The Southern Bank of Georgia vs. Williams.

avoid the performance of a public duty, is reprehensible in the highest degree; and all similar behavior in future, might well provoke the punitory power of the Court.

Upon the whole, the general impression left upon the mind of the Court, by the proof in this record, is this: Mr. Golden was not without fault upon this tragic occasion. He was willing to engage in combat with any of the party except Jordan. But Jordan was thrust forward, and pressed into the service by his associates, to whip Golden. Jordan acted upon the conviction that Golden was a coward, and that he could be bullied as such. To this impression his death is to be attributed. Thousands have fallen in the same way. . Bonaparte lost the empire of the world by underrating his enemy. That Golden might have avoided the catastrophe is probable. That he was crowded by his foes is too obvious, from the proof. How far he is excusable for the death of Jordan, if at all, we refer back, to the decision of another impartial jury.

Judgment reversed.

THE SOUTHERN BANK OF GEORGIA, plaintiff in error, vs. WILLIAM WILLIAMS, defendant in error.

The fraudulent organization of a Bank cannot be set up as a defence against the payment of an acceptance.

Complaint, from Decatur. Tried before Judge ALLEN, April Term, 1858.

The plaintiff sued defendant as acceptor on three bills of exchange, payable at the Southern Bank of Georgia.

The Southern Bank of Georgia vs. Williams.

Defendant pleaded, 1st, that the plaintiff had no legal organization, because the commissioners did not do their duty, as prescribed by the Act of incorporation, in opening books of subscription-not opening any books at all.

2d. That they did not give notice and convene the stockholders, as required by the Act of incorporation, for the purpose of electing directors.

3d. That prior to the pretended organization, there was not five subscribers of shares in said banking company.

4th. That fifty thousand dollars in specie was never paid in or to said banking company, or to commissioners, or to any person, as is required in the 3d section of the charter of said bank; and if the Ordinary so certified, as is required by said 3d section, the certificate is false, and was fraudulently obtained from said Ordinary.

5th. That the consideration of the bills of exchange sued has partially failed, because the bills of said bank received for them were not good, solvent or current, at the time of their purchase, and therefore, that plaintiff ought not to re

cover.

Plaintiff demurred to each and every one of said pleas of said defendant; which demurrer the Court overruled, as to each and every plea. Whereupon, plaintiff excepts.

LAW & SIMS; and LYON; and IRWIN & BUTLER, for plaintiff in error.

JNO. W. EVANS; NESBITS; and CAMPBELL & EASTERLING, for defendant in error.

By the Court-MCDONALD, J. delivering the opinion.

The defence set up in this case cannot be allowed. As strong as the language is, which is used in some of the cases decided by this Court, they do not apply to the case of a bank whose charter is like that of the plaintiff. There is no condition precedent in this charter; nothing to be performed as a condition on which the bank was to commence business.

The Southern Bank of Georgia vs. Williams.

It may commence business as soon as fifty thousand dollars in specie shall have been paid, but there is nothing prohibitory in the clause. This Court, in cases which it has decided, has used very strong language, and language which, taken disconnected from other parts of the opinions delivered, might seem to warrant the defence set up in these pleas, if there had been a condition precedent in the charter; but upon a careful examination, it will be found that the Court referred to proceedings on the part of the State, for the forfeiture of the charter. Some of the matters set forth in the pleas under consideration, are sufficient, if true, to authorize the State, if it be its will, to proceed against the bank for the forfeiture of its charter, and also to give creditors a remedy against all parties aiding and participating in the wrongful organization.

But if there were conditions precedent of the most imperative character in the charter, and a grossly fraudulent organization had been gotten up by collusion between the commissioners and the subscribers for stock, and the bank had been put into operation apparently fairly, and held out to the community as a regularly and honestly organized bank, discounting notes and paying out bills, it would be a strong act of injustice to hold, that the fraud in the organization could be pleaded collaterally, as a defence by the bank, against the payment of its notes, or by a debtor to the bank, to defeat the collection of the debt due by him.

The bank should not be allowed to take advantage of its own wrong, and the debtor of the bank, who has received an equivalent for his note, ought not to be allowed to avail him self of a defence of the sort, to diminish the means of paying the debts of the bank. Such a defence is an attack on the existence of the bank, which cannot be allowed in such a mode.

I am of opinion that the pleas of the defendant, which were demurred to, show no sufficient matter of defence against the

Dorsett, adm'r, vs. Frith.

recovery of the acceptances, however efficient the facts pleaded might be in a proceeding against the bank to forfeit its charter.

Judgment reversed..

JAMES DORSETT, administrator, &c., plaintiff in error, vs THOMAS D. FRITH, defendant in error.

In an action of trover, to recover for the conversion of slaves, which have been sold by defendart and cannot be delivered, the purchase money with interest thereon, is a proper criterion of damages, provided the sale has been fair.

F. intermarried with S., a widow, with several minor children. By the consent and counsel of the brothers of his wife, F. received at the same time a negro girl, which he sold, together with her infant child; with the understanding that the debts of the former husband were to be paid out of the proceeds and the children raised and supported. D. one of the brothers-in-law administered many years afterwards, on the estate of the former husband, and brought trover against F. for the negroes.

Held, That upon a bill filed, the administrator was bound to account for the debts and expenses of the estate and family; allow F. to retain his distrib. ative share, and also to deduct the amount of certain demands paid out for one of the children, deceased.

[1] The acts of an executor, de son tort, will be upheld, if they are such as the regular executor would be bound to do.-BENNING, J.

[2] When the conversion is not a continuing one, but begins and ends in a single act, as a sale, the value to be taken as the measure of the damages is the value at the time of this act.-BENNING, J.

Equity, from Randolph. Tried before Judge KIDDOO, May Term, 1858.

William D. Siller, died leaving his wife Maria and three children, Lorenzo, Eldridge and William. He was possessed at the time of his death of one negro slave by the name of Feraby, about twelve years old. Thomas D. Frith intermar

Dorsett, adm'r, vs. Frith.

ried with the widow of the deceased, and took possession of said negro, and raised the said children of deceased; the marriage was in James Dorsett, the brother of the widow of deceased, administered on the estate of said William D. Siller long after the marriage, and brought an action of trover against Frith for the negro girl.

Frith filed a bill, praying for an injunction to restrain the suit, &c., alleging that Siller died, leaving the widow and three children, that he intermarried with the widow and supported and educated the children of deceased, and paid the debts of the said widow, amounting to about seventy dollars, that he took possession of the negro girl at his marriage, and believed her to be, and claimed her as his own, but found and took possession of no other property at the time or since, of the deceased; that James and John Dorsett are brothers of his wife Maria, and that after the death of Siller, they advised her, that they had in their hands assets enough to pay the debts of the estate of her husband, belonging to said estate, and would pay them, and advised her to take the negro girl Feraby and try and raise the children, that the estate was not worth the expense of administration, and that after his marriage, the said negro girl remained in his possession about five years, and was sold by the consent of his said wife; and with the knowledge of the said Dorsett; that he treated the children of said deceased as he did his own; that William Siller was sick and a constant trouble and expense, and that in 1853, he boarded him and paid tuition for him at an expense of $48 40; that for the ten years he took care of William, $660 would have been a poor compensation for the food, nursing, clothing and doctor's bill, he furnished for him, that William's services were worth nothing to him, that he paid out a good deal of money for Lorenzo's debts, after he died; that his services were worth his boarding and schooling to him; that there are no debts due and owing to and from the estate of W. D. Siller deceased, requiring administration, &c. The material facts in the bill, were put in issue by the