Hall v. The Bank Of Va.

• Citation: 14 W.Va. 584
• Parties: Hall et al v. The Bank of Virginia et al
• Decision Date: 21 December 1878
• Court: Supreme Court of West Virginia

14 W.Va. 584

Hall et al

v.The Bank of Virginia et al

Supreme Court of Appeals of West Virginia.

Decided December 21, 1878.

In November 1864, during the late war H. and S. issued an attachment in a chancery suit against the Bank of Virginia, as a non-resident for a debt of $36,500.00, being notes of that bank owned by them, some of which were payable at branches of that bank in Virginia and had not been presented at such branch-banks for payment. Held:

I. The attachment was properly issued against the Bank of Virginia as a non-resident.

II. The court properly decreed the payment of the whole of this $36,500, 00 out of the attached effects of the bank.

The Bank of Virginia pending such suit conveyed all its assets and choses in action, under the act of the Legislature of Vir_ ginia of February 12, 1866, toS. aiid T. trustees, for the satisfaction of its creditors. M. instituted a suit in the circuit court of the United States for the Eastern District of Virginia against these trustees to have the trust executed under the supervision of that court, and the court ordered these trustees as receivers to sell all the assets of the Bank of Virginia. They did so; and I. became the purchaser of the assets of this bank at its branch at Charleston, which had been attached by H. and 8.; and the trustees assigned these assets to I. Held:

That the counsel of these trustees and of I. had a right, in the name of the Bank of Virginia, to take and prosecute an appeal from the decree of the circuit court in said attachment-cause.

This cause was heard with seven other attachment-causes against the Bank of Virginia. There was no controversy as to prior- ities or otherwise among the plaintiffs in these several causes, and the assets of the Bank of Virginia attached were disposed of by the court by a decree, to which the plaintiffs in all these causes assented. Held:

The Bank of Virginia could take an appeal in one of these causes alone, and such an appeal did not bring up the proceedings in the other causes for review.

Appeal from two decrees of the circuit court of Kanawha county, rendered, the one on the 18th day of October, 1866, and the other on the 15th day of April, 1869, in a certain suit in chancerv therein pending, in which John Hall and Benjamin H. Smith were plaintiffs, and the president, directors and company of the Bank of Virginia and others were defendants, taken by the said president, directors and company of the Bank of Virginia.

Hon. Daniel Polsley; late judge of the seventh judicial circuit, rendered the decrees appealed from.

Green, President, furnishes the following statement of the case:

The plaintiffs, John Hall and Benjamin H. Smith, sued out of the clerk's office of the circuit court of Kanawha county on November 30, 1864, a summons in chancery against the president, directors and company of the Bank of Virginia and others defendants; and at the same time they made an affidavit before the clerk of said court in his office, that the president, directors and company of the Bank of Virginia was a foreign corporation and was indebted to them in the sum of $36,500.00, and that the claim or debt was just, that they had present cause of action therefor, that the said bank was a non-resident of West Virginia, or was not located in or incorporated by this State, and that they believed it had estate or debts due it in the county of Kanawha from the other defendants residents of said county.

On the summons was endorsed, that the object of the suit was to enforce the payment of $36,500.00 alleged by this afhdavit to be due from the president and directors of the Bankjof Virginia; and the sheriff of Kanawha county was commanded to attach the lot and the vault therein in the town of Charleston, mentioned in the bill, in the possession of Levi J. Woodyard in said town and all the effects in it, consisting of specie or notes on banks, notes discounted by said bank and bonds held by it as collateral security, and United States treasury notes the property of said bank, also the debts due or to become due said bank whether in their own hands, or in the hands of other defendants or persons whatsoever, and such estate so attached in his hands to secure, so that the same should be liable to the future order of the court, which was signed by the clerk. It was returned served on the defendant, L. J. Woodyard, and eight other defendants; not found as to Samuel Shrewsbury; and not found and no inhabitant as to the other seventeen defendants; and also levied on the lot, vault and contents,

The bill was filed at December rules, 1864. It set forth that the president, directors and company of the Hank of Virginia were indebted to the plaintiffs for divers promissory notes issued by said bank and payable partly at Richmond, and for the residue at their several branches in Virginia, and their branch at Charleston, now in West Virginia, in notes of various denominations amounting to the sum of-, which notes the bill states were deposited with the Bank of West Virginia, at Charleston, in said county, subject to the order of the court, which notes the bill asked might be taken charge of by the court and considered as a part of the bill. That this bank was incorporated by the State of Virginia and is situated and established in the city of Richmond and is a foreign corporation to the State of West Virginia. That the branches of this bank are inaccessible to the plaintiffs, except those at Norfolk and Portsmouth from which all the assets have been removed. That the branch at Charleston has assets more than sufficient to pay the plaintiffs' debt, which bank has not been removed to any point within the bounds of the rebellion. That its assets were left in the hands of its president, who placed them in the possession of Levi J. Woodyard one of the defendants. That in the safe of said bank, in Woodyard's possession, were notes of other banks of Virginia to the probable amount of $30,000.00, and notes of the Bank of Virginia to the probable amount of $60,000.00, and divers promissory notes of individuals, and among them the notes or bonds of the numerous other home-defendants named in the bill, besides other evidence of debt to be found in said safe. And that there is also in said safe gold and silver belonging to said bank. And that there is also under the control of said Woodyard, United States treasury notes belonging to said bank. That the bank also owns a lot in Charleston, on which their banking house was built, which was burned down in September, 1862. That some of the debtors of said bank, defendants to this suit, are non-residents, to-wit, the seventeen returned by the sheriff as non-residents. That some of the debtors, defendants, had given liens to secure their indebtedness, or judgments had been rendered against them; and that these non-resident debtors had real or personal estate or both in Kanawha county. The prayer of the bill is, that the parties named in the summons may be made defendants and required to answer the bill; that the above named assets ot the bank may be attached, and all other assets of it that may thereafter be found, and that they may be disposed of by the court, and applied to the payment of the plaintiffs' debt; and the amounts due from the garnishees might be enforced and so applied; and for general relief.

Order of publication was duly made against all the parties named as non-residents; and an alias summons served on the remaining home-defendant, Samuel Shrewsbury, on whom the original summons had not been served.

On the 8th of April, 1865, the State of West Virginia tendered a petition verified by affidavit asking to be made a defendant, and James W. Hoge, administrator of John G. Wright, filed his answer also verified by his affidavit. He demurred to the bill, and for answer said, that he was informed, and believed, that the bank notes held by the plaintiff were purchased at a large discount. He says his intestate was indebted to the bank in some amount not known to respondent, evidenced by one or more notes, on one or more of which he was individually endorser and will probably have to pay; that he was a depositor in the bank to the amount of between $500.00 and $700.00, and he claims this as an off-set.

On April 10, Levi J. Woodyard, the general receiver of the court, was ordered to take charge as such of all the assets of the bank at Charleston, giving the parties to the suit a right to inspect them, under his supervision.

And on June 17, 1878, John H. and Wm. F. Goshorn tendered their petition, to be made defendants to the suit.

At November rules, 1865, an amended bill was filed. It stated the amount of the plaintiffs' debt to be $36,500.00 and it asks that Spicer Patrick, who owed said bank some $9,500.00, might be made a defendant, and the amount due from him attached, which was accordingly done; and a summons and attachment also issued and was served on Clement Smith as a garnishee.

On the 20th of December, 1865, this cause and six others, in which the Bank of Virginia and others were defendants, were heard together; and at the request of the plaintiffs in their several suits, attaching creditors, Joel Ruffner on giving bond in the penalty of $50,000.00 was directed to enforce the collection of the promissory notes due the bank, which had been attached, or if he declined to do so, the general receiver was ordered to enforce their collection.

On April 4, 1866, the Bank of Virginia filed its answer. It admits that it was a corporation of the commonwealth of Virginia, with a branch located in the town of Charleston till the formation of the State of West Virginia; and it submits the question to the decision of the court, whether it is such a foreign debtor or corporation, that an attachment of its effects would lie; and also whether as the promissory notes of the bank held by the plaintiffs were payable on demand at various places of payment designated on the face of the notes, and they were never...