Ahrens v. State Bank
| Decision Date | 05 May 1872 |
| Citation | 3 S.C. 401 |
| Parties | AHRENS v. STATE BANK. |
| Court | South Carolina Supreme Court |
The appointment of a Receiver, under the Act " to enable the banks of the State to resume business, or to place them in liquidation," passed March 13th, 1869, and turning over to him the assets and property of the bank, was not a repeal of the bank charter, nor did it work such a dissolution of the charter as terminated the bank's corporate existence and enable it to plead the fact in bar of an action by a creditor pending when the Receiver was appointed.
The rules of the Code of Procedure, in reference to amendments at the trial, and the right to disregard immaterial variances between the pleadings and the proofs, apply to actions pending when the Code was adopted, and in which issue had been joined.
A husband may maintain an action as holder upon a bill of exchange, payable to his wife or order, and endorsed by her and others-the last endorsement being in blank.
Under the Code, non-suit cannot be granted for a variance between the allegations and the proofs. The only remedy is by amendment " upon such terms as shall be just," as provided in § 192, and, to entitle himself to this remedy the party prejudiced by the variance must satisfy the Court immediately, by affidavit, that he has been misled, and in what respect he has been misled.
In all other cases of variance the Court may, as directed by § 193 either disregard the variance and direct a verdict according to the evidence, or order an immediate amendment without costs.
It is only where, as mentioned in § 194, the allegation is not proved " not in some particular or particulars only, but in its entire scope and meaning," that the Court may, it seems, order a non-suit: and this is not deemed a case of variance, but one of failure of proof.
BEFORE CARPENTER, J., AT CHARLESTON, MARCH TERM, 1870.
Assumpsit by Charles D. Ahrens, plaintiff, against the President, Directors and Company of the State Bank, defendant.
The causes of action were two bills of exchange drawn by defendant on a bank in Liverpool, and protested for non-acceptance. The declaration, filed 17th September, 1869, alleged that defendant made the bills payable " to M. F. Ahrens, the wife of the said plaintiff, or order," " and then and there delivered" the same " to the said plaintiff." There was no other allegation of title.
The pleas were non-assumpsit and the statute of limitations, and upon these issues were joined 8th November, 1869.
The case was docketed for trial at November Term, 1869, and on 5th March, 1870, defendant pleaded a special plea, as follows:
" And now, at this day, that is to say, on the second Monday of February, in the year of our Lord one thousand eight hundred and seventy, came the said defendants, by Wilmot G. DeSaussure, their attorney, and say that the said plaintiff ought not further to maintain this action against the said defendants, because they say that, after the second Monday in November, in the year of our Lord one thousand eight hundred and sixty-nine, from which day until the second Monday of February, in the year of our Lord one thousand eight hundred and seventy, the action aforesaid is continued, to wit: On the eighth day of December, in the year of our Lord one thousand eight hundred and sixty-nine, by an order made on the equity side of the Court of Common Pleas for Charleston County, in a cause therein pending, wherein George Garvin was plaintiff, and the President, Directors and Company of the State Bank were defendants, on the motion of D. H. Chamberlain, Attorney General, and signed by the Hon. R. B. Carpenter, Judge of the First Circuit, it was ordered as follows, to wit: " It appearing by the official notice of the Comptroller General of the State that the above-named defendants have failed to comply with the requirements of an Act of the General Assembly of the State, passed March the 13th, 1869, entitled " An Act to enable the banks of the State to resume business or to place them in liquidation," it is now ordered, on motion of D. H. Chamberlain, Attorney General, that the above-named defendants do turn over to James B. Betts, who is hereby appointed Receiver of the same, all the assets and property of the said State Bank, upon his filing with the Clerk of this Court his bond, with sureties to be approved by me, in the sum of ten thousand dollars, for the faithful discharge of his duties as said Receiver;
This plea was verified by the President of the bank.
Plaintiff filed a general demurrer to the special plea.
At the hearing plaintiff proved the two bills of exchange alleged in his declaration. They were drawn payable " to M. F. Ahrens, in London, or order," and were specially indorsed by her to third persons, who also indorsed them. The last indorsement was in blank. The payee was the wife of plaintiff, and had been dead about five years before the case was tried. The bills were dated in November, 1861.
The Circuit Judge sustained the demurrer to the special plea, and overruled a motion for non-suit founded thereon. He also overruled a motion for non-suit made on the ground that the mere possession of the bills by the plaintiff was not a reduction into possession, and that the action should have been by the personal representative of M. F. Ahrens.
The verdict was for the plaintiff, and the defendant appealed on the following grounds:
1st. That his Honor the presiding Judge should have granted a non-suit upon the plea puis darrein continuance filed in this case, because from such plea it appeared that the defendants, one of the banks incorporated by authority of this State, failed to come in and renew business under the provisions of an Act of the General Assembly of this State, approved 13th March, 1869, and entitled " An Act to enable the banks of the State to renew business, or to place them in liquidation," and thereby forfeited " all corporate rights and privileges," and, inter alia , the corporate right to sue and be sued, and thereupon a Receiver was appointed, under the terms of the said Act, to take charge of the property and assets of the bank, and to proceed to a final settlement.
2. That his Honor the presiding Judge should have granted a non-suit, because the suit was brought by Charles D. Ahrens, the husband of the drawee, Mary F. Ahrens, and after her death, and not by the personal representative of the said drawee, Mary F. Ahrens, as such suit should have been brought after her death.
W. G. DeSaussure contended, upon the first ground, that the Act of March 13th, 1869, and the proceedings which had been had thereunder, amounted to a dissolution of the charter of the bank, and terminated its corporate existence; that the effect upon the action was the same as the death of a natural person upon an action pending against him; that the facts were pleadable in bar of the action, and were in this case properly pleaded. He cited 2 Kent. Com., 305; 1 Bl. Com., 484-5; Ang. & A. on Corp, 667; Abbott on Corp., Tit. " Dissolution; " Edwards on Receivers, 3, and many other authorities.
On the second ground he contended that the choses in action evidenced by the bills of exchange had not been reduced into possession by the plaintiff during the life of his wife, and that he could not maintain the action except as the executor or administrator of his wife. He cited Story on Prom. Notes, § 88; 1 Roper on Husb. & W., 202; Broom's Parties to Actions, 7; Nash vs. Nash , 2 Mad. 133; Pitts vs. Wicker , 3 Hill 197, and other authorities.
Phillips , contra:
As to first ground: A cause of forfeiture cannot be taken advantage of or enforced against a corporation collaterally, or incidentally, or in any other mode than by a direct proceeding for that purpose against the corporation, so that it may have an opportunity to answer.-Angell & A. on Cor., Sec. 777, p. 785. But where the terms of a charter are, that the corporation shall be dissolved on non-performance of a condition, the mere failure to perform is not ipso facto a dissolution, but judicial proceedings and a judgment of ouster must be had in order to effect a dissolution.-Id., p. 787; 5, J. C. R., 381, Kee vs. Bloom ; 2 J. C. R., 389, Attorney General vs. The Utica Insurance Company .
All questions concerning the possession or forfeiture of chartered rights belong exclusively to Courts of Law; and the Courts of Chancery will not sustain a bill in aid of an information, in the nature of a quo warranto .- Clin. Di., 1, 729, Attorney General vs. Bank of Niagara ; Hop., 354.
The Legislature could amend or repeal the bank's charter, but could not violate the obligation of the contract subsisting between the plaintiff and the defendant.-6 Cranch 135, 136, Fletcher vs. Peck ; 7 Id. 164, New Jersey vs. Wilson .
A State can no more impair by legislation the obligation of its own contracts, than it can impair the obligation of the contracts of individuals.- 10 How. 187, Woodruff vs. Trapnal .
As to second ground: The husband and wife being one...
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