Planters' Bank v. Bank of Alexandria , 10 G. & J. 346 ( 1839 )

Dorsey, Judge,

delivered the opinion of the court.

The court’s rejection of the defendant’s first prayer in the bill of exceptions, is attempted to be sustained on the ground that the time, when the plaintiff’s cause of action accrued, is a matter of law dependent on facts, and ought to be decided by the court, and not left to the determination of the jury. We do not think that the refusal of the prayer can be sustained on this ground. The prayer is not to be understood, as asking the court to leave to the jury, the decision of any question of law arising upon the facts proved, but simply, the finding of those facts, which in the absence of any application to the court as to the law arising thereon, and conceded by the parties to be sufficient to constitute such accruing of the cause of action. The court were called upon in this respect to do nothing more, than leave to the finding of the jury, that which under the issue joined, it was their duty to find, if no prayer had been offered upon the subject. It surely could not have been error in the court, in submitting, as they did, the issue in fact to the jury in the very time in which it had been joined.

It is further insisted, that the first prayer ought to have been rejected, because it required of the court to leave to the jury the finding of whether there had been within three years since the •accrual of the right of action an acknowledgment of indebtedness on the pari of the defendants of the claims now sought to be recovered against them, or some portion of it, on the ground, that what is an acknowledgment of such claims sufficient to take the case out of the statute of limitations, is a question of law, and not of fact. The rejection of the prayer cannot be supported on this suggestion. The prayer in this qualification of it, did not require the court to instruct the jury to find, whether there had been within three years, such an acknowledgment of indebtedness, as would take the case without the statute; but simply to find the isolated matter of fact, whether there had been within that period, any acknowledgment of indebtedness on account of the claims of the plaintiff. With such an instruction the plaintiffs had no cause to Be dissatisfied. It placed their rights in a more favourable* aspect before the jury, than they were entitled to. It left the* jury at liberty to find a verdict for the plaintiffs, not only if they found such facts- as in contemplation of law, would have* entitled the plaintiffs to it; but it in fact was an instruction to the jury, that they might find for the plaintiffs, if they found within the specified period any acknowledgment by the defendant of indebtedness for the plaintiffs’ claims, no matter whether in the eye of the law, such acknowledgment would-have removed the statutory bar or not. To the granting at the instance of the defendants the prayer now under conside* ration, we think neither the court nor the plaintiffs had any' right to object upon either of the aforementioned grounds.

The plaintiffs also insist, that this prayer ought not to have-been granted by the court, because the act of 1829, ch. 61, by its provisions, suspended their right of action until the hap-pening of contingencies which are not shewn to have accrued three years before the commencement of the present suit:- and conceding that this act of assembly, worked no such suspension, yet that connecting it with the evidence contained in the bill of exceptions, there was testimony legally sufficient-to have been left to the jury, to have warranted them in finding, that an agreement was entered into by the plaintiffs and defendant, that the former would suspend the collection off their claim, until the latter made default in its payment, according to the provisions of the act of 1829.

To this matter in avoidance of the defendant’s plea of limitations, it has been insisted, first, that the act of 1829, is a private law; and as- such-, not being made a part of the proof in the cause, this court cannot look out of the record to take cognizance thereof. The act of 1817, ch. 61, chartering The Planters'1 Bank of Prince George’s County, is -admitted to be a public law; but on the part of the plaintiffs it is urged that, the act of 1829, in repealing those sections of the act of 1817, which gave to it the efficacy of a public law, thereby itself became a private law. The effect of this strange doctrine is,, that the court is bound judicially to know the enactments of the act of 1817, but it is not permitted to take judicial cognizance of the act of 1829, which repeals all those parts of the act of 1817, which gave to it its public character. For repudiating such a principle, it is not necessary to use argument, or cite authority. Was there evidence legally sufficient to be left to the jury, to authorise their finding that, an agreement was entered into between the plaintiffs and defendant, (as contended for by the former) for the -suspension of the payment of the claim preferred against the Prince George’s County Bank is the next question to be examined. We are clearly of opinion that, there was not a word of direct proof of such a fact; the record exhibits not a particle, and such an inference, so far from being sustained, is repelled by all the testimony in the cause; as well the written as the oral evidence demonstrates that, the claim of the plaintiffs was always disputed by the defendant, and that the parties never came to any agreement on the subject of its liquidation. Did the act of 1829 suspend the right of the plaintiffs to an immediate prosecution for the recovery of their claim, is the next subject for inquiry. If the pleadings in the cause were such as to present that ■question, and if the charter of the Prince George’s County Bank, was under its 34th section by the suspension of specie payments ipso facto null and void; without the institution of any judicial enquiry upon the subject, then we think, the plaintiffs were controlled in the prosecution of their claim, by the terms and conditions prescribed in the act of assembly, and that upon the proofs now in the cause, the statute of limitations would not be a bar to their claim. If the charter of the Planters’ Bank were to be regarded as a nullity in 1829, the •bank ceased to be suable, and courts of law furnished no remedy by which its property could be reached by a creditor, in seeking the payment of his debts. The legislature in restoring to the creditors their lost rights, had the power of making the restoration dependent on such conditions as it might see fit to prescribe.

But the plaintiffs have not by their pleadings placed themselves in an attitude to be saved from the operation of the act 'of limitations. They have not relied upon those facts and circumstances which constitute the saving, and no opportunity being afforded the defendant of taking issue thereon, he is not to be surprised at 'the trial by proof' of their existence. Another impediment arrests the progress of the plaintiffs in their efforts to evade the act of limitations. The forfeiture of the eharter of the Planters' Bank, cannot be taken advantage of, or enforced collaterally, or incidentally, or in any other mode than by a direct proceeding for that purpose; so that it may have an opportunity to answer, and the government creating the corporation can alone institute such a proceeding, since it may waive a broken condition of a compact made with it, as well as an individual. See Angel and Ames on Corp. 510; That such a forfeiture must be judicially established, see the Canal Co. vs. the Rail Road Co. 4 Gill. §' John. 1. The necessity for the judicial establishment of such forfeiture, is not avoided in this case, by shewing that, the stockholders of the Planters' Bank accepted the terms and conditions offered them by the aet of 1829. Of such acceptance, no testimony legally sufficient to prove it was offered to the jury, and in the absence of such proof, this act of' assembly must be regarded by the court as inoperative.

The court’s refusal to grant the defendant’s first prayer, is attempted to be sustained on another ground. It is alleged that, the bill of exceptions shows that the defendant’s appeal is taken from the court’s refusal to grant his three first prayers, and that if any one of those prayers was properly rejected by the court, their judgment must be affirmed. In support of this proposition the case of' the Maryland and Phenix Insurance Companies vs. Bathurst, 5 Gill & John. 159, has been referred to, where the Court of Appeals sanctioned the judgment of the county court, in rejecting a prayer for its instruction to the jury, that the plaintiff was not entitled to recover, if the jury believed any one of a number of facts. The decision of the county court in that case bears no analogy to that made in the case now before us. There was in that case, but one prayer made to the court, to whieh it made the apt and appropriate response. It decided correctly all that it was called upon to determine. In the case before us, three separate and distinct questions were submitted to the decision of the court, on each of which, it was the design of the party raising them, that the court should pass its opinion, the decision of any one of them by no means superseding the necessity of deciding the others. The county court so understood the application made to it, and decided accordingly, rejecting three of the prayers, and granting the fourth. The jury could have understood the court no otherwise, than as refusing to grant either of the three first prayers, and under that understanding their verdict was rendered. We must therefore regard the refusal appealed from, in the same light, as if each question raised had been separately determined, and formed the subject of an independent bill of exceptions.

It follows from the views we have expressed in this case, that the county court in our opinion erred in refusing the first instruction prayed for by the defendant. And for the same reasons we think they committed a similar error in their refufusal of the defendant’s third instructions.

The second instruction we think was properly refused by the court. It wrested from the consideration of the jury, a fact vrhich they were necessarily required to decide, and for the finding of which fact, we think there was testimony legally sufficient to have been left to the jury. The court was required to instruct the jury, that the proof offered by the plaintiffs, consisting of the letters and parol evidence detailed in the bill of exceptions, (although believed by the jury) was not sufficient to remove the bar of the statute of limitations. Before such a requisition could have been complied with by the court, it must decide the matter of fact, that the balance of two hundred and ninety-eight dollars and fifty-six cents, admitted by the defendant, by the letter of its cashier of the 5th of July 1833, to be then due to the plaintiffs, formed no part of the claim for which the present action was brought. Under the proofs and circumstances of this cause, such a decision the court were incompetent to make. There were circumstances in the evidence before them, from which either of two opposite conclusions as to the fact might have been legitimately drawn by the jury. It was therefore a subject within their exclusive cognizance, and the effort to withdraw it from their consideration was rightfully rejected by the court.

We concur with the court below in this refusal of the appellant’s second prayer, but dissent from their refusal of the first and third, and therefore reverse their judgment.

JUDGMENT REVERSED AND PROCEDENDO AWARDED.