Spyker v. Spence

COLLIER, C. J. The act of 1807 declares, that no fieri fa-cias, or other writ of execution shall bind the property of the goods against which the same is sued forth, but from the time such writ shall be delivered to the sheriff, áre. to be executed. [Clay’s Dig. 208, § 41.] Under this statute it has' been held, that the lien attaches as soon as the execution is received, upon the personal property of the debtor within the county, and it will bind goods that may be brought within its influence, while it continues operative. [Hester, et al. v. Keith & Kelly, 1 Ala. Rep. N. S. 316; Wood v. Gary, et al. 5 Id. 43.] When the lien once attaches, it cannot be lost without some act with which the plaintiff is chargeable, or neglect which the law makes prejudicial to his rights. [Wood v. Gary, et al. supra.] Certainly the removal of the property to another county, without the consent or connivance of the plaintiff, will not impair it. The lien, it is true, does not divest the property of the debtor; he may (certainly until a levy has been made,) pass the legal title to a third person, by a sale, subject however to be defeated by a subsequent levy, and sale, under the same, or another execution issued upon an operative judgment, regularly continued and connected therewith. [Addison, et al. v. Crow, et al. 5 Dana’s Rep. 273; Claggett v. Foree, 1 Id. 428; Collingsworth v. Horn, 4 Stew. & P. Rep. 237; Lucas v. Doe ex dem. Price, 4 Ala. Rep. 679; Hill v. Slaughter, 7 Ala. Rep. 632.] These citations abundantly show, that the mere neglect of the sheriff to levy a fi. fa. will not have the effect to deprive the plaintiff of the rights which accrued in consequence of its delivery to [339] be executed. In the case' cited from 5 Ala. Rep. it was said, that “to render an execution dormant there must be some act of the plaintiff inconsistent with the pursuit of the defendant, by execution to obtain satisfaction of the judgm ent.” In the present case, the goods on which the defendant is charged to have wrongfully levied in Talladega, were in Montgomery, and in the hands of the defendant in execution when the originalfi.fa. was delivered to the sheriff. This being the case, it is material to inquire whether the sheriff was authorised to return the execution without levying it, or attempting to make the money thereon. The charter of the Branch of the Bank of the State of Alabama at Montgomery, provides for an election by the General Assembly, annually, of a President, and twelve directors to manage the concerns of the institution. To carry out this general purpose, the President and Directors are jointly invested with certain enumerated powers ; the former is required to preside at all meetings of the directory; is authorized to move for judgment against a defaulting debtor, after the service of notice, and certify that the debt in question is bona fide the property of the bank; he is required to co-operate with the Governor, &c. in issuing State stock, to create an additional capital, and to sign notes directed to be issued by the President and Directors. [See Clay’s Dig. 90 to 94.] These are the only, or principal powers and duties conferred upon the President, disconnected with the directory; all his expressly delegated powers are as a member of the directorial board. The rights, authorities, and mode of transacting the business of a corporation, depend, not upon the common law, but upon the legislative act by which it was created, and where that is silent, upon the principles of interpretation, and doctrines of the common law. But this latter source of power cannot control by implication, an express provision of the charter, or create an authority to do that which is not necessary to give effect to the intention of the Legislature; or confer upon a particular member or officer, the right to do that which the Legislature have made several persons, or aboard of directors, competent to perform. [Fleckner v. U. S. Bank, 357-8-9.] The President and Directors of our State Banks are but the agents of the State for the purpose of managing the affairs of the corporation; the charters of incorporation are in some sense let [340] ters of attorney under which they act, and are not only enabling, but are also restraining acts. [Collins v. The Br. B’k at Mobile, 7 Ala. Rep. —; Salem Bank v. Gloucester Bank, 17 Mass. Rep. 29, 30; Lincoln and K. Bank v. Richardson, 1 Greenl. Rep. 81.] A board of directors, authorized to conduct the affairs of the company, may empower the President and Cashier to borrow money, but the President, under an authority thus conferred upon the Cashier and himself cannot borrow money. [Ridgway v. Farmers’ Bank of B. Co. 12 Serg. & R. Rep. 256.] It has been held that the President has not, ex offcio, authority to transfer the property or securities of a Bank; but must have express authority to that effect, from the corporation at large, or the directors, as the case may be. [Hallowell & A. Bank v. Hamlin, et al. 14 Mass. Rep. 180; Hartford Bank v. Barry, 17 Id. 97.] Nor can the President or Cashier charge a bank with any special liability, for a deposite contrary to its usage, without the previous authority or subsequent assent of the corporation. [Foster, et al. v. Essex Bank, 17 Mass. Rep. 505.] In Fleckner v. The United States Bank, swpra, it was said that the Cashier is the executive officer, through Whom, and by whom, the whole monied operations of the Bank, in paying or receiving debts, or discharging or transferring securities, are to be conducted. The inducements to a transfer by the Cashier, need not appear; but the Courts will presume the transfer to have been properly made by the Cashier, in the absence of proof to the contrary. This presumption however is not conclusive, but may be impeached. [Everett, et al. v. United States, 6 Porter’s Rep. 166.] Again; the Cashier of a bank has a general authority to suspend the collection of notes under protest, and to make such arrangements as may facilitate that object, and to do any thing in relation thereto that an attorney might lawfully do. [Bank of Penn. v. Reed, 1 Watts’ Rep. 101.] But an agreement by the President and Cashier of a Bank, that an indorser shall not be liable on his indorsement, is not binding on the Bank. [Bank of U. S. v. Dana, 6 Peters’ Rep. 51; Bank of Metropolis v. Jones, 8 Id. 16.] We have made these citations to show that the Cashier is the executive officer of the Bank, and that his acts, if apparently within the regular course of business, in respect to the collection of its debts, will be presumed to be within the scope of his official authority, until the contrary is shown. [341] But such an implication cannot be indulged to sustain the direction by the President to the sheriff of Montgomery, in the present case; for although he is, in connection with the directors, invested with “ the management of the concerns of said Branch Bank,” yet, without their co-operation, he can only act in those cases where the charter confers upon him a sole agency; or where an authority may be deduced from the « doctrines of the common law,” or “ the principles of interpretation.” We have seen that the act of incorporation does not devolve upon the President the duty of expediting or delaying'the collection of the debts due the bank, and such a power is not deducible from any other source. Conceding therefore, that “John Martin,” in his official capacity, ordered the original fieri facias to be returned unsatisfied, the lien which it acquired was not impaired; because the order was unauthorized. The aliasfi. fa. was issued in the vacation which succeeded the term to which it was returnable, and consequently drew to it the lien acquired by the original, so as to overreach and avoid any transfer of the goods of the defendants therein, made in the interval. This view is decisive to show, that the plaintiff had no right to the goods levied on by the defendant, as against the plaintiff in the execution, if they were in Montgomery county while the original fi.fa. was in the sheriff’s hands. The jury have affirmed that such was the situation of the goods, or that the plaintiff assented to the acceptance by the directors of the bank, of the proposition of Messrs. C. & S.; for upon one of these hypotheses, or both, their verdict must have been found, as they seem to have been the only primary questions of fact referred to the jury. And whether the verdict was influenced by the solution of one or both these questions, no injury could possibly have resulted from the ruling of the Circuit Court. It will then be unnecessary to consider the other questions raised upon the bill of exceptions, as their decision favorable to the plaintiff, would not have entitled him to a verdict. The judgment is therefore affirmed.