Thornton v. Lane

11 Ga. 459 | Ga. | 1852

By the Court.

Lumpkin, J.

delivering the opinion.

After the time spent in the re-argument of this cause, the complaint will not be reiterated, I trust, that the questions .involved have been decided with “ constitutional haste,” whatever other objections maybe urged against the judgment.

We have listened patiently at least, if not with unmixed pleasure, to eight elaborate arguments, occupying more than as many days, on questions, some of which have never been disputed, and most of them heretofore solemnly adjudicated by this Court.

[1.] As to the right of a party to re-assign upon another writ of error in the same case, points which have already been determined, we wish the position of this Court to be distinctly understood ; and this is rendered the more necessary, from the fact, that its own authority is invoked for the new feature, now for the first time to be engrafted in our judicial system. Let it not be supposed for a moment, that parties are entitled to this privilege as matter of right; and that if it be conceded in any case, it is of favor only.

In the writ of error before us, we have not deemed it advisable to arrest the discussion, for the reason, that when these bank cases came up two years ago, we had not a full Court; and they were new in practice, if not in principle, in this State. Hence, we were willing to submit to are-argument of them. We need not say, however, that when questions have been once decided by this Court, they are to be considered as the law of the land, and respected and carried into full effect as such, the same as a Statute of the State ; and that we will not in future, entertain a writ of error at the instance of the same party, except by leave, involving points which have been already distinctly settled. And this license will be grudgingly granted, appreciating, as we do, the importance of having it understood, that the law is stable. It is only in extreme cases that a Court in the last resort should permit its judgments to be drawn into controversy. The doctrine of slare-decisis, is right, both upon policy and principle.

Say the Constitutional Court of South Carolina, in the State vs. Deleisseline, (1 McCord, 52,) “ the importance of adhering to decisions of this Court, is becoming more and more manifest every day. A greater evil can scarcely attend a Court in the last resort, than that its decisions should be unstable and fluctuating. The very object of such a Court is to give certainty to what before was uncertain. Its decisions become a rule of property and a rule of conduct,” (and I would add, of .legislation too, as the several bank charters recently granted in this State will show,) “ and ought to receive such support as to secure to them, the unbroken confidence of the community.” The learned Judge who delivered this opinion, added, “that such was the respect entertained by the Bench of that State, for their own decisions, that after ten years’ experience, he knew but one case where the Court had undertaken to review and reverse a former decision.” And we will not be understood, of course, as denying to parties who have never been before the Court, the privilege of prosecuting a writ of error for the purpose of reversing any decision, sentence, judgment or decree, of any Superior Court of this State.

Much sympathy has been expressed for the Court during this discussion, (a fashion not unfrequent at this bar,) for the “ constitutional haste ” with which it is compelled to decide cases. Personally, its members are entitled to this sympathy; for our peculiar organization imposes upon us, an amount of labor, bodily and mental, without a parallel in any other appellate tribunal in the world. But if it be designed by this to weaken the force of the decisions themselves, as law, then however kindly intended, we must respectfully decline the apology thus volunteered in our behalf.

Both observation and experience teach, that the human mind acts with increased povrer according to the pressure put upon it. Give it time and it acts slowly. Force it to decide promptly, as the General is required to do on the battle-field, and the statesman in the midst of revolutions, and the same mind will do the work of a month in a moment; and what is more, will do it better. True, the effect upon the individual himself, is most exhausting, but the public does not Suffer.

Let cases then be properly prepared and argued — and none should be brought up that are not — and concentrating as we are compelled to do, all of our intellectual and physical energies, in the brief space of time allotted for the purpose, the determinations are made, and in my humble judgment, neither the parties nor the public have just cause of complaint, that more space was not allowed for consultation.

It is reward enough for all our toils and sacrifices, the extent of which are known only to ourselves, that the administration of each of the present incumbents, such as it is, has received the almost unanimous approval of a generou'h profession and a just people. With this verdict we are satisfied; and proudly plead it in bar of all that is said or insinuated, openly or covertly, to our prejudice.

[2.] Why so much time and talent, labor and learning, have been employed to establish a proposition which nobody denies, viz: that the debts of a corporation, either to or from it, are extinguished by its dissolution, I am at a loss to comprehend. Certain it is, that it was recognized by this Court at this place two years ago, as it had been on more than one occasion previously.

In Hightower vs. Thornton and others, (8 Ga. R. 486,) this Corirt say, "upon the threshold of this argument, we are met with the Common Law principle,-that upon the dissolution of a corporation, all the debts due to and from it, are extinguished. A doctrine which results necessarily from the fact, that the corporation having expired, whether by its own limitation, by surrender, abandonment of its members, or judgment of dissolution, there is no one in law to sue or be sued.”

That this doctrine is “ odious,” is evidenced by the fact, that a majority of the American States have already by their “ enlightened legislation ” “ interposed to prevent, tb war'd- off, the iniquitous consequences ” of this Common Law rule ; the existence of which, I take it upon myself to affirm, is “ a disgrace to a civilized State.” Georgia is not obnoxious to this reproach, so far as this corporation and'others in its vicinity, in pari delicto, are concerned. She has made ample provision to rescue them. from the operation of this rule. Such being the rule however, and the foundation of it, this Court does not feel itself called oh to eitend it One jot at tittle, beyond the reason which gave it birth.

It is asserted with great confidence, that “the legislation of no country could present a bloodier legal picture.” “ The annals of jurisprudence do not afford a parallel to such an assumption,” as the liability of the stockholder to the bill-holder, which is here sought to be enforced. But strip this picture of the boldness of its outline, its gaudy coloring, and what are the naked facts, as they stand revealed upon this record ?

A bank charter is created with á capital stock of a million of dollars, two hundred and fifty thousand of which are required to be paid in specie, before any bills are issued.

[3.] By the 14th section of the charter, it is enacted, that for the well 'ordering of the affairs of said corporation, there shall be seven directors, who shall be elected as soon as the sum of two hundred and fifty thousand dollars in specie, shall have been paid in by the stockholders of the bank; and the President, directors and cashier are hereby expressly inhibited from the issuing of their bank notes, until they have officially and under oath, notified to the Governor that the provisions of the charter, in this respect, have been literally and strictly complied with. Prin. 125, 126.

By one of the fundamental articles of this corporation, it is provided, that the total amount of debts which the company shall at any time owe, whether by bond, bill, note, or other security, shall not exceed three times the amount of their capital stock actually paid in, over and above the amount of specie actually deposited in the vaults for safe keeping; that in case of excess, the directors under whose administration it shall happen, shall be liable for the same in their private a?id individual capacity, and may be sued for the same in any Court of Record in the United States, by any creditor of the corporation, any condition, averment or agreement to the contrary notwithstanding; but that this 11 superadded security ” shall not be so construed as to exempt the said corporation, or the lands, tenements, goods and chattels, of the same, from being held liable for, and chargeable with said excess.

And by another clause it is enacted, that the persons and property of the stockholders shall be pledged and held bound in proportion to the amount of shares and the value thereof, that each individual or company may hold in said bank, for the ultimate redemption of the bills or notes issued by said bank, in the same manner as in common actions of debt; and no stockholder shall be released from such liability by sale of his stock, until he shall have caused to have been given sixty days’ notice thereof, in some public gazette of this State. And in case of a failure of said bank, all the stockholders who may have sold their stock at any time within six months prior to said failure, shall be liable in the same manner as if they had not sold their stock. Prince, 125, 127.

This then, is the contract made by this corporation with the public, and these are some of the obligations and responsibilities which the corporators assumed; the defendant, in common with all the other stockholders, by his acceptance of the charter, agreeing to all its terms, and to that individual liability clause amongst the rest, for the ultimate redemption of the bills of the bank. Every stockholder understood that he took upon himself this risk and burden, and pledged his person and property for the fulfilment of this duty. And on the other hand, every bill-holder, it must be presumed, took the notes of the bank upon the faith of that security for the performance of the undertaking. The contract was inchoate, but the liability commenced when the bills were first put into circulation. It was consummated when the corporation finally failed to redeem them. When the bills of the corporation were issued and received, the holder acquired a right against the stockholder, of which, although ultimate, nothing could deprive him. It was absolute, vested, and fixed, notwithstanding its enforcement was deferred or postponed until the happening of a future contingency.

Let us turn now to the testimony of Abram B. Ragan, to see whether the Courts should be astute to protect the stockholders of this company from liability; or whether they should not be liberal in providing the bill-holders with the means of preventing their escape, in the application of those remedies so wisely guaranteed by the Legislature.

Mr. Ragan was cashier of the Planters’ and Mechanics’ Bank of Columbus, at its first organization, late in the preceding winter, or early in the spring of the year 1837, and continued in office till the spring of 1838. He testifies, that when the bank was organized all its stock was subscribed for, and that 25 per cent, thereon was paid; that a large portion of said payment was made in the specie certificates of deposite, given by the Bank of Columbus and the Insurance Bank of Columbus; that a committee of stockholders made arrangements with those banks to give specie certificates for the notes and bills of the stockholders in the Planters’ and Mechanics’ Bank; that said bank did no business in 1837 ; and after its organization resolved to do none until the fall of that year, and a resolution was passed to discount the notes of its stockholders to the amount of their stock, less about 2per cent, for contingent expenses, respectively, making said notes due 1st October, 1837 ; and that if said stockholders did not borrow upon these terms, others might, and this arrangement was carried out mainly, if not entirely to stockholders ; ihat the first bills issued by said bank, were dated 6th February, 1838, and commenced to be put into circulation a week or ten days thereafter; and then banking business commenced. When this banking business was determined on and commenced, the stockholders and others who had given notes, as before testified to, were required to pay in 50 per cent, thereon, which payment was made in lank bills of suspended banks, and not in specie. At the time bills were first issued by said bank, it had but little specie on hand or in its vault; not exceeding $800 or $1000. Said Ijank made three issues of bills in 1838, the first of $50,000, the second'!of $150,000, and the third of $80 or 100,000. It commenced busitiess as a suspended bank, and paid no specie whilst' witness was connected with it as cashier, except small amounts for change.

These are the startling facts disclosed by the officer who best understood the condition of this institution, and who testifies to what he knows. And yet, when these stockholders who thus abstracted from the vaults of the bank, its specie funds, which they subsequently returned “ in bills of suspended banks,” are called on to make good their collateral promise and undertaking under the charter, for the ultimate redemption of a portion of the $300,000 of redeemable paper currency so illegally and unwarrantably cast upon the community, the attempt is made to browbeat and over-awe not only the parties, but even the Courts of the country, for meting out to the bill-holders, the simple measure of redress so providently provided by legislative forecast ; and the most impassioned declamation is resorted to, to expose the “ anomaly ” of such a procedure. To our minds, it would be a much greater “ anomaly ” to suffer a corporation to contract liabilities contrary to its charter, and which it was either pnable or- unwilling to discharge, and which are adjudged sufficient to work a forfeiture of its charter, and then for the corporation to be relieved from their personal liability, by thus taking advantage of their own wrong.

The very idea is abhorrent to every principle of justice. And the Legislature wisely intended, no doubt, to remove from the corporators this strong temptation, to make a way of escape from the consequences of their own defalcation, by surrendering their charter, or doing, or omitting to do those things, which would incur a forfeiture.

And why should it be thought a strange thing for the corporation itself, which is primarily liable, to be exonerated under the operation of the Common Law rule, to which we have adverted, and for the personal liability of the stockholder, which is secondary only, to be retained and enforced ? It would not be pretended that a debt due by the bank, and upon which there was an indorser, could not be enforced against the latter, notwithstanding the discharge of the principal. Nor is this any new principle, either in legislation or jurisprudence. It has occurred a thousand times and oftener, no doubt, under the bankrupt Acts of England and of this country, that the principal debtor has been released by law, while the debt has been enforced against other parties to the paper, who were in no way interested in its consideration, which cannot be said, by the by, of these corpo-. rators. They are no accommodation parties merely, but joint and several stockholders, interested in the circulation of the bank, together with all its other operations, upon which a profit or loss might accrue. They would have participated in the profits had any been made; where is the hardship then, of compelling them to share the loss? For myself, lean see none. We are content, therefore, after the most mature reflection, to re-affirm merely on this point, the views which we expressed when it was first presented for our consideration, in Lane vs. Monis. That “ 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 stockholders pledged and bound for the ultimate redemption of the bills 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 partial — is one which he may assert in his own name, before and after the final dissolution of the corporation; one which is wholly above and beyond the reach of any legislation, and independent, and irrespective of itthat it “ is a supplemental or superadded security, for the benefit of the bill-holder, one which he is authorized to enforce in his own name in an action of debt at Law, directly against the stockholder.” 8 Ga. R. 468.

2d. But it is contended that the plaintiff’s right, if he ever had any, is barred by the Statute of Limitations, of either four or six years. It is sufficient to state, that in point of fact, it is barred by neither, according to this record. The return of nulla bona on the execution against the assignee of the bank, was made the 17th of March, 1848, and this action was brought the 19th of January, 1849, within less than one year from the time when the liability accrued. And strange as it may seem, a similar state of facts existed in the case of Lane vs. Morris, decided at this place twelve months ago. There judgment was confessed in 1848, a return of nulla bona made on the fi. fa. in March of the same year, and the suit was brought to May Term, 1851, of the Superior Court of Muscogee County, viz : within about three years of the time when the right accrued. Indeed, Fif the equitable assets of the bank are to be first exhausted, before the eventual personal liability of the stockholder can happen, as is insisted upon by the plaintiff in error, the Statute has not yet commenced running.

The plea of the Statute of Limitations, as applicable to this class of claims, was first made in Lane vs. Morris, to which I have already referred. It appeared from the record, that this defence, among others, had been filed in the Court below ;"and it was argued before this Court, and an opinion pretty strongly expressed against the Statute. When I came to write out the opinion, however, I was convinced, by a careful examination of the bill of exceptions] and transcript, that the question was not legitimately made — for the reason, that although the fact had been assumed in the argument, that still it did not appear from the record that the point had been decided by the Circuit Court. In truth, I apprehend that it was, and in favor of the plaintiff in error; and hence it was not excepted to and brought up. The Court therefore threw out the intimation merely, that “ it appeared to have been long since settled in the English Courts, that the limitation of six years did not extend to the case of an action of debt founded upon a statutory liability- — the Statute being considered in the nature of a specialty; and that, in Bullard vs. Bell, (1 Mum. 243,) Judge Story reviewed the authorities upon this subject, and decided, that the short bar oí six years did-not extend to an action of debt against the stockholders of a corporation, founded upon a statutory liability.”

In the same case, the question was regularly presented twelve months thereafter, and the intimation previously thrown out was fully adopted, namely, that in an action brought by a bill-holder against a stockholder, under the 11th section of the charter incorporating the Planters’ and Mechanics’ Bank of Columbus, for the ultimate redemption of the bills issued by the bank, the liability will be considered in the nature of a specialty, and not barred until twenty years have elapsed. 10 Ga. Rep. 162.

To this judgment we still adhere, with unshaken confidence in its soundness.

The Bank of the United States vs. Dallam, and others, (4 Dana, 574,) decided by the Court of Appeals of Kentucky, was not relied on in the discussion in the case in 10 Ga. Rep. nor was it before the Judge who delivered the opinion in that case. It is very similar in many respects, to the case now under consideration, as well as to that of Lane and Morris; and we are gratified to find the coincidence in the conclusion of that Court and ourselves, as well as in the train of reasoning by which they were guided, and the authorities upon which they relied to sustain their opinion. It is a consolation and encouragement in questions of such magnitude, to be thus sustained and fortified.

The Bank of the United States having in November, 1820, obtained a judgment for seven thousand dollars, with legal interest from February, 1820, against a private corporation, styled the “ Fayette Paper Manufacturing Company,” and having had a fieri facias issued thereon, on which there was, early in 1821, a return of nulla bona, filed a bill in Chancery against the stockholders of the company, in 1830, for subjecting their individual property in proportion to the respective amounts of their several interests, in virtue of a provision in the charter of incorporation, in the following words : “ Provided, however, that the estate and property of any individual shareholder, who holds or possesses stock in said corporation, shall at all times be liable and subject in law, in proportion to his or her interest therein, to pay and satisfy all debts and demands contracted by said corporation, during the time he or they held stock therein, upon the failure of the incorporate funds to discharge the same.” The several defendants having in their answers relied on the Statute of Limitations, the Circuit Judge, on that ground, dismissed the bill absolutely, and the bank appealed and insisted on a reversal of that decree.

Chief Justice Robertson, who delivered the opinion of the Court, says:

“ As the judgment and return on the execution thereon, entitled the bank to demand the amount of its debt from the stockholders in their personal right; and as they are liable, not in solido, but only distributively, in the ratio of their several interests, and are moreover multitudinous, we have no doubt that the Circuit Court sitting in Equity, had jurisdiction over a joint billas filed against all of them, concurrently, with the cognizance of a Court of Law over separate actions against each of them upon his sole and several liability.”

The Chief Justice then proceeds to show that any limitation that would bar the action at law, would bar the bill; and that the provision in the charter subjecting the property of the stockholders, does, not render their property liable to the levy of an execution on a judgment or decree against the corporation, nor subject them to any suit as parties directly bound by any contract 'of the corporation ; but that the liability of the shareholders is founded' upon the contract made by the corporation, the return of nulla bona showing the failure of the corporation to discharge it, and the-Act of Incorporation, all of which constituted a statutory liability which might be properly enforced at Law by an action of debt,, and thus continues—

“ Counsel for the shareholders, assuming that their liability is collateral, and results only from an implied promise, insists that assumpsit would have been the appropriate remedy. But we can neither admit this assumption, nor acknowledge the conclusiveness of the deduction thus drawn from it.

“ The Statute of Limitations of this State, like that of James the First, of England, provides among other things, that all actions of debt grounded upon anj lending without contract ox specialty, shall be brought within five years after the cause of such action or suit, and not after. In England as well as in this country, it has been frequently decided, that the foregoing provision respecting the action of debt, applies only to such actions on parol contracts ; and also that it applies to such contracts only as are contracts in fact, and not to such obligations quasi ex contractu, as are imposed either expressly or constructively by mere lawP

And in support of the foregoing positions, the following cases are cited: Jones vs. Pope, 1 Saunders, 367, ’8,and notes; Hodsden vs. Harridge, 2 Ib. 64, ’5, and notes, and cases there cited; Peese vs. Howard, 14 Johns. Rep. 479; and Bullard vs. Bell, 1 Mason, 243.

[4.] It is contended that this case is entitled to no weight as authority, for the reason that the question which it purports to adjudicate, was not legitimately presented for the determination of the Court. The same criticism is made on the remark of Judge Story, in Wood et al. vs. Runner et al. 3 Mason, 308; viz: that the capital stock of an incorporated bank is deemed a trust fund for the payment of debts, &c. Indeed I may add that the opinion in almost every case which has been relied on in support of these bank decisions, has been disposed of in the same summary manner.

What adjudications, I ask, are authority in this State ? None, I answer emphatically, except the decisions of our own Courts ; of the Supreme Court of the United States, upon subjects on which they are made by the Constitution the exclusive or final arbiter, and those of the English Courts previous to our adopting Statute. All else is mere opinion, and comes recommended in reference alone to the source froA which it emanates. With this limitation, the inquirer after judicial truth is at liberty to range through the whole field of legal learning; to explore the decisions of the American Courts — British and other foreign tribunals — the opinions of majority or minority Judges — of distinguished jurists, on or off the Bench' — -on points made or not made by the pleadings, text-books, elementary treatises, law lectures, and every other department of judicial science; gathering resources from all; examining the whole without fear; retaining what is applicable to truth and justice, and rejecting what is not.

When a decision has been pronounced in England or the Courts of this country, upon solemn argument upon the exact jioint in issue, it is deserving of course of more respect. The presumption is in favor of its correctness; and we adopt it frequently and the more readily as a just exposition of the law. Still, I repeat, it is not authority; and it is a total misconception of the matter to claim for it the sanctity of law, and to maintain that the Courts are bound to follow it as such. It is mere opinion, and nothing more.

In cases which are authority, we must look alone to the principle of the decision; for that alone is law. And any expression of opinion by the Judge in such cases is obiter dictum only. But where the whole is but opinion and nothing more, it is not improper to look to the argument of the Bench or the individual member of the Court, who is its organ in delivering its opinions.

In Slack vs. Moss, Dudley, 161, the Convention of Judges, in determining between the conflicting rules in Walton and Shelly and Jordan and LashbrooJce, followed the dissenting opinion of Judge Cheves, in Craig vs. Newton, in preference to that of a majority of the constitutional Court of South Carolina. They adopted the opinion of Lord Kenyon instead of that of Lord Mansfield, because the latter decided in reference to the commercial policy of England, to the injury of every other interest. They rejected the lead of New York, Pennsylvania and Massachusetts, because as they supposed, the Judges of those States, taken as they generally were, from the large commercial cities of those States respectively, adhered to the rule in Walton and Shelly, for the same reason that it subserved the local interests of New York, Philadelphia and Boston.

In other words, the Convention denied as authority, the decisions of the State Courts as well as the British Courts, since the revolution, because their reasons were not sound and applicable to the state of things here; but “ encouraged a spirit of favoritism at war with the genius of our Constitution, and adverse to the tranquillity of our government.”

Equally untrammelled is this and every other independent Court in this country. Apart from authority, we look to principle alone, as the beacon-light to guide our investigations.

We here dismiss this ground, with the single remark, that we are clear that a statutory liability is not included within any of the Acts of Limitation of this State. It is neither a simple contract; nor a specialty for nothing is but a writing under seal; but a quasi contract in the nature of a specialty. But being at least as high evidence of indebtedness as any specialty can be, that twenty years is the proper bar to actions brought to enforce the obligation, it imposes. Notwithstanding some fifty pages of Mr. Holt’s brief are devoted to the discussion of this branch of the case, it signally fails in controverting this impregnable position. It is the capital defect in this voluminous argument.

Even if this statutory liability was a specialty, and consequently embraced in the Statutes of 1767 and 1805, as it is not, still we should hold that the limitation of Jour years, provided by the latter Act, did not apply to this case. By the Act of 1767, specialties are excepted from the Jour years limitation therein imposed ; or rather the four years bar is expressly restricted to contracts without specialty; by the Act of 1805, the four years limitation is extended to all contracts. But by the Act of the 8th of December, 1806, the law of 1767, is fully revived; and all Acts and parts of Acts which militate against its intent and meaning are repealed. When the Statute of 1767, had restricted the limitation of four years to contracts without specialty, and the Act of 1805 extended it to contracts with specialty, may it not be fairly insisted that this latter provision is contrary to the true intent of the former, and therefore repealed by its revival ?

But I repeat that we do not rest the decision upon this view of the subject.

3d. The next position occupied by the plaintiff in error, is that not being an original subscriber for the stock upon which he is sought to be made chargeable, but holding by transfer from others who failed to give the sixty days notice of the sale in terms of the charter; and the same, moreover, having been made within six months before the failure of the bank, the liability, if there be any, is upon the original stockholders, and not upon him; that the assignment itself is void as to the creditor. Besides, he insists that if liable at all, it is not to the extent claimed by the plaintiff in his action, inasmuch as that would make the capital stock of the bank four, instead of one million of dollars, as limited by the charter.

One of the counsel for the plaintiff in error, cites numerous precedents from the different States of the Union, to show that upon charter clauses similar to the one under cpnsideration, it has never been held that all who ever were stockholders are liable. That I may do justice to this portion of the argument, I will transcribe the whole of it.

“ We grant that the cases to which we have referred, look a different wray, every way, except as we have said, to the liability of all. We believe that if the Courts making those decisions, had entertained the just and holy horror which we have endeavored to express, and which this Court has on a former occasion so well expressed, of judicial legislation, they would not have made these decisions.

“ Courts are too prone to feel that they are called upon — that they are obliged, to help out the errors of legislation. This confessedly is not their duty, nor is it their privilege.

“ We believe that it was this conviction, well fastened upon the mind of the Court, that it could not, that it did not possess the administrative power so extensive as to single out a particular class and declare them liable, that led it, may wm in the most perfect respect say, hastily to the conclusion, that all were liable. If it was haste, it was constitutional haste, the mislortune, the great misfortune of this tribunal, and in nothing its fault. We of course allude to that particular provision of the Constitution, which compels, with a tyrant’s will, the decision of every cause brought to a term and during the term, be the causes many or few, and the term short or long. We have seen the mass of confusion and contradiction multiplied into itself, which has grown out of the efforts of the Courts to help out the om issions of the Legislature. Here we have seen that one class was decided liable, and there another; and yet under the very same law7 or laws, having in view the same ends. The charier of the Rossie Lead Mining Company, upon the construction of which, in this particular connexion, we have referred to a number of cases, had its origin in 1837. In 1846, we find in the Court of Errors of New7 York, senators gravely discussing who were liable, and continuously from the date of the charter this has been so; the Courts agreeing upon nothing, save that which we seek to establish — that all are not, and cannot be liable. This rjery confusion and contradiction — this very inability of the judicial mind to centre upon any particular class, is in itself a most potent and unanswerable argument in favor of our position: that it is a matter which could alone have been settled by the law-making power; and this having omitted it, the law-administering power cannot cure the omission.

“We have done with this question. Have we showm that there is no precedent for the liability of all, and that the Legislature having failed to designate a class, the Court is powerless to supply the omission? This is what we have intended; our success is not for our judgment.” — Mr. Holt’s Brief, page 96.

Ex concesso, then, every Court that ever decided this vexed question, has ruled it wrong, “ ourselves included.” All the rest, in fixing the liability upon any particular class of stockholders ; we, for holding that all are responsible. With this difference however, (thanks to our brother for this plea in mitigation in our behalf) that other Courts had ample time “ to see the right and pursue it too,” while we have been betrayed into error by the “ constitutional haste” with which we are compelled to render our judgments.

After nine years! consideration, it seems that the New York tribunals have been unable to agree upon the proper construction to be put upon a similar clause in the charter of the Rossie Lead Mining Company. It may be expected that their solution of this knotty point, should they ever arrive at one, will at least be satisfactory.

We shall endeavor to avoid the imputation of adding to “ the mass of confusion and contradiction multiplied into itself” which has grown out of conflicting decisions, by being at any rate consistent with ourselves; and maintaining, as we have heretofore done, that inasmuch as the charter declares, that “ the stockholders shall be bound” for the ultimate redemption of the bills of the bank, that it is our duty, first to ascertain who answers the description, and then against such to enforce the obligation imposed by the Act.

Another distinguished counsel for the plaintiff in error, whose candor never forsakes him, be the consequences what they may to his client or his cause, admits, as all fair minds are forced to do, that somebody is liable for the ultimate redemption of the circulation of this bank; and he inclines to the opinion, that it is those who were stockholders at the time the liability accrued. And in his argument before the Court he was understood to say, those who were stockholders when the bills were issued, and who, notwithstanding the transfer of their stock, ■ had failed to get released upon the conditions prescribed by the Act.

In business corporations, as mining and manufacturing companies, this rule has frequently been adopted, and may be just and right. In banking institutions, it is wholly impracticable. The date of a contract fixes, ordinarily, the time of its execution, and consequently, the period when the liability of the parties to it attaches. Not so with bank bills. The date of a bank note is no criterion whatever, of the time when it originally issued, much less of its last or final issue; for the bills of' a bank are returned and re-issued daily, in the ordinary course of business.

Besides, this construction would'often result like the other, in discharging all the stockholders. For example, suppose that those who were stockholders in 1838, when the first $300,000 were issued by this bank, had all transferred their stock more than six months previous to the failure of the bank, and had given the sixty days’ notice thereof in terms of the charter. They would be exempt, of course, by the law of their contract. Neither could their assignors be made responsible, for they were not stockholders when the notes were issued. In such case, upon this hypothesis, none would be liable. But here, again, we encounter the stern mandate of the Statute, that “ the stockholders shall be liable for the ultimate redemption of the bills of the bank.”

We have been furnished with numerous rules of construction, by which it is insisted, the true exposition of this 11th section must be guided. And amongst the rest, it is said, that the term stockholder, must receive the same interpretation wherever it occurs in the charter. By the 4th section of the charter, it is provided, that the directors shall be chosen by the stockholders, on the first day of February of each year. And it is asked, will it be pretended that those who have transferred their stock, but failed to give the sixty days’notice, would nevertheless be deemed stockholders, in contemplation of this 4th section; and as such, be allowed to vote for directors ? Most certainly not. And we now retort the inquiry, and with an application which it is difficult to escape; are not they stockholders, and as such, entitled to vote, to whom the transfer is made, with or without notice ?

If the argument, therefore, is good for anything, it will fix conclusively the ultimate liability, under the 11th section, upon the assignees of the stock, whether the assignors have complied with the Statute in making the transfer, or not.

But candor compels us to say, that in our judgment, the fallacy of the proposition consists in the assumption, that the same meaning is to be attached to the term stockholder, wherever it occurs in the Act. The true distinction is this, the unlocking of which, has created much confusion in this argument. The same individuals maybe stockholders outside, but not inside, the corporation. As it regards third persons and the liability clause .in the 11th section, all are stockholders, pro hac vice, who ever were such, and who have failed to get released in the manner prescribed by the charter. But as between one another, those only are stockholders who actually for the time being, own the stock, by subscription or purchase. One idea alone, will demonstrate the truth of this proposition. A sale of stock within six months of the failure of the bank, with notice, does not discharge the seller from the liability clause in the 11th section, as a stockholder. And yet, will it be pretended that the seller is a stockholder, and would be so treated and considered by his co-corporators, so far as the rights and privileges of the members of the corporation are concerned ?

Counsel have fallen into another error, equally palpable. Mr. Colquitt argues, that the ultimate liability of the stockholder, could only be enforced during the continuance of the charter, on the ground that it is a solecism in language, to speak of a stockholder in a corporation which is dissolved. And yet, in New York, where the individual liability does not accrue until after dissolution, the same phraseology is everywhere used by the Courts, in their opinions upon these cases. Take as an illustration, the first head-note in the Bank of Poughkeepsie vs. Ibbotson, (24 Wendell, 473,) “ An action at law lies against an individual stockholder of a corporation for debts owing by the company at the time of its dissolution, &c.” See also, Slee vs. Bloom, and Perryman vs. Briggs, 1 Hopk. R. 300, 8 Conn. 387. S. C. in error. And this is the expression almost universally employed in the charters of moneyed and other corporations, which contain an individual liability clause. Angell & Ames on Corporations, 552, 553.

We must say, with sincere respect for tire eminent counsel who pressed this position with so much warmth, that it is in our judgment, more a play upon words, than anything else. The Legislature intended by the use of the term stockholder, to indicate the persons composing the company, upon whom this individual responsibility should attach, whether before or after the dissolution of the charter. “ The stockholders ,” say the authors just cited, in every bank, at the expiration of its charter, are chargeable in Massachusetts in their individual capacities, for the payment of all bills of the bank remaining unpaid, in proportion to their stock.” Ibid, 552. We must say, moreover, that we are far from yielding to the reasoning in this case, which would exempt the stockholders unless prosecuted during the existence of the charter. The 16th section looks decidedly the other way. In many of the States, the fact of dissolution is made the contingency upon which the individual responsibility attaches ; and there is good sense in this view of the subject.

We settle down, therefore, not only with undiminished, but increased conviction in the truthfulness and rectitude of our former opinion, namely : that inasmuch as the charter does not restrict the liability, as is usually done, to any particular class of stockholders, 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 dissolution or when the liability is sought to be enforced; making 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; that all who ever were stockholders are liable to bill-holders, unless they have been discharged in the manner prescribed by the Act.

Such is the plain, express and unmistakable language and meaning of the Statute. And so ample was the security which the Legislature intended to provide, that even sale with notice is no protection, if within six months of the failure of the bank. Each and all are subject to be sued at the instance of any and every bill-holder, in a separate action at Law, or on a joint bill in Chancery against all of them; the jurisdiction of the two powers being concurrent as to the remedy. There can be but one satisfaction except for costs, and the stockholder can be charged only to the extent of his stock. Beyond this, he may defend himself; and on payment of this amount, there is an end of any further liability. Lane vs. Morris, 8 Ga. R. 486.

But it is suggested that there is an insurmountable obstacle to the practical operation of this construction. It may be stated thus: It is conceded that the same stock cannot be made twice liable. Suppose it has been conveyed and re-conveyed in different parcels, and through sundry persons, all of whom are responsible. The stock itself having no ear-marks, or other means of identification, how can it be determined -whether it has, or has not, been before made chargeable in the hands of some other person ?

Grant that the difficulty really exists, and that it is insuperable, the fault would then truly lie at the door of “ the law-making, and not the law-administering power.” And there we should be content to leave it. But fortunately, we are in no such strait. The perplexity can be obviated upon the principle of proportion, if not of identification. For instance, A owns 100 shares, and sells to B, who owns 100 more by subscription, making together, 200. B sells 50 shares to C. A recovery has already been had against A to the extent of his liability, and C is now sued on his 50 shares. Now it is unquestionably true, that it cannot be ascertained whether all, or what proportion of C’s 50 shares once belonged to A. But it is known that one-half of B’s 200 shares were obtained from A, one-fourth of which 200, he has transferred to C. The whole of B’s shares being liable to 50 per cent, the 50 bought of him by C, is liable to the same per centage. Again, C sells 10 shares to D, who holds 10 more in his own right, which have never paid any thing. D’s 20, provided C had not been sued, would be liable to 75 per cent, and so on, ad infinitum.

As to the equities inter se se of these stockholders, it is premature to agitate that subject. All maybe equally liable to the bill-holders to discharge this common burthen, and yet be entitled to remuneration as against one another. We do not say that this is so.

The objection to the rule, that it practically multiplies the stock from one to four million of dollars, or some other large and indefinite sum, is founded in a total-misapprehension of its operation. It may quadruple the number of stockholdeis, so far as liability under the charter is concerned; but not the stock. It remains the same. The Legislature designed to make lour persons instead of one, co-sureties or joint and several guarantors, for the ultimate redemption of the bills; that is, provided the remaining three failed to comply with the means of escape provided by the charter.

And is there any thing unreasonable in this ? A land title passes through a dozen hands, each conveying with warranty. Upon eviction, the last vendee may sue any one or all of the previous vendors. And no one doubts either the Law or Equity of this procedure. Every grantor could have protected himself by selling with a quit claim deed only, but neglecting or refusing to do this, he is made liable. So of indorsers who fail to restrict their liability. Are they not all bound to the holder of the note ? "Why should not the assignors of bank stock be put upon the same footing, and subjected to the same regulations and restrictions ?

Another position occupied in behalf of the defendant below is, that if the stockholders are liable at all, as one of all, or one of a class, that they are liable for $25 per share only; and this to be proportioned to $250,000, the amount alleged to have been actually paid in on the stock; and not for $100 per share, to be proportioned to $1,000,000.

In Hightower vs. Thornton, ( 8 Ga. R. 486,) and in Lane vs. Morris, (10 Ga. R. 162,) this Court held, and upon an extensive examination of the authorities, the opinion is fully sustained, that the sum specified in the charter, and not the amount paid in on the shares, constituted the capital stock of the corporation; that this was expressly declared to be so by the Act itself, which likewise fixed the value of the shares at one hundred dollars each. It being our opinion then, as now, that the same rule of interpretation was in the mind of the Legislature in forming the second and eleventh sections of the charter. Prince, 125, 127. We forbear to enlarge upon this topic.

4th. But it is said that the plaintiff below was not entitled to his action at the time he brought suit, because the liability of the stockholder to the bill-holder was ultimate, and could not be resorted to until all the assets of the bank and the unpaid capital stock, being seventy-five dollars per share, were called in and exhausted, which the facts proven in this case showed had not been done.

We feel the importance of the question here presented, and that it deserves grave consideration.

In the first place it is assumed, that this point is res adjudicata; and Lane vs. Morris, (10 Ga. R. 162,) is referred to by counsel in support of the assumption. That, it will be remembered, was an action by the bill-holder against the stockholder. Three questions were made for the decision of this Court. First, the Statute of Limitations; second, the time from which the plaintiff was entitled to interest on the amount of bills sued for; and lastly, the value at which the stock was to be estimated per share, viz: whether in fixing the amount of the defendant’s liability under the 11th section of the Act, the valuation of the stock was to be reckoned at one hundred dollars, the charter price; or twenty-five dollars, the amount provento have been actually paid in.

Upon the secqnd point, the Court below instructed the Jury, that the plaintiff was entitled to receive interest on the amount of bills held by him, from the time of the return of nulla bona upon the ji. fa. against the bank. Upon this ground, this Court reversed the judgment of the Circuit Judge, and ruled that the stockholder was only liable to pay interest on the bills for which he was sued, from the time of the demand of payment thereof, by the bill-holder.

Could that judgment be justified, if not only all the assets of the bank, legal and equitable, but even the unpaid capital stock had to be first called in and exhausted, before the ultimate liability of the stockholder attached at all ? On the contrary, if this latter proposition be true, that suit, as well as this, was prematurely brought; and instead of allowing interest to be recovered from the time of its commencement, that being the only evidence of demand, we should have remanded the cause, with instructions to have it dismissed.

Lane and Morris then, is a decision directly upon the question ; and unless we are prepared to review and reverse it, is conclusive against, instead of for the plaintiff in error. And the defendant in error is entitled “ to repose upon it with perfect security.” For, was as justly remarked by Mr. Hill, “the consideration and discussion of this question was necessary and preliminary to the point then decided and in issue.”

The inquiry then is, under the 11th section of this bank charter, pledging the person and property of the stockholder for the ultimate redemption of the bills and notes of the company, does the right of the bill-holder to sue accrue upon the exhaustion of his legal remedies against the corporation and its property, or is the obligation imposed upon him to pursue, collect and apply the equitable assets also, including the unpaid capital stock?

In other words, what was the contingency in the mind of the Legislature, upon the happening of which, primary liability was to be considered as exhausted, and the secondary to commence ?

It is argued in behalf of the plaintiff in error, that this ultimate liability against the stockholders is attempted to be asserted while the assets of the corporation, the fund primarily liable, is accessible and amply sufficient to discharge the demand. That there is no analogy in the law, as applicable to a corporation and a natural person, or to the evidence of insolvency; that in case of natural persons, their property is usually tangible and visible; but that this, is not only not true, as it respects corporations, inasmuch as that kind of property is not within the scope of their business, but often, as in the present case, they are expressly forbidden from owning lands, except for special purposes, and to an extent merely nominal.

A return of nulla bona against a bank, therefore, is paramount only to a demand and refusal, but nothing more; and does not establish, even presumptively, the insolvency of the corporation ; that in order to maintain a suit against a natural person liable only in the second instance, a return of nulla bona as to his equitable estate would prove nothing as to the exhaustion of his real and personal property, and yet, that such would be more conclusive of the insolvency of the principal, than would be the return of nulla bona in the case before us.

That if demand and refusal to pay, on the part of the principal, is not sufficient to charge a natural person secondarily liable, and ultimate liability does not commence,until the exhaustion of the estate of the principal, by judicial process, then nothing less than proceedings in Chancery would satisfy the demands of justice and of the Statute in this case.

That this personal liability clause is of modern date in bank charters. Formerly it was thought that the public was amply protected without it. There was not only the bills of exchange, promissory notes, &c. secured by the bank, dollar for dollar (at least) for its notes issued, the one bearing interest, the other not; but also the amount of capital stock paid in, as well as the balance remaining due, which constitutes a fund for the redemption of the bills; yet all of these primary bonds, Mr. Hill charges the creditors with having passed by, (like the Priest and the Levite in the parable,) and have gone over on the other side.

And to sustain the foregoing positions, Crease and others against Babcock and others, (10 Metcalf, 525,) and Green against Breed and others, (Ibid, 569,) are relied on.

Counsel for the defendant in error insists, on the other hand, that it is the failure of the bank which constitutes the event upon whicly the liability of the stockholder may be enforced; and that the Legislature has used the term failure, as synonymous with insolvency, as appears by reference to the 16th section of the charter, which is to be considered as part and parcel of the 11th section, under which this suit, is brought; and as it appears also by the whole body of legislation in this State, on the same subject matter. And that it is immaterial whether the stockholders are considered as principal debtors with the corporation, from the moment when they became stockholders and bills were issued, the right to enforce their liability being postponed ; or whether they became liable when the corporation refused to redeem, with a like postponement until judgment of forfeiture and the ascertainment of insolvency by sufficient legal process; or whether no liability' whatever attached until insolvency was declared by judicial proceedings. Upon any hypothesis, it was insolvency, upon which the enforcement of the liability rests; that is to say, the legal exhaustion of a primary liability, capable of being ascertained by legal proof. And that this supposition only, is consistent with the simple, easy and prompt remedy, furnished by the charter, for the enforcement of the ultimate liability imposed upon the stockholders.

The pleadings in this case show, and the averments in the declaration are supported by the testimony, that there has been a judgment of forfeiture against the bank — the appointment of a receiver — a judgment at Law against the receiver, for the recovery of this demand — which is tantamount to a judgment against the bank — a Ji. fa. and a return of milla bona thereon. The insolvency of the bank is thus established. It has no legal assets. This is shown by the return. The plaintiff in error traversed, by a part of his plea, the return; issue was joined, and the Jury returned a verdict for the defendant in error. To the rest of the plea, which alleged choses in action in the hands of the receiver and not subject to garnishment, equitable assets, and uncalled subscription for stock in the hands of the stockholders, the defendant in error demurred. Admitting then, the truth of the return, and that there is nothing on which a levy can be made, shall the creditor be now compelled to go into Equity, search out and collect any equitable interest which the defunct corporation may have had or claimed ?

The Legislature, in enacting this law, in which an ultimate liability is imposed, upon the exhaustion of a prior liability, are to be understood as meaning legal liability. They legislate with reference to Law, not Equity. Legislative enactments are to be construed with reference to law, and legal rights and remedies.

All the analogies of the law are against the construction contended for by the opposite side. The assignee of a bond may sue the assignor upon his guarranty, after judgment fi. fa. and return of nulla bona thereon against obligor. The sureties’ liability on a guardian or administration bond, is ultimate; still it is only necessary to obtain a judgment against the principal, cause a fi. fa. to issue, and procure a return of nulla bona thereon.

The Act contemplated a very' simple and suitable remedy. It never intended to force the small bill-holder to prosecute the corporation to the exhaustion of all its assets. The idea is extravagant and preposterous. The expense and delay would amount to a denial of justice. The Legislature, moreover, designed providing some additional security to the bill-holder. The right to go into Equity and subject the equitable assets, existed independently of the Statute. How inconsistent such an idea is, too, with the simple action of debt provided by the charter.

The only direct authority cited upon the defendant’s side of the question, is one which we have had occasion to refer to heretofore for another purpose, to wit: The Bank of the United States vs. Dallam and others, 4 Dana, 574.

I have thus given a pretty full synopsis of the main grounds occupied in the discussion.

Much more importance has been given to the Massachusetts cases in Metcalf, than they are entitled to. It is true, that in Crease against Babcock, Chief Justice Shaw, in considering the question whether the holders of bills could have a decree for payment by the stockholder, before the assets of the bank had first been applied, uses this strong language: “ shall the individual stockholders be charged when the bank is ready and willing to pay ? This would be unreasonable. Shall they be charged when there are assets in the hands of the officers of the law, which assets are the first and natural fund applicable to the payment of such notes, and when, for aught that appears, such assets constitute a fund sufficient for their payment ? May not the terms “ shall remain unpaid ” be fairly construed to mean, ultimately unpaid, after application of the proper funds ? ” ■

And in the next case, of Green vs. Breed and others, the Court held, that when the assets of the bank are placed in the hands of receivers, the holders of its bills who do not present their claims to the receivers, cannot recover of the stockholders the full amount thereof, but only the balance wffiich they would have been entitled to recover if they had proved the claims before the receiver, and obtained part payment.

It will be remarked, however, that these were proceedings in Equity, at the instance of all the bill-holders, or a part of them, for themselves and all others standing upon a similar footing, and having similar claims ; and filed against all the stockholders, to enforce an ultimate liability clause, similar to that which we are considering. A Master had been appointed to receive and distribute the funds arising from the assets of the corporation. There was money in his hands to be divided among these creditors, and the Court held, and we think very properly, that being dependent upon the aid of a Court of Chancery to enforce their rights, its assistance should not be extended, if they neglected or refused to secure and apply the fund then in the custody of the Court for the payment of their claims. We have, and can have, no controversy with this decision.

Here the bill-holder does not ask the aid of a Court of Equity, to make his statutory remedy available. On the contrary, he deprecates its interference. He is not in a situation, therefore, to be compelled to do what is claimed to be equity. And yet, were it true even in his case, that there was cash in the hands of the assignee, which he might obtain upon application, or which he had refused to take when tendered, it would be questionable whether or not his demand against the stockholders would not be cut down pro tanto, upon plea and proof of these facts. This was virtually the Massachusetts case, but this is not the case made upon this record. Here, the insolvency of this corporation stands out prominently upon the pleadings. It had, in May, 1843, gone into liquidation and made an assignment of its effects. In the month following, there was a judgment of forfeiture, revoking its franchises, on account of its failure.

In the Kentucky case, in Dana, the Statute of that State imposed a liability on the individual stockholders for the debts of the corporation, upon failure of the corporate funds. Here was a clear case of ultimate liability. But the Court held, that a judgment, fi. fa. and return of no property in a suit against the corporation, was sufficient to enable the creditor to proceed against the stockholder personally.

In looking through all the cases of ultimate liability, under every form of local legislation, it will be discovered, that this is the evidence invariably relied on to authorize a recovery in the second instance.

Here is an acknowledged right, for the enforcement of which, a plain Common Law remedy is provided. Was it ever known, was it ever heard of before, that a party under such circumstances, was compelled to go into Equity, not to make that Common Law remedy available, but as a preliminary proceeding indispensably necessary to its enjoyment ? Such a proposition is, to our mind, utterly inconsistent with the fundamental object which moved the Legislature to afford to bill-holders more effectual security, by furnishing them with this easy, cheap and prompt remedy, under the charter, for the enforcement of the ultimate liability imposed upon the stockholders.

Resort is frequently had to Chancery, to obtain its aid to enforce a legal lien. It cautiously interposes always, for this purpose. ' It requires the applicant first to exhaust all of his legal remedies, before it will interfere. But here the very converse of this doctrine is maintained. And it is contended, that a creditor with a legal demand, and with ample means at his command, at Law to collect it, shall nevertheless desist, until he has first gone through a tedious and expensive proceeding in Chancery, to see whether he cannot discover something which, by a decree, may be appropriated to his claim.

Such a construction, in my humble judgment, rests on no foundation ; and would render utterly nugatory and destitute of advantageous operation, a provision resulting from the anxious solicitude of the Legislature,’ to protect the community from the ruinous consequences of a spurious currency, “ instead of a shield to creditors, converting it into a sword to pierce them by alluring and then disappointing their confidence.”

We look upon this ultimate liability clause, as neither more nor less in substance, than an indorsement in the second instance, by which the holder of a note is bound to prosecute the maker to a prima facie case of legal insolvency only, or to assign some satisfactory excuse for not doing so; such as the non-residence, or removal of the party from the State. And I give it unhesitatingly, as my individual opinion, that an averment in the pleadings in the present case, supported by competent proof, showing the impossibility of obtaining judgment against the corporation, would entitle the bill-holder to proceed at once against the stockholder, without having instituted any previous suit whatever. The law does not require impossibilities ; and the secondary redress in this case was not designed to depend upon a condition precedent, which never could be performed.

It is urged with much earnestness, that no humane or wise Legislature ever could have intended to create a charter, imposing such burdens.

But the Statutes of some of the States are far more stringent than this, imposing a personal responsibility upon the members of a corporation in case of the neglect of a corporate body to pay the demands which it has incurred.

In Massachusetts it is enacted, that wherever any execution shall issue against any manufacturing corporation thereafter created, and such corporation shall not within fourteen days after demand made upon the President, Treasurer or Clerk of such corporation, by the officer holding the ■ execution, show to him sufficient real or personal estate to satisfy and pay the sums due on such execution, the officer shall sue and levy the same upon the body or bodies and real and personal estate of any member or members of such corporation. Angell & Ames on Corporations, 559.

And by this very charter, in case of excess of indebtedness, the Directors under whose administration it shall happen, are made personally liable for the same; and may be sued at once, without compelling the creditor to go first against the corporation, notwithstanding the corporate assets are made liable for, and chargeable with said excess.

We doubt not that the consequences will be disastrous to some stockholders who may not be in actual default. It was the misfortune of the innocent, to be associated with others who were unworthy of their confidence, and who abused their trust; and who from unskillfulness or other cause, have entailed this ruin. But now that the public is injured, whose duty is it to resort to Equity, to search out and collect up the corporate assets, and force the delinquent parties to discharge their obligations? To preserve unimpaired, the security and benefit intended to be given by the Legislature to the creditor, we think the burden devolves upon the corporator who was entitled to all the gain, had any been made by this company; who had the right to interpose and arrest and control the management which has produced this mischief; we repeat it is for him, and not the bill-holder, to incur the expense and trouble of saving from the wreck, any pittance which may be left. “ Better,” say one of the Courts, the words of which we have already quoted, “ that the corporators should become the victims of their own disasters, in preference to their being fatal to their unfortunate creditors.”

[5.] The plaintiff, in his amended declaration, sets out, not as the ground of his recovery, but as inducement to the action, a judgment against Robert B. Alexander, as assignee of the bank. The defendant, by his 14th plea alleges, that there is no record of any such judgment, and prays judgment of the Court, and who puts himself upon the country. This plea was demurred to, and the demurrer sustained. And this constitutes the fifth exception, which it becomes necessary to notice.

The plea as it stands, is defective in form. The record set out in the declaration being of a domestic judgment rendered in a Court of Record, to wit: the Superior Court of Muscogee County, the plea should have concluded to the Court, only— the trial being by inspection and examination of the record. "Where the record is of a foreign judgment, or if the Court which rendered the judgment be not a Court of Record, the plea should conclude, not with a verification of the record to the Court, but with a verification to the country; the issue being directly upon the fact, whether any such proceeding took place, and not upon the existence of any judicial memorial of it. Stephens on Pleading, 101, (note l.) Dyson vs. Wood, 3 Barn. & Cresw. 449; 3 Mod. 79.

[6.] The defect in form, however, was amendable. The verification to the country could have been stricken out; and this would have cured the irregularity. But the plea was demurrable for substance. It was not a plea to the gist of the action, which was the bills or notes of the bank, and consequently, did not lie. In an action of debt on a record, when it is the foundation of the action, the plea of nul tiel record is proper, either where there is no record, or -where there is a variance in the statement of it. 2 Sanders’ Plead. and Ev. 754. Com. D. Pleader, 2 W. 13, and Record, C.

[7.] It is next insisted that the judgment against Robert B. Alexander, as assignee of the bank, is void for want of jurisdiction in the Court rendering it — the defendant himself being the presiding Judge who awarded the judgment.

This is not really a question of jurisdiction. The Superior Court of Muscogee County unquestionably had jurisdiction, both over the person and subject matter. The objection is to the Judge who presided, on account of his being a party.

Passing by the propriety of attacking a judgment thus collaterally, and the fact that as assignee of the bank, Mr. Alexander was the mere agent of the law', having no personal interest whatever in the matter of litigation, we see no reason why a Judge should be incompetent to confess a judgment against himself in a suit to which he is a party in his own Court. It is a convenient practice. There is no trial; nothing to decide in the "cause; and if a Judge has the misfortune to be sued in his own Court, for debt or other matter, against which he has no defence, no good reason occurs to us, why from a mere feeling of delicacy, he should be forced to call in the Justices of the Inferior Court or a Judge from another Circuit. The practice has been otherwise, and we should be reluctant to hold that a Judge was disqualified from acting to that extent in a suit to which he was a party.

The next error alleged is that at the time the plaintiff recovered his judgment against Alexander, that he was not in fact the assignee of the bank.

In support of this assignment, Dougherty vs. Bethune, (7 Geo. Rep. 90,) is referred to, as an explicit authority upon the very' question.

So far as this Court held in that case, that a party is not estopped from denying any fact which may be recited in a legislative Act, the opinion we still think is good law. Such recitals are not conclusive. But although they may not be conclusive, a decent respect for a co-ordinate department of the government requires the Courts to treat them as true until the contrary appear ; and such was the opinion of this Court in the subsequent case of Beall vs. Beall, decided in 1850. 8 Geo. Rep. 210.

We there say, “For we hold that as to the facts in this case, (meaning the facts recited in the legislative Acts legitimating the complainants) every Court must receive them as importing verity, to the same extent that the records of the Court are evidence to the Legislature or another Court of the matters of fact transacted in the Court, and of which the record is the memorial.” Could language be stronger ?

[9.] But would Mr. Alexander himself, if in life, be allowed to dispute the fact that he was the assignee of the Bank? when in that character he had confessed a judgment against himself in a suit at the instance of the plaintiff* We think most clearly not. He would be forever foreclosed from denying the fact. And it would constitute but a poor defence in his behalf to say, as counsel have undertaken to say for him, that he looked upon this and all other suits at law against him, “ as simply ridiculous.”

It is attempted to evade the force of this judgment by representing that the defendant was assignee by the previous appointment of the bank itself; and that he never did accept the legislative confirmation of this private appointment.

That he was sued as assignee, under the Act of 1843, and that he confessed judgment in that capacity, is demonstrable from this view of the transaction. As assignee under the deed, he could only be sued in a Court of Chancery, and was amenable alone to that jurisdiction. But the Act of 1843 provides that upon motion to any Court in which suit is or may be pending for or against this banking institution, the said assignee shall upon motion and notice to the opposite party or the attorney, be made a party to said suit; and that he shall have full power to sue and be sued in his said character as assignee, for any demand due to or from said bank. 1 New Digest, 121.

I ask how sued ? Not to answer for and distribute the trust funds, but to prosecute and defend legal demands. Legislative sanction was not needed to conduct proceedings in Chancery. Such a grant was wholly unnecessary for such a purpose ; “ for his very appointment and acceptance of the trust made this an incident of his condition.” But it was needed to make him amenable at Law.

Suits at Law were, no doubt, pending at that very time against some of the banks for failure to redeem their notes. To these .it was necessary that the assignee should be made a party; and the Act authorized it to be done. He was made amenable at the same time to any others which might be instituted ; and the fact that Alexander could not be sued under the deed, at Law, and that he might be under the Statute, shows that the action was prosecuted under the Statute, and that his confession of judgment was made in that character. It concludes him as well as the defendant below, as to the fact that he is the assignee.

But suppose that this inference is not warranted by the face of this proceeding and the law of the case. Does this impair the force and effect of this judgment? It is immaterial whether it was' rendered against him by virtue of the private appointment alone, or under the legislative ratification of it. In either view of it, it is still a valid judgment against him, as the legal representative of the defunct corpora-ration ; and it is good for the collateral purpose for which it was introduced, and in our judgment is conclusive against the assignee as well as against the present party, for all the legal consequences resulting from it, unless it can be impeached for fraud,

[10.] The next exception is founded on an alleged variance between the judgment and the execution.

This whole proceeding, as the record shows, was against Robert B. Alexander, as assignee of the bank. The judgment entered up was, that “ it is considered by the Court, that the plaintiff do recover of the defendant, as assignee of the Planters’ and Mechanics’ Bank of Columbus, &c.” The execution which issued ran thus — “ We command you of the goods and chattels, lands and tenements of Robt. B. Alexander, as assignee of the Planters’ and Mechanics’ Bank of Columbus, you cause to be made,” &c.

In the judgment of this Court, the legal effect of the terms used, is precisely the same. Both the judgment and the execution are against the property of the bank in the hands of the assignee. And even if the alleged variance between the judgment and the execution existed, it is an irregularity merely, which is clearly amendable ; and one which does not vacate the ji. fa. The process is good until set aside, and this can only be done at the instance of the party to it, and in a proceeding directly instituted for that purpose.

[11.] The next exception is that the Sheriff made his return of nulla bona on the execution previous to the return day of the suit.

In Lichlen & Barker against Mott, 10 Geo. Rep, 138, this Court held that for the purpose of fixing bail, the ca. sa. against the principal must be returned to the next succeeding term of the Court from which it issued; and that no intermediate return is sufficient to fix the bail; neither can it be regarded as the return required by law. With this decision we are still satisfied, notwithstanding the conflicting authority read from the Courts of sister States, whose Statutes are dissimilar to ours upon this subject.

There is a manifest distinction, however, between a ca. sa. and ■s,fi.fa. In the former it is the duty of the Sheriff to retain the process in his hands until the next term of the Court, to enable him to arrest the defendant if practicable; and to enable the bail to surrender his principal in his own discharge to the custody of the officer at any time before final judgment. Not so with the fi. fa. The Sheriff must make search in time to levy on the property of the debtor and bring it to sale before the next term of the Court to which the process is returnable ; otherwise he will make himself personally liable.

Besides, in Lichten and another vs. Mott, it did judicially appear that the ca. sa. although returnable to May Term, 1847, of the Superior Court from which it issued, was returned and filed in the Clerk’s office on the 21st day of April, 1847, the same day on which the entry of non est inventus was made. Here, the fi.fa. issued the 18th day of February, 1848, and was executed on the 17th day of March, thereafter. But it does not appear from the record, but that the return of the execution was in fact made on the first day of the next term.

[12.] In Igod & Addison et. al. (5 How. Miss. Rep. 432,) the Court of Errors held that the return of the Sheriff upon the execution of “ no property found,” furnishes no evidence that the process was returned into Court on that day; that this is matter in pais; and that parol evidence was admissible to show when the execution was returned to the Clerk’s office.

[13.] The legal inference in this case is, that the Sheriff, after making the entry of no property, put the excution in his pocket and kept it until the proper return day. In other words that'he did his duty.

[14.] In Wilcox vs. Ratliff, (5 Blades Rep. 561,) this identical objection was made, that the officer should not have returned the execution nulla bona, without taking the time allowed by law to find property. But the Supreme Court of Indiana held that there was no ground for this objection; that when the officer having in his hands a fieri fadas has made one full examination for goods without success, he is at liberty to return the execution, nulla bona.

[15.] Plaintiff during the progress of the trial, offered to introduce Abraham B. Ragan, as a witness in said cause; and the defendant objected thereto, on the ground that the said Ragan was a stockholder' in the bank; which objection was overruled. And to this ruling the defendant excepted.

We see no objection to the competency of Mr. Ragan. He •was a stockholder himself, and offered as a witness in a suit against another stockholder. He may not have been a good witness for the defendant; we do not say that he would not be; that he was admissible for the plaintiff, we have no doubt.

As all the other assignments grew out of the charge of the Court, we will transcribe that entire; and then dispose of each specification in its order.

The plaintiff having closed his case, and the defendant introducing no evidence, the same was argued before the Jury, and the Judge charged, amongst other things — “ That the transfer of stock in the stock-book of said bank to the defendant, was prima jucAe evidence of his ownership thereof; and that it was not necessary to the plaintiff’s recovery that he should prove the same by other evidence ; or that he should prove the defendant’s purchase or subscription for the same, or his assent or knowledge of said transfer in his name or to him; that said transfer being made on the books of said bank, kept and used for that purpose, his assent thereto would be presumed; and that it was incumbent on the defendant to plead and prove that he did not own the same, and that it was for the Jury to decide (if at all) how far the evidence had rebutted such presumptive evidence on the said transfer book, and if it had been rebutted, then the defendant was not liable as the owner of said stock.

He further charged the Jury, that the defendant was liable to bill-holders to the extent of the value of each and every share of stock held by him, and in proportion as the number of his shares is to the whole number of the shares of the bank; and that said defendant, after paying bill-holders in this proportion to the extent of the value of each and every share at $100 per share, could plead said payment in discharge of further claim or liability to other bill-holders, and that it was not necessary to the said plaintiff’s recovery in his action that h'e should aver and prove the extent of notes issued by said bank and outstanding; that whether the same was $250,000, 1 million, or 3 millions, it made no difference as to defendant’s liability; that when the defendant had paid bill-holders to the extent of his liability, such payment was ample protection against the claim upon him of other bill-holders; that the amount of bills and notes unredeemed by said bank was not an element in the calculation of the extent of the defendant’s liability to the plaintiff; and if it was, it was'matter for plea and proof by said defendant, and not necessary to be averred and proven as part of said plaintiff’s case, or in any manner necessary to his recovery; that defendant’s liability as stockholder to said plaintiff accrued whenever his (said plaintiff’s) legal remedies against said bank for the payment of the bills held by him were exhausted, to wit: a judgment against the assignee and return of nulla bona; that it was not necessary for plaintiff to go into Equity to exhaust equitable assets or to pursue the assets in the receiver’s hands (if any) before he could go upon the stockholders for a pro rata share of his debt.

That the Act of the 23d December, 1843, expressly appointed Robert B. Alexander assignee of said Bank, and that the same being a public law, it was not incumbent on said plaintiff otherwise to aver and prove said appointment, and that the judgment against said assignee, fi. fa. and return of nulla bona thereon, was equivalent to the same being against said bank, and that a return of nulla bona against said assignee on the said fi. fa. was prima facie evidence of the exhaustion of the property of said bank, but was not conclusive. If the defendant had shown that at the time of said return, there was property of said bank subject to levy and sale under said fi.fa. then the plaintiff must dismiss the suit against the defendant, and proceed against said property, and could not maintain his action against defendant until he had exhausted said property.

That the return of imlla bona on said fi.fa. against the assignee even though made before the return day of the fi.fa. was prima facie evidence of there being no property upon which to levy the same, and that it-was not necessary that the Sheriff should have retained in his hands said fi.fa. until the return day thereof.

That if mere possession of the banking house and lot was relied upon by the defendant, as prima facie evidence of the title in said bank or its assignee, then such possession must have continued up to or subsequent to the rendition of the judgment against said assignee. That in order for such possession to be any evidence of title, it was incumbent on the defendant to prove the same in said bank or the assignee, or that the person in possession held under him or subsequent to the date of the judgment.

That the Court was constituted bylaw, the Judge of the Law in civil cases; that the Jury was bound to regard the law as stated by him, to be the law of the case ; that if he decided 'wrong, and the law provided a remedy or correcting tribunal, then his decisions might be reversed and corrected. If there was no corrective provided by law, then the parties would have to submit ; but in either case, it was wise and proper that the Judge should be entrusted with the power to determine the law, and that it was the province and duty of the Jury to apply the law given in charge to them by the Court, to the evidence, and find accordingly; that in this case he had given them the law as he understood it. 'The counsel on both sides had stated their views of the law and had claimed to give their honest opinions ; the Court had no doubt they were sincere and honest in the expression of their opinions ; he claimed to be equally so in the expression of his: that he was certainly indifferent in feeling to the parties, and had no earthly interest in the case, although he regretted to say that he had the evening before received through the Post Office, an anonymous letter, charging him with corruption, and being the partner of Mr. Dougherty in these bank cases, and threatening personal violence to him; that he hoped that none of the defendants to said bank cases had written that letter; one thing was certain, no honorable man had written it; those were most apt to be suspicious wdio were themselves corrupt; he had important official duties to perform under the sanction of an oath; he would, perform them fearlessly and to the best of his ability, no matter who was pleased or displeased thereby.”

At the conclusion of the charge, and at the hour of 9 o’clock, A. M., the Jury retired to consider of their verdict, and after remaining in their room until 2 o’clock, P. M.,-yagain relurned at their owm request, to the Court room, to receive the further instructions and charge of the Judge, and reported through their foreman, that they disagreed as to the effect of the testimony of the witness Ragan, with regard to the assets turned over to him by W. Lee, and whether said testimony was ruled out or wTas before them for their consideration.

The Court then and there further charged the Jury — “ That said evidence was not ruled out, and was before them; and that the legal effect thereof was not to defeat the recovery of the plaintiff, unless it proved property, the neglect of levy and sale under the ji. fa. against Alexander, as assignee, and that a return of nulla bona on said fi.fa. was evidence of the insolvency of said bank, sufficient to give bill-holders their remedy against stockholders; and that the mere fact that Ragan received notes from Lee, was not sufficient, to prove the same the assets of said bank, but that to establish the fact that they were the property of said bank, it must be proved that they were held by the bank or had been derived from a previous assignee of the bank, as assets of the hank.”

To all of which charge, and to each of the instructions as severally and specifically given, the defendant by his counsel excepted.

The more important portions of this charge having been already considered and disposed of, it only remains to examine certain parts of it upon which error is specially assigned.

[16.] 1st. — The first question which arises, is as to the sufficiency of evidence. The transfer-book of the bank had been given in evidence; the defendant had pleaded that with the exception of one hundred shares, to wit: 50 shares transferred to him by M. W. Turner, 20th February, 1838; and 50 by A. B. Ragan, transferred March 28th, 1838, he never owned or held any other or further number of shares in said bank; and that if the books of the bank showed any other or further transfer of shares to him, to wit: a transfer on the 19th of May, 1838, by Hines Holt, of 188 shares, and Walter T. Colquitt, of 188 shares, transferred to the name of the defendantthat the said transfer was made by the said Holt and Colquitt at the instance of, and for the sole and exclusive benefit of one Daniel McDougald, and without the knowledge and consent of the defendant, and that the same was so known to be the fact by the directors and officers of the bank, and that he, the defendant, never did assent to the same. That he never voted on said last mentioned stock, nor did any other act in relation thereto, by which his assent to said transfer could be implied; nor was he in any manner liable therefor.

The testimony of Ragan was that he was the Cashier of the Bank when these transfers were made ; that the book offered in evidence was the transfer-book kept by the bank, for the purpose of transferring stock from one stockholder to another on said book; that he transferred to the defendant the 50 shares the 28th day of March, 1838, mentioned on page 35 ; and that he recognized his signature to the other transfers made by Hines Holt, Jr., and W. T. Colquitt, each of 188 shares, on the 19th ■day of May, 3838 ; and that he had no-doubt they were made by Holt and Colquitt, as it was his duty as Cashier to witness such transfers; and he was not in the habit of subscribing his name as witness unless the transfers were made as recorded; but that he had no recollection of the same, or that the defendant was or was not present when the same were made, or then or afterwards assented to them, or that he had any knowledge thereof.

Upon this evidence the charge of the Court was predicated; namely, that the transfer of stock, in the stock-book of the bank, to the defendant, was prima facie evidence of the ownership thereof; and that it was not necessary to the plaintiff’s recovery that he should prove the same by other evidence, or that he should prove the defendant’s purchase or subscription for the same, or his assent or knowledge of said transfers in his name or to him. That said transfers, being made on the books of the bank kept and used for that purpose, his assent thereto would be presumed; and that it was incumbent on the defendant to plead and prove that he did not own the same; and that it was for the Jury to decide (if at all) how far the evidence had rebutted such presumptive proof on the said transfer-book; and if it had been rebutted, then the defendant was not liable as the owner of said stock.

This objection turns upon an alleged improper direction by the learned Judge, upon the sufficiency of the proof to show, prima facie, the acceptance by the defendant of the transfer of the three hundred and seventy-six shares of stock by Holt and Colquitt; and it is undoubtedly one of a very important character, as it involves the practice of Stock Exchange generally. I have no doubt that the understanding of the country is, that bank books are admissible to prove the transfer of stock.

[17.] And although this transfer be neither literally and technically a “ deed, bond, bill, single or several note, draft, receipt or order,” in the language of the Judiciary of 1799, still we are strongly inclined to hold that if this defendant was sued upon this transfer of stock, from which his assent and acceptance are implied, that he ought not to be permitted to deny that this was his act, unless he would make affidavit to the truth of his answer and defence. This would certainly be in accordance with the spirit, if not the very letter of the Statute. This transfer, if bona fide, is a contract of purchase between him and the former owners, for this stock, which is reduced to writing by the Cashier on the books of the corporation, kept for that purpose. If the action against him was upon this contract, would the defendant be permitted to deny that it is his act, or deed, if you please, except under oath? And would not this construction, imposing as it does, no undue burden upon the party, obviate a difficulty which may otherwise greatly embarrass th.e Stock Exchange business ? In ninety cases out of a hundred, the transfer on the books of the corporation is the only' evidence in the matter; and when sought to be made liable upon this transfer, while he ought not to be required to prove a negative, to wit: that he did not agree to the transfer; still it is not unreasonable to hold that the defendant should verify his plea of repudiation. The onus would then be cast upon the opposite party, to, prove that the transfer was made with the knowledge and consent of the defendant.

But there is another view’ of this question. By the charter, a book was to be kept for the purpose of transferring the stock of this bank. This book, the charter declares, shall be subject to the inspection of the stockholders. Mr. Thornton, the- defendant, was the owner of a, hundred shares of the stock of this company, at the time of this alleged transfer from. Colquitt and Holt. In a contest between hinj and the bill-holder, will,he not be bound by this transfer, the entry of it being made on the books of the bank by the cashier of the corporation of which he was a member, and free access being provided to him for the purpose of inspection ? It would seem that he cannot be deemed a stranger to the transaction; especially with one who is a stranger to the corporation. Upon this point I have felt, I confess, more embarrassment than any other contained in the record.

[18.] 2d. The next complaint is, that the Judge erred in that portion of his charge in which he said to the J ury, that if mere possession of the banking house and lot was relied upon by the defendant, as prima Jade evidence of title in the bank or its assignee, then such possession must be continued up to, or subsequent to the rendition of the judgment against said assignee; that in order for such possession to be any evidence of title, it was incumbent on the defendant to prove the same in said bank or the assignee, or that the person in possession held under him, at or subsequent to the date of the judgment.

This charge was founded upon a part of the 10th plea, which was not demurred to, and the evidence of A. B. Ragan.

The portion of the 10th plea referred to was, that “ there was real and personal estate belonging to the Planters’ and Mechanics’ Bank of Columbus to the value of fifty thousand dollars, upon which the plaintiff had not levied his execution ; and as part of said property, there was the late banking-house and lot occupied and owned by said bank at the time of the forfeiture of its charter, and a large three-story brick building, at the upper end of Broad street in the City of Columbus, knowm as lot No. 186, and the north half of City lot No. 183, which was of the value of $50,000, and subject to levy and sale under the plaintiff’s demand.

The evidence of Ragan, in reference to this matter wms, that the bank in 1838, built a banking-house in the Chy of Columbus, on the west side of Broad street, and occupied the same up to the time of its final failure in the spring of 1843. Since that time, the banking-house had been in the possession of John Banks, the agency of the Bank of Brunswick, Alfred Iverson, and others. ^

The objection to the charge is, that it was hypothetical and wholly unauthorized by the plea and proof; there being no pretence in any part of the case, that the title to this banking-house and lot and to the other real estate named, was ever in the assignee of the bank. Moreover it is argued, that the banking-house and lot was proven, prima Jade, to be the property of the bank; and such property as was by law and the repeated adjudications of this Court, the subject of levy and sale, under the Ji. fa. against the bank. That Ragan having proven possession and occupancy of the bank up to its final failure in 1843, in the absence of other evidence, this was title; and such as subjected the property to seizure and sale under the execution.

It is admitted that the charge of the Court may have been well enough, if there had been a levy and claim, or even any other title set up in any third party. But having shown possession and occupancy up to the time of final failure in 1843, it ought to have been left to the Jury to say, even if a transfer had been relied upon to any party, and especially to some of those provento have followed in mere possession, whether such transfer, after final failure in 1843, could be made, except in fraud of the rights of creditors.

It will be observed, that by the return of nulla bona upon the execution against the assignee of the bank, the plaintiff had established a case of prima facie insolvency against the corporation, so as to entitle him to proceed against the stockholder, under the ultimate redemption clause in the charter. The proof offered in relation to this banking-house was to rebut the evidence of the insolvency of the bank, and to show that there was property belonging to it, subject to the plaintiff’s demand. There was no evidence of title offered. Possession alone was relied on to prove property in the bank. Wherein does this case differ from that of a levy and claim, in which issue, it is admitted, the charge would have been unexceptionable

But in any event, was not the learned Judge right in giving the instruction which he did to the Jury ? Relying upon occupancy alone as the evidence of title, ought not the possession to have continued in the bank, or its assignee, up to or subsequent to the rendition of the judgment against the assignee ? or was it not incumbent on the defendant below to prove that Banks, the Brunswick Bank and Iverson, held under the corporation, or its legal representative ? We think so, most indubitably.

But it is said that the charge was unauthorized, inasmuch as there was no pretence that the banking-house was ever in possession of the assignee.

Concede that to be so, the law, as an abstract proposition, was nevertheless correctly submitted; and it does not lie with the defendant to find fault because the charge was more favorable than he asked for, or even than the testimony authorized. It is true, that there was not a particle of proof to show that Alexander, the assignee, was in the occupancy of this property, or that those persons who were in possession since the failure of the bank, held under the assignee. And yet, the Court charges, that if the Jury should find either of these facts to exist, that then the verdict should be for the defendant. Had the verdict been the other way, we must say there would have been good cause of exception on the other side.

Nor is it true, that the testimony established that the banking-house and lot was, prima facie, the property of the bank, so as to subject it to levy and sale at the instance of the plaintiff’s demand. It may have been in the occupancy of the bank up to the time of the failure in the spring of 1843, and conveyed subsequently to that time, to some of those persons who were afterwards in possession, according to the evidence of the witness Ragan, or to any body else; and such transfer, if bona fde, would have been good against Lane, the creditor.

In Carey vs. Giles, (10 Ga. R. 9,) (his Court held that an assignment made by an insolvent bank to pay an existing debt to a creditor, is neither void by the general law, nor by the Act of 1818, even where the effects assigned are larger than would be reasonably sufficient to pay the debt, and accompanied with a stipulation that the excess shall be returned to the bank ; but on the contrary, that such transfer was, per se, valid.

In one of the earliest decisions made by this Court, it was held, that the fact that a man is insolvent when he transfers his effects, does not make the conveyance void ; but that he may sell his estate; the Act of 1818 not divesting him, because he is insolvent, of the right of dominion over his property. 1 Kelly, 157.

Artificial persons or corporations enjoy the same right in this respect, as natural persons. And notwithstanding the soundness of the principle in regard to preferences, as applied to corporations, is doubted in Robins et al. vs. Enly et al. (1 Smedes and, Marshalls’ Chancery, 208, 259, 265,) and a general assignment by a bank, though admitted to be valid, was declared in The State vs. The Real Estate Bank, (5 Pike, 596, 607,) to be a good cause of forfeiture of its charter ; still, that a bank or other corporation, in a state of insolvency, possesses the same right that an individual possesses to make a transfer, is settled by a conclusive weight of authority. Catlin vs. Eagle Bank, 6 Conn. 233, 242. Savings Bank vs. Bates, 8 Ib. 506, 512. The Bank of Maryland, 6 Gill, & Johnson, 206, 219. Bank U. S. et al. vs. Huth, 4 B. Monroe, 423, 429. Dana vs. The Bank of the United States, 5 Watts & Serg. 224, 243. Hopkins et al. vs. The Gallatin Turnpike Co. 4 Humphreys, 403, 410. Connay et al. ex parte, 4 Pike, 305, 353. And see opinions of Mr. Kent, Ib. App. XII. and in 6 Humphreys, 532.

If, then, the presiding Judge had left it to the Jury to say, as it is insisted he ought to have done, “ even if a transfer had been relied upon to any party, and especially to some of those known to have followed in mere possession, whether such transfer, after final failure in 1843, could be made, except in fraud of the rights of creditors,” (Brief 105,) it would have been misdirection ; the law being well settled that this may have been done.

[19.] 3d. The next ground of error is, as to what transpired w'hen the Jury returned into Court, after having retired to their room, to receive at their own request, further instructions as to the effect of the testimony of the witness, Ragan, with regard to the assets turned over to him by Mr. Lee, and to inquire whether said testimony was ruled out, or was before them for their consideration.

The Jury were informed that the evidence was not ruled out, but was before them; and that the legal effect thereof was not to defeat the recovery of the plaintiff, unless it proved property the subject of levy and sale under the fi. fa. against Alexander as assignee, and that a return of nulla bona on said fi. fia. was evidence of the insolvency of said bank, sufficient to give bill-holders their remedy over against stockholders. And the mere fact that Ragan received notes, &c. from Lee, was not. sufficient to prove the same the assets of said bank, but that to establish the fact that they were the property of said bank, it must be proved that they were held by the bank, or had been derived from a previous assignee of the bank, as assets of the bank.

That it is error in the Court, either in its charge or during the progress of a case, to express, or even intimate to the Jury, an opinion upon the facts or upon what has or has not been proved, we readily grant. Still, it is the undeniable privilege, and even duty of the Judge, when called on, as he was by the Jury in this case, to state the legal fed of testimony. We are inclined to think — the notes in question being turned over by Joseph A. L. Lee, to Ragan, as the assignee of the bank — that, without further proof, perhaps they were, prima facie, the property of the bank. But suppose they were, Mr. Ragan, who had been appointed receiver in the place of Mr. Alexander, took them in his official character of receiver; and these assets, if collectable, and the property of the bank, could not be reached and made liable to the plaintiff’s demand by process of garnishment or any other legal means at his command; and consequently could not defeat his remedy over against the bill-holder. See the case of Field vs. Jones and Schley, decided the present term.

[20.] 4th. It is assigned as error, that the Court said to the Jury, “ if he decided wrong and the law provided a remedy or correcting tribunal, then his decision might be reviewed and corrected.”

It is urged that between this point in this case and the similar point in Monroe vs. The State, (5 Ga. R. 86,) that there is not a shade of difference ; and that this Court decided in the case of Monroe, that it was error in the presiding Judge to remind the Jury of the existence of a Supreme Court to which the defendant could carry his case up, &c.

So far from the decision in the Monroe case, and the reasons for it, amply and fully sustaining this assignment, we think they differ in toto calo.

In Monroe’s case, the Court, after admitting certain testimony, in its charge to the Jury stated, that he greatly doubted the propriety of having done so. Still that having been received, the Jury were bound to consider it in making up their verdict; and then added, that if error had been committed through haste or inadvertence, that the defendant could take the case up to the Supreme Court and have it corrected.

And this Court being of the opinion that the evidence referred to by Judge Warren, was both legal and proper, we felt constrained to say that its force should not have been weakened by this intimation from the Bench. That the remark, however well intended, was calculated not only to lessen the sense of their own responsibility, but at the same time to convey to the Jury the idea, that the proof already before them was not sufficient to acquit the defendant. This was the opinion of this Court in that case, and the reasons for it. In the case before us, the Court after stating that he was constituted the Judge of the law in civil cases, and that the Jury were bound to regard the law as stated by him to be the law of the case, added that if he decided wrong, the Supreme Court alone could correct his errors. Meaning thereby, to giv'e the Jury to understand, that it was for the appellate tribunal, and not for them, to review his judgments.

The two cases are as widely apart as are the poles from each other. In the one, the reference to the Supreme Court was, under the circumstances, improper and calculated to injure the party. In the other, it was altogether harmless, to say the most of it. Perhaps it was not amiss to remind the Jury, that the privilege and responsibility of rectifying the errors of law committed by the Court, did not rest with them, but that the Constitution of the State had conferred this power elsewhere. After all, the new trial in Monroe’s case was not awarded on this ground, notwithstanding it was considered as an irregularity by this Court.

[21.] 5th. It is further insisted, that in the particular charge under review, it was error in the Judge to say to the Jury that, “ the Jury was bound to regard the law as stated by him, to be the law of the case.”

It will be admitted by all who have read our Reports, that no Court in this country has gone farther than we have, to see to it, that the Judge did not invade the province of the Jury.

[22.] Even where verdicts have been manifestly against the weight of evidence, still we would not suffer them to be disturbed, unless they evinced by their gross injustice, passion, partiality or prejudice. We believed that the law conferred upon them this power; that to the Jury, as a favorite and almost sacred'tribunal, was committed exclusively, the task of examining the testimony and passing upon the merits of the case, according to their opinion of the facts and circumstances; that we were bound to presume in favor of the purity of their motives, and that it was not until the result of their deliberations was such as to shock both the understanding and the moral sense, that the Courts were at liberty to interpose and control their verdicts. Beyond this we loill not go.

[23.] For while we have always respected and secured to the. Jury, to the fullest extent, the right to decide upon the facts, we will take equal care that the rights of the Court to decide the law, shall never be impaired or questioned by the Jury. Establish a contrary rule and there is no longer any certainty in the law. The peace of the country, the security of life, liberty and property, are undermined and destroyed. A state of things would ensue which every good man should deprecate.

The extraordinary power claimed for the Jury, is invoked from the comprehensiveness of the terms of the oath administered to a Special Jury. They are -sworn “ a true verdict to give, according to equity and the opinion you entertain of the evidence produced to you, to the best of your skill and knowledge,” &c.

[24.] By looking back through the old Statutes, this form of oath, it seems, was that which was originally prescribed for Juries in Equity causes proper; and for that purpose it was framed with technical accuracy and aptitude. Its phraseology is not exactly suitable to appeal causes on the Common Law side of the Court. But take it as it is, and what is the obligation which it imposes ? To give a verdict accordingto some vague, undefined and undefinable opinion which the Jury may entertain of Equity? Certainly not. But according to a system of jurisprudence, governed by established rules, and bound down by fixed precedents, from which the Jury are not at liberty to depart, however liable to objection these rules and precedents may be, in their judgment. As to the facts and circumstances of the case, they are to be governed by the opinion they may entertatn of the evidence. But as to the law, — for law and equity in the oath are convertible terms — they are not at liberty to theorize or to speculate as to that. This they must receive at the hands of the Court, and administer it faithfully. And new trials will be granted so long as their verdicts are contrary to it.

[25.] It would be strange indeed, if the substitution of the word “ equity ” for law, in the oath directed to be administered to a Special Jury, should work an entire revolution in the judidieiary of the country! Had the Legislature intended making such a change, they wmuld have effected it in some more explicit mode. Such tremendous consequences would not have been suspended upon the doubtful construction of the Juror’s oath.

It is our settled conviction, that the rule which is co-eval with jurisprudence itself, still exists here in its utmost latitude and vigor, viz : that if is the province of the Court to determine the law; and that if Juries will take it on themselves and decide differently from the Court, a new trial should be granted Mies quoties.

6th. The last complaint which we shall notice is, what the counsel is pleased to characterize as one of the most remarkable features in the charge, namely, the reference which the Judge made to his having received through the post office, an anonymous letter, charging him with corruption and being the partner of Mr. Dougherty in these bank cases, and threatening him with personal violence.

I admit that a Judge, when he enters the temple of justice, should say to his passions (if possible) as Abraham did to the young men, when about ascending Mount Moriah: “ abide ye here, while I go up to worship.” But harrassed and baited, as Courts too often are, by the angry strifes and conflicts of counsel, who is sufficient for these things ? After all, we look upon the remarks which fell from our learned brother on this occasion, as more a matter of judicial taste and manners than of law; and we know of no safer depository for questions of this sort, than the accomplished gentleman who presides over thé Chattahoochee Circuit.

-We believe that we have covered every point, great and small, raised upon this record. We have intended to do so, and the conclusion of the whole matter is, that the .judgment below is right, and should be affirmed.

Case Details

Case Name: Thornton v. Lane

Court Name: Supreme Court of Georgia

Date Published: Jul 15, 1852

Citation: 11 Ga. 459

Docket Number: No. 64

Court Abbreviation: Ga.