5 La. 63 | La. | 1833
delivered the opinion of the court.
By the charter of this bank, its capital is limited to a certain amount; and in case the sums subscribed, exceed the capital, the directors are required to deduct the amount of such excess, from — First, the stock of which sufficient security sba.11 not be offered, and — Second, from the largest subscriptions in such manner, that no subscription shall be reduced in amount, while any remains larger.
petition states, that the subscriptions, for which good security have been offered, greatly exceed the amount of the cap.^aj^ an(j (tia-t one of the defendants, has made false and siumlaled sales to the.others, of property belonging to him; that he has procured subscriptions to he made on the security of his property in their names, but for his benefit, and that by these means he will obtain a greater proportion of stock, than if he had subscribed in his own name.
It concludes by a prayer, that these subscriptions be erased from the books of subscription of the bank, and that the defendants pay the sum of one thousand dollars, the damages sustained by the petitioners.
The answer denies any illegal contrivance, or simulation; denies that the directors of the bank can maintain this action; and avers, that the defendants have severally subscribed to the stock of said bank, and that by the acceptance of the subscriptions, on the exhibition of their titles, to the managers, charged to receive them, the contract was perfect, and binding on both parties.
There was judgment in the court below, for the plaintiffs, and the defendants appealed.
Interrogatories are annexed to the petition, which, if answered in the affirmative, would establish, all the facts on which this action is brought. As the defendants have declined answering them, the law draws the same conclusion from their silence, as it would from their avowal.
The legality of these interrogatories has been contested, but the right to propound them must necessarily depend on . . A the capacity oi the plaintiffs, to maintain the present action; x x x 7 ^or ^ tbey have that right, there is nothing in our law which refuses to them, the same means of establishing the truth of their allegations, which it accords to all other litigants.
That capacity, however, is denied, and as the case mainly turns on the correctness of this position, it has been very fully discussed at the bar.
It is one, however, which has not presented much difficulty to our minds. The first directors appointed under the charter, were the agents of all the subscribers, in admitting these
But it is contended, the directors have no power to take into consideration any other matter than the validity of the mortgages offered to secure the bank. That if they are sufficient, the board have no concern whether A or B be stockholders. It is true, no such power is expressly given by the charter, but the argument on this head, takes too limited a view of the duties of the directors and their responsibilities. They are bound, not only to carry into effect, the express directions of the charter, but all other matters, which fairly result from its purport and spirit. The act of incorporation, does not confine itself alone to obtaining good security for the stock subscribed. It extends its views further. It anxiously provides that as many persons as possible shall have the privilege to offer this good security, and obtain loans on it, and it carefully guards against a monopoly, by enacting^ .that if there be an excess, reduction shall be made by taking the highest on the list, so that no subscriber shall be reduced while any remains who has taken a larger proportion of the stock. This limitation is personal, and the acts of the defendants, if sustained by the court, would enable them to evade the law. For, by dividing the subscription nominally, among many, who acted for one, the party who owned the stock would not suffer the deduction he must be subjected to, had it all stood in his name. That which cannot be done directly, the law will not suffer to be done indirectly. Had the defendant, who procured those subscriptions, presented the facts which this action has disclosed to the commissioners, and required of them to admit four, or any number of individuals to subscribe for stock in their names, for his benefit,
In addition to the points filed in the cause, it was urged in argument, that if the court should decide the stock was illegally subscribed for, in the names of those who had lent their names to the owner of the property, that the proper decree would he, that the whole of it should stand in his individual name; hut it is our opinion, that an act which attempted to evade the provisions of the charter, can confer no right on the party hy whom it was committed.
It is, therefore, ordered, adjudged and decreed, that the judgment of the Parish Court, he affirmed with costs.