Bank of Columbia v. Ross , 4 H. & McH. 456 ( 1799 )

Chase, Ch. J.

delivered the. following opinion*.

In detes mining the question, whether the execution in this case issued irregularly or without legal authority, it will be necessary to consider the act of assembly, entitled, »«An act to establish a bank in the District of ColusaMa,” passed at November session 1793, ch. 30.

It is a well established rule in expounding acts of the legislature, that the intention of the makers must prevail! which intention is to be collected from the words they have used.

It appears by the preamble, that n the opinion of the general assembly, the agricultural and commercial inte* rests of the state, would be promoted by establishing a Dank in the District of Columbia; and they have declared, that to support the said bank it was absolutely necessary the debts due to the bank should be punctually paid. To effect which they have authorised a summary, facile, and expeditious mode of recovery, without infringing the right to a trial by jury where the debtor controverts the claim made by the president of the bank.

The establishment of a hank in the District of Columbia, being in the opinion of the assembly an institution of public utility, the punctual payment of the debts due to it being necessary to support it, and the right to a trial by jury not being infringed, there is nothing* in the way to restrict the court from giving an exposition to the act corresponding with and effectuatng the intention of the makers of it.

The, great object of the clause under which the present proceeding is to be supported, is to secure a punctual payment of the debts due, to the bank, and for that purpose authorises a summary proceeding against the debtor, by way of execution, grounded on the order of the president of the bank.

There is no form prescribed in which the order Is to he clothed; but certain requisites are to be complied with to justify the president in making the order, end to warrant the clerk in issuing execution on it. The person proceeded against must be indebted for monies borrowed, or by bond, bill or note, given or endorsed; and he must have consented in writing that the same be made negotiable at the bank. On neglect to make payment at the time stipulated, the president is to cause a demand to bo made, in writing, on the delinquent; or if not to he found, to be left at his last place of abode; and if the money is not paid within ten days after demand made, or notice left, it shall and may he lawful for the- president to write to the clerk of the general court, and send to the clerk the bond, bill or note, due, with proof of the, demand made as aforesaid, and order the clerk to issue execution; and the clerk is required to issue such execution on which the debt and costs may be levied and shall he as valid and effectual in law, to all intents and purposes, as if issued on a judgment regularly obtained in the court to which the execution is returned. According to a proviso, execution is not to issue until the president makes oath ascertaining whether the whole or what part of the debt is dm* on the said note, which oath is to be filed by the clerk.

The obvious intention of the act is, that every thing due on the note should be paid with the costs incurred hy The default of the person against whom the execution is to issue.

The sum due is to be ascertained by the. oath of the president, which oath is to be filed by the clerk. The execution issues in consequence of, and pursuant to the order of the president, which is the foundation, and the execution must conform to it, being the authority on which the clerk is warranted in issuing an execution, without a judgment, in the ordinary course of proceeding, being obtained. If the debtor disputes the claim made by the president, a trial may be had, and a jury will ascertain 'what is due.

When a note is endorsed and not paid, the holder of the note, after the demand made of the drawer, and notice to the endorser of nonpayment, may institute suits against each; the debt being several and not joint, and several executions must issue, and although only one satisfaction can be obtained, he is entitled to the costs in ail the suits.

It appears in this case how they are indebted--by note, one as a drawer, and the others as endorsers, and the same note and proof supports the claim against each, ^(a)

The coust overruled the motion to quash the execution.

Thai part of the act of November session, 1793, ch. 30, ffipon which the proceedings in this case were had, is as follows:

Section 14. «Whereas, it is absolutely necessary that ¿lie debts due to the said bank should be punctually paid, to enable the directors to calculate with certainty and precision on meeting the demands that may be made upon them, Be it enacted, That whenever any person or persons are indebted to the said hank for monies borrowed by them, or for bonds, bills or notes, given or endorsed by them, with an express consent in writing that they may be made negotiable at the said bank, and .shall refuse or neglect to make payment at the time the same become due, the president shall cause a demand [of pay» merit to be made] in writing, on the person of the said delinquent or delinquents, having consented as aforesaid, ©r if not to be found, have the same left at his last place of abode; avid if the money so due shall not be ¡¡aid within ten days after such demand made, or notice left at his last place of abode as aforesaid, it shall and may be lawful for the president, at his election, to write to the clerk of tiie general court, or of the county in which the said delinquent or delinquents may reside, or did at the time lie or they contracted the debt reside, and send to the said clerk the bond, bill or note due, with proof of the demand made as aforesaid, and order the said clerk to issue capias ad satisfaciendum, fieri facLs, or attachment by way of execution, on which the debt and costs may be levied, by selling the property of the defendant for the sum or sums of money mentioned in the .said bond, bill or note; and the clerk of the general court, and the clerks of the several county courts, are hereby respectively required to issue such execution or executions, which shall be made returnable to the court, whose clerk shall issue the same, which shall first set after the issuing thereof, and shall be as valid and as effectual in law, to all intents and purposes, as if the same had issued on judgment regular-' ]y obtained in the ordinary course of proceeding in the said court, and such execution or executions shall not he liable to be stayed or delayed by any supersedeas, writ of error, appeal, or injunction from the chancellor; provided always, that before any execution shall issue as aforesaid, the president of the bank shall make an oath, (or affirmation, if he shall be of such religious society as allowed by this state to make affirmation,) ascertaining whether” the whole, or what part of the debt due to the bank on the said bond, bill or note, is due; which oath or affirmation shall be filed in the office of the clerk of the court from which the execution shall issue* and if the. defendant shall dispute the whole, or any part of the said debt, on the return of the execution, the court before whom it is re» turned shall and may order an issue to be joined, and trial to be had the same court at which the return is made» and shall make such other proceedings that justice maybe done in the speediest manner,”

(a) The Reporters regret, that they could not procure the opinion of the court upon the other questions decided in* this case.