Wier v. Bush
| Decision Date | 13 December 1823 |
| Citation | 14 Ky. 429 |
| Parties | Wier v. Bush. |
| Court | Kentucky Court of Appeals |
FROM THE WARREN CIRCUIT COURT.
CRITTENDEN and BRECKINRIDGE for Plaintiff
HARDIN MONROE and SHARP for defendant.
The Bank of Green River having from some cause or other, which does not appear in this record, ceased its operations, on the 5th February, 1819, the legislature of this state (see Session Acts 1818, 685) passed an act authorizing it to resume its corporate functions, upon certain conditions therein specified, some of which are as follows:
A general demurrer can not be sustained to a declaration assigning some breaches well and some ill.
" 1st. The president and directors of said bank, shall be bound, jointly and severally, in their individual capacities to pay and discharge in specie, all notes heretofore, or which may hereafter be thrown into circulation by said corporation, whether the same be payable to the bearer or to any individual or individuals, or body corporate, to his her, their or its endorsee.
In every case of corporations created by statute, as far as the statute directs and provides, it must rule; but in cases pretermitted by the statute the principles of the common law must govern.
2d. The notes heretofore thrown into circulation by said corporation shall be paid and discharged as follows, to-wit, one-fifth in sixty days, one-fifth in one hundred and twenty days, one-fifth in one hundred and eighty days, one-fifth in two hundred and forty days, and one-fifth in three hundred days. And when the holder or endorser of any note or notes heretofore issued by said corporation, shall present the same for payment, it shall be the duty of the president and directors of said bank, to execute and deliver to such holder or endorsee, post-notes, signed by the president and countersigned by the cashier; which post-notes shall be for one-fifth of the amount of notes presented for payment, and made payable in sixty, one hundred and twenty, one hundred and eighty, two hundred and forty and three hundred days, as aforesaid; and which post-notes shall bear interest from the 25th day of November, 1818, and shall be so expressed on the face of them.
The officers properly elected, will hold their offices until successors shall have been appointed, notwithstanding the time of election shall have elapsed.
3d. All notes heretofore issued by said corporation, and which are presented for payment, and shall not be taken up by post-notes, as aforesaid, may be presented to, and be protested by a notary public, and shall thereafter carry interest from the said 25th day of November, at the rate of ten per centum per annum until paid."
After some further provisions, not necessary to be recited, the act directs, " that the president and directors of said corporation shall, annually, on the day after their election, and before they enter on the discharge of their duties, during the continuance of the charter, execute bond to the Commonwealth of Kentucky, in the penalty of fifty thousand dollars, conditioned well and truly to pay all debts contracted by said corporation, whenever the same shall be demanded at the banking house or office of said corporation; which said bond, may be put in suit from time to time, by any person or persons or body corporate, injured by a breach of the condition thereof, and judgment obtained thereon." This bond was to be filed in the clerk's office of the circuit court for the county, and be there kept safely.
The same act also provides, that the president and directors should signify the acceptance or rejection of the act by a vote thereon, on or before the first day of March then next ensuing, and on the acceptance thereof, the act was to become part of their charter, and be obligatory upon them, and as soon thereafter as may be, the bond was to be executed.
On the 26th day of February, 1819, the president and directors of the said bank, executed their bond and filed it with the clerk, in a penalty named in the act, conditioned as follows: " The condition of the above obligation is such, that if the above bound president and directors of the Bank of Green River, shall and do well and truly pay all debts contracted by said corporation, whenever the same shall be demanded at the banking house or office of said corporation, in the manner, by the portions, and at the times prescribed by an act of the last assembly of the state of Kentucky, to amend the charter of the Bank of Green River, then the above obligation to be void, otherwise to remain in full force."
James Weir, as relator of the plaintiff, brought this action of debt for his use, and after reciting the penal part of the bond and condition, set out for breach, that he held five post-notes of equal value, payable in the instalments directed by the act, dated 21st August, 1819, the last of which was payable three hundred days after date, and one of a different sum, dated 30th March, 1819, payable three hundred days after date, all given to take up a like amount of notes issued before the passage of the act aforesaid; also, seven notes of the ordinary kind issued or put into circulation before the passage of said act, payable to bearer; all which notes, he avers, were presented at the banking house or office of said corporation, and payment demanded, " at the banking house or office of said Bank of Green River, after the six first mentioned notes...
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