Hargroves v. Chambers

• Citation: 30 Ga. 580
• Parties: HARGROVES, executor. v. CHAMBERS et al.
• Decision Date: 30 June 1860
• Court: Supreme Court of Georgia

30 Ga. 580

HARGROVES, executor. v. CHAMBERS et al.

Supreme Court of the State of Georgia

JUNE TERM, 1860.

Debt, from Muscogee county. Tried before Judge Wor-rill, May Term, 1859.

George Hargroves, as executor of George Hargroves, deceased, brought his action of debt against the defendants in error, as the only surviving directors of the Planters & Mechanics' Bank of Columbus, to recover of them the sum of $4,400.25, besides interest, deposited by deceased in his lifetime in said bank, and which the defendants were liable to pay, as was alleged, on account of their violation of the char-ter of said bank, in this: That at the time of said deposit, the debts which said bank then owed by bond, note, bill or other securities exceeded three times the amount of its capital stock actually paid in in specie over and above the amount of specie actually deposited in the vaults of said bank for safekeeping.

The case was tried on the following agreed state of facts: It is admitted that George Hargroves is the executor of George Hargroves, Sen., deceased; that at the date of the certificates sued on, George Hargroves, deceased, deposited in said bank the amounts of money therein specified, and said bank, by its then president and cashier, gave him the certificates sued on; that on the 2d day of June, 1842, payment of them was demanded of, and refused by, said bank, and that the bank was sued, on them by said Hargroves, deceased, to the July Term, 1842, of the Inferior Court of said county, and judgment thereon rendered against the bank; at the December Term, 1842, execution issued thereon, returned to the July Term, 1843, "no property;" that at the time of issuing said certificates, Chambers, Banks, A. H. Flewellen, W. B. Ector, J. C. Watson, Daniel McDougald and Thomas Berry were the directors of said bank, and that at the time of bringing this suit, they were all dead but Chambers and Banks, and that Flewellen, Ector, McDougald and Watson had representatives and estates in the county of Muscogee, but Berry had no representative in this State; that more than twelve months from the grant of their letters elapsed before suit brought; that at the date of said certificates of deposits, there was an excess of issue within the meaning of the fourth rule of the charter of said bank sufficient to cover the amount of plaintiff's demand; that in 1843, a judgment was rendered in the Superior Court of said county forfeiting the charter of said bank, but that no execution or other process has ever been sued out to execute said judgment, unless the Legislatures of i840-'i-'2-'3 shall be construed by the Court to be such process, or to waive the necessity of any other execution of said judgment, if any such process were necessary.

It is also admitted that before this, Robert B. Alexander was, by a deed of said bank, appointed the assignee of its assets, and took possession of them; that these assets were sufficient, if they had been collected, to have paid the debtsof the bank, but that they were not collected, and the debts were not paid; that the deed of assignment was executed by a board of directors, who succeeded these defendants in office; that said deed was duly recorded, and that the assets conveyed in said deed of assignment could, by due diligence on the part of Robert B. Alexander, have been realized and collected, but were not collected, and were not applied to the payment of plaintiff\'s demand. It is admitted that said Alexander, Hargroves, Sen., and plaintiff, resided in the city of Columbus, Georgia, and that said Hargroves, Sen., and plaintiff knew of said deed of assignment shortly after its execution, and that they did not prosecute a suit to subject said assets so conveyed to the payment of their said claim, further than to bring the suit mentioned above against the bank and take the steps there stated.

It is further admitted that before and at the time of the commencement of this suit, the assets conveyed by said deed of assignment were barred by the Statute of Limitations, or otherwise lost or wasted by the assignee. Also, that the Act in incorporation, and all the Acts of the Legislature bearing upon the questions presented by the record of said case, and this agreement, be considered as in evidence, if necessary.

Plaintiff's counsel requested the Court to charge the jury that upon the facts as agreed upon, the plaintiff had a right to recover. The Court refused this request, but did charge, that upon the facts, the plaintiff could not recover, and the jury found for defendant.

To which charge and refusal to charge the plaintiff's counsel then and there excepted, and assigned the same as error.

Johnson & Sloan, for plaintiff in error.

Holt, contra.

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

The plaintiff instituted an action of debt against the defendants for the recovery of the amounts due on the two papers, of which the following are copies:

"Planters & Mechanics\' Bank, "Columbus, Jan\'y 27, 1842.

"George Hargroves, Sen., has on deposit in this bank, twenty-two hundred and fifty dollars, which will be paid to his order, on this certificate, with interest to date.

"J. C. WATSON, President.

"M. Robertson, Cashier."

"Planters & Mechanics' Bank, "Columbus, Feb'y 23, 1842.

"$2,150.25.

"George Hargroves, Esq., Sen., has on deposit in this bank, twenty-one hundred and fifty dollars and twenty-five cents, payable to his order hereon, with legal interest from date.

"J. C. WATSON, President.

"M. Robertson, Cashier."

The plaintiff, by this action, sought to charge the defendants with the payments of these debts, as the only surviving Directors of the Planters & Mechanics' Bank of Columbus (who were such directors at the time these certificates were issued), on the ground that the indebtedness of the bank, as evidenced by these certificates, at the time, was in excess of three times the amount of the capital stock of said bank actually paid in, over and above the amount of specie actually deposited in the vaults for safekeeping.

The parties went to trial on the following agreed statement of facts:

"Geo. Hargroves, Ex'r, etc., vs.

"James M. Chambers and "John Banks.

Debt, etc., in Muscogee Superior Court.

"It is admitted, in the above case, that George Hargroves is the executor of George Hargroves, deceased; that at the date of the certificates sued on, George Hargroves, deceased, deposited in said bank the amount of money therein specified, and said bank, by its then president and cashier, gave him the certificates sued on; that on the 2d day of June, 1842, payment of them was demanded and refused by the bank, that the bank was sued on them by said Hargroves, deceased, to July Term, 1842, of the Inferior Court of Muscogee county; that judgment was rendered on them against the bank, at the second Term, 1842, of said Court; execution issued thereon, and duly returned to July Term, 1853, \'No property.\'

"It is also admitted, that at the time of issuing said certificates, Chambers, Banks, A. H. Flewellen, W. B. Ector, J. C. Watson, Daniel McDougald and Thomas Berry were the directors of said bank, and that at the time of the bringing of this suit they were all dead but Chambers and Banks, and that then Flewellen, Ector, McDougald and Watson had representatives and estates in the county of Muscogee, but Berry had no representative in this State, and that more than twelve months from the grant of their letters elapsed before suit was brought.

"It is admitted, for the purposes of this case, that at the date of said certificates of deposit sued on, there was an excess of issue within the meaning of the fourth rule of the charter of said bank sufficient to cover the amount of plaintiff's demand.

"It is further admitted, that in June, 1843, a judgment was rendered in the Superior Court of said county, a copy of which is attached, etc., but that no execution or other process has ever been sued out to execute said judgment, unless the Acts of the Legislature of i840-'41-'42-'43 shall be construed by the Court to be such process, or to waive the necessity of any other execution of said judgment, if any such process was necessary.

"It is admitted that, before this, R. B. Alexander was, by a deed of said bank, appointed assignee of assets, and took possession of them (a copy of which is attached).

"It is admitted, that these assets were sufficient, if collected, to have paid the debts of the bank, but that they were not collected, and the debts were not paid.

"It is further admitted, that said deed of assignment was executed by a board of directors, who succeeded these defendants in office, and that said deed was duly recorded, and that the assets conveyed in said deed of assignment could, by due diligence on the part of R. B. Alexander, have been realized upon and collected, but that they were not collected and were not applied to the payment of plaintiff's demand.

"It is also admitted, that said Alexander, Hargroves, Sen., and plaintiff resided in the city of Columbus, Georgia, and that said Hargroves, Sen., and plaintiff knew of said deed of assignment shortly after its execution, and that they did not prosecute a suit to subject said assets so conveyed to the payment of their said claim, further than to bring the suit mentioned above versus the bank, and take the steps there stated.

"It is further admitted, that before and at the time of the commencement of this suit, the assets conveyed by the said deed of assignment were barred by the Statute of Limitations, or otherwise lost or wasted by the assignee.

"It is further agreed, that the Act of incorporation, and all the Acts of the Legislature bearing upon the question presented by the record of this case, and this agreement, be considered as in evidence, if necessary.

"It is agreed that the case shall be submitted to the jury on the above statement of facts, and that the Court shall charge the jury upon the law arising thereon, without other pleas or pleadings.

"And it is...