People v. President, 6 Cow. 196

People v. President

6 Cow. 196 | N.Y. Sup. Ct. | 1826

Curia, per

Savage, Chief Justice,

(after stating the pleadings.) The first question respects the sufficiency of the information. Upon this, I shall only remark, that the form adopted here, is the same which was used in the celebrated case of the city of London, (3 Hargr. St. Tr. 545,) and which was there adjudged sufficient. A like precedent is given in Rex v. Amery, (2 T. R. 515.)

I am perfectly satisfied, therefore, with the form of the pleadings ; and shall only examine the question presented by the demurrer, on the merits of the case ; that is, whether the bank, having become insolvent and unable to redeem its paper, and having stopped business from the 2d of July, 1819, till the 1st of Oct. 1824, w hen it resumed the redemption of its bills, has, thereby, forfeited its charter.

I have not been able to find any adjudication which defines what nonuser shall amount to a forfeiture. Nor is it very important in this case, as it must be decided upon the statute granting the incorporation.

*210The tenth section enacts, “ that, if at any time after the passing of this act, the said President, Directors and Company shall refuse, on demand being made at their banking ^ouscj during the regular hours of doing business, to redeem in specie, or other lawful money of the United States, their said bills, notes, or other evidences of debt, issued by the said company, the said President, Directors and Company shall, on pain of forfeiture of their charter, wholly discontinue and close their said banking operations, either by way of discount or otherwise, until such time as the said President, Directors and Company shall resume the redemption of their bills, notes, or other evidences of debt, in specie or other lawful money of the United States. And in case the said President, Directors and Company shall, at any time hereafter, offend against either of the provisions of this act, it shall be the duty of the attorney general of this state, by information or otherwise, to prosecute the said company for such of-fence ; and on conviction thereof, their charter shall be deemed void.”

It seems the legislature anticipated the insolvency of this bank, and provided, that while insolvent, and unable to pay, it should cease doing business as a bank, until it should be able to redeem its paper, or, in other words, become solvent. The bank did, as the legislature expected, become insolvent ; and, according to its charter, stopped business until it became solvent again. At the commencement of this prosecution, it was solvent, doing ordinary business, and redeeming its bills. The legislature had not then declared how long the bank might suspend business. They have since, (sess. 48, ch. 325, s. 6, April 21, 1825,) limited that indulgence to one year ; but that act can have no effect in deciding this case.

It seems to me, that under the acts in force when this information was filed, it is a sufficient answer to say, that the bank is now doing business, and redeeming its bills ; that it had a right, recognized by its charter, to suspend business, to become insolvent, or unable to pay ; and that *211if proceedings were not instituted against it till it became solvent, the right to prosecute for a forfeiture, had ceased.

Had the insolvency continued till the prosecution was commenced, the forfeiture would have been irremediable ; but the defendants, having resumed the redemption of their bills, and thereby shewn their solvency ; and having, in the mean time, complied with their charter, by discontinuing banking operations, it is now too late to complain of an insolvency which no longer exists.

The defendants are entitled to judgment on the demurrer.

Judgment for the defendants.

N. R. Woodworth, J. did notgive any opinion as to the effect of filing an information before the resupmtion of payment. And see the next case, where he delivers an opinion upon a similar replication, but does not recognize the doctrine, that filing an information would take away the right of the bank to resume payment. He there says, there must be something more than mere insolvency; that there must be a total nonuser to work a forfeiture. And he repeats and enforces the same proposition in the next case, The People v. The Bank of Hudson.