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Beecher agt. Conradt.

term, is of a nature, as it goes to the jurisdiction of this court, which can not be waived by any lapse of time.

This is an appellate court only, and has jurisdiction to review upon appeal, every actual determination made at a general term, by the supreme court, in a judgment in an action commenced therein. (§ 11 of Code.) This is such an action. It remains only to ascertain whether there has been an actual determination of the case made at the general term. The judgment-roll is full and explicit on this point. It says, that the motion for a new trial was made and argued at a general term of the supreme court, and that said court “ordered, adjudged," &c. This certainly must be held to be a judgment on an actual determination made at a general term. It is true, that the language used might imply that the decision of the supreme court was on an original motion, and not on appeal. But the appellant did not enter up the judgment, and cannot, on a motion to dismiss the appeal, be concluded by its language, unless it is so clear against him as to show that the court below had no jurisdiction in the premises. I think we are bound to presume, although it does not affirmatively appear by the record, that the case was regularly at the general term by appeal, and that we cannot go behind the record, which shows an actual determination at general term, to inquire whether there was a judgment at special term from which an appeal had been taken. The motion to effect that object should have been made in the court below, before the final judgment on the merits at general term.

The fifth ground of motion is intended to reach the question lastly discussed, viz., the want of precise and technical language in the entry of the judgment of the general term. If there was a bill of exceptions and an appeal to the general term, then the general term, on such appeal, could grant or refuse a new trial · on such bill of exceptions, and from such determination an appeal to this court could be taken.

We are to presume that there was a regular appeal to the general term. At any rate the respondent cannot, on this mo

Woods and wife agt. Susan Thompson and others.

tion, have the appeal dismissed for any reason stated in his notice of motion.

The motion must, therefore, be denied. But, as the return and printed copies of the case must be amended, leave is granted to the appellant to make such amendments, without costs to either party on this motion.

SUPREME COURT.

STEPHEN Woods and wife agt. Susan THOMPSON and others.

A married woman is obliged to prosecute by anext friend only where her hus

band cannot be joined with her-meaning evidently where she claims in op

position to him. Although, when the action concerns her separate property, she may sue alone,

and, as a necessary consequence, is bound by the judgment. It does not alter her liability in this respect if the husband is joined with her as a co-plaintiff, when they have not adverse interests in relation to the subject of the claim. Therefore, where the husband and wife bring the action, but the wife verifies

the complaint, and is the principal actor in the suit, no next friend for the wife is necessary; and it is no objection that the husband is joined, as it can not exempt her from the liability of being bound by the judgment, as when she sues alone.

New-York Special Term, January, 1855.
Motion for appointment of next friend.

J. J. TOWNSEND, for motion.
E. R. BOGARDUS, opposed.

CLERKE, Justice. Before the Code, a married woman must have sued jointly with her husband, both in equity and at law, unless she claimed a right in opposition to him; and the suit was declared to be the suit of the husband only; so that a decree or judgment would not have bound the wife. This was

Woods and wife agt. Susan Thompson and others.

probably in analogy with the principle of the common law, that all acts performed by the wife during her coverture are void.

But now, by the Code, (§ 114,)“ when the action concerns the separate property of the wife, she may sue alone,” and as a necessary consequence, she is bound by a judgment in the action.

Does it alter her liability in this respect, if the husband is joined with her as a co-plaintiff?

It is always proper, though not always necessary, that the husband should be joined with the wife in prosecuting her claims, when they have not adverse interests in relation to the subject of the claim. I

It has been decided in many cases, indeed, that the husband ought not to join with the wife as a co-plaintiff, in a suit relating to her separate property; but this was on the ground that he might have filed the bill without her knowledge or consent; and in such cases, the court has, on demurrer, ordered the name of the husband to be struck out as plaintiff, and inserted as defendant. But, in this case, the wife verifies the complaint, signifying not only her full knowledge of its contents, but her consent that the action should be commenced. She is, therefore, the principal actor in the suit; and the mere circumstance that her husband is a co-plaintiff, cannot exempt her from the liability of being bound by the judgment, to which she is expressly subjected by the Code, when she sues alone.

By the same section, she is obliged to prosecute by a next friend, only where her husband cannot be joined with her, meaning evidently where she claims a right in opposition to him.

I, therefore, conclude that the husband is properly joined with the wife as a co-plaintiff; that no next friend is necessary, and that any judgment which may be obtained in the action will be binding on her.

Motion denied, without costs.

..

Johnson agt. Kemp.

SUPREME COURT.

Johnson, President of Hanover Bank, agt. ALFRED F. KEMP.

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. This is required by the 13th section of the 4th title of chapter 8, of the 3d part of the Revised Statutes, which is retained by $ 471 of the Code.

New-York Special Term, February, 1855.

The complaint states that there is due from the defendant, to the said bank, the sum of $864.28, which the plaintiff claims upon a promissory note, which it sets forth; and also states that the said bank is a banking association duly organized, whereof said Johnson is president; and that the plaintiff is holder and owner of the note; and that the same is past due and unpaid, and payable to the plaintiff.

The defendant demurs, because the complaint does not show or refer to the law under which the bank is doing business.

Chas. Tracy, for plaintiff.
- Wait, for defendant.

MITCHELL, Justice. The Code, § 471, (390) retains proceedings provided for by chapter 8 of the 3d part of the Revised Statutes, except the 2d and 12th titles. Section 13 of the 4th title of this chapter of the Revised Statutes provides, that in actions by or against any corporation, created by or under any law of this state, it shall not be necessary to recite the act of incorporation, or the proceedings by which such corporation was created, or to set forth the substance thereof; but that the same may be pleaded by reciting the title of such act and the date of its passage.

This section includes both corporations created by, special Johnson agt. Kemp.

law and those created under a general law—the last being referred to in the terms “created under any law of this state," and “the proceedings by which such corporation was created;"> the first, “created by (not under) any law,” and “the act of incorporation.” It applies, therefore, to banks under the general banking law; and such banks, when suing, should recite the title of the act, and the date of its passage, under which proceedings were had for its incorporation.

When an individual sues, his existence is assumed from the · suit being in his name; but when a corporation sues, it must

show how it was created, that the courts may judge whether it was created under authority of any law, and whether that law authorizes the contract, or cause, for which the suit is brought. Without this statement, there is a fatal omission of one of the material elements of a good cause of action.

This bank may, for aught that appears, be a foreign bank, without any right to sue in the name of its president, or even in the name of the bank; or, if it be an association doing bank.. ing business in the state, it may not be incorporated according to the laws of the state. By referring to the general banking law by its title and date, and alleging that the bank was duly incorporated under that act, this defect would be cured. The defect is not remedied by the provision in the Code, that in an action on an instrument for the payment of money only, it shall be sufficient to give a copy of the instrument, and to state that there is due thereon to the party, from the adverse party, a specified sum. (Code, § 162.) That applies only to such matters as constitute a cause of action when an individual is suing—not to those which are essential to show the legal existence of the party, and his capacity to sue.

The motion for judgment is denied, with $10 costs.

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