Carey v. Giles

10 Ga. 9 | Ga. | 1851

By the Court.

Nisbet, J.

delivering the opinion.

[1.] The assignments of error in this case are numerous. I shall treat them without a very strict regard to the specifications, or the order in which they stand in the pleadings. And first, it is assigned for error, that the presiding Judge held it unnecessary to make the Bank of Macon a party. The Bank of Macon havxng forfeited its charter, a receiver was appointed, who filed a bill to set aside a transfer of certain effects, which that Bank had executed to the plaintiff in error, the Bank of Columbus, in settlement of a debt claimed to be due to the latter institution, alleging it to be fraudulent. The plaintiff in error argues, that the receiver represents the creditors, and not the bank, and inasmuch as the bill charges a fraud on the bank, it ought to be made a party, and be heard in its own defence. The error in this reasoning consists in the assumption, that the Bank of Macon is an entity at all. The being of a corporation is capable of annihilation. When the charter of the Bank of Macon was forfeited, and the forfeiture declared, it became extinct. When the receiver was appointed, he became the sole representative of the parties — creditors and stockholders — interested in the effects of the bank. He is entitled to their possession ; he can institute suit, and is liable to be sued; and he is, by law, authorized to receive and disburse the funds of the bank. The bank has no other exponent. Its existence is merged in that of the receiver. It is impossible, therefore, to make it a party; and the ruling of the Court was right. See Angel & Ames, on Corporations, 660, ’1. Hotchkiss, 362 to 365.

A decree was rendered in favor of the complainants in this bill, that the transfer be set aside, the notes be delivered to the receiver of the Bank of Macon, and that a considerable sum of money be paid by the Bank of Columbus to the Bank of Macon. Upon this decree the assignee of the Bank of Columbus filed a bill of review for errors in law, apparent upon its face. This bill set forth distinctly the grounds of error complained of, and among other things, sought to reverse the decree, upon the ground that the Superior Court in Twiggs County, where the original bill was brought, had no jurisdiction there over the Bank of Columbus, a corporation located in the County of Muscogee. 'To this bill of review, the defendant, to-wit: the receiver of the Bank of Macon, demurred. After argument, the presiding Judge overruled the demurrer, and sustained the bill of review upon several grounds; among others, upon the ground that the Superior Court had no jurisdiction in the County of Twiggs over the Bank of Columbus. Exception was taken to this decision, and this Court, being constrained to dismiss the writ of error, thereby affirmed it. See 2 Kelly, 408. Whereupon the receiver of the Bank of Macon filed a bill to review the judgment on the demurrer to the previous bill of review, filed by. the assignee of the Bank of Columbus. To this latter bill of review, the judgment on the demurrerto the previous bill of review, was pleaded in bar, and the plea sustained by the Court. Subsequently to all this, the original bill being called for trial in April, 1848, the defendant, to-wit: the assignee of the Bank of Columbus, moved to dismiss it on several grounds, and among others, upon the ground that the Superior Court had no jurisdiction in the County of Twiggs over the Bank of Columbus, located in the County of Muscogee, and over other defendants to the bill, resident, respectively, in the Counties of Houston and Jones. Upon this motion, the Court ruled that the bill be dismissed as to the defendants in Houston and Jones Counties, and retained as to the parties in Twiggs.

The decision of the Court, dismissing the bill as to the Jones and Houston County defendants, was brought before this Court, and reversed, we holding that the Superior Court had jurisdiction over them in the County of Twiggs. This history of the case is indispensable, to render at all intelligible, the next assignment. Such, then, being the state of the record, and such the various judgments in the case, it came on again to be heard on the original bill, answers, &c. at the April Term of the Superior Court of Twiggs County, 1851. The defendant, the assignee of the Bank of Columbus, had pleaded in bar of the bill the judgment of the Court on the demurrer to his bill of review. The cause being called before going to the Jury, the defendant below, to-wit : the assignee of the Bank of Columbus, moved the judgment of the Court, that the complainant could not proceed, or have a decree in his favor, upon the ground taken in the plea; that is to say, because, by a judgment of the Court remaining of record and unreversed, it had been determined that the Superior Court in Twiggs County had no jurisdiction over the Bank of Columbus, located in the County of Muscogee. In other words, the judgment of the Court was then asked, upon the sufficiency of the plea in bar, filed by the defendant, founded on the judgment on the demurrer to the bill of review, filed by the assignee of the Bank of Columbus. The presiding Judge decided against the motion — ruling that there was nothing in the plea to prevent the complainant from proceeding; that is, he held, that the judgment of the Court, on the demurrer to the bill of review, filed by the assignee of the Bank of Columbus, did not bar the complainant in the original bill. To this decision, the assignee of the Bank of Columbus has excepted. And now, upon this exception, obviously, two points are made.

1. What is the effect of the judgment on the demurrer?

2. Has that judgment been reversed ?

[2.] Isolating the judgment on the demurrer for the present, from all connection with subsequent action in the cause, let us inquire what it was and what was its effiedt A decree has been rendered by the bill filed by the receiver of the Bank of Macon against the Bank of Columbus. The defendant, the assignee of the Bank of Columbus — that institution having, after the filing of the bill gone into assignment — brings a bill to review that decree, upon the ground of error apparent on the record, that the Court which rendered it had no jurisdiction over the Bank of Columbus; it appearing also from the record, that that Bank was a non-resident of the County of Twiggs, where the suit was originally brought, and did in fact, reside in another County, to wit: the County of Muscogee.

This bill of review is met by a demurrer, which, admitting these facts to be true, denies that there is any error in the decree, upon the ground of a want of jurisdiction in the Court which rendered it, over the Bank of Columbus.

Thus by the-bill and. the demurrer, the question of jurisdiction is made.

The issue is this : Has the Court jurisdiction in the County of Twiggs, over the Bank of Columbus ? The presiding Judge determined against the demurrer. Had he done no more than to grant an order that the demurrer be overruled generally, this order would have been a judgment in favor of the ground of error taken in the bill of review, to wit: the. want of jurisdiction. It would have been a judgment against the jurisdiction.

The Chancellor, however, was not content with such a general judgment, but decreed specifically, that the demurrer be overruled ; because the Court which rendered the decree, upon the facts developed in the record and the decree, had no jurisdiction in the County of Twiggs over the Bank of Columbus.

Other special grounds were taken by him in his decree, with which we have now nothing to do ; the plaintiff in error before this Court, relying upon so much of it as relates to jurisdiction. Such, then, was the judgment on the demurrer to the bill of review. We do not question at all, the power of the Chancellor to render this judgment, and in the form in which it was rendered. It was his duty to declare the law as to jurisdiction, upon the conceded facts before him. The question was one for him alone, with which a Jury could have nothing to do. There were no facts to be then found, for they were established by the allegations in the bill, the record and decree reviewed, and the demurrer to the bill.

The defence to this bill of review, was according to the established practice of Courts of Chancery; and that is, where the bill sets out fully the decree, to demur to it, and if it does not, then to plead the decree, and demur to opening the -enrollment. Story’s Eq. Pl. 643, 644. Mitf. Eq. Pl. by Jeremy, 203. 2 Atk. 534. Cooper’s Eq. Pl. 215. 1 Barn. 392. 3 Ibid, 273. 2 Ball & Beatt. 146. 3 Paige, 368.

Decrees in our practice, are not enrolled as in England, but are recorded, and are deemed to be enrolled as of the time at which they are passed. Hence, a bill of review with us, lies for errors in law apparent in the decree, although not enrolled. In England, it is considered as interlocutory until it is enrolled, and a bill of review does not lie there until after enrollment. Story’s Eq. Pl. 448, 449. Cooper’s Eq. Pl. 88, 89. Mit. Eq. Pl. by Jeremy, 90, 83. 5 Mason’s R. 303, 310. 2 Sandf. 70. 13 Peters, 6, 13.

What was the effect of this judgment? In ordinary cases, a judgment against a demurrer to a bill of review in this State, where the Jury are associate Chancellors with the Judge, has the effect of throwing open the original decree and reinstating the cause for a hearing. Certainly this is the effect in all cases where the error corrected does not go to the complainant’s right to maintain his bill. In England, the Chancellor would doubtless, where the error in law went to a denial of such right, proceed to reform the decree at once.

In such cases in Georgia, the Judge will give judgment on the matter of law, as Judge Scarborough did in this case, and leave it to be pleaded as it was in this case, in bar of the plaintiff’s right to proceed on the original bill. A bill of review works very much the same effect as a writ of error. It is in the nature of a writ of error, and its object is to procure an examination and alteration or reversal of a decree made upon a former bill. Story’s Eq. Pl. §403. Now, when a writ of error reverses a judgment upon a question of law vital to the plaintiff’s case, as for example, upon the ground of a want of jurisdiction in the Court which rendered it, such reversal is conclusive of the case. It is no more open to a hearing. The judgment of reversal sent back, is a bar to all farther action in that Court. So in a bill of review. If the bill is sustained, as this was, upon the ground that the Court which rendered the decree had no jurisdiction of the case, by reason of the non-residence of the defendant, that judgment must be conclusive of the cause. It depends upon no facts to be found by a Jury. If not reversed, it is forever a bar, and it is available to the party in whose favor it is rendered, by plea. The bill in this case, is strictly and technically a bill of review, as distinguishedfrom a bill in the nature of a bill of review. The distinctions in England between these are, that the latter is founded on a decree not enrolled, the former on the enrolled decree. The former is filed without leave, and the latter only upon leave of the Court had. The former prays for a review .and reversal of the decree, and the latter for a re-hearing. As I stated before, in this country, all final decrees are deemed as enrolled as of the time when passed, although not in fact enrolled. This bill was, therefore, on an enrolled decree ; it charged errors in law in the decree, and it prayed that they might be reviewed, reversed, and set aside. One error of which it complained was, that the Court had rendered a decree against a party over whom it had no jurisdiction. Upon demurrer, the complaint was found to be well founded in law, by the presiding Judge, and he decreed accordingly. In our judgment, this decree was conclusive of the original bill, until reversed, and was to be availed of by plea in bar.

I proceed to inquire whether this decree was or was not reversed by a subsequent judgment in the cause. We find from the record, that subsequent to the judgment passed upon the bill of review, which I have been considering, and subsequent to the decision of the Court upon the second bill of review, to wit: the bill of review filed by the receiver of the Bank of Macon, at April Term, 1848, the original bill being called in its order, the defendant’s solicitor moved to dismiss it upon three several grounds, among them this, “because it fully appears by said bill, that this Court has no jurisdiction of the same and the defendants thereto.” And after argument had, the Court passed the following order: “ On hearing argument on the above motion, it is ordered that the said bill be dismissed, so far as the Jones and Houston defendants are concerned, and that the said bill be retained as to the parlies in Twiggs County.”

Two distinct things are done by this judgment. 1st. The bill is dismissed as to the Jones and Houston defendants, and the jurisdiction over them denied. 2d. The bill is retained as to the parties in Twiggs County, and the jurisdiction as to them asserted. The defendants in Jones and Houston Counties, are the makers and indorsers of some of the notes transferred by the Bank of Macon to the Bank of Columbus, against whom the Bank of Columbus had instituted suit in their respective Counties. These had been made defendants to the bill filed in the County of Twiggs. As to them, the bill is dismissed, for want of jurisdiction. The order, we have seen, retains the hill as to the parties in Tioiggs, asserting jurisdiction over them. Now, the Bank of Columbus was a parly to the bill in Twiggs, and therefore the jurisdiction was in that order, asserted over the Bank of Columbus, in Twiggs — the very thing that was denied by the judgment on the demurrer to the bill of review, filed by the assignee of the Bank of Columbus. This latter judgment on the motion to dismiss, was, in our opinion, a reversal of the former judgment on the demurrer; and because it was thus reversed, we hold, that the presiding Judge did not err'in ruling out the plea of the plaintiff in error. Let us see, however, whether the Bank of Columbus was a party, and if a party at all, a party in the County of Twiggs.

Tarver, the maker of one of the notes transferred to the Bank of Columbus, being resident in Twiggs, was then sued by the Bank of Columbus, and pending that suit, the receiver of the Bank of Macon filed in Twiggs his bill, alleging a fraud in the transfer, &c. To this bill, Tarver, the parties resident in Jones and Houston, and the Bank of Columbus, were made parties defendants. The reason why the Judge denied the jurisdiction sis to the defendants in Jones and Houston, and asserted it as to the Bank of, Columbus, no doubt, was this : he believed that the Court acquired jurisdiction over the Bank of Columbus, by reason of the suit pending in that County in its favor against Tarver. This ground of jurisdiction did not exist in relation to the Jones and Houston defendants. Dismissing the bill as to these defendants, without any farther order, would seem to imply its retention as to the other defendant, the Bank of Columbus. But the order proceeds to retain the bill as to all the parties in Twiggs, of which that bank was one, in express terms. From this judgment, dismissing the bill as to the Jones and Houston defendants, the receiver of the Bank of Macon excepted, and this Court reversed that judgment. No exception was taken to the order retaining the bill, as to the parties in Twiggs, by the other side. Although this Court has really rendered no judgment as to the jurisdiction in Twiggs over the Bank of Columbus, yet, when the cause came before us on the question of jurisdiction over the Jones and Houston defendants, we expressed the opinion that the Bank of Columbus was properly made a party to -the bill in Twiggs. See 4 Ga. Rep. 571.

[3] It is assigned for érror, that the Court, upon the trial, permitted the co-defendants of the plaintiff in error, to-wit: Tarver, Bunn and Mrs. Martin, to be heard, and to introduce evidence. The bill was filed to annul a transfer of certain notes made by the Bank of Macon to the Bank of Columbus. These co-defendants were persons liable upon some of these notes, and had been sued thereon in the Counties of their residence, respectively, and were made proxies defendants to the bill in the Oountyof 'Twiggs. No decree is asked against them — nothing is prayed against them — -and they are made parties simply to enjoin them from paying these notes to the Bank of Columbus, or to any other person, until their ownership should be settled by a decree on the bill. The prayer for injunction was granted.

We held, that these persons were proper parties, and we still thinkso. 4 Ga. Rep. 571. They were interested in the .great question made in the bill, to-wit: which of the two banks was the rightful owner of their notes ? They were interested in the question of title to these notes, and we think were entitled to be heard on the trial upon that question, and to introduce evidence to that point, but as to no other point, and to no other extent. It was not competent for the Court below to deereeanything for or against them, but to hear them alone an-the question of ownership to the notes, and decreeing only between the party complainant and the Bank -of Columbus, leave these defendants to all the rights which the law would give them against whomsoever might'be determined to be the legal owner. With such limitations and restrictions, the concession to them to be heard and to introduce evidence upon the trial, was proper.

[4.] In the progress of the trial, the complainant tendered the .evidence of Mr. J. L. Jones, taken by 'Commission, to prove that, previous to the failure of the Bank, of Macon, the President, Robert W. Fort, and the majority of the directors, had resigned, and that Thomas M. Ellis had assumed the Presidency; to the admission of which the defendant, the assignee of the Bank of Columbus, objected, upon two grounds: First, because there was better evidence of the fact, to-wit: the minutes of the board of directors. Second, because the testimony was irrelevant to the issue. These objections were overruled, and the defendant excepted. The complainant in the bill contends that this evidence was well admitted on his allegations, to-wit: that the transfer in question was void, because made by the Cashier of the bank, Mr. Atkinson, by order of one Thomas M. Ellis, not being an officer or director of the bank. He claims that it was admissible under these allegations, to show that the transfer was illegal and void, because made by the Cashier, when there was neither a Presidentnor board of directors, and upon the order of a person who was neither the President nor a director. Under these allegations, and for these purposes, our judgment is, that the evidence was inadmissible. A President and directors are not necessary to the validity of any act of the Cashier which he, virtute officii, may do. And the payment of a debt due by the bank, or securing the same by a transfer of the securities of the bank, is an act which belongs to his office, and which he may rightfully do. Evidence, therefore, to show the invalidity of this act, because done when there was no rightful President and board, and when an individual had, without authority, assumed the Presidency, is inadmissible. The Cashier is an officer created by the charter, and not by a by-law or ordinance of the board of directors. He is the officer and agent, within the scope of his powers, of the corporation. The charter and the corporation hold him out to the public as such. Pie gives bond for the faithful execution of his duties, and is liable to the corporation for his defaults. His duties do not spring out of his election by the board of directors, but out of the nature and functions of his office, as defined by the general law. That law defines his dirties, unless they are made different by the charter and by-laws of the bank. Certain things he cannot do without the orders of the board of directors, but such acts as appertain generally to his office, he may do izzdependent and irrespective of the board. One of the acts which the Cashier may rightfully do, is just the act which Mr. Atkinson did in this case; that is, transfer the effects of the bank to pay a debt. By the nature of his office, he had authority to do this thing — such authority is presumed; and if it has been denied, the party assailing the transfer must show the fact. And it is presumed, too, that the act was bona fide, until the corruption or mala' fides of the Cashier is made to appear. That of course may be shown.

“ The Cashier, (says Mr. J. Story, in Fleckner vs. the United States,) is usually entrusted with all the funds of the bank in cash, notes, bills, &c. to be used from time to time, for the ordinary and extraordinary exigencies of the bank. He receives directly or through the subordinate officers, all moneys and notes. He delivers up all discounted notes and other property, when payments have been duly made. He draws checks from time to time for moneys, wherever the bank has deposites. In short, he is considered 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.' It does not seem too much, then, to infer, in the absence of all positive restrictions, that it is his duty as well to apply the negotiable funds as the monied capital of the bank, to discharge its debts and obligations.'’'1 8 Wheat. 338. Prima facie, therefore, (say Angel & Ames) he must be deemed to have authority to transfer and indorse negotiable securities held by the bank, for its use and in its behalf; and no special authority for this purpose is necessary to be proven.” Angel & Ames on Corp. 243, ’4,’5. 12 Serg & Rawle, 265. 6 Port. (Ala) R. 166. What we mean to say, then, is this, that the Cashier had authority to make this transfer; that no inference can be drawn against its validity in law, from the facts that the President and directors, or a majority of them, had resigned, and that Thomas M. Ellis had assumed the Presidency oi the bank, and that proof of these facts was not admissible for the purpose of deducing from them such an inference. This testimony, however, we think, was admissible for the purpose of proving the act of transfer fraudulent, in fact, under the general allegations in the bill; not that one or all of these facts, if true, would, singly or collectively, be sufficient necessarily to set aside the transfer for fraud, but we think that proof of them ought to go to the Jury, that they may judge what weight, if any, they are entitled to, in support of the ground taken in the bill, that the transfer was made with intent to commit a fraud upon the just rights of other creditors of the Bank of Macon.

Under this view of this exception, we say farther, that the evidence was not inadmissible, because there was higher and better evidence of the facts, for the simple reason that it does not appear that there was such higher and better evidence. It is not a necessary legal inference, that the resignation of these officers was entered on the minutes of the board of directors.

The by-laws of the company require the board to keep a record of its actions, it is true; but the resignation of one or more of its directors is not an act of the board: it is the act of the individual member or members. The acceptance of their resignation would be an act of the board, and ought to be entered on its minutes; but whether accepted or not, does not appear. The assumption of the Presidency by Ellis, was not clearly an act of the board; and we cannot presume that there is record evidence of that individual act. I shall again have occasion to advert to the matter of fraud in fact.

[5.] I turn now to the exception which controverts the correctness of the charge of the Court, in discussing which, I shall consider all other questions made in this record. The charge of the presiding Judge is in the following words: “If, at the time of the transfer, the Bank of Macon was insolvent, and the Bank of Macon transferred to the Bank of Columbus, in payment of its indebtedness, a larger amount than was reasonably sufficient for that purpose, (of which the Jury are. to judge,) and agreed to return to the Bank of Macon any surplus which remained after payment of its indebtedness to the Bank of Columbus, then the transfer was fraudulent, and the Jury must so decree.” In these instructions, the question whether a larger amount than was reasonably sufficient to pay the indebtedness of the Bank of Columbus was transferred, is left to the Jury. The proposition asserted by the Court is, in somewhat variant words, the following: A transfer to pay a debt made by an insolvent bank, of an amount of notes or other effects, larger than is reasonably sufficient to pay the debt, with an agreement to return the surplus to the bank making the transfer, is fraudulent; that is, that such a transfer irrespective of the intention, is, per se} in violation of law, and a legal fraud, and for that reason void. It is thus I understand this charge, and such was the position taken by counsel for the defendant in error in the argument. The law which such a transfer is supposed to violate, is our own Act of 1818. To this opinion of the Court and counsel we wholly dissent, for, in our judgment, such a transfer, (and it is the transfer made by the Bank of Macon to the Bank of Columbus,) is not in conflict with the Act of 1818, or any other law of force in Georgia. The construction of the Act of 1818 has been frequently before this Court, and little is required of me in this case but to apply our decisions under that Act to this transfer. We consider the meaning of that Act, so fruitful in litigation heretofore in this State, as mainly settled by this Court. I am very clear that the decisions already made will rule this case. If the question under the Act of 1818, made by the charge of tire Court in this case, was now an open question, we should have no sort of difficulty about it. We know of no law of force in Georgia, which condemns as fraudulent and void a transfer made by a failing or insolvent institution in payment of a just debt, because the amount transferred is larger than is reasonably sufficient to pay that debt, with an agreement between the parties that the surplus shall be returned to the transferrer— none whatever. On the contrary, in our judgment, the law approves just such a transaction, and will sustain it. Let it then be conceded, that the Bank of Macon was insolvent when this transfer was made, and that the amount transferred is larger than was reasonably sufficient to pay her debt to the Bank of Columbus, and that there was an agreement to return the surplus, and we do not hesitate to say, that in the judgment of the law, the transaction is, upon its face, a fair and valid one — such an one as we feel it very clearly our duty to sustain. In Eastman & Philbrick vs. McAlpin, we decided that a bona fide and absolute conveyance of any part or the whole of his estate by an insolvent, whether made to a stranger or to a creditor, in satisfaction of a pre-existing debt, whereby other creditors are excluded from any portion of the estate so conveyed, is a valid conveyance under this Act, if it is free from any trust for the benefit of the seller, or any person appointed by him. 1 Kelly, 157. In this case we have settled, that the fact that a man is insolvent or in failing circumstances when he transfers his effects, does not make the transfer void; that a man who is insolvent may sell his estate, the Act of 1818 not divesting him because he is insolvent, of the right of dominion over his property, and that such a person may prefer and pay one or more creditors to the exclusion of others, provided always, that in such transfers there is no trustiox his benefit, or for any person appointed by him.

The very next case, to wit: Davis et al. vs. Anderson et al. covers all the other elements of fraud, which, according to the opinion of the Court and the argument of counsel, condemn this transfer under the Act of 1818, to wit: the fact that there was transferred a larger amount than wTas reasonably sufficient to pay the debt to the Bank of Columbus, and the stipulation that the surplus should be returned to the debtor. The matter settled in this case is, that a debtor may mortgage his estate to secure a debt due to one creditor to the exclusion of others, with a stipulation that the surplus, after paying the debt and costs, should be returned to the mortgagor. In accordance with the previous case, it is in this case held, that if an insolvent can sell his estate to a creditor to pay his debt, he may as a less power, encumber it to secure his debt. It is also held, that a surplus being conveyed does not invalidate the transfer, for in fact there was a surplus and the mortgage was sustained. The fact that there was a surplus in this case, (Davis vs. Anderson,) is demonstrated by the stipulation to return it. It is again held, that this stipulation being made in terms, does not vary the matter, because the surplus — the equity of redemption — -would return to the mortgagor without such stipulation, by operation of law. And it is farther held, for the point was distinctly made, “That under our Law of Mortgage, there is not such a trust existing between the mortgagor and mortgagee as will, per se, bring it within the provisions of the Act.” 1 Kelly, 192, ’3, ’4. It is of course also held, that if in a mortgage there is a trust for the benefit of the mortgagor, or some person appointed by him, it will be void under the Act of 1818. Now, let us look into the transfer by the Bank of Macon and see what it is. The Bank of Columbus presented at the counter of the Bank of Macon, its bills to the amount of $17,8-. 6 28, for redemption, and in payment the Bank of Macon gave to the Bank of Columbus a specie certificate for the -amount. A few days thereafter, on 30th July, 1832, the specie certificate was presented, and the specie demanded; whereupon, having no specie, the Cashier of the Bank of Macon, Mr. Atkinson, gave to Col. Jones, President of the Bank of Columbus, an order addressed to N. Barker, Cashier of the State Bank, which is in the following words: “ Sir — You will please deliver to Seaborn Jones, President of the Bank of Columbus, the above notes, which have been placed in your hands by me.” Accompanying this order was a schedule of notes, and which are the same receipted for by Col. Jones on the same day, amounting to $20,140. Mr. Barker accepted this order, on condition that certain amounts which the State Bank held against the Bank of Macon, &c. were paid. On the same day, to wit: 30th July, 1832, we have Col. Jones’ receipt to Mr. Atkinson, Cashier of the Bank of Macon, as President of the Bank of Columbus, in the following words: “ Received, from L. Atkinson, Cashier of the Bank of Macon, an order on N. Barker, Cashier of tire Branch Bank of the State of Georgia, for the notes of which the within is a correct list, and I promise to account to him for those received from him, after paying out of them the sum of seventeen thousand eight hundred and sixty-six dollars and twenty-eight cents, and interest from 27th instant, and two per cent, for the difference in exchange between said notes and specie.” Accompanying this receipt was. the schedule of notes which accompanied Atkinson’s order to-Barker. This schedule of notes was delivered by Barker to the Bank of Columbus, and these facts make the transfer in relation to which the presiding Judge made his charge. And what is it ? how is it to be characterized ? It is the ordinary transaction of a deb tar securing a creditor by a transfer of securities. It is in the nature of a mortgage of chattels. It is a conveyance of certain notes to the Bank of Columbus, out of the proceeds of which that bank is to pay a debt confessedly due to it, with interest from a given day, and twTo per cent, the difference in exchange between the notes and specie, and with a stipulation that if there is a balance or surplus, to account to the Bank of Macon for it. This transaction has been the basis of years’ litigation. As a man and a Judge, I am free to say, I see nothing wrong or illegal on the face of it. . It is in principle and its main features, the case of Davis vs. Anderson, and no more obnoxious to the Act of 1-81-8 than was that case. Plere as there, the transferrer was insolvent — here as there, he secured one creditor to the exclusion of others — here as there, the creditor stipulated to account for the surplus, and here we rule as we ruled there, that there is nothing in the relation of mortgagor and mortgagee, which creates a trust condemned by the Act of 1818.

The next case determined by this Court in construction of the Act of 1818, is Ezekiel vs. Dixon, (3 Kelly, 146.) In this case wre decided, that if an insolvent debtor assign his property to one or more persons in trust, for the benefit of a portion of his creditors to the exclusion of the rest, such conveyance is null and void as against the excluded creditors. The deed in Ezekiel vs. Dixon, conveyed the property to Dixon & Lichton, in .trust, for the benefit of certain creditors, who were to release the assignor from all farther liability. The creation of n trust brought this deed in conflict with the very terms of -the Act of 1818, and distinguished the case from those which preceded it, and it was ¡held void. Just such a conveyance, we have no doubt, the Act -of 1818 contemplates. The assignment of the Bank of Macon to the Bank of Columbus, makes no trust, and is not subject to the authority of Ezekiel vs. Dixon. The case of Brown and others vs. Lee and others, (7 Ga. Rep. 267,) is a case of assignment in trust, and was decided to be, upon the authority of Ezekiel vs. Dixon, obnoxious to the Act of 1818. The next case, to wit: Zee and others vs. Brown and others, (7 Ga. R. 275,) was the case of a mortgage, in its principles the same with the case of Davis vs. Anderson, and the mortgage was sustained upon the authority of that case. Davis vs. Anderson and Lee et al. vs. Brown el al. support the opinion already expressed on this assignment from the Bank of Macon to the Bank of Columbus, nor do the other . cases conflict with that opinion. So that, as I before said, the questions made as to the validity of that assignment in this writ of error, under the Act of 1818, are not open questions. As much confidence was expressed by counsel, in the idea that the assignment of effects more than reasonably sufficient to pay the debt, with an understanding that the surplus should be returned, would make the assignment in law, and without more, void both under the general law and the Act of 1818, I consider that idea yet farther. What effect, then, does the fact, (if it exists,) that a larger amount of effects is assigned than is reasonably sufficient to pay the debt, work ? Say the defendants in error, it makes it fraudulent in law and void. We do not, as before stated, so think. By operation of law, the excess reverts to the assignor, and in his hands is as much liable to his other creditors as it ever was, and it is also liable in the hands of the assignee to these creditors, in Equity; indeed, in Georgia it can be reached at Law by our process of garnishment. Upon the issue whether, in fact, the assignment was intended to hinder, delay or defeat creditors, it may be usually considered in connection with other facts and circumstances by the Jury. Of itself, it is not a conclusive badge of fraud. Its effect in proving fraud, must depend upon the amount of the excess, and upon other associated facts or circumstances, going to show fraud. A small excess ought, in our judgment, to weigh nothing, and ought to be considered as a provision against the unavailability of a part of the effects, and for paying expenses of collection, or reduction into money. In Beck vs. Bendett, the debts were $26,000, and the nominal amount of property assigned was $34,000 — a difference of $8,000. Yet Ch. Walworth in that case said, it was doubtful whether the. property was sufficient to pay the debts, after allowing for bad debts, and deducting expenses of collecting and of executing the trust. 1 Paige’s R. 305. In this case, upon the face of the assignment, the debt to be paid is $17,866 28 cents, and the nominal amount of the notes transferred is, say $20,140; the excess, therefore is only $2,273 72, and from that is to be taken two per cent, on the debt, for difference between the value of these notes and specie, which the Bank of Macon stipulated to pay. From this balance is also to be taken the expenses of collection, which a Court of Chancery would unquestionably allow, and then we shall have but a small excess — so small that it is not more, if enough, than a reasonable provision against bad debts, and should not weigh a feather’s weight with the Jury in passing upon the issue of fraud.

Does the undertaking of the Bank of Columbus to account to the Bank of Macon for the surplus, affect the law of this assignment? Not at all. The law of the case is the same with or without this stipulation. It is only declaratory of what the law would do with the surplus without it. Without it, in Equity, the Bank of Columbus would be compelled to account for the surplus. The question then resolves itself into this inquiry: does the resewation which the law makes, by implication, of a contingent excess, violate the assignment 1 Surely, upon that question there cannot be two opinions. I concede, that if the debtor should reserve to himself out of his estate an interest or portion, and create a trust to protect it against creditors, or reserve an interest or portion for any body else, and create a trust to protect it against creditors, the assignment would be void under the Act of 1818, and by the general law. In short, any trust for the benefit of the debtor or other person, will make the transfer void under the Act. We see no such trust here. By the transfer, the legal title to these notes passed to the Bank of Columbus, and that bank would hold the surplus, if any, without any stipulation to that effect, subject.to the claim of the debtor or other creditors. Just so with the stipulation. Concede that it would become a trustee of that balance, and that as to it a trust is created, yet it is not a trust for the benefit of the debtor against his creditors. The trust which the Act of 1818 condemns, is a fraudulent trust, intended to protect the effects from creditors for the benefit of the debtor. No such intention is inferable from this trust. The law can presume none such; for both the law and the terms of the assignment return the excess to the hands of the debtor, then as liable as any other part of his estate to pay his debts; and before it is returned to him, liable in the hands of the Bank of Columbus, to his creditors. The fact that the Bank of Macon stipulated for the return of the surplus, indicates willingness on her part that it should be applied to its debts. The transaction would have been more liable to the imputation of fraud if nothing had been said about it. As it is, nothing is covert; all is open. The law of this assignment is expressed briefly by Ch. Kent thus: “A provision in the assignment that the surplus, after all debts are paid, should revert to the debtor, is not improper; for such a resulting trust would follow oí course without any stipulation.” 2 Kent’s Com. 536, note. He is speaking of assignments to pay all creditors without preferences. Yet, if the proposition be true in such a case, it is also true in case of any assignment to pay a part of the creditors only. In neither case does the reversion by law of a surplus, affect the assignment. The cases relied upon by counsel for defendant in error, will be found to be cases where, in the deed, reservation of a part of the debtor’s estate is made, at the expense of the creditors, and for his own benefit. In all assignments to pay debts, a residuum may exist, which the law returns to the debtor, and the resulting trust which springs out of them will not invalidate them, unless the assignment be merely colorable, and made for the sake of the resulting trust. “ Such a residuary interest,” says Spencer, J. in Wilkes & Fontaine vs. Ferreis,u necessarily arises in any case, where property is assigned in trust to pay debts or satisfy other specific objects; but unless the assignment be merely colorable, and made for the sake of the resulting trust, it is not void.” 5 Johns. R. 344. No man can, upon the face of this transaction, say that the intention of the Bank of Macon was to lock up a part of its effects, so that creditors could not reach them; that the assignment was made for the sake of the resulting trust; that any benefit, to the injury of other creditors, was contemplated. So we pronounce it, upon its face in law, a valid assignment. 2 Kent, 535, 536, note. 5 T. R. 420. 1 Paige R. 305. 5 Johns. R. 335. 6 Mass. 339. 12 S. & Rawle, 198. 6 Cow. 284. 2 Johns. Ch. R. 283. 2 Johns. Ch. R. 580. 20 Johns. R. 442. 2 Pick. 129. Angel’s Law of Assignment, 96 to 108.

[6.] Whilst we thus overrule the charge of the Court, and adjudge this assignment valid, per se, in law, we, at the same time, hold that it maybe attackedfor fraud in fact. The complainant in this bill may, under his allegations, and within those allegations show, by proof, that it was intended to delay, hinder and defeat other creditors, and that the Bank of Columbus colluded with the Bank of Macon for that purpose. The general allegation of fraud in a bill, is not sufficient. The complainant must state in what the fraud consists. He must reduce the general charge to specifications, and is confined in his proof to the specifications which he makes. This rule we apply to this case. There are specific allegations of fraud in this bill. Proof of badges of fraud go to the Jury to be judged of by them, in determining the issue of fraud in fact. For example, he may prove the insolvency of the Bank of Macon at the timé of the transfer; the fact that it was without a board of directors; that Ellis had assumed the Presidencyand any other fact or circumstance which falls within the allegations in his bill. It is stated again, to prevent misapprehension, that insolvency, the resignation of the board of directors, the transfer by the Cashier, Atkinson, without a board, and the usurpation by Ellis, and the fact that there is a larger amount conveyed than is reasonably sufficient to pay the debt, and the stipulation that the Bank of Columbus shall account for the surplus, do not, singly or collectively, make this assignment void in law. The excess and the reservation of the surplus, are not in this case even indicia or badges of fraud. These other facts and circumstances are simply proveable, and the Jury are to give them such effect, if any at all, as they may think them entitled to, in passing upon the issue of fraud, in fact or not.

All assignments are void for fraud — an intentional fraud in fact — and upon this issue the evidence, with the limitations stated, is admissible. ■ -

Let the judgment be reversed.