4 Rand. 578 | Va. Ct. App. | 1826
These were motions made in the County Court of Bed-ford, by the Lynchburg and Salem Turnpike Company, against the Grays, for failing to pay three requisitions on their shares. The Court gave judgments on the motions for the plaintiffs; and the defendants stated all the evidence, and excepted to the opinion of the Court in giving judgments against them on this evidence.
The two cases were admitted in argument to be the same; except, that in the case against J. P. Gray, there* was a motion for a continuance by the defendant, overruled, and an exception taken. This may be thrown at once out of the case, with this single remark, that Gray
Many objections were taken in the argument to the judgment of the Court'below. I will consider them in the order in which they were made.
1. It is said that there was no evidence in the record, that the Company was ever incorporated. I find, on examination, that it is laid down in many cases as settled law, that when a corporation sues, either on a contract or to recover real property, they must, at the trial, under the general issue, prove that they are a corporation. Hob. 64, 211. 2 Ld. Raym. 1535. 1 Kyd on Corp. 292. Bull. N. P. 107. 8 Johns. Rep. 295. 14 Johns. 416. 10 Johns. 162. 19 Johns. 300. 2 Cow. Rep. 770. They need not indeed set forth in their declaration, by way of averment, how they were a corporation, but, they must prove it on the trial; as it is considered a part of their case, to be made out by evidence to the jury. I have found no decisions, either in the English books or those of our sister States, arising on motions made by corporations; but this I presume, is because they have not there the privilege (given to some of them by us,) of recovering debts due them, by this summary remedy. The doctrines, however, which govern suits brought by them, will unquestionably apply as strongly, if not a fortiori, to motions. It is clear then, that to support their motion, it Was incumbent on the plain- v tiffs below, to shew that they were a corporation; and we must examine the record to see, whether it contain such proof. In doing this, I consider the Court as occupying precisely the same ground they stand on, in considering a demurrer to evidence in common actions; and the reason is strong for going to the same extent in drawing all fair inferences. Indeed, there seems to be something of professional management, unfriendly to truth and justice, in counsel’s standing by during the progress of the trial, making no specific objection for defect of evidence as to
In Owings v. Speed, 5 Wheat. 420, Chief Justice Marshall, speaking on this subject, says, £:The books of such
It is objected, that this evidence does not prove a compliance with the requisitions of the Statute, first, because there is no proof of the notice of time and place of the meeting required by the act. I answer, that the sole end of this notice was to procure a meeting, and set the ball in motion. If this end has been attained, it is fair to presume, that the legal means were employed; and it would be very dangerous doctrine to the numerous corporations we are every day creating, to say, that at any distant period, they should be obliged, in any motion against a delinquent member, to produce the advertisement calling the meeting which organized them.
It is objected, secondly, that the entry in the book does not shew that the meeting consisted of “a number of persons, entitled to a majority of all the votes, which could be given on all the shares subscribed,” which the law requires. The entry certainly has not followed the words of the law; and if it intended to express the same idea, it has doné it a little awkwardly; yet that it did so intend, I am strongly inclined to think. It must have been apparent to every member, that the law required a majority of the stock to be represented in the first meeting; and to that end, directed that those who first met, should adjourn from ' time to time, until such majority should attend. Wc can
It was next objected, that there is not sufficient evidence that the defendants were stock-holders. The original subscription books were produced in Court, with the names of the defendants thereto, the one, J. P. Gray, for ten shares; and he, in Court, acknowledged his hand-writing; the other, B. Gray, for five shares, and as to him, a witness proved, that the hand-writing was like his. It was further proved, that he had stated himself a subscriber for five shares; and in addition, a power of attorney, purporting to be executed by him, was produced, authorising Isaac St. Clair, as his proxy, to represent him in all future elections in the Lynchburg and .Salem Turnpike Company. This power of attorney was attested by his brother, J. P. Gray, who testified that he executed it for B. Gray, being empowered by him to do so. This, I think, was abundant evidence to prove the defendants subscribers.
It is next objected, that the notices of the three requisitions, and of the sale of the stock, were not sufficiently proved: that the papers in which they were published, should have been before the Court. It seems to me, that the papers (some of them at least,) were before the Court. The notice is given verbatim, said to be,' “in a Lynch-burg paper called the Press, dated the 28th of August, 1818; another paper of the 4th of September; another of the 11th; and another of the 21st, containing the same advertisement.” These are the words; and they convey to my mind the idea, that the papers were in Court. Then
The last objection which I shall examine, arises on the 6th section of the General Turnpike law. That section substantially enacts, that if a stock-holder shall fail to pay the sum required of him, the President and Directors may sell his stock at auction, and retaining the sum due, and all charges of sale, pay the overplus to the owner. And if the sale shall not produce the sum required to be advanced, with the incidental charges, then the President and Directors may recover the balance, of the stock-holder or his assignee, by motion and ten days notice.
The Grays failing to pay the requisitions, theii* stock was advertised, and cried by the auctioneer, but not sold, for want of bidders; and the question is, are they liable to a recovery by motion for the amount of the requisitions ? This has been, to my mind, the most serious objection in the cause; and at one time, I doubted exceedingly whether it was not fatal to the motion; especially when we consider the strictness with which this Court has taken this summary remedy; but my brethren think differently, and further reflection has induced me to believe that they are right. The power to sell the stock of delinquents, was given to the Company, for their benefit. It was thought, no doubt, that this power would coerce the stock-holders to punctuality in paying the calls; and if not, would secure to the Company the speedy receipt of the money, by sale of the stock. But, in case this sale should not raise the whole sum, a motion is given for the balance. Now, ought we