28 N.C. 476 | N.C. | 1846
Trover, brought to recover the value of a set of globes, alleged to have been purchased by the defendant Lindsey as the agent of the trustees for the benefit of the Elizabeth City Academy. It was in evidence on the part of the plaintiff that in 1820 the Legislature of North Carolina passed an act incorporating an academy in the town of Elizabeth City, naming ten persons in the said act as trustees of the said academy; it was further in evidence that of the original ten trustees, all of them were either dead or removed from the State save John C. Ehringhaus, who was examined as a witness, and stated that he acted as a trustee of said academy from its commencement for about eighteen months after its organization, and that the institution had been kept up from that time till the present, with the exception of a few intervals when teachers could not be procured. It was further in evidence, from the minutes kept by the board, that the trustees had acted regularly as such from the year 1838 to the present time; that they had built an academy, inclosed their lot, and repaired the premises from time to time, (477) and were at the time of the issuing of this writ in the enjoyment of their corporate franchises and privileges.
The plaintiffs then introduced several witnesses for the purpose of showing how the fund was raised for the purchase of these globes, from whose testimony it appeared that a subscription paper, payable to the trustees of the Elizabeth City Academy and expressed to be for the benefit of the said academy, was circulated or handed to them by the defendant Lindsey; that he collected their subscriptions, stating at the time that the globes would be for the benefit of the academy and would not be removed. The defendant Lindsey further stated that he was going to New York and would purchase them, he having charge of the *341 said academy as teacher the previous session, and that being vacation. It was further in evidence that the defendant Lindsey went to New York, purchased the globes, returned, and again took charge of the academy; that he subsequently took charge of another school, and was then teaching school at the bringing of the action, and that the globes were demanded of him by Timothy Hunter, one of the trustees, previous to the bringing of this action, when he refused to give them up, alleging they were purchased for him. As to the other defendant, Fearing, they were demanded of him also, and he answered that he wished he had never seen the globes.
The defendants objected that the plaintiff could not recover, first, because a continuance of the corporation had not been shown, and upon this point insisted that it must appear that the places of those corporators who had died or removed had been regularly filled or supplied according to the provisions of the charter; that it was not sufficient to show that persons were calling themselves trustees and acting as such, but that the plaintiffs must show a regular and unbroken succession from the commencement, according to the provisions (478) of the charter.
Secondly, it was objected that the plaintiffs could not recover because the globes were bought for the benefit of Lindsey, the defendant, to remain in his possession as a teacher while he remained in the place, and not for the use of the academy; and for this purpose several witnesses were introduced, who swore, in substance, that they subscribed for the purchase of the globes for the benefit of Lindsey's school, and that they desired, when he left the academy, and still desired, that he should retain them. Furthermore, the defendant offered in evidence a paper-writing, signed by sundry individuals, stating that they were subscribers and desired that Lindsey should have the globes. This evidence was objected to by the plaintiff's counsel, and rejected by the court.
The court instructed the jury that if they were satisfied that there were persons acting as trustees of the Elizabeth City Academy, and exercising corporate franchises under the act of incorporation, at the time the suit was brought, the only inquiry would be, for whom the globes were bought, for the trustees or for the defendant Lindsey. If they were purchased by Lindsey as the agent of the trustees, and were used by him as their agent, then his possession was lawful until a demand was made; but if, upon demand made, he refused to give them up, and carried them away and used them as his, it was a conversion, and the plaintiffs would be entitled to recover their value. But if the globes were purchased by Lindsey for himself, then they should find a verdict for him. And as to the other defendant, the evidence was submitted to them whether he had any control over them, or possession of them, at the *342
time of the demand or before; if not, they should find in his favor. Whereupon the jury found a verdict in favor of the plaintiff against David Lindsey, and in favor of Oliver Fearing. Rule for a new trial. Rule discharged, and judgment for the plaintiff. Appeal prayed (479) to the Supreme Court, and granted upon bond and security given.
The plaintiffs were by charter an aggregate corporation of ten trustees. It was incorporated in the year 1820 by the Legislature, and immediately thereafter it was organized and acted as a corporation. The defendant proved that all but one of the original ten corporators had either died or moved away, and he insisted that the plaintiffs could not recover because a continuance of the corporation had not been shown. He insisted that the places of the original nine trustees, who had since died or moved away, should be by the plaintiffs proved to have been regularly filled up according to the provisions of the charter; and that it was not sufficient to show that persons calling themselves trustees acted as such, but that the plaintiffs ought to show, upon the trial, a regular and unbroken succession of trustees from the year 1820, according to the provisions of the charter. The court instructed the jury upon this point of the defense that if they were satisfied that there were persons acting as trustees of the academy, and exercising corporate franchises under the act of incorporation, at the time the writ was brought, then their only inquiry would be for whom the globes were bought — for the trustees or the defendant. We think that this part of the charge of his Honor was correct. In Navigation Co. v. Neil,
PER CURIAM. No error.
Cited: R. R. v. Saunders,
