dissenting.
When this case was called up, Mr. Dougherty, one of the Counsel for the plaintiff, objected to my presiding in it on three grounds — First. That a case or cases like this was pending in the Superior Court of Muscogee County, in favor of the plaintiff in this case, against Mrs. McDougald, as the executrix of Daniel McDoughald, deceased, and that at the time of my being elected a Judge of this Court, I was of Counsel for her in the case or cases.
• Secondly. That cases like this were pending in that Court in favor of other persons than this plaintiff, against Col. Sea-born Jones, as a stockholder in another bank — the Chattahoochee Rail-road & Banking Company, and that Col. Jones was my father-in-law, and had been, at the time of my election as Judge, my client in those cases.
Thirdly. That the Counsel for the defence, in each of the cases commonly called the “bank cases,” to which cases belonged this, had agreed, among themselves, to make, or had made “ common cause” in the defence of all the bank cases; and so, that all of those Counsel were to be considered as substantially •engaged in the defence of each and every one of the cases; that, consequently, I was to be considered as having been, at the time of my election, substantially one of the Counsel for the defendant in this very case.
These grounds I did not think sufficient to support the objection, and therefore, notwithstanding the objection, I presided in the case. Was I right in this ? That I was, I will state my reasons for thinking.
First, then, as to the third ground. That ground, as far as it concerns me, has no foundation, in fact. I never made any agreement with any body, to make common cause in the defence of the bank cases, generally, or of this case, in particular. I never took part in the defence of the cases generally, or in the defence of this.
As to the other two grounds, I shall admit them to be sub*249stantially true, although I might say, if I pleased to say it, that Col. Jones, as to all the cases of any consequence against himself, viz: those in favor of the Bank of Columbus, has defences different from any which this defendant, Harris, ap« pears to have, or, as I think can have, and that in my opinion these special defences are, of themselves, for him, sufficient.
I take this to be a true principle of law — that it is the duty of a Judge to preside in all cases in which he has had given him authority to preside. This principle, it seems to me, necessarily results from the relation of principal and agent — that relation in which the State and a Judge stand toward each other. The State delegates to a citizen authority to decide cases. Why ? I can conceive of no reason why, except that the State wishes him to decide the cases. As to the purpose of the State, in the delegation of the authority to him, there are but three things that occur to me as supposable — one, that the State wished the authority to be used — one, that the State wished the authority not to be used — one, that the’State was indifferent whether the authority should be used or not. To say that the State wished the authority not to be used, is to say that the State is so foolish as to do an act which is not merely superfluous, but an act which can have no result, whatever, except a result which defeats the State’s wishes. To say that the State was indifferent whether the authority should be exercised or not, is to say that the State is both so foolish as to do a superfluous act, and is indifferent whether wrongs done by one of her citizens to another shall go unredressed — whether wrongs done to herself shall go unpunished — whether right, public or private, shall be left without a guard: and to say this, is to say that the State has prepared the whole body of her law, both civil and criminal, without an object; for if the State be indifferent whether her laws be executed or not, what motive can she have had for preparing those laws ? To say that the State’s purpose was, that the authority should be exercised, remains the only thing supposable.
Now, what is the will of the principal, is the law of the agent; *250and the more especially, if the principal he the sovereign, and the agent a subject or citizen. And whatever is the law to a man, he is bound to obey. A Judge being the State’s agent, and having had authority given him by the State to preside in certain cases, and thus having been notified of the will of the State, that he should preside in those cases, it follows that he is, bound to preside in them — bound to preside in all the cases.
It is not for the Judge to elect one sort of case for presiding in, and to reject another. If any thing of that kind is to be done, it is to be done by the State. As to the Judge, the cases all stand upon the same footing.
If, when the Judge has been authorized to sit in all cases, it is not his duty to sit in all, which are to be the excepted ones — > and what is to be the ground of exception ? Are they to be cases in which, for some reason or other, it would be disagreeable to the Judge for him to preside ? If so, whether the Judge shall preside in any case whatever or not, will depend upon the Judge’s pleasure. Are they to be cases in which, for some reason or other, it would be disagreeable to the parties, or to any party, for the Judge to preside? If so, whether the Judge shall preside in any case whatever, or not, will depend upon the pleasure of any party in the case. And what cases remain tb be the excepted ones, if none of these are to be excepted cases ?
But as to the Judges of the Supreme Court, this duty, it seems to me, has been prescribed to them by the Act organizing that Court. That Act, in its third section, says, “ It shall be the duty of all the Judges of said Court to attend,- at each term; but if, from Providential cause, any "one of-said Judges cannot attend a Court, such Court may be holden by two Judges.”' Why is it made the duty of each-Judge to attend at every Court? There can be but one answer — that each may sit and take a^ part in deciding the cases returned to every Court — in deciding one of such cases as much as another, provided that the authority to each Judge to sit in one, is the same as it is to sit in another. When the authority to sit in one case, is the same as •it is to sit in another, is not the duty to sit in one, the same as-*251it is in another ? If the intention was not this, here was the .place to say so, and to specify the cases on which it was not to ■be' any Judge’s duty to sit. And here is specified one single ■ease, in which a Judge is excused from sitting — and that- case is, when he is kept from being in attendance, by Providential cause. No other is specified. And inclusío unius exclusio alterius.
Considering it, then, to be true, that it is the duty of a Judge to sit in all cases in which has been given him authority to sit, I proceed to the question — what cases are they in which no authority to sit has been given a Judge? What cases are they which a Judge is disqualified to preside in? These being seen, those which a Judge is qualified to preside in will also be seen.
It is a maxim of the Common Law, that a man cannot be judge in his own cause. “ Aliquis non debet esse judex in propria causa." (1 Coke Litt. 141 a.)
Within this maxim a number of cases have been held to fall, although not cases in which the Judge was a party, viz : cases in which the Judge, though not a party, had an interest. (14 Vin. Abr. 574-6.)
Then there have been a number of other cases, in which individual Judges have held themselves disqualified to sit, although they were neither parties in the cases nor interested in them. A Judge has declined to sit on account of “ being connected with the parties”, (5 Maule & Sel. 21,) or “ being ■connected with one of the parties,” (5 Durnford & East, 5,) or for having, when at the bar, been “ Counsel in the cause,” (1 Barn. & Adolph. 605. 1 Brod. & Bing. 161,) or for having been “ consulted” in the cause, (6 Barn. & Cr. 566. 3 Barn. & Adolph. 2,) or for having been “ concerned” in the ■cause, (2 East. 272, do. 389, do. 478, do. 520, do. 555, 3 do. 245, do. 393, 2 Bos. & Pul. New. R. 451.) There have been cases in which two out of four Judges have declined to give any ■opinion, “as they had been engaged in the case while at the bar,” (5 Maule & Sel. 103.) In Doe ex dem. Early of Jersey vs. Smith, (5 Maule & Sel. 475,) a case of this sort, Lord Tfflenborough said *252“that only two Judges were in a situation to pronounce any judgment, the other two having, when at the bar, been engaged in'the case.”
The example of these English Judges has been followed by the Judges of this Court. Instances of that are to be found in 1 Kelly, 29, 275, 348, 365, 402, 466, 481, 513, 525, 598, 639.
To bring all of these cases within the maxim, that a man shall not be a judge in his own cause, it is necessary, it must be confessed, to read that maxim most liberally, according to its spirit and not to read it according to its letter. Rut if they cannot be brought within it, they have to stand without justification, for there is no other maxim or law, of which I am aware, within which they may be brought.
Admitting them to be within the maxim, it may be doubted whether the maxim, itself, has not been repealed by the part of the Constitution of the State which provides for the establishment of this Court, and by the Act of the Legislature which establishes the Court.
In the Constitution are these words: “ The Supreme Court shall consist of three Judges”, &c. “And the said Court shall, •at each session in each district, dispose of and finally determine each and every case on the docket of such Court, at the first term”, &c.
The expression “ each and every case”, is broad enough to include all cases of the kinds above enumerated. And all cases which it includes, the Court is required to determine; and the Court is declared to be a something which shall consist of three Judges; and is it not clear that what consists of but two Judges does not consist of enough to constitute that something ? Did not the Constitution intend that it should take all three of the Judges to make a Court ? If it did, then, when it required the Court to determine “each and every case” on its docket, it required each of the three Judges to sit in each and every such case; for the sitting of each Judge is essential to the making of the Court, and so is essential to a determination of any case by the Court. In short, if the Constitution intended it *253to take all throe of the Judges to make a Court, then when it said the Court should determine “ each and every case” on its docket, did it not repeal the maxim, a man ought not to be a judge in his own cause? The notionthat this part of the Constitution intended it to take all three of the Judges to constitute a Court, derives support from other parts of the Constitution.
The third section of the first article has these words:— “The Senate shall be elected biennially” “and shall consist of forty-seven members,” &c.
The seventh, these: “ The House of Representatives shall be composed of one hundred and thirty members,” &c.
The twelfth, these: “a majority of each branch shall be authorized to proceed to business, but a smaller number may adjourn from day to day, and compel the attendance of their members in such manner as each House shalkprescribe”.
In the old Constitution, that of 1777,-are to be found provisions similar to these, and also a.provision in these words: “All causes” “shall be tried in the-Supremo Court”, “which Court shall consist .of the Chief Justice and three or more of the Justices residing in the county. In case ■ of the absence of the Chief Justice, the senior Justice on the bench shall act as Chief Justice”, &c.
This language in the third and seventh 'sections, which the Constitution applies to both branches of the Legislative department, is the same, or the same in substance, as that in another section, which we have seen it to apply to as much of the Judicial department as is constituted by the Supreme Court. The Supreme Court shall consist of three Judges”. The language, therefore, it is to be presumed, was applied to the Supreme Court in the same sense in which it had been applied to the two branches of the Legislative department. But as to those branches, is it not clear that the Constitution considered the language as saying, that to make a senate, it should take full forty-seven members; to make a House of Representatives, full one hundred and forty; for if the Constitution did not consider the language to say this, what, reason had it for inserting the provision contained in the twelfth section. The provision that *254“ a majority of each branch shall be authorized to proceed to business”?
Now this provision in the twelfth section, is confined to the two branches of the Legislature. It is not extended to the Supreme Court. It is not said of the Supreme Court that a ■majority of its members shall be authorized to proceed to business. And inclusio unius exclusio alterius.
Indeed, an argument of the same sort is to be drawn from the sixth section of the third article which concerns the Inferior Court, in which it is said, “ the Inferior Court shall have power to vest the care of the records and other proceedings therein, in the Clerk; or such other person as they may appoint, and any one or more Justices of the said Court, with such Clerk'or other person, may issue citations and grant temporary letters”, &c.
The Act ofjhe Legislature for organizing the Court is, in this particular, stronger in some respects, perhaps, than the Constitution. It uses this language : “ the said Court shall consist of three Judges,” &c. “ It shall be the duty of all the Judges of said Court to attend at each term of said Court: but if, from Providential cause, any one of said Judges cannot attend a Court, such Court may be holden by two Judges. If only one Judge shall attend a Court, it shall be his duty to open the Court, and to adjourn it to a day not more than two days beyond the regular term, at which time, if two Judges do not attend, the Court shall, in that case, be adjourned to the next regular term.” (Sec. 3.) “ The Supreme Court shall proceed, at the first term, (unless prevented by Providential cause) to hear and determine each and every cause which may, in manner aforesaid, be sent up,” &c. '
“If, from Providential cause, any one of said Judges cannot attend a Court, such Court may be holden by two Judges.” Is not the implication this: that if the cause which keeps a Judge absent be Providential, then the other two Judges may hold the Court: but if the cause be any thing else than Providential, then the other two may not hold it. If so, again inclusio unius exclusio alterius.
*255And if the idea was that a majority of the Judges might, in general, be sufficient to make a Court, it may be asked why was imposed upon each Judge the duty in terms so peremptory, “ to-attend at each term.” Why was not attendance left to the discretion of each Judge — to the sense which each might entertain of his own duty, in the same manner as the attendance of' members of the Legislature is left to each member’s sense of his duty?
In other respects, the Act is like the Constitution — like that, it requires the Court “ to hear and determine each and every cause which may be sent up” to the Court.
All these things taken together, not to mention the rules of the general law, as to the strict construction of naked powers, and as to the manner of executing powers delegated to more persons than one, I think there is enough to make it most doubtful whether both of the following propositions are not true : First. That it takes all three of the Judges of the Supreme Court to make that Court, on all occasions, except those on which Providential cause prevents one of the Judges from, sitting. Secondly. That the Court, thus made, has to hear and determine each and every case before it.
If it be assumed that both of these propositions ai e true, then it follows.that-the rule, a man ought not to be a judge in his-own cause, is repealed, unless the words “each and every case” be restricted in their- meaning.
Let it be assumed, that these words are not to be restricted in their meaning, and that with these words, in their unrestricted meaning, the propositions are true.
This assumed, let us apply the propositions to a possible case, and see how they will work.
Suppose the case before the Supreme Court to be a case in which one of the Judges of that Court is an actual party — say the defendant in error. What would be the effect of these propositions, if true, on such a case ? This: First. All three of the Judges would have to sit in the case. Secondly. There would be a chance for reversing the judgment. Two of the three Judges would be disinterested, and they, if the other dis*256sented, could render the judgment of the Court. The other might, himself, after hearing argument, come to concur with his associates. It is at least certain, that there would be a chance for the judgment to be reversed — a better chance than there would be if all three of the Judges were the defendants in error. And there is Common Law authority to the effect, that when all of the Judges of a Court are parties defendants in a case, they must nevertheless sit in the case “ for necessity.” (14 Vin. Abr. “ Judges” (A.) 7 Grant on Corporations, 281.) It does not, it seems, take all of the Judges of the King’s Bench or Common Pleas, to make a Court. And so, if only one of the Judges of those Courts is interested in a case, his fellow Judges may decide it.
The effect, then, of these propositions, if true, ujdou the case supposed, would be to give the plaintiff in error, the party opposed to the Judge, a chance for a judgment in his favor — a chance for a reversal.
Suppose, now, the plaintiff in error to object that the Judge, who happens to be the party defendant in error, ought not to sit; and that that Judge yields to the objection, what is the effect of that ? It amounts to an affirmance of the judgment below. The effect is to make the Judge certainly gain the case, and the objecting plaintiff, his adversary, certainly lose it.
Now, the only difference between this supposed case and the real case is, that in the real case, the Judge, against whose sitting the objection was made, was not at all a party in the case. He was only of Counsel in a like case — only the connexion of a party in a like case.
But suppose the words, “ each and every case” in the latter of the two propositions, are to be restricted in their meaning— restricted to such cases as by the law existing at the time when those words were used by the Constitution and the Statute, it was lawful for a Judge to preside in, viz: cases in which ho was not a party and so forth, then what would be the effect of the propositions upon the case supposed ? The certain affirmance of the judgment of the Court below. One of the Judges would be the defendant in error. He could not sit. The other two. *257would not be sufficient to make a Court — and without a Court, no judgment, of any sort, could be rendered in the case ; and therefore, the judgment of the Court below would have to stand good — that is to say, the effect of the law’s not allowing the Judge to sit in his own case, would be to make him gain it to a certainty. This being the law, whether sitting or not sitting would, be to the interest of the Judge, would depend simply upon whether he was plaintiff in error or defendant in error.
The difference between this supposed case and the real case has been above stated. The effect of yielding to the objection, that the Judge ought not to preside in the real ease would, these propositions, in this restricted sense of the words, “ each and every case”, considered as true, have been to make the party objecting certainly lose his case. The effect of not yielding to the objection, was to give him a chance to gain it —a chance which, as it happened, resulted in success.
Now I have not said that I consider to be true, both or either of these propositions, viz: first, that it takes all three of the Judges of the Supreme Court to make a Court, on all occasions, except those on which one Judge is, by Providential cause, kept from sitting. Secondly, that the Court, thus made up of all three Judges, must determine “each and every case” before it. What I say is, that it is very doubtful to my mind whether they are not true.
If true, and the words, “ each and every case” in the second, are to have their literal meaning, then I think it clear that the law expressed by the propositions, repeals the maxim, that a person ought not to be a judge in his own cause.
If true, and these words are not to have their literal meaning, but are to have a meaning restricted to cases in which, by law, it was lawful for Judges to preside, viz: cases in which they were not parties or the relations of parties, or in which they had not been of Counsel before they became Judges, then the-law expressed by the proposition does not repeal that maxim; but it is capable of producing, in some cases, an effect which it-was the object of that maxim to prevent from being produced *258in any case — the effect to make it certain, that if the case be that of a Judge who is defendant in error, his not sitting will amount to the gaining of his case.
The questions involved in these propositions have never, as far as I know, received any consideration from the Supreme Court. The Judges of the Court, however, have, from the beginning, acted upon the notion that two Judges could make a Court and render a judgment, not only in cases in which the cause that kept the other Judge from sitting with those two was Providential, but also in cases in which the cause was other than Providential, as in cases in which the Judge was- a relation of one of the parties, or had been of Counsel for one of them.
It has frequently happened that one Judge has declined to sit in a case for one of the reasons aforesaid, and the other two have rendered a judgment in the case. The example thus set by the other Judges, I have felt myself, not without some difficulty, at liberty silently to follow. The practice, as far as I know, has not been complained of by those on whom it has had direct operation — the parties in such cases, or by any others — still, I must say that I have never yet made up my mind, as to whether a judgment pronounced by two only of' the Judges of that Court, in a case in which the third did not sit — did not sit for some reason that was not Providential, was valid.
Admit, therefore, that the old maxim — a man cannot be a-judge in his own case, has not been repealed or at all affected by the parts of the Constitution, and of the Statute organizing the Supreme Court, to which I have referred, yet, it is certainly true that by those parts, the maxim has not been enlarged. It is certainly true, that no reason can be found in those parts of the Constitution and of the Statute, to multiply ■.the variety of cases to be subjected to that maxim.
This maxim, then, being to be taken as in force, to its full extent, what is that extent? It is what we have already seen. The extent is to disqualify a Judge from sitting in all cases im *259which he is a party or the relation of a party ; or in which he has been concerned as Counsel, and in no others. The maxim does not extend to a case which may happen to be like some ■case in which one of the parties may be the Judge’s relation, or be a person who was the Judge’s client, when the Judge became Judge. Not a case — not a dictum — not an instance — not an opinion of any law writer or other was cited, to show that the maxim does. Not a thing of the sort, as far as I know or believe, exists. To make the maxim go this length, it would have to be read as saying that a person should not sit as Judge •in any case in which was involved a question -which was also involved in another existing case, whether in suit or not, which might possibly, some time or other, come before him to be adjudged, or might not, in which he or some relation of his was a party, or in which he who was a party, was one for whom the ¿person, before he became Judge, had been of Counsel. And to read it as saying this, would be to read it as disqualifying •■a man to sit as Judge in cases of the following kinds:
Say the Judge is a stockholder in a bank or in a rail-road, or has a relation that is one; or at the time of his election as Judge, was Attorney for the bank or the rail-road, or for some stockholder in either. The case is against another bank, or rail-road, or stockholder, in one or the other, and is such as to-involve the question, whether a bank, as the indorser of a bill of exchange, is liable, on notice of dishonor given to the president or to the cashier, or to the teller, or to a director ; or liable without any notice at all; or liable if the indorsement is not made by signature and counter-signature of president and ■cashier ; or liable if the indorsement is not directly and expressly authorized by the board of directors, &c. &c.
Or such as to involve the question, whether the rail-road is liable, as a common carrier, &c. &c.
Or such as to involve any question, as to whether either the bank or rail-road is liable, under the general law applicable to corporations.
Or such as to involve the question, whether a failure to do ■something required to be done by some provision which is com*260mon to all bank charters and rail-road charters, does not amount to a forfeiture, or to cause for a forfeiture of the charter.
Or such as to involve the question, whether the Legislature has not power to repeal a charter.
Or in short, say the case is such as to involve any of the thousand possible questions which are common to all banks and all rail-roads, and all stockholders in either.
Or say that the Judge happens to be a landholder, by grant, from the State, or is a relation to a person that is such landholder, or was, when elected Judge, Counsel for a man whose case turned on the validity of a grant from the State for land, and the case before him is that of some other man, which involves the question, whether the Legislature can annul a grant or make a young grant take precedence over an old; or whether a grant carries with it mines and minerals, or any of the possible questions which are common to all grants.
Or say the case is one which involves the question, whether one of the. parties to it is bound to pay the poll-tax imposed by the general tax law on all persons, the Judge included, he insisting that the Legislature has no power to pass such a law.
In this case — in all these cases, and in others indefinitely numerous, of similar character, this reading of the maxim makes it illegal for the Judge to sit.
The result of such a reading would be, or come near to being, to make the cases in which a Judge is disqualified to sit, as numerous as those in which he is qualified to sit. And such a result I know of nothing sufficient to bring about, except a law made by the law-making power — a law sufficiently enlarging the maxim, a person ought not to be a judge in his own cause, to bring it about.
The case in which this objection to my sitting was made, is, in some respects, a peculiar one. On one side of it the party is the holder of bank bills ; is therefore one of a class, which, for all practical purposes, may be said to include in it all the,people of the State, not even excepting the Judge objected to, for every man holds, or expects to hold, the bills of some bank; and so, has an interest in preserving a sound bank-bill cur*261reney. The bills of which this party, thus belonging to this powerful class, is the holder, are the bills of a broken bank — of of abank which, perhaps, a great majority of that class may have come to believe or suspect to have been broken by its stockholders, on purpose to defraud them — of a bank, the bankruptcy of which, unless those stockholders should be compelled, individually, to make good the bankruptcy, that whole class may consider calculated to have, as an example, a bad effect on all the other banks of the State — those other banks whose bills constitute almost the entire money of the class. On one side of the case, such is the party; on the other, the party is one of the stockholders in that broken bank. The Judge .objected to, has, for father-in-law, one who is sued as a stockholder in another broken bank, in a suit similar to that against this stockholder, in this broken bank.
Question — which party to this case, is it most to the Judge’s interest to decide in favor of ? If he decides against the bill-holder, and can get one or both of the other two Judges to go with him, it is possible that the decision may, in the long run, work to the benefit of his father-in-law, by having some influence, in fact, on the decision of the case against him. If he decides against the bill-holder, but cannot get either of the other two Judges to go with him, it is not possible for his decision to work at all to the benefit of his father-in-law, because a dissenting decision or judgment counts for nothing.
From this is to be seen the degree of interest which the Judge has to decide against the bill-holder.
If he decides in favor of the bill-holder, it is possible, perhaps not improbable, that he shall please nearly every man in the State, as every man is the holder of the bill of some bank, or is continually expecting to be; if, in so deciding, he puts in possible peril one who is as near to him as father-in-law, and also one or more who were as near to him as clients, it is possible — is it not probable — that he shall give nearly every man in the State exalted pleasure — fill him with a proud rapture at the idea of having to preside over him, a Judge of such magnanimity — such purity — such love of justice.
*262If, therefore, he thus decides, he stands a good chance, not only to retain all of his old popularity, but to add to the old much that is new. Is popularity worth any thing to him ? is it prized by him ? He wished to be a Judge — popularity made him a Judge. Does he wish to be made Judge again, or.to be made any other ^dignitary ? It is only popularity that can gratify his wish.
Behold what the Judge stands a chance to gain by deciding in favor of the bill-holder.
By deciding against the bill-holder, may the Judge lose any thing ? The Judge, by deciding against any bill-holder at all, risks offending the whole, or nearly the whole of his fellow bill-holders — a class co-extensive with the people of the State — by deciding against one, when it is possible that such, the Judge’s decision, may operate to the benefit of a person who stands to the Judge as father-in-law — of another who stands to him as a former client — the Judge risks not only offending this proportion so large — of this class so extensive — he also risks inspiring it with the horrible suspicion that he is a corrupt Judge. The Judge risks more than his popularity.
See, then, what the Judge, by deciding against the bill-holder may lose.
A dissenting decision against the bill-holder — a thing that counts for nought — has not the Judge every thing to lose— nothing to gain by making that? If yet he will sit and make such a dissenting decision, does it not seem certain that he is ■actuated, in his conduct, by some motive stronger than that of personal loss or gain ? Does it seem impossible that that motive can be a sense of duty ?
The only reason given in support of the objection to the Judge’s sitting in this case was, that the decision of the case would be, in law, a decision of the other cases. It was said that this case would be a precedent for those, and that Courts are bound by precedents.
This is a mistake. Courts are bound by nothing but law, and nothing is law but something that is made law by the lawmaking power. Courts are not this power. They are express*263ly forbidden, by the Constitution, to exercise this power. “The Legislative, Executive and Judicial departments of Government shall be distinct, and each department shall be confided to a separate body of magistracy; and no person or collection of persons, being of one of those departments, shall exercise any power properly attached to either of the others, except in the instances herein expressly permitted”. (I. Sec. 1 Art.)
In a case between A and B, say as to what is lawful interest for money. The Court decides it to be tender cent. Are all future Courts, in all future cases, to say it is ten per cent. ? or-are they to go by the word of the law-making power, which, says such interest is seven per cent. ? In the case supposed, however, say the decision is, that the interest is seven per cent. Are future Courts, when they too say seven per cent, to be considered as saying so because of that decision, or because of that law on which that decision rests?
What, then, is a decision worth ? It is, to the parties to it, worth all that a law would be worth. To the parties to it, a decision may, indeed, without any great departure from propriety of language, be said to be a law. To A and B, the parties to it, the decision is a law — to the rest of the alphabet it is none. Are previous decisions, then, worth nothing, to operate on future decisions ? Decisions are evidence to show the opinion which the Judges making them have, as to what the law is om the question decided. They are evidence of opinion, and they are worth what opinion is worth. What opinion is worth, depends upon many things. It is. worth nothing, when it stands-on one side, and law stands on the other. When it is doubtful on which side the law stands; then Judicial opinion, as to the side on which the law stands, if it be of good quality, and especially if it be also of good quantity, is worth much. But in no case does it govern — in no case is it law. The respect which is paid to it, is paid voluntarily. The Courts, if they choose to depart from it, and go by their own original opinion of what the law is, always do so. And what respect is it likely that Courts would voluntarily pay to a decision made by a Court, one of the members of which was, say a party to the decision ? *264And what if the Legislature were to come in, and by a declaratory Statute, say that the law was not' such as the decision made it out to be, but was so and so; and that the decision was not to count as any evidence of what the law was ?
■ Re the influence of precedents, however, what it may, there is no law which says a Judge is disqualified to sit in a case, the decision in which may chance to be claimed as a precedent in some other case in which he or some connection of his, or some person whom he was Counsel for at the time when he became Judge, may be a party. And there is a law, as I think I have shown, that he must sit in all cases in which he has been authorized to sit.
■ Upon the whole, my conclusion was — Eirst. That it is a Judge’s duty to sit in every case in which authority to sit has been given him. Second. That authority had been given me to sit in this case.
So, considering it to be my duty to sit in the case, in it I sat. I was not aware of any right in me to make the case stand on a footing different from that on which other like cases stand — of any right in me to have one rule for one case, another rule for a fellow case.
■ I may remark that this, my opinion, of what law and duty is on the point in question was known — well known to the Legislature which made me Judge.
- In this case, the plaintiff in error, by his Counsel, insisted that the following proposition is true: “our proposition is, that plaintiff is entitled to recover the whole amount of his bills out of the defendant, if the number of his shares and the' value thereof is equal to the amount of his bills; and that a recovery against the defendant, is a good plea, in bar to any and all actions brought against him by bill-holders, except as to costs”. I quote from the printed argument of one of the Counsel— Judge Nisbet.
' Ry the woi'ds “value thereof,” the Counsel mean the value of the shares got by considering the shares as each worth one hundred dollars. They say, “we admit, as stated by this Court, that the liability of the defendant is proportional. He *265is bound to pay his proportion of the indebtedness, and that proportion is fixed by the charter. It is an amount equal to the number of his shares at the value of $100 per share”. I againe quote from Judge Nisbet’s printed argument.
By the words, “a recovery against the defendant, is a good plea in bar to any and all actions brought against him by bill-holders, except as to costs,” they, the Counsel, mean not only that such a recovery is such a good plea in bar, but that a voluntary payment of the bills made by the stockholder, is equally such good plea in bar. They mean that the stockholder will be as much protected, if he volun tarily takes up bills, as if he is forced, by suit at law, to take them up. They say, “if we are right in our positions, that the defendant is our'idebtor to the full amount of his liability, and that we have the right to demand and have it of him, then it follows, as an inevitable legal inference, that he cannot be compelled to pay it to any body else. Satisfaction to us is a defence to him against the world. According to naked principles of justice, as well as the settled rules of the law, a man cannot be compelled to pay to any body, a debt which he has paid to the rightful creditor, or for which, to him, he has become personally charged”. “ They (the bill-holders) are in the position of a number of creditors of a common debtor, who is able to pay only a given amount.
They stand primarily equal in their right, but he who is bona fide preferred and paid, may receive payment without wrong to any body. And he who is vigilant and sues and gets judgment as in all other cases, acquires a preference under the law”.
The extent of a stockholder’s liability is a sum equal to the value of his stock, rating his stock as worth one hundred dollar's a share ; the manner by which the liability may be discharged, is by the stockholder’s taking up bills to an amount equal to the valxie of his stock, rating his stock as 'worth $100 a share, or by his coming under obligation, by judgment or otherwise, to take up bills to that amount. This is what the Counsel mean by their proposition, as I understand them.
And that proposition, in this sense, if I mistake not, was, *266by a majority of this Court, approved and made the ground for' over-ruling the decision of the Court below. I could not approve the proposition. 'Therefore, I could not agree to make it aground of over-ruling that decision. Whether the proposition be true or not, depends upon what is the meaning of the eleventh section of the charter of the Planter’s & Mechanic’s Bank of Columbus. That section is in these words: “ 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 day’s notice in some public gazette of this State”.
What is the meaning of these words ? It is, in my opinion, such as not only not to support, but such as to oppose the proposition ; and that in every important respect.
As I think these words do not mean to say, that in a valuation of the shares of stock for any purpose, the shares are to be considered worth the fixed sum of one hundred dollars each; regardless of whether as much as $ 100 a share has been paid the bank on them or not — or mean to say, that in all cases when the stockholder has taken up or become bound by judgment to take up bills, to an amount equal to the value of his stock, he is, as a matter of course, discharged from all liability to take up other outstanding bills — or mean to say, that the quantity of any stockholder’s property, liable to the ultimate redemption of bills, is to be a quantity equal to the value of his stock, let the value be rated as it may.
For thus thinking, I will now give my reasons; and then I will state what I think to be the true meaning of the words, and my reasons for so thinking.
First, then. Is the value of each share meant by these words, a fixed sum of ¡$100, or is it a sum equal to the sum which, may have been paid in on the share, or is it something else”?
How is this question to be determined ?
*2671. By an appeal, in the first instance, to the very “words” themselves.
2. If the words fail to give a clear meaning, then and not till then, by an appeal to the “context”; that is, to Legislation in pari materia.
8. If the context fails to give a clear meaning, then and not till then, to the “subject matter”.
4. If this fails, then to the effects and consequences.
5. Or, to that which perhaps includes the effects and consequences — the “ spirit and reason” of the words.
Eor these answers to the question how ? I go no further than to Bladestone. (1 Black. Com. 60.)
Let us then appeal, first, to the zvords. ^The words are, “in proportion to the amount of shares and the value thereof”. There is nothing in these bare words, from which it' can be argued that the meaning is that the “value” is to be considered as of any fixed sum. These words certainly are plainly, not per se, equivalent to these, “in proportion to the amount of shares and the value thereof, rating the value thereof at $100 a ■share”.
The only meaning, as it seems to me, which is to be drawn from these words thus taken by themselves is this — in proportion to the amount of shares and the value thereof, rated at what the shares sell for in market. When men speak of the value of a horse, a piece of land, State stocks, stocks generally, they mean the value of each thing, estimated according to what it will fetch, when exposed to sale in open market.
When the Legislature and the stockholders in this bank used the word value, in connection with the stock of the bank, is it to be said that they used the word in a sense different from that in which all men use the word on similar occasions ? If it is, then, it must be, for some reason, outside of the mere words.
The meaning to be drawn from the naked words is, that the value of the stock is to be estimated at the market value.
What says the “ context”- ? Does the context say the value of the shares is to be estimated at $100 each share ? The second section of the charter declares that “ The stock of the *268company shall consist of one million of dollars, in shares of one hundred dollars each, and the stockholders in said bank are hereby rexuired to pay twenty-five per cent, on the amount of their capital stock, in specie, before the board of directors shall be permitted to issue their bank notes, and the remainder of their subscription in such sums, and at such times, as the board of directors of said bank shall require.” Does this declaration mean that the shares are to be considered to be of the value of one hundred dollars each, as soon as subscribed, whether any thing may have been paid upon them or not ? Does it mean that subscribed shares are to be considered of equal value with paid-up shares ? If so, why does it require, as a prerequisite to organization — to corporate existence — that so large a per cent, of the subscribed shares shall be paid up in .specie ? Why does it not allow the banking to begin upon the basis of the more subscriptions ? If so, why was it said in the fourth rule, that “ The total amount of debts which the said corporation may, at any time owe, whether by boird, bill, note •or other security, shall not exceed three times the amount of their capital stock actually paid in, over and above the amount of specie actually deposited in the vaults for safe-keeping ? Why was it not rather said that the total amount of debts shall not exceed three times the amount of the stock subscribed, over and above the specie in deposit ?
It seems to me plain that the declaration in this second section, means that a subscription of a million of dollars in stock, is not to be considered of the value of $1,000,000, until a $1,000,000 have been paid upon it. The declaration seems to mo plainly to mean, that a subscription of a million of dollars is to be considered of no value whatever, until 25 per cent, of it has been paid; and that after that per cent, has been paid, it is to be considered, as to all banking purposes, of no more value than the value of that per cent, thus paid upon it.
The directors have power to call for payment of the remainder of the subscriptions ? True, but this being a power to be used at the will of the directors, and the directors being the creatures of the stockholders, payment may neyer be called *269for. And if ever called for, the call may remain unanswered, either by reason of inability, or indisposition on the part of the stockholder to comply with it; and if of indisposition, the consequence may be merely a forfeiture to the bank of the stock subscribed. The existence of this power, it was plainly intended, should not add a cent, to the value of the basis on which the bank was allowed to do business, viz: to the value of the capital actually paid in, plus the deposits in specie.
Thus far, then, there is nothing in the “context” to affect the meaning which we had got from the “words”, viz: that the value of the shares is to be taken to be what is their market value.
There is other legislation in pari materia, as the Tax Act of 1817.
This act declares that “ there shall be annually paid to the State, a tax of thirty-one and a quarter cents on every hundred dollar’s value of bank stock operated upon or employed within this State, which tax shall be assessed and collected in the manner following, viz : It shall be the duty of the, president and directors of every bank incorporated by the Legislature of this State, to cause the cashier thereof to transmit to the Treasurer of the State, annually, a return sworn to by him before some Justice of the Inferior Court or of the Peace, in which shall be stated the amount of capital stock annually paid in on the first day of January preceding the time of making such return, and on or before the first day of December in each year, cause to be paid into the Treasury, free of any cost or deduction whatever, the said sum of thirty one and a quarter cents on every hundred dollars of capital stock returned in manner aforesaid.” This Act was made to extend to banks established as well after as before its passage. (Pr. Dig. 859.)
The principle of stock valuation contained in this Act, is recognized, and more vigorously applied in the Act of 1845, “ to compel the banks of this State to pay a tax on the highest amount of bank stock” thereafter “ returned by them as subject to taxation.” (Cobb Dig. 1077.)
This principle is the one which, by other tax Acts, is used *270for assessing the value of stock in corporations of other kinds, as by the Act of 1820, for assessing the value of the stock in the Steamboat Company of Georgia. (Prince Dig. 1079.)— by the Act of 1850 “ supplementary to the general tax laws”, for assessing the value of the stock of the Macon & Western Rail-road — by the Act of 1850, to collect a tax for 1850 and 1851, for assessing the value of the stock in the Memphis Branch Rail-road.
The taxation of the stock of the Central Rail-roacl and the Georgia Rail-road, is regulated by the respective charters of those corporations. By those charters, the tax has to be one on net income.
The Act of 1817 was in operation at the time when the Act incorporating the Planter’s and Mechanic’s Bank was passed. By the terms of the Act extending it to banks to be established after the date of it, the Act applies to that bank. For one great purpose, that of taxation, the Act absolutely prescribes what shall be considered to be the value of the stock of the bank ; and that is, “ the amount of the capital stock actually paid in.” This it is, that is to be considered the value of the stock, for the great purpose of the taxation of the stock.
Other acts prescribe a similar rule of valuation for stock, in the casé of corporations of other kinds — of the great internal improvement kinds.
From all this, is it not to be inferred that the Legislature considered the general principle for assessing the value of all corporation stocks, in cases in which they were to be assessed at all, to be the amount of money actually paid in on the stocks ? I think it is. When the Legislature has fixed the value of a thing at so and so, for one great and general purpose, and afterward, in connection with another not very dissimilar purpose, speaks of the value of the thing, in my opinion, it has in mind that same value which it had before fixed, for the thing.
But, at least, did not the stockholders, when they accepted the charter, have ground from this Act, for insisting that they accepted it in the sense that the value of their stock was to be rated ; no higher, in estimating their liability to pay the debts *271of the bank, than in estimating their corporate liability to pay taxes; no higher in estimating their liability to pay one sort of debt to the public, than in estimating their liability to pay another son; of debt to the public ?
The result, then, of the appeal to these Statutes in pari materia is, that the meaning of the Words “value thereof” aforesaid, in the charter, is not the market value of the shares, as the words naturally import, but a value equal to the amount of money actually paid in on the shares.
It may, however, be said, that as a general thing, this value and the market value will not greatly differ.
This result is one not to be affected by any thing, of which I am aware, in the “subject-matter” — the “spirit and reason” of the charter, or “ in effects and consequences”.
But say that I am wrong in this conclusion, and that in finding the liability of the stockholder, the stock is to be estimated as of the value of §100 a share; then I cannot agree with the majority of the Court, that this liability is one which may be discharged by the stockholder’s taking up bills to an amount .equal to the amount of his stock, or by his becoming bound, , by judgment, to take up bills to that amount, wholly regardless of the question, whether or not there may not be other outstanding bills, wishing to be taken up. ■
Supposing now, for argument’s sake, that the true mode for finding the amount of a stockholder’s property, which is liable for the ultimate redemption of the bills of the bank, is to measure the value of his stock and to take an amount of his property equal to that value, then I say that in my opinion, this amount of property, whatever it may be when found, is to be divided out among all the bills needing “ultimate” redemption, and giving notice of their existence to the stockholder; and that if he, after getting such notice, applies the whole amount of the property to the payment of some of the bills to the exclusion of the others, he does not, thereby, become discharged from those others.
In such a case, (assuming that the charter, itself, fixes no ratio of distribution,) I think that the law requires the fund or *272property to be divided out among all' the ’ bill-holders,. claimants upon it, in proportion to the respective amounts of their bills; and that if the stockholder does not see to it, that the property is so divided out, he renders himself liable to such bill-holders as do not get their proportionate share, to make good to them that share out of his other property.
This opinion is founded upon the words of the charter, and upon a vast body of law in pari materia.
The words of the charter that I rely upon, are these: “ the persons and property of the stockholders shall be pledged and held bound” “for the ultimate redemption of the bills or notes issued by said bank”. I understand by the words, “ the bills or notes”, all the bills or notes. If I am right, then, by the words of the charter, the property of the stockholder is pledged and bound to the ultimate redemption of each and every bill issued by the bank. Every bill or note, therefore, has a right to a share in this property. How, tíren, can the stockholder justify himself for taking the whole property, thus belonging, in shares, to all, and giving it to one ? or which is the same thing, justify liimself for letting so large a judgment go against him, in favor of one bill-holder, as shall force from him all the property thus belonging, equally, to the other bill-holders ?
But if the charter were silent, the vast quantity of law in pari materia, speaks a language that leaves me, as I think, no alternative but to adopt the opinion which I have above expressed. In every case in the law, which I can think of, in which a fund is to be distributed among different claimants upon it, the rule of distribution is the pro rata rule — the rule which gives to each claimant a share — a share proportioned to the amount of his claim.
This, by Statute, is the rule in the distribution among creditors, of the assets of a dead man; this, by Statute, is the rule by which a debtor’s property is to be divided .among his judgment creditors, whose judgments are of equal date; this, by Statute, is the rule by which the money of a debtor, in the hands of Sheriffs, &c. is to be divided among the debtor’s judgment creditors, whose judgments are of the same dater *273even though the money be brought in exclusively by some “vigilant” creditor, as by some garnishing creditor; this, by Statute, is the rule by which the effects of insolvent s are to be divided among their creditors; this, by Statute, is the rule prescribed to a debtor “ unable to pay his or her debts”, who wishes to make an assignment of his property to his creditors; this, by Statute — by the Penal Code — is the rule prescribed to' banks which, “ in contemplation of insolvency”, wish to make assignments of their property for the benefit of their creditors and stockholders, under penalty to the president, directors, &c. of imprisonment in the penitentiary for disobedience; this, by Statute — a Statute covering the whole ground of banking — the Statute to authorize the business of banking and to regulate the same, passed in 1838, is the rule by which judgment creditors of the banks established under the Act, are to enforce their judgments against the property of the stockholders in those banks; this, by Statute, is the rule by which the assets of this very Planter’s & Mechanic’s Rank, ordered by the State into the hands of a receiver, are to be divided among the bill-holders of the bank — this bill-holder, Lane, inclusive, of course; this, by the principles of Equity, is the rule by which Courts of Equity regulate the abatement of legacies— the apportionment of the payments to be made by the different purchasers of property which is encumbered — the marshalling and distribution of equitable assets. (Pr. Dig. 228, 435, 451, 287, 293, 164, 37, 633. Pamph. 1838, p. 39. Cobb’s Dig. 118, 119, 120. Story’s Eq. Jur. s. 60, f.)
The idea, then, that a stockholder may, as to his individual property, liable to the ultimate redemption of the bills of the bank, prefer one bill-holder to another, as long as the fund lasts, is, it seems to me, condemned by the words of the charter, and by a vast body of law in context with the charter — by all the law that exists on kindred subjects. And here I might stop, for when the answer which the “words” and the “context” give is free from doubt, we are not at liberty to go fur*274ther in search of meaning — to go to the'“effects and consequences”, to the “spirit and reason” of the law.
But I will add a word as to the “ effect” of the rule, that would allow the stockholder a chance to prefer one bill-holder to another. When a bank suspends specie payments, its bills fall at once below par, and this, no odds what may be the amount of its ultimately available assets. If there is distrust of these, the fall is great in proportion to the distrust. The existence of an ultimate liability on the part of the stockholders to redeem the bills, presents but a slight resistance to the downward tendency of the value of the bills. This experience has proved. Now, this rule gives the stockholder the full benefit of the depreciation, whatever it may be, and therefore the rule makes it to his interest that the bills should depreciate as much as possible. All he has to do is, to buy up bills to an amount equal to the value of his stock, and be discharged. He will not be fool enough to wait for judgments to be obtained against him on bills for the full amount of the bills. Before the time has come for such judgments to be rendered, he will have voluntarily redeemed bills to an amount equal to the amount of his stock, i. e. will have bought them up at the lowest price at which they may be selling in the market, and having done that, all else he will have to do will be to plead them to such suits as may be pending against him on other bills — and what means and facilities have stockholders for aggravating the depreciation of the bills of their bank, as by misrepresenting the condition of the bank ; by misrepresenting the condition of the individual stockholders; by misrepresenting the quantity of bills to be redeemed; by misrepresenting the quantity that each stockholder has already redeemed; by misrepresenting the market price of the bills; by threatening all sorts of defences to suits upon the bills, and so forth and so forth. Admit that bank stockholdeis may be as honest as other men, yet why tempt the most honest men in this way ? Why, indeed, give them the benefit of that depreciation, which at best, is inevitable on bank suspension? Would not the rule be far better if it were such as that is which is applied to executors and adminis*275trators — to Sheriffs having money on which there are several judgment claimants — to the receiver appointed by the Legislature for the distribution of the assets of this and other broken banks, viz: that the fund is to be divided out among all the claimants upon it, who have given notice of their claims, pro rata — and that if it be divided out otherwise, it shall be at the peril of the depository of the fund.
I am aware that a decision of this Court was quoted in support of what I am now combatting, that made in Bothwell and others vs. Sheffield and others, (8 Ga. R. 569.) That case was one in which the sureties of a Sheriff asked for an injunction to restrain a number of suits, which had been brought against them on their bond, suggesting that the amount of the demands in the suits exceeded the amount of the bond, and praying that “ the Court would so direct the recoveries, that the creditors first entitled, should recover to the amount of their bond; and the remainder be restrained from prosecuting their suits against the sureties”, and in which the Superior Court, on demurrer, dismissed the bill “ on the ground that complainants had a complete Common Law remedy” — a decision which was affirmed by this Court. This is the whole case. The opinion is contained in eight lines, and is put exclusively upon a Statute at that — an Act of 1847. (Pamph. 201.)
This judgment was, I think, right, even without any Statute to give it special support. Those sureties, as far as I can see, had no more nee'd of the aid of a Court of Equity to protect them from the overplus of suits, than has an executor or administrator the need of the aid of such Court to protect him from ■an overplus of suits against him, i. e. from suits on demands’ which exceed the value of the assets. The executor or administrator, may, at law, plead the state of the assets and of the debts relatively to each other, and at law the plea will be to him an ample protection. I see no reason why the sureties on a Sheriff’s bond may not do a similar thing. Hence, I think the judgment in the case was right. If the opinion of the Court has in it more than this, the excess is but an obiter dictum. I doubt, however, whether it has more.
*276But as I have said, I do not think the rule of the majority of the Court is right in its great principle — that by which it gets the quantity of the individual property of the stockholders, which is liable for the ultimate redemption of the bills of the bank. That principle is, to take the value of the stock as •the measure of the quantity of the individual property — the value at the fixed rate of $100 a share. This principle, I think, is condemned by the words of the charter — by the context — by the ai'gument — from effects and consequences, and by that, from the reason and spirit of the policy, establishing an individual stockholder liability.
First, as to what the “ words” say. The words are, “ The persons and property of the stockholders shall be pledged and held bound” “for the ultimate redemption of the bills or notes issued by said bank.” By the expression “bills or notes issued”, I understand is meant all the bills or notes lawfully issued. If I am right in this, then the positive command of the words is, that the property of the stockholders shall be bound for the ultimate redemption of all the bills issued by the bank. Now, if the property is to bo bound for the ultimate redemption of all the bills, of course enough of it is to be bound so to redeem all. That is to say, an amount of property is to be bound equal to the amount of bills in circulation needing ultimate redemption. The amount of such bills may, it is true, happen to be just equal to the value of the stock, though the chances are many against it. The amount will almost always be either greater or less than the value of the stock. For, by another part of the charter, the bank may issue bills to any amount, which shall not exceed “ three times the amount of their capital stock actually paid in, over and above the amount of specie actually deposited in the vaults for safe-keeping.” Supposing all the capital stock of the bank paid in, viz: $1,000,000, and that the bank had on actual deposit another $1,000,000 in specie — then it might issue bills to the amount of $4,000,000 — that is to say, to an amount exceeding by $3,000,000 the value of its capital stock, rated at $100 a share. But if, in such case, the bank should issue $4,000,000 in bills, the amount of individual *277property of the stockholders which would be liable for the ultimate redemption of the $4,000,000, would, according to the rule of the majority of the Court, be an amount of the value of no more than $1,000,000, for it would bo an amount of a value equal merely to the value of the stock, rated at $100 a share, and the value of the stock at that rate, would be only $1,000,-000. Yet the words say that property enough is to be bound to redeem every bill lawfully issued.
Again, the “ words” say that “ the persons and property” shall be bound “in proportion to the amount of shares and the value thereof.” This rule, for ascertaining the amount of property liable, entirely rejects the words, “the amount of the shares” and confines itself exclusively to the words “the value thereof.” But the two sets of words are not synonymous. The first set means the number of the shares, irrespective of their value. And.the quantity of individual property liable, is to be got by a proportion in which one of the terms is made up, in some way, both of the number of the shares and the value of the shares. This principle absolutely rejects from the case the element or ingredient, the number of the shares, although the words put that clement as much in the case as they do the element, the value of the shares. And, indeed, upon the principle that it is the value of the shares which is to be the measure of the quantity of individual property liable, it seems to me impossible to do anything else than reject the words, “the amount of the shares.” Yet these words have a plain meaning. The language of the charter is amount of shares as well' as value of shares: — the language of this principle is value of shares only. So much for the condemnation of the principle that comes from the “words” of the charter.
The condemnation from the context is, I think, if possible, more decided. I have examined, I believe, all of the corporation charters which contain provisions similar to that contained in this eleventh section of the charter of this bank. Most of those charters are for banks, but some are for rail-roads, some for insurance, and some, perhaps, for other purposes. There are thirty or more of them; and as to the times of their creation, they *278range through a period of almost forty years, from Dec. 1818, when the Bank of Darien was incorporated, to Eeb. 1854, when the South-Western Bank of Georgia was incorporated. The expression used for ascertaining the amount of separate property of the stockholder that is to be liable for the redemption of the debts of the corporation, is not the same' in each charter. In some charters, the expression is in proportion to the “ amount of the value” of the stock; in some, in proportion to “ the amount of the shares”; in some, in proportion “to the number of dollars issued on each share”; in some, in proportion “to the amount of stock”; in some, in proportion “ to the number of shares”; in some, in proportion “to the shares”; in some, in proportion “ to the stock”. In one, (the Bank of Columbus,) the expression for the common stockholders, is one thing; for the State as a stockholder, another; for the farmer, the expression is in proportion “ to the amount of the shares”; for the latter, in proportion “ to the amount of the value of shares”, both expressions being contained in the same section. (Pr. Dig. 86.) In one, that of the Manufacturer’? & Mechanic’s Bank of Columbus, incorporated in 1852, the expression is, “ that the persons, &c. shall, at all times, be bound for an amount equal to the proportion of stock which he, &c. shall own”. (Pamph. 1852, p. 35.) The provisions in the other charters may be found at pages 70, 88, 93, 96, 102, 105, 108, 112, 117, 123, 131, 314, 334, 352, 367, 377, 408, 415, of Prince’s Digest, and pages 38, 44 of the Acts of 1851-2, and pages 163, 167, 170, 177, 178, 182, 186, 191, 195, of the Acts of 1853-4.
In this charter, the expression, it will be remembered, is “ the amount of shares and the value thereof.”
Now, what I have to say is, that the principle that the amount of the property of the individual stockholders is to be found by finding the amount of the value of their stock, will not work through all of these charters. It will not work in those in which the expression is, “the amount of the shares”, or “the number of dollars issued on each share”, or “amount of the stock”, or “ amount equal to the proportion of stock”, *279or “number of shares”, or “to stock”, or “to the shares”. And those charters in which some of these is the expression, are the great majority. The principle will only work in those charters in which the expression is, “in proportion to the value”, and these are comparatively few; and even in one of these, that of the Bank of Columbus, it will not work throughout all the stockholders, but only through a part of them, leaving the other to be governed by some different principle.
The defect of the rule, in this respect, may be well illustrated by the case of the clause in the charter of the Bank of Columbus. By the clause in that charter, the common stockholders are to be liable in proportion to “ the amount of their shares”; the other stockholder, the State, in proportion “ to the amount of the value of the shares”. The amount or number of the shares of the State and the other stockholders, respectively, may be, say 100, the value $10,000. This principle will tell you that the State is liable for $10,000, but it can not tell you what the other stockholders are liable for. And yet, can there be a doubt of its having been the intention of the Legislature, that in such a case, the State and the other stockholders were, respectively, to be liable for precisely the same sum ?
This defect in the principle may still more clearly be shown, by a reference to those charters in which the words are, “in proportion to the number of dollars issued on each share”. In these charters, it is manifest that the principle utterly fails to give any solution. •
Now I think it was the intention of the Legislature, that in the case of each of these charters, the extent of individual liability of the stockholders, was to be ascertained in precisely the same way — by precisely the same rule. The principle of the majority of the Court cannot be true, if the intention were this.
So much for the present, as to what the context says.
As to the “ effects and consequences” of this principle, if it is allowed to be the true one, they have already been slightly adverted to, when it was said that for the ultimate redemption *280of all bills, over and above an amount equal to the value of the stock, this principle furnishes no security from .the individual property of the stockholders. ■ And can it be said that those bills, thus issued in excess, are just the bills that heed no such security — just the bills the Legislature wished to encourage the issue of ? '
And in connection with this topic I may ask, what was the “reason and spirit” which actuated the Legislature in putting provisions of this kind into bank charters ? Was it not to get the bills of the banks paid — if possible, paid by the banks themselves ; if not possible, by the banks, then by the stockholders ; at all events, to get the bills paid ? If this was the spirit and reason — if this was the end, and if this end was to be accomplished by first subjecting the property of the bank to the payment of the hills, and when that gave out, then by subjecting the property of the individual stockholders to their payment, is it to be presumed that the Legislature would subject, of that individual property, either more than enough to accomplish the object, or less than enough, or not rather just enough ? It is not to be presumed, therefore, that the amount of the individual property of the stockholders, which the Legislature intended so to subject, was an amount equal to the value of their shares, for this value, would in more, probably, than nine hundred and ninety-nine cases out of a thousand, be an amount which would be either greater or less than the amount of the bills to be redeemed by it.
These are my objections to the rule which the majority of the Court deduce from this eleventh section of this charter.
I will now state what I conceive to be the true rule to be deduced from that section, and why I so do.
I think the following propositions are true:
1. The quantity of property of all the stockholders which, is liable for the ultimate redemption of the bills of the bank, is a quantity just equal to the quantity of bills to be so redeemed.
2. This quantity of property is to consist of separate parcels, a parcel to be supplied by each stockholder.
3. Of these parcels, the quantity of any one is to be such *281that it shall bear to the aggregate quantity of all the parcels, the same proportion which the quantity of stock belonging to the stockholder to supply that parcel, bears to the aggregate quantity of the stock of all the stockholders.
4. Of the -aggregate quantity of these parcels, such a portion is to be advanced by all the stockholders, at any one time, as shall be sufficient to satisfy the demand upon that aggregate quantity, existing at that time; that is, as shall be sufficient to pay off the bank bill or bills, which may, at that time, be demanding ultimate payment.
5. Of this portion, thus to be advanced by all the stockholders, at any one time, the part to be advanced by any one stockholder, is to be such that it shall bear to the whole portion to be advanced by all, the same ratio which the parcel of that stockholder bears to the aggregate of the parcels .of all the stockholders.
6. And as this parcel bears to the aggregate of all the parcels the same proportion — the same proportion which the quantity of stock belonging to the stockholder owning the parcel,„ bears to the aggregate quantity of all the stock; therefore,
v 7. The part to be advanced at any one timo, by any one stockholder, is to be such that it shall bear to the part then to be advanced by allj i. e. to the amount of the bill cr bills then to be''paid, the same proportion which the stock of that stockholder bears to thb'l^tíale stock.
This result is the:.same, in effect, as that to which the Court below arrived: which was, that the bill-holder, in this case, had the right to recover of this stockholder, such a proportion or per cent, qf;his bills, as the stock owned by the stockholder-bore to the whole stock. It is the same, in effect, as that to which this bill-holder, himself, and his Counsel, Mr. Dougherty, first arrived. The suit in this case was originally framed so as to demand no more of the stockholder than what he would, according to this result, have to pay. And the declaration remained in this form for years, I believe. Recently, it was amended so as-to make it .conform to the rulo considered by *282tbe majority of this Court the right one. And in the course of the argument, one of the Counsel fox- the plaintiff stated that the idea of the amendment was not original with him — • that he got it from something which he read in a decision of this Court in some one of the bank cases. This is the result to which the other party, the stockholder’, arrived; I may therefore say, that this result of mine is one in which the parties on both sides, if left to themselves, as well as the Court below, would agi’ee with me. Have I not the light, therefore, to insist that this result expresses the natural and obvious meaning of the charter — that meaning, according to which, the charter is understood by all those who have an interest in it; and to say that at this day, to put another meaning upon the charter is to make the charter operate like an ex post facto Law?
Nevertheless, I will biiefly state some of the particular reasons, apart from this, of contemporaneous construction, which make me think the propositions true, on which this conclusion of mine depends.
1. The language of the charter is, that “the persons and property of the stockholders shall be pledged and held bound”' “ for the ultimate redemption of the bills or notes issued by said bank”, &e. By the words, “bills or notes issued”, I take for granted is meant all of the bills or notes lawfully issued. If so, then, the amount of the language is, that as much of' the property of the stockholders as shall be sufficient for the-ultimate redemption of all the bills thus issued, shall be bound for the ultimate redemption of all such bills. The language does not say that more than as much as this shall be bound; and as there can be no other x-eason than a positive command-' of law, why more should be bound, I say no more is bound.. Hence, I think my first proposition is true ; and that is the leading one. If it is true, the rule laid down by this Court cannot be true.
2. That the quantity of property so bound, is to consist of parcels of some sort, to be supplied by each stockholder, I be*283lieve nobody disputes. I assume, therefore, my second proposition to be true.
3. The language of the charter is, that “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”.
Taking my first and second propositions to be true, this language may be so varied as to read thus: “ The persons of all the stockholders, and so much of their property as shall be sufficient for the ultimate redemption of all the bills of the bank, shall be bound for that ultimate redemption, such property to consist of parcels; — such parcels to be supplied by each stockholder, in proportion to the amount of his shares and the value thereof.”
My third proposition, is that of the parcels of property to be supplied by each stockholder; the.quantity of any one parcel is to 'be such that the parcel shall bear to all the parcels taken in the aggregate, i. e. to the whole quantity of property to be supplied by all the stockholders, the same proportion which the quantity of stock belonging to the stockholder who is to supply that parcel, bears to the aggregate quantity of the stock belonging to all the stockholders. This proposition, I think I may safely say, is entirely consistent with the words of the section. It does not the least violence to any of those words. It .rejects none.
May I not go further, and safely say that this proposition expresses the natural and obvious meaning of the words ? Of the words, “in proportion to” what is the natural and obvious sense ? Is it not one which implies the existence of some proportion ? And is it not the essential characteristic of every proportion to consist of four things, of which the first shall bear to the second, the same relation which the third bears to the fourth? This is the foundation of the “Rule of Three,” the great rule in practical arithmetic. To make the words, “ in proportion to,” equivalent to the words, “equal to,” is, as it seems to me, to subject the words to some degree of violence.
And if any proportion is implied, the one which is it, there *284can, to my eyes, be no mistaking. The property to be supplied by any one stockholder, is to be such a part of that to be supplied by all the stockholders, as the stock of that stockholder is ■of the stock of all the stockholders. As I read the section over, this is the proportion which seems, of its own accord, to rise up out of it to my eyes.
And then this proportion works just as you would have it work. It always brings out the right result — the exact one which you seek for. There are, say, bills calling for ultimate redemption, to the extent of $10,000. Of course, to redeem them, property to the value of $10,000 is to be supplied by all the stockholders, taken in the lump. This term you know.
The amount of the stock of all — the amount of the stock of each — these terms you also know. The term which you wish to know is, what is the particular amount of this property, which each stockholder is 'to supply ? From the three known quantities, how easy it is to come to know that. As the amount of the shares and the value thereof belonging to all the stockholders, is to the amount and value of the shares belonging to all, so is the amount of property to be supplied by all, to the amount to be supplied by one.
And this same result, the proportion works out, in whatever sense you take the words, “ the amount of the shares and the value thereof” — whether you consider the proportion to be one, “to the amount (number) of the shares” and to “the value of the shares” amount and value taken separately, but both taken; or one to the amount of the shares added to the value of the shares; or one to the amount of the shares multiplied into the value of the shares. And it will make no difference whether you estimate the value of the shares to be $100 — $50—$10 —$1—each. The fourth term in each of the following proportions will be precisely the same quantity. As the amount and value, at any rate, of the whole stock is to the amount and value, at the same rate of the stock of A, so is the quantity of property to be supplied by all the stockholders to the quantity to bo supplied by A. As the amount of the whole stock is to the amount of the stock of A, so is the whole quantity of pro*285perty to be supplied by all the stockholders, to the quantity to be supplied by A. As the value, at any rate, of the whole stock is to the value, at the same rate, of the stock of A, so is the quantity to be supplied by all, to that to be supplied by A.
Using this proportion, therefore, you may use all the words of the section, and not have to reject any, as you have to do when you say the quantity of property to be contributed by any stockholder, is to be a quantity equal to the value of His shares; in which case, you have to reject the words, “ amount of the shares and”.
This proportion, not only thus unlocks this provision of this charter — it equally unlocks the similar provisions of all the other thirty charters in existence. Take the provision in some of those charters, which is most unlike the provision in this, viz that in which the quantity of property to be supplied by any stockholder, is to be “in proportion to the number of dollars issued upon each of the shares” held by him, and see. With such a provision as this, the rule of the majority cannot deal at all.
According to the words of this provision, the proportion will have to be as the number of dollars issued on each of the shares belonging to all tho stockholders, is to the number issued on each share belonging to stockholder A, so is the quantity of property to be supplied by all the stockholders to tho quantity to be supplied by A. But this proportion is precisely the same as this: as the quantity of stock of all the stockholders is to the quantity of the stock of A, so is the quantity of property to be supplied by all to the quantity to be supplied by A; for the number of dollars issued upon each of all the shares is to all the shares as the number issued upon each of A’s shares is to all of A’s shares.
This third proposition, then, in connection with the first and second, unlocks all of these provisions in the thirty-one charters, and shows the inside of each provision to present precisely tho same face — a face of which the leading feature is, that the •quantity of property to be furnished by the whole lot of stockholders, is to bo a quantity just sufficient to redeem all the *286bills, no odds how many they may be, needing to be redeemed, ■and of which the next most important feature is, that of this aggregate quantity of property thus to be supplied by all the ■stockholders — the part to be supplied by any one is to be to the whole quantity as his stock is to the whole stock.
Is not this third proposition then true ? I think it is.
The other propositions, the fourth, fifth, sixth and seventh, follow from these three.
The whole amount of property to be advanced by all of the stockholders at any one time, is obviously to be no more than shall be needed at that time; no more than shall be sufficient to redeem the bill or bills then demanding payment. Admit that there may be other bills outstanding, yet they may never be presented for payment, and so may never require any property to be advanced on their account. And if presented afterwards, they will, equally with those presented then, be within the rule and -be entitled to call for an advance from the stockholders, sufficient for the payment of them.
And so it is equally obvious that of this whole amount, thus to be advanced by all the stockholders at any one time, the part to be advanced by any one stockholder, at that time, is to be to the -whole so to be advanced by all, as his stock is to the stock of all. He is to pay his part of every bill, as it comes forward for payment, and the other stockholders are to pay theirs. Thus the whole bill will be paid — thus all the bills to be paid will be paid. And this is the end the Legislature had in view.
Will this interpretation of the charter work badly in practice ? I think not — but if it did, it being the one which to my mind so clearly results from the words' and the context of the charter, I should, myself, have to stick to it. When the words and the context say one thing, and effects and consequences, (the understanding of “learned” Courts, or indeed aught else) say another, a Judge has to go by what the words and the context say. Hence, although a few decisions of other States wore cited in the argument of this case, I have laid them entirely aside, as improper to influence my opinion. Upon a *287question as to what is the meaning of an Act of the Legislature of Georgia, a decision from another jurisdiction can, at best,, be only irrelevant — impertinent; and this, even when after a resort to the words and context, there may remain some doubt as to what is the meaning. Of the cases thus cited, I took note of two, one in Wendell’s Rep. 24 vol. 478; the other in 10 Metchalf’s Rep. 526. There may have been some others.
But the practical effect of this interpretation will not be bad —it will be good. The rule it supplies will work easily, and will finish its work as it goes. Is there a bill to be redeemed ? Let it present itself to any stockholder and say, “ sir as the quantity of your stock is to the quantity of all the stock, so is-what you have to pay me on this bill to what the other stockholders have to pay me — therefore, pay it to me.” In a minute, the proportional quantity is found, and the stockholder has nothing to do but to pay it. Does he refuse ? if so, on what ground ? that he does not like the rule — does not understand the rule ? Such do not appear to have been the objections in this case. The stockholder, in this case, understood the rule — it was the one he insisted upon. But suppose the stockholder puts his objection to paying, on other grounds, as for example, that there is nothing due by reason of the bills being void, (say) because issued without authority, or extinguished, or barred by the Statute of Limitations, is his refusal to pay to be set down as evidence that this rule works badly ?
Let there be no obstacle to payment but this rule itself, and payment will go on as fast as it does in any case where payment has to be got out of different debtors. In every such case, it is necessary that creditor and debtor shall have a meeting — . that the debt to be paid shall be presented for payment. So the bill-holder will, in like manner, have to be at the trouble to, go round to the stockholders and present his bill to each. And each will be, at least, as likely to pay as any other debtors are— for the costs of suit would become a terrible penalty to such as might refuse to pay.
And then, payment thus made to the bill-holder, would, at one blow, settle all rights. The bill-holder will have got only *288what was his due. He will have got nothing as to which another bill-holder may say to him, divide with me. And the Stockholder will have paid only what he owed. He will have paid no more than his share, and will therefore be in no condition to say to the other stockholders, contribute to me. Justice, according to law, will have been completely done. The other rule, which allows any bill-holder to collect the whole of each of his bills out of any stockholder whose stock happens to be equal in value to the amount of the bills, is but the beginning of justice. It puts the bill-holder in a condition to be called upon by all the other bill-holders, for an apportionment of his collection among all; and thus to be left, in reality, no better off than if he had at first only taken from the stockholder such a proportion of each of his bills as that stockholder’s stock bore to the whole stock. It puts the stockholder in a condition to be allowed to call on all the other stockholders, to contribute to him the part of the bills, over and above his share, which he has paid. Suppose some of the stockholders to be insolvent, and the solvent ones not liable for enough to redeem all the bills, and this rule set to work to adjust rights, generally, the rights of all concerned ? That the rule would give rise to more litigation than it would settle, seems to me apparent — litigation of the most tedious, expensive and difficult sort • — litigation between bill-holder and stockholder, bill-holder and bill-holder, stockholder and stockholder. And all, at last, when things should be worked out to their final results, only to give to each bill-holder his pro rata share of each stockholder’s individual property. In medicine, some remedies, it is said, put into the system three diseases for one they take out; but ought this to be the characteristic of any remedy in law ?
Again : this interpretation of mine makes the security for the ultimate redemption of the bills of the bank, expand and contract with the bills to be secured. No odds how much these bills may exceed the amount or value of the stock, so they be bills lawfully issued, this interpretation makes the security extend to every bill. For the ultimate redemption of every such bill, it makes the property of the stockholders liable. The rule *289of the majority makes that property liable for the redemption of bills to an amount equal to the value of the capital stock, and for none beyond that amount. It is true that that rule increases this security as much as possible, by arbitrarily counting the value of .the stock at $100 a share. But to do this, it has, as I conceive, to put a forced meaning on the word value, and even then, the result is a security not sufficient to cover cases contemplated by the charter — those' cases in which the amount of bills to be redeemed, exceeds the value of the stock, even when the stock is rated at $100 a share.
This interpretation presents no opportunities to the stockholder, to prefer one bill-holder to another — gives him no chance to discharge his liability, by taking up bills at their depreciated value — offers him no temptation, therefore, to use means to depreciate the value of the ■ bills; in all which respects, also, it is in contrast with the rule of the majority of the Court.
And these are my reasons for thinking this interpretation to be the true one.
I had, therefore, to agree with the Court below, and to disagree with this Court.