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U.S. Supreme Court

Commercial bank v. Buckingham's Executors, 46 U.S. 5 How. 317 317 (1847)

Commercial bank v. Buckingham's Executors

46 U.S. (5 How.) 317


To bring a case to this Court from the highest court of a state under the twenty-fifth section of the Judiciary Act, it must appear on the face of the record 1st, that some of the questions stated in that section did arise in the state court, and 2d, that the question was decided in the state court, as required in the section.

It is not enough that the record shows that the plaintiff in error contended and claimed that the judgment of the court impaired the obligation of a contract and violated the provisions of the Constitution of the United States and that this claim was overruled by the court, but it must appear by clear and necessary intendment that the question must have been raised and must have been decided in order to induce the judgment.

Hence where the Legislature of Ohio, in the year 1824, passed a general law relating to banks, and afterwards, in 1829, chartered another bank, and the question before the state court was whether or not some of the provisions of the act of 1824 applied to the bank subsequently chartered, the question was one of construction of the state statutes, and not of their validity.

This Court has no jurisdiction over such a case.

The Reporter finds the following statement of the case prepared by MR. JUSTICE GRIER, and prefixed to the opinion of the Court, as pronounced by him.

Eunice Buckingham, the plaintiff below, brought an action of assumpsit against the plaintiffs in error in the Court of Common Pleas of Hamilton County, and filed her declaration claiming to recover twenty thousand dollars for bills or banknotes of the Commercial Bank, of which she was owner, and of which demand had been made of the officers of the bank and payment refused, and claiming interest thereon at six percent from the suspension of specie payments, and also twelve percent additional damages from the time of demand and refusal. The cause was afterwards removed to the Supreme Court of Ohio, who gave judgment in her favor, and thereupon the defendant removed the case by writ of error to the supreme court in bank, by whom the judgment was affirmed, and the plaintiffs in error afterwards sued out a writ of error to this Court.

The Supreme Court entered on their record the following certificate, which contains a sufficient statement of the points arising in the case:

"And upon the application of said plaintiffs in error, it is certified by the Court here, that the said plaintiffs in error, on the trial and hearing of this case in said Supreme Court for Hamilton County, and also in this Court, set up and relied upon the charter granted to them by the General assembly of the State of Ohio, on 11 February, A.D., 1829; which charter contains the following

Page 46 U. S. 318

provision. The fourth section provides,"

"That said bank shall not at any time suspend or refuse payment, in gold or silver, of any of its notes, bills, or other obligations, due and payable, or of any moneys received on deposit, and in case the officers of the same, in the usual banking hours, at the office of discount and deposit, shall refuse or delay payment in gold or silver of any note or bill of said bank there presented for payment, or the payment of any money previously deposited therein, and there demanded by any person or persons entitled to receive the same, said bank shall be liable to pay as additional damages at the rate of twelve percentum per annum on the amount thereof for the time during which such payment shall be refused or delayed,"

and insisted that by the provisions above set forth, the said plaintiffs in error ought not to be held liable to pay for interest or damages in case of suspension of specie payments, or upon demand and refusal of payment of their notes or bills, at a greater rate than at the rate of twelve percentum per annum, and the Court here overruled the defense so set up, and held, that under and by virtue of the Act of the General assembly of the State of Ohio, passed January 28, 1824, and of the said charter of the plaintiffs in error, the defendants in error were entitled to the interest and additional damages allowed to the defendants in error by the Supreme Court for Hamilton County, as stated in the bill of exceptions. The first section of the said Act of the General Assembly of the State of Ohio of January 28, 1824, is as follows:

"That in all actions brought against any bank or banker, whether of a public or private character, to recover money due from such bank or banker, upon notes or bills by him or them issued, the plaintiff may file his declaration for money had and received generally, and upon trial may give in evidence to support the action any notes or bills of such bank or banker which said plaintiff may hold at the time of trial, and may recover the amount thereof, with interest from the time the same shall have been presented for payment, and payment thereof refused, or from the time that such bank or banker shall have ceased or refused to redeem his notes with good and lawful money of the United States."

And the eleventh section of which is as follows:

"That when any bank or banker shall commence and continue to redeem their notes or bills with lawful money, the interest on their notes or bills shall cease from the commencement of such redemption, by their giving six weeks' previous notice, in some newspaper having a general circulation in the county where such bank or banker transacts banking business, of the time they intend to redeem their notes or bills with lawful money."

It was contended and claimed in this Court, by said plaintiffs in error, that the said Act of the General Assembly of Ohio, of January 28, 1824, as applied to the said provisions of this charter, impaired the obligation thereof, and violated the provisions of the Constitution of the United States, which claim so set up was chanrobles.com-red

Page 46 U. S. 319

overruled by the court. And it is further certified by the Court here that on the trial and hearing of this case in this Court, the validity of the said act of the legislature before mentioned was drawn in question, on the ground that the same, as applied to the charter of the plaintiffs in error, impaired the obligations thereof and was repugnant to the Constitution of the United States, and that the decision of this Court was in favor of the validity of the said act of the legislature as so applied.

The cause was argued by Mr. Stanberry (Attorney-General of Ohio) and Mr. Gilpin for the plaintiffs in error, and Mr. Charles C. Convers, for the defendants in error. chanrobles.com-red

Page 46 U. S. 341


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