
    Mason v. Farmers Bank at Petersburg.
    March, 1841,
    Richmond.
    (Absent Cabell and Stanard, J.)
    Branch Banks — How Sued — Construction of Statute.— Upon the construction of the statute of March 19, 1832, “authorizing- suits against branches of banks in this commonwealth; ” Held, a suit cannot be maintained against the president and directors of the branch; the suit must still be brought against the principal bank by its corporate name.
    Same — Same—“President and Directors” — Error—Jeo-fails. — And where a suit is brought against the president and directors of a branch bank, this is not a mere misnomer, which must be pleaded in abatement, but is a bar to any recovery; and though a verdict be founded upon the general issue pleaded, the error is not cured by the statute of jeofails.
    Same — Same—Same—Costs.—In such case, however, the defendants cannot have judgment for costs; for they can no more have judgment against the plaintiff, than he can have judgment against them.
    The Farmers Batik of Virginia is a body corporate, chartered by act of assembly, by the name and style of “The President, Directors and Company of the Farmers bank of Virginia.” And the bank is authorized and required by its charter, to establish, and has in fact established, offices of discount and deposit at several places, and among others at Petersburg. These offices, or (as they are commonly called) branches of the bank, are each under the management of a president and directors ^appointed by the stockholders in pursuance of the charter of the bank. But the president -and directors of the respective offices or branches have never themselves been incorporated by such names, as independent bodies : they are only officers of the Farmers bank.
    Mason brought an action of assumpsit in the circuit superior court of Petersburg, to recover a large sum of money, which he claimed as having been deposited by him in the Petersburg office. The process was served on the president of that office. And the first count of his declaration was in these words; “Peyton Mason complains of the president, directors and company of the office of discount and deposit of the Farmers bank at Petersburg, in custody &c. of a plea of trespass on the case : For that whereas, heretofore, to wit, on the 12th day of February 1812, the general assembly of Virginia passed a law and granted a charter, incorporating a company under the style and denomination of The Farmers Bank of Virginia, to be under the control of a president, directors and company, and among other things it was enacted and ordained that there should be established in the town-of Petersburg, an office of discount and deposit of the said Farmers Bank of Virginia, and whereas the said Peyton Mason, the plaintiff, became a dealer at the said office of discount and deposit, to wit, on the 1st day of January 1829, and on divers days and times subsequent to the date aforesaid, amounting to the sum of 50,000 dollars, and the said sum of money being so deposited, the said president, directors and company became indebted to the plaintiff in the skid sum of 50,000 dollars, and being- so indebted, assumed upon themselves, and then and there, to wit, on the day, month and year aforesaid, at the town of Petersburg aforesaid, undertook and promised to pay to the plaintiff the aforesaid sum of 50,000 dollars, when they the defendants should be thereto afterwards required.” *There were three other counts, in all of which the plaintiff in like manner counted on the as-sumpsit of the defendants. “By reason whereof and of the act of assembly in such case made and provided, an action hath accrued to the plaintiff to demand and recover from the defendants the aforesaid several sums of money.” Nevertheless the defendants not regarding their said several promises and undertakings, but contriving &c. to deceive and defraud the plaintiff in this behalf, have not as yet paid the said several sums of money or either of them, or any part thereof, to the plaintiff, though often requested to do so, but the defendants to pay him the same have hitherto wholly neglected and refused, and still do refuse” &c. The record stated that the defendants appeared by attorney, and pleaded the general issue. At the trial the jury found a special verdict, and referred the question to the court, whether upon the facts found, the plaintiff was entitled to recover the money he claimed. The circuit superior court decided the case upon the merits, and holding that the law was for the defendants, gave them judgment for the costs. The plaintiff applied to this court for a supersedeas ; which was allowed.
    The question on the merits (namely, whether upon the facts found in the special verdict, Mason was entitled to the money he claimed) was a very important and interesting question of law ; which was elaborately argued by Macfarland for the plaintiff in error, and by R. C. Stanard and Taylor for the defendants ; and Leigh for the plaintiff was proceeding in the reply, when he was stopped by the court; which suggested, that, upon the construction of the statute of 1831-2, ch. 75, Sess. acts, p. 68, though in a controversy with any of the banks of Virginia arising out of transactions between the plaintiff and any one of the branches of the banks, the plaintiff might bring his suit in the court of *the county or corporation where the branch was established, and his process might be served upon the president or cashier of the branch, and his execution might be levied in the county or corporation where the judgment should be obtained ; yet the suit must be brought against the bank itself, which was the only corporate body responsible for all debts contracted by each of its branches in the course of their dealings, not against the president and directors of the branch, which were not corporate bodies, nor any way responsible for such debts. And the court referred to the case of Tompkins v. The Branch Bank of Virginia, 11 Leigh 372, where it was so decided.
    The counsel for the plaintiff endeavored to obviate the objection to the regularity of the proceedings, on various grounds; relying, chiefly, upon a distinction they took between the case of Tompkins v. The Branch Bank of Virginia, where there was a demurrer to the declaration, and the present case, where there was a verdict; and insisting, that, as this was “a defect in the declaration, whether of form or substance, which might have been taken advantage of by a demurrer, and which had not been so taken advantage of,” the irregularity was cured by the verdict, by the provision of our statute of jeofails, 1 Rev. Code, ch. 128, §103, p. 512.
    
      
      Stanard, J., had been counsel in the cause.
    
    
      
      “Farmers’ Bank of Virginia” — Suit by That Name-Objection on Appeal. — It was held in Farmers’ Bank v. Willis, 7 W. Va. 32, 52, citing the principal case, that when “The Farmers’ Bank of Virginia,” by that name, brought suit, and the defendants made no obj ection, on that account, but pleaded in bar, and agreed the facts, using that name, and the “president, directors and company of the Farmers’ Bank of Virginia,” indiscriminately, as the name of the same corporation, and submitted the case to the court, which gave judgment in favor of the bank; the defendants, who appealed, cannot, in the appellate court, obj ect successfully to the name in which the suit was brought.
      Corporations — Must Sue and Be Sued in Corporate Name. — The principal case is cited in Stewart v. Thornton, 75 Va. 217, to the point that a corporation must sue and be sued in its corporate name. The principal case is cited in 1 Va. Law Keg. 548. See monographic note on “Corporations (Private)” appended to Slaughter v. Commonwealth, 13 Gratt. 767.
      No Cause of Action Alleged — Statute of Jeofails, — See foot-note to Boyles v. Overby, 11 Gratt. 202. The principal case is cited with approval in Robrecht v. Marling, 29 W. Va. 774, 2 S. E. Rep. 831; Boyles v. Overby, 11 Gratt. 206. See the principal case distinguished in Holliday v. Myers, 11 W. Va. 288, 290; Spengler v. Davy, 15 Gratt. 397, 398. In the latter case, Judge Daniel, after reviewing the principal case, Ross v. Milne, 12 Leigh 204, and Boyles v. Overby, 11 Gratt. 202, said; “In neither one of these cases was there any room for the inference of facts, supplementary to and consistent with those alleged by the plaintiff, that could make out a good cause of action. In each case, the allegations of the plaintiff showed affirmatively that he had no right to recover.”
      See monographic note on “Amendments” appended to Snead v. Coleman, 7 Gratt. 300.
    
   TUCKE7R, P.

The argument on the merits of this case has been suspended, for the purpose of settling a preliminary question as to the character of the action. It is a suit brought, not against The Farmers Bank of Virginia, which is a chartered institution, but against the branch of that bank at Petersburg, which is not a corporation in itself, but is only an agent of the corporation. Looking to the charter (which though not found in the verdict, is a public law of which we must take notice, Stribling v. Bank of the Valley, 5 Rand. 132,) thecourt must know that The Farmers Bank is a chartered ^'institution, and has a branch established by law in the town of Petersburg. Two questions then present themselves : 1. Whether an action can be maintained against the president and directors of the office of discount and deposit at Petersburg ? and 2. Whether this action is so brought ?

As to the first, it may be considered as definitively settled by the judgment of this court in the case of Tompkins v. The Branch Bank of Virginia ; in which two judges, who did not sit in that cause, express, in this case, their entire concurrence. The grounds upon which that decision was made are believed to be unassailable ; and we see no reason to depart from a precedent, which has settled a point of practice and the construction of a statute, for the future government of the profession.

2. Is this an action against the corporation itself, or is it an action against the branch bank ? To this it may be answered, in the first place, that there is no sensible distinction in this respect, between the case at bar and that of Tompkins v. The Branch Bank of Virginia, so that, without more saying, that case would determine this. But, secondly, a reference to the declaration ascertains beyond question, that the demand is against the branch and not against the corporation, and the assumpsit is laid accordingly. [The judge quoted the words of the declaration, and said] Language cannot be more plain, and argument would be thrown away in an attempt to prove more clearly, that the action is against the Branch Bank, and not against the corporation itself. It is against the agent, not against the principal. The two boards are distinct, composed of distinct and different individuals, with different powers and authority. The Mother Bank represents the corporation : the Branch Bank does not; it is the mere agent of the corporation, appointed by the stockholders indeed, but only for the management of the branch, “under such agreements *and subject to such regulations as shall be deemed proper, not contrary to law or to the constitution of the Bank.” Hence it is obvious, that the two bodies of directors are distinct, and that a suit against the president and directors constituting the bank agency at Petersburg, cannot be a suit against the president directors and company, representing, and indeed constituting the corporation itself. There is, indeed, a further distinction between the Branch and the Bank itself, in their name and style : the true name and style of the former is “The president and directors of the office of discount and deposit;” the style of the latter is “The president, directors and company of the Farmers Bank of Virginia.” The Branch Bank is not the company; and the words “and company” are in the declaration improperly added to their style. Strike them out, and the company is not.sued: insert them and you erroneously bind up with the company as constituting the corporation, not those who do constitute it, but a set of mere agents who do not.

Many ingenious suggestions have been made for transposing the words of the declaration, so as to make this an action against the corporation. It would be useless to examine them in detail, and to prove their unreasonableness. Suffice it to say, that where the meaning of words is plain, there can be neither necessity nor propriety in additions, transpositions, and rejections as surplusage, for the purpose of meeting the exigencies of a plaintiff’s case. Such is the case here. There is no room for difficulty or doubt, as to the true interpretation of this declaration ; and I cannot therefore consent to tear words from their context in one place, and insert them in others, or to reject words as sur-plusage, in order to make it that which it is not. Nor can I admit for a moment, that this is to be likened to the construction of wills &c. The very authority cited at the bar, repels the idea. “There is a difference between writs, declarations &c. and leases and obligations; for if the name *of a corporation be mistaken in a writ, a new writ may be purchased of common right, but it were fatal if mistaken in leases and obligations, and the benefits of them would be wholly lost; and therefore, one ought to be supported and the other not.” 10 Co. 125 ; Gilb. C. B. 234, cited 1 Bos. & Pull. 42 ; 4 Bac. Abr. Misnomer & Addition D. p. 760.

It was argued, that the error here is cured by the statute of jeofails. This can only be supported upon what I conceive to be a misconception of the character of the error. It seems to be supposed, that this is but a case of misnomer, which the party must object by plea in abatement. But in my judgment the error lies deeper, and is more fatal. There is, indeed, a misnomer of the Branch Bank in the addition of the words “and company and this, I concede, might be striken out. But the essential error is, that the suit is brought against defendants who have no corporate character, and yet not against them in their individual characters. Considering the defendants as the Branch Bank (the mere agent of the corporation), and not as a corporation itself, it is a non-entity, incapable of suing or being sued, and incapable of contracting, except on the part of the corporation itself. The declaration makes a demand against parties, who cannot be made liable to an action, and against whom no judgment can ever be rendered. Now, where this is the case, the defect is fyeyond the cure of a verdict, or of the omnipotent statute of jeofails. “No proof at the trial can make good a declaration, which contains no grounds of action on the face of it; ” Rushton v. Aspinwall, 2 Doug. 679, and there can be no ground of action against persons who cannot contract but as agents for others,, and are incapable of being sued.

The same answer may be given to the cases which have been cited. They were cases of mere misnomer. In one of them, The mayor and burgesses of Stafford v. Bolton, 1 Bos. & Pull. 40, a part of the plaintiffs’ ^name, viz. “of the county of Stafford,” was omitted. Eyre, C. J., said — “A corporation is a mere creature of the crown, having no essence but what is derived from its name. On strict reasoning, therefore, I should be inclined to think, that if a corporation sued by a name that did not belong to it, it would be as nothing.” And a fortiori, if it were defendant, for a judgment against a non-entity would be null: it could not be carried into effect; or if attempted to be executed upon the effects of a real corporation, it would be no protection to the officer against their action. “ In the case” (continues the judge) “ of a mistake in the name of an existing person having a right to sue, it may be pleaded in abatement. But the case in Brooke, Misnomer 73, seems to put a corporation in the same situation with a natural person as to pleas in abatement: where it is said, in an action by a corporation or a natural body, misnomer of one or the other goes only to the writ; but to say, that there is no such person in rerum natura, or no such body politic, this is in bar, for if he be misnamed, he may have a new writ by the right name ; but if there be no such body politic, or such person, then he cannot have an action. 22 Ed. 4, ch. 34.” And Buller, J., says, “To make it pleadable in bar, it must appear that there is no such corporation. The year books are decisive.” Heath, JT., was of the same opinion. If then the Branch Bank is sued, and it be no corporation, then the defence is matter of bar, and not of abatement; for if it be matter of abatement, the defendants must give the plaintiffs a better writ; not by shewing that another person, natural or artificial, is liable, but by admitting their own liability, and giving their true name by which they should be sued.

What has been said is a sufficient answer to the other cases cited. Upon the whole I am well satisfied that the objection is fatal, and whenever disclosed is sufficient to defeat the action. It is matter of bar and as *'such may be taken advantage of under the plea of non assumpsit, since it shews the defendants never could have assumed in the character in which they have been sued. Moreover, from what has been said, it is clear, that no judgment can be rendered against the corporation since it has not been sued. Nor can any valid judgment be rendered against the defendants, either -as natural persons, for they are not sued as such, or as artificial persons, for as such they are not known to the law.

I am of opinion, upon the whole, that judg-merit was properly given for the defendants ; but it should have been without costs ; for they are no more entitled to a judgment, than they are subject to one.

BROOKE}, J.

"The preliminary question which has been raised is not a question of jurisdiction, but is nothing more than whether the suit has been properly brought against the proper parties. I therefore preferred, that the cause should be fully heard upon all its merits; but as that has not been the pleasure of the court, I shall confine myself to the question of practice.

I think the case of Tompkins v. The Branch Bank of Virginia was properly decided ; and it is conclusive of the point. At first, I was under the impression that this case differed from that in a material circumstance —that there, the point was presented by a demurrer to the declaration ; whereas here, there is a special verdict, so that the error might be cured by the statute of jeofails. But upon reflection it seems to me very clear, that the error is not one that can be so cured. The error is, that the suit is brought against persons who have no existence, natural or corporate; against the president and directors of the office of discount and deposit of the Farmers Bank of Virginia at Petersburg, not by their names as natural persons, but as a corporation, which they certainly are not. Such an error cannot, upon the broadest construction of the statute of jeofails, be comprised *among the errors therein mentioned which shall be cured by a verdict. No judgment can be entered upon pleadings and verdict against fictitious or non-existent parties. I concur, therefore, in the opinion, that the judgment must be reversed ; though upon the merits of the case, if the suit had been brought against the proper parties, I am riot prepared to say, that the plaintiff would not have been entitled to recover.

ATvTEN, J.,

concurred.

Judgment affirmed, so far as'it held that the plaintiff take nothing by his bill, but reversed so far as it gave the defendants their costs.  