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writ of quo warranto is that the suggestion is at the instance of a private relator instead of the Attorney-General. The respondent is a corporation deriving its existence from the legislation enacted in the forms of the constitution, and the object of the relator is to put it out of existence-to declare its franchises forfeited to the Commonwealth. He is not a stockholder in the bank, is not a creditor, and claims no office or other private right in the corporation. Essentially, therefore. this is a public prosecution of the bank, though set on foot by an individual, and has for its object the recovery of a forfeited franchise, and not the redress of a private grievance. Can one man so employ any department of the government as to tear down the fabric of a majority? Regarding the judiciary as one of the trustees of the sovereignty of the people, by which I mean the whole people, how can its functions be called into exercise against the existence of a public institution, except upon the suggestion of some agent of the whole people? If they may, if individual caprice, passion, prejudice, or interest may use the judicial arm of the government to overthrow what the legislative or executive arms have erected, the sovereignty of the majority is extinguished and the departments of the government, intended to work in harmony, are brought into fatal conflict. A house divided against itself cannot stand, and no more can a State. If quo warranto be given to individuals to dissolve corporations, power will cease to steal from the many to the few, for here will be a transfer of it bodily. With a corrupt judiciary, which the history of other countries teaches us is not an impossible supposition, acting as the instrument of private passions, any institution established by the immediate representatives of the people, and existing by will and consent of the people, and for their convenience and benefit, may be frustrated without appeal or recourse. These are general views which harmonize with the doctrine of the

cases.

"And, therefore, whilst I recognize the rights of any relator to have a quo warranto in the Supreme Court, who is desirous to prosecute the same to redress any private grievance that falls within that remedy, I deny the right of any party, except the Attorney-General, or other officer of the Commonwealth, to sue for it to dissolve a corporation." See, also, Commonwealth v. Farmers' Bank, 2 Grant's Cas., 392; Commonwealth v. Philadelphia, etc., R. Co., 20 Pa. St., 518; Same v. Allegheny Bridge Co., Id., 185; People v. Tibbits, 4 Conn., 358; King v. Ogden, 10 B. & C., 240; Gaylord v. Fort Wayne, etc., R. Co., 6 Biss., 286; Commonwealth v. Arrison, 15 S. & R., 127.

Acts destructive of objects of the corporation.-If a corporation does acts, or suffers them to be done, which are destructive of the objects of the corporation, or the purposes for which it was established, this is a ground of forfeiture. State v. Real Estate Bank, 5 Ark., 595; People v. Bank of Hudson, 6 Cow., 217.

In State v. Real Estate Bank, supra, the court say: "The grant of the State was made to the stockholders for a valuable consideration, and upon the implied condition that they would continue to exercise and perform the conditions imposed by the charter; and these had for its aim and end the promotion of the public good as well as the private interest of the corporators, and they entered into the consideration of the contract and formed

its obligatory force. Now, it is perfectly manifest upon principles of public policy, of reason and of natural justice, that a violation of this implied condition necessarily dissolves the consideration of the contract. The bank, by failing to perform her part of the agreement, has discharged the State from the continuance of the grant, and it not only becomes her right but her duty to resume it. Her faith and honor are pledged to protect the corporation in the peaceful enjoyment and full exercise of all its privileges and immunities, for they are supposed virtually to concern her social and political condition as a matter of convenience and general utility so long as the corporation has the will and possesses the power of discharging both her public and private engagements. This she unquestionably cannot do, if, by her own voluntary act and deed of assignment she has divested herself of all her corporate capacities; for if she be civiliter mortuus how can it be said that her legal personage still lives and that she has the power of perpetual succession? By such an act all her rights, privileges and liberties have passed from the control and management of the corporation; and, being stripped of all her power and authority she ceases to exist. In the language of the law she has abused her trust and perverted its object, and this works a forfeiture of her charter." See, also, Slee v. Bloom, 19 Johns., 456.

Judgment of ouster.-Where the proceeding is to procure a forfeiture of the charter, it should be against the corporation, and if a conviction is had for misuser or non-user, judgment of ouster and dissolution should be rendered; and this is equivalent to judgment of seizure at common law. People v. Saratoga & Rensselaer R. Co., 15 Wend., 113; Smith v. The State, 21 Ark., 294; State Bank v. The State, 1 Blackf., 267, where it is observed by the court, that "there are but two grounds on which it can be contended that the corporate effects fall into the hands of the State: 1st, as a forfeiture for abusing the franchises; or, 2d, for the want of an owner by the dissolution of the corporation. When we examine the first of these grounds, we find nothing in the books to support an idea that the abuse of corporate franchises occasions a forfeiture of lands or goods, rights or credits, or, in fact, occasions any other forfeiture but the franchises themselves. The consequence of a breach of the implied condition on which their charters were granted, was not that they should forfeit their property or possessions, if they abused their franchises; but only that they should forfeit the franchises. That which comes out of the hands of the king is the proper subject of forfeiture; the king, by the seizure, resuming what originally flowed from his bounty."

A court of equity has no jurisdiction.—A court of equity has no jurisdiction of an information, filed even by the Attorney-General of a State, against a private corporation, where the acts complained of are objected to solely on the ground that they are not authorized by the act of incorporation, and are, therefore, against public policy, if the acts are not shown to have injured or endangered any public or private right.

In Attorney-General v. Tudor Ice Co., 104 Mass., 239, the court held, that, sitting in equity, it did not administer punishment or enforce forfeitures for transgressions of law; but that its jurisdiction was limited to the protec

tion of civil rights, and to cases in which full and adequate relief could not be had on the common law side of the court or of the other courts of the Commonwealth; that the Tudor Ice Company was a private trading corporation, and not in any sense a trustee for public purposes; that it was not a suit by a stockholder or creditor, nor the acts complained of shown to have injured or endangered any rights of the public or any individual or other corporation; and could not, upon any legal construction, be held to constitute a nuisance; and that no case was made upon which, according to the principles of equity jurisprudence and the practice of the court, an injunction should be issued upon an information in chancery.

In Attorney-General v. Utica Insurance Co., 2 Johns., Ch., 371, Chancellor KENT, in a very able and elaborate opinion, after a thorough discussion of the question on principle, and an extensive examination of the earlier authorities, held that such an information could not be maintained to restrain an insurance company from exercising banking powers in violation of a statute of New York; but that the proper remedy was at law, by informain the nature of a quo warranto; and no appeal appears to have been taken from his decision. An information in the nature of quo warranto was thereupon filed, and sustained in the Supreme Court of New York, and judgment rendered thereon that the corporation be ousted from the franchise which it had usurped. People v. Utica Insurance Co., 15 Johns., 358: Goddard v. Smithett, 3 Gray, 116, 122, 123; Attorney-General v. Salem, 103 Mass., 138; Boston & Providence Railroad Co. v. Midland Railroad Co., 1 Gray, 340.

Exception in case of a public nuisance.-Informations in equity have, however, been sustained, where a public nuisance is sought to be restrained and immediate action is required. District Attorney v. Lynn & Boston R. Co., 16 Gray, 242; Attorney-General v. Cambridge, Id., 247; Attorney-General v. Boston Wharf Co., 12 Gray, 553; Rowe v. The Granite Bridge Co., 21 Pick., 244.

CHAPTER VIII.

ULTRA VIRES CONTRACTS-RIGHT TO RECOVER THE CONSID

ERATION.

SEVENTEENTH SELECTED CASE.

WHITE V. FRANKLIN BANK.*

Where, upon the deposit of money in a bank, the depositor receiving a book containing the cashier's certificate thereof, in which it was stated that the money was to remain in deposit for a certain time, it was held that such agreement was illegal and void, under Revised Statute, c. 36, § 57, as being a contract by the bank for the payment of money at a future day certain; and that no action could be maintained by the depositor against the bank upon such express contract; but that he might recover back the money in an action commenced before the expiration of the time for which it was to remain in deposit, the parties not being in pari delicto, and the action being in disaffirmance of the illegal contract; and that such action might be maintained without a previous demand.

By an agreed statement of facts it appeared that on the 10th of February, 1837, the plaintiff deposited with the defendants the sum of $2,000, and received from them a book containing the following words and figures; to-wit.,

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"Dr.

Franklin Bank in account with B. F. White, Cr. 1837, Feb. 10th. To cash deposited, $2,000. The above deposit to remain until the 10th day of August. E. F. Bunnell, cashier."

It further appeared that on the 7th of July, 1837, the plaintiff brought this action against the bank to recover the money so deposited by him, declaring on the money counts, and on an account stated.

*Reported in 39 Mass. (22 Pick.), 181 (1839).

If the court should be of opinion that the action could be maintained, the defendants were to be defaulted and judgment rendered for the sum of $2,000, with interest; otherwise the plaintiff was to become nonsuit.

WILDE, J., delivered the opinion of the court. The first ground of the defense is that the action was prematurely commenced. The entry in the book given to the plaintiff by the cashier of the bank is undoubtedly good evidence of a promise to pay the amount of the deposit on the 10th day of August; and if this was a valid and legal promise this action would be maintained. But it is very clear that this promise or agreement that the deposit should remain in the bank for the time limited, is void by virtue of the Revised Statute, c. 36, § 57, which provides that no bank shall make or issue any note, bill, check, draft, acceptance, certificate or contract, in any form whatever, for the payment of money, at any future day certain, or with interest, excepting for money that may be borrowed of the Commonwealth, with other exceptions not material in the present case.

The agreement that the deposit should remain until the 10th day of August amounts in law, by the obvious construction and meaning of it, to a promise to pay on that day. This, therefore, was an illegal contract and a direct contravention of the statute. Such a promise is void; and no court will lend its aid to enforce it. This is a well settled principle of law. It was fully discussed and considered in the case of Wheeler v. Russell, 17 Mass. R., 281; and the late Chief Justice, in delivering the opinion of the court, remarked: “ that no principle of law is better settled than that no action will lie upon a contract made in violation of a statute, or of a principle of the common law." The same principle is laid down. in Springfield Bank v. Merrick, 14 Mass. R., 322; and in Russell v. De Grand, 15 Mass. R., 39. In Belding v. Pitkin, 2 Caine's R., 149, ThOMPSON, J., said: "It is a first principle, and not to be touched, that a contract, in order to be binding, must be lawful." The same principle is fully established by English authorities. In Shiffner v. Gordon, 12 East, 304, Lord ELLENBOROUGH laid it down as a settled

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