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JULY 1829. in relation to the dissolution of any bank which might be The State

established under it. Those provisions authorized the Le

gislature, as has been stated, by an act passed after the susTombeckbes pension of specie payments by any bank thus established, Bank.

to declare the charter of such bank forfeited. The constitution did not authorize the Legislature, nor did they intend, by any law passed before the suspension of specie payments, to deprive any bank of its charter. *

Kelly, argued in reply.

By JUDGE CRENSHAW. This was a proceeding on a quo warranto, calling on the Tombeckhee Bank to shew cause why its charter should not be adjudged to be forfeited; on the grounds: 1st, Because the Bank has failed to pay spccie on demand for its notes; 2d. Because the bank has, on loans and discounts, taken more than six per cent per annum; And 3d. because the Bank has neglected to elect annually thirteen directors. The second and third grounds have been abandoned. The first, is alone relied on; and is now urged as sufficient to reverse the judgment which was given pro forma in favor of the Bank.

In the creation of every corporation, it is implied in law, that a misuser, or nonuser, shall effect a forfeiture of the charter. It is therefore important to inquire, whether a failure to pay specie is such a misuser, or nonuser, as will work a forfeiture of the charter. The act of incorporation has not so declared it, it is not so expressed by the letter of the act, nor can it be fairly inferred by implication.

The Supreme Court of New Yorka has decided, that the suspension of specie payments is no cause of the forfeiture of a bank charter, unless a provision to that effect be inserted in the charter.

The refusal to pay specie was a contingency contemplated by the act of incorporation; and was provided for by authorizing suits as well against the stockholders as against the corporation. The Legislature therefore, at the time of its creation, did not consider this as a cause of forfeiture. The act of incorporation was in the nature of a

.6 Cowen. 215. 219.

* The argument of the counsel for the Bank, on the charge of taking more than six per cent interest, is omitted, as that point was abandoned by the counsel for the State. The authorities cited by them on this point were, 2 Blk. Rep. 865; I Bos. and Pull. 131; 1 Saunders 293; 19 Johnson 50C; Cro. Car. 501; 2 Ventr. 83, 107; Cro. Jac. 678; 1 Campbell 149; Wright v. Elliott, 1 Stowart's Rep. 391; Lyoa v. The State Bank, I Siewert 142.

JULY 1899

oontract between the State and the corporation, and it was incompetent to the Legislature, by any subsequent act, to

The State annex new conditions, not expressed in the charter. In the case of Logwood against the Huntsville Bank, Tombeckboe

Bank. decided in this Court, at a former term,a it was declared that a bank charter is in its nature and effect a contract,

a Minor's Ale. and that its terms cannot be varied or altered by either Rep. p. 23. of the contracting parties, without the consent of the other. In that case, the Court says, "that any attempt to alter or abridge the provisions of the charter, without the consent of the individuals composing the corporation, would not be valid. And so long as it confines itself to the provisions of the grant, it is independent of legislative control.”

The act therefore, of December, 1821, nas no application to the case before us. That act provides, that if any incorporated bank within this State, shall not at the expiration of six months after the passage of the act, make regular specie payments, it shall produce a forfeiture of the charter, &c. This act cannot affect the bank charter, because the act was passed subsequently to granting the charter, without the consent of the members of the corporation; and annexed a cause of forfeiture which was unknown to the charter.

It might also with some plausibility be contended, that the section of the act relied on has long since expired by its own limitation; that the act intended to give the banks of the State, six months from its passage, in which to resume specie payments, and if at the expiration of six months they failed to pay specio, the charter would become forfeited. But it is not necessary to resort to a construction of this act in order to attain a correct conclusion in the case under consideration.

The Court are unanimous in the opinion, that a failure to pay specie, does not, by the terms of the act of incorporation, amount to a forfeiture of the charter; nor is it implied by the general law, as applicable to corporations: That the act 1821, relied on, having annexed a cause of forfeiture unknown to the act of incorporation, and without the consent of its members, cannot bind the corporasion.

Judgment affirmed. The CHEF JUSTICE and Judge SAFTOLD not sitting.

JULY 1829.

Keath

KEATI V. PATTON.

Patton.

25 38 96 523

1. A bill of exceptions must be explicit in setting out the necessary fasts to

shew the error; and the Court will not intend that there were other facts proved than those stated. 2. Semble. That trover lies to recover back the value of property paid un

der a parol contract for the sale of land, such contract being void.

This was an action of trover brought by Gabriel Keath, against Robert Patton, in the Circuit Court of Morgan county. The plaintiff declared against the defendant, for the conversion of five horses, of the value of $333 33. At April term, 1827, a trial was had on the plea of not guilty, and a verdict was found for the defendant. On the trial, the plaintiff tendered a bill of exceptions, which was seal. ed, and is in the following words: “Be it remembered, that on the trial of this cause, the plaintiff proved, that he and the defendant made a parol contract in the State of Kentucky, for the sale of land by the defendant to the plaintiff; and that the plaintiff paid over to the defendant horses, under said parol contract, for and in consideration thereof. Upon this cvide.co, the Court instructed the jury, that the plaintiff could not recover in the form of actiɔn adopted by him; to which opinion the pl intiff exc-pts,” &. The matter of this bill of exception is the error assigacd by the plaintiff in this Court.

THORNTON, for the appellant. The p:inciple was decided in the case of Ailen i. Booker, a ihat money paid on a parol contrac: for land, may be recovere:) bick in 2Ssimpsit: therefore, if property has been paid on such a contract, detinue lies for it, or trorer for its value. diy admit, that to suppori either of those actions, there must necessarily be proof of a demand of the money, or of the property paid; for al hough it be true that the contract is void, and that either party has the r ght to declare it s), ve“, it would be unjust to permit the party who chooses to des are it a nullity, to put the other to the cus's of a suit in assumpsit for money pail, or by an ac ion of trover or de inue, irhere propery was paid, to make the vendor a purchaser of the proper.y paid', contrary to his intention; wych would be the consequence of allowing the purchoser of the land to sue for either without a previous demand of restitution. But I resist the idea that a de:nand must be

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Keath

Patton.

made of the land, or of a conveyance of it; for it would be idle to demand that, which under the statute, I could refuse to receive even if tendered; for the whole contract is void, at the option of either party. The want of explicitness in the b:ll of exceptiors seems to be the only difficulty. It is evident that if it be considered that the bill of exceptions contains all the evidence oflered, there is no error; and the charge, that the action cannot be s::stained, would be mail.tainable; for I have admitted that a demand is necessary; and even the want of proof of the "value of the hors. s," under such a construction, would be a sufficient objection to a recovery. But in drawing the bill of exceptions, there was no attenpt made to set out the evidence; it was drawn solely to bring to the view of the Couri so much of the proof as was necessary to present the point on which the decision below turned. It is true, that in the Court below, a Ante p 26. there was an objec.ion made for the want of a derrand of a conveyance of the land, and also a contest as to whether the statute of limitations of the place of contracting, or the place of trial, should govern;yei ihe counsel for the appellant felt assured, that the main question was, whether the payment of horses by the plaintiff, on the parol contract for the land, was uch a part performance as would take the contract out of the statuie of frauds. The cpinion of the Judge who presided below, appeared to be, as understood by the counsel, that the plaintiff by bill in chancery could compel a conveyance of the land, and therefore that in this coform of action,” no recovery could be had at all. This was the only point which it was intended to present for revision; and such would naturally be the form of a bill of exceptions, when it was only intended to present the question, whether property paid under a parol contract for land could be recovered back under the statute of frauds and perjuries, as if no contract had been made; the proper rule being to swell the record no more than is absolutely necessary to shew the point reserved. I am aware that a bill of exceptions is a part of the record below, and cannot be amended here, but it certainly must be construed here; and even if doubtful, the Court would always rather incline to such construction as would leave the matter open for further proof, than by an affirmance conclude the case forever from further examination. Had the question been settled that a recovery was possible in such an action, and the objection relied on, been, that there was no demand of the property, the defendant should have caused it to apr

v.

Patton.

JULY 1820. pear that there was no such evidence; and have raised the

objection for his own benefit. The very phraseology of Keath

the bill of exceptions would seem, when closely examined, sufficiently to shew, that our construction is correct; for it may well be implied without repugnance to the expressions of the bill of exceptions, that the Judge was of opinion that the bill in chancery was the proper remedy, and the only one; but it excludes the idea of any scarcity of proof actually made which induced the charge, for had there been a deficiency or want of proof of demand, it would have affected the right of recovery in that particular action, but this could have had no influence on the right to recover in the form of action adopted; and the charge of the Court is emphatically, that a recovery could not be had under any circumstances, in the form of action

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adopted by the plaintiff: proof of a demand of the properal Marsh. 23. ty, land, or deed, could not in anywise affect the question,

as far as the form of the actionwas concerned.a

CLAY and M'CLUNG, for the defendant.

By JUDGE COLLIER. The only inquiry presented to the Court, is, whether trover is maintainable upon the facts on the record. To sustain that action, it is necessary for the plaintiff to prove a property in himself, and a right to the possession, at the time of the conversion by the defendant; a conversion by the defendant; and that the chattel alleged to have been converted was of some value. Neither of these essentials seem to have been proven on the trial. If therefore the testimony recited in the bill of exceptions be exclusive, it is clear that the instructions of the Court were correct.

It is argued, however, hy the counsel for the plaintiff, that all the evidence given on the trial, cannot be supposed to be spread upon the record; and that consistently with the facts there stated, the Court may inquire whether the statute of frauds does not prevent a parol contract for the sale of lands from acquiring any validity, and authorize the purchaser, to recover from the seller, the consideration which may have been paid him on the footing of such contract. The language employed negatives the idea that other testimony than that recited was offered: it is set out with some precision, and the opinion of the Court seems to have been predicated upon it. In the instructions, nothing is said by the Court in relation to the statute of

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