BANK OF KENTUCKY V. WISTER, 27 U. S. 318 (1829)

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U.S. Supreme Court

Bank of Kentucky v. Wister, 27 U.S. 2 Pet. 318 318 (1829)

Bank of Kentucky v. Wister

27 U.S. (2 Pet.) 318


In an action for money had and received for the recovery of the amount of a deposit made in the Bank of the Commonwealth of Kentucky, acting under an act of incorporation passed by the legislature of that state, the defendant pleaded to the jurisdiction on the ground that the State of Kentucky alone was the proprietor of the stock of the bank, for which reason it was insisted that the suit was virtually against a sovereign state.

The Court is of opinion that the question is no longer open here. The case of United States Bank v. Planters Bank of Georgia, 9 Wheat. 904, was a much stronger case for the plaintiffs in error than the present, for there the State of Georgia was not only a proprietor, but a corporator. Here the state is not a corporator, since by the terms of the act incorporating this bank, "the president and directors" alone constitute the body corporate, the metaphysical person liable to suit. Hence, by the law of the state itself, it is excluded from the character of a party in the sense of this law when speaking of a corporation.

It may be added to the reasons which influenced the Court in its opinion in the case of Bank of the United States v. Planters Bank of Georgia that if a state did exercise the powers in and over a bank or impart to it its sovereign attributes, it would be hardly possible to distinguish the issue of the paper of such a bank from a direct issue of bills of credit, which violation of the Constitution no doubt the state here intended to avoid.

The act of incorporating the Bank of the Commonwealth of Kentucky contains a provision by which it is enacted that the bank shall receive money on deposit without being required to give an obligation under seal to repay it. This enactment must be construed with regard to the practice of banking and the general understanding of mankind, and must create a liability to the depositor by the simple act of depositing -- that is, an assumpsit in law implied from an act in pais.

Upon the deposit's being made in the Bank of the Commonwealth of Kentucky, the cashier gave under his hand a certificate that there had been "deposited to the credit of the plaintiffs below, $7,730.81, which is subject to their order on presentation of this certificate." The deposit was made in the notes of the bank, and when the same were deposited and when demand of payment was made, the notes were passing at one-half their nominal value. When the certificate was presented to the bank, the cashier offered to pay the amount in the notes of the bank, but they refused to receive payment in anything but gold or silver.

The language of the certificate is expressive of a general, not a specific, deposit, and the act of incorporation is express that the bank shall pay and redeem its bills in gold or silver. The transaction, then, was equivalent to receiving and depositing the gold or silver; if the bank did not so understand it, it might have refused to receive it, and the plaintiffs would certainly have recovered the gold and silver to the amount upon the face of the bills. chanrobles.com-red

Page 27 U. S. 319

The bank having offered to pay the amount of the certificate in its bills, it put its own construction on the same, and it cannot afterwards say that the plaintiffs below should have accompanied the certificate with a check.

The bills of the bank were payable to an individual or bearer, and in the action upon the bills there was no averment of the citizenship of the person to whom the bills are payable, and they might therefore have been payable in the first instance to a party not competent to sue in the courts of the United States. This Court has uniformly held that a note payable to bearer is payable to anybody, and is not affected by the disabilities of the nominal payee.

On 31 October, 1824, the agent of the defendants in error, John T. Drake, deposited in the Bank of the Commonwealth of Kentucky, in the notes of that bank, the sum of $7,730.81, and received from the cashier the following memorandum in writing, usually denominated a certificate of deposit.

"Frankford, 31 October, 1824 -- John T. Drake this day deposited to the credit of John Wister, John M. Price, and Charles J. Wister, $7,730.81, which is subject to their order upon presentation of this certificate. Signed, C. G. Waggoner, cashier -- $7,730.81."

On 6 November, 1824, Mr. Drake presented the certificate to the bank and demanded payment of the sum mentioned in it in gold or silver, which was refused by the cashier, who at the same time offered the amount in notes on the bank, which were rejected by Mr. Drake. At the time the deposit was made, the notes of the bank were of the value of and current in the country at half their nominal amount.

The payment of the amount of the deposit in gold or silver having been thus refused, Wister, Price & Wister brought their action in the Circuit Court of the United States for the District of Kentucky. The declaration contained two counts, the first for money had and received, the second a special count upon the certificate of deposit.

At November term, 1826, the defendants appeared by attorney, and afterwards filed a plea to the jurisdiction of the court under the corporate seal of the bank. The plea states

"That the court ought not to have or take cognizance of this

Page 27 U. S. 320

action, because the defendant is a body corporate and politic, created and established by an act of assembly of the Commonwealth of Kentucky and constituted by the name and style of 'The President and Directors of the Bank of the Commonwealth of Kentucky,' and that the whole capital stock of the said corporation is exclusively and solely the property of the Commonwealth of Kentucky, and that the State of Kentucky, in her political sovereign capacity, as a state, is the sole, exclusive, and only member of the said corporation."

To this plea the plaintiffs below demurred, and the circuit court having sustained the same, the defendants were ordered to answer over.

Upon the trial of the cause, the plaintiffs proved the facts as stated, and the defendants moved the court to instruct the jury that the plaintiffs had not made out a good cause of action, and that the plaintiffs were not entitled to the nominal amount of the deposit, but to the value of the notes at the time of the demand.

The court overruled these motions and instructed the jury that the plaintiffs were entitled to the full sum as expressed in the certificate, with interest thereon, from the date of the demand in lawful money of the United States. The defendants excepted to the opinion of the court upon all the matters submitted to it, and the case came before this Court upon the bill of exceptions. The facts of the case were not controverted.

For the plaintiffs in error, Mr. Nicholas maintained,

1. That the circuit court had no jurisdiction over the cause.

2. The declaration was insufficient.

3. The court erred in the instructions given to the jury.

He argued that upon the decisions of this Court the jurisdiction could not exist in the case. The courts of the United States take jurisdiction 1st, according to the subject matter; 2d, the character of the parties; 3d, in cases arising under treaties, &c.

In this case, the jurisdiction cannot be assumed, as those principles upon which the courts of the United States chanrobles.com-red

Page 27 U. S. 321

would have jurisdiction from the character of the parties, forbid the same. This Court will look behind the act of incorporation to ascertain who are the corporators, and if they find they are not such parties as can sue or be sued in the circuit court, they will refuse to acknowledge that the court could exercise jurisdiction. Cited, Bank of the United States v. Planters Bank of Georgia, 9 Wheat. 904.

In this case, the State of Kentucky is the only stockholder of the bank, and this appearing, the state is the party, and cannot be sued. It is a sole corporation, using the money of the state, and by its obligations binding the state. The interests of the state are alone involved in the suit, and the judgment of the court will operate upon the state directly.

2. The declaration is insufficient, because, as the real party defendant is the State of Kentucky, this action should have been so brought and can only be so sustained.

This Court has decided that a corporation can bind itself by a provision, without seal. In other states of the Union, the same principle has been acknowledged, but it is otherwise in Kentucky. In the supreme court of that state it has been adjudged that unless this obligation or promise of a corporation is under seal, it is not binding. 1 Marshall's Kentucky Reports 1. This has now become a part of the municipal law of the state, and it will be regarded in this Court in cases where the decision applies. The certificate of deposit given by the bank was not, therefore, legal evidence of the promise.

3. In this Court it has been held that bank notes are not money, and this action, which is for money had and received, cannot be sustained, as the notes of the bank only were received.

It may also be urged that as the notes are payable to J. T. Pendleton or bearer, there should have been an averment that he was a citizen of Kentucky. The action cannot be supported unless the citizenship was stated, this Court not having jurisdiction unless J. T. Pendleton was a citizen of Kentucky and averred so to be in the pleadings. chanrobles.com-red

Page 27 U. S. 323


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