Lane v. Morris

• Decision Date: 30 June 1850
• Docket Number: No. 78.,78.
• Parties: Richard A. Lane, plaintiff in error, vs. Thomas Morris, defendant in error.
• Court: Georgia Supreme Court

8 Ga. 468

Richard A. Lane, plaintiff in error, vs. Thomas Morris, defendant in error.

No. 78.

Supreme Court of the State of Georgia

JUNE TERM, 1850.

Debt, in Muscogee Superior Court. Tried before Judge Alexander, May Term, 1850.

This was an action by Richard A. Lane, as a holder of bank bills of the Planters & Mechanics' Bank of Columbus, against Thomas Morris, a stockholder in said Bank, to recover on his fro rata liability for the payment of the bills, under the following section of the charter.

"Sec. xi. The persons and property of the stockholders, shall be pledged and held bound in proportion to the amount 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, and no stockholder shall be relieved from such liability by sale of his stock, until he shall have caused to have been given sixty days' notice in some public gazette of this State."

The declaration alleged a judgment against the assignee of the bank, and a return of"nulla bona." On the trial, defendant's counsel demurred to the declaration. The Court overruled the demurrer; whereupon, defendant moved to withdraw his demurrer. The Court granted the motion, and this is the first ground of error assigned.

Plaintiff's counsel then moved to strike out the 5th, 7th, 9th, 10th and 11th pleas of defendant, which were in substance, as follows: The 5th plea set forth, that if defendant ever was a stockholder, all his rights and liabilities, except so far as saved and reserved by statutory provision, had long since ceased andbeen determined by the forfeiture of the charter of said bank, viz: on 13th June, 1843, as appears by the judgment of the Court declaring the forfeiture. The 7th plea set forth, that the bank " was not insolvent at the time the plaintiff commenced his action, and is not now insolvent, but that the same has property and assets, which have not been exhausted by the plaintiff, and that defendant, as stockholder, is not liable until such insolvency does actually exist."

The 9th plea was, that defendant was not one of the original stockholders and subscribers to the bank, but was the assignee of Hampton S. Smith, one of the original subscribers, who, upon the transfer, gave no notice of the sale.

The 10th plea was, that defendant was not a stockholder at the time the bills were issued, on which suit was brought, and that no notice of the transfer to the defendant had ever been given in any public gazette.

The 11th plea was substantially the same as the 9th and 10th.

The Court overruled the motion and sustained the pleas, and this decision is another ground of error assigned.

Defendant's counsel proposed to prove, by parol, the names of the original subscribers. The Court decided the book of minutes to be higher evidence. Defendant's counsel then proved by Win. Dougherty, Esq. plaintiff's attorney, that he had the book in his office until the summer of 1849, when Dr. Flewellen called for it, with an order from the assignee of the bank, and obtained it; that he had traced it into the hands of Mr. Kemp, counsel for Dr. Flewellen, who said he had left it in the office of Col. Holt. Col. Holt proved that be had not seen it in his office, and knew it was not there. The assignee of the bank stated he had never seen it since delivered to Dr. Flewellen. Defendant stated it was not in his power, custody, or control, but that he had made no search or inquiry for it. The Court held the book sufficiently accounted for, and admitted the parol evidence, and this decision is assigned as a ground of error.

Counsel for the defendant then offered a public gazette published in the City of Columbus, showing the following notice:

" Notice. —I have transferred all of the stock 1 held in the Planters & Mechanics' Bank of Columbus, September 1st, 1841.

(Signed,) Thomas Morris."

Objected to by plaintiff\'s counsel, as insufficient, in not stating to whom transferred.

The Court overruled the objection, and this decision is assigned as a ground of error.

The Court charged the Jury, that the plaintiff had mistaken his remedy, in bringing suit in his own name, but under the Acts of 1S42 and 1843, the action ought and could only have been brought by the assignee of the bank.

This charge is assigned as a ground of error.

Plaintiffs counsel requested the Court to charge the Jury, that a suspension of payment, and a refusal by the bank to pay specie for their bills, when demanded, was a failure in contemplation of the following section of the charter:

" Sec. xvi. In case of a failure of said bank, all the stockholders who may have sold their stock at any time within six months prior to said failure, shall be liable in the same manner as if they had not sold their stock."

Which charge the Court refused to give, but charged the Jury, that either a general suspension of specie payments, or a failure to pay specie to any and every other person than the plaintiff, was not such a failure as contemplated by said section, and the plaintiff, to avail himself of that clause, must prove a demand for specie and a refusal to pay his claim.

Which charge and refusal to charge, are also assigned as grounds of error.

W. Dougherty, for plaintiff in error, cited and commented on the following authorities: Ballard vs. Bell, 1 Mason, 243. Angell $ Ames, 556, 8. 8 Cowen, 387. Castleman vs. Holmes, 4 J. J. Marsh. 1. Bank of Poughkeepsie vs. 1bbotson, 24 Wend. 473. Spier vs. Grant, 16 Mass. 9. Hall vs. Carey, 5 Kelly, 239. 8 Wheat. 75. Lumpkin et al. vs. Jones, 1 Kelly, 27. The Commercial Bank of Notches vs. The State of Mississippi, 6 Smede & Marshall, 599.

H. Holt and Jas. Johnson, for defendant, cited and commented on the following authorities:

Van vs. Grant, 16 Mass. 476. Ib. 9. Berry et al. vs. Mat- thews et al. 1 Kelly, 519. Angell &Ames, 750. 2 Kent, 305 to 315. 3 Burr. 1866. 3 T. R. 199. 3 Sw. & M. 791. 8 Peters 281. 10 Paige\'s C. R.541. 7 Ga. Rep. SO. 10 Metcalf, 6. 5 Ga. Rep. 239, 486. 2 McMullen, 439. 6 Ala. N. S.) 289. 1 Kelly 27. She vs. Bloom, 19 John. 477. 8 Cow. 391. Pendergrast vs. Foley, 8 Ga. Rep 1. Keaton vs. Greenwood, Ibid, 97.

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

This was an action of debt brought by Richard A. Lane, as the holder and owner of the bills of the Planters & Mechanics' Bank of Columbus, to the amount of $925, against Thomas Morris, as a stockholder in said bank, of one hundred and sixty-nine shares of the capital stock thereof, and seeking to make the defendant liable to the plaintiff (the bank being insolvent,) for such a proportion of his said debt, as the number of shares, so held by the said defendant, bears to the whole capital stock of said bank, which is a million of dollars.

The first assignment is, that the Court erred in allowing the defendant's counsel to withdraw the demurrer to the plaintiff's declaration, after the judgment of the Court was made thereon.

No authority was produced on the argument, settling what the practice is in this respect. I find, upon examination, that it has not been uniform. There are precedents both ways. Mr. Sellon, in his Treatise on Practice, page 340, citing Say. 312, lays it down, that after argument, and even after the opinion of the Court has been pronounced on the demurrer, it is in its discretion to give leave to withdraw it. In Ayrs vs. Wilson, (Douglas, 385,) leave was granted to withdraw the demurrer and reply, on payment of costs. There are other cases, however, in the English books, in which it was refused. 1 East, 391. 1 Burr. 321. 2 B. & P. 4S2. 3 B. &P. 11, 12. In the United States Courts, it has been decided that an amendment to a plea may be allowed, after the plea has, on demurrer, been adjudged to be bad. 6 Cranch, 206. But whether, upon like principles, the demurrant would have leave to withdraw the demurrer, where a judgment against him has been pronounced, was not decided.

It is immaterial to the present case, whether the practice be established one way or the other. Upon principle, it would seem, that it ought not to be allowed under our system. The demurrerdenies, that by the law arising upon the facts charged in the declaration, any injury is done to the plaintiff, for which he is entitled to recover. The judgment is as peremptory, and should be as conclusive, as if it had been rendered on a verdict found on an issue in fact. To permit the defendant, then, to withdraw the demurrer, after a judgment has been pronounced against him, and interpose the same objection on a motion to arrest the judgment, is giving him an undue advantage, especially as an opportunity may be afforded the Court to correct its error, if any has been committed, on an application for a new trial. Establish this practice, and the Court may, and probably will be called upon to decide the same issue in law three times in the same case.

The second assignment is, that the Court erred in permitting the defendant's counsel to give parol evidence of the contents of the minutes of the bank-book, without having sufficiently accounted for the loss or destruction of the original book of entries containing those minutes.

The object of the testimony sought to be introduced, was to prove who were the stockholders in the company. I am not prepared to say that it was not competent to make this proof, independent of the book. I am quite clear, however, that the absence of the book was sufficiently accounted for. It is true, that the search for it was not made by the defendant; still the inquiry which was instituted, created a strong probability that the book was lost or destroyed. In addition to this, Morris swore that the book was not in his power, custody or control.

The third assignment is, that the Court erred in overruling the demurrer of the plaintiff to the 5th, 7th, 9th, 10th and 11th pleas, as set out in the record, and in allowing the defence set up therein. It becomes...