Thomas v. Dakin.

Upon the whole, I am of opinion: 1. That these associations are corporations; 2. That the legislature possesses no power to pass a general law like the one under consideration by a majority bill; and 3. That they may pass it by twothirds of the members elected.

The plaintiff is therefore entitled to judgment on the demurrer, with leave to amend on the usual terms.

BY COWEN, J. The plaintiff declares as president of the Bank of Central New-York, an association formed under the general banking law of April, 18, 1838, in assumpsit on a debt which he avers to be due to "The Bank of Central New York," the name of the institution, not to the members of the association jointly, naming them by their baptismal names, in the manner of stating a debt due to a partnership. To this declaration, it is objected, in the first place, that, admitting the plaintiff has a right to sue, the debt is not set forth according to its legal effect, because it is not stated as directly due to the plaintiff. The words of the statute, § 21, are, "that all suits, actions and proceedings, brought and prosecuted by, or on behalf of such association, may be brought or prosecuted in the name of the president thereof." Under this statute, the proper course of pleading is to show, in the first place, that a debt is due to the association; and then, that the nominal plaintiff was president at the time of declaring. That is done in this instance, and in apt words, provided the names of the real creditors are sufficiently designated by the general name, "The Bank of Central New-York."

The second point taken is, that associations under the act are mere partnerships of individuals, and cannot delegate the right of suing to the president in his own name, but must sue in their own baptismal names, unless they are a corporation. This is true at the common law. The parties holding the legal interest must sue in their own names; and they must all sue as natural persons, and all be named as plaintiffs. But it does not follow that the president or other person may not be enabled, by a special act of the legislature, to bring an action in his name as president, for VOL. XXII.

11

Thomas v. Dakin.

a debt due to a partnership. The power of the legislature to give a right of action to one man in his own name, for a debt due to another, has always been exercised from the earliest period of our legal history; and it is now too late to draw it in question. We have an instance in debts due upon promissory notes, which are made transferable by statute from the original creditor, so as to authorize actions in the name of the transferee. So of the assignees of insolvents; and what is still more pertinent, in the statute 5 Geo. IV. ch. 73, and several other acts down to 7 Geo. IV. ch. 67, we have statutes giving similar powers to certain officers or agents of banking partnerships, in England, Ireland and Scotland. The 5 Geo. IV. ch. 73, § 5, enacts, "That all actions and suits, to be commenced or instituted by or in behalf of any such society or copartnership, against any person or persons, &c. for recovering any debts, or enforcing any claims or demands due to such society or copartnership, &c. shall and lawfully may, from and after the passing of this act, be commenced or instituted and prosecuted in the name of such public officer, for the time being, of such society or copartnership," &c. The officer appointed by the English statutes to sue, is, in general, the secretary of the society or copartnership. The reason and history of their provisions, together with pertinent abstracts from the statutes themselves, will be found in Van Sandan v. Moore, 1 Russ. R. 458 to 462, and note (a) to p. 460. The history is there given, and the course of legislation approved by Lord Eldon; and the abstract is furnished by the reporter. The usual form and tenor of an act enabling such society or copartnership to sue and be sued in the name of its officer, is given in Colly. on Part. 654, 5, Am. ed. of 1834. Thus we have a direct legislative and judicial authority for the power in question, even admitting the "Bank of Central New-York," to be a partnership.

If it be a partnership, however, perhaps the declaration is defective on demurrer, in not correctly, or rather not fully describing the persons to whom the debt is due. It is not due to an artificial person, which can be described by a collective name, unless "The Bank of Central New-York"

Thomas v. Dakin.

be a corporation. In declaring on, or in any way describing a contract in pleading, you must always set it forth according to its legal operation and effect; or, at least, it must not be set forth contrary to its legal operation and effect. Lawes on Pl. 62, ed. of 1808, Portsmouth, N. H. Steph. on Pl. 289, ch. 2, § 5, Rule 6, Ed. of 1824, Philad. Gould's Pl. 156, 1st ed. ch. 3, § 174, et seq. A debt due to a copartnership may be expressed in the contract as a debt owing to the firm; but, in legal effect, it is due to all the members of the firm, and is uniformly so stated in pleading. If the action be in their own right, and in the ordinary form, it is well known that they must all be made parties in fact, and all their names set forth as plaintiffs in declaring. The omission of any names, or a variance in stating them, will be a ground of nonsuit at the trial, Colly. on Partn. 397, 399, Am. ed. of 1834; and by parity of reason, where the defect appears on the face of the declaration, it furnishes a ground of demurrer. The farthest that any court has gone towards sustaining an action in the name of a firm, was probably in Pate v. Bacon & Co. 6 Munf. 219. The case was on error, after issue and trial; from which it came before the court of appeals of Virginia. The ground of decision is not stated; but the action was allowed in the mere collective name, and I presume the court felt authorized to intend, after verdict, that Bacon & Co. was the name either of a natural person or a corporation. In the case at bar, there is no room for such intendment. Where the action is, as here, properly in the name of one person entitled to sue in respect to a claim due to others, greater generality may be tolerated in stating the names of the claimants, if the objection be not raised till after verdict; though I believe the indulgence has never been allowed on demurrer. In Wright v. Welbie, 1 Chit. R. 49, the nominal plaintiffs sued on a policy of insurance upon a ship. The declaration averred the interest to be in "A. and B. (named,) and certain persons trading under the firm of Messrs. William and John Bell & Co. ;" and that the policy was effected for the use of the said "A. and B. and said Messrs. William and John Bell & Co." After verdict, and

Thomas v. Dakin.

on motion in arrest because the parties in interest were not all named at length, none of the judges denied that the objection would have been fatal on special demurrer, though they refused to arrest the judgment. The real foundation of their refusal to interfere, is probably stated by Holroyd, J., p. 54, viz: that the interest of the owners, and therefore the title of the plaintiff to sue, though defectively set forth, must yet be presumed to have been fully proved at the trial, with all the requisite particulars. The court therefore refused the motion in arrest. The general ground of this refusal is stated and illustrated in 1 Wms. Saund. 228, a, note (1). Such a defect, says the learned annotator, is not any jeofail after verdict. In the case at bar, however, the defendant raises the objection by demurrer. A general demurrer is perhaps sufficient, though of this there is certainly some doubt; and it is questionable whether the defect is reached by any one among the assignments of special causes. If the objection be properly raised, I am strongly inclined to think that the plaintiff must fail, unless we are entitled to treat the bank as a corporation. In the latter view alone could it, in strictness, be presented on the record by a collective name. If it be not a corporation, then the declaration, in legal effect, expresses on its face that the debt is due to a joint stock company, which we cannot avoid seeing must consist of natural persons who are not named. Such a company is always a copartnership, or at least joint tenants, unless it be incorporated. Colly. on Partn. 626, 640, Am. ed. of 1834. It is so treated by the English statutes to which I referred as authorizing suits in the name of the secretary, I am aware it may be said that the great object of the statute was to avoid the common law difficulty of finding out and detailing all the names of which the firm may be composed; and Mr. Chitty, in his recent publication (A. D. 1836) of new precedents, expressly recommends a form under the general banking law of England, (7 Geo. IV. ch. 46,) which lays the debt or promise to "the said company" generally. Vid. 1 Chit. Prec. p. 12, Form No. 13, Am. ed. of 1839. He refers to no statute nor adjudged case as giving a direct sanction to such a form of

Thomas v. Dakin.

declaring, nor am I informed of any; and the doubt arising on the validity of the objection, and the form in which it is raised, has led me more seriously to inquire whether, in any view, it may not be entirely obviated by considering the bank for which the plaintiff sues, as a corporation. If it be so, then the debts declared on as due from the defendant must be taken, in legal effect, as belonging to an artificial person, by the name which that person has taken under the statute; and they could not have been declared upon as due to a copartnership.

The general banking law provides, that any person or association of persons, may legally transfer to the comptroller a portion of public debt, or equal portions of public debt and bonds and mortgages on real estate, 2, 7; and may then issue a corresponding amount of bank notes to circulate as money. 3, 14. Such person or association may make the notes obligatory, and payable on demand at their place of business, after having executed and signed them in the manner prescribed by law. $ 3. The signature to notes, &c. and all contracts, is to be by the president or vice president and cashier, § 21; any number may associate to establish offices of discount, deposite and circulation, with an aggregate amount of capital not less than $100,000. In order to render the association legally efficient, they shall make and file with the county clerk a certificate, specifying "the name assumed to distinguish such association, and to be used in its dealings," its place of business, "amount of the capital stock of such association;" the names, &c. of the shareholders, and the number of shares held by each; the period at which such association shall commence and terminate. 16. The association may carry on the business of banking by discounting, &c. receiving deposites, buying and selling bullion, foreign coins and bills of exchange, in the manner specified in their articles of association, &c.; by loaning money on real and personal security; "and by exercising such incidental powers as shall be necessary to carry on such business." They may choose one of their number as president of such association, and appoint a cashier and such other officers and