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Champlin et al. v. Dotson. der it a right to resist the payment of the purchase-money. That he should not be permitted to claim more than an abatement equal to the amount paid by him, is, under the circumstances, most obviously true; but is the interposition of a court of chancery necessary to restrain him, or may the court of law, in which the defence is made, accomplish the some thing? This question is one of considerable difficulty. The respective claims for jurisdiction are very nearly balanced. A party may be enjoined from setting up a defence at law, on the same principle that will prohibit him from setting up an unconscientious demand, if the court of law cannot exclude the defence, or give it a proper limit. The condition of the contract has been forfeited, the land was sold under execution, and, by the terms of the contract, the notes should be given up. The intention of the parties may be very questionable; it seems to have been intended as a mere contract of indemnity, yet it is more in terms, and courts of law cannot generally so enlarge the contract by construction which is not expressed. Courts of equity, too, must be governed by the real contract; but it is said they may examine it, not merely as a court of law does, to ascertain what the parties have in terms expressed to be the contract, but what is in truth the real intention of the parties, and carry that out. But in so doing, they must look carefully at what the parties have expressed, because in general they must be taken to have expressed what they meant. Liddell v. Sims, 9 S. & M. 596. But though it be true that a court of chancery cannot depart from the terms of a contract so as to vary it, yet it may go further than a court of law in mitigating the consequences of a breach of contract, and it may reach and condemn the means by which one party has obtained the advantage of another. On the contract of vendor and vendee, it raises a confidential relation, and imposes corresponding duties, which will be enforced against an advantage at law. It will not allow the vendee to avail himself of his legal title acquired under an outstanding incumbrance, although he might do so in a court of law, where legal titles only are recognized. On a bill by the defendant to rescind this contract, a court of chancery would assuredly re

Lewis v. Robertson.

fuse its aid. It ought not, therefore, to allow the same thing to be virtually accomplished in a court of law. After the contract was made, the defendant seems to have shaped his conduct so as to bring the case within the letter by disregarding the rights of the vendor. The remedy in chancery, moreover, recommends itself by being more certain, and more ample and complete. For these reasons, we think it is the proper tribunal to take cognizance of the question. If the defendant, by answer, can place the case in a different aspect, he may make his defence available. The decree must be reversed, the injunction reinstated, and the case remanded.

John S. Lewis vs. William Robertson, Trustee of Commercial

Bank of Natchez.

A note executed by a stockholder in the Commercial Bank of Natchez, payable

to the bank and discounted by it for the purpose of paying a call by the bank on his subscription for stock, after the first and several other calls on his stock had been paid, is a valid obligation on the maker of the note ; which

may be enforced after a judgment of forfeiture against the bank, under the act of 1843, by the trustee appointed by the court. The trustee of a bank, under the act of 1843, succeeds to all the rights of the

bank ; he is to collect all debts due to the bank, and apply them to the payment of debts due from the bank ; and an amount due for stock in the bank is

as much a debt as any other liability. However it might be if there were no creditors of the bank, it is clear the

stockholders are bound to pay up all the arrearages due for stock, if necessary to form a fund for the payment of the debts of the institution.

In error from the circuit court of Wilkinson county; Hon. Stanhope Posey, judge.

On the 27th May, 1847, William Robertson, as trustee appointed by the circuit court of Adams county, on the 12th June, 1845, at May term thereof, 1845, of the Commercial Bank of Natchez, brought suit against John S. Lewis, upon a note

Lewis v. Robertson.

made by him, dated 26th March, 1840, for $1519.80, payable twelve months after March 4, 1840, to the said bank or order.

The defendant plead : 1. Non assumpsit.

2. That the cause of action did not accrue to plaintiff within six years before suit brought, and concludes to the country.

3. That the bank was not, on the 4th of March, 1840, nor after, a body politic or corporate, and had no right to contract as such.

To this plea there was a demurrer for these causes: 1st. Defendant is estopped by matter of record. 2d. The plea amounts to general issue, and is informal. 3d. Plea denies character in which plaintiff sues, is not sworn to, and is, in other respects, informal and insufficient.

The demurrer was sustained.

4. That a judgment of forfeiture against the bank was rendered on the 12th of June, 1845, in the circuit court of Adams county, at which date said note was property of the bank, and said judgment is in full force.

To this there was a demurrer for cause: Ist. The matter of plea is no bar to the action. 2d. Said matters are only pleadable in abatement.

The demurrer was sustained.

5. That at November term, 1846, of Adains circuit court, said Robertson, as trustee, filed in said court a full inventory of all the effects, &c., of said bank in his possession, and said inventory was recorded, pursuant to law; and thereafter, at November term, 1846, of said court, Robertson, as trustee, was ordered and decreed by said court to sell such effects, &c., according to the statute, &c., as by said order and decree will appear; said note sued on was included in said inventory.

A demurrer, for the same causes set forth in the demurrer to 4th plea, was sustained.

6. Pleads that after said judgment of forfeiture at said May term, said bank prayed an appeal to the high court, and said appeal was allowed” at same term.

A demurrer, for causes set forth in demurrer 10 4th plea, was sustained.

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Lewis v. Robertson.

7. Pleads payment to the bank; there was a replication of denial, and similiter.

The defendant did not plead further, and the cause was tried upon the pleas of general issue, statute of limitations, and payment.

On the trial, the defendant proved, that, about June, 1837, the bank discounted for him a note for $4000, for the purpose of paying a call on one hundred shares of his stock in said bank, on which Lewis had before paid $60 per share; the proceeds of said note were applied to pay said call, being $40 per share. About the 29th March, 1838, Lewis paid part of said note, and gave a new note for $2000, the balance at twelve months; afterwards he paid $760 on said note, and gave, for the balance, the note sued on, and to secure its payment, pledged twenty shares of the stock of said bank; no scrip has been issued for said twenty shares.

Defendant further proved, that the bank commenced business in 1836; that Lewis was a stockholder in said bank; that the first call on stock was paid in specie; that it was the uniform custom of the bank, in the case of all stock notes, to discount the same, so that the maker might with the proceeds pay calls upon his stock; and that it was the uniform custom for the maker to check for the proceeds of the note so discounted, and have the same credited upon the maker's stock account; whether in this case that method was adopted, witness could not say.

The defendant asked, in substance, these charges :

1. If the jury believed the note sued on was given in payment for stock of said bank, it is void. Refused.

2. If the note was given for stock in said bank, and if defendant never received said stock, and cannot now receive it, in consequence of the dissolution of the bank, the verdict must be for defendant. Refused.

The verdict was for plaintiff, and defendant moved for a new trial, for error in refusing said instructions, and because the verdict was contrary to law and evidence. The motion was overruled, and defendant excepted and sued out this writ of error.

Lewis v. Robertson.

Gordon, for plaintiff in error,

Argued the cause, and cited King v. Elliott, 5 S. & M. 444; Leighty v. Susquehanna and Waterford Turnpike Co., 14 Serg. & Raw. 434.

Gaines, for defendant in error,

Thought the case of Hayne v. Beauchamp, (5 S. & M.515,) determined this case for defendant in error.

Potter, argued the cause on the same side.

Simrall, for plaintiff in error, in reply,

Made an elaborate argument, in which he reviewed the proof at length, and insisted that the transaction by which the note of the defendant below was given for stock, could not be sustained either by the charter of the bank, or upon charter law principles.

Mr. Justice Clayton delivered the opinion of the court.

This was a suit upon a note given to obtain money from the Commercial Bank of Natchez, to pay for stock in that bank. The first and several other calls on the stock had been paid pre. vious to the discount of this note, which had been made to raise funds to pay a farther call. The case is distinguishable from that of Hayne v. Beauchamp, (5 S. & M. 515,) in this, that the first call on the stock had been paid in cash, at the time required by the charter, consequently there was no reason for holding the subscription to be void. It was the failure to pay at the time of the subscription in accordance with the requisitions of the charter, which induced the majority of the court, in the case referred to, to hold that there was no valid obligation upon the subscriber. Subscription and payment of the first call, according to that decision, completed the contract, and made the party a stockholder. These acts concurred in this instance, and bound Lewis from that time.

The case also falls within the other branch of that decision, for it held the party bound to pay the note which he had given

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VOL. XIII.

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