dissenting.
Tn this case, a number of decisions were made by this 'Court. In all of them, except three, I concur. Those three are — First, as to the nature and extent of the liability which the eleventh section of the charter of the Planters’ & Mechanics’ Bank of Columbus imposes on the stockholders in that bank. Secondly, as to the effect, if any, which the trustee’s wasting the property assigned to him by the bank, to be applied to the payment of the debts of the bank, had on the liaability imposed by the section aforesaid, on the stockholders in the bank. Thirdly, as to the effect, if any, which the judgment of forfeiture rendered against the bank, had on the said liability imposed on the stockholders.
The reasons for my dissent from the first of these three decisions, have been pretty fully expressed in other cases, which have been before this Court. Referring to what I have said in Adkins vs. Thornton, a case argued at the same time with this, I dismiss the point as to the first of the three decisions.
My dissent from the other two of the three decisions, I cannot dispose of so summarily. I must give my reasons for it.
What, then, was the first of those two decisions ?
On the 26th of May, 1843, the Planters’ & Mechanics’ Bank of Columbus, by deed, assigned to Robert B. Alexander, “ all and singular the property, goods, effects, debts, •dues, claims and all the other personal estate belonging to,” .said banks, “ upon trustthat he, as soon as he conveniently •could, should make sale and dispose of “ so much thereof, .and such part thereof, as” was, “in its nature saleable, for the best price, in money, that” could “be reasonably had or obtained for the sameand that he should “ collect and get insomuch thereof as” was “not, in its nature, saleable;” and that he should, in the first place, pay himself his expenses incurred in such sales and collections;, as well as pay all other expenses that might be incident to “the execution of *366the trust” in the assignment expressed; and then that he should “ apply the residue of such trust moneys to the payment and satisfaction of the several sums of money due and owing by said Planters’ & Mechanics’ Bank of Columbus, to all the creditors of said bank, pari passu, and without any preference or priority of payment, other than such as” might “be prescribed by law.”
The assignment contained no words of trust, in favor of the stockholders of the bank.
The assignment was made, shortly before the time at which judgment of forfeiture was rendered against the bank.
In the declaration, it is alleged that Adkins, the plaintiff therein, on the 16th of April, 1847, sued “Robert B. Alexander, assignee” of the said bank, upon the same notes on which that declaration against Robinson as stockholder, was founded; and that on the 10th day of Peb’y, 1848, he recovered “ of said bank” the amount of the notes.
On the trial, Robinson proposed “ to show assets remaining in the hands of Ragan,” as succeeding assignee to Alexander; and also, proposed to show the amount of assets turned over to Alexander, under the assignment, in order to make it appear that a sufficiency of assets had been turned over to Alexander, to redeem the liabilities of the bank ; and also proposed to show acceptance of the assignment by Adkins. As evidence of such acceptance, Robinson insisted that he had the right to rely on the terms and intent of the-Acts passed by the Legislatures of 1842 and 1848, in reference to banks in a state of suspension; and on the fact that Adkins had, as aforesaid, sued Alexander as assignee.
The Court held that Robinson could not establish his point, unless he could show “an actual assent by the creditor — an implied assent not being sufficient.” And to that decision, the defendant excepted.
-The defendant also offered to prove, that Alexander had “ wasted, misapplied and squandered the assets” turned over to him as assignee. This the Court also refused to let him do; .but on what ground the refusal, was put, the bill of ex*367ceptions does not state. And to that-decision, the defendant excepted!
Were these decisions right? That is the precise question for my consideration.
The reason which governed the Court in the making of the latter of the two decisions, was probably the same as that which governed it in the making of the former of the two, viz: the notion that nothing short of “ actual assent by the creditor,” to the assignment, would be sufficient to make him a party to the assignment.
This is a narrow ground for the decision to rest on; and in the argument before this Court, the decision was placed on a broader ground, viz : that a waste of the assets by the assignee would be no defence to the stockholders, even if the bill-holders properly assented to the assignment. I shall, therefore, have to inquire into the validity of both grounds.
Is it true, then, that the assent of a creditor to the assign-. ment, to be good, had to be “ actual” ; is it true that “implied assent” by a creditor, would not have been sufficient? I answer no. If the acceptance of a deed can be implied from facts, the acceptance is as good as it would be. if it were express. Surely there can be no doubt of this.
And if an acceptance by acts will be sufficient, then, on a question of acceptance or no acceptance, any acts going to show acceptance, will of course be admissible as evidence.
Adkins brought suit on his bills against the assignee. This was an act from which it Avas certainly possible that the Jury might infer that he accepted the assignment.
So, the Act of 1843 declared the assignment to be valid. The assignment was made for the benefit of the creditors. A Jury might, therefore, conclude that the Act was procured by the creditors. But if the Act was procured by the creditors, then the Act is evidence that the creditors assented to the assignment.
Hence, I think that the ground on which the Court put its decision, Ayas not a sufficient one. I proceed to the other ground.
*368If the trustee had wasted the assets, would that have been-a. defence to the stockholder, Robinson, against the bill-holder, Adkins, to the extent of the wasted assets ?
In treating this question, I shall first endeavor to find' what would have been the answer to it if no judgment of for? feiture had ever been rendered against the bank. Secondly, I shall try to find what is the answer to it, considering that a judgment of forfeiture has been rendered against the bank.
Supposing, then, that no judgment of forfeiture had ever been rendered against the bank, would a waste of the assets-by the assignee have, to the extent of the wasted assets, constituted a defence to the stockholder, Robinson, against the-bill-holder, Adkins ?
Certainly not, if the assignment was itself invalid. And it was argued that the assignment was invalid.
The assignment contained no stipulation for the benefit of the stockholders in the bank. Its stipulations were for the benefit of the creditors of the bank.
In the Penal Code it is declared that all assignments “made by any bank in contemplation of insolvency, except for the benefit of all the creditors and stockholders, shall, unless made to an innocent purchaser for a valuable consideration,, and without knowledge or notice of the condition of said' bank, be fraudulent and void.” (Cobb Dig. 797.)
But soon alter the making of the assignment, the Legislature, by Statute, declared that the assignment should “ be - taken, held and considered valid for. all purposes, both in Law- and in Equity.” (Act of 1843, Cobb Dig. 121.)
If this Statute was passed with the assent of the creditors. and that of the bank, I suppose it will be admitted by all that the Statute was valid.
But the assignment was made for the benefit of the creditors, and the Statute was passed for the benefit of the assignment. It is to be presumed, therefore, at least until the-contrary be shown, that the Statute was passed with the assent of the creditors.
So, as the bank made the assignment, it is to be presumed-*369that the bank wished the assignment to be operative. The-object of the Statute was to make the assignment operative-It is to be presumed, therefore, that the Statute was passed, with the assent of the bank.
I think, therefore, that notwithstanding the declaration aforesaid, contained in the Penal Code, the assignment was. valid.
Assuming the assignment to be valid, what relation to it do-the stockholders bear ?
The assignment was made to secure the bills and other-debts due from the bank.
Ey the eleventh section of the charter of the bank, it is declared that the stockholders in the bank, shall, according to a stated rule; be liable for the “ ultimate redemption” of the bills of the bank. This makes the relation which the stockholders bear to the bills that of sureties. No liability that is-no more than an ultimate one can be the liability of a principal. And every liability to pay a debt must be either that of" a principal or that of a surety. There is no third sort of liability.
And (not to dwell on this point) this Court has repeatedly said that the stockholders under this clause are only sureties for the bills of the bank. (11 Ga. 517 ; 8 Ga. 478.)
This, then, is the relation which the stockholders bear to the assignment. They arc sureties for the bills, to secure .which the assignment was, in part, made.
Assuming, then, the stockholders to be but sureties for the payment of the bills, the question becomes this: Does a trustee’s waste of property, assigned to him for the payment of debts, discharge the sureties to the debts, to the extent of the' property wasted ?
I say it does.
If property which is conveyed to secure the payment of a debt, is conveyed directly to the creditor himself, and he .wastes it, the surety is discharged to the extent of the value of the property. . .
*370This is a proposition which I believe nobody disputes. (Capel vs. Butler, 2 Sim. & Stu. 462; Law vs. East India Co. 4 Ves. 824; Maynew vs. Crickett, 2 Swans. 185 Theobald on Prin. and Sur. 143; Burge on Sur. 206.)
Indeed, in such a case, not merely is the surety discharged,. but the principal also. (Williams vs. Price, 1 Sim. & Stu. 586; ex parte Mure, 2 Cox, 65.)
But if the property conveyed to secure the debt be not' conveyed directly to the creditor himself, but be conveyed to ■ ft trustee for the creditor, and the trustee wastes the property, is the surety to the debt, in that case also, discharged to the-extent of the value of the property ?
And I say yes. I say .that there is no material difference-'between the two cases; and if there is none, then whatever' is law in the one case, must be law in the other.
To show, therefore, that there'is no difference between the two cases, will now be my endeavor.
1. In the case in which there is a trustee, the creditor has, ■ in reality, as much interest in the property, and as much power over it, as the creditor has in the case in which there-is no trustee. In the former case, the creditor may compel the trustee to do with the property whatever, in the latter,. the creditor can himself do with the property.
In the one case, the creditor has as much agency in the work of making the assignment, as the creditor has in the other. In neither is the assignment made until he accepts it.
In the one case may the creditor disregard the property in the hands of the trustee and compel the surety to pay up the-debt; in the other, the creditor may equally disregard the-property in his own hands, and compel the surety to pay up the debt.
But if, in these respects, there is no difference between the-two cases, then, so far as the creditor is concerned, there is-no difference between them in any material respect; for these-are all the respects that are material.
2. And there is none, so far as the surety is concerned.
*371The surety has not, in the one case, any more power over* ■the property, or any more interest in it, than the surety has in the other. In the one case, does the surety have, or not have, a resulting trust in such of the property, if any, as may ■remain after the payment of the' debts; in the other, correspondingly, the surety has, or has not, a resulting trust in ■such of the property, if any, as may remain in that ease7 after the payment of the debts.
In the one case, has the surety the right to pay up the debts and take the place occupied by the creditor, with respect to the property ; in the other, the surety has the same right.
In the one case, the surety has no more agency in procuring the assignment to be made, than in the other, the surety has in procuring the assignment to be made in that case.
In the one case, the surety has no more power to prevent ■the debtor and the creditor from agreeing upon the assignment, than in the other, the surety has to prevent the debtor -and creditors from agreeing upon the assignment.
In each case, the effect of the creditor’s accepting the assignment, is equally to destroy the surety’s chances for- procuring any assignment to himself for his indemnity.
But if, in these respects, there is no difference between the two cases, then there is no difference between them, so far as the surety is concerned, in any material respect; for these •are all the respects which are material.
There is, then, no difference between the two cases, either as it regards the creditor, or as it regards the surety ; and if so, what is law for the one must be law for the other. But for the one, that in which there is no trustee, what is the.law is, that if the property be wasted, the surety is discharged; and therefore, for the other, that must, in like manner, be the law.
And with this, I might rest the point in hand; but as the whole argument of the defendant in error seemed to me to be placed on the assumption, that the stockholders would, under the assignment, have a resulting trust in such of the assigned *372■..property as might remain after the payment of the debts out .•of the property, if any of it should then remain, it will be not ..amiss that I give some further notice to that aspect of the case.
I maintain, then, first, that in neither the case in which there is no trustee, nor in that in which there is a trustee, < does or can any trust in,the possible balance of the assigned property result to the surety. Secondly, that if such a trust • did or could result to the surety, that would not be sufficient ■ to make him answerable to the creditor for a waste of the property by the assignee.
' 1. Does or can a trust in such possible balance, result to the surety ? I say it is most manifest that it cannot. The • trust in such possible balance, must result to the principal— the person from whom such balance with the rest of the property, came. As soon as the debt is paid, the property remaining, if any, becomes freed of all claim on it by the creditor, and it, as a matter of course, goes back to the principal ■ debtor — the person who assigned it — the person to whom it ¿■belongs. The surety, by that time, will have been set free; ■and so, he will have lost every vestige of a claim of any sort, as well against the principal or against the principal’s property.
Suppose the bank had escaped forfeiture, and had paid up ■ the debts, to secure which it made the assignment, would not the assigned property have gone back to the bank? Would . it have gone to the stockholders ? Who will say so ? The assignment, it is to be remembered, contained no stipulation for the benefit of stockholders. (Hill on Trustees, 354, 389, 118.)
But if it were true that in both of the cases, that in which there is a trustee, and that in which there is none, a trust in the possible balance of the property would result to the surety, that would be no reason why the surety would not, in the cases respectively, be discharged on a waste of the property assigned.
For it is, I believe, a general principle, that if property which is held in trust for the payment of debts, is wasted by *373tbo trustee, the loss, if the trustee cannot repair it, falls on the creditor. It never falls on one who has no more interest in the property than the right, by implication of law, to such part of the property as may remain, if possibly any part shall remain, after the debts shall have been paid out of the property.
If land is, by will, conveyed to trustees, for the payment of debts, and they raise from the rents money enough to pay the debts, the land becomes discharged of the debts, and the heir takes it unincumbered, although the trustees may have converted the money to their own use, instead of applying it to the payment of the debts. (1 Salk. 153 ; 1 Peere-Williams, 518.)
Yet, in such a case, a trust in the remainder of the property, if any, would result to the heir.
So, when property is conveyed to a trustee, that he may ■sell it and raise money for the payment of debts, the purchaser is not, in general, bound to see to the application of the purchase money. If the trustee misapplies or wastes the money, the loss falls, not on the purchaser, but on the creditor. And yet, in such a case, the purchaser, if the -property were re-sold for the payment of the bills, and any of it should remain after their payment, would have a resulting trust in .that remainder.
So, as we have seen, if property be conveyed by a debtor directly to his creditor, to secure the payment of a debt, and the creditor wastes the property, the debtor is discharged. And yet, in such a case, the debtor would have a resulting trust in any of the property that might remain, after the payment of the debt.
Am I not, therefore, entitled to say, that in neither of the two cases is there or can there be any resulting-trust in the .surety , and that if there was or could be, that would not render the surety liable for a wraste of the assigned-property ? I think I am.
If so, the argument founded on. the assumption that there is such a resulting trust in the surety is doubly worthless.
*374My conclusion then is, that in the case in which there is a trustee, waste as much discharges the surety as it does in the ■case in which there is no trustee; and that, as in the latter case, the surety is, beyond question, discharged, so, in the former, the surety must also be discharged.
It follows, if I am right, that as the stockholders were but sureties, a waste of the assigned property by the assignee, was a discharge of them to the extent of the wasted property.
This, then, is the conclusion to which I come, considering the case as unaffected by the judgment of forfeiture; that is, •considering the case as standing upon the assignment, and the law contemporary with the assignment.
But as a judgment of forfeiture was rendered against the bank, it becomes necessary to inquire what effect that judgment has on the question:
1. One effect of the judgment of forfeiture was, in my •opinion, to extinguish all the debts due to and from the bank. My reasons for this opinion I shall give when I come to treat •of the point with respect to the judgment of forfeiture. If I am right in this opinion, it follows that the effect of the judgment was, to discharge the stockholders from any liability they might be under to pay the bills of the bank.
2. But granting, for the present, that extinguishment of the debts of the bank, was not one of the effects of the judgment of forfeiture, an undoubted effect of that judgment was, to bring into operation the Act of 1842, respecting banks in a state of suspension, and to induce the Legislature to pass the Act of 1843, amendatory of the Act of 1842. (Cobb's Dig. 118, 120.)
Did the coming into operation of these two Acts affect the conclusions just stated, derived from the law existing previously to the time when those Acts came into operation ?
I say no.
The first of the two Acts was, by its terms and nature, not to go into effect until after there should be a judgment of forfeiture. The assignment was not made until after there *375was the judgment of forfeiture. The Act, therefore, could not take effect until after the making of the assignment. The second Act was not passed until after the making of the assignment. Neither Act, therefore, had any operation until after the making of the assignment.
Now it is to be presumed that the Legislature does not intend its Acts to have a retroactive operation, unless a contrary intention is expressed, or appears by necessary implication.
With respect to the Act of 1842, an intention that it should have a retroactive operation on the assignment, is not expressed in it, nor is any thing expressed in it from which such an intention could be implied. How could it be, as the Act. was passed before the assignment was made, or, as far as appears, was in contemplation.
And as to the Act of 1843, the same thing is true. The-object, at least a great object, of that Act was, to set up and make effectual the assignment. The first section of the Act declares, that this assignment and two other similar ones, shall be “ valid for all purposes, both in Law and Equity.” This is the sole office of the section. The office of the second section is to declare, “ that the assignees shall have power and authority to proceed forthwith to the settlement, collection» and payment of the debts due to and from said banking institutions, according to the provisions of the said several deeds-of assignment.”
If it was the intention of the Legislature to make validthe assignment, it of course could not have been its intention to affect the rights and risks created by the assignment.
I say, therefore, that neither of these Acts touched the rights and risks created by the assignment. But if either or both did, then I suppose it will be contended by none that the effect was more than this : to give to. the stocJcholders a resulting trust in such of the assigned property as should remain, if any should remain, after the payment of the debts, i. c. to put the stockholders with respect to this possible, balance, in the place of the bank itself.
*376Rut an-effect of this sort would not be sufficient to render the stockholders liable to the creditors (the bill-holders) to¡>. answer for a waste of the assigned property, committed by the assignee.
That one may have a mere resulting trust in the possible balance of property which has been assigned for the payment of debts, 'whether assigned to the creditors directly or to » trustee for the creditors, does not render him liable to the creditors to make good such of the property, if any, as may have been wasted. The loss, in such case, falls upon the creditors. This we have seen.
The rendition of the judgment of forfeiture with the change of the law consequent upon it, have, then,- no effect upon the conclusion to which we came, from the old law. That conclusion was, that when a debtor assigns to a trustee property for the payment of his debts, and the trustee wastes the property, the debtor’s sureties are not liable to the creditors to make good the loss.
The stockholders, we have seen, were but sureties for the bank — the debtor. Therefore they are not liable to the creditors, the bill-holders, to repair any loss occasioned by the assignee’s waste of the property.
I come, then, to the third and last of the points on which I dissent, and that point is as to the effect which the judgment of forfeiture, rendered against the bank, had on the liability the stockholders were under for the ultimate redemption of the bills of the bank.
The Court was requested by the plaintiff in error to charge the Jury as follows: “ That if the Jury shall believe, from the evidence, that the charter of the P. & M. Bank of Columbus was, on the 13th day of June, 1843, absolutely and unconditionally forfeited, without reservation of the rights of' plaintiff," and without retaining and continuing the liabilities upon the defendant, then all the debts due to and from said bank became extinguished; and if they shall further believe, that the bills sued on by the plaintiff are debts duo from said bank on the day and time of said absolute forfeiture, then said *377debts were extinguished, and the defendant cannot be made-liable for an extinguished debt.”
The Court refused to charge this, and the plaintiff in error.’ excepted to the refusal.
In this refusal was the Court right ? That is the question.
A majority of this 'Court answer yes. I answer no; and J will now state why I do so.
The rule of the CommonLawthatdefinestheconsequences of the dissolution of a corporation, is as follows : “ At Common Law, upon the civil death of a corporation, all its real estate, remaining unsold, reverts to the grantor and his heirs ; for the reversion, in such an event, is a condition annexed by the law, inasmuch as the cause of the grant has failed. The personal estate, in England, vests in the King; and in our own country, in the people or State, as succeeding to this right and prerogative of the Crown. The debts due and from ih are totally extinguished.” (Ang. & Ames Cor. 667.)
That this is the Common Law rule that defines the consequences of the dissolution of a corporation, nobody, as far as I know, disputes; that it is that rule, both of my associates, I believe, admit; that it is that rule, every author, or Judge, or Court, that has attempted to state what the rule is, has,» as far as I know or believe, declared.
Therefore, that this is the Common Law rule, I assume' with confidence.
If this be the rule, it is clear that the debt due to the defendant in error, from the bank, was extinguished by tlia; judgment of forfeiture rendered against the bank, unless, there is something to take the debt out of the operation of' the rule.
Is there anything to do that ?
In the opinion of Judges Lumpkin and McDonald, there-is.
Judge McDonald thinks, that inasmuch as the judgment of forfeiture was not executed by an execution of some sort, the judgment did not have the effect to dissolve the corpora*378tion. If, in liis opinion, the judgment had had that effect,, he, as I understand him, would say with me, that this debt-fell within the rule, and was extinguished.
The solo question, then, between him and me is, whether the judgmont of forfeiture, of itself, dissovled the corporation, or whether an execution had to be issued on that judgment, and had to be executed, before the judgment couldl produce that effect.
The judgment is not set out in the record. It is to be inferred, however, from the terms of the request to charge, that the judgment was one which declared the charter of the-corporation to be “ absolutely and unconditionally forfeited,, without reservation of the rights of plaintiff, and without retaining and continuing the liabilities upon the defendant."’ I suppose the judgmont was, in substance, this: that the" liberties, privileges and franchises of the bank, to-wit: those-of being a body politic and corporate, be seized into the-hands of the State, and that the bank do not, in any manner,, intermeddle, hayo, use, enjoy or exercise, any of-the liberties, franchises or privileges of a bodj1- politic or corporate,, but that the bank be absolutely forejudged and excluded from-, holding, using or exercising ' any of the privileges, franchises- or liberties of a body politic or corporate. (See 11 Ga. R. 463.)
If this was the judgmont, then I say that the judgment is-such as executes itself, or must go unexecuted. -It certainly •is a judgment which it is simply impossible for any Sheriff to> execute, let the command to him, in respect to it, be what it may. It is not a possible thing for a Sheriff to seize a liberty, a privilege, affranchise, or to prevent a corporation from-using a- liberty, a privilege -or a franchise, or absolutely to' forejudge and exclude a corporation from holding or using a liberty, a privilege or a franchise. It is no more possible-for a Sheriff to do such a thing, than it- is for him to capture an idea-. And le.c non cogit ad vmpossibilici.
Rut the judgment is such as executes itself. This must be so from the nature and the terms of the judgment. And it *379'"is so according to authority. In-the King vs. Amory, there was not only no execution, but there was no final judgment -of ouster. The only judgment was one, that the liberties, &c. ¡should ho seized into the hands of the King until the Court -should farther order. And yet; the King’s Bench held, that this judgment dissolved tire corporation. (2 D. &.E. 519, 565; and see 2 Just. 282.)
But if this judgment is such as executes itself, then it, in ¡terms, dissolves the corporation; for it says, (assuming that I am right as to its terms,) that the liberties, privileges and franchises of the bank, to-wit: those of being a body politio -and corporate, be seized into the hands of the State.
It is true, that in Nevitt vs. Bank of Port Gibson, this ■language is used: “It is the better doctrine, that it is not •the mere judgment of ouster or of forfeiture, which works dissolution, any more than sentence of death executes a criminal. There must be execution executed.” (6 Smedes & Mars. 568.)
But for this position, no Common Law authority is referred •to. Nothing is referred to except some very late decisions in •'State Courts, and Angelí f Ames on Corporations. And what is said in this latter work, is said with an “it seems,” ■and is made to rest on ono of these very decisions. (Ang. & Ames Cor. 644.) What the decisions, themselves, rest on, is not stated. I feel sure that they cannot rest on the King vs. Amwry, or any Common Law authority. ■ And if that be •so, they cannot count as of any value in this State.
Besides, one out of the three Judges of the Court which made the decision in Nevitt vs. Bank of Port Gibson, dissented from the decision.
I cannot agree, therefore, that according to the law of Georgia, “ It is the better doctrine, that it is not the'mere judgment of ouster, &c. which works dissolution,” &c. but that “ There must bo execution executed.” I think that such a judgment as that judgment is, which was rendered against' this bank, if that judgment was such as I have supposed it to be, has, of itself, the effect, by the Common Law, to dissolve *380•a corporation. And the Common Law is the law of this -State on the question.
So much for my dissent from Judge McDonald.
Judge Lumpkin, if I understand his views, as disclosed in this case, and in the similar case of Moultrie et al. vs. Smiley and Neal, (16 Ga.) thinks that this case is not within the rule aforesaid, that defines the consequences of the dissolution of a corporation ; and he thinks so because, in his opinion, the case is not within what he considers to be the ■.reason of the rule.
In 16 Ga. 294, he says, “I deem it advisable to examine, at the outset, into the origin of this Common Law rule, not for the purpose of questioning its legality, but in order to restrict it in its application to the reason in which it is founded. For, cessante rations legis eessat ipsa lex. And I feel fully warranted in this course, inasmuch as the rule has been justly characterized, by the most enlightened tribunals, as odious and iniquitous.” Again, he says, “I propose to consider now the true meaning of the word extinguished, when ■used in this connection.”
“ I am not ignorant of its etymological definition. Lord ■Golee, the “Hercules of the law” who has written so much, -has furnished this also: “Extinct” he says “comefh of the verb extinguere, to destroy or cut off.” (Coke Litt. 1 Vol. by Thomas, 464.) But the proper inquiry is, what is the legal ■ signification, when applied to the debts to and from a defunct •corporation?”
“ I have said elsewhere, that the only idea intended to be «conveyed was, that the debts were uncollectable for want of proper parties to sue and be sued.”
In the opinion of Judge Lumpkin, then, the reason of the rule is, the “ want of proper parties to sue and be sued.”
And to prove that this is the reason of the rule, his argument, if I do not misunderstand it is, 1. That certain Judges have declared this to bo the reason of the rule. 2. That there arc certain other cases in which, also, the debt is said to be extinguished, when it is not really extinguished, and that *381in those cases the reason why this is said is, that in them •■there is nobody to sue or be sued. 3. That it is the duty of Courts “ to struggle hard to get away from this rule as it stands, because, as it stands, it is a bad rule, and to hold the want of somebody to sue and be sued to be the reason of the rule, will enable them to get away from the rule as it stands.”
The sole question, then, between Judge Lumpkin and myself is, whether the want of somebody to sue and be sued, is the reason of the rule? We agree as to what the ruléis. We’ differ as to what the reason of the rule is. If I could show that the want of somebody to sue and be sued, was not the reason of the rule, he, I dare say, would agree with mo that the debt in this case was extinguished by the. rule. That that is not the reason I shall now attempt to show. I shall attempt to show that and somewhat more.
I shall attempt to show—
1. That the want of somebody to sue and be sued, is not • the : ea son of the rule.
2. That, at least, if that bo the reason of the rule, the argument aforesaid does not prove it to be the reason.
8. That the maxim, the reason ceasing the rule ceases, has-place only when what is the reason is certain beyond a reasonable doubt, and that, at least, it is not certain beyond a reasonable doubt that this is the reason of this rule.
4. That if for any reason the debt in this case stands extinguished or suspended as against the bank, it equally stands' extinguished or suspended as against the stockholder, because the stockholders are only the sureties of the. bank.
5. That there exists no cause to take this case out of the rule.
6. That therefore, the case is within the rule; and consequently, that the debt is extinguished.
1. First, then, is the want of somebody to sue and be sued, the reason of the rule ? I answer no; and in support of that answer, I beg, in the first place, to refer to what I have said on the question in m3r dissenting opinion in Moultrie et al. vs. Smiley & Neal, (16 Ga. R. 346.)
*382But in making this reference, it is proper that I acknowledge an error into which I fell in that opinion, in respect to one of the cases which I cited, that of Edmonds vs. Brown and Tillard. For this case I had to rely wholly on Viner’s Abridgment; and'judging from what is reported of it in that Abridgment, I inferred that the decision in it was made im the absence of the plea of non est factum; and my use of the case rested chiefly on that inference. Having, since writing out that opinion, procured the work in which the case vías originally reported, (1 Levinz, 287,) I find that I was mistaken. The plea of non est factum was pleaded in the case. And it does not positively appear whether the decision in the case was what it wras, in consequence of that ¡dea, or in consequence of the dissolution of the corporation. But judging from the side note of the Reporter, Levinz, from the statement of the case in Viner, from the use made of the case by Blaclcstone and other elementary writers, (1 Black. Com. 484,) and especially, judging from the fact, that the case resulted, not in a verdict for the defendant on the plea, but in a non-suit of the plaintiff-, wrn may, I think, pretty safely conclude that the decision was what it was, not in consequence of the plea, but solely in consequence of the dissolution of the corporation.
I proceed to state some views which are not presented in the dissenting opinion to which I have referred, or at least arc not distinctly presented.
The rule in question is only one part of a rule; it is one part of the more general rule, which defines all the consequences of the dissolution of a corporation. And if we make the want of somebody to sue and be sued, the reason of the rule, and bend the rule to that as the reason of it, we put the rule in discord with the whole of the other part of the general- rule, that other part being by far the greater part. We make the general rule stand thus: on the dissolution of a corporation, all its lands revert to those from whom they come — all its goods escheat — all the debts due to it, in effect, escheat too; or, if not, become extinct; all the debts due *383from it, except those on which thtere are indorsers, sureties or other bound parties, become extinct; all the debts due from, it on which there are indorsers, sureties or other bound parties, become extinct, as against the corporation, the principal,, but as against the i?idorsers, the sureties or the other bound' parties, remain in full life. It is only in reference to such, parties, on one side, and the creditors of the corporation on the other, that we can say there is somebody to be sued— somebody to sue.
Making the general rule this what do we do? In one breath we say debts, as against the principal, and all the-principal’s property, shall be extinguished; in the next, we say the debts, as against the sureties, and all the sureties’ property, shall remain in full force.
Now, I ask, is it supposablc that any law-maker, of any age, would ever put those two things into one rule ? Is it supposablc that any law-maker, who would say the first of' these two things, could ever bring himself to say the second ?
And then, we make no improvement in the rulé. We merely shift a loss from one innocent party to another.
As the rule stands, unmodified by this notion .that somebody to sue and be sued is the reason of it, the elfect of it is to make the creditors of the corporation lose their debts. This is an evil.
As the rule would stand if modified by that notion, the effect would bo to make the sureties and indorsers, if any, pay the debts; and yet, deprive them of all chance of being indemnified by their principal or their principal’s property, no-matter how much property that principal might have. This, too, would be an evil.
And in the abstract, the loss — the hardship, is precisely as great if a. surety has to lose the debt, as it is if the creditor has to lose the debt.
We must remember that the rule, if thus modified, would reach, not only the stockholders in a bank, but also the indorsers for the bank, the ordinary sureties of the bank, the guarantors of the bank, the parties of every sort, joined with *384■the bank. And we have seen that the stockholders in this, bank are but sureties for the bank.
To say that the want of somebody to sue and be sued, wa& the only reason the law-maker had for declaring, that on the-dissolution of a corporation, the debts due from it should be extinguished, is to impute to him a poverty of invention, which, judging from what he has done in other cases, we, I think, are not at liberty to impute to him.
When a debtor that is a natural person dies, or when he removes out of the jurisdiction, or when there is a trust and no trustee, the case presented is not unlike that which is pre^ sented when a corporation is dissolved. It is certainly a case in which there exists no person to sue or be sued. Yet, did the law-maker say that it was a case in which the debt or the trust had to become extinct? Ear from it. He treated the debt and the trust as still subsisting as much as ever, and he invented easy modes for enforcing the debt or the trust. Indeed’,, the modes are such as must have suggested themselves to the commonest min d — administration—attachment—judicial substitution. Now are we at liberty to say of such a law-maker, that when he declared the debts of a dissolved corporation to be extinguished, he did so, not because he wished them to be extinguished, but because he had not the wit to invent a mode to prevent them from being extinguished ?
At least, we cannot impute such a want of inventiveness; to our own law-maker. The Legislature, at its last Session-, having the will to prevent the debts of a dissolved corporation from being extinguished, said that they should not be extinguished, and it had the capacity to provide a mode for-rendering that will effectual. The Legislature said, that whenever “ any corporation shall be dissolved, the real estate belonging to such dissolved corporation, shall not revert to the grantor, nor its personal estate escheat, nor the debts due to and by such corporation, at the time of its dissolution, be-extinguished; but the said property, both real and personal,, and the said debts due to such corporation, shall remain as if' no such dissolution had taken place and become a trust fund^. *385first, for the payment of the debts due by such corporation,, and next for distribution amongst the stockholders thereof.”
And I ask, in passing, in what sense does the Legislature-here use the word “extinguished” — in the sense of suspended ? Certainly not, but in the sense of annihilated. And', it so uses the word in that sense, as plainly to show that it, the Legislature, considered the word to have that sense in the old Common Law rule.
What, then, is the reason of this rule ? This rule is but a part of a general rule, that defines all the consequences of the dissolution of a corporation, and it is the last part. The. former part of that rule having said that the lands of theeorporation should revert; that the goods should escheat; that the debts due to it should become extinct, or in effect, escheat too, what better could the latter part say of the debts due from ' the corporation than that they should become extinct ? Nothing, it seems to me, I think, then, that the former part of the rule, is the reason for the latter part. This is my conjecture. (See my opinion, 16 Ga. R. 355.)
I insist, then, that the want of somebody to sue and be-sued, is not the reason of the rule.
2. If, however, that be the.reason, I maintain that the argument which I am trying to answer, does not prove it to be the reason.
That argument, if I understand it, is as beforesaid, as follows :
1. Certain Judges have declared that the want of somebody to sue and be sued, is the reason of the rule. (16 Ga. R. 300.)
2. If a person appoints his debtor his executor — if a woman marries her debtor — if a lunatic’s debtor is appointed the lunatic’s committee, the debt in each of these cases, respectively, the law says, is extinguished; and yet, the debt is not extinguished, but is only suspended. For, the reason which the law has in these cases for saying that the debt is extin*386guisliecl is, that in them there exists nobody to sue and be sued.
Therefore, concludes the argument, in like manner, when, in the case of a dissolved 1 corporation, the law says that the debts are extinguished, the debts are not really extinguished, but are only suspended; and the reason which the law has for saying that they are extinguished, is merely that there is nobody to sue and be sued. (Id. 300 304.)
3. It is the duty of Courts “ to struggle hard to get away from” the word extinguished, used in this rule, because that’ Word, if taken in its ordinary sense, would make the rule a bad rule; and if they will hold the want of somebody to sue and be sued to be the reason of the rule, they will enable themselves to get away from the word. (Id. 333.)
I address myself, first, to the second head of this argument, as much of what I have to say upon that head, will be, in some degree, applicable to the first head.
I make one general objection to the argument under this second head — an objection equally applicable to it in each of its three branches. The argument is an argument from analogy — a kind of argument too frequently fallacious, when analogy really exists. My objection is, that here analogy does not really exist.
When a corporation is dissolved, its lands revert, its goods escheat, its choses in action either become extinct, or, if not, they, too, in effect, escheat, as if they are collected the money escheats.
Rut when a debtor becomes the executor of his creditor— when a debtor becomes the husband of his creditor — when the debtor of a lunatic becomes the committee of the lunatic— nono of these things, or the like of these, happens to the debtor.
And it seems to me, as I have said, that in these things, the law might see as good a reason for saying the debts of a corporation shall be extinguished, as it could see in the fact, that on the dissolution of the corporation, there is nobody to sue or be sued.
*387Now, with such a want of analogy, what is the argument from analogy worth ? Surely very little.
Admitting, however, for argument’s sake, that there is somewhat of analogy between the cases respectively, then I meet the argument with the following propositions:
1. I deny the law of the cases argued from, to he such as the argument takes it to be.
2. I maintain that law to be, in some respects, the opposite of what the argument assumes it to be; in others, quite different from what it assumes it to be.
3. Whether, however, the law be such as the argument takes it to be, or such as I take it to be, it is at least such that it puts the debt into a state of extinguishment or of suspension, as against the debtor himself. And I maintain that this same law, which thus does this, as to the debtor himself, equally does it as to the debtor’s indorsers, sureties and co-debtors of every sort. Hence, I say that if these cases prove the debt to be only in a state of suspension, as against the corporation, they equally prove it to be in a state of suspension as against the indorsers, the sureties and the co-debtors of the corporation, into some one of which classes the stockholders fall.
4. I conclude, that if any inference is to be drawn from the cases to the case in hand, it is the opposite of that wThich is drawn in the argument aforesaid.
1. I proceed, now, to establish these propositions if I can; and first, I will try to establish them with reference to the ease in which a debtor is made the executor of his creditor.
As to this case, the proposition I am to meet is, that when a debtor becomes the executor of his creditor, the law says that the debt is extinguished; and yet, that the debt is not extinguished, but is only suspended; and that it is, thus, only suspended instead of being extinguished, because the law’s reason for saying that it is extinguished, is merely the nonexistence of anybody to sue or be sued for the debt, a man not being able to sue himself. 1 cannot admit this proposition.
I maintain, that in every instance under this head, in which *388the law really says that the debt is extinguished, it is extinguished. I grant, however, that there are instances under it in which the law does not say that the debt is extinguished; but in these, I insist that the debt is not even suspended. These are the instances in which the assets, exclusive of the debt owed by the debtor-executor, are not sufficient to pay the testator’s debts. In these instances the law does not say that the debt is extinguished. On the contrary, it says that in them the debt shall be assets. In Wms. on Lx’rs, (814,) is to be found this passage: “It must, however, be observed, that as between the debtor-executor and the creditors of the testator, this doctrine” (the doctrine of extinguishment) “is applicable only in cases where there are assets sufficient to .satisfy the testator's debts. For it would be unfair to defraud the creditors, of their just debts, by a release which is .absolutely voluntary. And therefore, the debt due from the •executor shall be considered, on their behalf, as assets in his hands.” - And this is well sustained by the authorities cited to support it. And see Flud vs. Rumcey, (Yelverton, 160; Coke Lit. 264, b. Note 1.)
But in the instances in which the assets are sufficient to pay the debts, (and legacies ?) the law does say that the debt due by the executor is extinguished, and it means what it says. The debt, in those instances is extinguished. This is well established. (Wms. Ex'rs, 811, 814, and citations.)
And I say, too, that in those instances in which the law says .that the debt is extinguished, the want of somebody to sue and be sued' cannot, I think, be the reason why it says so.
For first. So far as the executor himself is concerned, he has no need of any suit to enable him to collect the debt. He sustains, in his own person, the character of both debtor .and creditor. He may, therefore, of his own mere will, pay himself whatever, as debtor, he owes himself as creditor.
Secondly. So far as claimants upon him, .in respect to the debt legatees or others are concerned, they may sue him for an account of that debt, as easily as they can sue him for an . account of any of the assets — as easily as creditors of the fes*389tator can sue him for an account of the debt, in those instances in which such creditors are entitled to make him account for the debt.
Thirdly. The want of somebody to sue or be sued, if it exists in the case of a debtor made executor of his creditor, equally exists in the case of a creditor made executor of his debtor; or of a debtor made administrator of his creditor; or of a creditor made administrator of his debtor. And yet, in neither of these cases does the law say that the debt is extinguished. (Wms. Ex’rs. 815, 817.) True, perhaps, that in the case of the creditor made executor or administrator, if assets, to the amount of the debt, come to his hands, the debt may, on the principle of retainer, be considered as extinguished ; i. e. as, in effect, paid by the debtor.
Fourthly. There is no want of somebody to sue and be sued, in the case in which the debt of the debtor made executor of his creditor, is joint and several, or in that in which it is indorsed ; and yet, in these cases, whenever the law says that the debt is extinguished as against the debtor-executor, the debt is equally extinguished against the co-debtor or the indorser. [Infra.)
Fifthly. Another thing than the want of somebody to sue and be sued is, I maintain, in the case of the debtor-executor, .the reason why the debt is said, by the law, to be extinguished, in the instances in which it is said to be extinguished, as well as the reason why the debt is said, by the law, not to be extinguished, in those instances in which it is said not to be extinguished. Where a creditor appoints his debtor his executor, the law presumes that his intention is to release the debt. (Wankford vs. Wankford. Salk. 299; Yelv. 160; 8 Coke, 136.) This intention is a lawful one, if the debt is not needed as assets for the payment of the testator’s debts; if it is needed for that purpose, the intention is not a lawful one. Therefore, in the former case, the law ought to say that the debt is extinguished, whilst in the latter, it ought to say that the debt is not extinguished. This, T think, is the reason of the rule.
*390Sixthly. But whether, in this case of the debtor-executor, the law, when it says that the debt is extinguished, means that it is extinguished, or means only that it is suspended; and whether the reason which the law has for saying this, is the want of somebody to be sued, or is some other reason, one thing I feel confident is certain, and that is, that as long as the debt remains in the condition, whether of extinguishment or of suspension, as to the debtor, it remains in that same ■condition, as to the ’debtor’s sureties and indorsers. “ Thus, if several obligors be bound jointly, and the obligee constitute one of them his executor, it is an extinguishment of the debt at law, and a release to them all. So, if an obligee in a joint and several bond, makes one of two obligors his executor, the action is discharged as to both obligors; for a release to one of several obligors, whether they be bound jointly or jointly and severally, discharges the others, and may be pleaded by all. (Wms. Ex’rs, 812.)
Now if these things are so, it is quite manifest, I think, that with respect to the case of the debtor-executor, my first three propositions are true. But if those three are true of that case, the fourth must also be true of it, for it is but a plain conclusion from them. It is, that if any inference is to be drawn from the cases, (including this case of the debtor-executor,) that inference is the opposite of the one which is •drawn from them in the argument which I am trying to answer.
2. I proceed to the next of the three cases on which this head of the argument I am trying to answer is made to rest, and that is the case of the debtor who marries his creditor. And as to this case, I feel sure that we may say of it most of what has been said of the case-of the debtor-executor.
According to Lord Coke, the marriage in such a case amounts to a release of the debt. “If the feme obligee take the obligor to husband, this is a release, in law. The like law is, if there be two femes obligees, and the one take the debtor to husband.” (2 Coke Litt. 264, b.) And in Viner’s Abridgment we find this: “If tioo are bound to a feme by *391obligation, and she marries one of them, and after he dies, the debt is discharged forever.” (Vin. Abr. JExting.)
And why should not marriage, in such a case, operate as-an extinguishment of the debt ? Before the marriage, the-debtor has the actual possession of the debt; after the marriage, he has, in addition, the right of possession of it. Is not the marriage, then, equivalent to his reduction of the debt into possession ? But whenever the husband reduces the wife’s dioses in action into his possession, they vest absolutely in him.
But suppose, that when Lord OoJce says, that “ if the feme obligee take the obligor to husband, this is a release in law,” he only means that it is a suspension of the debt — a suspension of it during the marriage, does it follow that the.want of somebody to sue and be sued is the reason of such suspension ? I say no; for if the wife has a right against the husband, she may assert it by a suit against him. If she has a right to a divorce, she may sue him for a divorce; if she has a right against him with respect to her separate property, she-may, by the aid of a next friend, assert that right by a suit against him ; so, if the wife had a right to collect from her husband the debt which he owed her before the marriage, would she not have the right to sue him for that debt ? If, then, the debt of the husband to the wife is only suspended during the marriage, can we say that the want of somebody to sue and be sued, is the reason of such suspension ?
Suppose the debt be one in which the husband is principal and others are indorsers or sureties, can the husband and wife, after the marriage, sue these indorsers and sureties for the debt? Yet, the case is one in which there are persons who might serve as parties to sue, and persons who might servo as parties to be sued.
But say that the debt is only suspended during the marriage, and that the reason of such suspension is, that the wife cannot sue the husband, what avails it to the support of the argument in question ? For as long as the wife cannot sue the husband, so long she cannot sue his indorsers and sure*392ties. But unless she could do that, how can it be argued from her case, that the creditors of the corporation, though unable to sue the corporation, can yet sue the sureties of the corporation ? The very opposite is to be argued from her case. The stockholders in the corporation are but sureties for the corporation.
So, I draw the same conclusion in this case which I drew in the case of the debtor made executor.
3. The last case on which the argument I am combatting, is made to rest, is thus stated: “ When one, indebted to the estate of a lunatic, by speciality, is appointed committee of the estate, and the specialty is transferred to and received by him as committee, the debt is extinguished, and the securities to his bond, as committee, are liable for so much money received by him.”
In reference to this case, I simply ask if the debt is not also extinguished against the debtor’s co-obligors — against the debtor’s sureties ? does not the authority mean to say that what takes place is equivalent to a reduction of the debt into the committee’s possession — equivalent to a payment by him to himself of the debt ?
Have I not, then, with respect to each of the three cases on which this head of the argument I am trying to answer rests, made out my four propositions ? I confidently think so. The last of the four is the only one I will repeat. It is, that if any conclusion is to be drawn from the three cases, to the case in hand, it is a conclusion the opposite of that which was drawn in the argument which I am endeavoring to answer.
2. I proceed to notice, in a few words, the first and the last of the three heads of the argument. Of these, the first is, that certain Judges have said that' the want of somebody to sue and be sued is the reason of the rule. And two Judges of the Supreme Court of Mississippi are referred to, as the Judges meant. The Bishop of Rochester’s case is also referred to as a case in which the Court say this is the reason of the rule. This case, except as it is found in finer’s Abridg*393ment, is not within my reach. As it stands in that Abridgment, it contains no such saying of the Court. (6 Vin. Abr. Corp. (H. 3) 8.)
What reasons these two Judges had for their opinions, does-not in the reference appear. Probably they had none better-than those which Judge Lumpkin has given for his opinion» I leave their opinions to what I have said of his opinion, and to what more I have to say of it, and to the decisions of the very Court in which they presided — decisions made in President, &c. Port Gibson vs. Moore, (13 Smedes & Mar. 158,) and in Coulter et al. vs. Robertson, (2 Cushman’s R. 321)— the first of which decisions was, that a debt of a corporation is so completely extinguished by the dissolution of the corporation, as not to be revivable by the revival of the corporation — a decision which could not have been made if the mere want of somebody to sue and be sued, had been regarded as the reason of the rule, for the revived corporation constituted somebody to be sued. See, too, my dissenting opinion in 16 Ga. 346.
3. The last head of the argument is, that it is the duty of Courts “to struggle hard to get away from” the word extinguished contained in the rule, because that word, if taken in its ordinary sense, would make the rule a bad one; and if Courts hold the want of somebody to sue and be sued to be the reason of the rule, a way is opened by which they may, get away from that word.
And first, I cannot admit that it is the duty of Courts to-“struggle hard to get away from” any clear rule of law. I insist, on the contrary, that it is as much the duty of Courts to give full effect to every clear rule of law, however mischievous they may conceive it to be, as it is to give full effect to every such a rule, however beneficial they may conceive it to be. What power have Courts to change any rule of law?. None. There is but one question for a Court: What is the law ?
But certainly it is not the duty of a Court “ to struggle *394hard to get away” from one bad rule only to get to another' equally as bad. And to go from a rule which says, that on the dissolution of a corporation, all its lands revert, all its goods escheat, all the debts due to it become extinct, all the • debts due from it become extinct, to' a rule which says, that on the dissolution of a corporation, all its lands revert, all its goods escheat, all the debts due to it become extinct, all the debts due from it become extinct, as against itself, hut as ■ against its indorsers and other sureties, remain in full force, is but to go from one bad rule to another.
Now if the proposal were a proposal to go to this rule, viz: that on the dissolution of a corporation, its lands, its goods, its dioses in action, become a trust fund, for the jmyment of its debts, there would be the reason of expediency in favor of the proposal; for such an exchange would help creditors, and would not hurt sureties and other innocent parties more than they ought to be hurt. And this is the exchange which the Legislature, at its last Session, made. And this is the exchange which Judge Story, in one of the later editions of work on Equity Jurisprudence, makes, but makes without the aid of any Act of any Legislature. (§1252 Sto.) But this, I believe, is an exchange which no member of this Court thinks it competent for any Court in this State, by its own unaided power, to make. And that is the opinion of the Legislature too, as is evinced by the passage of the Act referred to.
I say, then, that it is not the duty of a Court “ to struggle hard to get away from” what is the natural and obvious import of this rule, merely to get to what this argument substitutes for that import.
If, therefore, a Court that thinks it its duty to do so, does so, we are but the more admonished to scrutinize the process • by which the Court does so.
3. Having thus endeavored to show, that if the want of somebody to sue and be sued be the reason of the rule, this argument is not sufficient to prove it to be so, I proceed to' .my next main position, which is, that the maxim — the reason *395-ceasing the rule ceases — has place only when what is the reason is certain beyond a reasonable doubt; and that what is the reason of this rule, is not certain beyond a reasonable doubt.
The first of these two propositions is obviously true.
And is not the second almost equally self-evident ? Can any man deliberately say that he is certain, beyond a reasonable doubt, as to what is the reason of this rule ? This is a rule of the Common Law; and what eye can now penetrate through the layers of darkness, centuries thick, down to the foundations on which the rules of the Common Law are laid ? All arguing and debating about what is the reason of a rule of the Common Law, must, of necessity, be more or less of ■•the nature of guess-work.
In relation to this particular rule, I have hazarded my guess as to the reason of it; and that is, that as the previous .part of the general rule of which this makes a part, had said that the corporations’ lands should revert and its goods es- ■ cheat, and the debts due tú it become extinct, or if not, es-cheat too, so this, the latter part of the rule, had, as a matter of course almost, to say that the debts due from it should •be extinguished.
Judge Lumpkin has come to the conclusion, that another 'thing is the reason of the rule, viz: the want of somebody to sue and be sued. .
Now it seems to me hardly possible for any man who will read over what he has said in favor of his opinion, and what' I have said in favor of mine, to affirm that he is certain, be,yond any reasonable doubt, that the Judge’s opinion is right •and mine wrong. But unless the man could say this, would he be justified in following the Judge’s opinion, to- the setting aside of the plain meaning given by the words of the ’rule ?
4.- I pass to my next main position, which is, that if, for any reason, the debt is extinguished or suspended against the hank, it is equally extinguished or suspended against the *396stockholders of the bank; for, they are only the bank’s sureties.
It is a general principle, that whenever a debt is in a state of extinguishment or of suspension against the principal, it is in the same state against the surety.
Examples of this we saw in the case of the debtor-executor and that of the debtor-husband; in both of which cases, we ■saw that if the debt was extinguished or suspended against the debtor, it was also extinguished or suspended against the ■debtor’s sureties.
Those are but examples. The rule is a general one. (See Vin. Abr. Exting. M.)
That the stockholders are but sureties for the bank, I think I have, in a previous part of this opinion, shown.
5. May there not bo some other reason sufficient to take this case out of the rule, as to extinguishment ?
The judgment of forfeiture was not such a judgment as the Act of the Legislature directed the Court to pronounce. The words of that Act are: “ The Judge shall pronounce the judgment of the dissolution of said corporation, for all purposes whatsoever, saving and excepting as to its power, in its corporate name, to collect and pay its debts, and to sell and convey its estate, real and personal.” Instead of pronouncing such a judgment as that thus pointed out by the Act the Court passed a general judgment of seizure and ouster. At least, so I have considered myself justified in assuming. It was said, in the argument, that the Court’s reason for doing this was, that the Court considered the aforesaid words of the Act to be unconstitutional.
For ought that appears, both parties, the State and the bank, acquiesced in this judgment. It does not appear that any attempt has been made to set it aside, and it is now twelve years old.
Under these circumstances, the question is, does this judgment have validity ?
I say yes. I say it must be considered valid, until it is set aside.
*397In Bostwick vs. Perkins et al. this Court say: “Where the Court in which the judgment is rendered, has no jurisdiction, either of the person or the subject-matter of the suit, then the whole proceeding is unquestionably void and a nullity ; but where the Court has' jurisdiction, both of the person and the subject-matter of the suit, although it may err in its opinion of the law, yet, such judgment is conclusive upon the parties to it, where there is no appeal.” (4 Ga. R. 49.)
This is repeatedly affirmed by the Court. (Rogers vs. Evans, 8 Ga. R. 145 ; Preston vs. Clark, 9 Ga. R. 244; Mobley and others vs Mobley, 9 Ga. R. 247.)
That the Court had in this case, jurisdiction of the person and of the subject-matter, there can be no doubt; therefore, its judgment, even if erroneous, must-bind until it is set aside.
This Act of the Legislature, then, does not have the effect to take the case out of the rule.
Loes there exist any other thing which could be thought to have that effect ? Not within my knowledge.
What, then, is the state of the argument between Judge Lumpkin and me ? This:
There is a rule of law which says, that on the dissolution of a corporation, its debts are extinguished. This we both admit.
This rule means, I think, that the debts are annihilated. Annihilated is the etymological, the common and the technical meaning of “ extinguished.” The rule in this sense, has been, in a number of cases, applied to the debts of a dissolved corporation.
The rule, as he thinks, does not mean that the debts of a dissolved corporation are annihilated, or mean anything which, in the least, affects the debts, as to other parties to them, than the dissolved corporation itself; and this opinion he puts on what he conceives to be the reason of the rule — a want of some one to sue and be sued.
I meet him, by insisting that Courts cannot set aside the plain sense of the words of a rulo of law, upon what they may conceive to be the reason of the rule ; that, at least, they can-*398mot do soj unless'it is certain what is the reason of the rule; and I show, I think, that what he conceives to be the reason of this rule, cannot be the reason of it; or, at least, that it is •doubtful whether that is the reason of it or not. And I.further show, I think, that even if that be the reason of the’ rule, jet, as the debt, as against the lank, is within the rule, it must be within it as against the stockholder.
This being, as it seems to me, the state of the argument between us, I feel constrained to stick to the plain words of '•the rule. .
Upon the whole, therefore, my conclusion is, that the case is within the rule. If it is within the rule, the Court should 'have given the charge which it was requested to give.
The judgment of the majority of the Court being, that the Court below was right in refusing to give the charge, I am ¿forced to dissent from that judgment..