Malone v. Stewart and wife. apply the spirit of the law to embrace every case properly fall- IN BANK. ing within it. It is precisely that sort of charge calculated to do infinite mischief, and of that vague and indefinite kind which can neither be met nor answered. The case falls clearly within the oldest and soundest principles of the law, when properly understood and rightly applied. It is admitted that, if words are spoken to injure a man, to the value of a few dollars and cents, in his trade, it is actionable; but contended that, to speak words of a young girl, which necessarily inflicts the deepest wound upon her feelings-breaks up her hopes, and excludes her from society, is not actionable. Such a conclusion cannot be tolerated. This Court, in protecting reputation—a remedy for an injury which is guarantied by the Constitution will be careful that the judicial decisions of the land shall reflect that same delicate and profound respect for female character and feeling, which constitutes the proudest and dearest characteristic of our people. We hold it a sound principle of law, that words spoken of a female, which have a tendency to wound her feelings, bring her into contempt, and prevent her from occupying such position in society as is her right, as a woman, are actionable in themselves. Judgment reversed, and remanded for further proceedings. Dec. Term, 1846. IN BANK Dec. Term, 1846. The Receivers of the Bank of Circleville v. Renick and others. THE RECEIVERS OF THE BANK OF CIRCLEVILLE VS. In the absence of express legislative provision, the forfeiture of the charter of a corporation can only be established by judicial action, and cannot be inquired into collaterally. The Bank of Circleville having done all the law required, previous to the appointment of a Commissioner. by the Governor to examine its vaults, which the Governor neglected to do, a person who has done business with it as a Bank, and admitted its existence by the receipt of its funds, cannot, in a suit against himself, by the Receivers of the Bank, question the legality of its organization. THIS is a case in CHANCERY, reserved in the County of PICKAWAY. The complainants have filed an original, amended and supplemental bill, in which divers matters of equity are set forth, but are admitted by the complainants' counsel to be unsustained by the proof, with the exception of the following allegations: That in May, 1841, Seymour G. Renick caused to be delivered $4,000 of the notes of the Circleville bank to Robert Larimore, who is made a defendant, to be exchanged for other funds, and returned to the bank, in order to aid in the extension of its circulation - Renick, at the time of the delivery, being the President of the institution. It is averred that Larimore converted a part of this $4,000 to his own use, and that, in the autumn of 1841, Renick, the President, having become insolvent, transferred the claim of the bank against Larimore, as his own personal claim, to his brother, Felix W. Renick, who brought suit upon it in his brother's name, for his, Felix's use, and recovered a judgment thereon for the balance due, some sixteen or seventeen hundred dollars. The object of this proceeding, on the equity side of the Court, is, to enjoin Felix W. Renick from the collection of the judgment for his own use, in the name of his brother, and to compel Larimore to pay the The Receivers of the Bank of Circleville v. Renick and others. amount over to the Receivers of the bank, for distribution IN BANK. amongst its creditors. Seymour G. Renick, in his answer, admits that he was the President of the bank, at the time stated in the bill, but swears that the $4,000 advanced, was by way of loan to Larimore, and that, in the advance of the money, he did not act in the capacity of an agent for the bank; that it was a personal matter between him and Larimore, who was to refund the amount to the respondent, to be used by him, to pay a bill due, or soon to become due, in the other Bank of Circleville. That the $4,000 was drawn out of the bank on the check of this respondent, and charged to his account, which showed a balance in his favor, at the time of the date of the check, on the books of the bank, after the check should be paid. Felix W. Renick, for his defence, sets up, in his answer, that he is informed, and believes, that said pretended bank never went legally into operation, and that the charter and privileges, thereby granted, ceased and were of no effect, for want of compliance with the provisions of the third and fourth sections of the act of incorporation. Both of the respondents admit the assignment of the claim, and state the consideration of such assignment was liabilities incurred by Felix W. for his brother; but Felix denies any knowledge of the claim of the bank to the amount of the judgment. Replications have been filed, and testimony taken. Only so much of the arguments of counsel is published as relates to the question of the legal existence of the bank. T. Ewing, for Complainant. The answer of Felix W. Renick, sets up by way of defence, "that he is informed, and believes, that said pretended bank ' never went legally into operation; that the charter and privileges ceased, determined, and were of no effect, for want of compliance with the provisions of the third and fourth sec'tions of the charter of said bank ;" and Seymour G. Renick, Dec. Term, 1816. Dec. Term, 1346. The Receivers of the Bank of Circleville v. Renick and others. IN BANK. the President of this same bank, who " purchased and took hold of it" in February, 1841, testifies thus: "I know the • Bank of Circleville, chartered in 1818, did not go into operation till the opening of 1840, nor attempt to do business until that time. That about that time said bank commenced issu'ing bills and notes. The Governor of Ohio never did appoint 'any person to examine the books and vaults of said bank, to ascertain whether they had complied with the provisions of the fourth section of the bank; and the Governor never did 'give public notice that said bank had complied with the provisions of the fourth section of the charter of said bank." This defence is set up under circumstances somewhat striking and remarkable. The president, and principal owner of the bank, who personally knew all about each secret defect in its organization, has taken a portion of its funds and handed them over to a brother, his private creditor, and he himself has become insolvent, so that no creditor of the bank can have any personal security against him; and now, when those creditors, who knew nothing of the defects in the organization of the bank, but who received its bills in good faith, do, through the trustees appointed by law to represent their interests, bring suit to recover this money, and apply it to the satisfaction of their claims, this defect in organization is disclosed, and set up as defence by this President and owner of the bank, and his creditor, who has through him received its funds, is, or is not, as the law may determine, to save and indemnify them in the plunder and spoliation. It could not be the intent of the law to countenance such injustice; and I will endeavor to show that, rightly understood, the law does not do it. That we may know where the burden of the controversy lies, it is important to understand exactly what is admitted, and what is denied by the pleadings; and to this point: The answer of Felix W. Renick admits the charter; it admits, by clear implication, that the complainants had possession of that charter, and acquired rights under it, but avers that the charter, and privileges thereby given, ceased, determined, and The Receivers of the Bank of Circleville v. Renick and others were of no effect, for want of compliance with the provisions IN BANK. of the third and fourth sections of the charter of said bank. Now, compliance with the provisions of the third section is abundantly proved. We show, by the statement of Edson B. Olds and P. N. White, that the three thousand shares were subscribed, and fifteen per cent. thereon paid in, and in the vaults of the bank, in gold and silver, and they commenced the operations of the bank as far as permitted by the third section of the act. This is not denied, but it is alledged that they went further, and issued bills without the money having been counted by commissioners appointed by the Governor, and his consequent proclamation. Nay, further, the fact is, and so admitted, that they gave notice to the Governor of their compliance, and asked for commissioners, who were never appointed. The bank, therefore, had complied, as far as action on its part could go, with the provisions of the third and fourth sections, and it was the Governor only, who had failed to comply with his duty. This is upon the face of the matter. Whether there was any thing of it whatever, in good faith, is extremely doubtful; but those who set up the bank, and those who managed it, and those who have received its funds from the owners and managers, cannot be permitted to aver that acts, fair on their face, were fraudulent, to the end that they may extend and consummate the fraud. Then, after the three thousand shares were subscribed, and the $23,000 in gold and silver were paid in, these corporators had possession of the charter of the bank; they are authorized, by the express terms of the charter, to "forthwith commence the operation of said bank, so far as may be necessary, in the ' appointment of officers," &c. ; but if they commence issuing bills, without having first complied with the provisions of the fourth section, they forfeit the charter. That compliance, so far as their action is concerned, consists in giving notice to the Governor, and that notice was in fact given. But the spirit and intent of the law was, that they should issue no bills until the Governor made his proclamation. This is admitted. And it is further said, that the charter became Déc. Term, 1846. |