Hamtramck v. Bank of Edwardsville

• Decision Date: 30 September 1829
• Citation: 2 Mo. 169
• Parties: HAMTRAMCK v. THE BANK OF EDWARDSVILLE.
• Court: Missouri Supreme Court

2 Mo. 169

HAMTRAMCK

v.THE BANK OF EDWARDSVILLE.

Supreme Court of Missouri.

September Term, 1829.

TOMPKINS, J.

This was an action of debt brought by the appellees, to the use of R. F. McKinny, against the appellent, on a promissory note. Judgment was given in Circuit Court for the plaintiffs, appellees here; and from this judgment this appeal is taken. The bill of exceptions shows that at the trial the plaintiff gave in evidence the charter of the Bank of Edwardsville and the note declared on. The defendant then moved the court to decide that the plaintiffs could not recover, and this motion was overruled. The defendant then proved that before bringing this suit the noto declared on was assigned by the cashier and president of the Bank of Edwardsville to D. Prickett, by endorsements on the note. The plaintiffs offered to prove that the said note had by D. Prickett been assigned to A. Prickett, and by endorsement in blank of A. Prickett had come into the hands of the present holder before the commencement of this suit, and that all the assignments were, at the bar and before the trial, stricken out by the plaintiff's attorney; to all of which the defendant objected, but he was overruled. It is contended by the appellant that the court erred: First. In overruling the motion that on the case made by the plaintiffs they had no right to recover. Second. That the assignment of the note by the president and cashier to D. Prickett transferred the whole interest of the bank in the note and divested it of all right to sue; and that if the note did, by repeated assignments, come back to the payees, they must sue by their derivative title.

In support of the first point it is insisted that the act of the Legislature given in evidence did not of itself give a corporate being to the president, directors and company of the Bank of Edwardsville, but that its existence depended upon matter subsequent, and until the happening of such subsequent matter there can be no such corporation, and no proof of the existence of those facts was offered, The first section indicating the purpose of establishing a bank is prospective, and says “a bank shall be established,” &c., and contains a proviso that as soon as $50,000 shall be subscribed and $10,000 paid, the corporation may commence business. The third section provides that all those who shall become members shall be and they are hereby created and made a corporation, &c., and gives them a name, &c.

It appears very unreasonable...