Hall v. Bank of Virginia , 1878 W. Va. LEXIS 81 ( 1878 )

GreeN, PRESIDENT,

delivered the opinion of the Court :

Before considering this case on its merits the preliminary question, whether this appeal should be dismissed, must first be disposed of. If the title to the assets of the Bank of Virginia in litigation has been validly passed to Win. B. Isaacs & Co., then, as the assignees of the bank pendite lite, they would have a right to prosecute this appeal in the name of the bank. It is admitted that this would be the case, if the corporate rights of the Bank of Virginia had not ceased; but it is insisted that at common law upon the dissolution of a corporation in any manner all suits pending for or against it abate, and that they can be continued only by virtue of, and in the manner prescribed by the 54th section of chapter 53, page 403 of our Code; and it is claimed that by this statute this can only be done under the order and direction of the board of directors in office at the dissolution of the corporation, or that of the receiver appointed by the circuit court"

It is ti;ue, that the property and assets of a dissolved corporation are put under such direction and order ; but this section further provides, that suits may be brought, continued or defended in the corporate name,' in like manner and with like effect as before the dissolution of the corporation. If then the assignee of the corporation pendite lite could without an order of the board of directors, or without their consent, defend a suit already brought before the dissolution of a corporation, under the express terms of this statute they may in like manner do so in the corporate name after the dissolution of the corporation.

Are Wm. B. Isaacs & Co. the assignees of the assets of the Bank of Virginia in litigation in this suit? Was the assignment made by David J. Saunders and S. C. Tardy, truste’es and receivers, to Wm. B. Isaacs & Co. on July 7, 1871, of all the effects of the Bank of Virginia, at Charleston, and of the effects of the bank at Charleston held by the branch of said bank at Charleston or held for said branch, valid and legally effective ?

The terms of this assignment are sufficiently comprehensive to convey the assets in litigation in this suit; tor if the attachment in this suit is invalid, they were assets held for the said branch of said bank at Charleston. This assignment was made in strict conformity to a decree of the Circuit Court of the United States for the eastern district of Virginia in the suit of Samuel Ó. Mcll-waine®. Saunders and Tardy, trustees of the Bank of Virginia, entered March 17,1871, and was approved and confirmed by said court by its decree in said cause made November 23,1871. ’ As the assets ofthe Bank of Virginia, which were disposed of by the circuit court for the benefit of the plaintiffs Hall and Smith, were personal assets only and under the decree of that court of April 15, 1869, appealed from, any claim or lien, which they had upon the real estate of the Bank of Virginia orbits proceeds, is released and destroyed, the only question we -need investigate is, whether ¥m, B. Isaacs & Co. had a valid claim to the personal property, that is, the choses in action of the Bank of Virginia at its Charleston branch.

On the question 'as to the effect of assignments of personal property or choses in action in one State or country not by the owner, but by operation of law, or by a decree of a court in another State or country, there has been much conflict of opinion. Thus in England it is now settled, that an assignment under the bankrupt law of a foreign country passes all debts due the bankrupt from persons residing in England, and that after such assignment by operation of the law of a foreign country no creditor of the bankrupt could attach such English debts. The laws of Holland and France coincide with the English decisions on this point. See Story’s Conflict of Laws, §§409, 417, pp. 682, 638. These positions are also sustained by considerable weight of American authority and by eminent American jurists, as by Chief Justice Parsons in Goodwin v. Jones, 3 Mass. 517, and Chancellor Kent in Holmes v. Remson, 4 John Ch 460. But the weight of American authorities is, that the voluntary assignment of a party according to the law of his domicile will pass his personal estate or choses in action Avhatever be its locality, but an involuntary assignment operating by the mere authority of law does not operate like a voluntary assignment, but it operates only to the extent of placing the assignee in the same situation as the bankrupt himself in regard to foreign debts, and they take them subject to equities belonging to foreign creditors and subject to the remedies provided by the laws of foreign countries, where the debt is due. See Story’s Conflict of Laws §412, p 685.

If we were to admit the correctness of these American cases it would not affect the rights of "Wm. B. Isaacs & Co. to the personal assets of the Bank of Virginia at its Charleston branch. The assignment to them, whether we regard it as a voluntary assignment of tbe trustees, Saunders and Tardy, oras an involuntary assignment by mere authority of law, ineitherca.se by all the authorities would transfer such personal assets though located in a different State? subject of course to any valid attachment which existed at the time of such voluntary or involuntary assignment. If it were regarded as an involuntary assignment by mere authority of law, it might perhaps by the American authorities give a right to the creditors of the Bank of "Virginia, after the date of such assignment, by proper legal proceeding to acquire a lien on such assets in this State, which lien might be regarded as valid against such involuntary assignment. But no such case is presented by this record. It is not contended by the appellants’ counsel that this assignment, whether regarded as voluntary or involuntary, has any effect as against the appel-lees’, Hall and Smith’s, attachment, but only that if this be void, then their claim is valid. As against the Bank of Virginia, the assignment to them, though it were regarded as involuntary and by mere operation of law, would be valid; and that this is all that is necessary to entitle them to prosecute this appeal. All they ask is, to be put by this assignment in the situation of the bank itself, subject to every equity belonging to the creditors of the Bank of Virginia in West Virginia. This right at least, all the authorities admit, this assignment though involuntary would confer on them; and it is all that is necessary to give them a right to prosecute this appeal.

But in truth the assignment, under which they claim, is voluntary. The deed of all' its assets, made by the Bank of Virginia to D. J. Saunders and S. C. Tardy, as trustees, on February 8, 1867, recites as a reason for its being made, that a creditor of the bank had brought a suit, and the judgment in this suit would give this creditor priority over other creditors, to prevent which the deed was made. It is true it also recites, that it was made pursuant to the act of the Commonwealth of Vir-ginipassed the 12th day of February, 1866, entitled “an act requiring the Banks of the Commonwealth to go liquidation.” But the act itself had no provision in it compelling the Bank of Virginia to make such a deed; and it could have executed such a deed, had no such act passed. It could not then have the e'ffect of making this deed involuntary.

Judge Joynes, speaking of this act in the case of Robinson v. Gardiner, 18 Gratt. 513, says: “The events of the late war reduced all the banks of circulation in the State to a condition of utter and hopeless insolvency. They suspended business from necessity, and there was no possibility of resumption. It only remained to wind them up, and to distribute among their creditors such remnants of their assets as might be realized. In this condition of things and to accomplish this object effectually, the act of February 12, 1866, was passed. It proceeded upon the assumption, that the banks were already in the course of liquidation, forced upon them by the calamities of the war; and its purpose was to provide regulations by which, as recited in the preamble, a speedy settlement of the affairs of said banks should be made, in order to a legal and proper distribution of their assets among all persons entitled to share in such distribution.”

Upon this question, whether a deed made under this act was voluntary or not, Judge Edmiston, in delivering the opinion of the court in Harrison’s ex’r v. Farmers’ Bank of Virginia, 9 W. Va., says : “ It is said that these assets were in another State, and were under the control of a court to charge them, or so much as ivas necessary to pay debts set up in the suit. This is all true; but can it be claimed that a deed cannot operate for any such reason? I think not. But it is further said, that this was not a voluntary conveyance, and for that reason it cannot operate outside the limits of the State in which it was made. I do not see how it can be called an involuntary conveyance. The directors of the bank had a right, at any time the exigencies oí the corporation required, to make a conveyance in trust to secure its creditors, independent oí the act of the Legislature, under which this deed purports to have been made. The act of the Legislature did not and could not compel the bank to convey; it only had the effect to express the views oí the General Assembly of Virginia, that it ought to be done, and to yield the State’s consent to that effect, so far as she had her interest in said bank. No proceedings were ordered to be had against the bank, if it failed, nor anything that looked like compelling, or seeking to compel the execution of such a deed. It therefore has to my mind every characteristic of a free and voluntary act on the part of the directors of said bank.”

The same views were held in the case of The Bank of the Valley v. Gettinger, 3 W. Va. 309.

As Spilman in his answer claims to be acting under this voluntary deed, his right to prosecute this appeal can not be controverted. These trustees were appointed by the decree of the United States District Court in the case of McIlvaine v. Thorn, to dispose of the assets conveyed to them by this deed, that the sum might be applied by the court as directed by this deed. They had the same power under this deed to dispose of these assets in like manner. Their disposition and assignment of it under this decree can not, it seems, to me, be regarded as an assignment by mere authority of law, but must have the same effect as a voluntary assignment. But whether regarded as voluntary or involuntary, so far as the prosecution of this appeal is concerned, is immaterial, as we have before shown.

The rule against the attorneys in this case must therefore be discharged.

It is in argument assigned as an error, that as the plaintiffs did not execute the bond required by the 8th section of chapter 151, page 647 of Code of 1860, the direction to the sheriff to attach the estate of the defendant was unauthorized, and the levy of the same was illegal and void; and such levy was also void, because the sheriff did not retain possession of the property.

This was an attachment in equity under the 11th section of chapter 151 oí Code of 1860, page 648; and the requirements of that section were strictty pursued, and the attachment therefore legally sued out. It was served in strict accordance with the 7th section of said act, page 647. Possession of the property was not taken by the sheriff; but his levy on it was simply by notifying those who held it by leaving a copy of the attachment with them as required by this 7th section. He would have committed a wrong, had he taken possession of the property, as no bond was given. Such possession could only be taken by him, when a bond was given, as provided in the 8th section, page 6.47.

It is alleged as another error, that the bill is defective in not stating the amount of the plaintiffs’ claim. This did not affect the validity of the attachment, as the amount of the plaintiffs’ demand was stated in the affidavit filed, when the attachment was sued out, and also in the amended bill. Even if the amount had not been stated in the affidavit, or even if no affidavit had been filed when the attachment issued, under the laws and practice, which prevailed in Virginia, this would not have rendered the attachment void. See Moore et al. v. Holt, 10 Gratt. 287. The amount of the plaintiffs’ demand is in effect set forth in the original bill in this case, as the claim is stated to be for bank notes issued by the Bank of Virginia, and which notes are made expressly by the bill a part thereof. They are not copied into the record as it has been brought up by appellants, simply, I suppose, because of the large space it would take and of the useless trouble it would have required to copy bank notes amounting to $36,500.00. The amount, which these notes filed with the bill aggregated, was stated in the affidavit filed when the suit was instituted. It was never controverted in the circuit court by any of the parties, and not denied or questioned by the appellants in tbeir answer; and they have failed to have them copied into the record, though they constituted a part of it. Under these circumstances we are justified in assuming that the circuit court, who had the means of so doing, ascertained correctly the amount of these notes.

It is also objected by the appellants’ counsel that the description of the lot of the Bank of Virginia attached is insufficient to identify it. There is nothing in this objection. The return on the attachment is, “levied on the lot of said Bank of Virginia and vault thereon in Charleston, West Virginia, and in the endorsement on the process described.” This endorsement describes it as “the lot and vault thereon in the town of Charleston in the bill mentioned; ” and it is minutely described in the bill; and the Bank of Viiginia expressly consented to the portion of the decree directing the sale of this lot. The description of the real estate levied on by an attachment need not be as particular as in the levy of an execution on land. See Drake on Attachments §237. Any words, which clearly designate and comprehend the property, are sufficient. Thus it has been held that a return of an attachment of all the defendant’s interest “in a certain parcel of land on Pleasant street in Boston” will suffice, if he was interested in but one parcel of land on that street. Whitaker v. Sumner, 9 Pick. 308. So a return that the officer “had attached the homestead farm of the defendants containing thirty acres more or less,” though the farm in fact contained one hundred and fifty acres. See Bacon v. Leonard, 4 Pick. 277. So the return of an attachment of the defendants’s interest in the farm he lives on is sufficient. Howard v. Daniels, 2 N. H. 137. There can be no question that the return in the present case was sufficiently definite.

Again it is objected b}r the appellants’ counsel, that the case ivas prematurely set for hearing. The cause was not heard till more than ten months after the summons had been served on all the home defendants and order of publication duly made and executed on all the non-resident defendants; and when heard, it was heard on the answer of the appellants, which had been filed more than six months before, and at once replied to generally. When heard, the appellants appeared and consented to a portion of the decree then entered. Under such circumstances such objection .can not avail. Judge Samuels in delivering the opinion of the court in Poling v. Johnson, 2 Rob. 258, says in speaking of an irregularity at rules in prematurely settling a cause for hearing: “Had the record distinctly 'shown that the defendants appeared at the hearing in person or by counsel, the court might properly imply, that as no objection appears in the record to have been taken to said irregularity at rules, the objection thereto was waived and the cause heard by consent, though such consent was not expressly stated on. the record.”

It is also urged, that it was irregular to sell the land before bond was given or the personal property levied on had been disposed of by the court. It is a sufficient answer to this objection, that the appellant, the owner of the land, expressly consented to this sale, when the order of sale was made.

It is urged too, that as several creditors can not join in the same attachment, but must each file a separate bill, the bill and proceedings were fatally defective, because the suit was instituted by two creditors, Hall and Smith. The plaintiffs in their bill alleged that the president, directors and company of the Bank of Virginia was indebted to them for divers promissory notes, &c. This is an allegation, that the defendants owned jointly these notes, and that the appellants owed them jointly; and of course the suit could only be properly brought by them jointly.

The demurrer filed by James W. Hoge, administrator, &c., was not acted upon; but as it could not have been sustained, the appellants are not injured by this omission.

Again it is objected, that the petition of the State of West Virginia states, that these notes were acquired by unlawful communication with the public enemy, and was not denied and must therefore be held to be true. The State of West Virginia was not a defendant to this suit; and its petition to be made such ought to have been rejected. The only interest claimed by it in the controversy was, that it was a stockholder in the Bank of Virginia. If it had a right to be made a defendant, every other stockholder could have claimed the same right. There was then no necessity or propriety in permitting this petition to be filed ; and it ivas properly not replied to. The facts alleged in it were not proven and can not be regarded as true. But it is said that the same allegations were made in the petition of J. H. & W. F. Goshorn, who had a right to be defendants in this cause, and they asked that their petition might be regarded as an answer and cross-bill; and these facts alleged being fatal to the plaintiffs’ claim, and not being denied, ought to be taken to be true, or that these defendants should have been allowed time to prove them. To this it is a sufficient answer to state, that J. H. & W. F. Goshorn expressly, by their counsel, assent to the entering of the two decrees which have been appealed from.

It is urged by the appellees’ counsel, that a joint judgment or decree cannot be reversed as to some of the parties and affirmed as to others. See Jones v. Raine, 4 Rand, 386; Vandiver v. Roberts, 4 W. Va. 493; Owings v. Kincannon. 7 Pet, 402. It is .urged that these decisions are based on a judgment or decree being an entirety, and that the appellants having appealed in this case from two decrees in the case of Hall and Smith v. Thorn et al., and it appearing to the court that these decrees complained of were rendered in this case and a number of others, in which other parties were plaintiffs who are not before this court, we cannot reverse these decrees as to these plaintiffs not before the court, and therefore cannot reverse them as to Hall and Smith, but must without regard to the merits affirm these decrees as to all parties ; and that this being the case through the failure of the appellants to appeal in all the causes in which these decrees were^ rendered, the court should dismiss their appeal as improperly taken. To this the appellants7 counsel replies, that if the cases are not so connected as to render it necessary that an appeal should be taken in all, there is no error in this respect; and if they are so connected, then an appeal in one brings up all the others. See Anderson, v. De Soer, 6 Gratt. 363; Walker’s ex’r. v. Page, 21 Gratt. 636; Hill v. Proctor, 10 W. Va. 73-75.

It seems to me, that there is no such connection between Syllabus 3. this cause and the others with which it was heard, as renders it improper to take an appeal in this case alone. This was not a case in which the various plaintiffs had a joint interest, and in which therefore a decree or judgment could not be affirmed as to one and reversed as to another, as were all the cases referred to by the ap-pellee’s counsel; nor is it a case where the interests of the plaintiffs or other parties are so intermingled that one case can not be justly reviewed without at the same time reviewing the others, as were all the cases referred to by the appellants7 counsel. But on the contrary, while the cases were heard together simply because the same funds were to 'some extent attached in them, yet there appears on the very face of the decrees appealed from, that there was no sort of conflict or dispute between the plaintiffs in the various suits, while their interests were separate, thus distinguishing this from the cases referred to by the appellees7 counsel. There were at the same time neither conflict among them nor such a commingling of interests as to make it necessary to review all of them in order to do justice in reviewing one, as was the case in the different cases referred to by the appellants7 counsel. So entirely independent of each other are the interests of the plaintiffs in these cases, and at the same time so entirely free were they from all conflict of interest, that both of the decrees complained of were assented to by the counsel of the plaintiffs in all these causes. It was therefore perfectly competent and proper for the appellants to appeal from these decrees in one of these causes only; and this they have done. Appealing, as they properly did, in one of these causes only we do not think they committed an error in their undertaking to describe the appeals as rendered in one of the causes. These decrees might have been more accurately described in the undertaking, and at the same time the undertaking might have shown it was intended to appeal but in the one cause. But as it is, there can be no difficulty in identifying the decrees from which appeals were taken, and the iorm of the undertaking at the same time shows that an appeal was taken only in the case of Hall and Smith against the appellants and others. This was further shown by the fact that notice of such ajipeal was given to no one but Hall and Smith. The plaintiffs in all the other suits named in the decrees appealed from have had no notice of such appeals to this day; the appellants have not asked to have them summoned by an order of this court; anti had they done so, this court could not have made such an order; and yet the appellants on the writs of certiorari, which they have obtained, have brought up the full records in all these causes which were heard together in the decrees appealed from. We could not as a matter of course consider these causes or reverse these decrees as to any of these plaintiffs other than Smith and Hall; and these various records are not regarded as forming any part of the record in the case before us, or as necessary to the full understanding of the merits of the case before us, so far as it is proper for us to consider and act upon it on this appeal. ■

It is also urged by appellants’ counsel, that one of the decrees appealed from was rendered by James W. Hoge as the circuit judge, and that he was a party to the suit and filed an answer as administrator of John G. Wright in the cause; and that the judge, who decided the cause, being interested in the cause, this alone was a sufficient reason for setting it aside, see Mc Veigh v. United States, 11 Wall. 267. The record shows that James W. Hoge was not the judge who rendered the decree of the 18th day of October, 1866,-which settled the principles of this cause and is one of the decrees appealed from. The other decree appealed from of date April 15,1869, simply executes and carries into effect the former decree settling the principles of the cause. Neither decree in any manner promotes the interest of James W. Hoge as administrator of John G. Wright or individually, but on the contrary they seem to be adverse to his interest. The record presented to this court by the appellants fails to show what judge entered this last decree. But even had it been shown by the record that it was entered by Judge James W. Hoge, in the absence of all evidence and of any objection in the court below we could not presume that the judge was the same person as the administrator of John G. Wright, who was a party to the suit, merely because they bore the same name. Such a presumption might be proper in many cases; but it would not be proper, when it is made to charge a judge with impropriety of conduct and to set aside a decree of a court.

W. S. Coleman v. James T. Waters, et al., 13 W. Va. 278, was a case, where a judgment was confessed in New Jersey by an attorney, John C. Ten Eyck, before a commissioner named John C. Ten Eyck; and this judgment was sought to be enforced here; and it was assailed, because the attorney, who confessed the judgment against the defendant, was the same person as the commissioner who entered up the judgment. There was no other evidence to show that the attorney and commissioner were the same person, except their identity of names. This Court affirmed a decree enforcing this judgment as valid and binding. In delivering the opinion of the Court Judge Haymond says: “But it is maintained by appellants, that the judgment is null, because the person, to whom the warrant of attorney is directed, and the Supreme Court commissioner, before whom the confession of judgment was had, are one and the same person, and that the attorney could not confess judgment to as commissioner. However this may be in law, there is no evidence appearing by the record that the commissioner and the attorney, to whom the warrant of attorney is directed, are one and the same person, and I do not feel authorized, in the absence of proof, to presume that the'attorney and commissioner were or are one and the same person, from the fact that they were or are of the same name, in order to set aside what purports to be a solemn judgment of a court of competent jurisdiction of a sister State. In the absence of proof to the contrary, if any presumption can or should be drawn, it must be in favor of the judgment, and that the attorney and commissioner were not and are not one and the same person.’’ There is therefore nothing in this alleged error.

We have disposed of all the questions which have been raised with reference to the regularity of the proceedings in this cause. It remains to dispose of two questions which affect the merits of the cause. The first of these questions is: Did the circuit court have any jurisdiction of this cause? This depends entirely on the question, whether the Bank of Virginia was, when the attachment issued in this cause on November the 30th, 1864, a non-resident of the State of West Virginia. The counsel for the appellees insist that this question can not be considered by this court, as the Bank of Virginia could not raise such question except by a plea in abatement under the 19th section of chapter 171, page 711, of Code of Virginia of 1860. And they rely on the case of the Bank of the Valley v. Gettinger, 3 W. Va. 314, as sustaining this view.

That case differs from this in one important particular; there, when the .appeal was taken, the Bank of the Valley having appeared, there had been a judgment rendered against it, but the court had rendered no judgment disposing of the attached effects; in the cause before us a decree bas been, rendered disposing of tbe attached effects. This court held in that case, the bank having appeared and there having been rendered against it nothing but a personal judgment, that the questions of jurisdiction in the cause could not be raised in this court, there having been no plea to the jurisdiction of the court filed, and the declaration showing on its face proper matter for the jurisdiction of the court. But they considered and decided the question because, they said, that as the assignee of the bank had filed a petition setting up the assignment of all the property attached, before the court could dispose of the property, the validity of this assignment would have to be decided, and if valid, the court could not dispose of the property under the attachment, though the personal judgment must stand. The court then, after the Bank of Virginia in this cause had filed an answer, had jurisdiction to render a personal decree against it; but if the Bank of Virginia was not a non-resident of this State, the court erred on the merits of this cause in adjudging as it did by the decree of October 18, 1866, appealed from, that said bank was a non-resident corporation, and that the attachment of the complainants was valid and binding, and ordering a sale of the attached effects; and in its subsequent decree also appealed from, ordering the payment of the complainants’ debt out of the proceeds of the sale of their attached effects.

We must therefore enquire, whether the complainant’s attachment was valid, and whether the Bank of Virginia was a non-resident of this State on November 30, 1864, when the attachment was issued.

The question, what is the residence of a corporation ? has been very often discussed in the Supreme Court of the United States. The Constitution of the United States provides “that the judicial power of the United States shall extend to controversies between citizens of different States.” Under this provision oí the Constitution it was at first seriously questioned, whether a corporation could in any case either sue or be sued in the courts of tbe United Stales. It was contended that the word citizen had a well-known-signification and meant a natural person, either native or naturalized. And that as a corporation could not be a citizen of a State, it could not either sue or be sued in the courts of the United States. It was also contended, that as by this provision of the Constitution residence in different States was required, as a corporation is a mere creation of the mind invisible and intangible, it can have no residence and cannot therefore sue or be sued in the United States courts, Avhose jurisdiction depends on the residence of the parties. These views were entertained by Justice Daniel and are stated at large in his dissenting'opinion in the case oi Rundal et al v. Delaware and Raritan Canal Co., 14 How. 95. These positions were answered by saying, that where a corporation was sued, the controversy as distinguished from the suit was between the plaintiff and the individual members of the corporation, and if the plaintiff was a citizen of one State and all the individual members of the corporation of the United States were citizens of another State, the United States courts would under the Constitution have jurisdiction of the cause, though the defendant, itself a corporation, could not be a citizen or have a residence. These were the views of the Supreme Court as laid down in the Bank of the United States v. Deveaux et al., decidein 1809. See 5 Cranch 61.

It had been previously decided by the Supreme Court in Strawbridge et al. v. Curtis et al., that if there be two or more joint plaintiffs and two or more joint defendants, each of the plaintiffs must by virtue of their residence be capable of suing each of the defendants by virtue of their residence. See Strawbridge et al. v. Curtis et al., 3 Cranch 267. But the principles laid down in these cases were not followed in the case of The Bank of the U. S. v. Planters’ Bank, decided in 1824, see 9 Wheat. 904, where it was held in a suit by one corporation against another, that the fact that some of the stockholder’s in the plaintiff corporation were citizens of the *-ame State with some of the stockholders of the defendant corporation, would not prevent the courts of the United States from having jurisdiction. But subsequently the court laid down again, and followed out in its decision, the doctrines laid down in these two cases in Cranch’s Reports ; and in the Commercial Bank of Vicksburg v. Slocomb et al., decided in 1840, 14 Pet. 60, held that an artificial person being a corporation aggregate is not as such a citizen of the United States, but the court will look beyond the mere corporate character to the individuals of which it is composed, and if they were citizens of a different State from the party sued,-they are competent to sue in the United,States courts; but all the corporators must be citizens of different States from the party sued. And the same they held applicable when a corporation was a defendant.

It is obvious that under such a decision as this but few of the great corporations of this day could either sue or be sued in the courts of the United States. But this decision was maintained as law but a brief time; for in the case of Louisville Railroad Company v. Letson, 2 How. 555, decided in 1844, the court say: “After mature deliberation we feel free to say that the cases of Strawbridge and Curtis and the Bank and, Deveaux, were carried too far; and that consequences and inferences have been argumentively drawn from the reasoning employed in the latter, which ought not to be followed. Indeed it is difficult not to feel that the case of The Bank of the United States and the Planters’ Bank of Georgia is founded upon principles irreconcilable with some of those on which the cases already adverted to were founded. The case of the Commercial Bank of Vicksburg and Slocomb was most reluctantly decided upon the mere authority of those cases. We do not think that either of them is maintainable upon the true principles of interpretation of the Constitution and laws of the United States. A corporation created by a State to perform its functions under tbe authority oí that State and only suable there, though it may have its menbers out ot the State, seems, to us to be person, though an artificial one, inhabiting and belonging to that State, and therefore entitled, for the purposes of suing and being sued, to be deemed a citizen of that State.”

In these views the whole court concurred and the case of the Bank v. Deveaux, 5 Cranch 84, was overruled. The decision of the court was that a corporation was a resident of the State by v'hich it was incorporated, no matter where its stockholders resided. And it was accordingly held in the case of Marshall v. Baltimore and Ohio Railroad Company, 16 How. 314, that a citizen of "Virginia may sue the Baltimore and Ohio Itailroad Company in the Circuit Court of the United States for Maryland; and an averment, that the defendants are a body corporate created by the Legislature of Maryland, is sufficient to give the court jurisdiction. But Justices Campbell and Catson dissented, holding that this averment was insufficient to give the court jurisdiction. The view's of the majority of the court in this ease were re-affirmed in the case of the Covington Drawbridge Co. v. Shepard et al, 20 How. 227. Justices Campbell and Daniel dissenting; and the same decision wras rendered in the Philadelphia, Wilmington and Baltimore Railroad Company v. Quigley, 21 How. 202.

The positon first taken by the court, that the residence of a corporation depended upon the residence of its stockholders, gave rise to the difficulty of determining where its residence was, when the stockholders resided in different States. This difficulty was, as we have seen, finally solved by holding that the residence of a corporation was the State by which it was incorporated, without any reference to the residence of its stockholders. This being determined, the next difficulty was to determine where was the residence of a corporation, when a charter of incorporation had been granted to it by more tlia.n one State. It had been said by the court in the Bank of Augusta v. Earle, 13 Pet. 588, that a corporation “must dwell in the place of its creation and cannot migrate to another sovereignty.” And in Runyan v. Lessee of Coster, 14 Pet. 129, it was said: “A corporation can have no legal existence out of the sovereignty by which it was created.”

In the case of The Ohio and Mississippi Railroad Company v. Wheeler, 1 Black 286, the suit was brought by the corporation in the Circuit Court of the United States for the District of Indiana to l’ecover of the defendant, a citizen of Indiana, a subscription to the stock of the company. The declaration stated, that the plaintiff was a corporation created by the laws of the States of Indiana and Ohio having its principal place of business in Cincinnati; that the plain tiff is a citizen of the State of Ohio and the defendant is a citizen of the State of Indiana.” The defendant pleaded to the jurisdiction, that he was a citizen of the State of Indiana, and the plaintiffs were a body politic and corporate created, organized and existing in the same State under- and by virtiire of an act of Assembly of the State. The plaintiffs demurred to this plea. The court decided that the United States Court could have no jurisdiction in such a case. They based their opinion on the ground that a suit in the corporate name is in contemplation of law a suit by the individuals who compose it, who are conclusively presumed to be citizens of the State which granted the charter of corporation, and therefore, by this declaration the plaintiffs are alleged to be citizens of Ohio and Indiana, and citizens of these States could not join in an action against h citizen of one of them in a United States Court.

Chief Justice Taney, in delivering the opinion of the court further says: “The averments in the declaration would seem to imply that the plaintiffs claim to have been created a corporate body, and to have been endowed with the capacities and facilities it possesses by the co-op' erating legislation of the two States, and to be one and the same legal being in both States. If this was the case, it would not affect the question of jurisdiction in this suit.” He then proceeds to show, that on the authority of the Bank of Augusta v. Earle 13 Pet. 588, this could not be so. And he goes on to say that a corporation, which has obtained a charter from two States conferring on it the same capacities and powers, is really one body in one State and a separate and distinct corporate body in the other, and they could not join in a suit as one and the same plaintiff, or maintain a suit in the United States courts against a citizen of the United States.

This court subsequently, while it approved this decision overruled these views in the case of the Railroad Company v. Harris, 12 Wall. 82, say: “We see no reason why several States cannot by competent legislation unite in creating the same corporation, or in combining several pre-existing corporations into a single one.

The Philadelphia, Wilmington and Baltimore Railroad Company is one of the latter description ; and its valid existence as such is assumed by Chief Justice Taney in the suit of that Company v. Maryland, 10 How. 392. The jurisdictional effect of such a corporation, as regards the Federal Courts, is the same as that of a co-partnership of individual citizens residing in different States. Nor do we see any reason why one State may not make a corporation of another State, as then organized and conducted, a corporation of its own quoad hoe any property within its territorial jurisdiction. That this may be done was distinctly held in The Ohio and Mississippi Railroad Co v. Wheeler, 1 Black. 297. It is well settled that a corporation of one State may exercise its faculities in another, under such terms and to such extent as may be permitted by the latter. See Blackstone Manufacturing Co. v. The Inhabitants, &c. 13 Gray 489; Bank of Augusta v. Earle, 13 Pet. 588.

We hold the case before us is within this latter category. The question is always one of legislative intent and not legislative power or legal possibility. So far as there is anything in the language of the court in the case of The Ohio & Mississippi Railroad Co. v. Wheeler in conflict with what has been here said, it is intended to be restrained and qualified by this opinion. We will add however, as the case appears in the reports, we think the judgment of the court was correctly given. It was the case of an Indiana railroad company licensed by Ohio suing a citizen of Indiana in the Federal court of that State.

In The Baltimore and Ohio Railroad Co. v. Gallahue’s adm’r., 12 Gratt. 658, it was held by the Court of Appeals of Virginia that the company was suable in that State. In this we concur. We think this condition is clearly implied in the license, and that the company by constructing its road there assented to it. The authority of that case was recognized by the Court of Appeals of West Virginia in Goshorn v. The Supervisors, 1 W. Va. 308, and in The Balt. & Ohio Railroad Co. v. The Supervisors et al., 3 W. Va. 319. Here the question is whether that company is suable in the District of Columbia.

The court discuss this question and decide that it is suable in the District of'Columbia. The suit, was for an injury done the plaintiff at Mannington, Virginia. The company pleaded in abatement that it was not an inhabitant of the District of Columbia when the writ was served, and secondly, that the company was not found in the District of Columbia when the writ was served. Harris, the plaintiff, replied to the first plea, that the company Avas an inhabitant of the District of Columbia by virtue of the act of Congress of date March 2, 1831, entitled “an act to authorize the extension, construction, and use of a lateral branch of the Baltimore & Ohio railroad into and within the District of Columbia; ” that they had accepted its provisions, and constructed their roads under the act, availing themselves of the provisions thus conferred and doing business under it in the District of Columbia. To the second plea Harris replied, “that the company was found within the Dis-' trict of Columbia when the writ was served by virtue of this act of Congress, and due and legal service’oí the process was made on the person of the president within the District.” The defendant demurred to these replications, and the demurrer was overruled. The Supreme Court affirmed this decision.

In the case of The Railroad Company v. Whitton’s adm’r, 13 Wall. 270, it was decided, that for the purpose of giving jurisdiction to the courts of the United States a corporation will be considered as a citizen of the State by which it was incorporated first, though it has been incorporated since in other States; but in suits instituted in the courts of such States it must be regarded as a citizen of the State in which the suit is brought and of no other State. The defendant in that case was the Chicago and Northwestern Railway Company, first chartered by the State of Wisconsin and afterwards by the States of Michigan and Illinois severally. Its principal office was at Chicago, Illinois. The plaintiff was a citizen of Illinois. It was held, that the United States Circuit Court of Wisconsin has jurisdiction of the case.

The court say : “The plain tiff is a citizen of the State of Illinois, and the defendant is a corporation created under the laws of Wisconsin. Although a corporation, being an artificial body created by legislative power, is not a citizen within several provisions of the constitution, yet it has been held, and that must now be regarded as settled law, that where rights oí action are to be enforced, it will be considered as a citizen of the State where it was created, within the clause extending the judicial power of the United States to controversies between citizens of different States. See Paul v. Virginia, 8 Wall. 177. The defendant therefore must be regarded for the purposes of this action as a citizen of Wisconsin. But it is said, and here the objection to the jurisdiction arises, that the defendant is also a corporation under the laws of Illinois, and is therefore also a citizen of the same State with the plaintiff. The answer to this position is obvious. In Wisconsin the laws of Illinois hav.e no operation. The defendant is a corporation and as such a citizen of Wisconsin by the laws of that State. It is not there a corporation or a citizen of any other State, being there sued it can only be brought into court as a citizen of that State, whatever its status or citizenship may be elsewhere. Nor is there anything against this view, but on the contrary much to support it, in the case of The Ohio and Mississippi Railway Co. v. Wheeler, 1 Black 286.”

The court then reviews this case, and in so doing cites those portions of the opinion, which, as I understand, were disapproved by the pourt in the Railroad Company v. Harris, above quoted. Chief Justice Taney in delivering the opinion of the court in that cáse expressly says, that the plaintiff, a corporation chartered in two States, must in the United States courts be regarded as a citizen of both States equally, and that such would be the proper view of their status, though they were to be regarded as but one corporation, and that they could not maintain a suit in the United States courts against a citizen of either State in which they were incorporated. The very reverse is held in this case, and yet they are said to be entirely reconcilable. The Supreme Court of Pennsylvania evidently regards these two decisions of the Supreme Court as irreconcilable for in the case of The County of Allegheny v. The Cleveland and Pittsburgh Railroad Co., 51 Pa. St. 228, they decided, that “ A suit by a corporation created by the concurrent legislation of two States isa suit, in which the citizens of each State are joined as plaintiffs.' If the defendant is a citizen of either of these States, the suit can not be maintained in the United States courts.”

This decision was based entirely upon the opinion of Chief Justice Taney in the case of The Ohio and Mississippi Railroad Company v. Wheeler, 1 Black 297. And yet an exactly opposite conclusion was reached in the case of The Railway Company v. Whitton, 13 Wall. 283; and the court singularly enough says, there is nothing against this in Chief Justice Taney’s opinion. It seems to me that the position, that in the United States courts the defendant was a citizen of both States, and could not therefore be sued by a citizen of either, is answered very unsatisfactorily by the court, when it says, it would only be regarded in a suit in the State court as a citizen of the State in which the suit was bi'ought. It seems to me to be perfectly immaterial how it would be regarded in such a suit. The question is: How should it be regarded in the United States courts? If, as Chief Justice Taney says, as a citizen of both States, then no suit would lie in the United States courts, no matter how it might be regarded in a suit in a State court. The principles decided in The Railway Company v. Whitton’s adm’r, 13 Wall. 270, were followed in the case of Muller v. Dows, 4 Otto (94 U. S. R.) p. 444.

In Evans v. Monot, 4 Jones Eq. 228, it was held, that a corporation created by a State and carrying on its operations within the State, has its existence in the State, although its office business be carried on in another State.

In The State of Maryland v. The Northern Central Railway Company, 18 Md. 193, it was decided that a corporation chartered by two States, and doing business in each State, must be treated by the courts of each State as a domestic corporation to the extent of the State in which it acts, and as a foreign corporation as regards the other sources of its existence.

However contradictory and irreconcilable may be the decisions of the Supreme Court as to the residence of a corporation chartered by two States, when the suit is in the United States courts, there is one point on which the recent decisions of the Supreme Court, and all the decisions of the State courts which I have examined agree; and that is, if a corporation be chartered in this State, and accepts its charter by actually doing business here as a corporation, it must, in a suit brought here in our courts, be regarded as a domestic corporation having its residence in this State. And we may add, that a legislative authority to a foreign corporation to do business in , this State, accepted by actually doing business here, has precisely the same effect as a formal charter. Such corporation in a suit here must be regarded as a domestic corporation having its residence in this State, no matter where its officers may reside. See Continental Ins, Co. v. Kasey, 27 Gratt. 216; Connecticut Ins. Co. v. Duerson, 28 Gratt. 630, 642, 643.

We will now examine the West Virginia cases, and determine whether they are in this respect in accord with the decisions elsewhere.

In the case of Goshorn et al v. The Supervisors of Ohio County, 1 W. Va. 308, it was held, that the Hempfield Railroad Company was a corporation of this State, though it never was formally chartered by Virginia, but merely authorized to do certain things in the State and extend its road to the city of Wheeling. The question whether the Bank of the Valley was a foreign or domestic corporation was decided in the circuit court in the case of The Bank of the Valley v. Gettinger, 3 W. Va. 309; but this court not considering the question as properly raised by the record declined to decide it and expressed" no opinion on the subject.

In the case of The Farmers’ Bank of Virginia et al. v. Gettinger, 4 West Va. 305, this court decided that the Farmers’s Bank of Virginia was a domestic corporation and not liable in April, 1866, to be proceeded against by attachment as a non-resident. This bank though located in Richmond had branches in this State, one of which was located at Lewisburg and one at Charleston. By the 8th section of article i 1 of the Constitution of this State it was provided, “that such parts of the common law and laws of the State of Virginia, when this Constitution goes into operation, as are not repugnant thereto, shall be and continue the law of this State until altered and repealed by the Legislature.” Judge Brown in his opinion in that case says: “This then continues the charter of the Farmers’ Bank of "Virginia with its branches in this State in full forceand he again says: ‘•'That the fact, that this and other banks similarly situated may continue to be Virginia corporations, is wholly immaterial, and is no more repugnant to the fact that it, and others so situated, are also domestic corporations of this State, than that the Baltimore and Ohio railroad aiid the Hempñeld railroad are domestic corporations of this State by virtue of the laws of Virginia in force before the separation, notwithstanding both of said companies are also foreign corporations, the one of the State of Maryland and the other of the State of Pennsylvania Goshorn v. The Supervisors of Ohio County, 1 W. Va. 308; Ott v. McHenry, 2 W. Va. 73. The Farmers’ Bank being a domestic corporation in Virginia before the division, and having branches, in the territory which became "West Virginia from the date of division, continued in law and in fact a domestic corporation of the new State as effectually as it had been under the old, and as such was liable to be sued,"and was not liable to be proceeded against as a foreign corporation.” Judges Maxwell and Berkshire concurred in the conclusions reached by Judge Brown.

There are some portions of his views not quoted above Avhich are doubtless unsound, and this may be the reason why the other judges only concurred in his conclusion He says, for instance: “ That each of the branches of this bank was as perfect a bank in itself as the mother bank at Richmond, or any other bank corporation having its officers and directors, its banking house ánd capital stock .and banking business, organized and conducted under its charter, with charter rights and privileges. Such it was under the laws of Virginia before its separation. Is it less so now?” This is true to a largo extent; but it is not literally correct.. It is not true, that each of these branches was as perfect a corporation in itself as any other bank corporation. Though having many of the powers of other banks which had no branc hes, these branch banks did not have all. They were not in ' themselves corporations and could not be sued as such* The mother bank was alone liable to bring suit for the contracts of the branches; though suit could be brought in the counties where the branches were located. See Tompkins v. The Branch Bank, 11 Leigh 372. Still this does not affect the soundness generally of Judge Brown’s reasoning. The conclusion reached, that the Farmers’ Bank of Virginia was in April, 1866, a domestic corporation of this State, and not liable to be proceeded against as a non-resident by attachment, is in accord with the views I have expressed. For it was permitted by the terms of our Constitution to act as a corporation within this State and to do business by- its branches located here ; and there were such branches actually located here at that time; and they were therefore properly treated then as domestic corporations. A more serious error of Judge Brown was in saying that the Farmers’ Bank of Virginia was a domestic corporation from the date of the division of the State of Virginia and the formation of this State. From what I will presently show it could not have been a domestic corporation of this State till the close of the war. But this statement was a mere obiter dictum of Judge Brown, evidently made without having his mind directed to the distinction which will be taken in this opinion.

It is claimed however by the appellees’ counsel, that this decision is unsound and was tacitly, though not expressly, disapproved in the case of Parker et al. v. Donnally et al. 4 W. Va. 648. The appellants’ claim in that c,ase was based on an attachment sued out in August, 1867, against the Bank of Virginia as a non-resident defendant. The court decided, that the fund by a legitimate transfer had passed to the appellee before the attachment. They said nothing about the validity or invalidity of the attachment against the Bank of Virginia; and it is inferred by the counsel for the ap-pellees, that the court regarded the attachment as valid and intended to disapprove the case of the Farmers’ Bank v. Gettinger, which counsel assume presented so far as the attachment was concerned the same question. These cases were decided within one year of each other; and I apprehend that if the court had regarded the attachment against the Bank of Virginia and the Farmers’ Bank of Virginia as standing on the same footing, they would probably have decided the last case by holding the attachment a nullity, as they did in the first case. But in that latter case it was proven that the Bank of Virginia was located at Richmond, that the directors then appointed the directors at Charleston, the only branch it had in West Virginia. They appointed no directors after the war, and the board, who were there when the war broke out, refused to act as such after 1861; and the cashier and other officers dissolved their connection with the branch; and the assets and affairs of the branch passed into the hands of the president who was recognized by the parent bank at Richmond and authorized to pay depositors and recover payment of debts. It does not appear, that any sort of business was ever done at this branch bank after the war. Under these circumstances as it might well be the court may have regarded, the two cases as essentially different and that though no attachment could properly be issued against the Farmers’ Bank of Virginia in 1866, when it would seem from Judge Brown’s opinion they had a branch in fact in this State organized, yet they may well have hesitated to hold this as to the Bank of Virginia, who had never had an organized branch bank in the State since its organization. This I presume was the reason they preferred to decide this last case on other grounds.

The appellants’ counsel on the other hand insist that the case before us is governed by that of The Farmer’s Bank v. Gettinger. Does this ease come within the principles laid down in that case, and which accord with those laid down by the Supreme Court, the Court of Appeals of Virginia and that of other States ? When the attachment issued, April, 1866, in the case of the Farmers’ Bank of Virginia v. Gettinger, the Constitution of the State of West Virginia, as shown by Judge Brown, au-thorized that bank to establish branches in this State; and as they then had such branches, they were then, on the principles I have laid down, properly regarded as domestic corporations not liable to bo proceeded against by attachment as non-residents. But when the attachment issued in this case, November 30, 1864, the Bank of Virginia had no statutory or other authority to do any business in this State. It being a corporation located in the city of Richmond, the capital of the Southern Confederacy, and under the absolute control of governments then at war with this State and the United States, we could not even by an express statute have authorized them to establish a branch bank in this State and carry on business during the war. Such legislation would have been treasonable. A public enemy could not by any act of this State have been permitted to carry on business within the State during the continuance of the war; and of course the general provision in our first State Constitution continuing in force the statute law of Virginia could not iairly be interpreted as conferring authority on a public enemy, whilesuch, to establish a branch bank in our State. But if it had expressly done so, it would have been inoperative as it would have been a breach of allegiance on the part of the State to the Federal Government. Had such a provision been in our Constitution, the State never would have been admitted into the Union.

The- Bank of Virginia then, when this attachment syiMms. j, i. issued, never having had any authority to establish a branch bank in this State stood then in the precise position of the Bank of Richmond, or any other local bank of Virginia. And can there be a question but that they were non-resident corporations, corporations chartered by another State and never authorized to do business in this State ? I must therefore conclude that in November, 1864, when this suit was brought and the attachment issued, the Bank of Virginia was a non-resident of the State and liable to be proceeded against as such by at' tachment.

It remains only to consider the question, whether the court erred in sustaining the plaintiffs’ demand for notes that were payable at other branch banks 'than that at SyIlíll™s IL Charleston, no demand for their payment having been made at the branches at which they were payable before the institution of the suit.

It has been decided in Virginia, that if a note be payable at a branch of a bank at a particular specified time, it is not necessary to aver and prove due presentation of the note and demand of payment at the bank, in order to entitle the plaintiff to recover of the maker of the note. See Watkins v. Crouch, 5 Leigh 522. Armistead v. Armistead, 10 Leigh 512. From these decisions it appears to have been doubtful, whether if the note was payable at a branch bank on demand instead of at a specified time, it would or would not be necessary to aver and prove presentment and demand at such branch bank before suit. To settle this question, and to put bills of exchange accepted or notes payable at a specified place on demand on the_same footing as bills accepted or notes payable at a specified place and time, was, it seems to me, one of the objects of the passage of the 1st section of chapter 144 of the Code of 1860, page 628. This provides, “If a person accept a bill of exchange, payable at the house of a banker or other place, without further expression in his acceptance, such acceptance shall be deemed a general acceptance, and the presentment of the bill may be either at such place, or as it might have been if no §uch place had been specified in the acceptance. If an acceptor shall in his acceptance express that he accepts the bill, payable at a banker’s house or other place only, and not otherwise' or elsewhere, such acceptance shall be deemed a qualified acceptance. But as against the maker of a note or the acceptor of a bill, whether the acceptance ^*e general or qualified, it shall not be necessary to aver or prove presentment for payment at the time and place specified in the note, bill or acceptance. Such maker or acceptor may however setup as a matter of defense any loss sustained by him by reason of the failure to make such presentment.”

But if it were admitted, that ordinarily there is a . difference, as to the necessity of a demand of payment at the specified place, between a note payable to a particular person at a specified time and a note payable to bearer at at a specified place on demand, still in the particular case before us no such prior demand of payment of these notes of the branch banks of Virginia at these, branch banks respectively located in Virginia would be required. No such demand could have been made by the plaintiffs, as these branch banks were within the boundaries of the territory held then by the Confederate States as a public enemy; and if made, such demand must necessarily have been entirely unavailing. Payment could not have been made on such demand both on account of the then condition of the banks caused by the war, and also because it would have been the duty of such branch banks, even if they had had the ability to pay, to have declined payment at that time to the plaintiffs. The plaintiffs then stood in relation to them as public enemies; and a payment to a public enemy of a debt on his demand would then have been a breach by them of the laws of war, and have subjected them to pains and penalties. No such useless demand therefore could be required, and no possible- injury resulted to the Bank of Virginia by the failure to make such demand. And even had it ordinarily been their duty to make such demand before the institution of a suit, it could*not be held necessary under these circumstances.

I am therefore of opinion, that the circuit court did not err in directing the payment out of the assets attached of the whole of the plaintiffs’ debt including the notes payable at branches in Virginia, payment of which had not been demanded before the suit was instituted.

The decrees of the circuit court appealed from must therefore be affirmed ; and the appellees, Hall and Smith, must recover of the appellants their costs expended in this court, and $30.00 damages.

Judge JOHNSON concurred. HaymoND, Judge:

I have doubts whether generally a bank may be sued upon its notes payable on demand at the parent bank or a branch thereof, until such demand is first made at the bank or branch where payable; but I concur with Judge Green in the residue of his opinion, and regard the question of demand as immaterial under the circumstances of the case.

Decrees Affirmed.