Hall vs. Carey.

No. 25.-HENRY T. HALL, et al. plaintiffs in error, es. EDWARD CAREY, assignee, defendant.

[1.] An exception to a declaration taken by way of demurrer at the trial term of the Court, which would not be good in arrest of judgment, will be overruled under the provisions of the 14th Common Law rule of practice. [2.] The Act of 1840 which provides for the appointment of a receiver to take charge of the assets of the Banks where the charters thereof may be declared forfeited by judicial proceedings, and the several Acts amendatory thereof, do not impair the rights of the debtors to the Bank. The Statute being remedial in its character, is not unconstitutional.

[3.] The books of a corporation are admissible in evidence for the purpose of showing the regularity and legality of the proceedings of the corporation; but not to establish a right in its favor against third persons.

[4.] Persons acting publicly as the officers of a corporation, will be presumed rightfully in office, so far as it regards third persons; and their official acts will be binding on the corporation to the extent of the rights of such third persons. [5.] In a suit upon a negotiable note, the defendant will not be permitted to raise the question of title, unless it is made to appear that it is necessary for the purpose of his defence.

Assumpsit, tried before Judge ALEXANDER, in Muscogee Superior Court, May Term, 1848.

This action was brought by the defendant in error, vs. assignee of the Bank of Columbus, for the use of Seaborn Jones, against the plaintiff in error, upon their promissory notes, amounting together to over $17,000 principal. These notes were made' payable" to the order of A. B. Davis, Cashier." The declaration alleged that they were made and delivered to Davis, and then proceeds to describe them, and alleges that it was meant and intended to make them, (by the expression "A. B. Davis, Cashier,") payable to the Bank of Columbus. It also alleges that the Bank assigned said notes to plaintiff. The defendant pleaded several pleas. The defendant on the trial demurred to the plaintiff's declaration, on the ground that the property in said notes did not appear by the pleadings ever to have been in the Bank of Columbus. The demurrer was overruled, and defendants excepted.

The plaintiff then demurred to the second and third pleas of the defendants. The second plea alleged that the Bank never did assign said notes to plaintiff. The third plea alleged that the Bank had been dissolved by the judgment of the proper Court,

Wynn vs. Lee.

is, it becomes necessary, so to order its exercise as to maintain it equal, or as nearly so as practicable, between the parties. To maintain this equity, in the privilege of argument before the jury, our rules of Court give the opening and the concluding address to the plaintiff in the action, except in cases where the defendant introduces no evidence; then he is entitled to the conclusion. The opening is not merely a privilege to the plaintiff, it is also a privilege to the defendant, that the plaintiff open to him the grounds of law, arising upon the facts and pleadings in the case. If, as in this case, the plaintiff is permitted to waive his right of opening, the opposite party is in the dark, to some extent at least, as to the grounds upon which he will rely. Each party ought to be heard upon those grounds upon which each relies for a recovery. This is certainly equitable. And this is not the case if the party in conclusion is not required to develop the grounds of his reliance. The Court, too, has an interest in the matter. He ought to desire discussion upon the points upon which he is called to decide, if not always, yet very generally. If they are not made until the conclusion, he hears but one side, unless, indeed, he chooses to disturb the regularity of the proceeding, by allowing the other side a reply. We think, therefore, and such is our judgment, that the party who is entitled to the concluding argument in all cases under our rules of Court, should be required to state to his adversary, before he addresses the jury, the grounds in the pleadings upon which he will rely, and the points of law that he will make in the case, and also be required either to read, or present to him the authorities which he expects to use, and farther, that the party in conclusion shall be confined in his argument, to the grounds, points, and authorities thus exhibited.

It is not, however, to be understood that the counsel who is in conclusion, and who is also entitled to open the cause, shall not be at liberty, if he chooses to do so, to argue the case at large in his opening speech.

Hall vs. Carey.

No. 25.-HENRY T. HALL, et al. plaintiffs in error, vs. EDWARD CAREY, assignee, defendant.

[1.] An exception to a declaration taken by way of demurrer at the trial term of the Court, which would not be good in arrest of judgment, will be overruled under the provisions of the 14th Common Law rule of practice. [2.] The Act of 1840 which provides for the appointment of a receiver to take charge of the assets of the Ranks where the charters thereof may be declared forfeited by judicial proceedings, and the several Acts amendatory thereof, do not impair the rights of the debtors to the Bank. The Statute being remediaľ in its character, is not unconstitutional.

[3.] The books of a corporation are admissible in evidence for the purpose of showing the regularity and legality of the proceedings of the corporation; but not to establish a right in its favor against third persons.

[4.] Persons acting publicly as the officers of a corporation, will be presumed rightfully in office, so far as it regards third persons; and their official acts will be binding on the corporation to the extent of the rights of such third persons. [5.] In a suit upon a negotiable note, the defendant will not be permitted to raise the question of title, unless it is made to appear that it is necessary for the purpose of his defence.

Assumpsit, tried before Judge ALEXANDER, in Muscogee Superior Court, May Term, 1848.

This action was brought by the defendant in error, vs. assignee of the Bank of Columbus, for the use of Seaborn Jones, against the plaintiff in error, upon their promissory notes, amounting together to over $17,000 principal. These notes were made payable to the order of A. B. Davis, Cashier." The declaration alleged that they were made and delivered to Davis, and then proceeds to describe them, and alleges that it was meant and intended to make them, (by the expression "A. B. Davis, Cashier,") payable to the Bank of Columbus. It also alleges that the Bank assigned said notes to plaintiff. The defendant pleaded several pleas. The defendant on the trial demurred to the plaintiff's declaration, on the ground that the property in said notes did not appear by the pleadings ever to have been in the Bank of Columbus. The demurrer was overruled, and defendants excepted.

The plaintiff then demurred to the second and third pleas of the defendants. The second plea alleged that the Bank never did assign said notes to plaintiff. The third plea alleged that the Bank had been dissolved by the judgment of the proper Court,

Hall es. Carey.

and at the time it was dissolved, it owed the notes sued on. The Court below sustained the demurrer to the pleas, and they were stricken, and the defendants excepted.

The first plea was the general issue, and the fifth was that the assignment was made to defeat the operation of forfeiture. Issue was taken on these last.

The plaintiff then offered in evidence the notes described, without an assignment; the defendants objected. The Court allowed them to be read, and defendants excepted.

The plaintiff proved a manuscript book to be the minutes of the Bank, and offered to read some portion thereof, in evidence, to-wit, a recital therein that the Board, on June 10th, 1843, met; present, P. T. Schley, Pres.; L. J. Davis, H. Holt, and A. B. Davis; and that it was resolved by said Board that the Bank make an assignment of all its property, and that the President and Arthur B. Davis be instructed to execute it, which deed to be executed was copied on the minute book, and the copy so entered was also offered in evidence. The defendant's objected, and the Court permitted the same to be read, and defendants excepted. The plaintiff proved, that when the resolution to make the deed was adopted, Schley was acting as President, and A. B. Davis as Cashier, and that none but four directors were present, including A. B, Davis, Cashier. Plaintiff proved the loss of the deed of assignment, and offered to read a copy thereof, from the record book of said Superior Court. The defendants objected. The Court permitted it to be read, and defendants excepted.

The plaintiff proved that the deed was executed as the copy purported, and also that the Bank owned the notes when the deed was made. The defendants then proved by Schley that he never purchased any shares in said Bank; that A. B. Davis, or one Smith, transferred to him thirty shares to make him eligible as director, that he never paid for them, and did not know whether he ever had a certificate therefor, and if so, what he did with it. The defendants then read in evidence the judgment of the Superior Court of Muscogee county, dissolving said Bank, dated June 13th, 1843. The deed of assignment to plaintiff, also the resolution of the Bank on its minutes, directing an assignment, were dated June 10th, 1843.

The defendants contended that said deed of assignment was

Hall vs. Carey.

void. The Court charged the jury that its validity could not be inquired into, and the defendants excepted.

Upon which exceptions the following assignment of errors was made:

1. Overruling the demurrer to plaintiff's declaration.

2. Sustaining demurrer to 2d and 3d pleas.

3. Permitting the notes to be read without an assignment. 4. Permitting a portion of the minutes of the Bank to be read. 5. Permitting the copy deed of assignment to be read in evidence.

6. In charging that the validity of said deed could not be impeached.

JOHN SCHLEY and JOHNSON & WILLIAMS, for plaintiffs in error. DOUGHERTY, and JONES, BENNING & JONES, for defendant.

By the Court.-WARNER, J., delivering the opinion.

[1] The first ground of error assigned to the decision of the Court below, is the overruling the demurrer to the plaintiff's declaration.

This objection to the declaration was taken at the trial term, and if good at any time, certainly was not good in arrest of judgIt is contended, that the plaintiff should have alleged, the note was made payable to the Bank of Columbus, and given a correct description of it, inasmuch as Davis, the Cashier, was only the agent of the Bank. By the 14th Common Law rule of practice, all matters appearing on the face of the declaration, or process, that would not be good in arrest of judgment, shall be taken advantage of at the first term of the Court. Hotchkiss, 948. In any event, the declaration would have been amendable, and the objection would not have been good, in arrest of judgment, and was properly overruled by the Court, at the trial term.

[2.] The general ground of error taken, is to the decision of the Court below, in sustaining the demurrer to the defendants' second, and third pleas. The position assumed by the plaintiffs in error is, that by the Common Law, on the dissolution of a cor poration, all the debts due to, and from the corporation, are extinguished; and that when the notes sued on were executed to the bank, the makers contracted, with reference to this contingency,