828
FEDERAL, REPORTER.
The case has bej:ln argued by plaintiff's counsel upon the theory agreed to subscribe for stock. This throughout thllot. the is not proven, and the allegation of the auswer on the subject does not sustain Buch theorY. That allegation is that the defendant told Willard that if he secured a certain appointment he would be able to take and pay for $2,000.of stock, and that as a meJIlorandumof such proposition he wrote his name in Willard's memorandum.book. The case is not one of' a signature to a contract of subscription with amount, number of shares, and the like left in blank, and the blank to be filled by the representative of the company. It is not the case of an actual signing of a c-ontract of subscription, with an oral understanding making it conditional. It is a case where the party did not subscri):le, !lid, not authorize anyone to subscribe for him, did not make I'vlegaLratification of an unauthorized act, and, according to the proofs allegations of, rthe,'answer, did not even agree unqualifiedly to take stqck in the future. In such a case it is plain that creditors of. the oOJ;poration have no greater rights or equities, so far as the,,defendant is concerned, than the company had. I have carefully examined the Cl'j.se of Jewell v. Rock River Paper Co. 101 Ill. 57, and find nothinK therein in conflict with the con· elusions arrived at in the case at bar. In Union Mut. L. Ins. Co. v. Frear Stone Manuf'g Co. 97 Ill. 537, the parties SouKht to be charged were actual subscribers for stock, aJild it was held that as such subscribers they could not limit their lin lility agreement between themselves and the company. Judgment must be entered in favor of the defendant.
DRAPER
v.
TOWN Oll' SPRINGPORT. 1883.)
(Circud Court, N. 'D. NfItD York.
S.8AME.
Unless the answer contains such a special g.enial the plaintifi need give no proof of citizenship.
RAPER ti."TOWN OF 81'RINQi>ORT. 4. SAME.
329
Where the plaintiff allowed testimony on a w:hich shoqldha,ve heen specially pleaded without objection or exception, Mf,rJ. that ho had by such act waived his right to object to the sufficiency of the pleading. '.
Motion for New Trial. James B.- Cox, for motion. William F. Cogswell, opposed. Cou, J. Thisactio:p.is on coupons cut from bondsa.lleged to have been executed .and issued by the defend'ant. On the first trial the defendant succeeded on the ground that the bonds were void for lack of seals, but the court reversed the judgment and ordered a. new trial, which took ,place at"theilastNovember circuit. A verdict .was then ordered, fOl'the (defendant solely upon ,the ground that the court had nO'inrisdiction,1the'plaintiif.' not being a citizen of Mass8ichusettsat the timetbe actiol!lwas Mmmenced., ;The cixcmmstances' of the trial were somewhat e,nomalousl' The plaintiff, who, was called as a Witness' b" the defendant" testified, in substance, that he sold his real estate in Ma.ss8.chusetts·in 1876F and since that time ,had been; there but ,once or twice; and then,;f.ot a few hours only"thoughhe regarded, himself as a resident, of Barring·, ton, in that state. He further:testifiedthat since 1876 he bad kept! house and spent most of his time in ,the city of New Y9rk. The quas,; tion of citizenship not being entirely free from doubt, it was submitted to the jury tofitid a special v.erdicton. that issue. The verdict being against the plaintiff, the court disposed of the case as Mfore stated. On the trial the attention of the court was not called tothe,pleadings: The evidence was admitted, the question of citizenship submitted, and: a general verdict directed, without objection or exception by the plaintiff. The plaintiff now moves to set aside the verdict, insisting that there was a mistrial; that the' verdict was inconsequential, indecisive, and on an imma.terial issue not presented by the pleadings. The allegations applicable are as follows: In the complaint: II
David S. Draper, a citizen of the state of Massachusetts, plaintiff in thia
action,
complains.
*, *
as tollows."
In the answer: .. The said defendant dimies each and every, allegation In said declaration, , except as hereinafter admitted, viz.: It admits that Lit, the said defendant. /
is a municipal corporation."
The pleadings were unverified.
330 The defendant argues that the above allegation of the complaint, . , assuming it to beah alv.erment of citizenship, and not a mere descriptio personte,' is liri4','pllt iJi issue' by the answer j but the plaintiff contends that' this y be done by a 'plea hi abatement. It would seem that neither position is· wholly conect; that in order to raise an issue on the question. of; citizenShip,. where the defect does not appear on the face of the complaint, ,it is necessary that the answe't,skould contain a· special and specific denial; a general denial is not sufficient. ; The .plainti1i is: entitled to be advised Under in advance of. th-e iiaues, Which the defendant desires to the assimilation (act of June, 1872. the pleadings in actions at law are required to conformtp ,those in the ,state oourfls. It therefore becomes important tOiex,amine the provisions of the New York Code, in force at the,time this Mtion was commenoed,January, 18'71. Section 143 ofthe.C01le of Procedure provides tbat the only pleading on .the pa.d of the'defendant shall beeilher a demurrer or an answer. A demurrer (seetion U4),may be interposed on various grounds, among whiclf ,.are the following : That-the, court ,has no jurisdiction of the .subject of .the, aotion, and that the plaintiff has no legal capacity. to sue., When 'a.ny of the matters ennlllerated in section 144 do not appear onihe' fa.ce ofthre, complaint; the objection may be taken by answer. Section, 147. It is. fUl'thet, provided, by section 148, tbafif no sueh:bbjection'd$. taken,.either.by.demnrrer or the defendant. shall beL deemed to bayewaliried thesattle, excepting theobjeotion.to the jurisdictionof;the :court,and the o1;>j-e<ltionthattha .oomplaint doeanot state facts sufficient' to .constituWIt. cause of .action. Sectionl!1-9providea:'
oni
.. The answer Of the· defendant irit1steontain (I} a general or spec:ficdenlal of each material allegation of the complaint controverted by the defendant, or !>{ any kno wledge; ol",i)lformat!onthereof. sutlioieu,t ,form a uelief ii\ (2) 1\ statement ofau,ypew ....... ... " .. ," . ."" "
Ever'S mltterialallegabion of the complaint not controvertM'bytlie answer shall, for the purposae of the action;,be taken aft trne. Section 168. A defense which does not involve the mecits'QDtheactlon shU not be unless it is vermed; '2 Rev. St. p. 352,.part 3, c. 6, tit. 2, § 7, and Proo/§ 518'. The foregoing provisions are substantially retaiI!Eld in, the new "Code qt.,Civil Pr.o.c/f.qwe.j"they ,seem t.QPav9: BeiUni;Q1pair.ed.UQ<ler f9rr.qa,r, system the rule was well-nigh universal that pleading to the meritswaivedaUobjection to the plaintiff's capacity to sue.. rn4e: defendant
DRAPER 'V. TOWN Oll"SPRINGPORT.
'BS1
citizenship ottbe plaintiff he was required to plead the ment, and the issue thus formed was to befirst"diaposed of before the case came on fot trial on thew:erits. 2 Abb.U : S,.'Pr. 55j Wolf v. Raban'd,1Pet. 498j Jones v. Leagtte, 18 How.:76; Sheppardv. Graves, 14 How. 505; Livingston v. Story, 11 Pet. 351j Erwin Y. LOWlY, 7 How. 172; Green v. Custard, 23 How. 485; De Sobryv. Nicholson, 3 Wall. 420. But the adoption of' tue Code wrought a complete revolution in pleading: the old were swept away, and a new system inaugurated. Separate :p'leas in abatement are now unknown; they must be pleaded and t;&d,like other defenses. Gardner v. Clark, 21 N. Y. 899; Sweet v. Tuttle, 468. But now, as always, such defenses 'must be distinctly, separately, and affirmatively stated b the answer. If not so stated the objection is waived. Proofof such defens6scannotbegifen under a general denial. Abe v. Clark, 81 Barb. 288; IJillaye v. Parks, ld. 132; Scrantom v. F. It M. Bank, 24 N. Y.424; Tremper v.Oonktin, 44 Barb. 456; Hosley v. 'Black,28 N. Y. 438j Merritt v.Walsh, 32 N. Y.685; i ZaQriskie v. Smith, 13 N. Y. 322; Brennan v; New York,62 N. Y. 365; Chaffer v; Morss, 67 Barb. 2'52. See, also, as bearing' on this question, the' sM,tute which provides that "in anaetion by or against a corporation, tHe plaintiff need ilot prove, thattl.al, the 'existence of the' corporation, unless the answer is verified, and contains aUegation that the plaintiff or defendant, as the: case may be,'iei'not a corporation," Code of Civil Prdc. § 177G;andalso Bank ,opGeneiee v. "Patchen Hand,) 40 N; Y. Bank, 1a N. Y. 309; PhrenixBank 410; Fulton Ins. 00. v. Baldwin, 37'N. Y. The rule as would seem, then, :tcfbe reasonably clear that in New York proof cannot be wve,ri' on the trial disputing plaintiff's citizenship, unless Iioticeis given by a special denial in the answer. 'Tohold otherwise' would be to and dangerous system of plead+rig-asystein offering. no chl3ck to chicanery, where justice may easily be defeated by trickery and fraud. ' It is suggested that the, of the; a,c,t of 3, 1875, has changed this rule, and oj>en:ed the doodor atl'iridiscritninate and irrelevant attack upon &'plaintiffslling in the federal courts. The section referred . provides Haf'a.ny time itsha!l appear 'to of' the dircuitcburt that snch suit does properly not really and sUbstantiallyifnvolve(a within its jurisdicition"the court shallproceM norui-ther, but shall
upon
389
FEDERAL REPORTER.
dismiss the suit. By using this language congress did not intend to allow the defendant to admit an allegation of his adversary's pleading, and then, on the trial, offer proof that his own admission is untrue. The proof this sec,tion, like <?ther proof, must "appear" in an orderly and proper manner, and must be admissibla under the pleadmgs. If the fact requiring a dismissal does actually appear,the COUl·t should proceed as indicated by the statute. But the defendant cannot offer:proof of such fact unless it is admissible on some issue duly and if he attempts to do BO, the plaintiff can exclude it by timely' objection. In. other worq.sj where ,the issue of citizen'ship is not raised by the answer, the plaintiff has it in his power at the trial to prevent anything from appearing on the subject pro or con. If:he dQes npt avail himself. of this privilege, an,d allows evi.dencepl'oving want of beadmitted j the court has no directed, by, the Williams.v.> No.ttotwa, 104 U. S. 209, and Rae v. Grand Tru.nk Ry: Co. 14 'REp. 401, not, so fal) as disclosed by the record, in conflict with these views. In facts whjch, compelled the in cas,e,' on the trial. The questio:Q :not gne of pleading;. did not to and nature, of. the prpof... a particulftr allegation, and clenil!lol, :but rather to the effect whi,ch should be given to' :before ,the This inquiry been extended because 9f its general interest and importance, al>,l1 not it is to a ,qf this motion.. ,,"', The vital oQe of pleading ,or, All tn-ese considerations inc,tp,e sequence of events, fl,l.en: far be.q.ind; Whatever the may pave been, he waIved lost thWU by to be ,p.fter th,e questipn to without ohjElction o,r exception, precisely,as there iSBue can,not c.omplain the oft1;leC8:se the circuit. , sel could not have foreseen or' prevented the result, whicli isalon,e att!ibutable to the pJaf,npiff.) ' i , , These pop§iderations, .' , ,First.,jlpder the; sy:'ste:w; ,of pleaditlg, ;the issue?f p 'cp!fld,pnly; be : $6Gf!?fd. the Ne",;¥ork, ,pleas I ,e:an JWwbe ):f!,is!3d by a ;.deDtia1 in the sa,me in which the but not by general denial. Third. the defendant pleads >
KNAPP ·· WILLUMSPORT NAT. BANK.
888
,Unless the answer' contains such a speaia.1 demal, the plaintiff need give no proof of citi:aeoship. ,Fourth. The plaintiff in this'case waived the sufficiency of the pleading 'by going to tnal on the issue of 'citi· zenship without objection or exception. Fifth. In any event, it now appearing affirmatively that the plaintiff is not 'entitled to maintain his suit in this tribunal, it would be the duty of the oouttto dismiss it. Sixth. The case was properly dis-posed of at the circuit; but, however this may be, the disposition of it there was tantam.ount to a dismissal, so far as the plaintiff's"i-ights' arecancemed. dismiss,the case now would idle ceremony. The motion for a new trial is demed.
',I', ' .
':., .'
KNAPP
and .
. fqr
,t1.
W
, ' - .
(Oircuit ,!O'!"rt, W. D. NATIONAL , Tll.IAL.
1882.)
BANK-UsuRIOUS'
BEv. Slr·..:-Nltl'f , . ! , ;
'In tIlili tbejqry, iQ...ftndiM,a-,yttrdict fOl',tbe amounUvhicb.: plaintifIWa& entitled to recover, under sectillI\ States, for alleg(!d payments made to defendant'by plaintiff of a UIl.IUlQU8 nlte of disconnt, not having cG/.1tain; $8. co,urt, unless plaintiff, within 10 days,remi*) a new trial will be verdict all over the amount ;or:Wch the jury 'have lowed the court. ,'"
,Rule f,or a New '.rria!. :Debt, ,by Knapp and, T'hompson, fot. etc!., port National Bank, United States, for alleged payments toile. fendant by plaiDiiffil-'ofa usarious"1'&te;gf discount. J , ; , ' , "It " ,. On the trial, 'before M$rENNAN and ACHESON tlJ:4t ,f : the had fm.:l ,an,d buainess paper, within two years prior to the commenG\'lment;of:the .action, aftherate of.. per cent. per annum" ,during t!-utt $-2,110:04.. double that amount. It appeatedllthlit ,the' bank crettiJtedthe,plain. with, fhe. ,J>afM 9f their .wlthjhe..face,amo1,lllts.a.t ; maturity, and ,agai,n cred'itiBg th&m with tlanetproeeed.. of th&irer ." j "> 4 · . _ ' . ; . . . . ' , -""
'.'1 '_
L
·From Welildy
(P';'" See 7 Sup. Ct.
