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Mathews v. Mosby.

Samuel Mathews, State Commissioner, vs. James C. Mosby.

Walker v. Comm'rs of Sinking Fund, 6 How. 143, cited and confirmed, decid

ing that the commissioners were trustees, and could sue at law on contracts concerning the fund. Young v. Hughes, 12 S. & M. 93, cited and confirmed, deciding that the state commissioner, appointed under the act of 1844, has succeeded to the trust in reference to the sinking fund, and can sue as the commissioners could have

sued on contracts made with them. After the passage of the act of 1844, creating the state commissioner, a judg.

ment was recovered in the names of the commissioners of the sinking fund, in a suit instituted by them before the passage of that act; the state commissioner afterwards sued out a scire facias, to revive this judgment in his name : Held, that the judgment in favor of the commissioners, rendered after the creation of a new trustee, was not void ; at most it was but erroneous,

and must stand till regularly reversed. It seems, however, that the judgment was properly rendered in favor of the

commissioners of the sinking fund; they had begun the suit, and there was no prohibition, in the act appointing the state commisssioner, to their prose

cuting it to judgment. Nothing which could have been urged as a defence to the original judgment,

can be raised as a defence to a scire facias to revive that judgment. Where, therefore, parties sued by the commissioners of the sinking fund before

the act of 1814, creating the state commissioner, allowed them to prosecule their suit to judgment, in their names, after the passage of the act : it was held, that if the former commissioners, by the act of 1844, were deprived of all right to sue, it was a matter of defence, on the part of those sued, to the rendition of judgment; and if they allowed judgment to go without making it, ihey could not afterwards make it to a scire facias to revive the judgment.

In error from the circuit court of Warren county; Hon. G. W. L. Smith, judge.

On the 10th of August, A. D. 1849, Samuel Mathews sued out a scire facias, to revive in his name, as state commissioner, a judgment rendered on the 31st of May, 1844, in favor of Augustus B. Sanders, auditor of the state of Mississippi, John P. Wal

Mathews o. Mosby. worth, president of the Planters' Bank, and Henry D. Mandeville, cashier thereof, against James C. Mosby for $3483.30. The pleadings are sufficiently stated in the opinion. The court below sustained a demurrer to the scire facias, and the commissioner appealed.

W. C. Smedes, for appellant, reviewed the case of Young v. Hughes, and insisted that,

1. It did not determine that all the powers of the commissioners of the sinking fund were annulled by the act of 1844, (Hutch. Code, 228, $ 2,) nor that those commissioners were removed by that act, and the state commissioner put in their stead, but only that in case of a vacancy in the offices of commissioners, the state commissioner was vested with power to act; and that vacancy was inferred from the fact that the former trustees made no objection to the change, yielded up the assets to the state commissioner, and assented thereby to their removal.

In this case, the commissioners of the sinking fund, the lawful trustees, in whom was the legal title, do not, at once, yield up their position and rights; they do not assent to their removal; they assert their rights up to the point of the rendition of the judgment; they take that judgment in their own favor, as they may lawfully do, (Com. Sinking Fund v. Walker, 6 How. 143;) and then they abandon their trust, yield their office, and the new trustee takes their place, assumes their functions, and is clothed with their rights and duties.

2. The act of 1844 created a new officer to discharge the functions of an old one. It did not in terms remove the old one; unless, therefore, the old one voluntarily assent to the authority of the new one, the latter acquires no authority. Allen v. McKeen, 1 Sumo. 276; Hoke v. Henderson, 4 Dev. 1; Commercial Bank of Natchez v. Chambers, 8 S. & M. 9; Young v. Hughes, 12 lb. 93.

Coleman and Tappan, for appellee, contended,

1. That, at the time of the rendition of the judgment, the commissioners of the sinking fund were not in esse, and conse

Mathews v. Mosby. quently the judgment in their name was null and void. On the appointment of a state commissioner, his power to sue, &c., began, and immediately that (power, which before was vested in the first commissioner, was transferred to him. Young v. Hughes, 12 S. & M. 106. In this decision, the state commisioner is held to be the successor to the former commissioners; and as a successor is one who comes into the place of another, the place of the other must have been vacated.

2. In the same decision the court held, that the terms of the act were sufficient to convey the legal title to the state commissioner.

That no formal conveyance of legal title was necessary from the first commissioners to the state commissioner. That a legislative grant was the highest evidence of title.

If then the legal title is vested in the state commissioner by this act of the legislature, it cannot at the same time remain in the first commissioners.

3. The court infers "a vacancy from the fact, that the former trustees made no objection to the change.” It does not hold that it is requisite for the assets to be yielded up in order to infer a vacancy.

4. In regard to the consent of the old trustees, though this point is not directly decided in Young v. Hughes, yet we think the court did not consider their consent was necessary, for the court state that "no one could object to the change (of trustees) but the cestuis que trust.And the state being the cestuis que trust, no consent was necessary from any one but the state, and that consent was shown by the act appointing a new trustee.

5. The language of the act itself shows that on the appointment of the state commissioner, the power of the former commissioners ceased. Can it be possible that the legislature would grant the power to the state commissioner, to compel the former commissioners to a settlement, and yet allow them to avoid a settlement by retaining the title? We hold it to be clear from the terms of the act, that the legislature has granted this power to the state commissioner; and yet, if the consent of the former commissioners, and a delivery by them were necessary to vest

Mathews v. Mosby. the legal title in him, the exercise of this power would be impos. sible in case of objection on their part, for as the title would not, under this construction, vest in the state commissioner until a consent and delivery given by them, a suit could not be instituted against them in his name, and thus he would be unable to compel them to a settlement.

Mr. Chief Justice Sharkey delivered the opinion of the court.

The plaintiff sued out a scire facias to have execution of a judgment which had been recovered on the 1st of May, 1844, by the andivor of public accounts, and the president and cashier of the Planters' Bank as commissioners of the sinking fund, against the defendant Mosby.

The defendant pleaded, 1st. Nul tiel record; 2d. That the plaintiff had not been duly appointed state coinmissioner; and, 3d. Payment of the judgment. To the first and third pleas, the plaintiff replied, and demurred to the second. On argument, the court sustained the demurrer to the scire facias, and from that decision the plaintiff brings up the case.

Previous adjudications in suits brought to recover a part of the sinking fund, cover the whole case except as to one point. The case of Walker v. The Commissioners of the Sinking Fund, 6 How. 143, decides that, under the charter of the Planters' Bank, a trust was created in reference to this fund, and that the commissioners as trustees could sue at law on contracts concerning the fund. The case of Young v. Hughes, 12 S. & M. 93, decides that the state commissioner, appointed under the act of 1844, has succeeded to the trust in reference to the sinking fund, and can sue as the commissioners could have sued on contracts made with them. We have several times decided that judgments recovered by the former trustees may be revived in this court pending a writ of error. But the act providing for the appointment of the present state commissioner was passed in Feb. 1844, and this judgment was not recovered until May following. The suit was brought and the judgment recovered in the name of the commissioners without revival, although a new trustee had been appointed. This single question is presented, Was the judgmen:

Mathews v. Mosby.

so recovered void, or only erroneous ? If void, it cannot be revived; but if erroneous only, it must stand till regularly reversed.

The sinking fund was created by the state and for the state. She had a right to change the trustee, and such change was made by the act of 1844. As the legislature was acting on the subject of the state fund, we cannot ascribe to that body an intention prejudicial to the fund, unless such intention be clearly expressed. Nor ought such effect be given to the act, unless it be a necessary consequence of its provisions. It does not profess to remove the former commissioners, or to suspend their authority, otherwise than by investing the new trustee with all necessary power, to manage, collect and recover the trust fund, and to that end it directs him to call upon former commissioners, agents, attorneys, and others having possession of any portion of the fund.

Now, although a new trustee was substituted, the former trustees might very well prosecute a suit commenced by them, in the absence of a prohibition. They were still in being, and as they were bound to discharge all duties necessary for the preservation of the fund, perhaps it was their duty to prosecute the suit. At all events, the judgment was not absolutely void, even if a recovery in their names might have been successfully resisted in consequence of the change of authority. The only objection was, that the cause of action had been legally transferred to another trustee. If a party suffer a judgment to go against him in favor of one who has ceased to have a cause of action, that does not necessarily render the judgment void. Here was a valid cause of action, but the legal title had passed out of the persons who had brought the suit. The defence should have been interposed by way of plea, but the defendant omitted to raise the objection. If a plaintiff become bankrupt, after interlocutory but before final judgment, the suit may still proceed in his name. 2 Tidd, 849. His bankruptcy is the subject of a plea, puis darrein continuance. Ib. 775. That which will render a judgment void, need not be pleaded; hence, if bankruptcy be pleadable, if the plea be not made, the judgment will not be void. By the bankruptcy of a party, every right of

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