Lane v. Harris

• Decision Date: 31 August 1854
• Docket Number: No. 31.,31.
• Citation: 16 Ga. 217
• Parties: Richard A. Lane, plaintiff in error. vs. Henry Harris, defendant in error.
• Court: Georgia Supreme Court

16 Ga. 217

Richard A. Lane, plaintiff in error. vs. Henry Harris, defendant in error.

No. 31.

Supreme Court of the State of Georgia

AUGUST TERM, 1854.

Debt, in Meriwether Superior Court. Tried before Judge Starke, February Term, 1854.

This was an action brought by Richard A. Lane, against Henry Harris.

The declaration set out that Harris was a stockholder in the "Planter's & Mechanic's Bank of Columbus", to the amount of one hundred shares of stock, rated at one hundred dollars per share. The charter of the bank provided, "that the per-sons and property of the stockholders shall be pledged and held bound, in proportion to the number of shares and the value thereof that each individual or company may hold in said bank, for the ultimate redemption of the bills or notes issued by said bank, in the same manner as in common actions of debt."

The plaintiff alleged that he was the holder of bills of the bank, to the amount of $1,925, on which he had obtained a judgment against Robert B. Alexander, as assignee, appointed by the Legislature to take charge of and wind up the affairs of the said bank: on which judgment execution had been issued, and return of nulla bona thereon by the Sheriff. Plaintiff sought, in this action, to make the defendant, Harris, liable for the payment of such a proportionate part of the debt due him by the bank, as the stock owned by defendant constituted, of the entire capital stock of the bank.

Subsequently, plaintiff filed an amendment to his declaration, stating the same facts, but charging that defendant was liable for the entire amount of the bills held by him—that is $1,925, and seeking judgment accordingly.

The defendant filed several pleas, among which was one, that there was real and personal estate, still owed by said bank, on which the fi. fa. of plaintiff might be levied, sufficient to pay it off.

At February Term, 1854, the parties having announced themselves ready for trial, and before submitting the cause to the Jury, defendant's Counsel demurred to the amendment to the declaration above stated; and the Court, after argument, pronounced the following judgment:

"The defendant's Counsel having demurred to the amendment to the declaration in this case, filed since the last term of this Court and served on the 24th day of Nov., 1853, on the ground that the measure of damages and liability, as claimed by said amendment, is not that fixed by the 11th section of the Act incorporating the Planter's and Mechanic's Bank of Columbus, and after hearing the argument of Counsel, It is ordered, that said demurrer be sustained, so far as to preclude the plaintifffrom recovering the whole amount of the bills held by him and described in his declaration—it being the opinion of the Court that he only has the right to recover of the defendant, under the pleadings, such a proportion of his bills as the stock of the defendant bears to the whole capital stock of the bank. To which ruling and decision of the Court, the plaintiff\'s Counsel excepts; it being agreed that the Court should pronounce a judgment, as to the extent of the liability of the stockholders, under the 11th section on this demurrer.

The plaintiff's Counsel then demurred to and moved to strike out all the pleas filed by the defendant, except the first, which is the general issue, and the last, which asserts that defendant never was a stockholder in the "Planter's & Mechanic's Bank of Columbus", and so much of the ninth plea as alleges and sets forth that there has been collected, and in the hands of the assignee, an amount sufficient to pay plaintiff's demand; and after hearing the argument of Counsel and considering the same, the Court sustained said demurrer and motion to the extent made, except as to so much of the ninth plea as alleges and sets forth that the bank is not insolvent, and has real and personal property, to-wit: banking house and lot and other lots, in the City of Columbus, on which plaintiff might have levied his execution, and of sufficient value to pay and satisfy the same. And to that portion of that plea, the demurrer and motion was over-ruled; to which over-ruling and refusal of said motion, as to said portion of said plea, the plaintiff's Counsel excepts.

The plaintiff's Counsel then submitted said cause to the Jury, and offered, in evidence, a number of bank bills purporting to have been issued by said Planter's & Mechanic's Bank of Columbus, of various denominations and dates, and payable to different persons; amounting, in all, to the sum of Nineteen Hundred and Twenty-five Dollars, answering the description of those set forth in the plaintiff's declaration, and of which the following is, in substance, a copy, except as to dates, amounts, letters, numbers and payees, and a portion signed by A. B. Ragan, as Cashier, to-wit:

                -------------
                |No.|673 X. |
                |---|-------|
                |10 |10     |
                -------------
                

A STATE of GEORGIA. The Planter's & Mechanic's Bank of Columbus, will pay Ten Dollars, on demand, to W. Wright or bearer, Jan'y 9th, 1840.

Columbus, Georgia.

X M. Robertson, Cash'r. D. McDougald, Pres't.

The defendant objected to said bills going to the Jury, until the plaintiff proved that they were issued by the bank; that is, that said persons, signing and counter-signing said bills, were officers of said bank, as therein represented, and that their signatures were genuine; and also, on the ground that the requisitions of the charter of said bank had been complied with; and after considering said objections, the Court overruled the latter ground of objection and sustained the former. To which ruling of the Court, requiring of the plaintiff the proof of the execution of said bills, plaintiff excepts.

The plaintiff's Counsel then proved, by Hines Holt and John L. Mustian, that the signature of D. McDougald as President, and Matthew Robertson and A. B. Ragan as Cashiers to said bills, were genuine; and that they were the acting President and Cashiers of said bank. Whereupon, said bills were made evidence to the Jury.

The plaintiff's Counsel then offered to read in evidence to the Jury, an exemplification from the Superior Court of Muscogee County, showing the institution, in that Court, by the plaintiff, a suit founded upon and for the recovery of the same bills mentioned in the declaration in this case, returnable to the May Term, 1849, of said Court, against Robert B. Alexander, as assignee of the said Planter's & Mechanic's Bank of Columbus—a judgment against said assignee, for the sum of Nineteen Hundred and Twenty-five Dollars for his principal debt—the sum of Seven Hundred and Seventy Dollars for his interest and for cost of suit, to be levied of the goods and chattels, rights and credits, lands and tenements of said Planter's & Mechanic\'s Bank—the issuing of an execution on said judgment, and the return of the same by the Sheirff, with entry of "no property to be found to levy the same".

The defendant's Counsel objected to the same being read to the Jury, on the ground and for the reason, that there was no allegation in plaintiff's declaration, that the forfeiture of the charter or dissolution of the corporation, and the appointment of Robert B. Alexander assignee of said bank; but on the contrary, the declaration alleges that said bank is yet in existence—which objection was sustained by the Court and the evidence rejected. To which ruling and decision of the Court, plaintiff's Counsel excepts. The plaintiff's Counsel then read to the Jury a certificate, signed by A. B. Ragan as Cashier of said bank, and attested by D. McDougald as President thereof, stating that the defendant was entitled to and held one hundred shares of the capital stock of said bank; and on the introduction of the testimony, plaintiff closed his case. Whereupon, defendant's Counsel moved the Court to non-suit the plaintiff; and after considering the same, the Court sustained the motion and gave the following judgment, to wit:

"The plaintiff having closed his evidence, and having failed to show any judgment or proceedings against the bank, for the recovery of his said demand, prior to the suit, to infer the ultimate liability of the defendant as a stockholder, and the defendant having moved a non-suit, the Court ordered the same, offering to the plaintiff the right to confess judgment, and appeal or have a verdict against himself''.

To which ruling and decision the plaintiff's Counsel excepts.

Dougherty; E. A. Nisbet, for plaintiff in error.

H. Warner; Toombs, for defendant.

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

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

The ground of error first assigned in this case, was theruling of the Court, in withholding from the Jury the exemplifications offered by the plaintiff, showing the suit against Robert B. Alexander, assignee, a judgment and execution thereon, &c.

The reason given for this decision of the Court below was, that in the petition there was no allegation that the charter of the Planter's and Mechanic's Bank had been forfeited, and that an assignee had been appointed. And it was insisted for the defendant in error, that though a recital or recognition of both these facts was to be found in the public laws of the State yet that no party could have the benefit of a public law, without proper pleading.

This latter remark may be very correct: but what is necessary to proper pleading is the question—just the question, here.

It seems to be well settled, that setting forth a public statute, and the facts which it recites, is not necessary to proper pleading. "Public statutes, and the facts which they recite or state, must be noticed by the Courts, without their being stated in pleading."(Bac. Abr. Stat. L. 2 Wils. 376. Willes, 210. See the reasons of Lord Ellenborough, 4 M. & S. 542. 1 Black Com. 86. 1 Ch. P. 246.)

This rule is not in conflict with what was decided by this Court, in Dougherty vs. Bethune, (7 Ga. R. 90.) There the decision was,...