Ogdensburgh Bank v. Van Rensselaer — 6 Hill & Den. 240

Majority

p. 240

The Ogdensburgh Bank vs. Van Rensselaer, President of the St. Lawrence Bank.

Headnote

A declaration containing the common money counts commenced thus—“ B. complains of H., president of The St. Lawrence Bank, a banking association organized under the act passed April 18th, 1838, to authorize the business of banking”— and then proceeded to allege that the defendants became indebted, promised to pay &c., but afterwards refused. Held, not a declaration agamst the bank, but against H. individually, the words added to his name being mere descriptio persona.

Otherwise, had the declaration alleged that the bank became indebted, and promised to pay &c.

J. Edwards, for the plaintiffs,

moved for leave to discontinue this suit without costs, on the ground that since the suit was commenced and tried the St.' Lawrence Bank had become insolvent, and all its effects have passed into the hands of a receiver appointed by the court of chancery. The plaintiffs obtained a verdict on the trial, and the defendants took a bill of exceptions, which has not yet been argued.

E. A. Doolittle, contra,

said this was not a suit against the St. Lawrence Bank, hut against Henry Van Rensselaer, by the description of president &c. He produced the declaration’, which was as follows : “ The Ogdensburgh Bank, plaintiffs in. this suit, by &c., complain of Henry Van Rensselaer, president of the St. Lawrence Bank, a banking association organized under the act foe.., defendants in this suit, of a plea foe., for that whereas the said defendants, heretofore, to wit, on foe., at foe., were indebted to the said plaintiffs in the sum of $1000, for so much money lent and advanced, &c.”—going on with the money counts, and alleging that the defendants, being indebted, promised to pay &c. Breach, that the - defendants have not paid. Copies of several bills of the St. Lawrence Bank were given with the declaration by way of bill of particulars. It further appeared that at the trial exceptions were taken on

p. 241

the ground that the action was against Yan Rensselaer as an individual, and that he was not personally liable for the notes on which the plaintiffs sought to recover.

This is an action against Henry Yan Rensselaer, and the words which follow his name—president of the St. Lawrence Bank—can only be regarded as a descriptio persones. The question was decided in Delafield v. v. Kinney, ( 24 Wend. 345 .) It was also decided at the last term on the argument of a cause where the declaration was framed in the same way against an executor. And it is decided by all the precedents in the books where one is sued in autre droit. If the plaintiffs wished to recover a debt due from the St. Lawrence Bank, the declaration begins well enough by naming Yan Rensselaer, and describing him as president. But the pleader should then have proceeded to allege, that the St. Lawrence Bank was indebted, and, being indebted, promised to pay. And the breach should be, that the bank had not paid. And when one of these corporations sues in the name of its president, the pleader should allege that the defendant was indebted to the bank—not to the plaintiff.

It is said that the plaintiffs evidently intended to sue the St. Lawrence Bank. I do not doubt that the fact is so. But we are not interpreting a contract, and searching out the meaning of the parties from doubtful and equivocal words. This is a question of pleading, and'if we had an. affidavit that the pleader meant the bank, and not Yan Rensselaer, it would still be a declaration against the individual, and not against the bank.

As there is no pretence that Yan Rensselaer is insolvent, there is no foundation for the motion.

Motion denied.

Cases cited

Delafield v. Kinney 24 Wend. 345 N.Y. Sup. Ct. p. 241