Moultrie et al. vs. Smiley and Neal. of the majority makes that property liable for the redemption of bills to an amount equal to the value of the capital stock, and for none beyond that amount. It is true that that rule increases this security as much as possible, by arbitrarily counting the value of the stock at $100 a share. But to do this, it has, as I conceive, to put a forced meaning on the word value, and even then, the result is a security not sufficient to cover cases contemplated by the charter-those cases in which the amount of bills to be redeemed, exceeds the value of the stock, even when the stock is rated at $100 a share. This interpretation presents no opportunities to the stockholder, to prefer one bill-holder to another-gives him no chance to discharge his liability, by taking up bills at their depreciated value-offers him no temptation, therefore, to use means to depreciate the value of the bills; in all which respects, also, it is in contrast with the rule of the majority of the Court. And these are my reasons for thinking this interpretation to be the true one. I had, therefore, to agree with the Court below, and to disagree with this Court. No. 32. BRIGGS H. MOULTRIE, et al. plaintiffs in error, vs. [1.] The 8th rule of the Act of Incorporation of the Commercial Bank of Macon provides, that the debts which the corporation shall at any time owe, shall not exceed three times the amount of the stock paid in, over and above the deposits in their vaults; and that 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, in an action of debt to be VOL. XVI-37 16 289 123 792 Moultrie et al. vs. Smiley and Neal. 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 of the subject, by any creditor of the corporation; and may be prosecuted to judgment and execution, any condition, or covenant, or agreement to the contrary, notwithstanding: Held, that an action brought, under this rule, against certain directors who were guilty of an over-issue, did not abate by the expiration of the charter, by its own limitation, during the pendency and before the termination of the suit: Held, further, that a creditor of the corporation, is entitled to recover only the amount of his debt or demand, and not the entire excess, in solido. Debt, in Bibb Superior Court. Tried before Judge POWERS, November Term, 1854. This was an action brought to January Term, 1848, by Robert B. Smiley, against Briggs H. Moultrie, Charles Campbell, William B. Johnston and Thaddeus G. Holt. The declaration set out, that the defendants, on the 29th of Sept. 1847, were the directors, and the sole directors, of the Commercial Bank of Macon; that at that date, and from thence continuously, up to the time of bringing this suit, the indebtedness of said bank exceeded three times the amount of the capital stock paid in, over and above the amount of moneys actually deposited in their vaults for safe-keeping; that said excess of indebtedness occurred during the administration of defendants, who have been, since that time, and still are, the directors as aforesaid; that the plaintiff, on said 29th Sept. 1847, was bona fide holder of certain bills of said bank, on which he obtained judgments against the bank, in a Justice's Court, on the 13th Nov. 1847, which he still holds unsatisfied. The declaration further stated, that the aforesaid excess of indebtedness was, at the time it was created, and is, and has been continuously, over 300 dollars, and that returns of nulla bona as to said bank, had been regularly entered on his fi. fas. by the proper officer. Wherefore, he sought to hold the defendants personally liable for said debt, by virtue of the Statute incorporating said bank. The 8th rule of the Act of Incorporation of the Commercial Bank of Macon is as follows: Moultrie et al. vs. Smiley and Neal. "The total amount of 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, 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 and execution, any condition, covenant or agreement to the contrary notwithstanding. But this shall not exempt the said corporation, or the lands, tenements, goods and chattels of the same, from being also liable for, and chargeable with such 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". The defendant filed plea of the general issue, and at May Term, 1852, he, by leave of the Court, filed the additional plea, that since the last continuance, to wit: on the 1st dayof January, 1852, the time limited by the Act of Incorporation of the Commercial Bank of Macon, for the corporate existence of the same, terminated and expired, whereby the said corporation became extinct, and all debts and liabilities due to or from the said corporation became extinct also. At November Term 1853, the cause being for trial and the Jury impannelled to try the same, plaintiff moved the Court to strike out the pleas of defendants, except the general issue, which motion was sustained and said plea ordered by the Court to be stricken out; which decision is alleged as error. Moultrie et al. vs. Smiley and Neal. Plaintiff's Counsel then read in evidence the eighth rule of the charter of the Commercial Bank, and then offered in evidence the six Justice's Court fi. fas. vs. the Commercial Bank, specified in his said declaration; to the admission of which, Counsel for the defendants then and there objected, on the ground that the executions were no evidence of debt, but the judgment or bank bills must be produced; which objections were overruled by the Court, and said executions read in evidence, and Counsel for the defendants then and there excepted. And Counsel for the defendants further objected to the admission of said executions in evidence, because the suit should have been for the entire excess contemplated in the charter of the bank in solido, Counsel for the defendants admitting there was an excess of more than $1.000 of issue by the bank, as charged in the declaration, and up to the time of the commencement of the suit; and that the defendants were directors as charged. Plaintiff closed, and defendants offering no evidence, the Court charged the Jury, that if they believed, from the evidence, that the defendants were directors, and that there was an excessive issue above plaintiff's demand, and above any prior payment or judgment for excess, they must find a verdict for the plaintiff for the amount of his demand, as proven, for principal debt, with legal interest thereon from the commencement of the suit, and ten per cent. damages; to which charge Counsel for the defendants excepted, and the Jury returned a verdict for the plaintiff for One Hundred and Eighty-nine Dollars and Eighty-three Cents principal, with interest from 7th December, 1848. Defendants assign as error: First. That the Court erred in sustaining the motion to strike defendant's pleas, as stated, on the ground that the charter of the bank expired before the suit was determined, and in ordering said plea to be stricken. Second. That the Court erred in admitting in evidence the executions vs. the Commercial Bank, and in over-ruling the objection of Counsel to their admission, on the grounds that they were entitled to the judgments, and that the fi. fas. alone are Moultrie et al. vs. Smiley and Neal. not evidence of debt, and because the suit should have been for the excess as stated in the charter. 3d. The Court erred in charging the Jury to find for the plaintiff the amount of his demand, as proven, for principal debt, with legal interest thereon, from the commencement of the suit and the ten per cent. damages. TOOMBS, NISBET and JONES, for plaintiffs in error. RUTHEREORD; WHITTLE, for defendant. 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 |