Gillett v. Campbell

1 Denio 520

• Court: Court for the Trial of Impeachments and Correction of Errors
• Decided: October 15, 1845
• Status: Published

Opinion

By the Court, Bronson, Ch. J.

Assuming -the mortgage to have been duly assigned, the defendant fully made out his case. It was enough for him to show that the bank took the note on account of a debt which it did not own, but which belonged to another. It was for the plaintiff to show, if he could, that the amount of the note had been applied on the mortgagS debt. Until that was done,-and as the proof stood, there was no consideration for the note. Indeed, the taking of the note after having parted with the mortgage, unless the mattes can be explained, was nothing less than a downright fiaud upon the defendant.

The want of a seal was not mentioned on the trial; and lor aught we can see the objection taken here may spring cut of a casual omission to affix the sign for a seal in copying- the assignment into the bill of exceptions. But if in truth there was no seal to this assignment, the defendant, had the objection been taken on the trial, might have produced another—a sealed assignment. A party cannot succeed here upon an objection which might have been obviated if made at the proper time. And finally, the-instrument without a seal, though not sufficient to convey a fee in lands, was a good assignment of the mortgage debt. (Runyan v. Mersereau, 11 John. R. 534.) Corporations,- like individuals, may appoint agents, and make most of the contracts which fall within the scope of their general powers, without the use of a seal. The rule was once otherwise ; but that day has gone by.

The assignment was made for the legitimate purpose of securing a debt which the St. Lawrence Bank owed to the Canal Bank of Albany. It was an act within the powers of the corporation, and not out of the usual course of business. By' the charter of this class of banks the president and cashier are to sign all contracts made by the association. (Stat. 1838, p. 250, § 21.) The authority of those officers to sign is not delegated by the corporation. It is conferred by the statute. Of course it could not be necessary to show any by-law or resolution of the corporation conferring the power. And although the statute does not provide that the president and cashier shall make contracts, yet having directed that they shall sign the contrácts of the association, their official signatures furnish presumptive, if not conclusive evidence, that the contract was made by the'association. This is as clearly so in relation to a lawful assignment, as it is in relation to the circulating notes which the bank is authorized to issue.

A.single question remains. The statute “to prevent thé insolvency of monied corporations” provides, that “no conveyance, assignment or transfer not authorized by a previous resolution of its board of directors, shall be made by any such corporation of any of its real estate, or of any of its effects, exceeding the value.of one thousand dollars.” (1 R. S. 591, § 8.) Although the St. Lawrence Bank is a “ monied corporation,” the charter does not provide for a “ board of directors,” nor for any other hoard or description óf officers who are to have the direction or management of the affairs of the corporation. (See 1 R. S. 599, § 53.) The president and cashier- are to sign contracts. (Charter, § 21.) But as to every thing else, the business is to be conducted by such officers and agents as the association may choose to appoint. (§ 18.) The whole power may be vested in a single officer or agent, if such be the will of the corporation. Now although this association may have voluntarily committed the management of its affairs to a board of directors, I am of opinion that the statute in question does not apply. It only extends to such monied corporations as are by their charters subject to the management of a board of directors, trustees, or other officers. (See Matter of The Bank of Dansville, 6 Hill, 370.)

We think the case was properly disposed of at the circuit.

New trial denied,