#### Mary Jane Robbins, administratrix, &c. of Charles A. Robbins, plaintiff and appellant, *vs.*Henry Wells *et al.*defendants and respondents.

1. Suits, against an association consisting of seven or more persons must be brought against the president or treasurer of such association, in the manner prescribed by the acts of 1846 and 1851, and the remedy against their joint property be exhausted, before an action can be brought against one or more of the individual associates.

2. *It seems,*that the objection that it appears by the complaint that the plaintiff is a foreign administrator, does not go the sufficiency of the cause of action. It should be taken by demurrer on the ground of want of capacity to sue.

An omission to demur is a waiver of the objection.

3. A judgment dismissing a supplemental complaint filed by a representative of a deceased plaintiff1, who has not legal capacity to sue, granted at the trial, solely on that ground, is ncft a bar to a further prosecution of the action by a proper representative who has such capacity.

4. Leave to file a supplemental complaint does not establish the plaintiff’s right to sue for the original cause of action. Per Robertson, J.

(Before Bosworth, Ch. J. and Robertson and Barbour, JJ.)

Heard December 9,1862;

decided June 27, 1863.

*667This was an appeal from a judgment had on a dismissal of the complaint on the trial.

This action was originally commenced by Charles A. Robbins, of Iowa, against the defendants, Henry Wells, John Butterfield and others, doing business under the name of the. “The American Express Company,” to recover of them the value of two boxes and a trunk, which he claimed to have been delivered to them, to be conveyed to Muscatine, in the state of Wisconsin.

The complaint was against “the defendants, (Henry Wells and John Butterfield,) who with others, unknown to the plaintiff, do business as expressmen or forwarders, under the name of the American Express Company.” The original plaintiff dying before the trial, Mary J. Robbins, his wife and administratrix, by virtue of letters of administration issued in Iowa, obtained leave to revive the suit by filing a supplemental complaint. Subsequently, on the requisition of the defendants, she filed security for the costs. The supplemental complaint filed by such administratrix alleged the death of the intestate and the issuing of letters in Iowa. That the intestate in his life time commenced an action by service of summons and complaint and then set forth and alleged, on the part of the present plaintiff, the averments of the original complaint. The defendants, (Wells and Butterfield,) answered, among other things, denying that the trunk was delivered to them, arid alleging that it was delivered to “ The American Express Company,” an association, formed under the laws of this state, of more than seven persons, of which the defendants are two. ■ .

And for a further and separate defense in the action, claimed it was not brought in the' name of the president or treasurer of such company, in conformity with the statute in such case made and provided, and demanded that the same should be dismissed, with costs.

The action came on for trial on the 6th of February, 1862, beofore Mr. Justice Monell and a jury.

Upon the trial it appeared that the American Express company was a joint stock association, consisting of more than *668seven shareholders ; and that the goods in question were delivered to that company.

The evidence is sufficiently stated in the dissenting opinion of Barbour, J.

When the plaintiff rested, the defendants’ counsel moved to dismiss the complaint on the following grounds :

1st. That the action is brought in the name of a foreign administratrix who can have no status in this court. Ho letters of administration have been taken out in this state.

2d. That the action was not brought against the American Express Company; that the action must be brought against the president or treasurer, and not against individual shareholders.

3d. That there is no evidence as to what goods were put in the trunk in question, nor that any part of the goods said to be missing were put into that trunk.

The judge granted the motion and dismissed the complaint, to which the plaintiff’s counsel excepted.

The court directed the exceptions to be heard in the first instance at the general term, and the judgment in the meantime to be suspended.

*William R. Martin,*for the plaintiff, appellant.

I. The first ground for dismissing the complaint urged by the defendants was not sufficient.

1. The action was originally brought in the name of the intestate. After his decease leave was granted by the court to the present plaintiff, under section 121 of the Code, to continue the action in her name.

2. The objection was formal, and was waived by the defendants, first, by failing to prevent the granting of leave; second, to demur • and lastly, by compelling the plaintiff to give security for costs. Such an objection must be made promptly.

3. By section 121 of the Code, the court are expressly authorized to allow an action to be continued, by a representative or successor in interest, without any limitation.

*669II. The action is properly brought against the defendants. It is not brought against the individual shareholders of the express company.

1. The receipt, which is the contract on which this action is brought, states : That Wells, Butterfield & Co., (that is those doing business under that title,) are express forwarders and agents. That they have assumed the name stated at the heading, “American Express Company.” That they are “ proprietors” of the business and the company. The contract is made by the “ proprietors,” the signature being expressly made “for the proprietors,” not for the company. It acknowledges the delivering to “ *us”*(the proprietors) of one trunk, &c. which *we*(the proprietors) undertake to deliver, &c. The American Express Company are not named in the operative parts of the contract, nor is there any representation or suggestion in the receipt that they were a joint stock association, or were the contracting party. Ho certificate of organization or association is required to be filed by a joint stock association, and there was none in fact filed. There was no proof that the plaintiffs knew or could have known that the defendants were a joint stock asssociation, and in fact they did not know it.

2. Upon this receipt, the action was properly brought against the parties who signed it, Wells, Butterfield & Co., the pro-' prietors. It could not have been brought against the American Express Company. It describes the defendants precisely as they describe themselves in the contract, and is a good suit against Wells, Butterfield *&*Co. *(Ziele v. Campbell,*2 *John. Cases,*382. *Collyer on Partn.*§§ 839, 840, 713. *Chit. Pl. p.*42, 46.)

The defendants might have pleaded non-joinder, and set up the names of the other partners or co-proprietors, when the plaintiff could have brought them in. *(Graham’s Pr.*94.) But the defendants, by not denying, admit this allegation of the complaint.

3. But if the joint stock association, the American Express Company, should have been sued, the statuté has been substantially complied with.

*670*(a.)*Henry Wells is named as defendant, doing business under the name of the American Express Company. Too much is alleged in including John Butterfield and others, and too little in omitting to call Henry Wells by his title of office, “President.” Neither of these are essential variations. The statute provides that the association may sue or be sued in the name of its president. (2 *R. S. 4th ed.*717, § 121.).

*(b.)*The answer avers that he is president of the association, and the plaintiff is entitled to the admission. The defect in the complaint is thereby aided and cured. The defect is in the statement of this title, and becomes immaterial. *(Chit. Pl. p.*671, 681. *Bate*v. *Graham,*1. *Kern.*237. *White*v. *Joy,*3 *id.*83. *Ayres*v. *Covill,*18 *Barb.*260. *Brown*v. *Harmon,*21 *id.*512. *Clark*v. *Dales,*20 *id.*42. *Stennel*v. *Hogg,*1 *Saund.*228, *and note.)*

*(c.)*Under this statute, .it is not obligatory to describe a president *by*his title of office. In *East River Bank*v. *Judah,*(10 *How. Pr.*135,) it was decided that the suit might be brought in the name of the president or of the bank *;*that either would be good. The only defect here is the formal one of omitting the title “ President.” It is merely a misnomer, and is not even pleadable in abatement. (1 *Chit. Pl.*245. *Elliott*v. *Hart,*7 *How. Pr.*25.) And the defect should be disregarded or amended. *(Code of Pr.*§§ 173, 175, 176. *Bate*v. *Graham,*1 *Kern.*237. *Clark*v. *Dales,*20 *Barb.*42. *Barnes*v. *Perine,*9 *Barb.*206. *Fuller*v. *Webster Ins. Co.,*12 *How. Pr.*293. *Lighte*v. *Everett Ins. Co.,*5 *Bosw.*716. *Bogart*v. *McDonald,*2 *John. Cases,*220, *note.)*

*4.*If the suit ought to have been brought against the Amerian Express Company as a joint stock association, Mr. Butter-field being unnecessarily a party, the complaint may be dismissed as against him. *(Mont. Co. Bank*v. *Albany City Bank,*3 *Seld,*459.) He is in no position to take advantage of the fact that he is made a defendant unnecessarily, not having pleaded a misjoinder which he could only do by pleading separately. *(Shannon*v. *Comstock,*21 *Wend.*459. *Deforest*v. *Jewett,*1 *Hall,*137. *Gardiner*v. *Clark,*6 *How. Pr.*449.) *671The plaintiff should have leave to discontinue against him, without costs. For the two defendants being united in interest, and having appeared by one attorney, have but one bill of costs. *(Castellanos*v. *Beauville, 2 Sandf.*670. *Walker*v. *Russell,*16 *How. Pr.*91.)

5. If the receipt be ambiguous and equivocal, it is not equitable to allow the defendants to take advantage of the equivocation in their own receipt, and escape on a technicality from their just liabilities.

III. There is sufficient evidence as to what goods were put in the trunk, and that the goods said to be missing were put in the trunk. At all events, there was evidence enough to go to the jury.

IV. As the plaintiffs move for a new trial, and if the court are of opinion that the amendment is necessary, also that the summons and complaint be amended by inserting the title of his office after Henry Wells, and striking out the name of John Butterfield, and for leave to discontinue against him without costs.

*Hooper C. Van Vorst,*for the defendants, respondents.

I. The company should be sued in the name of the president or treasurer thereof. (3 *R. S. 5th ed.*777, §§ 122, 125.) The *stockholders*can not be sued until the remedy against the association has been exhausted by judgment and execution.

II. There is no evidence that any portion of the goods said to be missing was placed in the trunk, or came into the pdssession of the defendants or the company.

III. It is the duty of the court to nonsuit a plaintiff if the evidence, in their opinion, will not authorize a jury to find a verdict for the plaintiff, or if they would set aside a verdict if so found, as contrary to evidence. *(Graham & Waterman on New Trials, vol.*1, 279. *Stuart*v. *Simpson,*1 *Wend.*376.)

IY. The court will not set aside a nonsuit on the ground that the case should have been submitted to the jury, unless this was desired on the part of the plaintiff at the trial. *(Kindred*v. *Bagg,*1 *Taunt.*10. 1 *Graham & Waterman on**672*New Trials,*282.) Ho such desire was expressed hy the plaintiff.'

V. The plaintiff, a foreign administratrix, not having taken out letters in this state, can not maintain this action. *(Morrell*v. *Dickey,*1 *John. Ch.*153. *Doolittle*v. *Lewis,*7 *id.*45.)

VI. The" court should deny the motion for a new trial, and order judgment for the defendant, on the decision of the judge on the trial, with costs.

Robertson, J.

It appears hy the case that only one action was tried, one set of pleadings before the court, and one complaint dismissed, and that was the supplemental action brought by Mrs. Bobbins to enable her to succeed to whatever rights her husband had in the original action, and prosecute it to a conclusion. One of the grounds on which such dismissal was asked for, was the legal disability of Mrs. Bobbins to prosecute any action. Whatever testimony was admitted on such trial to sustain the original cause of action, was, therefore, immaterial, and may be dismissed from our consideration. The present plaintiff's attorney appears from the complaint to have proceeded upon the erroneous view that the leave granted to file a supplemental complaint necessarily either absorbed the original action in the new one, or established 4he plaintiff's right to sue for the same cause of action. The present complaint, except that it alludes to the previous action, would be suitable for an entirely new one. As a supplemental complaint, where the original alleges the facts on which the action is based, the reiteration of those facts is entirely unnecessary. What was in the original complaint (if any was filed) does not appear, as it is not before us. At all events, it is necessary to try both actions before it can be determined "whether there was originally a cause of action.

Clearly the determination whether the party filing the supplemental bill was entitled to succeed to the rights of the original plaintiff was necessary, before ascertaining whether there was any cause of action, and if she were not so entitled, the court would not undertake to pass upon the original issues *673in this cause, when the true successor to the plaintiff’s rights was not before them to maintain them.

Assuming, then, that the only action tried was the supplemental one, and the only issue in it to be the right of Mrs. Bobbins to succeed to her husband's position as plaintiff, I fully concur with the chief justice in holding that the objection to her right to prosecute by reason of deriving title under a foreign administration was waived, as being the second cause of demurrer specified in the 144th section of the Code. Under section 148 such objection goes wholly to the right to sue, and not that to receive or discharge the claim. *(Doolittle*v. *Lewis,*7 *John. Ch.*49. *Robinson*v. *Crandall,*9 *Wend.*425.) They may be sued in this state in their representative capacity for moneys collected by them, including such a claim, *(Campbell*v. *Tousey,*7 *Cow.*64,) and they may assign their claims so as to give the assignee a right to sue.

A voluntary payment by the defendants to the plaintiff would have discharged the latter, as against all claimants. The defendants may, therefore, choose to waive the objection as to the right to recover by the plaintiff, and put their defense on the merits. A payment by them after the action was terminated, whether voluntary or involuntary, would bar the action of any other person.

The mere leave to file the supplemental complaint decides nothing as to the plaintiff’s rights. The judgment that the plaintiff in it have leave to prosecute the original action and succeed to all the rights of the first plaintiff is a different matter. Wheie the court can see on the face of the supplemental complaint that the former action is fatally defective, it may refuse such j udgment.. *(Candler*v. *Pettit,*1 *Paige,*168. *Day*v. *Potter,*9 *id.*645.)

I think that the provision of the statute of 1853, (ch. 153,) amending the statute of 1849, as to joint stock companies, (3 *R. S. 5th ed.*§§ 125, 827, *pp.*777, 778,) is peremptory in requiring suits against partnerships, consisting of more than seven members,, to be brought against the president or treasurer, in order to determine their liability, and the remedy against *674their joint property to he exhausted, before an action can be brought against the individual associates.

The answer to the supplemental complaint is that the defendants are members of such a joint stock association, and therefore po action' can be maintained against any one but the officers named in the statute. This may be considered as an objection arising under the first or fourth of the causes of demurrer specified in section 144 of the Code. The court has no jurisdiction of the subject of the action so as to make the defendants responsible, until after the recovery of judgment and issuing of execution against the officers of the association ; and even if the defendants are at all proper parties to the supplemental action, clearly the officers in question should be added, and in that respect there is a defect of parties.

The dismissal of the supplemental complaint was, therefore, proper, and should be affirmed with costs. Qn.the character of the evidence, on the merits, I do not undertake to pass.

Bosworth, Ch. J.

The fact that the plaintiff is a foreign administratrix appears on the face of the supplemental complaint, and if that fact does not make the complaint one which fails to state facts constituting a cause of action, but on the contrary makes the case one in which the plaintiff has not legal capacity to sue, the defect is waived by the defendants’ omission to demur. *(Code,*§ 144, *subd.*2, §§ 147, 148.) Though a foreign administratrix, she might receive payment of this claim and give a valid release. *(Doolittle*v. Lewis, 7 *John. Ch.*49.)

In chancery a probate taken out in this state any time before the hearing has been held an answer to the objection that a complainant is a foreign administratrix, the objection not having been taken in the pleading. *(Osgood*v. *Franklin,*2 *John. Ch.*18. *Goodrich*v. *Pendleton,*4 *id.*551, 552. *Doolittle*v. *Lewis,*7 *id.*51.) The omission to'take out letters in this state is said in *Doolittle*V/ *Lewis,*to be a formal defect, by which I understand it to be affirmed, that though necessary to clothe the party with a legal capacity to sue as a matter of *675right, it is á defect which may he waived, where it does not appear that any prejudice may result by not insisting on the act being done as a prerequisite to making such a decree as would be just on the merits of the case.

In *Campbell*v. *Tousey,*(7 *Cowen,*64,) it was held that a foreign administrator who had received property of the decedent, and had not taken out letters in this state, might be sued in this state as executor *de son tort,*but it would be a defense that he had accounted in the due course of administration for all the property he had received.

In *Robinson*v. *Crandall,*(9 *Wend.*425,) foreign administrators were allowed to sue in their own names on notes belonging to their intestate, payable to bearer. They were treated as the real owners of the notes. There was no defense in that case, except that of the plaintiffs alleged incapacity to maintain the suit.

If, therefore, it appeared that the complaint was dismissed solely on account of the plaintiff being a foreign administratrix, I should hesitate to affirm the decision. There is, however, a defect which I deem fatal; conceding that the objection that the plaintiff is a foreign ádmininistratrix, is one merely to her legal capacity to sue, or to further prosecute this action, and is waived by omitting to demur to the supplemental complaint.

The defendants are members of a joint stock company consisting of more than seven associates. The associates can not be sued as such, until after a suit has been brought against the association in the manner prescribed by 3 *R. S. (5th ed. p.*777, §§ 122, 125,) and judgment has been obtained against it, and an execution against it has been returned unsatisfied. It was, therefore, right to order the supplemental complaint to be dismissed.

The case states that the complaint was dismissed at the trial. This clearly means the supplemental complaint. There was no other complaint before the judge who tried the cause.

The case now before the court purports to contain the pleadings and to state the proceedings which were before the judge *676at the trial, and they contain no pleading except the supplemental complaint and the answer thereto.

The defendants’ motion for a new trial should be denied and ani order be entered dismissing the supplemental complaint absolutely with costs of the proceedings had thereon. I see no objection to the entry of a judgment to that effect.

There has been a trial between the parties now litigating before the court, within the meaning of the word trial, as defined by the Code. *(Code,*§ 252.)

The Code defines a judgment to be “ the final determination of the rights of the parties in the action.”

The only parties in the action, now litigating in it, are the plaintiff, as a foreign administratrix, and the defendants. A final determination that she has no right to further prosecute it, and that her supplemental complaint be dismissed, is a judgment as that word is defined by the Code.

Such a decision and judgment if pronounced solely on the ground of the plaintiff’s incapacity to prosecute the action, will eliminate from the cause all proceedings commencing with her supplemental complaint, and leave it as it was when she intervened. If pronounced on the grounds that her legal incapacity is waived by an omission to demur, and that no action will lie against the defendants, and, if both grounds are well taken, might be a bar to further proceedings, even if the plaintiff should take out administration in this state.

The judgment or final order may, apd I think should, show the point decided and the ground of the decision.

It will be time enough to determine the effect of the decE sion when the question is regularly raised hereafter for judE cial adjudication.

Barbour, J. (dissenting.)

This action was brought by Chas. A. Robbins, ,in his lifetime, to recover the value of certain watches and other articles contained in a trunk, alleged in the complaint to have been placed by him in the hands of the defendants, as common carriers, to be by them delivered.to him at Iowa City, in the state of Iowa, together with damages for *677the improper detention of other goods delivered to the defendants at the same time, for like transportation.

After the commencement of the action, Robbins, the plaintiff, died intestate, whereupon the present nominal plaintiff applied to the court for, and obtained leave to file and serve a supplemental complaint, and to continue the action in her name as administratrix; under which order such supplemental complaint was served, and an answer thereto was put in by the defendants, Henry Wells and John Butterfield.

The supplementary complaint commences thus: “ The plaintiff complaining of the defendants Henry Wells and John Butterfield, who, with others unknown to the plaintiff, do business in the city of Hew York, as expressmen or forwarders, under the name of the American Express Company,” and, after averring the placing of the goods in the hands of the defendants for transport, and their failure to deliver a portion of them, amounting in value to $680, and an unneceseary detention of the others, and alleging that the plaintiff had been appointed, by a *county judge in the state of*Iowa, administratrix of the effects, &c. of Charles A. Robbins, concludes with a prayer for a judgment against the defendants for the alleged amount of the loss and damages.

The answer contains a general'denial, and also sets up the fact, among other things, that the goods were received from Robbins by the American Express Company, a joint stock association, composed of more than seven shareholders or associates, two of whom were the defendants Wells and Butterfield, the only defendants named in the summons and complaint ; that such association was organized under the laws of the ■state of Hew York, and had a president (the defendant Henry Wells,) and a treasurer.

Upon the trial, the plaintiff, to establish the delivery of the goods to the defendants, exhibited in evidence a receipt in the following words:

> *678“American Express Company.

> WellSj Butterfield & Co. Express Forwarders and Foreign and.Domestic Agents.

> Wells, Butterfield & Co. Proprietors.

> 

> Hew York, Sept. 18, 1854.

> Platt and Brothers have delivered *to us*two boxes and one *trunk*marked as follows: Chares A. Bobbins, Iowa City, Iowa, which we undertake to forward to --only perils of navigation and transportation excepted. And it is hereby • expressly agreed that said American Express Company are not to be held liable for any loss or damage of any box, package or thing for over $150, unless the just and true value thereof is herein stated ; nor for any loss or damage by fire ; nor upon any property and thing, unless properly packed and secured for transportation; nor upon fragile fabrics, unless marked upon the package containing the same j nor upon any fabrics consisting of nr contained in glass.

> For the proprietors,

> Contents unknown. .=■ . Pride/7 ■

It was admitted that Pride, the signer of the receipt, was . an agent of the American Express Company; and had authority to sign it. Evidence was also given, tending to prove that the trunk mentioned in the receipt was not delivered to Bobbins at Iowa City, until about the 20th of April, 1855 ; that it was then in bad order and condition, and that, upon being opened, it was found that a portion of the goods, consisting of gold and silver watches, &c. amounting to $880.67, originally placed in such trunk, had been abstracted or lost therefrom.

On the close of the evidence thus presented, on the part of the plaintiff, the defendants moved to dismiss the complaint upon the following grounds:

1st. Because the action is brought in the name of a foreign administratrix, who can have no status in this court. 2d. Because the action is not brought against the American Express *679Company, but against its individual shareholders. 3d. Because there is no evidence that any of the missing goods were put into the trunk.

That motion was granted, and thereupon the plaintiff excepted and appealed.

Upon a careful examination of the case, I have become satisfied that the evidence given upon the trial was insufficient to establish the loss of the goods, ..while in possession of the defendants, or in that of the express company.

There is no evidence whatever to show that the invoice or bill which was in the hands of the Iowa witnesses, at the time they examined the contents of the trunk, was the real invoice which was furnished to Robbins by his vendors, or even a correct copy; and the evidence given to show that the. missing articles were placed in the trunk, and not in the boxes, is at best exceedingly slight. It appears, too, that the trunk' in question was in the hands of Robbins, some hours, at least, •before it was examined by the witnesses; and there is no evidence whatever as to its real condition or that of its contents at the time it was delivered to him.

I am also of opinion that the case made by the complaint, modified and changed as it was by the admission made upon the trial, that the American Express Company was composed of more than seven associates, and the exhibition in evidence of the receipt of their agent Pride, was insufficient to authorize a judgment against the defendants; for the defendants here are only two of more than seven partners or associates, all of whom were engaged in the same transaction, and were jointly liable,- and who, except for the acts of 1846 and 1851, (3 *R. S. 5th ed.*777,) must all have been impleaded as defendants. Those' acts, however, *(Id.*§§ 122, 126,) for the purpose of aiding creditors- in the prosecution of their claims against associations composed of more than seven persons, have authorized suits to be brought against them in the name of their president or treasurer, and by the service of a summons upon such officer, has prohibited the institution of actions against such association individually in the first instance *680in any other way; and this action is brought, not against the association nor its president or treasurer as such officer, but against the defendants Wells and Butterfield individually, or as two only of more than seven partners. "

But, although the plaintiff was not entitled to judgment upon closing her proofs, and when the motion was made to dismiss the complaint, it by no means follows that the court had power so to dismiss it. If the plaintiff in the supplemental complaint has no such standing in the court as entitled her to prosecute the suit, the action, which is still in existence notwithstanding the death of the original plaintiff, (Code, § 121,) ought to be permitted to stand so as to leave the real representative of the deceased plaintiff at liberty, if he should be so advised, to apply for leave to prosecute it to judgment. It seems to me quite clear that the true representative can not properly be deprived of this right by the intervention of an outsider. Indeed, unless the proper parties were properly before the court at the time the trial was had, the judge had no jurisdiction to direct a dismissal.

' It is well settled, both in England and this country, that courts will not take notice of -letters of administration granted abroad, and that a foreign administrator has no right as such to maintain an action. *(Campbell*v. *Tousey,*7 *Cowen,*64. *Robinson*v. *Crandall,*9 *Wend.*425, *and cases there cited.)*

Of course, the plaintiff in the supplemental complaint is. not entitled, as an administratrix, appointed in Iowa, of the goods, &c. of the original plaintiff, to continue the action as the representative of the original plaintiff, and to prosecute the same to judgment.

I am of opinion, therefore, that the order dismissing the complaint should be set aside and *vacated;*leaving the defendants to take such action in the premises as théy may be advised.