Moultrie v. Smiley

The Court not being unanimous, the opinions of the Judges were delivered seriatim.

By the Court.

Lumpkin, J.

delivering the opinion.

[1.] As Counsel have addressed themselves almost exclusively to a single point in this case; and as it is the only one respecting which there is any contrariety of opinion between the members of the Court, I shall give to it the whole of my attention. It is this : Did the action of debt, brought against the directors, under the 8th rule of the Act of Incorporation of the Commercial Bank of Macon, abate by the expiration of the Charter, during the pendency, and before the termination of the suit ?

The important consequences which must necessarily flow from any decision made in this cause and other circumstances attending it, have induced me to re-examine, with more than ordinary care, the points heretofore decided by this Court, so far as they are again involved in the present issue ; as well as the arguments and authorities relied upon to controvert them.

With many, nay most of the propositions maintained by the learned and distinguished Counsel for the plaintiffs in error, I entirely concur.

I admit that all private charters are contracts — that it is the acceptance, express or implied, by the corporators, that gives force and validity to the Charter — that no one can be made a corporator, without, much less against, his consent — that all contracts are supposed to bo made in reference to the existing laws of the place where they are executed — and that these laws, when contracts are made, are incorporated with and form parts of them — that the charter of the Commercial Bank of Macon was a contract between the people of the State, through the Legislature on the one part, and the stockholders on the other —that the franchise granted, was the consideration for the obligations assumed — that the inhabitants of a municipal corporation are individually liable for the debts of the corporation— and that they are, nevertheless, saved by its dissolution. These, and numerous other positions, stated and enforced with singular ability during this discussion, receive my hearty assent and approbation.

Moreover, I agree that the elementary writers, both in England and in the United States, do every where assert distinctly, that the debts due to and from a corporation, are extinguished by its dissolution, unless prevented by the terms ofo'f^-e charter itself, or by aliunde legislation; and that in the G^Vts of both countries, this doctrine may now be considered too ettled to be overthrown or shaken, and so totally extinguished that the members of the corporation cannot recover or be charged with them, in their natural capacities.

I deem it advisable to examine, at the outset, somewhat minutely, into the origin of this Common Law rule, not for the purpose of questioning its legality, but in order to restrict it in its application to the reason in which it is founded. For cessante ratione legis, eessat ipsa lex. And I feel fully warranted ■in this course, inasmuch as the rule itself has been justly characterized, by the most enlightened tribunals, as odious and iniquitous. Said Mr. Justice Olayton, in delivering the opinion of the Supreme Court of Mississippi, in Nevitt vs. Bank of Port Gibson, (6 S. & M. 513): “ The almost universal prevalence of Statutes, in some shape or other, in the Stales of this Union, to guard against the consequences of dissolution, proves that they have their foundation deeply imbedded in an innate sense of justice. And the condemnation of the Common Law rule, by such men as Kent, Qaston, Tucker, and many others such as they, shows that it is in utter hostility to the spirit of this age. It belongs to the period when men, who could not pay their debts, were imprisoned for. life; and when the estates of criminals were confiscated to the government; and- it should be consigned to the same tomb with these antiquated barbarisms.”

In support of the rule, Judge Blackstone, in his Commentaries, (1 volume, 484) quotes the case of Edmunds vs. Brown and Sillard (1 Levinz, 237.) Mr. Barlow, the huthor of the text of the treatise on Equity, commonly called by Mr. Fonblanque’s name, because he attached to it his valuable notes, states the same principle in nearly the same language, and cites the same case from Levins, and no other. (1 Fonbl. Eq. 297.)

Now I am aware of the high authority of Sir Oresswell Levins, as a Reporter. He not only had the commendation of' Lords Mansfield and Kenyon, itself the highest praise, but per- - haps a still more satisfactory evidence of the value of his re- - ports is s’-'.wn, by the demand for three editions; and their-frequent elation at the Bar and elsewhere. Besides, he reported thi ,, mns of that ablest of Judges and most upright of ' men, Sir Matthew Kale, who presided in the Courts of Westminster Hall at the close of the 17th and the beginning of the 18th centuries. Could I find the doctrine then broadly asserted in Levins, I should be dumb — I should open not my mouth. But I must say, that no principle of equal magnitude ever rested on so frail a foundation.

What was the case of Edmunds vs. Broun and Sillard ? It was an action of debt on an obligation of ¿C500. The defendants pleaded non est factum', and on the evidence, it appeared! that the defendants were two of the principal members of the Company of Woodmongers, then lately dissolved; and that, the money was borrowed in the name of the company, and the • obligation sealed in the name of the company, and with their • .seal. The defendants, as was usual, put their names to the obligation. But the obligation was “noverint universi per ■ presentes nos magistrum et gurdianos," $c. del company de - Woodmongers teneri, ¿-c.; and the obligation was endorsed sigillat et deliberat in presentía, ¿•c. and attested.

The company being dissolved, the action was brought against the defendants, intending to charge them in their private capacities. But is was ruled that on the above state of facts, this could not be. On which the plaintiff was non-suited.

It is needless to suggest, by way of commentary, what will ■readily occur to every legal mind — that in an action of debt > on the bond, on the plea of non est factum, this result was in- - evitable. The evidence showed that the corporation executed •the bond, and not the individual members who sealed the obli- : gation in the name of the company, adding also their own signatures. There was no pretence for charging the individual •members at law, upon the contract, if they had authority to ex- • ecute the obligation in behalf of the corporation, although with-cut such authority they might have rendered themselves liable as upon their own contract. And yet, this is the case cited by •Judge Blaelcstone, Mr. Ponblanque, and most of the elementa•ry writers, English and American, as the leading, if not the • only authority, that on the dissolution of a corporation, its - debts are extinguished, and that for their recovery, there is no ■remedy at Law or in Equity ; and for the addendum or amplifi- • cation of the doctrine by Chancellor Kent, that “neither the stockholders nor directors or trustees of the corporation, can •recover the corporate debts or be charged with them in their natural capacity,” see 2 vol. Com. 5th edit. 307. The case in Levinz, it is quite clear, involves no such principle.

Judge Story has been criticized with no little asperity in the •■course of the argument, for having stated that upon the dissolution of a corporation its contracts are not thereby extinguished: but the creditors may enforce their claims against any property belonging to the corporation, which had not passed ■ into the hands of a bona fide purchaser. (2 Eq. Jur. 688, §1252.) And for relying on Mumma vs. The Potomac Company (8 Peters 281) as authority for his doctrine.

In all frankness, I must say our cis-Atlantic, commentator ':is far better sustained by the case in Peters, for the dictum in Ms Equity Jurisprudence — a dictum pregnant with the purest equity, than is his great traus-Atlantic predecessor, in prescribing the rule which he has in relation to defunct corporations, upon the precedent in Levinz.

Judge Blackstone' was more fortunate, when be planted himself upon the Civil Law, as the foundation of this doctrine. After stating the rule he adds, “agreeable to that maxim of the Civil Law — si quid-universitati debetur, singulis non debetur ; nec quod debet universitas, singuli debent, (1 Black. Com. 484,) citing Ff. (that is, the Digest or Pandects, for these two' are convertible terms,) 3, 4, 7, viz: that which is due to a corporation at large and collectively, is not due to the particular members of such corporation, and cannot be recovered by them in their separate capacities; so, the particular members thereof may not be sued for the debts of such corporation, collectively.

This maxim, which stands detached in the original text, (page 105,) and is no where else to be found in the corpus juris civilis or body of the Roman Law, is attributed to Zilpian, who was a member of the Imperial Council under Alexander Severus ; the authority of his legal opinions, together with those of Papinian, Paulus, Qaius and Modestus, were confirmed by a decree of the Emperor Yalentinian III, and were alone permitted to bo cited in the Courts of Justice. The opinion of the majority of the five were to govern; and in case of disagreement, the opinion of Papinian was to be preferred. He, says Ueneeekis, in his History of the Ancient Roman Jurisprudence, was every where called, Juris asylum, et doctrina?. legalis thesaui us. Enviable distinction !

Mr. Phillimore, in the preface to his late Commentaries upon International Law, states it as a remarkable fact, that from the reign of Claudius to that of Jlonorius, a period of about 860 years, England was governed by the Civil Law; and her judgment seats were filled by some of tlio most eminent of those lawyers, whose opinions were afterwards incorporated into the Justinian Compilations. And among these were Papini-m, Paulus and Ulpian. Occasionally, too, Mr. Phillimore adds some maxims of the Roman Law, admitted either from their intrinsic merit or through the influence of the Clergy, enriched the then meagre system of the English Law.

Thus, then, we trace this maxim to Judge TJlpian of the British Bench. Whether the maxim which has caused this digression be one of those which was incorporated into the law, from its “intrinsic merit”, I will not undertake to say. It may furnish, at any rate, a sufficient explanation why the corporators could not be made individually liable in an action, of debt or any other action, at Law, upon the contracts of the corporation ; at least, under the technical rules of pleading, as they formerly stood.

With a single remark, I will dismiss this branch of the investigation. It will be perceived that the ground now urged with so- much earnestness, for the maintenance of this ancient rule of the Common Law, had nothing to do in its establisk:ment, namely: the hardship and injustice of making the corporators liable, in their natural capacity, to creditors, after •they had lost the power of .collecting their debts. Neither the ■decision in LevinZ nor the maxim of the Civil Law, allude to. any such motive. Both rest upon principles quite different,, . and purely technical.

I next propose to analyze the rule itself, and to consider its. . several parts, with a view to a clearer comprehension of its-.true import and extent.

And 1st. As to lands and tenements. Upon the dissolution. • of the corporation, these revert to the person, or his heirs, who granted them. This doctrine is laid down as law in Bolle’s Abridgment, (London Edition,) 1668, p. 816. And the reason assigned is, that in case of a body politic or incorporate, the fee simple vested in their politic or incorporate capacity, created by the policy of man; and therefore, the law doth annex a condition, in Laiv, to every such gift or grant, that if such body politic or incorporate be dissolved, that the donor- or grantor shall re-enter, for that the cause of the gift or the-grant faileth. (1 Co. Litt. by Thomas, 196.) The grant is; only during the life of the corporation, which may endure forever; but when that life is determined by dissolution, the grantor takes it back by reversion, as in case of every other grant for life.

There is but little in the Books that contradicts or questions this doctrine; and the cases that look a different way, maintain'that the lands would escheat. They will be found collected in 1 Vol. of Co. Litt. by Thomas, 195, note 7. This branch of the rule may have but little, if any thing to do with the present question. It may become a matter of some interest, upon the expiration of our various rail-road charters, should that contingency ever arise. It ought, and I apprehend will be, provided.for by legislation in the meantime.

2dly. As to what becomes of the goods and chattels. It is a little remarkable, that 'the standard books are almost silent upon this subject. In the argument of the case of Colchester vs. Seaber, (3 Burr. 1866,) it was alleged by Sir Bletcher Norton, and apparently acquiesced in by the Court, that the goods and chattels go to the Crown. Mr. Kyd, who.has collected most of the cases on corporations, concludes his remarks on the effect of dissolution, in these words: “ what becomes of the personal estate, is perhaps not decided; but probably it vests in the Crown”. (2 Kyd on Cor. 516.)

3dly. As to the rights and credits of an aggregate corporation. They are necessarily lost. Why ? Because there is no one in existence who can claim or control them. The artificial person is dead and left no representative behind; lands and goods do not perish by the dissolution of the corporation. They have still a visible, tangible being, and may become the subject of possession or occupancy, by some body. Not so with debts. Why ? They cannot exist - without an obligor and an obligee — a promissor and promissee — a payer and payee. And upon the death of either one of these necessary parties, without the possibility of a representative, the obligation, or promise, or debt, is said to be extinguished. Or in other and more appropriate language, it abates ; and for the reason here assigned and for none other. And such is the language of all the Courts, when treating of this subject.

I propose to consider now the. true meaning of the word extinguished, when used in this connection.

I am not ignorant of its etymological definition. Lord Colee, “ the Hercules of the Law”, who has written so much, has furnished this also: “ Extinct”, he says, “ cometh of the verb extingúete, to destroy or cut off”. (Co. Litt. 1 vol. by Thomas, 464.) But the proper inquiry is, what is its legal signification, when applied to the debts, to and from a defunct corporation ?

I have said, elsewhere, that the only idea intended to be ■conveyed was, that the debts were uncollectable, for want of proper parties to sue and be sued. Is this reason “ imaginative”, as it has been pronounced? If so, I am happy to know that I am not responsible for the fiction. Mr. Chief Justice 'Sharhey, in delivering the opinion of, the Supreme Court of Mississippi, in the case of the Commercial Bank of Natchez vs. Chambers et al. (8 S. & M. 9,) says : “ it was said in argument, with much plausibility, that even without the interposition of the Legislature, the debts due to and from the bank would have survived its dissolution. That these commercial corporations should be regarded as partnerships, and the fund or property owned by them — a trust fund, which Equity would appropriate to the payment of their debts. The current of decisions seems to have fallen into a different channel ; and it may now be regarded as the settled doctrine, that on the dissolution of a banking corporation, the debts due to and from it are extinguished. Not by any implied condition in the contracts, but from necessity, because there is no person in whose favor, or against whom-they can be enforced”, (p. 47.)

This “imaginative” reason for the rule, then, seems to have impressed itself upon other Courts. Indeed, it was the reason assigned for the rule in the Bishop of Rochester’s case, decided in the ZMi of Queen Elizabeth, the earliest reported case which I have found upon the subject, and has been recognized and repeated in all the subsequent adjudications, from that day to this.

It will not de, I apprehend, to make departure from our •own variable opinions, the measure of absurdity in others. This fiction is a “fixed-fact”. At any rate, I shall adhere to it until some other and better reason is assigned as the foundation of the rule.

And notwithstanding some little verbal refinement, the learned Chief Justice who delivered the opinion of the Court in Coulter et al. vs. Robertson, (2 Cush. R. 322-3,) arrives at the same conclusion with his distinguished predecessor, as to the reason of this rule.

How wide is the difference in the meaning of the word extinguishment, when applied to an obligation or debt which is irrecoverably lost for the want of a remedy to enforce it, viz: proper parties to sue and be sued; and an obligation or debt which has been discharged by performance or payment.

Sed satius est petere fantes, quam sectary rivulos.

With this conviction on my mind, I have searched with painful laboriousness, and by the aid of experts, better versed than myself in translating unknown tongues and deciphering black-letter-lore, the fountain heads of the law, in order to satisfy myself as to the sense in which the term extinguishment is to be understood, in connection with corporations ; I have examined the Posthumous Publication of Brooke, “La Cfraunde Abridgment”, [London Edition, 1576,) which contains, as all ■subsequent compilations do, a chapter upon “Extinguishment”. The author cites his cases from Eiizherbert's Abridgment, and from the records of the Year Books to which he had access, and.is admitted by Mr. Reeves, Chancellor Kent and •other annotators, to have reported them with great care and accuracy; I have continued the search through Coke on Littleton, (2d London Edition, 1629); through Rolle’s Abridgment, (London Edition, 1668); through Viner, (2d London Edition, 1791-94,)'who makes Rolle’s Abridgment the basis ■of his, and who spent nearly fifty years upon his work — the most voluminous production of any single individual in the whole bibliography of the Common Law, and which Judge Story characterizes as “ vast Index of the Law”. And thus, pursuing this tract, I have traveled down to the last American edition of Bacon’s Abridgment, by Bouvier. It will be found that these authors reiterate, pretty much, the same dicta, and cite the same cases in illustration of them. And the result of the whole is, as deducible from these and nil kindred and co-temporary sources, that the term extinguishment has, in the law, no fixed, uniform and -universal meaning, but varies with the subject-matter to which it is applied. And that the words, merger, suspension and abatement, would, in many instances where extinguishment is used, much more accurately and felicitously express the idea intended to be conveyed. In support of this conclusion, I had selected numerous examples which I designed to have embodied in this opinion; but fearing that the benefit to be derived from this addition would not compensate for the inordinate length to which this opinion is likely to be extended, I have resolved to omit them; and in lieu thereof, I will confine what I have to say to the title, ex-tinguishment, in Bacon. And this I do the more willingly, as the author has introduced or referred to most that is worthy of being preserved from the preceding abridgments, as well as most other standard works upon this head of the law. At the close of the opinion of the Supreme Court of Delaware, in the case of the Commercial Bank against Loekioood, (2 Harrington, 1st case,) it is stated that at Common Law, if a creditor appoints his debtor his executor, the debt is extinguished; and Bacon is cited as authority for the doctrine. And this reference is made to explain what is meant by the extinguishment of the debts of a dead corporation. It will be found on p. 150, of the 4th volume of the new edition. Why extinguished ? “ For in this case,” says Bacon, “he cannot sue himself.” And I would suggest, that when the debtor appoints his creditor his executor, the debt may be said to be extinguished, in the same sense and for the same reason assigned by Bacon. The history of the rule, as to the appointment, by the creditor, of his debtor to be executor, operating as an' extinguishment of the debt, is instructive and admonitory. Like the rule of the Common Law, relating to’ corporations, it stood, for its support, upon the old authorities. (Co. Litt. 264, b. note 1. Sir John Needham’s Case, 8 Rep. 136. Hobart, 10. Cro. Car. 372.)

By and by, the Courts begin to intimate, and very properly, that no such rule should ever have existed; until finally, they have created so many exceptions to it, and leaned so far in restricting its generality, as almost amounts to its abrogation.

And consequently, under the adjudications, both in England’ and in this country, the debt, now, is never considered as lost j but the remedy, only, as gone; and the money due is considered as assets in the hands of the executor.

In Simmons vs. Guthridge, (13 Ves. 262,) Lord JEldon said, “ In every case of a decree against an executor, an interrogatory ought to be put by the master, whether he is charged with being a debtor, as in Sadlier vs. Sir Stephen Lushington; and is he a debtor to the estate or not; and if he is, that debt is assets”.

So, in the leading case of Eagleton & Coventry vs. Kingston, (8 Ves. 438,) the same learned Chancellor remarked: M The principle in this Court is, that where a suit is instituted for the administration of the effects of a testator, the executor, if a debtor to the estate, is bound to deal with himself exactly as he would with any other debtor. Therefore, if the money is out upon personal security; and much more, if there is no security, as the Court would charge an executor for not calling, it in; so, they would take it from king who is both executor and debtor, and place it with the Accountant General, till the proportion in the bulk of the property coming to him can be ascertained”.

By sifting this doctrine thoroughly, it will be found that the apparent confusion and contradiction to be met with respecting it, has been the result of not discriminating between the extinction of the thing itself, and the extinction of the action for its recovery. In the case of Woodward vs. Lord Darcy, (Plowden, 186,) as early as 4 and 5 Philip and Mary, the distinction was clearly taken, that by making the debtor executor, “ notwithstanding the action for the duty was gone, and. it was'a chose in action, yet the duty is not extinguished, hut it shall be assets in' the executor’s hands”.

Thus we see how and why it is that debts are said to be extinguished, by making debtors executors. Will it be pretended that this mode of extinguishment, is similar in its nature to that which is effected by the' payment of the debt ?

But let us return to Bacon for further illustrations of the meaning of extinguishment.

“When one, indebted to the estate of a lunatic by specialty, is appointed committee of his estate, and the specialty is transferred .to and received by him as a committee, the debt is extinguished; and the securities to his bond, as committee, are liable for so much money received by him”. (4 Ba. Abr. 150— citing Joyner vs. Cooper, 2 Bailey’s R. 199, which-fully sustains the text.)

“ So, where the obligor marries the obligee, this is said to be an extinguishment of the debt; for by the intermarriage, they became one person, and cannot sue each other”. (Ib. Bacon.)

This doctrine of extinguishment. of debts, and the reason upon which it is founded, “ imaginative" though it may be, seem to be treated, every where, as inseparable as cause and effect.

The principle of this last dictum is as old as the Year Books. It is thus stated by Brooke. “If a man makes a bond to a feme sole, and afterwards marries, her and they are divorced, the woman shall have her action upon the bond. -Objected, that it was at one time suspended. Sed per curiam. She shall have all her goods, the property in which can be known, and which have not been destroyed or sold during the coverture”: Citing 26 Hen. 8, c. 7. Brooke. Ex. & Sus. 314.)

Thus, it will be perceived that Brooke and Bacon, use suspension and extinguishment, to signify the same thing — as convertible terms. In this instance, the former is obviously the more proper of the two.

This case shows further, that notwithstanding á debt may be extinguished, in the sense in wlii'ch this term is used in the law as applicable to certain rights; that still, the obligation survives and may be enforced.

In the late case of Shields vs. Yonge, Superintendent, &c. (15 Ga. R. 349,) my brother Bennins has very conclusively vindicated another term of the law, from a like misapprehension. It is the word merger. In all the authoiities upon Criminal Law, it is laid down, that if a felony is committed, the private injury is merged, or drowned, or swallowed up in the public wrong; whereas, my learned colleague shows conclusively, that the private injury is merely suspended until the crime is prosecuted. At Common Law, a forfeiture of all that the offender had, following the felony, there was nothing left out of which reparation could be made. And in this sense, and in this only, was the right, itself, said to be lost or cut off. And that if any thing can be found, out of which compensation can be made, after the public injury is avenged, redress might be had.

The two cases are, in principle, entirely parallel.

I am here reminded of a familiar analogy, drawn by the senior Counsel in this case, in support of his understanding of the doctrine of extinguishment. It is somewhat out of the line of investigation I had arranged for myself; nevertheless, I will take notice of it here, lest it should escape me.

He says that the rule which he seeks to have applied to dissolved corporations is not new in the law. That when a man marries, he takes his wife and her property with the burden of her debts. In other words, the law raises an implied promise to pay all her debts. And for this promise, considers the marriage a sufficient consideration. That the property adds nothing to the consideration, for he is equally liable, if she have no property. But how long does this promise and liability continue ? during the time the marriage, which was the consideration, lasts and nb longer. If tho creditor of the wife, dum sola, neglects to collect his debt during the coverture, the debt is lost. He caniiot collect it of the husband if he survives: nor-can he collect it of his representative if she survive him.

And more than that, if she carry to' him a large property, he has it all; and by her death, it is freed of the burden of her debts, which the marriage had imposed.

Now the inference is, that when the franchise is lost by the expiration of the charter, and there being no personal liability imposed on the directors at Common Law, it necessarily can-only arise under the charter, and formed a part of the contract y and that being an entirety, and the liability not having been enforced during the existence of the bank, the 8th fundamental rule under which the action was commenced, must abide the fate of the rest of the charter, and perish with it, unless there had been some stipulation inserted that this clause should outlive the residue, and that the directors should remain individually responsible, after the demise of the corporation.

The strict rule of law resulting from the contract of marriage, is correctly stated, with some qualifications. It is a strict rule of the law which casts upon the husband, during coverture, all the obligations of the wife; and by the same strict rule of law, he is discharged after the coverture ceases, by the death of the wife; and as a set-off against the hardship, that the husband shall be answerable for the debts of the wife, when he receives nothing from her, a husband may receive with the wife an estate worth a million, yet if he happens not to be sued during the coverture, he is not liable: The latter is viewed as a recompense for the hazard he runs in marrying.

It is conceded that the law is thus written, and that it is competent for the Legislature, alone, to alter it. Neither Courts of Law or Equity- can disturb it.

But there are some qualifications of this rule, which it will become important to notice, as will be discovered during the progress of this opinion. The husband is liable, not as the debtor, but as husband,. It is still the debt of the wife, and if she survive him, she continues personally liable for it. And - this is not all — not only do the ehoses in action, which belong- ■ ed to the wife, dum sola, and which were not reduced to possession during the coverture, survive to her upon the death of the '.husband: but if, at her death, she leave behind her any ehoses in action, these, although they belong to the husband as her representative, are, nevertheless, to be considered as assets, in respect of -which he will be chargeable with her debts. (Fitzherbert, 121. 3 P. Wms. 409. Cas. Tem. Tal. 173.)

I propose now to review the cases relied on in the argument, and which it is insisted by Counsel, are in contradiction to the idea that extinguishment, as used in the Common Law rule, respecting defunct corporations, results from the disability to sue and be sued.

Some of these authorities are not new. They were employed before the Courts of Mississippi, where these bank questions have undergone a more thorough discussion than any where else. To my mind, they are perfectly reconcilable with the position which I occupy.

What was the case of the Commercial Bank vs. Lockwood’s Administrator, (2 Harrington’s Delaware Rep. 1.) This bank charter was obtained in 1812, and was to continue till September, 1822. In February, 1822, its charter was extended till March, 1824. In January, .1824, it was extended till March, 1827; and in January, 1827, to March, 1830; and it was declared that it should continue until that time, and no longer. March 1830 passed without any further extension of the charter, when the corporation became, of course, dissolved. And in this condition it remained, "till March, 1832, when the Legislature passed an Act to revive the defunct bank, and to re-invest it “with all the rights, powers and privileges it theretofore had”. The bank, subsequent to this period, attempted to revive, by scire facias, a judgment obtained against Lockwood in 1827. But the Court held that it was not the intention of the Legislature to revive the debts due to and from the Bank. “ And the Court, with a good deal of parade”, says Judge Clayton, in Nevitt vs. Bank of Port Gibson, “go on to say, that if such had been the intention of the Legislature, it would have been unconstitutional.”

Whether, when a corporation is once dissolved, it cannot, by a subsequent special law, be revived so as to revive the debts-due to and from it, is a mooted point. The weight of authority, I grant, is in favor of the negative of this proposition. But I am inclined to think, that upon principle, this power can be maintained. Bishop of Rochester's case, and Edmonds vs. Brown and Sillar d, already noticed, and indeed, so far as my researches have extended, the earlier cases are that way. And if' Colchester vs. Seaber, decided unanimously by the King’s Bench, with Lord Mansfield at its head, in 1766, about the period of our Adopting Statute, be law, such would seem to be the law of this State, however this case and the doctrine which it holds, may have been questioned or over-ruled elsewhere.

The facts stated in this case, show that the bond sued on was given to a corporation consisting of three parts: That one of these vital, integral parts had become extinct, so that the corporation could not, by any power of its own, under its charter or constitution, be re-animated. And this, in point of law, amounts to a dissolution. (Grant on Corporations, top p. 814.) But the Court held, that notwithstanding the corporation had been disabled from acting from 1740 to 1763, and was without the power of self-renewal, still, that by the grant and acceptance of the new charter, the old corporation was revived, so as to collect the debt. (3 Burrow’s R. 281.)

Tt is admitted that natural and artificial persons stand upon the same footing in this respect; and that if a natural person dies without the possibility of a legal representative, in being or expectancy, the debts due to and from him would be as totally extinguished as those of a dead corporation. Suppose, that on the death of a natural, as well as of an artificial person, all debts due by that natural person were declared, by law, to be extinguished; and that by a miracle, as was the case with Lazarus, the deceased debtor and creditor was re-animated— what would become of the liabilities to and from the temporary decedent ? would they not be resuscitated, notwithstanding the vital spark had been quenched for three days, and corruption had already commenced its work ? So it is with an artificial person. Their rights and credits are extinguished by dissolution. They fall, necessarily, from the lifeless hands which are no longer able to grasp them. Still, it would seem to be competent for the omnipotence of the Legislature to breathe into the corporation corpse the breath of life, and restore it to its ■legal existence. At any rate, I concur fully with the Supreme Court of Pennsylvania, in the case of Bleakney and another vs. The Farmer’s and Mechanic’s Bank of Greencastle (17 Serg. and Rawle 64), that such an Act of the Legislature “ would work no injustice, infringe no man’s rights, and impair no contract.”

But this point, however grave in itself, has no bearing upon the question before the Court; and I have glanced at it, out of respect to the learned Counsel who have adduced the precedent from Delaware, where it was determined. I will endeavor to dispose of the remaining cases more briefly.

The point decided in Butler vs. Palmer (1 Hill’s N. Y. Rep. 324) was simply this: That it is competent for the Legislature to pass an Act, limiting the time within which a mortgage lien might be redeemed; and that the right was gone, unless enforced within the time limited; and that all inchoate rights derived under the law, became extinct by its repeal or expiration. Had the Statute of New York attempted to take away the existing right of redemption, absolutely, or incumbered it with conditions that would have rendered it useless; or had the rights, acquired under the existing law, have been perfected far enough to stand independent of the Act, and the effort had been made by the Legislature to interfere with them, the Courts would not have felt themselves bound to give it effect. Bronson vs. Kingie et al. (1 Howard’s S. C. Rep. 320) and McCracken vs. Hayward, (2 Ibid 608) establish these principles.

Coulter et al. vs. Robertson (2 Cushman’s Rep. 321) is another authority relied on with emphasis, by one of the learned Counsel who have argued this cause. There, a trustee of a dissolved bank was appointed by Statute to collect funds sufficient to pay all the debts of said bank; when that was done, the Court held that his office was performed; and that his rights and powers as trustee were at an end; and that he could not collect for the purpose of distribution among the stockholders : and that any debtor might defend himself, successfully, against a suit at the instance of the trustee, by pleading and proving that the whole of the indebtedness of the dissolved bank had been discharged..

I am content that this decision shall stand for as much as it is worth, without note or comment.

In Paschall vs. Whitsett, (11 Ala. Rep. N. S. 472,) it was held that the stockholder of a corporation was not liable to the process of garnishment, under the Act of 1841, of the State of Alabama, at the suit of its creditor, after the dissolution of the corporate body. By that Act, the plaintiff, in a judgment against a corporation, “ is entitled to the rights and benefits of all the lawsnowin force, regulating the issuance of garnishments”. And again, upon an affidavit being made as directed, a garnishment is required to issue, summoning the “ garnishee to answer what he is indebted as stockholder or otherwise”. Further, “ the stockholders of any incorporated company shall be liable, respectively, to the creditors of such company, for the amount of stock subscribed by them and unpaid, in character of debtors to such corporations; and such liability may be enforced by garnishment,” &c. (Clay’s Digest, 260-1.)

The point of the decision under the Statute was, that no one could be said to be the debtor of a corporation after dissolulution; and that the process of garnishment would not lie, where there was no subsisting indebtedness, at the time.

The case of Lindell vs. Benton Kennedy, (6 Missouri R. 364,) is a direct authority to the contrary. It was there held that if a garnishment issued by the creditor of a bank against its debtor, be served, such debtor is bound to answer, notwithstanding the expiration of the charter before judgment on the garnishment.

While Mr. Justice Thaeher, (than whom no Judge has been more strenuous in enforcing the Common Law rule, in all its stringency,) in his dissenting opinion on the re-argument of Nevitt vs. Bank of Port Gibson, does not controvert this decision, he puts it upon the peculiar phraseology of the Statute of Missouri, which provides, that “ from the time of serving process of garnishment, all moneys and effects due and owing, payable or belonging to such corporation, shall be bound until the judgment against the corporation is satisfied”. (Digest of 1835, p. 126.) Under this Act, he considered this a case of judicial assignment of property and credits belonging to the bank, which assignment, by service of the garnishment, took place prior to the dissolution.

I believe it .is not denied but that clwses in action, assigned by a corporation, may be i ecovered by the assignee, notwithstanding the dissolution of the corporation. (The Bank of Alexandria vs. Patton and others, 1 Robinson’s Va. Rep. 499. May et al. vs. The State Bank of N. Carolina, 2 Ib. 56.) Whether the same effect will be given to an assignment, by operation of law, I am not prepared to say.

But according to the application of the Common Law rule, as now contended for and as adjudicated in Alabama, in Whitsett’s case, what signified it that Lindell was the judgment creditor of the bank, and the garnisher of Benton and Kennedy, who were the debtors of the bank before the charter expired ? There being no corporation in existence, at the time when the defendants were called on to answer, the ground taken is, that no such right had vested in the creditor as would not be extinguished by the expiration — by limitation of the charter.

I would invite attention to the fact, that the Court in Missouri refused the motion to discharge the garnishees, on the ground that the garnishment was not a suit between the bank and the garnishees, the interest of the bank having been vested by virtue of the Statute, previous to the expiration of its charter, in Lindell, the plaintiff in garnishment. How vested will be seen by the terms of the Act which I have quoted.

White vs. Campbell et al. (5 Humphries’ R. 38,) is another case relied on by Counsel for the plaintiffs in error, and affords a striking illustration of the enlarged statement of the Common Law rule, by Chancellor Kent, that the debts due to and from a corporation civiliter mortuus, are so totally extinguished that neither the stockholders, nor the directors or trustees of the corporation, can recover these debts or be charged with them. i

On the 19th of January, 1844, Campbell executed his note for the sum of $3400 to the president, directors and company of the Bank of the State of Tennessee; to secure the payment of which, he, on the same day, executed a deed of conveyance, in trust, to the premises in controversy, to 'one Cummings. On the 19th of February, 1844, White obtained a judgment in the Circuit Court of Knox County, against Campbell, for the sum of $2500, and cost of suit; upon which, execution wras issued and levied upon the real estate contained in the deed of trust. The charter of the incorporation of the president, directors and company of the Bank of the State of Tennessee expired on the 20th day of November, 1841, and White filed his bill to have the deed of trust set aside.'

Turley, J. delivering the opinion of the Court says : “ that the Bank of the State of Tennessee was not in existence, at the time the note and deed of trust were executed, is not and cannot be controverted. The necessary consequence is, that both the note and deed of trust, are inoperative and void: the one for want of a payee and the other for the want of a cestui que trust”. And citing the rule as laid down by Chancellor Kent, the learned Judge adds: “these principles would prevent a recovery of the debt intended to be secured by the deed of trust, even if it had been executed before the expiration of the charter — a fortiori will, it having been contracted after.”

The Supreme Court of Tennessee understand the rule, with its apparent extension, precisely as we do. Indeed, it can admit of but one construction.

Chancellor Kent did not intend to innovate upon the rule, as laid down by Judge JBlachstone. He simply meant to say, that upon dissolution, corporate rights and liabilities cannot be saved or enforced, by or through the intervention of any of those intermediate agencies who stand in the place of the cor- ■ poration.

Fox vs. Horah, (1 Iredell’s Eq. R. 358,) is the only remaining authority which I shall notice. It is one which has been reviewed in the Mississippi Bank cases, and repeatedly pressed, with unabated confidence, upon the consideration of this Court.

In the first place, the Court repeat the rule as found in all the elementary writers, that upon the dissolution of a corporation, unless the Legislature has otherwise directed, its real estate, undisposed of, reverts to the donor or grantor; the personal property, as having no owner, goes to the State for the benefit of the public; and the choses in action, such as debts,. &c. become extinct, u because there is then no one to demand the money.”

The Legislature of North Carolina had, in the Revised Statutes of 1831, incorporated a provision, directing what proceedings should be had against corporations, in certain cases;. but the Court held that the Statute did not apply to cases-where the corporation expired by the limitation of its charter,, which was the case with the State Bank, at the Salisbury Branch of which Box’s indebtedness was contracted.

The Court further decided, that the note sued on being payable to the cashier of the bank as trustee, for the use and benefit of the bank, by whom it was discounted, gave him the legal title, so as to entitle him to recover it at Law ; yet, that in Equity, the bank having the sole right to the money, the right to sue became extinct, by the expiration of the charter, before the money was collected.

I propose to make a pretty full analysis of this case, not only on account of the importance attached to it by Counsel, but also because I entertain a profound respect for the distinguished Jurist who delivered the opinion. No man, who has presided in the American Courts, with a solitary exception, perhaps, enjoyed a higher reputation while living, or has left a brighter name to go down, on the page of professional history, to posterity. To him may, with propriety, be applied the beautiful compliment paid by Cambden to Edmund Plowden: JJt injurie Anglicani scientia, de qua scriptis bene meruit facile princeps ; ita vitce integritate inter homines suceprofessionis nulli secunclus.

Judge Gfaston admits that the questions involved, were not free from difficulty; and that they were then, (1841!) for the-first time, presented for judicial decision. Certain it was, lie said, that neither the researches of the Qourt nor those of the bar, had furnished any adjudications which had a direct bearing upon the points. Hence, lie resorted to elementary principles to fix and apply tbe true doctrine to tbe case before him. He next reverts to tbe Common Law rule, as to extinct corporations, citing Lord Oohe in support of tbe first branch of it, as to real estate, but none whatever as to tbe disposition of the-goods and chattels, or choses in action. He defines tbe last to be the rights of tbe corporation to demand money in tbe bands of tbe persons by whom it is withheld. That they derive their existence from contracts, or quasi contracts, by which tbe relation of debtor and creditor was created. That when tbe creditor corporation died, and there was no successor — no representative, tbe relation of debtor and creditor ceased, and tbe debt become, necessarily, extinct.

That there could be but little doubt, that if tbe debt bad' been contracted directly with tbe corporation, by name, and tbe judgment thereon rendered for tbe corporation, tbe debt and judgment would have been, to all intents, extinguished by the death of tbe corporation; and tbe collection thereof could' not have been enforced by any legal process. But that aecording to tbe forms of this contract, tbe cashier, and not tbe bank, was tbe legal creditor. As such, be bad obtained bis judgment, “ luhich was not extinguished by the death of the corporation, and which he has the undoubted power to collect by legal process”.

Having stated these propositions, tbe great question in tbe case is propounded, is it against conscience in tbe cashier to collect the debt ? Tbe Judge satisfies himself, and what fair mind can gainsay it, that it is, and therefore granted a perpetual injunction to prevent such a result.

Tbe debts of every kind,- from, as well as to tbe bank, were extinguished. The stockholders wete under no personal liability. If Horab collected tbe money, be was not bound, neither could be be compelled to account therefor to any one. He might have kept it for bis own use. No respect can be paid to-a pretended trust, the performance or non-performance of which, is dependent upon the will of the supposed trustee. “If,” says the Judge, “the cashier can rightfully collect this money, it is because he has a right to collect it, for his own use. After much consideration, we are of the opinion that he had not a right to collect it for his own benefit.”

I shall attempt to show, before concluding this opinion, the application of these cases, to the one at bar.

. I had intended dwelling at some length upon the cases of Colchester vs. Seaber (3 Burr. 1886); and the King vs. Pasmore (3 Durn. and East. 199). But I am constantly admonished to be brief. Quiequid praeevpies, esto brevis. Neither of these English authorities decide any question involved in the present issue. They were both cases of incorporated towns, ,or municipal corporations, which had failed to continue their succession, by the election of proper officers, and thereby became dormant, if not dead. In the first case, it was held, that the King, by his letters patent, had revived all the rights and powers of the old corporation; and in the second, that the old corporation was so far dissolved as that the Grown could grant a new charter, which would take the place of the old. I must think the task somewhat difficult to reconcile these decisions. I do •not feel it incumbent on me to undertake it.

I do not deem it necessary to refer to the distinction between -the personal liability of the members of private monied corporations, and public municipal corporations. With respect to the former, we have conceded that no individual responsibility attaches for the corporate debts, though the incorporation may be sued for the recovery of them. But with regard to the inhabitants of a town incorporated by law, and against which no private action will lie, unless given by Statute, each inhabitant is liable to satisfy the debt; still, it can only be reached and recovered through the corporation. And if that be dissolved before judgment, the personal liability of the members is extinguished.

A reference to one or two more authorities will conclude what I have to advance, by way of preliminary remark or introduction. to the views which I entertain relative to this particular case.

; In Steavenson vs. Oliver (8 Mees. & Welsh. 234) Lord Abinger, Chief Baron said, “It is by no means a consequence of an ¡act of Parliament’s expiring, that fights acquired under it, should likewise expire.” And Parke, Baron, said, “ There is <a difference between a temporary statute and statutes which are repealed. With respect to the former, the extent of the '.restrictions imposed, and the duration of the provisions, are -matters of construction.”

“It is a well established rule, that statutes incorporating ■companies, conferring privileges and professing to give the ■public certain advantages in return, are to be construed strictly against the corporation, and liberally in favor of the public. Grant on Corporations (marginal page 309), citing Parker’s Great Western Railway Company (7 M. & Gra. 263.)

In this same treatise, marginal page 304, I find the following paragraph, and quote it for as much as it is worth: “The principle has been broadly stated, that a corporation may be dissolved for some purposes, and remain for others.” Referring to Guardians Woodbridge Union vs. Guardian Colnies Union (18 Law J. (N. S.) Q. B. 133, 134.) To which the author adds, “but the subject, at present, requires judicialdllustration.” (Ib.)

We recur now to the main question propounded at the outset — did the action of debt, brought against the directors, under the 8th.rule of the Act of Incorporation of the Commercial Bank of Macon abate, by the expiration of the charter during the pendency, and before the termination of the suit ?

Rule 8th provides that “ The total amount of the debts which the said corporation shall at any time owe, whether by bond, bill, note or other contract, shall not exceed three times the amount of their stock paid in, over and above the amount of moneys actually deposited in their vaults for safe-keeping; in case of excess, the directors, under whose administration it shall happen, shall be liable for the same, in their individual, natural and private capacities; and an action of debt may, in such case, be brought against them, or any of them, their or any of their heirs, executors or administrators, in any Court of record in the United States, having competent jurisdiction, or either of them, by any 'creditor or creditors of the said corporation, and may be prosecuted to judgment or execution, any condition, or covenant, or agreement to the contrary notwithstanding. But this shall not be construed to exempt the said corporation, or the lands, tenements, goods and chattels of the same, from being also liable for and chargeable with the said excess; and such of the said directors who may have been absent, when the said excess was contracted or created, or who may have dissented from the resolution or act, whereby the same was so contracted or created, shall be liable as other directors, for said excess. But such directors may be entitled to recover out of the directors assenting to such excess, by action of debt or on the case, the amount which they may have been compelled to pay.” (Prince’s Digest, 101.)

I am not prepared to say that the directors in this case, who were actually guilty of the mismanagement, would not be individually liable to bill-holders, independent of this statutory provision. For it is a maxim of the Common Law, that any one specially injured by the breach of duty in another, shall have his remedy by action. If they are not, it must be because the loss sustained by their misconduct, was the result of mere error, unmixed with negligence or fraud. By the terms of the Statute, even this constitutes no defence for a violation of the charter, in making an over-issue. But I forbear to discuss this point.

And I ask, what rule of the law, taken in all its length and breadth, is impugned, by holding that the personal liability of the directors may be enforced, notwithstanding the expiration of the charter creating it ? Who is the obligor and obligee, the promissor and promissee, under this 8th rule ? Is it not the directors, under whose administration the excess was committed on the one part, and the bill-holder on the other ? What is it to them that the charter of the Commercial Bank of Macon expired on the 1st day of January, 1852 ? And that from and after that time all corporate liabilities were extinguished, because there was no longer any corporation creditor to sue, or debtor to be sued ? These directors and bill-holders survived and survive in their natural capacities; and it is not necessary, under the charter, for the one to reach and subject the other, through the corporation, as in the case of municipalities. It is true, the charter is not to be “so construed as to exempt the corporation or the lands, tenements, goods and chattels of the corporation from being also liable for and chargeable with the said excess.” The Legislature must have considered that these illegal acts of the directors were done by them in their official capacity, and that they must have received the express or implied sanction of the stockholders, and hence should be binding on them — that the illegality attached not to the directors solely, but to the whole corporate body — that they were in pari delicto the directors in performing, and the corporators in ratifying, by not repudiating and restraining those illegal acts. Qui tacifi consentiré videtur.

It has been assumed in the argument, that the judgment previously obtained by these creditors against the bank, is discharged ; and the lien fixed, by law, upon its assets, released by the dissolution. Eor the sake of the argument concede this. Does the loss of one of the securities guarantied by the charter, deprive the creditor of the benefit of the other ? A note, protected by mortgage, may be barred by the Statute of Limitations (and this charter is a twenty years’ Statute of limitations, pro hac vice) in other words, the note is extinguished; still, the mortgage lien may be enforced. Where two or more persons are jointly, but not severally liable on a simple contract debt, a judgment obtained against one, is, at Common Law, an extinguishment of the claim on the other debtor. But here the corporation and the directors are severally and not jointly liable; the one in their collective, and the other in their individual character. And yet, it is contended, that the discharge of the debt by operation of law, as to one, is a discharge of both.

No one doubts the power of this and other banks to draw, accept or endorse bills and promissory notes. Suppose a bill had been drawn by an individual or another bank, and accepted by the Commercial Bank of Macon; and the latter failing-at maturity to pay, the paper had been protested, and notice-given to the drawer, before the expiration of this charter— would there be any question as to the liability of the drawer ?' So, if the Macon Bank had been the maker of a negotiable note, which was subsequently endorsed, the liability -of the endorser would be indisputable, notwithstanding the expiration of the Macon Bank charter.

The President, Directors and Company of the Middletown Bank vs. Russ and others (3 Conn. Rep. 135) was a case-where a manufacturing company became indebted to the plaintiffs on notes made by its agent to one Wolcott and others, and by them were endorsed to the Middletown Bank. At maturity, payment was demanded and refused, and notice given to the company and endorsers. I ask, had this manufacturing company, after that, ceased to exist by the efflux of time, would the endorsers have been discharged ? And if not in these cases, why should the expiration of this charter, admitting that it extinguished all corporate liability, shield these directors from an action “in their individual, natural and private capacities,” which was given against them, and not only them, but their heirs, executors or administrators, and which was authorized to be prosecuted to judgment and execution in any Court of Record in the United States, having competent jurisdiction; and that, too, in despite of “ any condition,-or covenant, or agreement to the contrary!” So determined were the Legislature to give efficacy to this provision, in restraint of over-banking, that it is expressly enacted that no condition, in law or in deed, (and is not the plea here set up, directly in the face of this clause, viz: that you may do this, upon the implied condition that suit is brought during the continuance of the charter,) I say, so resolved were the Legislature to uproot the temptation to this mischief, that not only no condition, but even a “ covenant or agreement" between the parties to that effect, shall not arrest this statutory remedy : but the solemn stipulation between the parties, founded upon a valuable consideration for this purpose, is to be set aside, like gaming and usurious contracts, as against public policy, and declared by the-Courts to be null and void.

On the brief of the senior Counsel, I find this definition of the word extinguishment: “an annihilation of a collateral thing or subject, in the subject itself, out of which it is derived”. It will be found in Burrill’s Law Dictionary, part I. p. 461. And the author cites Preston on Merger, 9. I have before stated, that extinguishment is very often, in the Books, confounded with merger. And this remark' is made by Mr. Burrill, himself, immediately following the foregoing definition. And well it might be. His own definition is a proof and illustration of the fact; for by referring to Preston on merger, it will be seen that it is there used for the consolidation or union of one estate with another, as where a Prior has an annuity outside of his parsonage, and afterwards purchases the other and can obtain an appropriation of it, the annuity is extinct or merged. (2 Henry, 4 ch. 19.) So, if one has a road appendant or common appendant in others’ land, and purchases the fee, and afterwards disposes of the fee, there the road or common is extinct forever. (11 Henry, 4 ch. 5.)

But it is needless to multiply these cases, which have come down from the Year Books. Grant, if you please, that the extinguishment of the main thing bad the effect of extinguishing the incidents growing out of it; still, the rule, when applied even to rights or debts, would not avail these parties; for, quoad hoc, they are the body, and the corporation but the limbs. They are the head and front of this offending. This liability has been incurred by their mal-administration of the affairs of the corporation. Their malfeasance or official-mismanagement, is the wrong for which this redress is given. An excessive issue was forbidden by the Legislature, and it is for disregarding this inhibition that these suits are instituted. The directors may 'not, knowingly and intentionally, have violated the express prohibition of the law, in this respect. I know some of them, and' they are honorable men — men upon whose escutcheon the stain of dishonor, or even the suspicion of it, never attached; still, from whatever cause the acknowledged violation arose,, whether from negligence, mistake or any other cause, the effect, as to the parties to this suit, is the same. The law will not hold them guiltless. The law does not expect nor stipulate for infallibility. Lex non cogit ad impossibilia. And I thank God that it does not; but when it distinctly forbids a .thing to be done, and annexes a certain responsibility for disobedience, its mandate must be respected or the consequences submitted to.

So, then, to make the definition from Burrill available, it should have been reversed. The legal maxim is — Accessorium non ducit sed sequitur mum principóle. That the incident does not lead, but follows the principal: whereas, here, the extinguishment of the collateral is made to work the extinguishment of the direct liability. In this instance, neither controls, but the one is wholly independent of the other.

■ Having disposed of the definition, let us consider, for a moment, the analogy from the law regulating the marriage contract. We have seen that if the debt of the wife,' contracted dum sola, was not collected during the coverture, it was said to be extinguished. Nevertheless., say the authorities, it being the debt of the wife and not of the husband, if he died, the debt survived against her. Now wre have attempted to show, that this was the debt or default of the directors. One, for good reasons, from which the corporation was not exempt, provided it was prosecuted during the existence of the corporation. But as against the directors, who occasioned the injury, why should it not survive the legal death of the bank ? Just as the debt of the wife survived the legal death of the husband? We must think the analogy makes strongly against the ingenious Counsel who have invoked its aid.

Is there any thing, in the case of Fox and, Sor ah, adverse-to the conclusion, that the liability of the directors survives the-termination of this charter, or in conflict with the exposition which -has hitherto been given by this Court, to the Common Law rule applicable to defunct corporations ? If so, then I have studied that case to little purpose. Like all the other precedents adduced from the State Courts, it affirmed, in general terms, the Common Law doctrine, that upon the civil death of a corporation, the debts due to and from it are extinguished. Rut Judge Cfaston proceeds — “but according to the terms of the original contract, the plaintiff (Eox) became bound to pay the money to the defendant (Horah). This constituted liim, and not the bank, the legal creditor of the plaintiff. As such, he has obtained his judgment, which is not extinguished by the death of the corporation; and, which lie has the undoubted power to collect by legal process.”

Surely this portion of the opinion of this eminent Jurist,, must have escaped the notice of the lynx-eyed Counsel who have investigated this question with such untiring industry. Because the note was given to Horah, the former cashier of the expired bank, although for the money of the bank, and he having no personal interest in it, this Court held, that being the legal creditor of the borrower, and having obtained his judgment upon this note, as at Law he was entitled to do, the debt was 11 not extinguished” by the dissolution of the charter. And that this mere nominal, ostensible holder, had “ the undoubted power to collect it by legal process”. But the Court, .sitting in Chancery, decreed that it was against conscience to tolerate so unjust a proceeding; and consequently, granted an injunction to restrain the judgment.

If this unreal, shadowy and seeming liability from Eox toHorah, and which could have been defeated in this State, even at Law, according to the uniform decisions of this Court, was not extinguished, because, on its face, the note was made payable to Horah as cashier, although, in fact, due and owing the bank, how can it be claimed, upon the authority of this case, that this primary, direct and personal liability of these directors is cut off — destroyed, by the expiration of this bank charter ? And if it be not, is it against conscience, in these creditors, to compel the payment of their demand? Would a Court •of Equity find any pretext, here, for interposing to shield these-defendants from the consequences of their own acknowledged delinquency ?

It would be a waste of time to review, at length, the other •cases. Jf’ox and Sorah is the strongest. And by that, I am willing to have this judgment tested and tried, and if found -in hostility to it, pronounced erroneous. In this, as well as in all the other cases, from Alabama, Tennessee and elsewhere, the' ’decision of the Court turned upon the fact, that virtually, the defunct corporation was a party to the litigation; and that being a corporation suit, it must, under the common rule, abate. But no such issue is involved here. This suit is brought to enforce a distinct, separate and independent undertaking. And in the language of the Court, in the case in Iredell, “certain it is, that neither our own researches nor those of the ■Counsel, have furnished any adjudications” which apply to such a case; and maintain, that such a collateral liability is defeated by the civil death of the corporation. After a thor■ough examination of the whole range of English and American .authorities, ancient and modern, I entertain the utmost confidence that none such can be found. I have searched diligently for the reason upon which the rule of the Common Law is •based. I believe that I have stated and applied it' correctly.

But, say Counsel, and this I consider the most plausible view that has been taken of this question, when the charter was dissolved, by its expiration or from any other cause, the entire contract, and every par,t thereof, was vacated; for the contract being an entirety, it could not be dissolved in part, and still ■subsist for certain purposes. The State agreed to grant to the stockholders, upon certain precedent conditions, the franchise •embodied in the charter, and the stockholders, on their part, -agreed, amongst other things, that they would not issue more than three times the amount of the capital stock paid in, over and •above the amount of deposits. That the bank should pay the bills in specie, when presented; and that if any of the stockholders are made directors, they will not be guilty of an over-issue ; and if they do, the property and effects of the bank shall be liable; and that in addition to this, the directors would be liable, in tbeir persons and property, for said excess ; and that it was farther mutually understood and agreed, that if the said bank failed to comply, on its part, the charter might be forfeited, and the State might institute proceedings to vacate the contract; and if they were so dissolved, and also upon the expiration of its charter, on the first day of January, 1852, ■the contract would no longer have any binding force or effect. The real estate belonging to the bank should revert to the .grantors — its personal property be seized by the State ; and all the debts due to and from it, at that time, should be extinguished.

Now the argument is, that as the stockholders stipulated that as directors, they would be personally responsible for an over-issue; and that part of the contract was obligatory upon them during its existence; yet, it is but fair, just and equitable, that they should be discharged from it, since the rights and privileges guarantied by the charter, have been annulled by its extinction. That this clause, by which the stockholders are made personally chargeable, is not a super-added stipulation, subsequently entered into by the directors, at the time of their election, but an original item in the contract, as it was ratified between, the State and the stockholders. It was a part of the compact and could not survive it; and when the charter expired, this expired with it, just as all the members of the animal body cease to pulsate when the body dies.

This ingenious method of stating the case, is opposed, of course, to every aspect in which we have endeavored to present the transaction, and the law arising out of it. We are called upon to point out the paragraph in this charter, which extends the individual liability of the directors, beyond the period fixed by the charter for its own expiration. Eor all the purposes of this decision, we have conceded that all corporate rights and liabilities are extinguished by the dissolution of the bank, on the first of January, 1852. We have attempted to show that this results from the necessity of the case. We have attempted to show, and we think successfully, that no such reason applies to the personal responsibility incurred by a portion of the stockholders, as directors, during the existence of the incorporation; and no authority has been cited, negativing this conclusion. We insist, therefore, that the burden is upon those who assail our position, to point to the proof in the charter, that this individual liability ceases with that of the company, and that such was the intention of the Legislature. We admit that this intention may be inferred, as to the aggregate liability, from the operation of the rule which we have been discussing ; and that the contract may be read and interpreted, as though this was inserted in it. But we utterly deny that any such conclusion is to be drawn, so far as the personal accountability of the directors is concerned. Indeed, apart from the legal view of the question, the very contrary is to be presumed, from the fact that the very ground upon which it is contended the private liability terminates, namely: the dissolution and insolvency of the bank is the very contingency contemplated by the Legislature, upon the happening of which the super-added security would seem to be most needed.

But let us examine this case as put by Counsel, a little more closely. It is said that this charter is a contract, to which the Government is one party, and the stockholders are the other. By the terms of the instrument, the Government granted certain privileges to Thomas T. Napier and others, which were to continue till the first day of January, 1852, unless forfeited or voluntarily surrendered before that time. In consideration of this grant for a definite and limited period, the said Thomas T. Napier and the other persons therein named, and all others who might subsequently become stockholders in said company, stipulated, amongst other things, that 'the debts of the company should, at no time, exceed three times the amount of their stock paid in, over and above the amount of their deposits. And for the fulfilment of this agreement, the stockholders bound themselves in two capacities — one, as members of the corporation, and the other as individual stockholders. As members of the corporation, they agreed that the corporation and the lands, tenements, goods and. chattels thereof, should be chargeable for said excess. As individual stockholders, •they agreed that their persons aiid property should he pledged ■and bound in proportion to the value of shares — that each of said stockholders, should hold in the bank, for the ultimate redemption of its bills. And further, that in case an over-issue should be made, whpever of said stockholders should be directors at the time, should be liable in their individual, natural and private capacities for said excess, in an action of debt, to be instituted against them, o'r any of them, their heirs, executors or administrators, in any Court of Record in the United States having jurisdiction of the matter; and that said suit might be prosecuted to judgment and execution, any condition, or covenant or agreement, to the contrary notwithstanding.

Here, then, are the same persons liable in two different ways for the same debt, created inchoately at least, at the .same time, by the-same instrument, and upon the same consideration. It is not pretended but that the Government has faithfully kept and performed its part of the contract. And it is agreed by the defendants on the record, that under their administration as directors, there was an over-issue of [bills more than sufficient to cover the amount sued for. It is insisted, however, that because the undertaking of the stockholders, as members of the corporation, that the corporation should be liable, is extinguished by virtue of the Common Law rule, its charter having expired, the individual undertaking must fail •also, to which no such rule applies.

It does seem to me, that simply to state this proposition, is to refute it. And that it is founded in. neither law or logic.

It could be satisfactorily demonstrated, I think, this was not a contract made between the State of Georgia and a corporation, but one which was entered into between.the State and the individuals therein named, who, as the preamble to the charter recites, had already, subscribed for the stock, in the contemplated bank, and all such persons as might, by assignment of stock ■or otherwise, become stockholders: whereby, The Commercial Banlc of Macon was brought into being. But I forbear to enter upon this investigation. Of one thing I entertain no ■doubt; and that is, that had the stockholders in any of our railway companies stipulated with the State, that in consideration of the privileges and immunities granted, at the expiration of their charter, the road, with all of its fixtures and equipments, should be transferred to the State; and that for the due execution of this agreement, they bound themselves in their individual, natural and private capacities, in double the value of said property, no Court in the United States would hesitate to coerce a compliance with the contract. “Ah!”' it will be said, “in the case supposed, the instrument shows,, upon its face, that this part of it was not to be performed until the expiration of the charter”. Yery true; but so far as these' individual obligations are involved, it matters not when they are sought to be enforced, whether before or after dissolution. They rest upon a wholly different footing from that of corporate liabilities, to which the doctrine of the Common Law rule-applies.

Again: Suppose one of our railway charters should provide,, that for all injuries done to the persons of passengers, by the misconduct of any officer, that said officer, his heirs, executors and administrators should be personally liable to the party aggrieved, in an action of trespass, in any Court in which he-might be sued, “ any condition, covenant or agreement to the contrary notwithstanding.” And that said provision should' not be so construed as to exempt the corporation from liability for said trespass. And suppose a passenger should be seriously crippled by the reckless running of the train, on the day before the charter expired; and that in consequence thereof, no suit could be prosecuted against the company, there being no body politic or incorporate, answering'to the name, who could be sued, what is there, in this Common Law principle, which would constrain the Court to refuse to entertain an action against the engineer or conductor, by whose mismanagement the damage was inflicted ? We apprehend that the dissolution of the company would interpose no difficulty, as to the right of recovery against the offending officer. And so in the case at bar.

Further: Suppose these directors had given their notes to these creditors, for the amount of their claims;, and' the corporation'had expired before collection could be made — would' this, have constituted a-good defence; even in Equity, against a recovery upon the notes ? If not, then it is not' allowable in-the case, as it now stands. For it is immaterial, whether the obligation to pay be by express contract or implied, under, the Statute. If it would be a good defence, then we should take one step more. Under the 8th rule, while all the directors who were in office at the time the excess W'as committed, are made liable to third persons, it is further enacted, that such of them as were absent at the time, or being present, protested against it, and from whom a recovery may be had, are entitled to go over against their associates, who were actually in fault. Suppose a recovery to have been had, in this very case, before the expiration of the charter, and a suit had been brought by the directors, who were innocent of actual wrong against their colleagues, for re-imbursement, since the expiration of the charter — can it be supposed, for a moment, that the Legislature intended that the expiration of the charter should defeat this right ? In the language of Lord Mansfield, (3 Burrows, 870,) “without an express authority”, and I will add, a legislative intent “ too strong to be gotten over, we ought not to determine a case, so much against reason”. And yet, every argument may be urged in favor of the application of the Common Law rule to this case, as to the one under consideration. This is one of the “incidents” that is extinguished with the “principal” — one of the “limbs” that ceases to pulsate when the “body” dies.

The individual stockholders who were directors when this excess was committed, and the corporation, are both principal debtors. I am not sure but that, under all of our bank ’ charters, containing individual liability clauses, that instead of looking upon the stockholders as guarantors or sureties of the company, that both should be deemed principal debtors — and that but for the requirement that the creditor shall first proceed against the corporation, that he might sue either, at his election — and this requirement is no more than applying an equitable principle, that the debts should he paid from the joint funds of the associates, rather than from the separate property of any one of them. But as it respects these directors no such principle obtains; and by its omission, the Legislature has manifested their interpretation of the contract, that it is the debt of the individual stockholders, who, as directors, committed the excess; that it attached upon their persons and property the moment the over-issue was made, and might be enforced at any time thereafter, whether the directors remained in office or had gone out — and continued until it was discharged.

Much has been said in the course of the learned and lengthy discussion which this cause has occasioned, as to the hardship of enforcing .this personal liability upon the directors, when they have been deprived of the benefits conferred upon the company, by the expiration of their charter. But were the bank still in operation, would these directors have a remedy over against the corporation for re-imbursoment ? Iam inclined to think they would not, for the reasons already suggested. It will be observed, that while under the 8th rule the directors, who may have been absent when the excess was contracted, or who dissented from the resolution creating the same, are entitled to recover out of the directors assenting to such excess, the amount which they may have been compelled to pay, no provision is made for them to have recourse over against the corporation or the other stockholders for contribution.

But, under any circumstances, bill-holders cannot control the matter. They cannot prevent violations of charters — stockholders can. And if the Legislature intended security to any class, it is hardly to be presumed that it would be to those who violated the law or acquiesced in it, whereby these losses are entailed upon the public.

Besides, the stockholders were the proper persons to apply to the Legislature, to intervene and prevent the Common Law principle from attaching and depriving them of the power to collect their assets, and make them available. This duty did not devolve on the creditors; -nor should they be chargeable-■with neglect, nor visited with loss for not attending to it. And to prevent such consequences, it is the duty of Courts to put the most liberal construction upon these charters, and to struggle hard to get away from the Common Law rule, so far as creditors are to be prejudiced by it, as did the Supreme Court of Massachusetts, in Folger vs. Chase, (18 Pick. R. 63) and' as have all the Courts of this country where the rights of creditors were to be injuriously affected by its rigid application.. Fvery decision sustaining the constitutionality of statutes, passed to prevent the Common Law rule from attaching to dissolved corporations, is proof of this assertion.

Tho charter under consideration is only a part of a great system intended to secure the credit of corporations, by super-adding the responsibility of the individual members, to that of the corporation. And after listening patiently to the able and voluminous argument submitted at the hearing, and diligently reviewing the whole case since, I do not feel constrained, by any principle of law or equity, good morals or sound reasoning, to render the judgment of reversal which is asked at our hands by the plaintiffs in error. Indeed, these all conduct me to- a contrary conclusion. I will merely subjoin, that on the minor points in this case which, with the exception of that as to interest, are mere matters of form, and not of substance; technical and hot substantial objections; we unanimously affirm the judgment of the Circuit Court. In Lane vs. Morris, (10 Ga. R. 162) this Court held that the bill-holder was entitled to claim interest from the stockholder, not from the time that payment 'was demanded of the bank, nor from the return of nulla bona by the Sheriff on the fi. fa. against the bank, but only from the time that payment was demanded of the stockholder. We see no reason to lay down a different rule in this suit against the directors;- still, this point has not been argued, although made in the bill of exceptions.

I have now gone through this case, and touched upon all the points which appeared to me deserving of consideration.Some portion of what I have here expressed might have been spared; and the consideration of several of the topics may be deemed immaterial to the conclusion to which I have come; hut as they were introduced into the discussion, I deemed it respectful to give my views concerning them. That there are difficulties connected with them,-I freely admit. What subject has no difficulty in this world ? What truth, however luminous, that projects no shadow around it ? I have written just what I believed, and nothing more nor less. After the most laborious and careful examination, I am satisfied that my construction of this charter is tenable, while the opposite theory is not. And that in no point of view can the defendants escape the liability sought to be fastened upon them.