Error v. Underwood

• Citation: 19 Ga. 559
• Decision Date: 28 February 1856
• Docket Number: No. 105.,105.
• Parties: Jambs Morris et al. plaintiffs in error. vs. William J. Underwood et al. defendants.
• Court: Supreme Court of Georgia

19 Ga. 559

Jambs Morris et al. plaintiffs in error. vs. William J. Underwood et al. defendants.

No. 105.

Supreme Court of the State of Georgia

FEBRUARY TERM, 1856.

Quo warranto, in Whitfield Superior Court. Decided by Judge Trippe, October Term, 1855.

This was an information in the nature of a quo warranto, filed by William J. Underwood and others, against James Morris and others, to show why and by what authority they exercised the office of directors of the "Planters' & Mechanics' Bank of Dalton, " and used the franchise of banking.

The affidavits of the relators set out sundry irregularities in the organization of said bank, and the election of defendants as directors.

It appeared that the term for which said directors were elected, expired in August, 1855, and a new election was then held; and this rule nisi came on to be heard and a rule absolute was granted October Term, 1855, requiring the defendants to answer the information.

To this order, granting the rule absolute, the defendants excepted.

Brown; Moore, for plaintiffs in error.

Walker, for defendants.

By the Court.— Lumpkin, J., delivering the opinion.

A rule nisi was granted by the Judge of the Superior Court of Whitfield County, at the instance of William J. Underwood, Brodwell E. Wells and Richard H. Sapp, requiring James Morris, Robert Y. Cook, John Anderson, Richard C. Cook and William L. High, to show cause why an information, in the nature of a quo warranto, should not be filed against them, calling upon them to show by what authority they were exercising, as the directors of the Planters' & Mechanics' Bank of Dalton, the franchise of banking. Upon the hearing in October last, the rule was made absolute; and the bill of exceptions is filed to this decision.

The Legislature of 1853-'4, incorporated the Planters' & Mechanics' Bank of Dalton. (See Pamphlet Acts, p. 188.) The corporators were William J. Underwood, Owen H. Kenan, William L. High, Euclid Waterhouse and James Morris, and such other persons as they might procure, to take stock under the charter. The capital of the bank was $150,000, with the privilege of increasing it to $250,000. The stock was divided into shares of $100 each, and appropriated among the aforesaid stockholders, and such other persons as they might associate with them. The affairs of the corporation were to be managed by five directors, to be elected by the stockholders as soon as specie to the amount of $10,000 was paid in. The directors first elected, were to serve until the first Monday in April, 1855, and were to be elected, annually, on the same day thereafter. They were to be elected by a majority of the votes given in; and if the stockholders failed to elect on the day designated, they might do so at anyother day, to be regulated by the rules and by-laws of the corporation. The failure to pay assessments, incurred a forfeiture of the stock; and if the bank was not organized and put into operation in two years after the passage of the Act, the corporate privileges were forfeited.

Books of subscription to the capital stock were opened, and the citizens of Whitfield and Murray Counties were invited to subscribe. The small book in which the names of the subscribers were entered, contained a caption to the effect, that the subscribers obligated themselves to pay such instalments as the directors might assess; and further, that the directors were authorized to transcribe or transfer to any other book, the names and number of shares subscribed for by each individual.

The whole amount of stock subscribed for, was 1546 shares, or $154,600. Of that amount Morris, High and William K. Moore subscribed for 1230 shares, or $123,000; and they procured the transfer or control of 231 shares more, making the whole amount owned and controlled by them 1451 shares; and leaving 95 owned by others. Of this, Sapp, one of the relators, owned 50 shares; Wells, another, 20 shares; and Underwood, ten shares.

Sometime thereafter, to wit: on the 29th of July, 1854, Morris, High and Moore relinquished 1410 of their shares to Samuel T. Dickinson, and entered his own name in lieu of theirs, upon the new book for that number of shares; and the names of all the original stockholders, together with the number of shares owned by each, respectively, were transferred to the new book, in which the name of Dickinson was entered, except that of Wells; that after the subscription had closed, Morris, High and Moore subscribed for the remaining shares. The reason why Wells' name was omitted was, that High, his partner and intimate friend, (Wells being absent from home at the time,) took upon himself the responsibility of withdrawing Wells' subscription. When Wells returned, he expressed himself dissatisfied with the arrange-merit; and the offer was made to re-transfer to him the number of shares which he owned.

The $10,000 required in specie was paid in gold, Morris making the pro rata advance, to wit: $600 on the shares not represented. An election was held and the five respondents were chosen, no one voting but Dickinson, who cast 1410 votes of the 1425 represented at the meeting. No notice was given to the relators. White, Wells and Sapp were absent at the time. Underwood was in town during the day and agreed, in the morning...