Adkins v. Thornton

The Court not being unanimous, the Judges delivered their .opinions seriatim. ■

By the Court.

McDonald, J.

delivering .the opinion.

Whether or not there be error in the decision of the Court below, depends on the nature and extent of the liability of the defendant, as a stockholder in the Planters’ & Mechanics’ Bank of Columbus, for the ultimate redemption of the bills or notes issued by that bank. If the defendant is liable, as a stockholder in said bank, for a part of the unredeemed bills or notes issued by said bank, equal in amount to the shares and value thereof, which he holds in said bank, without regard to the aggregate amount of the unredeemed notes, and the notes sued on do not exceed the amount of the shares or the value thereof, however estimated, held by him in said bank, the declaration is good, and ought to be sustained; but if he is liable for such part, only, of said bills or notes as bears the same proportion to the amount in circulation, that the shares and the value thereof, held by him, bears to the capital stock of the bank, then the declaration is insufficient, and there is no error in the judgment of the Court below. The measure of the stockholder’s liability must be determined by his own engagement, as found in the 11th section of the Act incorporating the bank.

[1.] Charters of this description being held to be contracts, are to be interpreted as contracts. Where an act of incorporation is passed by the General Assembly, it amounts to nothing more, until accepted, than a proposition to contract. Its acceptance makes it a. contract.. The acceptance is the work of individuals. The judgments of individuals necessarily pass upon the proposition before it is accepted, and the acceptance of the proposition by individuals, gives existence to the corporate body, which now has a being, in law, as an artificial person.

[2.] When the charter of the Planters’ & Mechanics’ Bank was offered to the persons named therein, and other persons who might become stockholders, the 11th section was a part of it, and each individual, no doubt, considered it for himself, as by his acceptance of it, it would become his contract, and he would be bound by all its provisions. The charter must be construed, then, as the contract of the defendant in error, and the 11th section of the charter is a part of it. Jf he is liable, it is his own voluntary undertaking. Banking institutions have extraordinary privileges granted to them, and from which, if they are uprightly and honestly used, immense profits may be made, with but little prospect of detriment to the. community. But revulsions in the commercial world might subject the best managed banks to heavy losses and jeopard the value of their 'notes in the hands of the people. They have the power of substituting paper for a metalic currency, and, generally, to issue three dollars in paper for one in coin in their vaults. It is right that the community should have some protection against probable losses, beyond what was formerly provided in bank charters; and of late, the Legislature has generally inserted what is usually termed a personal liability clause, which is always a part of the contract of the corporators, ■ or of the persons who become such by their acceptance of the charter.

For the prospects of profit offered by the charter under consideration, the defendant in error has agreed to be bound in proportion to the amount of shares and the value thereof, which he holds in the bank, for the ultimate redemption of the bills or notes issued by the bank; and this defendant and his fellow share-holders are bound for the ultimate redemption of all the notes or bills issued by the bank, and the bona-fide bill holder has this protection.

It has been insisted, in argument, that if the outstanding; circulation should exceed the amount of the capital stock, that the excess over the amount of the capital stock is unprotected, and that each stockholder is liable to the amount of his shares only. There is nothing in the words of the charter, which is the stockholder’s contract, to restrict the-aggregate, personal, ultimate liability to less than the whole circulation; and there is certainly nothing, in the reason or spirit of it, so to limit it. The object and intent was, to protect the public against loss. Is the public so protected in this case — and what is this stockholder’s liability? If the stockholders are all solvent, the public is protected; if they are not, a loss will be sustained on the whole circulation, equal to the part or proportion for which the insolvent stockholders would be hound. Is the defendant in this case liable for the ultimate redemption of all the bills or notes now outstanding, the bank being insolvent? By the plain terms of the charter, which is his bargain with the bill holders, as well as the State, he is not.

[4.] He is bound for a part only, and such part as bears-the same proportion to the aggregate amount of unredeemed' notes that his stock does to the capital stock of the bank. His is a several liability and an ultimate liability. He is not bound to make good an insolvent stockholder’s part; it is not his contract to do it. He is not bound in the first instance-nor in the second instance, on any other debts of the bank, except the bills or notes issued by it.

[5.] The creditor is not restricted to any form of proceeding to enforce his rights. He may proceed in Equity or at-Law; and if at Law, he may elect any form of action, appropriate to such a case, which he may deem most convenient and advantageous to him.

The charters of most of the banks which give a remedy against directors for excessive issues of notes, prescribe the remedy. See Charter of Bank of Augusta, Rule 15, [Prince, 54,) and charters of other banks, (Prince, 60, 65, 85, 92, 101, 54.) In all these cases the action of debt is given. But in none of the charters, in which there is a personal liability clause, is the remedy against the stockholder pointed out.. They define the manner in.Avhich the persons and property of the stockholders are to be pledged and held bound, and some declare it shall be done in the same manner as in common commercial cases or simple actions of debt, while others-declare, as is the case of the charter of the Planters’ and. Mechanics’ Bank of Columbus, that they shall be pledged and held bound in proportion, &c. &c. “ in the §ame manner as in common actions of debt.” (Prince’s Dig. 70, 86, 88, 98, 96, ¿-c. ¿-c. ¿•a.)

[6.] By accepting the charter, the stockholder agreed that his person and property should be pledged and held bound in proportion, &c. &c. in the same manner as is therein prescribed, and not otherwise. The word “pledge,” as used here, is not to be understood or construed to mean a mortgage or a pawn, but it is qualified; and the sense in which it is used, is explained by the words in the subsequent part of the same sentence — “ in the same manner as in common actions of debt." How are the persons and property of a debt- or pledged and held bound in common actions of debt ? The person is liable to arrest on original, mesne or final process; and after judgment, his property is liable to be taken in execution and sold. The defendant and his property is pledged and held bound in this manner, and not otherwise.

[7.] In this case, the plaintiff has elected to proceed at Law, and has adopted the action of debt as his remedy. The bank being insolvent, he has a right to recover from the defendant, on the unredeemed notes issued by the bank, a sum which bears the same proportion to the aggregate amount of the unredeemed, outstanding notes, that the stock which he holds in the bank bears to the amount of the capital stock. His declaration ought to be so framed as to admit all the proof necessary to establish his demand, under this rule of the defendant’s liability, and there being no averment in the declaration, of the amount of outstanding, unredeemed notes, • proof of which being necessary to .make • out plaintiff’s case* .the declaration is bad, and the judgment of the Court below must be affirmed.