Dobbins v. Porter , 38 Ga. 167 ( 1868 )

McCay, J.

This bill charges that in May, 1866, the Bank of the State of Georgia made an assignment of its assets, for the benefit of its creditors, to the defendants; that they accepted the same; that among the assets was $210,000 in gold coin, $17,135 in silver, $800 in sterling exchange, and $100 in copper coin, a considerable amount of stocks and bonds, with a market value. The complainant is a bill-holder for $5,000. In November, 1866, complainant called at the bank, saw one of the-assignees, and asked for payment. It was refused. ITe then asked for his pro rata share of the cash assets, and was refused, unless he would release the bank from any other payment. He called again in August, 1867, and got the same answer, whereupon he filed his bill in his own behalf, and in behalf of the other creditors. This bill was demurred to, and the demurrer was sustained.

This demurrer was sustained, as it appears, solely on the ground that the facts, as stated, did not show any right in the plaintiff to call the defendants to account, that they did not appear to be in laches. Why could they not have paid out the coin pro rata immediately ? Why not sell the bonds and stock and exchange and banking house, and realize and pay the proceeds of that out? They have had nearly a year. If there were any complications or disputes, as to preferences, it does not appear. It was very easy for them to know the liabilities of the bank and the character of the claims. Why keep this large amount of cash assets idle ? If there are any reasons, why so reasonable and business-like a proceediiig as an immediate application of these cash assets to the debts should not take place, it ought to appear by answer.

Besides, we are not sure that the demand made by the assignee of a release from this creditor, or a proffer to pay his pro rata if he did release, was not itself a breach of the trust. It was not one of the terms of the assignment. These assignees are emphatically the trustees of the creditors, and they have no right to use the assets, to secure a favor to the assignor. «

At any rate, the bill was not demurrable. The discretion given by the deed to the assignees, to make a pro rata distribution at their option, is not an arbitrary discretion. It is their duty to exercise it, if it be proper to be done. So far as appears by the bill, it was eminently proper; if there exist good reason against it, that is matter of defence, and ought affirmatively to appear.