always plead a misnomer of himself. But it is otherwise where a corporation is plaintiff, and_misnames itself. (Vin. Ahr. Corporations, (E), and the cases there cited.) Suppose the plaintiffs had called themselves President — 775 — alonp, or Directors alone. If one part of the description may be omitted, another may ; a defendant may bp entrapped by a suit in favor of a name which be never heard of; and entirely misled both as to the form and merits of his defence. The plaintiffs here might justas well have sued in the names of one of the directors, or any twelve men which they may select. The Mayor & Burgesses of Stafford v. Bolton, is distinguishable. The plaintiffs there were incorporated by the name of the Mayor and Burgesses of the Borough óf Stafford, in the county of Stafford, and sued by the name of The Mayor Burgesses of the Borough of Stafford. The Court held the words, “ the county of Stafford,” to be mere matter of addition or local description ; as if this bank had been incorporated by the name and addition of the President, Directors and Company of the Bank of Utica, in the county of Oneida, and the words relating to the county had been omitted. Duller, J. in that case says, that “ the argument of locality will not here decide the. question. The name in the declaration imports locality; as the plaintiffs state themselves to be the Mayor & Burgesses of the Borough of Stafford, only omitting, “in the comity of Stafford.” This brings the case within the distinction laid down in Kings v. Lynne ; for there is a difference in omitting matter of substance, and mere matter of addition.” Here is an omission of matter of substance. The plaintiffs have a substantive corporate style. The first section of the charter declares them a corporation by a certain name and style. Had we pleaded in abatement, we should have been told, it must be in bar, within the case of the Auburn Bank v. Aiken. Storrs, in reply. The language of the case is a sufficient answer to the objection, that there was no consideration for the sale of the witness’ stock. It states that he made a transfer, which phrase imports a consideration, and every thing necessary to pass the property. It is now too late to object that this was all a fallacy. The only ground taken at the trial was, the want of a registry. The test of C.’s interest was whether he would gain or loose by the event of the suit. When that inquiry is answered in the negative, the compe — 776 — tency of a witness is complete. The witness in this cas<^ g^uid be enabled to say that he could receive no increased profit by the dividend, in consequence of a recovery, or lose any profit by the bank being thrown in the costs. The words, valid and effectual, are supposed to relate to the contract of transfer between C. and W. but the rights of the latter are perfect at common law, without the registry. The provision in question was not inserted with a view to the common law right between vendor and vendee. The words, valid and effectual, are fully satisfied without this, by giving them a reference to the rights of the bank. There was no objection made at the trial, that the bank must prove themselves a corporation. It related to the kind of evidence offered, which was the statute. This is a public one, and needs no proof. There are no pre-requisites mentioned in the charter to their becoming a corporation. On the contrary, the first section, (sess. 35, ch. 64,) recites, that Kipp and others are already associated, and all persons that shall become stockholders, are thereby declared to be a body corporate, &c. The second section declares, that subscriptions shall be kept open, not shall be opened. They are a body politic, from the passage of the act, and are so treated throughout. The cases cited are distinguishable. They relate to corporations created upon condition that certain pre-requisites should be complied with before they go into effect; as that certain sums in specie or stock shall be first raised. Even in such a case, slight proof would be sufficient, as that they had been in operation a series of years. But it is enough here that we are a corporation ipso facto, by the very terms-of the enactment-. We did, however, prove that the bank had been in operation 9 years, exercising the privileges granted by the statute. This was fully shown by the evidence of Colling, the clerk. The act provides, that it should not be forfeited for non-user at any time before February, 1813. Is not this enough, even if we were bound to go out of the' act 1 In 1815, the legislature passed another act, (sess. 38, ch. 144,) authorizing the plaintiffs to establish a branch bank at Canandaigua. This would, of itself, be a sufficient proof of their existence. It is — 777 — true, as a general rule, that when a corporation sues, they must show themselves to be a corporation. What this proof is to be is another question. Every plaintiff must prove himself in esse. The proof that we acted as a corporation for a number of years, being recognized as such by the legislature, is, at least, prima facie, evidence of our existence as such. If the plaintiffs had ceased to be, the defendants should have rebutted our proof, by showing their civil death. The Mayor & Burgesses of Stafford v. Bolton, does not, as supposed, rest upon the sole ground of an omission in the local description. “ The county of Stafford” was a part of the corporate name. Might Utica be omitted in the plaintiffs’ name ? If it might, and the omission would not vitiate without a plea in abatement, why not the words “ and Company ?” Certainly they might, and that with much more propriety; for if Utica be omitted, there would be nothing to distinguish it from any other bank; whereas omitting the word Company would still leave the description sufficiently perfect to make it understood by every body. There are not three substantive parts to the corporation. The President & Directors of the Bank of Utica, is a sufficient descriptiopersonae. The error is, in supposing that the law implies three distinct bodies ; but the variance is literal and unsubstantial merely. The case falls precisely within that of The Mayor, &c. v. Bolton. Sutherland, J. It is contended by the defendant—1, that Thomas Colling was an incompetent witness, and was improperly admitted by the Judge. The objection to Colling was, that he was a stockholder in the bank, in whose name this suit was brought. He immediately assigned or transferred his stock, and was then permitted to testify. The transfer, it is said, was not valid, because it was not registered in a book kept by the Company for that purpose, the 6th section of the act providing that no transfer of stock shall be effectual, until it is so registered, and all debts due from the stockholder to the company are paid, &c. This provision was intended exclusively for the benefit and protection of the. bank. Their lien upon the stock, — 778 — for any debts düe to them, cannot be affected by á transfer yf t]1Q stock; and the only notice of a transfer which they áre bound to regard, is a registry of it in their books. Payinent of dividends to the original stockholder at any time before the assignment was registered, would p'robably be good. The legislature intended, by this section, to afford to the bank a means of ascertaining with certainty who they were bound to consider and treat as stockholders. But if A. being a stockholder in the bank, and also indebt; ed to the bank, transfer his stock to B. all his interest passes." It is a valid transfer as between A. and B. bút B. takes it subject to the claims of the bank against A. The registry can be made as well by B. as by A. The transfer made by Col-ling, therefore, passed all his interest in the stock, and rendered him a competent witness. 2. It is contended, that the Judge erected in deciding that the plaintiffs were not bound to prove theíñsélves a corporation, upon the general issue pleaded; This objection is well taken. When á corporation sues, they need not set forth,- by averment, in the declaration, how they were incorporated; but upon the general issue pleaded, they must ’ prove that they are a corporation. (Kyd on Corp. 292. Norris v. Staps, Hob. 211. 2 Ld. Raym. 1535. Jackson, ex dem. Trustees of Union Academy, v. Plumbe, 8 John. 378. Dutchess Cotton Manufacturing Company v. Davis, 14 John. 245, opinion of Thompson, Ch. J. Bank of Auburn v. Weed, 19 John. 300.) 3. It is objected, that the Judge erred in overruling the objection to the plaintiffs’ right of recovery, on the ground that the suit was brought in the name of the President and Directors of the Bank'of Utica, whereas they were incorporated by the name of the President,. Directors and Company of the Bank of Utica. This was a mere misnomer; and a misnomer of a plaintiff, even in the case of a corporation, is not ground of nonsuit, but can be taken advantage of only by plea in abatement. (1 Chit, on Pl. 440. 1 Bos. & Pull. 40. Gardner v. Walker, 3 Anstr. 935. Com. Dig Abatement, (E). 5 Mass. Rep. 97.) The Judge, therefore decided-correctly in overruling this objection. — 779 — 4. It was objected, that the note on which the suit was brought was usurious. There is nothing to distinguish this case, upon the question of usury, from those of the New York Firemen Insurance Company v. Ely & Parsons,(a) and the Bank of Utica v. Wager,(b) except that the clerk who cast the interest swears, that it was his intention, as a clerk and bookkeeper, always, to cast the interest at 7 per cent, only, and according to the best and most approved system in use.” This does not change the legal character of the transaction. It was his intention cast and receive interest for ninety-one days, upon a forbearance of ninety, under an erroneous impression that ninety days were the legal fourth of a year. All that he means to say, then, is, that he supposed, for the purposes of interest, that the year consisted of 360 days; and upon that supposition, considering ninety days as the fourth of a year, would not give more than 7 per cent. His mistake was as to the law, and not as to any matter of fact.' Upon the principles already established, in the cases alluded to, the transaction must be considered usurious, and there' must be judgment for the defendant. Savage, Ch. J. concurred, except as to the misnomer; and added, that, as to the competency of Colling, it appeared that he absolutely assigned his stock to the counsel in the cause. The objection urged against his competency is, that the transfer was not complete till entered on the books of the bank, which had a lien upon the stock for any debt due to it from Colling; but it seems to me that this was a question to be agitated only between the bank and the purchaser. Colling had done all in his power to divest himself of the stock, provided his conveyance was valid. But as the conveyance was, for aught that appears in the case, without consideration, and evidently for the purpose of qualifying - himself to be a witness, was it bona fide ? Was not Mr. Williams a trustee for Colling 1 he, (W.) having neither paid nor become obligated to pay C. for the stock ? It is stated, in the case, that he transferred his stock, and I think we are, as was mentioned at the bar, to understand that the — 780 — transfer was made in all respects regularly, and fairly, except jn the particular objected to at the trial. The objection of the misnomer seems to me well taken. Under the issue joined, it was incumbent on the plaintiffs to show that they had a legal existence, and a capacity to sue. In attempting to do so, they prove, if any thing, that “ the President, Directors & Company of the Bank of Utica’ were incorporated, but the suit was brought in the name of “the President and Directors of the Bank of Utica.” The defendants were not to know that there was no incorporation by that name. The name of a corporation is essential. They are authorized to sue by a particular name, and they certainly have no power to sue by any other. Suppose the cases put at the bar; that the President of the Bank of Utica alone, or the Directors and Company, without the President, or the Directors alone, or the Company alone, had brought the suit, I should not hesitate in saying, that such .an action could not be sustained. The authorities cited to show that the defendant, if sued by a wrong name, must plead it in abatement, and cannot take advantage of this informality on the trial, prove to my mind the reverse of the proposition as to the plaintiff; and that a variance of this kind must be taken advantage of on the trial, especially where the plaintiff is a corporation. The case from Bo sanquet & Puller may be law, if placed on the ground adopted by Buller, J. that the omission related to mere addition of place; but I do not comprehend how the rule that a corporation must prove its existence upon the general issue, can, in general, be complied with, unless it is confined to the name upon record. Under this rule its existence by that name becomes matter of substance. It is an artificial technical being, and the proceedings should conform to this idea throughout. Woopworth, J. concurred in the result of these opinions. Judgment for the defendants. Footnotes [(a)] Ante, 678 [(b)] Ante, 712.