Briggs H. Moultrie, et al. plaintiffs in error, vs. John S. Hoge, defendant in error

By the Court.

Benning J.

delivering the opinion.

The Court below, was requested to charge, among other things, this : “ That by the expiration of the charter of said bank, on the first day of January 1852, said plaintiff’s cause of aótion became extinguished, and he could not recover.” Ought the Court to have charged it ? This is the only question decided by this Court, and the decision is, that the Court ought to have charged it.

My reasons for being in favor of this decision, are to be found, fully stated, in Moultrie, et al. vs. Smiley & Neal, 16 Ga. Rep., p. 339, and in Robison vs. Lane, 19 Ga. Rep. 337, they therefore, need not be repeated here. McDonald, J. concurred.

Lumpkin, J,

dissenting.

By the 8th rule of the Commercial Bank of Macon, it is provided that “ The total amount of the debts which the said corporation shall at any time owe, whether by bond, bill, note or other contract, shall not exceed three times the amount of their stock paid in, over and above the amount of money actually deposited in their vaults for safe keeping ; in case of excess, the directors under whose administration it shall happen, shall be liable for the same, in their individual, natural, and private capacity ; and an action of debt may, in such case, be brought against them, or any of them, their executors or administrators, in any Court of record in the United States having competent jurisdiction, or either of them, by any creditor or creditors of the same corporation, and may be prosecuted to judgment and execution, any condition, or covenant or agreement, to the contrary notwithstanding. But this shall not be construed to exempt the said corporation, or the lands and tenements, goods and chatties of the same, from being also liable for, and chargable with the said excess; and each of the said directors who have been absent when the said excess was contracted or created, or who have dissented from the resolution or act whereby the same was so contracted or created, shall be liable as other directors for said excess. But such directors may be entitled to recover out of the directors assenting to such excess, by action of debt, or on the case, the amount which they may have been compelled to pay (Prince 101.)

In Moultrie vs. Smiley, et al., 16 Ga. Rep., p. 289, this Court held that a bill holder was entitled to his action under this rule, against certain directors, who were guilty of an over-issue, in their individual character, notwithstanding the expiration of the bank charter, by its own limitation.

I maintain the same opinion still, and for the reasons of my dissent from the contrary conclusion to which the Court has come in this case, I refer to the opinion of the Court in that.