Nashville union and American. [volume] (Nashville, Tenn.) 1868-1875, 1869-12-24

listing demand, by prospective statute of
limitations, or partly prospective-prO
vided a reasonable part of the whole time
allowed, is yet to run. But the condition
of a statute of Limitation is, that the cred
itor fails to present his cause of action TO
a competent Court. The condition of
this statute is, not that he fails to present
it to competent Court, but that he failed
to present it to the Trustee, substituting
the Trustee in this respect, for the Court,
and giving the same effect to his failure
to present it to the Trustee, as is given
under the statute of limitations, for the
failure to present..it to Court Can the Le-
gislature do this-can it coerce the credi-
tor to know the Trustee or have any rela-
ton to him-on the penalty of losing his
claim9 The theory of all statutes of lin
itation is, that the State is not bound to
keep open its Courts for all time, iii order
that creditors may sue, and therefore, have
the right to close them after the lapse OF
certain time, against the claim of negli-
gent creditor The theory of this statute
is, that the Legislature has the right to
say, that Trustees, or Assignees, of insol-
vent banks, shall not be open to suit after
a certain time, and upon conditions, having
ne referenceto their creditors failure to
sue. Has the Legislature Alright to bar
an existing demand, save by giving the
creditor an opportunity to sue in Court!
Is this the first, last and only condition
upon which he can be barred! Can they
hinge his right upon any other condition,
and call it statute of limitation. Az
statutes of limitation of which | know
anything, refer the creditor to the Court.
This statute refers him to the Trustee.
The former says if you do not take steps
in Court, you shall be barred-this says If
you do not take certain steps before the
Trustee, you shall be barred. This
statute ignores the Bank and the Courts
and relates to the Trustee. 1t may be said
that the statute does not affect to deprive the
creditor of any right that he may have
had, to commence suit in court against the
bank. That it recognizes this right, and
while recognizing this, TO its fullest ex-
tent, simply requires him, in addition to
this, to make demand of the Trustee,
within two years, or be forever barred.
This is certainly ClOgging the remedy
with an additional prerequisite to a re-
covery. Suppose, in this case, there had
been no injunction granted by the Court,
enioining creditors from proceeding
against the bank, in any other court than
this, and a creditor had commenced his
suit against the Bank in the Circuit Court,
and refused to present his notes to the
Trustee, or otherwise recognise him, for
the two wears. can it be said that such a
creditor, would be barred, and if 50, on
what principle? Ii cannot be said that a
suit against the bank, is a presentation OF
the notes to the Trustee, withinthe statute.
But it may he said, the case supposed is
not the case, that in this case an inJunc-
ton was obtained, and creditors compelled
to file claims here, and to have sued here
would have been demand of the Trustee,
but certainly theacCident that aninjunction
had been obtained cannot determine the
constitutionality of the act. 1t must
stand or fall by its own terms, and, besides,
this statute has no relation to proceedings
in the Chancery Court, to wind up insolv-
ent banks. 1t is an effort to wind up the
| bank, independently IF the courts, and,
alone by the Trustee, appointed by the
uGGi, VI dpllOlubNu " a NDNA'J ''Ai'oA
| Trustee the County or Circuit Court, (Sce
Code sec. 1877 and l9SO) could as well
| have appointed as thiscourt This statute
| could never have been intended to aid the
court in the execution of trusts or assign
ments. It's powers were full and complete,
without the aid of statutes. The ClrCum-
stance that this statute found the case
in a court of equity, at the time of its
passage, and being administered according
| TO the course of such cOurts-with It's in
| Injunction operating upon the creditors OF
| the bank, cannot be brought to aid and
cure any constitutional defects inherent in
the statute itself. This circumstance does
| give a coloring in Impractical application
| of the statute, which apparently relieves
it of some of its most obnoxious features.
This statute, disrobed of the proceedings
which surround it in its application to
this case, and which proceedings enyeloT
it and hide from sight its real character, is
simply this: Banks make assignments OF
all their assets to trustees; the trustee
named failing to comply with the require
ments of giving bond, etc, the court may
appoint another
| It OIlHllldl II u5ttG iidFilif7 NNAhl llNNa1 "
the substituted trustee having given bond
each may act independent of any court
Now, the Legislature says TO all person
having claims against the bank, You mus
present your claims TO such trustee within
! such time as the trustee may specify
provided, the time so specified be not les
than two years, or you shall be fOreye
barred Now, this is more than the Legis
lature has ever said to claimants OF tn
estates Of deceased persons, whether sol
vent or insolvent The limitation law
applicable to these, like the general limita
ton laws, refer the creditors to the court
? and not to the personal representatives
, | A law limiting the time within which dc
: mands may be brought against banks, so
t ! vent or insolvent, or their trustees or as
signees, provided it allows a reasOnabl
| time so to do, not only believe not to b
t unconstitutional, but important and nece!
sary: and the Legislature should fix tn
1 time within which the Sut should !
: commenced. But the limitation shOul
S relate to, and be based upon, suit in
r court, not because of failure to do sOmt
thing else; otherwise the Legislature ma
Y compel every creditor, in addition to con
C mencing a suit in court, TO perform SON
: other super-added requirement. BefOl
p A. could sue B., it could require him
] present his note TO B. a specified numb,
c of times, OF to B. S assignees, or son
S third party, occupying some or no rel;
r ton to B. or the debt. This would |
t practically abolisbing the judicial depar
c ment, or if persons sought its aid, cram
their rights of recovery, by the doing {
8 performing something else under the pei
v atty of complete and entire loss of the d
/ mand 'Tis true the act does not sa,
b You shall forfeit your demand if you SUI
y but it says, in effect, that, having suec
!, you shall withdraw your suit, and presel
!, its subiect-matteT TO the trustee,
it your recovery shall amount to NJ
It thing; or, if you have not sued, yO
i shall so present your demand and surrel
k der its evidence, or be forever barret
T This act wears the appearance, to II
e mind, of establishing, outside of Il
l. courts. means whereby man may To-
his property and the benefit of his CO.
C tracts. 1t may be said that the Legisl
V ture might have enacted, that, if the ere
Ie itor failed to present his demand to son
n competent court Gnstead of TrUSte
s within two years, be should be barre
l. and then the act would have avoided d
e obiection.I have been urging against
a and been merely an act of limitation, al
10 that it is small difference, whether q
), act requires q suit in court or a present
le ton and surrender of the claims to Il
ii Trustee, and that in the one case, the co
Ut dition of the bar is: Failure to sue; in q
n other, the condition is: Failure to prese
Re the claims to the Trustee, and that
es slight a difference could not cons
le duentially effect so much. The create
ct of judicial department by our cOnstit
&c ton, and granting to it judicial powers,
E. an erclusjuG grant, covering the 1ChC
he power, and the Legislature must rega
to this power, in all legislation relative