dissenting.
On one of the points common to most of these cases, I dissent from tho judgment of the Court. That point is as to the nature and extent of the liability of the State, as a stockholder, to tho bill holders.
The part of the charter which governs as to the point, is as follows:
“ Sec. XIII. The persons and property of stockholders in said bank, shall be pledged and bound in proportion to the amount of the value of shares that each individual or company may subscribe for or hold in said bank, for tho ultimate redemption of the bills or notes issued by and from said bank, in the same manner as in common commercial cases or simple actions of debt; and that tho State be pledged for the ultimate redemption of the bills or notes of said bank, in proportion to tho amount of the value of shares that shall or may be subscribed for and held by said State.”
The meaning of this section of the charter, in the opinion of a majority of the Court, is, that each stockholder is liable for the ultimate redemption of such a part of the bills to be ultimately redeemed, as shall boar to all tho bills to be so redeemed, the same proportion which tho value of his stock shall bear to the value of the stock of all the stockholders; and consequently, that in redeeming his part of tho bills to be redeemed, any stockholder may, at his option, select for redemption the bills held by any one bill holder in preference to those held by any other.
Now this, I think, is, in part, the moaning of the section, and, in part, not. So much of it as indicates what of each stockholder’s property is the quantity bound for the redemption of bills, is, I think, a part of the true meaning. So much of it as would make it lawful for that quantity of each stockholder’s property to be applied to the redemption of some bills in preference to the redemption of others, is, I think, no part of the true meaning.
*116The meaning of the section, in my opinion, is this:
The persons and property of any stockholder, are pledged and bound for the ultimate redemption of such a part of any bill as shall bear to the whole of that bill, the same proportion which the value of that stockholder’s stock bears to the value of the whole stock. In my opinion, the meaning is .such, that every bill holder has for every bill held by him, the person “ and property” of every stockholder, to this extent, “pledged and bound.”
This is the opinion which I held in a case lately decided by this Court, arising under a provision similar to this, but contained in another charter,, although in so holding I had also to differ from the majority of the Court. That was the case of Lane vs. Harris, (16 Ga. Rep. 248.) I must say, that after carefully studying the opinions of the majority of the Court in that case, I am but the more confirmed in my own dissentient opinion.
The objections entertained by the majority of the Court to my notion of what is the true meaning of a provision of the kind under consideration, may I think, be reduced to two : 1. That my notion is practically worthless; and 2. That it is not so accordant with the maxim, vigilantibus non dormientibujura subveníant as is their notion of what is the true meaning of such a provision.
Now as to the first of these objections, suppose it were left to the creditors in these cases to say whether my notion is a ' practically worthless one or not ?
But I cannot admit that it would be practically worthless in any case. Say the case is such that there are many small 'bills to be redeemed, and these in many different hands, and •that the number of stockholders is great — what is the result? •Only this : each bill holder has to collect each of his bills in small parts from, each stockholder. Now is it impracticable -to collect a debt because it is small ? No. The difficulty of .collection from stockholders in such eases, is not in the rule. It is in this: they set up other defences. ' But that they may do whatever the rule.
*117I feel confident, that I may safely say this: that if a stockJiolder has no defence of any sort against a bill, he will al"\vays gladly pay his aliquot part of it on presentation, knowing, as he will, that if he docs not pay it then, he will have to pay it inevitably at the end of a three month’s suit in a Justice’s Court; and in addition to it, the costs of the suit, which may amount to many times as much as that aliquot part of the bill.
Neither can I admit that the rule which the majority of the Court think the one to bo deduced from the charter, is more accordant with the maxim “ vigilantibus,” ¿-e. than is the rule which I think the one to be so deduced. Indeed, it seems to me to be the merest illusion, to suppose that the rule of the majority will bo at all promotive of the ends of that maxim. Eor how will that rule work ? Take the case above supposed, of a great number of bills, in a great number of hands, pursuing a great number of stockholders. Add to the case, what will probably be true in every real case-, viz : that a good part of the stockholders are insolvent. Now, in such a case, how will the rule of the majority work with respect to the “ vigilant” creditor — the “ swift” bill holder ? He is the first to present his bill to a, solvent stockholder. Ho demands payment of all that the face of the bill calls for. The stockholder replies, you demand too much. Half of the stockholders arc insolvent. I can buy the bills in any quantity at fifty cents in the dollar, but I won’t give that much, for they will be lower still.
The “ vigilant” bill holder has to sue the stockholder on the .bill. While his suit is in progress, all the other bill holders find time to demand of the stockholder payment of their bills. Ho tells them the same story he had told the first applicant. They become alarmed. The “ vigilant” bill holder is ahead of them with his suit. The stockholder, they know, may at his pleasure, prefer one or more of them to the others. Each bill holder at length opens his eyes to the fact that he is at the mercy of the stockholders. ; He makes up his mind to, take what he can get. Then commences-among the bill'hold*118ers, a competition for tbe grace and favor of tbe solvent stockholder. The most needy bill holder offers to take the lowest price for his bills. He is chosen. The rest are rejected. The stockholder takes the bills ho has thus redeemed at a few ' cents in the dollar, and pleads them against the pending suit of the “vigilant” bill holder.. The plea is held good. The suit fails, and the “vigilant” bill holder has the costs to pay.
This is the fate to which the rule of the majority must lead the “ vigilant” bill holder — the bill holder “swift” to avail himself of all his legal rights.- Am I wrong, then, in saying that the rule, as a promoter of the maxim, “ vigilantibus,” ¿-c. is a mere illusion ? Rather, as it seems to me, is the rule a means of putting the bill holders completely in the power of the stockholders.
If, however, the rule wore better calculated to promote the ends of the maxim, than is the rule which I consider the true one, still I should bo constrained, myself, to adhere to the latter rule; and that for reasons which all, perhaps, fall under two heads: 1. Equality is equity. 2. The words of a Statute must govern, if they are free from ambiguity.
[1.] The rule which I think the true one, treats all bill holders as equally meritorious. It allows none to be deprived, by the rest, of his proportionate part of the property of the stockholders liable to be applied to the redemption of the bills. And in this, it is in strict harmony with almost all the other parts of the law applicable to cases analogous to this case. In proof of this, I merely refer to what is to be found on the subject in my aforesaid opinion in Lane vs. Harris. In short, the rule does homage to the maxim, equality is equity.
[2.] But more and better. The rule, as I think, does homage to the naked language of the law — to the plain words of the charter.
This, as we have seen, is the language of the charter:— “The persons and property of stockholders, shall be pledged and bound,” &c. “for the ultimate redemption of the bills or notes issued by and from said bank,” &c. Now, “ the bills or *119notes,” is an expression that cannot but mean all the bills or notos. That being so then, the property of the stockholders is pledged and bound for the redemption of all the bills or notes. This is what the words plainly say. How, then, can this property, thus pledged and bound to the payment of all the bills, be diverted from its purpose of securing the payment of all, and applied to the payment of only a part ? I see not how it can be done in the face of these words. Suppose that all the stockholders had made to all the bill holders a mortgage or some other security, couched in the terms of this charter, could, in that case, any one bill holder, let him exercise what “vigilance” or diligence he might, convert that mortgage wholly to his own use ? Could any one bill holder, by being the first to sue, deprive the other bill holders of their legal rights under the mortgage? Is there any one who will say so ? But in what does that case differ from the real case ? It seems to me, that it .does not djffer from the real case in any essential particular.
It follows, that in my opinion, the State, as it owns one half of the stock, ought to pay fifty per cent, of each outstanding bill.