2 Blackf. 367 | Ind. | 1830
The President and Directors of the Farmers and Mechanics’ Bank of Indiana, filed their declaration in debt against John & Noble, on a promissory note for 200 dollars, dated the 1st of July, 1823, and payable to the President, &e. on the 1st of July, 1829, at the office of discount and deposit of the said President and Directors in Lawrenceburgh; averring a de
In support of the plea in abatement, the appellants contend, that the general averment in the plea, that the President and Directors had ceased to be, and were not a corporation in fact, being admitted by the demurrer, forms a substantive cause of abatement, without any reference to the subsequent averments in the plea; that it includes every possible way in which a corporation might cease to exist, except perhaps by the death of all its members; that if, when this action was commenced, the President and Directors were not in fact a corporation, no matter by what means they had lost their corporate existence, they were not entitled to this action; and that if this general averment is to be taken in connection with, and qualified by, the subsequent averments in the plea, still the averments are sufficient to show that the corporation is no longer in existence; that although, in general, a non-user or mis-user of corporate powers, for a short time, might not, when presented in this collateral way, be considered sufficient to show the non-existence of the corporation, yet that a long neglect to elect its officers, and exercise its franchises, might be taken as an abandonment or surrender of its charter.
The first member of this argument, is defeated by the clear distinction that exists between pleading the death of an individual, and the dissolution of a corporation. In the case of an individual, it is sufficient to aver his death. The cause or manner of his death need not be averred. Not so with a corporate
The appellants contend further, that the declaration is insufficient to maintain the action; that the note declared on was entitled, under the act of assembly, to three days of grace, in like manner as an inland bill of exchange; and that the demand at the office of discount and deposit in Lazurenceburgh, on the day of payment mentioned in the note, was three days before the true day of payment; and that the demand, subsequently made of the payees personally, was pot a compliance with the law, not being made at the place of payment mentioned in the contract. On examining the act of assembly on this subject, R. C. 1824, p. 330, and the decision of the Court of Appeals of Kentucky in Stapp v. Anderson, 1 Marsh. 535, on a similar act, we are of opinion that the note is not embraced in the provisions of the act, and is not entitled to days of grace. Nor is it a paper, as the appellants contend, in which the corporation is prohibited by its charter from holding an interest. It does not purport to have been an article of traffick; nor does it appear that the corporation traded for it. It is introduced by the President and Directors, as evidence of a debt due to them by the appellants; and there is nothing in that clause of their charter, by which they are restrained from trading in any thing but bills of exchange, <&c., that prohibits them from taking a note, or any other instrument of writing, to secure the payment of a debt. In the case of The Bank of the United States v. Morton, 3 Marsh. 422, it was decided, that a restraining clause in the charter of the Bank of the United States, similar to the clause under consideration, did not prohibit that Bank from purchasing a promissory note, and receiving it by assignment, and
The judgment is affirmed, with 2 per cent, damages and costs.