
    Tompkins v. The Branch Bank.
    August, 1840,
    Lewisburg.
    (Absent Parker, J.)
    Suit against Branch Bank — Against Whom Summons Must Issue. — Where au action is brought under the act passed March 19, 1832, entitled “an act authorizing suits against the branches o C banks in this commonwealth in certain cases,” the summons is not to be issued nor the declaration filed against the branch bank, but both must be against the mother bank by its corporate name.
    The declaration in this action was filed in the circuit court of Kanawha county, at January rules 1835. It was in the following words:
    “Kanawha county, to wit: The president and directors of the office of discount and deposit of the bank of Virginia at Charleston, Kanawha county, were summoned to answer William Tompkins of a plea of trespass on the case. And thereupon the said William Tompkins complains that the said president and directors, therefore, to wit, on the first day of October 1834, at the county of Kanawha aforesaid, in a transaction which then and there arose between the said William and the said office of discount and deposit, became indebted to the said William in the sum of 100 dollars lawful money of Virginia, for money by the said William before that time lent and advanced to, and paid, laid out and expended for the said president and directors, and at their special instance and request, and also in the further sum of 100 dollars of like lawful money, for other money by the said president and directors before that time had and received to and for the use of the said William; and being so indebted, they the said president and directors, in consideration thereof, afterwards, to wit, on the dayr and year aforesaid, at the count}' aforesaid, undertook and then and there faithfully promised the said William to pay him the said several sums of money in this count mentioned, when they the said president and directors should be thereunto afterwards requested. And for that also afterwards, to wit, on the day and year aforesaid, at the county aforesaid, in a certain other transaction which arose between the said William and the said office of discount and deposit, the said president and directors became indebted to the said William in the farther sum of 100 .dollars of like lawful money, for other money by the said William before that time lent and advanced to, and paid, laid out and expended for the president, directors and company of the bank of Virginia, and at the like special instance and request of the said president and directors of said office of discount and deposit; and being so indebted, they the said president and directors of said office of discount and deposit, in consideration thereof, afterwards, to wit, on the day and year aforesaid, at the county aforesaid, undertook and *then and there faithfully promised the said William to pay him the said last mentioned sum of money, when they the said president and directors of said office of discount and deposit should be thereunto afterwards requested. Nevertheless the said president and directors of said office of discount and deposit, not regarding &c. but contriving &c. have not, nor hath either of them, as yet paid the said several sums of money, or any or either of them, or any part thereof, to the said William, although often requested so to do, but the said president and directors last aforesaid to pay him the said William the same have hitherto wholly refused, and still do refuse, to the damage of the said William 200 dollars; and therefore he sues &c.”
    James C. M’E'arland, president of the office of discount and deposit of the bank of Virginia at Charleston, Kanawha county, was stated upon the record to have been summoned to answer; and there being no appearance, a conditional judgment was entered against the defendants, which at tthe succeeding rule day was confirmed, and a writ of inquiry awarded.
    At the following term, the general issue was pleaded, and the defendants entered a general demurrer to the plaintiff’s declaration and to each count thereof, in which demurrer the plaintiff joined.
    The demurrer being argued, on the 29th of May 183S the circuit court gave judgment for the defendants. Whereupon, on the petition of the plaintiff, a supersedeas was awarded.
    B. H. Smith for the plaintiff in error.
    Johnson and Summers for the defendants in error.
    
      
      Branch Banks — Liability to Suit. — In Hall v. Bank of Va., 14 W. Va. 630, it is said: “They (tbe branch banks) were not in themselves corporations and could not be sued as such. The mother bank was alone liable to bring suit for the contracts of the branches; though suit could be brought in the counties where the branches were located. See Tompkins v. The Branch Bank, 11 Leigh 372.” See monographic note on "Banks and Banking” appended to Bank v. Marshall, 25 Gratt. 378.
    
   STANAED, J.

If, on the general demurrer to the declaration, the court could intend that the president and directors of the office of discount and deposit of the bank of Virginia at Charleston might be a private corporation, or an association of individuals trading under that designation and personally chargeable on their contracts, as was hinted at rather than seriously contended for in the argument, then the demurrer ought to have been overruled, and the case permitted to progress to judgment against such private corporation or individuals; and the judgment would charge that corporation or those individuals, and not the corporation of the bank of Virginia. But that such intendment cannot be made, is, I think, free from all doubt. It is judicially known to the court that the corporation of the president, directors and company of the bank of Virginia exists, and that the designation of one class of its functionaries is “the president and directors of the office of discount and deposit at Charleston.” The functionaries so designated are not a corporation, and have not, under that designation, corporate capácity to contract, or effects to charge; and any contract made by them is effectual onl3r as a contract of the corporation of the president, directors and company of the bank of Virginia. They are nonentities to the end of creating any other corporate responsibility, and their contracts are nugatory and abortive for any other purpose, unless they are so framed as to create a personal responsibility of those who are president and directors of Ihe office. Without enquiring whether or no the president and directors may so contract as to subject them to personal responsibilit}', and consequently to suit on that responsibility, it is, I think, perfectly clear that in this case the suit is not on such responsibility, and tha.t no judgment could be taken which would charge them personally. That it could, was not seriously insisted on in Ihe argument. It is obvious that the claim of the plaintiff is not on an individual or personal, but an alleged corporate responsibility, and no judgment could be properly rendered in this case that would personally charge, or the execution on which could be levied on the effects of the individuals who, at the time of suit or judgment, or thereafter, might be the president and directors of the office. It has already been shewn that no suit against them as constituting in themselves a corporation distinct from the bank of Virginia, can be maintained, because they have no such corporate character, no capacity to contract, no effects to charge. All this has been in effect conceded in the sequel of the argument of the counsel for the plaintiff in error, and he endeavours to maintain that this is a suit on a responsibility of the corporation of the bank of Virginia, the judgment in which would only charge, and the execution on that judgment be levied only on the effects of that corporation; and that the suit, in the manner in which it has been brought and conducted, is warranted by the act passed the 19th of day of March 1832, Suppl. to Rev. Code, p. 381. In other words, the proposition in effect is that the act authorizes a suit in which the process, declaration and judgment are in terms to be against the office or branch, *'or the president and directors of the office or branch, but the cause of action must be a responsibility of the corporation, (the president, directors and company of the bank of Virginia) and the judgment and execution must charge or be levied on the effects of that corporation only. If this be so, then the act authorizes a suit against the bank, by the description of the branch bank, or the president and directors of the branch bank. Without questioning the power of the legislature to authorize a suit on the contract, and charging the effects, of the corporation, by process and pleadings giving any name to the defendant that whim or caprice may dictate, as a substitute or equivalent for the corporate name, and supposing that power to be exercised by the act in question, still the declaration in this case is radically defective, and the demurrer to it was properly sustained. Whatever name is assigned to the defendants whether branch bank, or president and directors of the office of discount and deposit, the case to be made by the pleadings (that being the only warrant for the suit) is a consummate right of suit against the bank of Virginia, arising out of transactions between the plaintiff and the branch named in the process and pleadings. The suit is not authorized on all transactions with the branch, or the president and directors thereof, but only on such from which a controversy exists with, and on which a suit is maintainable against, the corporation. It is therefore not sufficient to allege a transaction with or contract of the branch, or the president and directors thereof, (for in truth every such contract, unless it be that of the corporation, made by the agency of the branch or of the president and directors thereof, is nugatory and abortive of any responsibility of the corporation) but the responsibility or contract must be alleged as that of the corporation, otherwise the case that would sustain a suit against the corporation is not made, and consequently it cannot appear to be war«ranted by the *act. Neither of the counts in the declaration shews necessarily any engagement, contract or responsibility of the corporation. The second' count is as defective in this respect as the first; for though it alleges the advance of money to the corporation, there is no averment that a controversy with the corporation respecting it had arisen, and no assumpsit by the corporation is charged, so as to shew that the plaintiff could sustain a suit therefor against it. _

Were I to confine my opinion to the particular declaration in this case, the general question respecting the construction of the act of 1832, in regard to the manner of conducting suits under its provisions, would remain unsolved. As that question has been argued, and is one of general importance, and as I have formed a distinct opinion on it, I deem it proper to express it.

I have already noticed the construction contended for by the plaintiff in error, which results in giving, in substance and effect, a suit against the corporation, but to be conducted against it by the name of the branch bank, or the president and directors of the office of discount and deposit. To say the least of it, this would be a whimsical change, without any apparent reason, liable to inconvenience, and recommended by no conceivable advantage; and the intention to make it should not be imputed to the legislature, unless that indention be evinced by language free from all ambiguity.

This construction cannot be made without changing the punctuation ; and if that be done, still the letter of the act would require the suit, pleadings and judgment to be against the branch bank, eo nomine, and not otherwise. Confessedly the act cannot operate according to its letter, and justify the suit and pleadings in this case. Under such circumstances, its sound construction is to be sought in the admitted object of the act, and the forms to be observed should be moulded to harmonize with that object. The object of the act was to enable ^parties having controversies with the corporation to institute suit on such controversies at the place where the transaction occurred out of which they arose, and to facilitate the introduction of the case into court by an easy service of process. The act had in, view7 the prosecution of no claim but one against the corporation, the judgment and execution for which should charge the effects of the corporation only. As the suit was to be for a claim on the corporation, the pleadings must of necessity manifest that claim, and the judgment be rendered in conformity with it. All these objects were attainable by serving process as the act directed, and, on such process) declaring upon the contract or responsibility of the bank. The summons, in strictness, should be to answer a claim of the plaintiff on the corporation; since for such claim only could the suit be brought. In opposition to the construction which requires the pleadings and judgment to conform to the claim', (that is, a declaration against the president, directors and company of the bank of Virginia, on the contract or responsibilitjr of the corporation, and a judgment against the president, directors and company) it is objected that the act, by a change of punctuation, authorizes the suit against the branch bank. If a change must be made to sustain a construction which imputes the purpose of making so whimsical and unnecessary an alteration in the name of one of the real parties, involving difficulties and inconvenience in the pleadings and judgment, and the language may be interpreted in reference to the end and in conservation of all the purposes of the act, avoiding all difficulties and incongruities in the pleading and judgment, the latter rather than the former interpretation should be adopted. Indeed the urgency of the case may be such, that the latter interpretation would be given, though, to make the act distinct as interpreted, words should be changed, rejected or supplied. Could the interpretation be given, 'x'iu no other way than by understanding the words “controversy against any such branch bank” as equivalent to “controversy with any such branch bank,” that would be justified by sound principles of construction. But that is not necessary in this case. The object of the act was to authorize a suit for a claim on the corporation, having a particular origin, to be instituted at the place where it originated. To institute a suit is to sue out process in it; then if the latter words be substituted for the former, the act will authorize the party to sue out process in a particular jurisdiction, in a suit which can be maintained against the corporation ; and as the act authorizes the process to be served on the officers of the branch bank, there is very little straining of language to characterize the process as one against the branch bank, which the law authorizes to be served on the officers thereof. At all events the suit in which the process is issued must be one that can be maintained against the corporation, the judgment in it is to charge, and the execution on the judgment is' to be levied on, the effects of the corporation; and it is proper that the declaration should be against the corporation by its corporate name. This being so, the declaration in this case is fatally defective.

Having reached the conclusion that the declaration is not against the corporation, and the corporation is not thereby made a party, and the further conclusion that it charges a corporate responsibility of the president and directors of the office, and that we cannot intend that there is or may be a private corporation by that name, but have judicial cognizance of the fact that the designation in the declaration is of a mere agency of a public corporation, having no corporate character per se, to contract, sue, or be sued; that is, that there is no corporate character of the defendants in respect to which the plaintiff can have judgment; I think that we must make the like negation of corporate character '^throughout, and as in that character we cannot render judgment against them, we cannot render judgment in that character in their favour, and therefore judgment cannot be given for them for costs on the affirmance of the judgment.

CABELL and BROOKE, J.,

concurred in the opinion that the judgment should be affirmed, without costs.

TUCKER, P.

This is an action arising out of a transaction between the plaintiff in error and the branch bank of Virginia at Charleston in Kanawha county, brought under the provisions of the act of March 19, 1832, entitled 1 ‘an act authorizing suits against the branches of banks in this commonwealth in certain cases.” The process is not in the record, not having been made a part thereof by oyer: but the declaration commences with shewing that the president and directors of the said branch bank were summoned to answer the plaintiff of a plea of trespass on the case; and it proceeds accordingly throughout to complain of them, to set forth their indebtedness for money lent to or laid out for them, or lent to or laid out for the president, directors and company of the bank of Virginia, at the request of the defendants, in considera-1iou whereof the said defendants promised to pay &c. and lays the breach that they did not pay.

This action presents a perfect anomaly. It is brought against the agents of the bank of Virginia (for such the president and directors of the branch bank are) instead of against the bank itself: it is brought against a board constituting the president and directors of the branch, who are not sued in their individual character, and yet are not a corporation capable of being sued. It demands a judgment which is to be rendered against this body of president and directors, and yet is to be enforced by execution against the property of the corporation ‘(known to the law) of the president, directors and company of the bank of Virginia; and thus, while it proceeds against a quasi corporation, which is no corporation, and asks for judgment against it on its own alleged indebtedness, it looks to the enforcement of that judgment against the property of the Virginia bank, by an execution which, if it correspond with the judgment, never can command the officer to levy on one particle of its propertj'.

All these embarrassments arise from a want of perspicuity in the act, and from construing it rather according to its letter than its spirit. Can it be conceived to have been the legislative design to change, without a motive, the charter of the bank, and to repeal the provision which gave it its name of “the president, directors and company of the bank of Virginia,” and directed that by that name it should sue and be sued? Can it have been designed to authorize a suit against a quasi corporation, having no legal name by which to be sued, and having in fact no legal existence as a corporate body; and this too without prescribing by what name they should be sued? Can it have been designed to break down, without a motive, that symmetry in legal proceedings which requires that the execution shall be supported by the judgment, the judgment by the pleadings, and the pleadings by the demand? Can the legislature have designed, either that on a judgment against the branch bank, in which the mother bank would not be named, an execution should issue against the mother bank, or that the officer of the law, with an execution not directed against the property of the mother bank, should, without the command of the process, proceed to levy upon it? I cannot think so. The design of the act was merely to authorize suits against the bank, on transactions with a branch bank, in that county in which the branch was situated, and to make the service upon its officers equivalent to service' on the ^officers of the mother bank at Richmond. The act must be construed in conformity with this intention. In doing so, we must not on the one hand disregard the charter principle that the bank must be sued by its corporate name, nor imagine on the other that a board of agency shall be sued by no name at all recognized by the law. Construe the act by its letter, and it provides, it is true, that the branch bank may be sued. But how sued? by what name sued? It cannot be sued as a corporation, for it is none. It cannot be sued by the name of the president and directors of the branch bank, for it has no legal name. But the branch bank may be sued by issuing process in the county where it is established, and serving it as the law directs, on its president or cashier. This is what is meant by suing the branch bank. It consists in instituting the proceeding in that county where the branch is established, and giving notice to its officers to appear and defend the suit. But with this it is perfectly compatible that the process, the declaration, and the subsequent proceedings should be against “the president, directors and company of the bank of Virginia.” .No action could be maintained otherwise. For there can be no cause of action against the branch bank as such. Being but an agent, — being no corporation, its liability is the liability of the mother bank. The act itself contemplates no liability of the branch as such. Its language is, “any person &c. having any controversy with any of the banks, which shall have arisen out of any transactions between such person &c. and any one of the branches.” The controversy then is with the bank itself, though the transaction was with the branch. The bank, and the bank alone, as the corporation, is liable: the demand must be against it; the contract must be laid with it, for such it truly is; the implied promise must be laid as made by it, and the breach must correspond. Then will follow in symmetrical *order the pleadings, the verdict, and the judgment ; upon which last, such an execution as the statute contemplates will issue against the goods and chattels of the bank, wherever found. Thus every thing is harmonious and consistent with legal principles, while the present action is in irreconcilable conflict with them all.

I am of opinion to affirm the judgment, without costs.

Judgment.affirmed, without costs. 
      
      This statute (Acts of 1831-2, ch. 75, p. 68J enacts, “that hereafter any person or persons, body or ■bodies politic or corporate, having' any controversy with any of the banks within this commonwealth, established by the laws thereof, which has or shall have arisen out of any transactions between such person or persons, body or bodies politic or corporate, and any one of the branches of either of the said banks, it shall be lawful for any such person or persons, body or bodies politic or corporate, desiring so to do, to institute any suit at law or in chancery, which by law could now be maintained against the said mother bank on any such controversy against any such branch bank, in any court of record in the county or corporation where the office of discount and deposit of such branch bank is established; and in all such cases it shall be sufficient to execute a summons instituting such suit, on the president, or in his absence, the cashier, of such branch bank. And any execution which may issue upon any judgment so recovered, shall be levied in the county or oorporation where the judgment is'obtained; and if there be no property, or if the property taken in execution be not sufficient to ttisfy the same, then the execution shall be levied, >r the amount due thereon, on any property of the .■ank in any part of the commonwealth.” — Note in Original Edition.
     