VanZant v. Waddel

• Court: Tennessee Court of Appeals
• Writing for the Court: PECK
• Citation: VanZant v. Waddel, 10 Tenn. 260 (Tenn. App. 1829)
• Decision Date: 31 January 1829
• Parties: VANZANT v. WADDEL.

10 Tenn. 260

VANZANT

v.WADDEL.

Supreme Court of Errors and Appeals of Tennessee.

January Term, 1829.

This cause was argued by F. B. Fogg and G. S. Yerger, for the plaintiffs in error, and by Washington, for the defendant. The facts of the case are fully stated in the opinion delivered by Judge Peck.

PECK, Judge.

On the 25th March, 1822, there issued from the office of the circuit court of Lincoln county, a capias ad respondendum, at the suit of John Waddel, against the Fayetteville Tennessee Bank, to answer the plaintiff in a plea of trespass on the case, to his damage $3,000. The sheriff made the following return thereon: “Executed, having summoned Vance Greer as President, and William Dickson as Cashier of said bank.”

The suit was instituted to recover the amount due upon a number of notes issued by the said bank. The declaration was in common form, with the usual averment, that the same had been presented for payment, and payment refused. The bank appeared to the action and pleaded non assumpsit; on which plea issue was joined.

At March term, 1823, a jury passed upon the issue, and rendered a verdict in favor of the plaintiff, for $1,663; and the court thereon gave judgment. Upon this judgment an execution issued returnable to the subsequent term of said court, on which the sheriff returned, “No property found in my county to satisfy this execution.” The record then recites, that when the capias adrespondendem issued, there also issued a summons, made known by delivering a copy to Jacob Vanzant, calling upon him to appear on the 3d Monday in Sept. 1822, (the day on which the writ was returnable,) and then and there answer on oath, as garnishee, what debts he owed said bank. He appeared to the said summons, and by consent of parties, his examination was postponed until the 24th Sept. 1822, when an examination on oath was had, and wherein he stated in substance, that about the time the bank went into operation, he bought twenty shares of stock, which had been subscribed by Boyles and Quistenbury, and which stock was transferred to him on the books of the bank. In 1819 he bought twenty-five shares more, which also was transferred to him; on which shares he had paid $1,125, and which sum the bank was indebted to him for so much paid on stock. That he had borrowed of the bank, at different times, about fifteen hundred dollars, which sum he had reduced by sundry payments. That on the 1st of April, 1822, he had a settlement with the bank, and the balance of his debt at that time, over and above the $1,125, the amount of his stock paid in, was $235, and this sum he paid by a deposit of the notes of said bank, to that amount. That with the consent and approbation of the president and two directors present, and under an order of the board of directors, made the 17th March, 1822, authorizing it, he transferred the share by him held to said bank, in full for his debt of $1,125, and thereby divested himself of all interest in said forty-five shares; and that this was all done before the garnishment. He further stated, that his note which had been renewed in bank from time to time, until said settlement, had been always made payable in the notes of said bank, agreeable to the order of the board; and that that was the kind of money he had drawn from said bank. That the notes of the bank were not worth more than 33 1-3 cents on the dollar in specie; and he submitted whether, by the constitution and laws of the state, any judgment can be rendered against him on these proceedings. The order authorizing the notes of the bank to be taken payable in the paper of the bank, and that debtors might transfer their stock to the bank, were appended to the answer of the said Vanzant. The last order does not express in terms, though it may be implied, that stock might be transferred in payment of debts.

On the above proceedings, judgment was rendered against the said Vanzant, for $1,125. He prosecuted an appeal in the nature of a writ of error to the supreme court, where the judgment was reversed, and the cause remanded with these special directions, that a jury should be empaneled to ascertain the specie value of the notes of the said bank, at the time Vanzant's note became due; also, if said note was made payable in said notes, with a view to defraud the note-holders or creditors of said bank; and likewise to enquire if the settlement of the said Vanzant with the bank was made bona fide, with a view to secure a debt due by said Vanzant to the bank; and on such finding, to give judgment. On these issues, the jury found: First, that the notes of said bank, at the time Vanzant's note became due, were worth twenty-five cents in the dollar, in specie. Second, that the note given as above mentioned by Vanzant, was a fraud against the note-holders and creditors of the bank. And third, that the settlement made by said Vanzant was not done to secure the bank, neither was it done bona fide. On this finding, on motion, the court gave judgment for $1,125, against Vanzant, from which he prosecuted a writ of error to this court.

There is a bill of exceptions to the admission of testimony, which, not being seriously insisted on in argument, is not necessary to be noticed.

The legislature passed an act on the 15th of November, 1821, entitled an act prescribing the mode by which the holders of the notes of the Farmers' and Mechanics' Bank, at Nashville, and the Fayetteville Tennessee Bank, may, on their refusal to pay the same, recover judgment. This act, it is said, has given rise to the proceedings in this case against Vanzant. And it is insisted, that by its provisions the charter of the bank has been violated; that said act is in violation of the constitution of the state, is partial, unequal and oppressive in its operation; and that it is a private act, which not appearing on the record, the court is not bound to notice it.

The act provides, in substance, that when payment of the notes of said bank has been refused, if under $100, warrants may issue from under the hand of some justice of the peace, against such bank, and after the demand and refusal to pay at said bank, judgment may be entered up, and execution may be issued, as in other cases. That if the execution cannot be satisfied out of funds of the institution, then the officers having such execution, may summon persons supposed to be indebted to said bank, who shall on oath declare what they owe said bank, etc. The act further provides that when a writ issues and is served upon the officers of such bank, the party may have his election, either on original or mesne process, to summon persons as garnishees to answer on oath what they are indebted to said bank, etc., and on the return of such summons with the writ, and after examination of such garnishee, “if he shall declare that he is indebted to such bank in notes of said bank or banks, then the court may empanel a jury to ascertain the value of such notes, and to enquire if the note so taken and made payable in the notes of such bank was done with a view to defraud the note-holders of such bank. If done with such view, the court to give judgment for the amount specified in such note; if otherwise, for such value of the notes of said bank as may be found by the jury.”

No new process is given by this act, unless it be that of a summon for a garnishee at the time of serving the original writ, or capias ad respondendum. Was it competent for the legislature, consistent with the constitution of the state of Tennessee, to give this summons as a cumulative remedy to those other remedies which existed at the time the law passed? To admit the principle that such a law cannot be passed by the legislature, would be at once to strike at the root of all those statutes providing summary remedies against sheriffs, coroners and constables, delinquent at the time of the passage of the law; also against those providing a remedy for securities who have paid the debt of their principal. In short, it would be to admit that an existing contract could not be reached if a change in the remedy were to take place, so as to alter the form of the process after such contract had been made. Whoever pretended that the acts increasing the jurisdiction of justices of the peace from twenty to fifty dollars, and afterwards from fifty to one hundred dollars, were unconstitutional, because the tribunal and process was changed during the existence of the debt? It was indeed urged, and with some plausibility, that they were unconstitutional, because it gave the plaintiff a summary mode of proceeding, and that too without an intervening jury trial, and that the election of a plaintiff to sue before a justice placed the party defendant in such a situation, that he could not have a trial by jury without giving security for the debt, whereas the law as it stood before gave him a jury trial on appearance bail only. These, though strongly urged to the supreme court as constitutional objections, were overruled on the ground that the right of trial by jury was not by those acts taken away, even in cases growing out of acts of Assembly where summary proceedings were given, and where the passing of a jury upon matters of fact seem to have been overlooked, still the courts, in doing a defendant justice under these acts, will empanel a jury and submit issues; this has been done on motion against sheriffs and other officers, under some of those acts authorizing the court to give judgment on motion. So in proceedings in caveat cases, a jury has to pass upon the facts, unless the case be agreed. Cases growing out of these acts go to show that it does not follow, that the ancient right of trial by jury is taken away, because the pleadings and issues are not submitted in common law form. This act of Assembly, then, so far as considered, does not violate the constitution; it does not give to any court an arbitrary power to seize the estate of the bank, or the debtor...