Agnew v. Bank of Gettysburg , 2 H. & G. 478 ( 1828 )

Archer, J.

delivered the opinion of the Court. The various questions which have been discussed arise on the general prayer that the plaintiff is not entitled to recover.

The general issue having been plead, the plaintiff, to support the issue on his part, and to shew that at the commencement of the suit he had a right to sue, offered in evidence letters patent issued by the governor of Pennsylvania under the great seal of that state, whereby it appeared that the Gettysburg Bank, anterior to the suit, was a regularly chartered company of that commonwealth. By the same letters patent it appears that the charter of the bank had, by its own limitation, expired between the time of bringing the suit, and the time of trial. The defendant contends, that as it appears from the letters patent that the charter had expired, and that the corporation was extinet, he had a right to use the same as evidence under the issue, and that as it thus appeared the corporation had no longer any existence, the plaintiff was not entitled to recover.

The cases are very conclusive to shew, that where matter of defence arises after the institution of the suit, it must in general be specially plead, and cannot be given in evidence under the general issue, as in the case of a release given after the commencement of the suit, or a reference and award made pendente lite, or hostile alienage happening after the commencement of the action, or coverture of the plaintiff after action brought, or any matter of ahatement occurring after suit brought, or after plea pleaded to the merits. All other matters which go to the foundation and gist of the plaintiff’s action, at the time of its commencement, with some very special exceptions, which it would be unnecessary to enumerate, may be given in evidence under the general issue. Defences arising after the commencement of the action, should be plead puis darein continuance, or against the further maintenance of the suit. It was said by Lord Mansfield, in Sullivan v Montague, 1 Doug. 106, that actio non went to. the time of plea pleaded, ánd not to the commencement of the action; but this doctrine 3has been overruled, by subsequent cases, as departures from the law. 3 T. R. 185. 4 East, 503; and the rule now is, that when the defendant pleads the general issue in assumpsit, he asserts, that at the time of the commencement of the suit some reason existed which should have prevented the plaintiff from bringing his action. This doctrine is supported by several cases of high authority, and by esteemed compilers and elementary books on pleading. It is a doctrine too, as we apprehend, in general founded in justice, and calculated to prevent surprize. Chitty’s Plead. 531, 635, and the authorities there referred to. .

If then the defendant could not, under the general issue, have given in evidence the dissolution of the charter subsequent to the institution of the suit, it is quite impossible to say that he can nevertheless avail himself of the fact to nonsuit the plaintiff because that fact appears in the letters patent, which, the plaintiff is compelled to adduce. Whether the bank was dissolved or not pending the suit, was not in issue, and the fact of the dissolution of the charter having taken place after the commencement of the action, was not pertinent, to the issue, and was not in evidence before the jury. The fact which the jury had to ascertain was, whether the corporation had a right to sue at the commencement of the action.

It is, however, said, that by the dissolution of the charter of the bank, the debts due to it were extinguished, that this therefore is matter which goes to the merits of the defendant’s case, and can be given in evidence under the general issue. It is not necessary that we should express any opinion on the question how far the debts of a corporation are extinguished by the dissolution of its charter, whatever our views on that question maybe, not considering that, its determination is necessarily involved in this case, for we have seen that such a defence,, arising after the commencement of the suit, would be no bar to the suit, where the defendant chooses to rest his defence on the general issue. On the admission of the correctness of the above doctrines, the defendant contends, that it was necessary it should be shewn on the trial, to enable, the bank to mainIain the suit, that it was incorporated, and that if necessary the evidence adduced is insufficient for that purpose.

That, on the general issue, it was necessary for the plaintiff to shew its charter of incorporation, is clear, as will be seen by a reference to the following authorities. 2 Ld. Raym. 1535. 1 Strange, 612. 2 Bac. Ab. 212. This law is adopted in News York by numerous decisions 8 Johns. Rep. 375. 14 Johns. Rep. 245. 19 Johns Rep. 300. 2 Cowan, 378.

At first view it might be supposed that this question had been decided differently in the Farmers Bank v Whittington, 5 Harr. & Johns, and that the want of a charter could only be taken advantage of by a plea in abatement. But an attentive examination of the case will shew that such was not the judgment of the court. The charter of the Farmers Bank of Somerset was a public law, which judicial tribunals were bound to notice, and being such, the plaintiff could not, before he could make out his title to recover, be called upon to shew in evidence that which the court were bound ex officio to notice.

Upon authority it is clear that the plaintiff, to maintain his ease, must shew that by law he has been effectually created a corporation.

Has the plaintiff exhibited evidence that the bank was duly incorporated? This evidence consists solely of a charter granted by the governor of the state of Pennsylvania to the bank, reciting his authority, by the laws of that state, to make such grants, and authenticated by the great seal of that state. The evidence thus offered, it is said, is deficient in this, that the laws of Pennsylvania, authorising the governor to issue his letters patent, in this respect should be proved to the court as other facts are proven, that the court might adjudge and determine whether the governor had complied with his powers. This objection is grounded by the counsel upon the general and well established principle, that specially delegated authorities must be strictly pursued, and that the court must have before them what will enable them to say whether these powers har-e been legally pursued or lawlessly transcended. But we think, that when the foundation of this principle is examined, it will1 be found inapplicable to the present case. This strictness in the execution of special authorities, is demanded, because every delegation of them is in derogation of the common law, and of the rights conferred by it on the citizen. Have we judicial notice from the record, or otherwise, that this special power, delegated by a law of the Commonwealth of Pennsylvania, derogates from the rights of her citizens? The rights of her citizens, (except as members of the Union,) we mean their rights derived from her own municipal regulations, cannot be noticed by us. If the defendant had desired to place himself in a proper attitude to raise the objection, he should have exhibited proof in the record that the grant of this charter, a» made, derogated from the rights of individuals as established by the laws of that commonwealth. The laws securing those rights, alleged to have been trenched upon by this charter, should have been proven as other facts; until that was done, the question obviously could not arise.

But in any aspect which can be given to the case, can this act of the governor be classed among the cases of special authorities, and subjected to all the limitations and restrictions which judicial determinations have put upon the execution of such power? It. is on his part neither the exercise of a judicial or ministerial authority, but the fulfilment of a high, executive trust and confidence; and it would certainly be demanded by that comity which is due from one sovereign state to another, that we should presume, until the contrary is proven, that the public acts of the chief magistrate of such state, purporting to be in execution of the laws, were legitimate acts, and within the scope of his powers as such officer, until the contrary is established by the proof of the laws themselves, by which it should be made to appear that he had overstepped the boundaries prescribed to him.

But it is contended by the defendant, that notwithstanding the court might have been right in the general direction which, they gave, yet that, as it appears from the evidence in the bill of exceptions that the corporation was dissolved, the court were still bound, although the verdict was for the plaintiff, to have entered judgment for the defendant. In answer to this It may be briefly said, if there were not other objections to such a course, that the defendant would be in no condition to have made such a requisition on the court, until it had been spread upon the pleadings in the cause, that the charter had expired, and such fact stood admitted by the pleadings. The bill of exceptions is no part of the pleadings, and it is alone on the pleadings and verdict that the court can be called upon to pronounce judgment.

The last question for our examination is the sufficiency of the demand and notice. The note was demanded at the Bank Of Gettysburg, the place at which it was payable, and on the day it was due. The demand is proven to have been made by one having possession of the note for demand, and at the place where payable, which will furnish presumptive evidence of his authority to demand and receive.

The note fell due on Saturday, and notice was sent and delivered on Monday. It is said it should have been put in the mad at an earlier day than Monday. But there is no evidence there was any mail either on Saturday or Sunday. It cannot be pretended that it was necessary to send an express, and that too on Sunday. The notice, under the circumstances of the ■case, was sufficient.

judgment affirmed.