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JULY 1829.


v. Derrick.

they should be satisfied from the evidence, that the sales had been made under those deeds within twelve months from their dates, respectively, that the title of the purchaser would be good, and could not be affected by a failure to prove and record them afterwards; and that the cestry que trust being the purchaser, would make no difference, nor would the adverse possession of the defendant, under his purchase, vary the case, or affect the title of the plaintiff. Echols now here assigns for error, that those instructions were improper.

KELLY and Hutchison for the plaintiff in error, argued that the deeds of trust were improperly admitted to record;

that the statute requires such deeds to be proved in open Laws of Ala Court, a that therefore the registry was a nullity, and

could not operate as constructive notice; b that Echols was Wills, 4

a bona fide purchascr without notice, and that the conveyWheaton 466.

ances as to him were good; c that the execution of the cIbid. 487.

trust could not operate in a case like this, when the deed of trust was not regularly registered, and the defendant had adverse possession as a purchaser without notice.

M-CLUNG, for the appellee.

p. 244,

Astor v.


By JUDGE WHITE. The first inquiry is, whether Derrick, by purchasing the boy Jim of Royster, without actual notice of Fleming's lien, acquired such a title as to render it useless, and therefore prejudicial to Royster's creditors, for Roundtree to execute the trust in the deeds to him, by the sale of Lewis for the indemnity of Derrick? If this were the case, Fleming's rights would have been prejudiced without any default on his part. He certainly was authorized to take the deed with the condition it contained, and to permit the property to remain with Royster; nor could it be expected that he should know by anticipation, who Royster designed selling him to; and therefore could not be required to give actual notice to prevent imposition. There is no evidence that he connived at, or even knew of Royster's intention to sell to Derrick, before the sale; on the contrary, his conduct after that event, in notifying Derrick, shewed fairness of intention in him, and had the effect to induce the latter to adopt a measure which prevented his ultimate injury. The law did not require Fleming to prove his deed in open Court and place it upon record to give constructive notice under

JULY 1829.



twelve months, and as that time had not transpired when the sale took place, he was in this also without default. We are not then prepared to say that Fleming's title to Jim could have been destroyed by the establishment of Derrick’s, when Fleming did nothing but what the law perinitted, and left undone nothing which it required; nor can we conceive, that the proof and registration of his deed, according to the provisions of the statute of frauds, after the sale, if embraced by them at all, could have answered any efficient or valuable purpose. But it is said, that the deed made to indemnify Derrick against loss, by failure in the title to Jim, not having been proven in open Court, and recorded, could not prevail against Echols, who was a judgment creditor of Royster, though his judgment was subsequent to the date of said deed. This objection is also met by the fact, that the twelve months given by law to prove such deeds in open Court and have them recorded, had not elapsed when the sale under the deed was made. This being done, its force was spent, its design effected by the execution of the trust, and none of the intentions of the law could have been answered by its subsequent proof and registration. We are therefore of opinion, that there was no error in the judgment of the Circuit Court.

Judgment affirmed. JUDGE S1ffold, not sitting.

2s 147 103 374


1. A corporation created in another State, may sue in this State.
2. To establish the existence of an incorporated Bank in another State, a

copy of its charter, and parol proof of its being in operation, will be suf

ficient. 3. Where a suit is instituted by a corporation, can the authority of the at

torney who institutes it, be inquired into? Quære. 4. Profert of the authority of the attorney being made in the declaration,

the defendant, by pleading the general issue, waves the right to inquire into it, if such right did previously exist.

Tas President, Directors, & Co. of the Bank of Georgia, by their attorneys in fact, G. R. Clayton and E. Cary, brought an action of assumpsit, in Montgomery Circuit

JULY 1829.



Court, in August 1825, against Henry Lucas, to recover on a note made by him for $1680, dated the 14th June,

1820, and payable at six months, to the order of John Lucas, The Bank of at the Branch Bank of the State of Georgia, in MilledgeGeorgia.

ville. The note was indorsed by John Lucas, to one S. Goodall, and by him to the plaintiffs. The plaintiffs declared by attorney, and made profert of the letters of attorney under which their agents acted; and the defendant pleaded the general issue. At March term, 1826, the issne was tried, and a verdict was found for the plaintiffs.

The defendant, on the trial, required the production of the warrant of attorney or authority by which the suit was instituted, and moved the Court to non pros the plaintiffs, if it was not produced. The Court overruled the motion, being of opinion, that at that stage of the cause, no authority was necessary to be produced. The plaintiffs produced the note and an authenticated copy of the act, incorporating the Bank in Georgia. They also proved by the deposition of a witness, that a Branch of the Bank of the State of Georgia, was established in the town of Milledgeville, and was in operation before the date of the note sued on, and was still in operation. This was all the evidence offered of the existence of said corporation. The defendant objected to the admissibility of the evidence, and also requested the Court to charge the jury, that it was insufficient to shew that the plaintiffs were a body corporate, and to entitle them to sue in this action. But the Court ruled that it was admissible and sufficient. To all which the defendant Lucas excepted, and he now assigns those several decisions of the Court below, as errors.

HITCHCOCK, GOLDTHWAITE and THORINGTON, for the plaintiff in error.

ROCKWELL, GORDON and BOGBEE, for the appellees.

By JUDGE COLLIER. In the argument of this cause, three points were made by the plaintiff in error.

1st. That the warrant of attorney, or other authority, by which the corporation was represented in the Court below, should have been produced. 2d. That there was no legal proof that the plaintiffs were a corporation. That a foreign corporation cannot sue in the Courts here.

When the cause was called for trial, and before the de

JULY 1829.

slaration was read to the jury, the defendant below moved the Court to require the production of the warrant of at

Lucas torney, or other authority, hy which the plaintiff was represented there, and in default of its production, called The Bark of

Georgia. upon the Court to non pros the plaintiff. This Court, in Gains et al. v. the Tombeckbe Bank, a

a liinor's Ala: after speaking of the manner of appointing attorneys to Rep. 51. appear in Court, by corporations and natural persons, employ this language: “But is there any reason for requiring this authority to appear in a suit, by a corporation, more than in one by a natural person. In either case,

the authority of the attorney rests with the party he represents, and the Court. The adverse party has no right to question it. The corporation cannot act in pais, but by its common seal, but as much as a natural person, is estopped from denying the acts of its attorney of record.” Without permitting ourselves to scan the opinion pronounced by the Court in that case, with a view to its regal correctness, we are willing that the doctrine of stare decisis shall control our opinion upon this point, until we shall be satisfied that great injustice will result from its continued recognition.

If however it were conceded, that an attorney professing to represent a corporation should be required to produce the warrant of his appointment, we would say, that in this case it had been admitted, or the right to demand its production waved by pleading the general issue.

The note on which this action is bronght, is payable to John Lucas, at the Branch Bank of the State of Georgia, in Milledgeville. To prove the existence of the corporation, the plaintiff offered in evidence in the Court below, the act of incorporation passed by the Legislature of Georgia, authenticated pursuant to the act of Congress; and a deposition, which conduced to prove the establishment of a Branch of the Bank of the State of Georgia, in the town of Milledgeville, before the date of the defendant's note; and that it was still in operation. The defendant moved the presiding judge to instruct the jury, that the evidence was not sufficient to show that the plaintiff was a body politic, which instruction was refused. The act of incorporation created a body politic, by the name and style of the Preident, Directors and company, of the Bank of the State of Georgia,” and gave to them the right to commence Banking operations, so soon as a certain amount of stock should be subscribed and paid for; and

JULY 1829.




authorized “the President, Directors & Co.” in six months thereafter, to establish an Office, or Branch, for purposes

of discount and deposit, at Milledgeville. The Bank of It was certainly a part of the proof of the plaintiff beGeorgia.

low, to make out his right to sue, by adducing evidence

as to a corporative character. a Proof that the Bank had a 8 Johnson's Reports 378

commenced business, was evidence, prima facie, that the mary. page.! conditions on which the charter was to become operative,

had been performed. The commencement of business by the Branch, as shewn by the deposition of the witness, when coupled with the charter, is evidence that the principal Bank had an actual existence; for unless it had, the Branch had no legal being.

The books of the Bank would not be the best evidence to shew the amount of stock subscribed and paid for, and it may well be questioned whether they would have been evidence at all, against the defendant below. They are the private papers of the Bank, with which he has had

no concern, and I should therefore apprehend that he 61 Starkie could not be concluded as to the facts they exhibited, 6

unless he was a member of the corporation.

If the note had been made directly to the Bank, no evidence could have been required to prove the actual existence of the corporation, since it would thereby have been admitted. As the note is only payable at, and not to the Bank, the question may perhaps be varied. But the testimony which went to the jury, being deemed sufficient on this point, it is unnecessary for the Court to express an opinion upon the effect of the recital in the note,

With regard to the last point, this Court is of opinion,

that the plaintiffs might maintain an action in the Courts c 2 Randolph

of this State, c In fact, so far as our researches have ex471.1 Strange tended, the question nerer seems to have been seriously Christy's

agitated. The cases of foreign administrators and execuDig. (Louisin- tors, and of commissioners of foreign bankrupts, to which pa,) title cor- the plaintiff in error has refered as analogous in principoration.

Johnson's ple, scem to us to be entirely dissimilar. The reason why . Rep. 370. these cannot maintain actions in our Courts, is because

their appointment, which is designed to operate a transfer of the credits and effects of those they represent, carnot have that effect extra ierritorium. The laws here, have a control over their property as against a foreign assignment by act of law, and will exercise that control with a view to the benefit of resident creditors. In the present case, the deht accrues to the Bank in Gcorgia, by the act

612. 2 Strange


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