8 Cow. 709 | Court for the Trial of Impeachments and Correction of Errors | 1826
The defendant demurred generally to the plaintiff’s replication, and also assigned special causes of demurrer. In such a case the rule is rigid, that judgment must be given against the party whose pleading was first defective in substance. To apply this rule, we begin with an examination of the declaration, which has not been objected to, and is believed to be good. The next pleading is the plea of the defendant, which has been objected to as defective in substance on several grounds. It
Plea,
Another objection to the plea, growing out of the argument of the plaintiffs’ counsel, is, that it states the plaintiffs to have become members of an association, &c.; that the very terms “association, institution or company,” imply more than one number, and that as the plaintiffs, the corporation of the Utica Insurance Company, are but one person, and no others, with whom they were associated, are named in the plea, there was no company, &c., within the meaning of the restraining act. The answer given to this objection, that the members of the company are persons, and although incorporated, yet if they act beyond the scope of their authority, they still remain persons, would have been complete and satisfactory, if the plea had averred that certain individuals, naming them, and others, had formed a company, and illegally discounted this note; for then it would be immaterial what name or shape they assumed. But instead of such an averment, it alleges that the ebrpo
A plea is good °so by wi^na!®*" averment.
The forming an association and the proprietorship of a fund, for the purpose of discounting,, are, undoubtedly, the offence aimed at by the restraining law. (Sess. 36, ch. 71, s.2; 2 R. L. 234.) The criticism of the plaintiffs’ counsel, that the offence was in the purpose, and not in the act, is, I think, unsound. The offence of burglary, is the break-mg of a house, with intent to commit a felony, and yet an indictment, alleging the breaking and actual commission of a felony, has always been held good. This allegation in the plea then, that the insurance company did become members of such an association, and proprietors of such a fund, and did discount this note, aided by the replication that it was discounted out of such fund, is, I think, a good and sufficient bar to the plaintiffs’ recovery in form; and this is the substantial part of the plea. This allegation the plaintiffs have met directly and in terms. They might have said, in simpler language, that the insurance company- did not become a member of such an association, and proprietors of such a fund; and put themselves upon the country. Instead of doing so, they have commenced their replication by stating their act of incorporation, and averring that the loan was made, and the note taken; pursuant to its autho
a traverse, or murred to6 d6'
The inducesufficient1St hi defeat the aiie° gation of the opposite party.
The plea turns dteountU<toto curity °n S8"
The question*,
In the opinion of the supreme court, in the case of the People against these same plaintiffs, delivered by Ch. J. Thompson, in 15th John. 384, it is conceded in terms, that under the 9th section of the plaintiff’s act of incorporation, “ the surplus funds may no doubt be loaned at interest, The second section of the act prohibits the loaning for certain specified purposes; but the loaning for any other puri* - e pose, and m any other way, not prohibited by law, is anthorized and included in the general power to invest the surplus capital, &e.” A bond or note, given to the corporation on a loan of money, creates a debt due to them, and the payment may be secured by mortgage, by the express authority here conferred.” This is the language of -the judges, who denied that the plaintiffs had banking powers. Whether a mortgage was taken or not, cannot *affeet the
money on bond, note or der^their act °f incorporation, S6S8. o9, c. 52, p. 4t.
Jn the case of the N. Y. Firemen Insurance Co. v. Ely, (2 Cowen, 700,) Justice Sutherland places his objection to that company’s loaning money, on the ground that a precise and particular mode of investment was provided by the charter,. “ thus by the strongest implication prohibiting any other mode of investment, and, destroying the inference which might have resulted from the absence of all regulations on the subject.” In the charter of the plaintiffs there is no such regulation. In. the same case, page 711, Oh. J. Savage puts his opinion upon the ground that *the company had discounted "the. note of Ely; and he is very particular in stating what he means by that term, by giv
Id. 71.
Johes, Chancellor, also delivered his opinion in favor of a reversal.
If I do not entirely mistake the legal effect of the judgment in the case of the people against the
In the case of the People against the Utica Insurance Co., which I have referred,' an information in the nature of ^ %uo warranio was hied by the attorney general against the company, calling upon them to show by what warrant they claimed to discount notes, and to carry on other banking ^operations.
People v. Utica Ins. Co. 15 John 358.
The defendants pleaded to the information, that under their act of incorporation they had a right to' discount notes, and to bank, so far as to invest in that business their funds not employed in' insurance. '
To" this plea there was a demurrer; and upon that demurrer it was decided that the plaintiffs had no right- to any of the privileges they claimed; of course, that the company had no banking privileges; that they could employ no part of their capital in discounting notes; and a judgment of ouster was awarded.
It was contended before us, by the counsel for the plaintiffs in error, that the defendant in the court below should have pleaded there the judgment on the quo warranto as an estoppel; but as this had not been done, neither the court below, nor. this court, could take any notice of the judgment of ouster. No authority was cited to support this position ; and it is one to which I cannot assent.
I do not doubt the power of any court to change its opinion. It is a power which the supreme court has frequently exercised, as is manifested by a number of cases, for a reference to which I am indebted to one of the gentlemen concerned for the plaintiffs in error. I acknowledge that a court may render its judgment as at the time it may conceive the law to be, however inconsistent its latter may be with its former views. But I deny the power of any court to. destroy the effect of a former judgment, or to disturb, or even to question rights, which are settled *by the adjudication of a competent tribunal, otherwise than by reversing the judgment when it is brought before it by due process of law
Form of judgment of ouster of a corporation.
The judgment of ouster, unlesss it be reversed by writ of error, determines forever, and as to all persons, the right. When the supreme court decided, that the plaintiffs below had no right to exercise the privileges they used, the judgment became as much the law of the land, as a clause in their charter, supposing it a public act, expressly restraining them, would have been.
It determines the right for ever as to all persons;
And need not be pleaded.
In the case of Siderfin, of the Attorney General v. Trinity House, it is said that after demurrer, a defendant may amend his plea to a quo warranto ; and the reason, says the book, is, that the trial is of the highest nature, and as peremptory as a writ of right. This, however, relates to a writ of quo warranto ; but I do not know that there is any difference, in this respect, between a writ and an information.
Cases showing this.
Attorneg General v. Trinity House, 1 Sid. 54.
In the case of Rex v. Hebden, upon issue joined, whether bailiff or not, a former judgment of ouster against the defendant was read in evidence; and upon a motion for a new trial, it was held, that it was properly admitted, and was lately so done, says the reporter, on a trial at bar relating to the Corporation of Oxford.
Rex v. Hebden, 2 Str. 1109.
In the case of Symmers v. Regem, (Cowp. 497,) the defendant claimed an office, under one who had been ousted *from the right to confer the office, and it was said that the judgment of ouster was evidence against the defendant, although he was not a party to the quo warranto, and might have been a stranger to the suit.
Symmers v. Regem, Cowp. 497.
The expressions of Lord Mansfield, in that case indicate his opinion, that a judgment of ouster pronounced against the defendants, would bar them forever, as to any right which was in issue on the trial of the quo warranto then subjudice.
In the case of Rex v. Hearle, (Str. 628,) Reynolds, Justice, says, “ whether the defendant ought to have been bound or not,” (that is,' by a judgment of ouster .which had been previously rendered against him on an information in nature of a writ of a quo warranto,) “ I am not to consider, since, in fact, he is barred, and will be so, till that judgment be reversed by right of error.”
Stf 628^íarfe’
It is true, that where an office or franchise is claimed, as in the case of Symmers v. Regem, as derived from one who might have had authority to grant the office, or confer the franchise, and there be a judgment of ouster against him under whom the office or franchise is claimed, the person claiming under such a derivative title, may show that the judgment of ouster to which he was no party, was obtained by fraud or collusion. But where there has been a judgment of ouster, the defendant against whom that judgment was rendered, can never question it but by writ of error.
The cases I have cited appear to me to fully establish these twq points: 1st. That a judgment of ouster is conclusive as to the party against whom it was pronounced, until reversed; and 2dly, That all the world are entitled *to the benefit of that judgment, and may show it without pleading it as an estoppel, or otherwise. In the language of some cases cited on the part of the plaintiffs in error, it is matter of public law, and need not be pleaded.
Replication bad in auh‘
But the pláintiffs in error have replied, that they loaned money on the note in question'; and that-by their charter they had a right to do só; The judgment of ouster has determined, that they had no such right, or, in other words, that there was no law in existence which conferred on them this right, or exempted them from the operation of the general restraining act. The plaintiffs having appealed to a law for their justification, when thefé was no such law, a demurrer was,- in my opinion, the proper answer to their replication; The point1 of controversy between the parties, consisted of matter of law, and not of fact, and therefore was, by the demurrer, properly put for the determination of the court.
How absurd and inconsistent would it be, if after the supreme court; in the suit of the People against the present plaintiffs, had determined that by the IaW of the land they were not permitted to bank, the same court, on the same issue, should decide that their charter gave them, and that they might use banking privileges. In my opinion, the demurrer is well taken, considered as a general demurrer, which it undoubtedly may be, although causes be assigned.
A special deSudeía general demurrer,
But the plaintiffs in' error do not, by their replication as they did by their plea to the quo warrarító, insist on a *right to bank. They have, with a wily foresight, and great ingenuity, avoided this issue.
In answer to the allegations in the plea, that the plaintiffs in error became members of an association, and- did become proprietors of a- fund for issuing notes, receiving
Now it is to be observed, that by this replication, the plaintiffs in error attempt to put in issue a part of the very same matter which was tried on the quo warranto, not in the same words, indeed, because now they do not say they had a right to discount or bank; but in that case it was insisted by their plea, as it is now by their replication, that they had a right to employ their surplus funds in discounting, or loaning money on notes. It was decided by the judgment on the quo warranto, that they had no such right; that whatever might have been their right as a corporation, independently of the restraining act, that act applied to all incorporations not having, by their charter, the privilege of-banking. That the charter of the plaintiffs gave them no such privilege; and therefore, they could do no banking business. Notwithstanding this decision, the plaintiffs now attempt to bring in question the same right., I think the rules of pleading, as much as the dictates of common sense, are opposed to such evasion.
The allegations in the plea, that the plaintiffs had established a bank, issued notes, received deposits, and made discounts, were material allegations, which they were bound to answer. But these averments, or any of them, the plaintiffs in error have not confessed, avoided, traversed or denied. They content themselves with saying, *that they loaned money on the note out of their surplus funds • and traverse no other' allegation of the plea, than that' which is least material, and perhaps altogether so, to wit, that they become subscribers to a bank or fund, for the purposes in the plea set forth.
on demurrer, ¡^¡tgw^e fault in pleadjudgment2876 against him.
The plea g°0(1-
For affirmance I.
Burrows, Burt Ellsworth, Hager, Lake and McCall, Senators, concurred.
Allen. Crary, Earll, Gardiner, Haight, Hart, 9 1 1 1 19 Keyes, Livingston, Mallory, McIntyre, -Ogden, Smith, Stebbins, Viele,' Wilkeson, Wooster and Wright, Senators, concurred with Spencer, Senator, and Jones, Chancellor, that there should be judgment of reversal.
For revergaj IQ
A majority being fovr reversal, it was ordered,
That the judgment below be reversed, that judgment be rendered for the plaintiffs, on the demurrer, that the plaintiffs recover their costs in error to be taxed, and that the record be remitted, &c. to the end, &c.
Edison v. Middleton, 6 B. & C. 295, S. P.