Cropsey a. Sweeney. It is not alleged in the complaint that James Ridgeway, in his lifetime, ever knew or supposed, after the last marriage ceremony, that the plaintiff was not his lawful wife; nor is it alleged that when his first supposed marriage with the plaintiff took place, that he knew that his wife Catharine was living, and he unable to contract a legal marriage with the plaintiff. No doubt, from the time of the first marriage ceremony to the institution of the suit for divorce, and from the time of the second marriage ceremony until his death, James Ridgeway and the plaintiff both supposed they were lawfully married, and that he lived and died supposing the plaintiff was his lawful wife. Now after his death, upon the assumption that his supposed marriage was not legal, will the law permit us or authorize us to turn this supposed relation of husband and wife into the relation of master and servant, and thus infer or imply a promise on the part of James Ridgeway, in his life, to pay, and an expectation on the part of the plaintiff to receive pay, for the services rendered by the plaintiff while so standing in the supposed relation of husband and wife? The very ground upon which the plaintiff's case appeals so strongly to the sympathies of the court, forbids any such fiction, inference, or implication. Her own story (no doubt truthful) of her long devoted faithful love and services as a wife and mother, will not permit us to say that she is legally entitled to receive pay for those services as a servant. True, the law will not presume that work or labor performed as a servant or laborer were voluntary, and performed without any view to compensation, but the law cannot presume that the domestic and household work and services of a wife for a husband are performed with the view to pay as a servant or laborer. The law would do injustice to the plaintiff herself by implying a promise to her to pay for these services; and respect for the plaintiff herself, as well as for the law, compels us to infer and hold that these services were performed, not as a servant with a view to pay, but from higher and holier motives, and thus, therefore, her complaint does not constitute any cause of action. The order of the special term overruling the demurrer must be reversed, and the defendant must have judgment on the demurrer. Bank of Havana a. Wickham. BANK OF HAVANA a. WICKHAM. Supreme Court, Sixth District; General Term, January, 1857. CORPORATION.-PLEADING. An individual banker commencing and carrying on business under the General An action by such banker upon a cause of action accruing to him as such, is properly brought in the corporate name. The allegation of the corporate character of the plaintiff is not in general an allegation of a fact constituting the plaintiff's cause of action, but merely of a fact to show his legal capacity to sue; and the objection that the corporate capacity is not alleged is waived, if not taken by demurrer. It seems, that if the plaintiff sues in a corporate name, but neglects to allege his corporate character, the complaint is demurrable upon the ground that it shows upon its face that the plaintiff has not legal capacity to sue. To put the plaintiff to proof of his corporate capacity in such a case, a general denial is not sufficient, but the answer must deny the existence of such a corporation. Appeal from a judgment rendered upon trial before a judge at special term. This was a creditor's action brought by Charles Cook, an individual banker, under his corporate name of the Bank of Havana, against G. C. Wickham, who was his judgment debtor, and Martha Wickham, his wife, and certain others, who were transferrees of property belonging to Wickham. The plaintiff had recovered a judgment against the defendant, George C. Wickham, for the sum of $5022.84, on the 8th day of January, 1852. Upon which an execution against the property of said Wickham had been duly returned wholly unsatisfied. The object of this action was to set aside as frandulent a deed of several lots of land in Tompkins county, which was executed by the defendants Wickham and wife, to the defendant Magee, on the 29th day of November, 1851. Also to set aside as fraudulent a sale of personal property` made at the same time by Wickham to Magee. Also to set aside as fraudu. Bank of Havana a. Wickham. lent a deed of a portion of said land, and a conveyance of a portion of said personal property executed at the same time by Magee to the defendant Waddell, in trust for the defendant Martha Wickham. The plaintiff demanded judgment, that the real and personal property so conveyed and transferred as aforesaid, be declared liable to pay the plaintiff's judgment against Wickham, or that the plaintiff's judgment against Wickham be paid out of any money due to Magee or the Stueben County Bank, from any persons to whom the land had been contracted to be sold by Magee. Also for such other relief as might be just. The indebtedness upon which the plaintiff's judgment against Wickham was recovered, existed prior to the date of the deed to Magee, and Magee knew of such indebtedness at the time the deeds and transfers were executed. Wickham, at the same time he made the deed to Magee, was insolvent, and was justly indebted to the latter in the sum of $1500, and to the Steuben County Bank, of which Magee was president, in the sum of $12,500. Magee took that portion of the land and personal property which he retained in satisfaction of the debts due to him and the Steuben County Bank from Wickham, Magee paying the debt to the bank. Mrs. Wickham had a contingent right of dower in the lands, and she joined in the deed to Magee. But the latter in consideration thereof immediately transferred to the defendant Waddell, in trust for Mrs. Wickham, a portion of the personal property he received from her husband, and he also at the same time conveyed to Waddell in trust for Mrs. Wickham about 70 acres of the land. The defendants Graham, Ely, Smith, and Matthews had taken contracts or deeds for portions of the land from Magee, prior to the commencement of this action. The defendants interposed separate answers to the complaint. The complaint began thus: "The Bank of Havana, the plaintiff in this suit." There was no direct allegation in the complaint that the plaintiff is a corporation, or that the plaintiff has legal capacity to sue. Nor was the title of any act, or the date of the passage of any act referred to in the complaint, by or under which the plaintiff claims to have a legal existence. Neither Magee nor Wickham specifically denied in his answer that the plaintiff was a corporation; nor did either of them allege that Bank of Havana a. Wickham. the plaintiff had not legal capacity to sue. But they severally denied all allegations in the complaint of fraud, and gave their versions in their answers of the transactions complained of. The action was tried at a special term of the court, held in Tompkins county in December, 1853. Much evidence was given upon the question of fraud in the transactions, and several exceptions were taken touching the admissibility of evidence. The certificate of the superintendent of the bank department given in evidence upon the trial, showed that Charles Cook was an individual banker at Havana, N. Y., under the general banking law of 1838; and that he did his business as such banker in and by the name of "The Bank of Havana.” The judge dismissed the complaint as to all of the defendants, except Magee and George C. Wickham, for the reason stated by him, that the plaintiff had failed to prove itself a corporation with power to sue, such defendants having put that fact in issue. But he held that the defendants Wickham and Magee had not by their answers denied the plaintiff's corporative capacity to sue, and had therefore admitted such capacity. The judge found that the value of the real and personal estate which Wickham conveyed to Magee on the 29th day of November, 1851, was $18,000. That the value of that portion of said real and personal estate which Magee conveyed to Waddell in trust for Mrs. Wickham, was $4500; that the same was of greater value than Mrs. Wickham's contingent right of dower in the whole real estate that Wickham and wife conveyed to Magee; that the inducement held out to Wickham by Magee to convey the property to the latter, and which, in fact, caused Wickham to make such conveyance, was the promise of Magee that he would not strip him of all his property, but that he would so fix it that Wickham should have a living out of the same. That the conveyance of a portion of the property by Magee to Waddell, in trust for Mrs. Wickham, was made for the purpose, and with the intent to secure the same for the use of her husband, and to place the same beyond the reach of the plaintiff. That the conveyance of the entire property from Wickham to Magee was made and received with intent to hinder, delay, and defraud the plaintiff, and that sufficient moneys had come to the hands of Magee from a resale of such property to pay the claim of the plaintiff. Bank of Havana a. Wickham. It is unnecessary to further notice the finding of the judge upon the facts. He adjudged and determined, as a conclusion of law, that the conveyance of the property from Wickham to Magee was fraudulent and void; and that Magee and Wickham pay to the plaintiff the amount of the plaintiff's judgment against Wickham, with interest thereon, and the costs of this suit as against them. Wickham and Magee took exceptions to the finding of the judge upon questions of fact; also to his finding the aforesaid conclusion of law. Judgment was entered for costs against the plaintiff in favor of all the defendants except Wickham and Magee; and in favor of the plaintiff against Wickham and Magee for the amount due upon the plaintiff's judgment against Wickham ($6217.03), and $429.42 costs; in all, $6646.45. Wickham and Magee appealed from the judgment against them to the general term. David Rumsey, for the appellants. S. A. Foot, for respondent. BY THE COURT.-BALCOM, J.-" The Bank of Havana" is the name in which Charles Cook, an individual banker, carries on the business of banking at Havana, N. Y., under "An act to authorize the business of banking," passed April 18, 1838, and the several acts amending the same. The certificate of the superintendent of the bank department, that was given in evidence upon the trial, states that Cook commenced the banking business as an individual banker at Havana in 1851, under the aforesaid acts. Is the plaintiff a corporation? The appellants' counsel contends the plaintiff is not a corporation, and therefore has no legal capacity to sue. It is now well settled that banking associations formed under the aforesaid acts are moneyed corporations. (Gillet a. Moody, 3 Comst., 479; see Const., Art. 8, section 3.) By chapter 340 of the Laws of 1848, indi vidual bankers are declared to be "banks of discount and deposit, as well as of circulation;" and every report directed to be made by any law, from an individual banker, must be veri * Present, GRAY, MASON, and BALCOM, JJ.^ |