Robinson et al. vs. The Bank of Darien, &c.

passed in December, 1847. Payment was made, of principal, $9.002; interest before judgment, $83,14; interest from the 24th August, 1840, to March, 1848, $5.398,45. The judgments of J. G. Winter were founded on bank bills. of the Bank of Darien.

100

In March, 1842, the State held of Darien Bank bills, $54.180, which bills were never redeemed, but were burnt by order of the Legislature. And the State was further a creditor of the Bank of Darien, in the sum of $25.897,95 which amount has never been paid.

The various judgments against the Bank of Darien mentioned in Mr. Campbell's said report, were all dormant at the institution of these claims, except the judgments of the PlanBank of the Bank of the State of Georgia-of the Mechanic's Bank, Augusta, and of the Bank of Milledgeville.

The assets so delivered, as aforesaid, by the Bank of Darien to the State, consisted (except real estate and rents thereof) entirely of promissory notes, bills of exchange and other choses in action, and judgments-being debts due the Bank of Darien—some running and some past due; and the amount hereinbefore set forth as collected, embraced items of interest as well as principal.

The Bank of Darien suspended specie payment before the passing of the Act of December, 1841, repealing the charter.

The judgment creditors, at the request of the Executive of the State and the Central Bank director, waived, without prejudice to their claims, their lien on the real estate, to enable the director of the Central Bank to sell it to better advantage, as they believed. The director of the Central Bank accordingly sold the real estate, and it brought the sum of $6.011,

75

On the 16th day of February, 1842, the Bank of Darien transferred to the Central Bank of Georgia 3567 shares of the capital stock of the Bank of Darien. This is the stock which the Bank of Darien redeemed, as hereinbefore set forth. The capital stock was never reduced, by the Bank of Darien, on its books. Between April, 1819, and 17th No

Robinson et al. vs. The Bank of Darien, &c.

vember, 1828, there had been purchased by the bank 2565 shares, as shown by the first return of the bank to the Governor, and the remaining amount of stock was purchased up between then and the date of the Act of repeal. The State of Georgia has realized nothing on said redeemed stock.

All the remaining assets of the Bank of Darien are insolvent. Mr. Nisbet, the late Cashier of the Central Bank, swears that Mr. Campbell, the late director, endeavored to collect them, but could not succeed.

The Bank of Milledgeville, at the Term of September, 1844, of Baldwin Superior Court, recovered a judgment in due form of law, against the Bank of Darien, for the sum of $2210, with interest from the 1st day of April, 1842, and thirteen dollars and twelve cents costs. This recovery was on bank bills of the Bank of Darien duly demanded, and a clear schedule of the same is apparent on the record. Upon the rendition of the verdict, Mr. Day, one of the plaintiff's Attorneys, (by order of Court, as Mr. Day swears, to the best of his recollection,) marked on the face of the bank bills,

in judgment," sealed them up in an envelope and deposited them in the Clerk's office with the Clerk. Mr. Day swears, that the bank bills have never been, to his knowledge, withdrawn from the Clerk's office; that he has seen the package of bank bills in the Clerk's office since judgment was rendered; that William Steele, the then Clerk, asked Mr. Day what should be done with the package, and that Mr. Day told him they were a part of the record in the case. Mr. William Steele, late Clerk of Baldwin Superior Court, left the papers and package of bank notes in the office when he ceased to be Clerk. The package of bank notes, on search, cannot be found in the Clerk's office.

And the Bank of Milledgeville, at the September Term of Baldwin Superior Court, 1843, recovered a judgment against the Bank of Darien, for $852,45%, with interest from 25th September, 1839, and thirteen dollars and twelve cents costs. This recovery was for the collection of a note made by the Bank of Darien on account of the Bank of Milledgeville...

Robinson et al. vs. The Bank of Darien, &c.

Service of process in each of the suits brought by the Bank of Milledgeville, was perfected on the head of the Central Bank, under the law of 10th December, 1841. Executions duly issued on the respective judgments. No part of these judgments has been paid.

The decisions of Judge HARDEMAN will be understood from the decision of the Supreme Court.

I. L. HARRIS, A. H. COOPER, JAS. GARDNER, Jr. JOHN E. WARD and F. H. CONE, were heard in behalf of the creditors.

R. H. CLARK, for the State.

The following opinions were delivered by the Court:

LUMPKIN, J.

Sundry individuals and corporations, creditors of the Bank of Darien, insisting that the State of Georgia was liable to them for the whole amount of their demands, or some considerable portion thereof, the Legislature of 1853-'4 passed an Act providing for the liquidation and settlement of these claims. Commissioners were appointed, in the first instance, to hear and determine upon their validity, the Governor, as the representative of the State, and the creditors, having the right, respectively, to appeal from the award of the commissioners to the Superior Court, and from the decision of that Court to the final judgment of this Court. And the State, disrobing herself of her sovereignty, gracefully and magnanimously pledged her faith to pay to the claimants whatever sums they should be found legally and justly entitled to.

The following is a correct statement, in substance, of the facts agreed on between the Counsel representing the State and the creditors, respectively, and collected from the public archives.

The Bank of Darien was incorporated on the 15th of December, 1818, with a capital stock of $1.000.000, divided in- ́

Robinson et al. vs. The Bank of Darien, &c.

to shares of one hundred dollars each, and of which 5.000 shares were reserved, to be taken by the State. And on the day following, a joint resolution was passed by the General Assembly, authorizing the Governor to subscribe for the 5.000 reserved for the State. (Journal of the Legislature of 1818, p. 92.)

In 1819, an Act was passed providing for the payment of instalments then due and thereafter to become due, on stock in the Bank of Darien, and vesting certain funds in the stock of said bank. It required the Governor to vest $100.000 in said stock, a fund which had been set apart for the establishment and support of free schools, and $100.000, which had been appropriated for the improvement of the internal navigation of the State. Besides this, the further sum of $175.000 was appropriated to be drawn for from time to time, as future instalments should be required. (Lamar's Digest, 102.)

In 1828, the Central Bank was incorporated, and the shares owned by the State in the Bank of Darien, together with other stocks and funds, were vested in the President and Directors of said bank, and their successors in office. The whole constituting the capital of said bank, and subject to the payment of all bills and notes issued by said bank. (Prince, 72.)

[1.] In 1834, an Act was passed to extend the charter of the Bank of Darien, and the Acts then of force amendatory thereto. This extension, as the preamble recites, was granted upon the petition of the President and Directors of the bank. By the first section of this Act the charter and all the Acts of the General Assembly amendatory thereto, are prolonged to the 1st day of January, A. D. 1855, "Provided, that nothing in the charter shall be so construed as to prevent the State from selling out her stock, and thereby withdrawing her interest at pleasure; in which case, the stockholders should have the privilege of choosing five more directors. Nor shall any thing be so construed as to authorize the Pres

Robinson et al. vs. The Bank of Darien, &c.

ident and Directors to call in an additional instalment upon the stock owned by the State." (Prince, 71.)

It is important, as will be seen in the course of this investigation, to note carefully the foregoing provisions of this, especially the last clause quoted.

By the 16th section of the Act incorporating the Bank of Darien, it is declared, that "nothing contained in said Act shall be so construed as to take the power of controlling said institution out of the Legislature; but the Legislature shall, at all times, have the power of arresting or suspending said charter whenever it shall be made appear that the said corporation has not complied with all or any of its provisions." (Prince, 70.)

Accordingly, in 1841, an Act was passed repealing the original Act of incorporation, as well as the Act of 1834, extending the charter; and to provide for the settlement of the affairs of the Bank. (Cobb, 138.)

By this Act, the Central Bank was authorized and required to wind up the affairs of the Darien Bank; collect the assets and pay the debts thereof; and the balance, if any, to pay to those who might be entitled thereto. The number of directors were reduced to five, four of whom were to be elected by the Legislature and one by the stockholders. The board of directors, on the part of the State, were instructed to aid and facilitate the intents of said Act, by turning over, immediately, to the Central Bank, the whole of the assets of the Darien Bank. On all payments to be made on notes originally due the Darien Bank or its branches, and which should be turned over or renewed in the Central Bank, (and the privilege of renewal was allowed by the Act,) the maker or indorser of said notes was authorized to pay up the whole or any part of their notes in bills on the Bank of Darien, issued from the bank or branch bank, in which the said note or notes were originally discounted; and the Central Bank was held bound to take such bills when so tendered. The Bank of Darien was required to execute a deed of conveyance of all its real estate to the Central Bank, and the directors of the Central Bank to