McDonald J.,
dissenting.
The plaintiff in error sued and obtained judgment, against the Manufacturers and Mechanics Bank of Columbus, in the Superior Court of Muscogee county. During the pendency qf the action a summons of garnishment was sued out by the plaintiff in error, in the usual form, requiring the defendant in error to appear and answer what he was indebted to the defendant in the pending action, &c. He appeared and deposed that he owed the defendant nothing &c. The plaintiff in error traversed the garnishee’s affidavit and-on that issue the parties went to trial. It appeared in evidence that the commissioners appointed in the act of incorporation to receive sebscriptions of stock, gave public notice that at a specified time and place they would open bonds for subscription of the capital stock of said Bank.
The garnishee in.this case subscribed fifteen hundred shares. The stock was all taken, and the commissioners certify that ten per cent, of the capital stock was paid to them, being twenty-five thousands dollars. Reciting these facts in their advertisement, they published a notice to the stock holders to meet on the 8th day of May ensuing, (1852) at the counting room of Grimes, Kyle & Thornton to elect five directors. The stockholders met agreeably to said notice. They elected their directors who proceeded, on. the same day, to organize, by the election of a President and Cashier. The commissioners for receiving the subscription and the 10 per cent, of the capital stock subscribed, paid to the directors the twenty-five thousand dollars. The defendant in error on the same day, transferred to Dozier Thornton four hundred and fifty shares of the stock subscribed by him, the directors having previously passed an order that certificates of stock be issued to the stockholders for the amount of stock which they had respectively subscribed. On the same day, the 8th of May 1852, the board of directors passed an order, that the notes of the stockholders for the amount of their several subscriptions, actually paid in, be. discounted, the notes to be payable thirty days after demand, by the President of the bank. On the sixth of December 1852 an election was held for directors and the same persons were elected, and the defendant in error was re-elected President of the bank. Robert Kyle testified that on the 12th day of July 1853 the defendant in error transferred the remaining part of his stock to H. S. Smith, and on the samé day resigned his offices of director and President, and in his stead H. S. Smith was elected diector and Sterling F. Grimes was elected President. He was the first Cashier of the bank and held the office until the latter part of the year 1852. He was cashier when the notes of the directors were discounted. The note of the defendant in error was discounted for the sum of nine thousand five hundred dollars. After defendant in error transferred his stock to Smith, Kyle, acting on his own responsibility as cashier, gave up to the defendant in error his note for $9,500. This transaction was known to every officer of the bank, and assented to by them, but was never acted on at any regular meeting of the board.
At the time of the transfer of the stock by Semmes, the defendant in error, to Smith, Smith purchased said stock of Semmes and assumed the debt of Semmes to the bank to the amount of $9,500. He further testified that the bank accept ed Smith’s promise to pay, in lieu of Semmes’ note, \\ hereupon he as cashier delivered up to Semmes, his note, who ceased to have any connection with the bank and owed it nothing. This witness having testified that he, as cashier took Mr. Smith’s “recognizance” for the $9,500, was asked on the cross examination what he meant by taking Mr. Smith’s recognizance and answered that he took Mr. Smith’s verbal promise to pay that amount and on that he gave up to Mr. Semmes his note of @9,500. He further testified that Smith never paid said sum, nor any part of it, as far as he knew, but that he had paid it for him.
Elbridge S. Greenwood testified, that he was a director of the bank from about the 5th of December 1853 to the 3d of July 1854. When he went into the board there was a change of officers, the original owners of the bank having sold out and transferred their stock. The bank had done no business of any kind nor contracted debts, so far as be knew, and it did no business and contracted no debts while he was connected with it. The bank afterwards issued bills, did business and failed. When the bank was turned over to the board of which he was a member, nothing was transferred that he knew of, but the stock and unsigned bills and plates. While he was a director he never saw in the bank, any specie, the bills of other banks, nor any money of any sort, nor did he see the note or notes of the defendant, the garnishee, nor any other notes. The bank ha 1 a book of minutes and transfer book and blank books ready for nse. 1 he witness was not present at the sale testified to by him, and could not say what was turned over. There was a cashier, while he was a director, whose duty it was to take care of the money and notes of the bank; and it was possible he mig hthave had money and notes, and he might not have seen them.
Samuel A. Billing testified that he was elected director and President of the hank in the latter part of the year 1853 and resigned about July 1854. About that time, or a short time before, the capital stock, except a small number of shares, had been transferred by the former owners to gentlemen in New York, and that while he was President and director he never saw nor knew of their being in the bank any specie, bills of other banks, notes or any other property or assets, except a plate, bills not filled up and blank books. When the bank was transferred, if anything was turned over except the bills, plates, books and the charter and capital stock, he never knew it. He never saw or knew of anything else being in the bank. This witness further testified that while he was connected with the bank, it did no business, contracted no debts and kept no books. Bills were signed preparatory to being issued. They were never isstied but destroyed.
Sterling F. Grimes was acting as cashier; that it was the duty of the cashier to keep the cash and notes of the bank and it was possible he might have had the money and notes and the witness not know it.
The presiding Judge charged the jury, among other things, that, if they believed from the evidence, after this, (after Semmes had given his note for_$9,500) Semmes transferred: the balance of his stock to Hampton S. Smith, and thereupon Smith promised the bank to pay this indebtedness of Semmes, and the bank then delivered the note of Semmes, and took Smith’s verbal promise to pay it, in lieu of the note, then the debt is satisfied, the note is cancelled and they would find the issue for the garnishee. The counsel for the plaintiff submitted to the Court, in writing, six distinct requests to charge the Jury, all of which the Court refused to give to the jury, except the first, and the counsel for the plaintiff,excepted to the charge of the Court to the Jury as given and to the refusal of the Court to charge as requested.
A majority of this Court, affirm the judgment of the Court below on all the exceptions. From this judgment of affirmance I dissent.
If the bank have.the right to recover of the defendant the sum of $9,500 or any other sum, under the evidence submitted in this cause, then the plaintiff in garnishment was enti tied to recover, and if the principles, upon which the charge was founded, would have been wrong if the suit had been by the bank against the garnishee, they cannot be sustained against the garnishing creditor. The same may be said in reference to the requests made of the Court in writing to charge the jury. If they ought to have been given in a suit by the bank, they should have been given in this cause. The requests of counsel to the Court to charge the jury will be seen in the Reporter’s statement of the case.
Whether the charge as given was right depends on the state of facts upon which it was predicated. The charge of the Court recited above has reference to the transaction between Smith and the defendant in error and the bank in regard to the sale and transfer of the stock, the substitution of Smith’s verbal promise to pay for the note of defendant and the delivery up of the note to him. The Court charged the jury, that “ if Smith promised the bank to pay the indebtedness of Semmes and the bank then delivered the note of Semmes and took Smith’s verbal promise to pay it, in lieu o the note, then the debt is satisfied, the note is cancelled and you will find the issue for the garnishee.” There was no evidence in my opinion sufficient in law to warrant this charge. The witness on whose testimony this charge was based was Robert Kyle; and he certainly testified in so many words that the bank accepted Smith’s promise to pay in lieu of Semmes’ note, whereupon he as cashier delived up to Semmes his note; yet he had shown how this thing was done in the prior part of his evidence} for he had already stated that the defendant in error had transferred his nine hundred and fifty shares to H. S. Smith in his presence as cashier; and that he, acting on his own responsibility as cashier took from Mr. Smith his recognizance for the $9,500 and gave up to Mr. Semmes his note. He says this transaction was known to every officer of the bank and assented to by them, but was never acted on at any regular meeting of the board. It could not have been a corporate act, for the mem bers of a corporation aggregate cannot express their assent individually and severally to a proposition so as to bind the body. There was nothing in the minutes in respect to this matter assented to in even the irregular and ineffectual man-. ner spoken of by this witness. There is another matter to be considered in this connection. This witness’ understanding of. language is singularly defective. He says he took Mr. Smith’s recognizance for the $9,500, and when asked, what he meant by taking Mr. Smith’s recognizance, he replied that he took Mr. Smith’s verbal promise to pay. If he had been asked what he meant or whom he meant by officers of the bank he might have replied,- he meant the directors, or he might have said the President and cashier, himself and the defendant; for they were the only persons known as officers under the charter and who had been sworn under the requisition of the charter. If he meantj when he used that term, “ officers,” the President and cashier and them alone, then they had no authority to do a corporate act and could not.bind the bank, and they were not the bank.
But the cashier testified that he did the act on his own responsibility as cashier If this act fell within his ordinary ex officio powers as cashier, then the bank was bound by it, as if it were its own act. The cashier is theexecutive officer of the bank. He is entrusted with power to collect and pay its debts, and it is throughand by him that its securities are discharged and transferred. He must be presumed to have authority to do all these things after a bank is organized and in operation, provided the person with whom he deals does not know his want of authority to do them, if his power be restricted. This is essential to the security of the the public against frauds by one held out to them as an authorrized agent. This power, however, does not extend to giving out the capital stock the money or effects of the bank held as capital stock, prior to the banks - going into operation; for although elected cashier) he is not held out to the community as having authority of any sort, before the bank commences business. If a note dis counted by the bank be paid, he may deliverit up, blithe has no power to deliver it-without payment. This bank had never been in operation, and, in fact, if the parties acted in good faith in withdrawing the capital subscribed and paid over by the commissioners under pledges to return it thirty dáys after the call of the President, no individual stockholder had the right to withdraw his written undertaking, and substitute therefor the mere verbal promise to pay of another person, ¡however responsible he may have been. Such a transaction does not amount to a payment, and the bank is not bound thereby — and it ought to have been so given in charge to the jury.
The second request to charge the jury, made of the Court in writing by the counsel for the plaintiff, ought to have been given. I had no doubt upon this request at first, for it occurred to me that the stockholders might- have merely desired to postpone for a short time the business of banking on their subscribed and paid capital, and might have withdrawn it, to be returned thirty days after the call of the President, for the purpose of saving the interest on their money. If the call bad ever been made and the money returned, there could have been no harm init. No one could .have been injured by it. But the call was never made and the money never returned, or at least it does not so appear. The bank went into operation, and the plaintiff became its creditor and obtained a judgment. If the whole arrangement was made to evade the salutary requisition of the charier by which a substantial capital was to be secured as a basis of the circulation of the bank, it was void, and each stockholder remained indebted to the bank the amount which he withdrew from it.
For reasons stated in my remarks on the charge of the Court as given to the jury, I think the request of counsel as thirdly asked of the Court ought to have been delivered to the jury.
If the original stockholders, withdrew the amount of their paid subscriptions from the bank, and substituted therefor their notes, with the view of making their notes the capital stock, and the bank was put into operation without the payment of the notes in specie, or such funds as the charter required the capital stock to be paid in, and the bank has failed, th-y are respectively still liable for the sums by them severally withdrawn, If stock be subscribed and paid in, it must remain, unless the stockholders agree to surrender their charter or abandon their privileges under it, and in either of those events the bank is at an end. If the stockholder wishes to sell his shares, he must compel his purchaser to pay him the value, and if he colludes with the purchaser to withdraw from the bank the capital paid in for the protection of the public, and it is withdrawn, they become indebted to the bank the amount collusively and fraudulently withdrawn. It is a matter for the jury to pass on, upon the whole evidence in the case. The witness Kyle said that he paid the debt for Smith, and yet no money, or notes of any sort were turned over to the purchasers within the knowledge of the new President and directors of the bank, all of whom, by the charter, were bound to be stockholders in their own right. The jury- had the right to weigh this evidence.
For the reasons already assigned I think the fifth and sixth instructions asked by plaintiff’s counsel ought to have been given. The cashier oí a bank canno.t discount a note. If he cannot discount a note he cannot discount a verbal promise to pay. He has no ex officio power until the bank, of which he is the cashier, goes into operation. Until then he is the limited agent of the corporation, governed strictly by its legally expressed orders and authority. He is clothed with ex officio powers when the bank begins business, from the necessity of the case. There is no such necessity before. His etc officio powers are by no means, general, they are limited to such matters and things as are embraced within the duties of his office, and in relation to which he must be presumed to have authority to act; Bank of the U. S. vs. Dunn 6 Pet. 59.
He cannot discount a note. He cannot give up a discounted note until paid, and if he does, the parties to the note must remain indebted to the bank.
I am of opinion, therefore, that the judgment of the Court below ought to be reversed.
