16 How. Pr. 97 | N.Y. Sup. Ct. | 1858
“ The Bank of Havana,” is the name in which Charles Cook, an individual banker, carries ' on the business of banking at Havana, New-York, under “the act to authorize the business of banking,” passed April 18th, 1838, and the several" acts amending the same. The certificate of the superintendent of the bank department, that was given in evidence upon the trial, states that Cook commenced the banking business as an individual banker, at Havana, in 1851, under the aforesaid acts. Is the plaintiff a corporation ? The appellant’s counsel contends the plaintiff is not a corporation, and that it has no' legal capacity to sue. It is now well settled that banking associations, formed under the aforesaid acts, are moneyed corporations. (Gilbert agt. Moody, 3 Comstock, 479.) By chapter 340 of the laws of 1848, individual bankers are declared to be “ banks of discount and deposit, as well as of circulation,” and every report directed to be made by any law, from an individual banker, must be verified by the oath of the president and cashier. The term association is made to include every individual doing business alone for some purposes under the banking laws. (Chap. 437, Laws of 1849.) After a careful examination of the statutes authorizing and regulating the business of banking, I have cometo the conclusion that an individual hanker is a “ corporation sole." There is no express declaration in any statute to this effect, but individual bankers are clothed by statute with legal capacities and advantages which as natural persons by common law they could not have; and “ no particular form of words is requisite to create a corporation.” (2 Kents Com. 276.) Kent says: “ A corporation sole consists of a single person, who is made a body corporate and politic, to give him some legal capacities and advantages, and especially that of perpetuity," which as a natural person he could not have; a bishop, dean, parson and vicar, are given in the English books as instances of sole corporations.” Perpetuity is not absolutely necessary to make an association
If an individual banker is a corporation sole, there can be no more objection to such banker taking any corporate name he shall choose to adopt, or to Mr. Cook being a corporation by the name of “ The Bank of Havana,” than there is to an individual being a corporation by the name of bishop, dean, parson or vicar, which, as has been seen, is allowable under the English law. If these are correct conclusions, the proof established the plaintiff’s legal capacity to sue; and this action was properly brought in the name by which Mr. Cook transacts his banking business. There was no necessity for bringing it in Mr. Cook’s name as president of the Bank of Havana. (The People agt. The Assessors of Watertown, 1 Hill, 621; Gilbert agt. Moody, 3 Comstock, 483 ; Con. art. 8, § 3 ; 1 R. S. 599, § 1; The East River Bank agt. Judah, 10 How. Pr. Rep. 135.)
But suppose the proof failed to establish that the plaintiff is a corporation—the question arises, was the judge right in holding that the appellants by not denying in their answers the corporate capacity of the plaintiff to sue, thereby admitted such capacity ? This would clearly be so had there been a direct allegation in the complaint that the plaintiff was a corporation. (Code, § 168.)
Mr. Justice Mitchell has held that “ banks created under the general banking law, when suing, should recite the title of the act and the date of its passage, under which proceedings were had' for its incorporation.” (Johnson, President, &c. agt. Kemp, 11 How. Pr. Rep. 186. See also Bank of Lowville agt. Edwards, 11 How. Pr. Rep. 216.) And I am of the opinion Justice Mitchell has given the correct construction to this enactment, when the question is properly raised by demurrer. (See Onondaga County Bank agt. Carr, 7 Wendell, 443.) How assuming that the complaint in this action should have recited the title of the act, and the date of its passage under which the plaintiff claims to have a legal existence, then the complaint upon its face does' not show that the plaintiff has legal capacity to sue; and as section 144 of the Code has been construed, the complaint shows upon its face that the plaintiff had not legal capacity' to sue, and for this cause was demurrable. (11 How. Pr. Rep. 186 ; Id. 216.) This construction of section 144 of the Code, is probably based' upon the assumption that the complaint is presumed to show all the legal capacity to sue that a plaintiff has; and, therefore, when such legal capacity-to sue does not appear from "the complaint, it is deemed to show
By the same authorities, the complaint in this action was not demurrable on the ground that it does not state facts sufficient to constitute a cause of action. (11 How. Pr. Rep. 216.) But it could have been objected to by demurrer, for the reason that it appears upon the face that the plaintiff has not legal capacity to sue, (Code, § 144, sub. 2, 11 How. Pr. Rep. 186 ; id. 216.) As the appellants took no objection by demurrer or answer, that the plaintiff has not legal capacity to sue, by sections 147 and 148 of the Code, they are “ deemed to have waived the same.” Had it, however, been neeesáary to set forth in the complaint that the plaintiff is a corporation, to make the complaint “ state facts sufficient to constitute a cause of action,” then the defendant could have taken advantage of the defect in the complaint upon the trial. (Code, § 148.) But the capacity of the plaintiff to sue, has been held to be independent of the cause of action. (11 How. Pr. Rep. 216.)
Again, if the decision in The Bank of Lowville agt. Edwards, (11 How. Pr. Rep. 216,) is to be upheld, the complaint in this action states facts sufficient to constitute a cause of action. Although it does not recite the title of the act and the date of its passage, under which proceedings were had for the plaintiff’s incorporation; upon this assumption it was not necessary for the plaintiff to prove its corporate existence on the trial. Prior to the Revised Statutes such proof was necessary when the general issue alone was pleaded. (8 J. R. 378 ; 2 Cowen, 778 ; 7 Wend. 540.) But by such statutes, it is provided, “ in a suit brought by a corporation created by or under any statute of this state, it shall not be necessary to prove on the trial of the cause the existence of such corporation, unless the defendant shall have pleaded in abatement or in bar, that the plaintiffs are not a corporation. (2 R. S. 458, § 3.) This statute is Still in force and it is applicable to actions under the Code. (Code, § 471.) Had the appellants in their answers denied each and every allegation in the complaint, the plaintiff would not have been obliged to show its corporate existence. “ To put the
There is sufficient unexceptionable evidence in the case to sustain the finding of the justice upon the questions of fact. The judgment of the special term should, therefore, be affirmed with costs.