Bank of Newbern v. Pugh

8 N.C. 198

• Court: Supreme Court of North Carolina
• Decided: December 5, 1820
• Status: Published

Opinions

This principal question in this case (204) relates to the delivery of the bond, as to which the evidence is that the bank authorized Mooring to take bonds, payable to the president and directors, reserving to itself the right of receiving such as it should approve in payment of Smith's debt. In pursuance of this authority, the bond was taken; and it appears to me that the delivery was complete and irrevocable from (205) the moment it was delivered to Mooring. The language of the books is clearly to this effect. A deed may be delivered to the party himself, to whom it is made, or to any other person by sufficient authority from him, or it may be delivered to a stranger for and on behalf of him to whom it is made, without authority. Shep. Touch., 56. It is true that the bank afterwards refused to accept it in payment of Smith's debt, and returned it to Mooring to be proceeded with as he might think fit. The evident meaning of this was that the bank did not think proper to relinquish the security which it already had, for the sake of one which it deemed weaker, but allowed Mooring to proceed and recover the money from the obligor, if he could. This did not amount to even an attempt to undo the delivery. But if it had been accompanied with even the strongest declaration to that effect, it could not have been effectual; for when the obligee once by his agreement has made the deed good, he cannot afterwards by his disagreement make it void. Shep. Touch., 68. An opposite doctrine would be pregnant with mischiefs; and in this very case all the bonds not selected by the bank must become void, though taken by its authority and with full notice to the purchasers that they were to be so taken. As there must be a new trial, and as the whole record is not now before us, I will abstain at this time from giving any decisive opinion on the other points which have been discussed in the argument. It is possible that, upon a more attentive consideration of the subject, I may doubt the right of the bank to take a bond for a debt due to itself; but from every aspect in which I have yet seen the question, and from frequent perusals of the act creating the corporation, the strong impression on my mind is that the bank may, for debts due to itself, take securities of any form or denomination recognized by law, particularly bonds, bills or notes. Act of Assembly 1804, secs. 5, 7, 11, 12. Whether the bank can take all or any of these securities for debts not due to (206) itself, but merely as a trustee, is a question on which I have not formed an opinion, nor should I willingly pronounce it if I had, until the pleadings shall be amended.