Branch of the Bank of the State at Montgomery v. Harrison

2 Port. 540 | Ala. | 1835

By Mr. Justice Thornton :

This was a proceeding in the Circuit Court of Montgomery, under the 9th section of the act incorporating and establishing the Branch of the Bank of the State at that place. The notice was quashed, and judgment entered for the defendant, which is assigned 'as error. The object of the section, which gives the remedy here pursued, was a substitution of the President of the institution, for an attorney, who otherwise would have been required to be appointed, according to the peculiar mode of action by a corporation. The President for the time being, who is a public officer, is made, as to the mere mode of instituting legal proceedings in behalf of, or against the ■ Bank, the medium of actioh; thereby superseding the necessity of all those technical means, required by the Common Law, in the conduct of such litigation. Although this provision of the act of incorporation provides a summary remedy, different from the Common Law course, yet is it also remedial in its character, and if substantially pursued, should not- be defeated by scholastic criticism. The clause in the charter, after describing the cause of action, as one in favor of the Bank, &c., proceeds thus, “it shall be lawful for the President thereof, after having given thirty days notice to the maker, or endorser, as the case may be, to move the Circuit Court of the county in which said Branch Bank may be established, on producing to said Court, before whom the motion is made, the certificate of the President thereof, that the debt is really and bona fide tbe property of the Branch of the Bank of the State of Alabama, for judgment; and the Court shall proceed to render judgment accordingly.” The notice in this case conforms literally with the act. It is given by the President as such, notifying the defendant, that he will move for judgment, on a bill of exchange, which he avers is due to, and owned by the said Branch Bank. The office of the notice is to inform the party of such matter, as will enable him to make defence against the motion. Here the cause of action is particularly set forth; the property alleged to be in the Bank, and the time, and place of moving, distinctly averred. The objections urged in this case, are, that the notice does not say express!}', in whose favor the motion will be made, and that it is not under the corporate seal. When we consider, that the act required to be done by the President, that is, giving the notice, is not the act of the corporation, but of its officer; and is not by virtue of an authority, derived either mediately, or immediately from the corporation, it will readily appear, that the authenticity of its seal is not requisite. And as for. the other objection, if, by necessary legal implication any fact, is apparent in the notice, which it is important to the defendant to know, 1 would consider it sufficient. Could any one tail to know, tinder this notice, in whose favor the judgment sought against him, should be rendered? The judgment is the act of the Court, and is nothing more than the legal result, from the facts disclosed in the notice, and the act of incorporation. If the charter had expressly directed the judgment, to be rendered in favor of the President, it should be so entered; but in the absence of such a direction, it would surely be a palpable error, to render judgment, except for him, in whom the right is. I think the notice in this case is a substantial compliance with the act; that it gives sufficient information of every matter necessary to the defence, and would have authorised the hearing of the motion for a judgment.

Let the judgment be reversed, and the cause remanded.