8 Ga. 468 | Ga. | 1850
By the Court.
delivering the opinion.
This was an action of debt brought by Richard A. Lane, as the holder and owner of the bills of the Planters & Mechanics’ Bank of Columbus, to the amount of #925, against Thomas Morris, as a stockholder in said bank, of one hundred and sixty-nine shares of the capital stock thereof, and seeking to make the defendant liable to the plaintiff (the bank being insolvent,) for such a proportion of his said debt, as the number of shares, so held by the said defendant, bears to the whole capital stock of said bank, which is a million of dollars.
No authority was produced on the argument, settling what the practice is in this respect. I find, upon examination, that it has not been uniform. There are precedents both ways. Mr. Sellon, in his Treatise-on Practice,page 340, citing Say. 312, lays it down, that after argument, and even after the opinion of the Court has been pronounced on the demurrer, it is in its discretion to give leave to withdraw it. In Ayrs vs. Wilson, (Douglas, 385,) leave was granted to withdraw the demurrer and reply, on payment of costs. There are other cases, however, in the English books, in which it was refused. 1 East, 391. 1 Burr. 321. 2 B. & P. 482. 3 B. & P. 11, 12. In the United States Courts, it has been decided that an amendment to a plea may be allowed, after the plea has, on demurrer, been adjudged to be bad. 6 Cranch, 206. But whether, upon like principles, the demurrant would have leave to withdraw the demurrer, where a judgment against him has been pronounced, was not decided.
It is immaterial to the present case, whether the practice be established one way or the other. Upon principle, it would seem, that it ought not to be allowed under our system. The demurrer
The object of the testimony sought to be introduced, was to prove who were the stockholders in the company. I am not prepared to say that it was not competent to make this proof, independent of the book. I am quite clear', however, that the absence of the book was sufficiently accounted for. It is true, that the search for it was not made by the defendant; still the inquiry which was instituted, created a strong probability that the book was lost or destroyed. In addition to this, Morris swore that the book was not in his power, custody or control.
The thii’d assignment is, that the Court erred in overruling the demurrer of the plaintiff to the 5th, 7th, 9th, 10th and 11th pleas, as set out in the record, and in allowing the defence set up therein. It becomes necessary, of course, to examine the several matters put in issue by these pleas. The 5th raises the question, whether or not the Common Law principle — that upon a dissolution of a corporation, all its debts and credits are extinguished —applies to the ultimate right of action, given by the charter to the bill-holder against the stockholder 1 For greater convenience, and to avoid repetition, I shall reserve this point until I come to consider the charge of the Court.
The 9th, 10th and 11th pleas all relate to the liability - of the stockholders, and may be considered and disposed of together.
The charter, it will be perceived, does not restrict the liability, as is usually done, to any particular class of stockolders; either those who originally subscribed — those who were stockholders when the bills or notes were issued, or those who were so at the time of the dissolution. It makes provision, however, for all to escape liability-who have transferred their stock, and given sixty days’ notice thereof in some public gazette of this State, provided the sale has not taken place within six months prior to the failure of the bank, and declares most explicitly, that “ no stockholder shall be relieved from his liability,” notwithstanding-any disposition he may have made of his stock, until this is done.
All, then, who ever were stockholders, are liable to bill and note-holders, unless they have been discharged in the manner prescribed by the Act. Such is the plain, express and unmistakable language of the Statute; and so ample was the security which the Legislature intended to provide, that even sale and notice is no protection, if within six months of the failure. Each and all are subject to be sued at the instance of any and every bill-holder. There can be but one satisfaction, of course, except for costs; and the stockholder can-be charged only to the extent of his stock.
I shall not be guilty of the folly of darkening the unambiguous terms of the charter, by “ words without counsel.” The authority of Sir F. Duarris, could he be invoked to show, that where restrictive expressions are used in a Statute, all things áre intended to be excluded, which are not enumerated, on the familiar principle, that expressio unius est exclusio alternis ; or as it is otherwise worded — expressum facit cessare taciturn — that the express mention of one thing, implies the exclusion of another. Reference could be made, too, to reported cases, to establish, that where a general Act of Parliament confers immunities, which expressly exempt certain persons from the effect and operation of its provisions, it excludes all exemptions to which the subject might even before, by law, have been entitled, for the reason that the introduction of the exemption is necessarily exclusive of all other independent extrinsic exceptions. 2 Duar. Stats. 712, 713. Rex vs. Cunningham, 5 East, 478. 3 T. R. 442. But it is enough for the Court, in this, as in all other cases, to say that “ thus the law is written’’
As to the question of contribution between the stockholders themselves, we forbear to discuss it. Not being made by the record, it would be premature to do so.
I come now to the errors alleged to have been committed in the charge of the Court; and—
It seems to be conceded by counsel, that there was error in refusing to give the charge as asked, as well as in the instructions which were given. At any rate, it was in direct conflict with the judgment of this Court, in Lumpkin et al. vs. Jones, (1 Kelly, 27,) as to what constitutes a bank failure, as well as to the general tenor of decisions in this country upon this subject. State vs. The New Orleans Gas Light & Banking Company, 2 Robinson’s (La.) Rep. 529. Attorney General vs. The Bank of Michigan, Harrington's Ch. (Mich.) R. 315.
In the opinion of this Court, the right of the bill-holder, under the 11th section of the charter, to hold the person and property of the stockholder pledged and bound for the ultimate redemption of the hills and notes of the bank, in proportion to the amount of his shares and the value thereof — a right which is not primary and total, but secondary and proportional — is one which he may assert in his own name, before or after the formal dissolution of
By the terms of the original grant or contract with the government, the defendant became liable for every bill or note issued by the bank, in two capacities — one as a member of the corporation —the other as an individual stockholder. He may be made chargeable in both of these ways. When pursued as a corpora-tor, it must be at the instance of the directors, or other legally constituted agents of the corporation, or some satisfactory excuse must be rendered for not doing it. But no such case is made by this record. When this defendant-made himself a stockholder by subscription or purchase, he became ultimately bound to pay the bills and notes of the bank, by an express stipulation, to which he voluntarily assented for his own benefit, and his individual property and credit were thereby pledged to each holder of the bills and notes, to fulfil this stipulation ; and it is upon this undertaking, which no power can impair, that this proceeding is instituted. Penniman vs. Briggs, 1 Hopkins’ Chan. R. 300 ; and in error, 8 Cowen’s R. 387. Bank of Poughkeepsie vs. Ibbotson, 24. Wend. R. 473. Castleman vs. Holmes, 4 J. J. Marsh. R. 1. Drinkwater vs. Portland Marine Railway, 6 Shep. R. 35. Slee vs. Bloom, original case in Chancery, 5 Johns. Ch. R. 366. Proceedings on appeal, 19 Johns. R. 456. In the Court of Errors, 20 Johns. R. 66. Spear vs. Grant, 16 Mass. R. 9. Vose vs. Grant, 15 Mass. R. 476.
I would merely add, that this is one of a new and peculiar class of cases, which owe their origin altogether to recent Statutes, imposing a personal responsibility upon the members of a private corporation, in case of the neglect of the corporate body to pay the demands which it has incurred. Ang. & Am. on Corp. 555. The constitutionality of these Statutes has been settled, that they
Knowing that this decision would involve principles of the first interest and importance, both to the parties and the public, it is a great relief to feel an unwavering confidence in the correctness of our conclusions ; for there is no more unpleasant exercise of our duty, than to be forced to decide where we entertain doubts.
The judgment of the Court below, for the errors specified, must be reversed, and the cause remanded for further proceedings.