Bank v. Willis.

• Decision Date: 22 August 1873
• Citation: 7 W.Va. 31
• Court: West Virginia Supreme Court
• Parties: Farmers' Bank v. Willis.

7 W.Va. 31

Farmers' Bank

v.Willis.

Supreme Court of Appeals of West Virginia.

August 22, 1873.

1. The court may judicially recognize or inform itself as to the charter of the Farmers' Bank of Virginia, or other like bank, and as to its organization and acceptance of a provision for the extension of its existence.

2. The Bankjhtd the right to assign its assets for the benefit of its cred" itors, independently of the act of the General Assembly of Virginia, passed in 186G, on that subject.

3. The deed made in 18G7, by the Bank, when hopelessly insolvent, for the transfer of its assets to trustees for the payment of specific liens, and then, as far as adequate, for the payment of all its other debts, was valid and effectual for that purpose.

4. The provision in the Code of Virginia, that, "though a bank had a branch * * * all its notes should be received in pay-ment of debts to the bank, whether contracted at the parent bank or a branch," applied only while the debts remained due to the

bank. When a negotiable promissory note discounted by the Farmers' Bank of Virginia had been assigned by the Bank to trustees, for the payment of antecedent debts, and the maker, having notice of the assignment, afterwards acquired notes of the Bank, he could not, with these, pay his debt so assigned, or set them oft against it.

5. "When "The Farmers' Bank of Virginia," by that name, brought suit, and the defendants made no objection, on that account, but pleaded in bar, and agreed the facts, using that name, ami the "President, Directors and Company of the Farmers' Bank of Virginia," indiscriminately, as the name of the same corporation, and submitted the case to the court, which gave judgment in favor of the Bank; the defendants, who appealed, cannot, in this court object successfully to the name in which the suit was brought.

6. A judgment having been entered for a larger amount than the facts agreed warranted, and subsequently, on motion of the plaintiff in whose favor the error was committed, and without notice, the error was corrected; the defendants, for whose benefit the correction was made, cannot for that reason, appeal or obtain a reversal of the judgment.

7. When, after the Farmers' Bank of Virginia had assigned its assets to trustees for its creditors, of which a debtor had notice, he acquired and tendered notes of the Bank in payment of his debt before the passage of the act in 187o, which provides that debts due to the banks or their trustees or representatives, may be paid in the issue of the banks or their branches, the tender cannot now by force of the statute, be treated aa a payment. And a judgment rendered then, which was correct, should not now be reversed, to enable the debtor to make the payment, or otherwise have tie1 benefit of the legislation. If he could pay the debt in that manner, without the judgment, he can pay it notwithstanding the judgment. Whether he can do this, is not now decided.

This was an appeal, by the defendants below, from a judgment of the circuit court of Jefferson county, rendered at the April term, 18G9, thereof, in a suit therein pending, wherein the Farmers' Bank of Virginia, sue-ing for the use of J. M. Goddin and Samuel Robinson, assignees and trustees, was plaintiff, and Thomas H. Willis and R. B. Washington, were defendants. The Hon. Joseph A. Chapline, then judge of said circuit court, presided at the trial of the cause below.

The opinion of Hoffman, Judge, contains a sufficient statement of the facts, and recital of the statutes therein referred to.

Wild am II. Tr avers, George H. Lee and Coolie & Kennedy for the appellant.

Charles J. Faulkner for the appellee.

Hoffman, Judge:

In the year 1812, it was enacted by the General Assembly of Virginia, (Acts 1811-12, eh. 7 2 R. C. 1819, ch. 196, 8303, 1, 2, 5, 9, 11, 15, 20,) that the Farmers' Bunk of Virginia should be established in the city of Richmond, with a capital stock of two million dollars, divided into twenty thousand shares of one hundred dollars each:

That there should be appropriated to the use of the Commonwealth three thousand three hundred and thirtyfour of these shares: That books of subscription should be opened in Richmond, Norfolk, Lynchburg, Winchester, Fredericksburg and Staunton, under the superintendence of numerous persons, for the shares that were authorized to be subscribed at each of these places: That the subscribers should be a corporation, in law and fact, by the name of The President, Directors, arid Company of the Farmers' Bank of Virginia, and should so continue till the first day of June, in the year 1827: That there should be directors for the Bank at Richmond, and for a branch at each of the other places before named, who should be citizens of Virginia, and should be elected annually, a part of them by the General Assembly and a part by the stockholders:

That the General Assembly should be furnished, annually, if it should require it, with statements of the amount of the capital stock of the corporation, debts due to it, money deposited therein, notes in circulation and cash on hand; and should have the right to inspect the general accounts in the books of the Bank, that related to such statements:

That the directors of the Bank at Richmond should establish offices at Lynchburg, Winchester, Norfolk, Petersburg and Fredericksburg; for the purpose of discount and deposit upon the same terms and in the same manner as should be practiced at the Bank; and that the capital stock should be distributed in the proportions specified.

In the year 1837, (Acts 1836-7, ch. 183, sees. 4-13), it was enacted that the President and Directors of the Farmers' Bank of Virginia should have authority to increase the capital stock of the Bank, by the addition of a million and ten thousand dollars, of which the Commonwealth should subscribe and hold one-half; and that the increase should be distributed among the Bank at Richmond and its branches, as by the act directed:

That, within six months atter the new stock should be raised, offices of discount and deposit should be opened at Farmville, Scottsville and Abingdon, or Evansham.

Subsequently, at different times, by various acts, it was enacted that the charter of the Bank, with modifications, should be extended to the 1st day of June, 1842; and afterwards, with further modifications, and conditions, till the 1st of April, 1857; and thence for six years:

That the capital stock ot the Bank might be increased and branches established at a number of other places in different parts of the Commonwealth.

And, accordingly, at different times the Bank at Richmond, and branches at Norfolk, Petersburg, Fredericksburg, Lynchburg, Winchester, Danville, Farmville, Charlottesville, Wytheville, Alexandria, Lewisburg and Blacksburg were organized and put and continued in operation.

It was enacted that the moneys of the Commonwealth should be deposited in the Farmers' Bank of Virginia and two other banks mentioned, a third part in each:

That the Governor should appoint a number of direc-tors but one less than half of all, of each-of the banks and branches in the State: And that the notes of these and other banks should be received in payment of taxes and debts due to the Commonwealth:

That the Board of Directors should quarterly transmit to the Governor a statement of the condition of the banks, which should be published in newspapers in the cities and counties where the banks and branches were situated: And that the Governor should cause to be prepared and submitted to the General Assembly, at each session, with the reports of the banks, a tabular statement as to each bank.

And it was enacted, and accepted, that the bank should pay to the Commonwealth a bonus out of each semi-annual dividend.

In the year 1861, (Acts 1861, ch. 58,) by an amendment to the last previous act, which extended the charter of the Farmers' Bank, it was enacted that the charter should be extended from the first day of April 1863, for twenty years; and the Bank was invested with all the rights, powers and privileges, and made subject to all regulations imposed by the 56th, 57th and 58th chapters of the Code of Virginia, and the act to amend the 10th section of chapter 57 thereof, passed April 9, 1853, so far as the same might be applicable to banks of circulation, and to all the rights, and liabilities that had accrued under an act to separate the State from the banks, passed March 18, 1856: That the act should commence and be in force on and after the 1st day of April, 1863; provided, it should have been approved by the stockholders in the Bank, at any time before the first day of February, 1862, and the approval should have been certified by the president and cashier of the Bank, under its corporate seal, to the Governor of the Commonwealth.

On the 6th day of June, in the year 1861, Willis made a note in writing, of that date, and delivered it to Wash- whereby Willis, for value received, promised to Washington, or order, sixty days after the date thereof, the sum of $2,500, negotiable and payable at the office of discount and deposit of the Farmers' Bank of Virginia, at Winchester: And, before the maturity of the note, Washington endorsed and delivered it to the Bank at its office at Winchester, for the accommodation of Willis, and it was by the Bank then discounted. When the note became due and payable, it was presented for payment, but was not paid: Whereupon, it was protested for non-payment, and notice of dishonor given to the endorser.

On the 27th day of February, 1867, the defendant paid $500, and on the 27th day of March, 1866, paid $412, upon the note.

On the 20th day of February, in the year 1866, it was recited by the General Assembly of Virginia, (Acts 1866, ch. 95,) that the banks of the Commonwealth, during the progress of the war then recently waged in the State, sustained such losses that they were unable to promptly pay their liabilities; and that it was the sense of the General...