Palen v. Lent et al.

ant Hathorne is by no means free from fault, and that the plaintiff has a clear right to collect them, either from him, or, it may be, from the tenant, a case for an attachment is not made out so as to warrant that mode of compelling the defendants to pay over the money.

If fraudulently collected, possibly the defendant may be arrested. If he violated an injunction of the Supreme Court, or a Justice thereof, that Court, or Justice, has power to punish for that. But it would be carrying the idea of contempt of the orders of this Court further than I am now prepared to do, if I should hold that oral notice that the suit was decided in the plaintiff's favor, without notice of the particulars of the decision, when the defendant is not under an injunction, and no injunction was ordered by the decision, subjected the defendant to process of contempt when no order or decree had been drawn up or entered, in the face of the defendant's express denial that he had any notice that the decision entitled the plaintiff to the rents which he collected.

The defendant Hathorne may have five days within which to execute the assignment proposed by the plaintiff; and if, within that time, he execute and duly acknowledge it, the motion shall be discharged, without costs. In default of such execution, a precept may issue against him, to commit him until he execute such assignment and pay (in that event) $10 costs of motion and the fees of the Sheriff, &c.

• Ordered accordingly.

WILLIAM PALEN v. SAMUEL E. LENT and CATHARINE, his Wife.

1. A cause of action against a husband, entitling the plaintiff to a recovery of money from him, cannot be joined with a claim to charge the separate estate of the wife with the payment of the amount sought to be recovered. 2. A promissory note, signed by the wife and delivered by the husband, for the purchase of property used and enjoyed in a business carried on for their joint benefit, does not oporate both as a note of the husband making him perBosw.-VOL. V.

90

Palen v. Lent et al.

sonally liable and as an appointment by the wife of her separate estate or as a charge thereon.

3. A complaint which seeks to charge the separate estate of a married woman upon her promise must show that the consideration of the promise was some benefit to her separate estate, or that there was a distinct intention on her part to charge her separate estate.

(Before ROBERTSON, J.)

At Special Term; May 14th, 1860.

Demurrer to the complaint. The pleadings, so far as it is material to state them to show the points decided herein, are set forth in the opinion of the Court.

ROBERTSON, J. The defendants are husband and wife; the complaint alleges the making of a note signed by the wife payable to and indorsed by a Mr. Brown to the plaintiff, and the possession of separate estate by the defendant, Mrs. Lent. It also alleges that the note was given for the purchase of a pair of horses, owned and enjoyed by the defendants; that Mrs. Lent carried on a livery stable in her own name and for her own benefit; that her husband acted conjointly with her or as her attorney, or was interested in the business of such livery stable and as such attorney, or otherwise assented to the making of such note, to derive some benefit therefrom. It prays judgment against both defendants and also against the separate property of Mrs. Lent.

This pleading joins a liability of the wife's separate estate with that of the husband which is one of the causes of demurrer. The Code (§ 167) permits causes of action to be united, whether legal or equitable, provided they arise out of the same transaction, or transactions relating to the same subject matter, or originate in contract, but they are required to be separately stated, but in this case they are not separately stated; on the contrary, it appears that the cause of action is but one only, the liability is separate. It is clear the complaint does not set out a joint contract, nor does it set out a separate one by both defendants, supposing the appointment of the separate estate of the wife to be a contract, which is very doubtful. The defendants must therefore, if liable at all upon the same transaction, be liable as principal and surety, actions against whom

Palen v. Lent et al.

it has been held cannot be joined. (Brewster v. Silence, 4 Seld., 214; Phalen v. Dingee, 4. E. D. Smith, 379.) The complaint also fails to make out a cause of action against both defendants, because it seeks to make both responsible upon an instrument .signed only once, by one; clearly the note cannot operate as a note of the husband making him personally liable, and an appointment by the wife of her personal estate. The facts that both parties were interested in the same livery stable conducted in the wife's name and for her benefit, and that the note was given for a pair of horses is not sufficient; if a husband and wife could enter into a contract of copartnership and it was alleged they did so in this case, those facts might make them jointly liable but not severally. If the note in question had been, however, merely the joint note of both, the wife's separate estate would not have been liable. (Yale v. Dederer, 18 N. Y. R., 265.)

As regards the cause of action set out against the wife, the complaint is defective in not alleging either that the consideration of her promise was for the benefit of her separate estate, or that of which it is the evidence, to wit, that she intended by the note to charge such estate, which is always necessary to be established, either by the words of the writing or proof aliunde. (Story Eq. Jur., 1400; Vanderheyden v. Mallory, 1 Comst., 462; Yale v. . Dederer, ubi sup.; Curtis v. Engel, 2 Sandf. Ch. R., 288.) The facts that the note was given for a pair of horses, and that the defendant Mrs. Lent was carrying on a livery stable for her own use, may be important links in evidence to show such intent, but their averment is not equivalent to that of the latter.

The failure of the complaint to set out the particulars of the defendant's separate estate may not be available on demurrer or in any other way than by motion to make definite. The mere joinder of the defendant, Lent, too, as a party is probably not objectionable. (Draper v. Heningsen, 16 How. Pr. R., 284,) but the other defects are sufficient to make the demurrer of both parties well taken.

The demurrer must therefore be sustained and judgment given for the defendants, with costs, unless the plaintiff amend within twenty days. The costs to be one bill in favor of either defendant, as they or their counsel may elect.

Lighte et al. v. The Everett Fire Insurance Co.

FERDINAND C. LIGHTE and others v. THE EVERETT FIRE INSURANCE COMPANY.

1. It is not necessary that a corporation, plaintiffs, should in the complaint allege that the plaintiffs are a corporation.

2. Nor is it necessary, in declaring against a corporation, to allege that the defendants are a corporation.

(Before ROBERTSON, J.)

At Special Term; May 26th, 1860.

Demurrer to the complaint. The opinion of the Court sufficiently states the complaint and the grounds of demurrer.

ROBERTSON, J. The objection in this case is that the complaint has not alleged the defendants to be a corporation or Joint Stock Company. It has long been settled that plaintiffs need not aver themselves to be a corporation. (Bank of United States v. Haskins, 1 J. C., 132; Bank of Utica v. Smalley, 2 Cow., 770; Holyoke Bank v. Haskins, 4 Sandf. S. C. R., 675; Union Mutual Ins. Co. v. Osgood, 1 Duer, 708; Bank of Waterville v. Beltser, 13 How. Pr. R., 270.) Before the passage of the Revised Statutes it was held that the plea of the general issue put in issue the exist ence of the plaintiffs as a corporation as though it were averred, and it could only have been upon the principle laid down in the above case of Union Mutual Insurance Company v. Osgood, that the name being an appropriate name for a corporation, the very name imported an averment to the same effect. The Revised Statutes merely require the defendants to make it a special issue. (2 R. S., 458, § 3.) It would be difficult to see why the same reasoning should not apply to the defendants. If the law takes notice of the character of the name, it must equally do so in the other. It is as important to show a personality to be contracted with as

one to contract.

Another difficulty arises from the fact that the Code only permits specific causes of demurrer, and the objection in question does not come within any of them. The question whether the defendants are a corporation, is no part of the cause of action. They are either a corporation or an association, or have no existence;

Lighte et al. v. The Everett Fire Insurance Co.

if the last, of course no judgment can be of any avail; if they are persons using a corporate name, and the plaintiff makes a mistake in suing them as a corporation, they are at liberty to plead that they are not what they have seemed, but it must be by an answer.

If the question were a new one in regard to plaintiffs, I might perhaps entertain a different view; but it being established that a name carries with it the assertion of a fact, I can see no reason for not applying the same rule to defendants.

The demurrer must, therefore, be overruled, with costs, and judgment be given for the plaintiffs, with liberty to the defendants to answer in twenty days, upon payment of costs, upon filing affidavit of merits and of good faith in putting in the demurrer, in five days.