Logwood v. President of the Planter's & Merchant's Bank of Huntsville , 1 Minor 23 ( 1820 )

J udge Lipscomb

delivered the opinion of the Court.

The-first is a general-assignment. We have heretofore decided, that the-matter relied on as Error-must be specially assigned (Ripley against Coolidge and Bright, ante p. 11.) But as the counsel for plaintiffs in Error have been permitted to argue a point intended to be covered by the first assignment, it may be proper to settle it now, and prevent a further application on the same ground. The words in the Charter of the Bank referred to are, “ If any person or per- “ sons shall be indebted to said Corporation as maker or “ indorser of any note, bill, or-bond,.expressly made negoti- “ able and payable at said Bank, and shall delay payment thereof, it shall be lawful for the Corporation, after having ‘‘ given at least ten days’ notice thereof, and producing to the “ Court before whom the motion is made, the certificate of “ President of the Bank that the debt is really and bona “ fide the property of the Bank, to move for judgment against “debtor debtors, his, her, or their heirs, executors, “ or administrators, in any Court of Record within this ter-, « ritory. Provided always, that if the defendant or defend- “ ants shall appear and contest the claim, the Court shall in- “ stanter impannel a Jury to try the issue, and thereon give “judgment accordingly.”

. If is Contended that this part of the Charter is contrary to the first section of the first article of the' Declaration of rights: “ That no man or set of men are entitled to exclu- “ sive or separate public emoluments or privileges but in “ consideration of public services.” For the Corporation it is contended, that the privileges granted by the Charter are not of the description intended to be restrained by the foregoing article. That if there could have been a doubt on the construction, it is removed by the first section of the schedule.

The Charter is a grant from the Legislature of the Mississippi territory (then vested with Legislative power over' this country) creating certain individuals a body corporate, and securing to them, for a limited time, theprivileges therein enumerated. That this Legislature had competent authority to'create this Corporation and grant these privileges, has not been controverted. 1$ not this charter a grant ? A contract between the Legislature, the Grantor, and the individuals, thus made a body corporate the Grantees, both parties being capable of contracting ? Is the Charter then protected by the provision in the Constitution of the United States — that “ No state shall pass a law impairing the obli- “ gation of contracts?” In the case of Dartmouth College against Woodward (4 Wheaton, 668) Judge Story says, “ An- “ other division of Corporations is into public and private. “ Public Corporations are generally esteemed such as exist for “ public, political purposes only: such as towns, cities, parish- “ es, and counties, and in many respects, they are so; although, they involve'some private interests. But strictly speaking, public Corporations are such only as are found-: “ed -by the Government, for public purposes, when the “ whole interests belong also to the Government.' A Bank, “ created by the Government for its own uses, whose stock “ is exclusively owned by the Government, is, in the strictest “ sense, a public Corporation. But a. Bank, insurance, canal, “ bridge, or turnpike company, &c. whose stock is owned “ by private persons, is a private Corporation, although it is- “ erected by the Government, and its objects and operations “ partake of a publicnature.”

The first class of Corporations (says the learned Judge), can be controlled by the Legislature without violating any contract, for the whole interest belongs to the Grantor. But when the whole interest has been vested in certain individuals, to their own private use, the Grantor cannot control or alter the Grant without the consent of the Grantees, tor this would violate the contract between them.

The Charter in question is then a contract, whose obligation the Legislature is restrained from impairing. The Legislature cannot alter, control, or abridge the Charter, without the consent of the individuals composing the Corporation. How far it. comports with the policy of a State, whose Government is Republican, to establish such Corporations, cannot be a subject of judicial investigation.

It has been further urged on behalf of the plaintiffs in Error, that the Constitutional right of trial by jury is violated by this summary mode of proceeding. In our opinion, the Charter has carefully avoided even the appearance of an encroachment on this inestimable right. If the claim be contested, the Court before whom the motion is made is expressly required to impannel a Jury to try the issue. It does not appear that the defendants in the Court below contested the demand or claimed a trial by Jury. • That which they had power and opportunity to ask, and have not asked, cannot be said to have been denied.

The second assignment of Errors is, that it does not appear that the defendants in the Court below had notice as required by law. The Record states that it further appear- “ ing according to the Statute in such case made, that the de- “ fendants have been duly noticed of this motion,” &c. The Charter of the Bank requires that ten days notice shall be given. How is it to be given ? By the Corporation in its corporate capacity, and under its common seal, by which only it can act and be known.

It does not appear from any thing in the Record that the notice was so given, unless the Court are so to intend (as insisted by the counsel for the Bank) from the words “ duly “ notified” in the Record. In proceedings according to the course of the common Law, many defects in the Record will, after judgment, be cured by the doctrine of intendment. But wherever a summary remedy is given by Statute, those who wish to avail themselves of it must be confined strictly to its provisions, and shall take nothing by intendment. The supervising Court cannot infer that notice as required by Law has been given, unless it so appears in the Record. Not to require this, would be to surrender to the Court below the power of judging without appeal of all the proceedings had before it.

The third assignment is, that it does not appear that the certificate of the President of the Bank was produced in ^ourt as required by Law. What has been said as to the second assignment may be applied with equal force to this— «pjjg jjecor<j should shew that the certificate was produced, and that it was under the seal of the Corporation.

The fourth assignment is, that it does not appear that the defendants in the Court below were called previous to the motion for judgment.

The object of calling (to give the defendants an opportunity to make their defence) could be as well attained by the ten days’ notice. After receiving notice they should have been prepared to make their defence, and no further notice was necessary.

The fifth assignment is, that there is no consideration set forth on which to ground the motion. The Record shews the note of the defendants in the Court below. The Charter authorizes this summary mode of obtaining judgment on Notes as well as on Bonds. Setting forth the IN ote is a sufficient shewing of consideration, without shewing for what that Note had been given.

Oh the second and third assignments, the Court would reverse the judgment of the Court below. But we find that the writ of Error was issued by the Clerk of the Circuit Court since the Act of 1819.

The case must therefore be dismissed at the cost of plaintiffs in Error.

' Judge Webb declined giving an opinion on the first assignment. Judges Clay and Ellis, being stockholders in the Bank, did not sit.