American Bank v. Cooper

54 Me. 438

• Court: Supreme Judicial Court of Maine
• Decided: July 1, 1867
• Status: Published

Opinion

Dickerson, J.

Assumpsit against the defendant as in-dorser. The requirements of the law with regard to demand and notice appear to have been complied with, and the action is maintainable if the bank, as a corporation, has the legal capacity to maiutain a suit at law.

As the vote of the stockholders of the bank, surrendering its charter, was duly filed with the Secretary of State, and an injunction issued, and receivers were appointed before this action was commenced, the counsel for the defendant argues that the bank has lost its legal capacity to maintain this action, and that no action can be maintained in its name by the receivers.

1. The surrender of the bank charter.

Se.ction 2 of c. 217 of the statutes of 1863, as amended by § 1 of c. 284 of the statutes of 1865, provides that the owners of a majority of the stock of a bank, may vote to. surrender their charter, at a meeting duly called for that purpose, and that the corporate capacity of such bank shall continue for the term of two years from the time of filing a written notice of such surrender, certified by its clerk, with the Secretary of State, within thirty days from the passage of the vote. When these steps have been taken, the surrender of the charter is effected, though no notice of the surrender is published, as required by § 3. The publication' of the notice forms no element in the process of surrendering the charter, but is simply declarative of that fact. The bank cannot avail itself of its omission to comply with the requirement in regard to the publication of notice of an act, in order to defeat its validity, when such act is valid without such publication.

The time allowed for the bank to close up its business would have expired in January, 1867, but for c. 37 of the special laws of 1868, which extended the time to Jan. 5, 1869, and allowed the receivers such time within that period, for the discharge of their duties, as the Supremo Judicial Court should deem necessary. At the August term of the Court in the county of Kennebec, for 1886, the time for converting the 'assets of the bank into available funds, by the receivers, was extended to Sept. 12, 1867. By these several statutes, and the proceedings under them, notwithstanding the surrender of its charter, the legal capacity of the bank to maintain actions for the conversion of its assets, within the time specified by law, remained unimpaired.

2. The injunction and appointment of receivers.

These considerations do not incapacitate the bank for maintaining actions in its own name, at the instance of the receivers. K. S., c.47, § 67. Nor does the omission of the receivers to be sworn vitiate their proceedings. They are appointed by the Court, and are the officers of the Court. The statute does not require them to be sworn. Their proceedings are subject to revision by the Court, and the oath may be dispensed with for the same reason that it is not required in the case of assessors of damages, or a master in chancery appointed by tlie Court.

The defendant must be defaulted for the amount of the notes. Judgment, also, follows for the plaintiff in the other actions, —

American Bank v. Henry Cooper, jr., et, al.; American Bank v. Henry Cooper, jr.

Appleton, C. J., Cutting, Walton, Barrows and Tap-ley, JJ., concurred.