People ex. rel. Duffield v. Whittemore , 4 Mich. 27 ( 1852 )

Wing, P. J.

It is clear from the papers that-the Bank had refused to redeem according to law. But the counsel for the respondent rest their opposition to the application on the ground that there has been no refusal by the State Treasurer to give the public notice required by law. Now it appears that one of the affidavits had been in the Treasurer’s hands about a week, and the other two or three days. He then writes to the relators’ Attorney a letter, which seems drawn with care, stating that he shall postpone action for a week more, in order to enable the Bank to file counter affidavits. This is the main reason for delay. Delay for such a purpose was, in effect,- a refusal. The Treasurer had no right to receive such affidavits; delay for such a purpose was delay for the purpose of going out of the line of his duty; and the relators had a right to regard it as a refusal. I'think the application of the relators should be granted.

Pratt, J.

The meaning and object of the law is clear. The State Treasurer is merely an agent under the law. His function is to carry it out. If he has made a mistake, this is the tribunal, and an application for a mandamus the mode for the correction of the mistake. The affidavit on which the Treasurer is called to act, should certainly clearly show that there has been a refusal to redeem by the Bank. Yet it is no objection that the affidavit shows the facts which constitute such a refusal. The sole question for the Treasurer to decide was, whether the affidavit showed a regular presentation of the bills to the Bank, and a refusal to redeem. If it did, his duty was to give the notice required by law. Now I look on the affidavits as clearly showing a refusal to redeem on the part of the Bank. A Bank may be generally entitled to banking hours, but it does not follow that it is entitled in all cases to stop redemptions at once when banking hours expire. Exceptions may be put; it is the duty of a Bank to redeem its notes promptly and in good faith. The Treasurer was bound to act on the affidavit promptly. If it showed affirmative facts of delay or evasion in. redeeming, that was sufficient tor him to act on, and he was bound to act. He should, indeed, have reasonable time tp examine the affidavits. Anri if his delay stood on that ground, I might hesitate. But he had no right or power to give the Bank a hearing. And when the reason of. delay is an illegal one, the delay amounts to a refusal. On the merits of this motion I have no difficulty. The motion should be granted.