26 Me. 335 | Me. | 1846
The opinion of the Court was drawn- up by
This is an action of trespass de bonis as-poj'taiis. The defendant does not deny the taking of the articles, but sets up a justification of the act. He alleges that his deputy, (he himself being sheriff of Waldo) at the time of taking the property, had in his possession an execution in favor of one Sherwood against the Frankfort Bank; and for the purpose of satisfying the same, not being able to find any corporate property of the bank, he, by virtue thereof, and in pursuance of the provision in § 41 of c. 77, of (he Rev. St. took and sold the articles alleged to have been wrongfully taken. The reply of the plaintiff’ is, that the judgment, on which the said execution purported to have been issued, was, as to him, null and void; and that he being personally no party thereto, has a right to show, that it was improperly and illegally rendered ; and it is admitted, that, before the service of the writ of Sherwood against the bank, the charter of that institution had
It is admitted that the plaintiff was not named as a debtor-in the execution, which the defendant relies upon in defence. The judgment on which it issued could not have been against the plaintiff by name. He was in fact no party, individually, in the suit in which it was rendered, and had no- right to appear or make defence in it; nor can he bring a writ of error to reverse the judgment. He must, therefore, have a right to-impeach it when introduced against him. According to the decision before cited it seems to follow, conclusively, that the whole procedure was unauthorized. The bank had ceased to-exist as a corporate body, in reference to suits instituted against it by those claiming to be its creditors. It had been deprived of its power to transact business, and its funds were transferred to receivers, against whom alone its creditors could prefer their claims, and they (the creditors) could insist upon nothing more than a pro rata dividend of those funds. To. such a case the statutes, giving corporations three years to wind up their concerns, are inapplicable. The Frankfort Bank, after the appointment of the receivers, had no concerns to-wind up. The receivers had the whole control of its affairs. It had become in effect a nonentity. A suit against it, and a judgment entered therein, after the repeal of its charter and the appointment of receivers to supersede its further action, must be regarded, as it respects those who were not authorized to interpose a defence, as nugatory. ,
The defendant, therefore, in conformity to the agreement of the parties, must be defaulted.
