Opinion
(June Term, 1858.)
The service of process authorised to be made on a director of a corporation, under the 24th sec. of 26th ch. of the Revised Code, as applied to the Bank of Cape Fear, means one of the eleven principal directors, annually elected by the stockholders, and not a director appointed by the authorities of the bank for its branches or agencies.
ACTION of ASSUMPSIT, tried before his Honor, Judge MANLY, at a Special Term of Beaufort Superior Court.
Dortch, for the plaintiff.
Rodman, for the defendant.
The suit was brought by warrant on a ten-dollar bank note, issued by the defendant, payable at Washington, to the bearer on demand, which had been demanded and protested for non-payment. The case was brought to the Superior Court by appeal. Service of process was made by a summons left with James Ellison, one of the directors appointed by the president and directors of the Bank of Cape Fear, for the branch of Washington, who was not a director appointed by the stockholders of the parent corporation.
The defendant pleaded in abatement to the writ; to which, the plaintiff demurred. The Court overruled the demurrer, and the defendant appealed.
The only question presented by the pleadings is, whether the summons served upon one of the directors of the defendant's branch, at the town of Washington, was a sufficient service of process within the meaning of the 24th sec. of 26th ch. of the Revised Code. That section declares, that "the service of summons, if against any insurance company, railroad, banking or other joint stock incorporated company, shall be made by leaving a copy thereof with the president or other head, cashier, treasurer or director of such company." The act of 1833, (sec. 2, Rev. Statutes, p. 47,) by which the defendant was rechartered as a banking corporation, provides in the 4th section, "that for the well-ordering the affairs of the said corporation, there shall be eleven directors, of whom at least seven shall be residents of Wilmington, or within fifteen miles thereof, elected yearly by the stockholders, at a general meeting, to be held annually at Wilmington, on the first monday in January." By the 5th section, a president is to be chosen by the directors, or a majority of them, from among themselves, and it is declared in the same section that "the president and directors of the principal Bank, for the time being, shall have power to establish branches or agencies of the said bank at such place, or places, within this State, as they may think proper," and to commit the management thereof to such persons as they may select, provided that there shall not be less than three directors at each of such branches or agencies. The charter, in several other sections, speaks of the directors of the bank, but always means thereby the eleven directors directed by the 4th section to be elected annually by the stockholders. Thus, in the 6th section, where the appointment of officers, clerks and servants at the principal bank and its branches and agencies is given to the "president and directors for the time being" — so, in the 8th section. Where the directors, under whose administration it is contracted, may, under certain circumstances, be made responsible for the excess of a greater debt than they shall be allowed by law to incur. Again, where the president and directors are by the 9th section compelled to make loans to the State in certain contingencies. It appearing from these, and other parts of the charter, that when the term directors is mentioned, it means the directors of the corporation, in contradistinction to the local directors of a branch, or agency, unless otherwise explained, we may well infer that when the directors of the bank are mentioned in any other act of Assembly, the general directors of the corporation are intended, unless it is otherwise expressed. Such a construction of the Act in question, is the more readily adopted, because the service of the summons will then pursue the exigency of the process which runs against "The president, directors and company" of the bank; and this construction will undoubtedly satisfy the words of the act.
We understand that the main argument in favor of the sufficiency of the service in the present case, was the convenience of allowing it, because the bank note, upon which the warrant was brought, was payable at the defendant's branch at Washington. The answer is, that though payable there, it was not the debt of the branch, but of the whole corporation; besides, the argument proves too much, for if the summons could be served upon a director at Washington, it might have been served on a warrant on the same note on a director at Asheville, where the defendant has another branch. We have no doubt that the Legislature, in providing for service upon a banking corporation by the term "director," meant one of those persons who were to be elected annually by the stockholders for "the well-ordering of the affairs of the corporation," and not one of those directors who were to be appointed for the management of such branches and agencies, as the president and directors of the principal bank should think proper to establish.
Our conclusions, therefore is, that the warrant in the present case, was not properly served upon the defendant.
The judgment must be reversed, and then a judgment be given on the demurrer for the defendant.
PER CURIAM, Judgment reversed.