Onondaga County Bank v. Carr

Headnote

A replication to a plea of nul tiel corporation in a suit by a bank, reciting the title of the act of incorporation and the date of its passage, and concluding to the country, is bad ; such replication should conclude with a verification.

The proper mode of pleading in such cases, is to aver in the declaration that the plaintiffs are a corporation, setting forth the title of the act creating the corporation and the date of' its passage.

Motion for judgment for frivolousness of demurrer. The plaintiffs declared on the common money counts. The defendant pleaded nul tiel corporation. The plaintiffs replied precludi non, because, in pursuance of an act of the legislature, entitled “ An act to incorporate the president, directors and company of the Onondaga County Bank,” passed 15th April, 1830, they the said plaintiffs, became, and at the time of the commencement of this suit were, and still are a body politic and corporate, and have a right as such to commence and prosecute this suit, concluding to the country. The defendant demurred and assigned for special cause, that the plaintiffs had concluded their replication to the country instead of concluding with a verification.

moved for judgment, alleging the demurrer to be frivolous. He insisted that the replication was in strict conformity to the provisions of the statute, which dispensed with the necessity of reciting the act of incorporation and the proceedings by which the corporation was created (2 R. S. 459, § 13).

insisted that the brief mode of pleading allowed by the statute and adverted to by the counsel for the plaintiffs, did not relieve the plaintiffs from proving on the trial the existence of the corporation in the manner heretofore necessary, when the plea of nul tiel corpora tion was interposed; the statute itself contemplating such proof (2 R. S. 458, § 3). But if the plaintiffs were permitted to reply generally, as had [444] been done in this case and to conclude to the country, the effect would be to relieve them from the necessity of such proof. At all events, it would preclude the defendants from setting forth by way of rejoinder, that the corporation had been ousted of its franchises by a proceeding in the nature of a quo warranto, or other matter going to defeat the action. .To give the defendant the opportunity thus to rejoin, the plaintiffs should have concluded their replication with a verification, instead of concluding to the country.