Vermont watchman and State journal. [volume] (Montpelier, Vt.) 1836-1883, 1848-06-08

the Bank of the United States tie property OF
the Office at Burlington, as il pds upon NE "a
dan Of March, 1885," for the sum of Sl4l,771 81,
on an estimate made separately OF the real es-
tate the good notes and demands, and the de.
mands forming what was called the suspended
debt. The proposition was accepted on The l5lh OF
the same month; and on the LIST of April the
contract was carried into execution, by the de-
PENDANTS executing four promissory notes for the
SUN of S35 500 each, payable in one, two, three
and four years, and by their taking a convey
ance and delivery of all the property except Ger
tain bills or notes which had been paid into the
Office before the sale wps consummated. in
consequence of some Of the bills or notes hay
ing been so paid, and to make up an even a.
mount, the sum Of $1,000 was paid in cash to
the defendants, so as 10 make the exact sum OF
$4,000, the amount of the four notes. me
other facts in the case, as well as the questions
reserved, will sufficiently appear from the fol-
lowing opinion, which was delivered after pre-
sen,ing and reading brief statement or synop-
sis transmitted by Judge Nelson OF his opinion,
he not being able to be present.
PRENTtss, 1.-THE declaration in this case
contains two counts, one for money had and re-
celved, and the other on an account stated. In
support Of the counts two promssory notes were
given in evidence, with several accounts Cur
rent, letters of correspondence, and other docu-
mcns and testimony Out OF the evidence 50
given, various questions have arisen, some IN
voying the odnissibllity, and others the effect
or suffcency of the evidence. The questions
possess different degrees of Importance, both
intriEsically and in their bearing upon the
case and shall notice them in such order and
manner, as will enable me to dispose of them
with as much brevity a1d as little repetition
as practicable, entering no further into the
iac;s than may be necessary to present, fully
and intelligby, the grounds of decision upon
each particular point.
| !. The plaintiffs were incorporated MS bank
| ing company by the name of the Bank OF the
United States, by an act OF the State OF Pennsyl-
vania passed Feb. 18th, 80 The contract which
is the origin or foundation Of the principal claim
in question, was made sometime after the 10Th OF
March, and carried into execution the list OF A
prl, of the same year. The precise day oil the
organization of the plaintiffs as a banking com.
pany not being shewn; it is objected that it does
not appear that they were organized, and compc-
tent to act as a corporate body, at the time the
contract was made. To this, it seems to me, an
answer was given by the counsel for the plain
tlls, which is quite sufficient. The act Of in.
corporation having provided, that notice of the
organization should be given on or before the
3D. of March then next ensuing, and the Bank
being found in operation afterwards under the
act, it is to be presumed that it was organized
as carly the time prescribed, which was OF
course before the making of the contract.
2. 1t appears that the Bank of the United
States Incorporated many years before by an act
of Congress, although it ceased to have any
power to carry on banking operations after the
3D. of March, 36, continued in existence two
years thereafter for the purpose of suits for the
final settlement Of its affairs, and for the sale and
disposition of its estate and effects. AS that
company established the Branch at Burlington,
and was in existence at the time the contract
Tor the purchase OF the property of the Branch
was entered into, it is insisted that it must be
taken, in the absence of direct proof showing il
TO be otherwise of which it is said there is none
that the contract was made with that company
and consequently, that the plaintiffs, as 10 one
and aiuch the most considerable Of the claims
IN question, are mere strangers for any thing that
appears, without ri ght or interest.
, But it is 20 be observed, that the company es
tablshed by the act Of Pennsylvania, was estab-
shed in anticipation of the dissolution, so far as
banking powers were concerned, of the conpa
A ny established by the act of Congrcss-the new
' company, having, with one exception, the same
stockholders and capital, the same name anC
style, and the ZANE capacity, So far as a state in
/ sttution could have the capacity of Il nationa
n institution. Ii was the substitution of new
charter under the state government in place o
: the old charter under the general government
so that the banking operations, which woult
= cease under the one, might be continued, with
E out intermssion or interruption, under The new
: powers given by the other. Accordingly, thC
s -new company, as we have seen, was to come
n and did come into existence, an organzeC
n corporate body, before or simultaneously witt
. the termination of the banking powers and ope
+ rations of the old company; and all the estate
r and effects OF the old company were transferred
to the new. The particular time OF the transfer
i. it is true, does not appear. But 1t is obvious
: that it would naturally follow the organization
D.. Immediately in order to fulfil the purpose il
C view; and one of the witnesses states expressly
g that it included the estate and effects sold TIT
s defendants. This, therefore, connected with tn,
bringing Of the action and possession of the writ
n ten evidences of the debt by the plaintiffs, i
sufficient and very decisive evidence that tn
n contract was in fact made with the new compa
J. ny.
J. 3. To establish several material facts in tn
If case, various letters, acts and admissions
d Peck, one of the defendants were given in evl
l. dence. This evidence, it is said, was inudmis
? sible, at least so far as it concerns any OF tn
n defendants but Peck himself. The obiectio
q. 10 it rests upon the ground, that though the de
It PENDANTS were joint purchasers of the property
IS and gave their joint notes for the prce, the
,r were not partners, at least in such u sense as
j. make the acts and admissions of one evidenc
r against the Others. Admitting that the defenL
Of ants are 10 be regarded, not as partners properl
le and strictly speaking but only as Joint contract
Of ors or promlsso,s, still the evidence to some pu
I'd poses was undoubtedly admissible. 1t is a fl
p Wlliar rule OF law, that the Acknowledgement ,
one OF several joint debtors, either by word {
n. act, Is evidence to take the debt ont of th
statute Of limitations as to all. Thus paymel
/ by one, says Lord Mansfield in Whico,nb v
" Hhit'ng, 3 Doug. 652, is payment for all, III
- one acting, virtually, as agent for the rest; an
in the same manner, he adds, an admission {
~ one is an admission by all. This principl
however, does not extend to the creation Of
new substantive obligation, or new additions
= liability; nor to any thing which is necessary
to be done by the party claiming to perfe
or give effect 10 u conditional or imperfect obi
CATION or liability such, for instance, as d.
mand Of payment and notice of non payment,
promisssry note indorsed by several Joint payee
There the admission Of one Of the indorsers G
Their as to the demand or notice, is probably no ey
dence against the other, especially so as notice
necessary to each. But payment by one on no
in pursuance Of an existing Joint liability, or an
mission by one that the note is unpaid, or that
particular balance is due upon it, whether
stating an account or otherwise, Is good eI
dence against all in en- action for the mon,
due upon the note That neither creates n ne
MI tla, ~