President of the Bank of Utica v. Smedes

The Chancellor. The principal question raised in this cause, is one which was discussed before the supreme court, and was there determined. It is, whether any sufficient consideration for the promise stated in the third count, appears from the declaration, or not. Upon this question, I concur with the supreme court in their opinion, that this count is good, considered as a count for nonfeasance. The reasons of the supreme court, in support of this opinion, are [684] just and conclusive. But the third count may also, I think, be as properly considered, a count for misfeasance. The truth of the transaction, even as it is stated in this count, was as much a mismanagement of the business undertaken, as it was a total neglect to perform it. The reception of the note by the bank for collection, may well be considered, as the first step in the execution of the contract, on their part, and ill this view, no other consideration was necessary. [683] The principal question relates to the 3d count; which is good either as a count for a nonfeasance, or misfeasance. [684] The other objections are not admissible here, because not made in the supreme court. Upon the other objections made bj the plaintiffs in error, it might be sufficient to say, that they do not appear to have, been presented to the supreme court; and that by the decisions and practice of this court, such objections, can not be entertained here. I will however, state my opinion, upon some of the most important of those objections. The corporation might contract, (keeping within ' the scope of its general powers) to do an act at anyplace. It seems, a law incorporating a bank is a public act. ’ But the act authorizing an office of discount, &c. is sufficiently set forth. It is urged, that there is no public law, establishing an office of the bank of Utica, at Canandaigua ; and that the act of the tenth day of April 1815, authorizing this bank to establish an office at Canandaigua, is a private act, which is not set forth in the declaration. The act incorporating the, hank of Utica, is declared to be a public act; and the action is against this bank. This corporation may make any contract within the scope of its general powers, and may bind itself to do an act at Canandaigua, or any other place ; and wherever the engagement may be broken, the bank will be. equally liable. But I am not prepared to admit, that a law incorporating a bank, without declaring the law to be a public statute, is a private act, which must be recited in every suit against the corporation. These institutions are public, jn their nature and character; and their operations affect the whole community. But without pursuing this inquiry, I am. of opinion, that the act of the tenth day of April 1815, authorizing the bank of Utica to establish an office at Canandaigua, is sufficiently set forth in the declaration in this cause. The declaration states, that the bank of Utica, had pursuant to the act of the legislature, passed the tenth day of April 1815, established an office of discount and deposit, in Canandaigua. This allegation, though not a full recital of the, act, must be sufficient, at least, after a verdict. [685] Another objection is, that the note stated in the two first pounts of the declaration, appears as a note payable on demand ; and that it is not alleged, that any demand of payment from the makers, was made within a reasonable time. What was a reasonable time, would depend upon all the facts ’ r . pf the case, as they must have appeared at the trial. The decisive answer to this objection and to some others which have been urged, is, that they are made for the first time, after the trial of the cause and a verdict by a jury. All these objections may have been made, and all these defects if they are such, may have been supplied, by sufficient proofs at the trial. The established rules of our law authorize, and justice and public convenience, require, that the power of a verdict to cure foripal defects in pleading, should be liberally applied. It was not ne~ cessary to aver, demand of payment was made of the makers within a reasonable time. The notes being payable on demand, what is a reasonable time depended on all the facts, to be proved at the trial. I am accordingly of opinion, that the judgment of the supreme court, should be affirmed. The Court being unanimously of this opinion, it was, thereupon, ordered, adjudged and decreed, that the judgment pf the Supreme Court be affirmed ; and that the defendants in error, according to the statute in such case made and provided, recover their double costs for their defence of the writ of error to be taxed; and also their damages for the de-: Jay and vexation, tobe assessed; which said damages shall be calculated at and after the rate of seven per cent, upon the amount of the judgment in the Supreme Court, so as aforesaid rendered, from the return of the postea in the Supreme Court, to the day of such assessment; and that the amount pf such damages and costs be inserted in the remittitur ; and that the record be remitted, &c. The power of a verdict to cure formal defects in pleading should be liberally applied.