Richmond dispatch. [volume] (Richmond, Va.) 1884-1903, 1896-07-10
SUPREME COURT OF APPEALS.
A Number of Opinions Handed Down
Yesterday.

IVYTHEVILLE. VA. July 9.-(Special)
Tho following opinions were handed
down in the Supreme Court Of Appeals
to-day:
Nickels and others VS.. the Peoples
Building. Loan. and Savings Association.
Opinion by Judge Keith. From the Cir
cult Court Of Wise county. Affirmed.
The Peoples Building. Loan, and Savings
Association Is a New York corporation
doing business in Virginia. Nickels sub
fcrlbod TO thirty shares Of its stock, and
received $2O0. He executed his bond
secured By deed Of trust for 5000, thus
paying a bonus OF 500 He contracted
in addition 60 pay dues, fines. and
premiums and interest monthly. Upon
default for three months I'm these pay
ments the whole debt. pr 1cipal and in
terest, became due. Default being made.
the trustee refused 10 execute the trust.
thereupon the corporation fled its bill
Defendant demurred. First upon the
ground that plaintiff had not averred
compliance with the conditions imposed
10y statute upon foreign corporations
doing business In this STATE. Secondly,
that the provision In the bond and deed
making the whole debt due upon failure
10 pay instruments Of premiums and in
l"fftI was lNilfANAlt AEdBlhN NHANA
equity would relieve. Third. that the suit
was prematurely brought, the default
not having continued for three months
next preceding its institution. Fourth,
that upon the merits II appears that It
was a Nirginian contract and usuriOus
according 10 the laws OF this State.
Held by the court: First the dernur-
rer was Mt well taken 1t is unnecessary
10 aver IN the bin compliance with the
statutes prescribing the conditions upon
which a corporation may do business In
the State. 1t is a matter Of defence and
must be averred and pleaded by the
defendant No such issue being raised
in the pleadings I'm this case, the question
cannot be considered. Second, the pro-
vision I'm the bond by which the whole
principal became due u not a forfeiture
according TO the modern doctrine Of Il
court OF equity. 1t Is settled by over
whclming weight Of authority that If
certain sum is due and secured 10y bond
and mortgage. made payable at some
future day specified. with interest thereon
payable at fixed times, and a further
stipulation provides that in case of de-
fault of prompt payments of instruments
Of interest the entire principal Will at
once become payable. such stipulation
is not I'M the nature Of a penalty. but will
he sustained IN equity as well as at law.
Third. tho motion to dismiss as being
prematurcly brought was properly over
ruled. 30 appearing that default had con-
tInued for more than three months.
Fourth upon the merits II is held that
the transaction grew out Of contract
made in Virginia but TO be performed
IN New York. and therefore governed by
the laws of the latter State. Where
contract Is made or entered into in one
-r.I I,. I.V fc
as a general rule. 20 be governed by the
laws Of the place Of performance. without
regard TO the place al which II was
written. signed. or dated. In respect 10
fts nature Interpretation, validity. and
eject by the laws Of the State Of New
York the contract I'm question. though 1t
authorizes the association to receive
premiums. dues. and fines in excess of
the lawful rate OF interest Is not
usurious While, therefore, the court Is
Of opinion that such contracts are unwise
and improvident. yet so long as foreign
corporations are authorized by the States
which create them 20 make such contracts
and are permitted by this state TO do
business within its borders. the courts
have no choice but 10 enforce them.
Bethel & 60. Us. Salem Improvement
Company Opinion by Judge Keith.
From the Circuit Court OF Roanoke
county Affirmed.
Coldlron ct ais VS.. Asheville Shoe
Company. Opinion by Judge Rely.
From tho Circuit Court Of Lee county
Reversed
A RAILROAD CASE
Russell VS.. the Louisville and Nashville
Railroad Company. opinion by Judge
Cardwell From the Circuit Court OF Ice
county. Reversed Tneplaintim brought his
Ictl0n on the case 10 recover of the de-
PENDANT railroad company penalty, by
virtue OF section 1872 OF tho Code. and the
failure ~ the defendant to comply win
the provisions Of that section for 10
days relative TO two cattle-suards that
plainud required should be constructed
by tho defendant al certain designated
points within plaintiffs enclosed land.
The defendant dcmurred TO plaintiffs de-
Claratlon. and the court below by its
ruling, In excluding certain testimony, In
erect sustained the demurrer, on the
ground that section 1872 does not apply
70 private crossings.
He'd: That 10 was an error In the lower
court % exclude the evidence referred
30. and IN cffcct 20 sustain the demurrer
Tor the reasons stated. that the demurrer
should have been sustained solidly upon
the ground that the plaintiff had brought
wrong action; that an action on the
cause does not lie for the recovery Of a
penalty prescribed by statute no part OF
which accrues 10 the Commonwealth, but
that the common law action q debt Is
the proper action 10 recover such a penal
~
OTHER CASES.
Porsinger's Administrators VS. Chapman.
Opinion by Judge Cardwell From the
Circuit Court OF Roanoke county. Re
Vcrscd
Simmons VS. Palmer. From the Cir
cult Court OF Roanoke. Opinion by Judge
Keith Affirmed
Sl0cumb vs. Compton. From the Cir
cult Court OF Buchanan county. Opinion
hy Judge buchanan. Affirmed.
Flynn 81 ais. vs. Jackson Brothers.
FROM the Circuit Court Of Roanoke coun-
~. Opinion by Judge buchanan. Re-
ycrsed.
White 81 ais. W. Powell Investment |
company. From the Hastings Court |