majority">By the Court, E. Darwin Smith, J.

The demurrer in this action was sustained upon the single ground that there was a defect of parties defendants to enable the court to *335grant the relief demanded in the complaint. Eo cause of action is stated in the complaint against the defendants Dratt and Packard. The addition to their names of the words commissioners of loans of Wayne is merely a descriptio personarum. As against these defendants, regarded as mere private persons, the demurrer is sustainable on the ground that the complaint does not state sufficient facts to constitute a cause of action. They are clearly not made parties in their private capacity, but with the view to relief against them in their official capacity as commissioners of loans. They had no connection with the original fraud of which the plaintiff complained, and have done.no acts injurious to his rights. They are simply successors in office of a former board, by which the fraudulent and injurious acts complained of were committed. The state has invested two persons in each county with authority to loan certain moneys, received from the United States, to the people of each county, by act passed April 4, 1837, and which is referred to in the plaintiff’s complaint. The act declares that such commissioners of the several counties shall respectively be known and distinguished by the name and style of “ The commissioners for loaning certain moneys of the United States of the county,” of which they were respectively commissioners, and declares that they shall be named and described by such name and style in all legal and other proceedings which may be had under the provisions of such act. All acts and deeds of said commissioners were to be done in the name and style thus declared, as much so as though they were a corporation by such name. The plaintiff seeks to set aside the foreclosure of a mortgage given to such commissioners in the name and style aforesaid, and also a mortgage executed to and taken by them from the defendant Denison by and in the name and style aforesaid. Such at least we must presume to be the case, for the 50th section of the act aforesaid prescribed the form of mortgages to be received by such commissioners, and such form is to them by such name and style without naming *336personally the commissioners. And so-are deeds to be executed by them as prescribed by the 57th section of said act, and such must therefore have been the form of the deed to Denison. When an action is duly commenced against the commissioners as named in this act, the action is in effect against the state, not against the commissioners personally. The legislature has prescribed that the state will sue and be sued in respect to the moneys loaned by these loan commissioners in the manner and form particularly prescribed in the act. The form must be pursued, to bind the state. It is therefore, I consider, absolutely necessary to bring the state, in the form prescribed, before the court as a party, to enable the court to give any relief to the plaintiff. The foreclosure and sale of the original mortgage, the deed executed to Denison, and his mortgage back, must be set aside. The state is the party chiefly to be affected, and must be sued, to be bound by any decree or judgment. But as these commissioners are in the nature of agents for the state, acting by a corporate name and using such name for the benefit of the state, if they had appeared in the action and litigated the question arising upon the plaintiff's complaint, the court would undoubtedly, at any stage of the proceedings, substitute their proper corporate names for their personal names ; but until this is done there is a defect of parties, and no valid* judgment can be given to bind the state. The point being distinctly made by the defendants, by demurrer, I see no way but to sustain the demurrer and allow the amendment. This is what I designed to do in allowing the demurrer before, and this I think must be done. The plaintiff, when the objection^ distinctly made, cannot be allowed to proceed when he can have no valid decree against the parties to the record. He must amend, to obviate that objection. But it is said the objection in question does not appear upon the record. This I think is a mistake. The act under which the defendants were appointed, and under which their predecessors acted, and under which all the proceedings upon the foreclosure in *337question were had, must be deemed a part of the complaint, and must be referred to to explain and maintain it. We must look to this statute to ascertain the rights of the parties. It is also said this point cannot be raised by demurrer. This I think a mistake. The demurrer raised the point that “ there is no cause of action stated against the defendants Dratt and, Packard personally,” and if they are sued in their official capacity their corporate name is not used. This point is properly raised by demurrer. I think the order made below must be affirmed with costs.

[Monroe General Term,December 7, 1863.

Order affirmed.

E. Darwin Smith, Johnson and Welles, Justices.]

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