By the Cotirt. —
Lumpkin, J.,delivering the opinion.
We think the Court erred in charging the jury, that the presumption of law was, that the alteration in the order on the Minutes of the bank-book was made at the time the order was entered. The order was written on the Minutes in the handwriting of James Morris. The insertion of different names from those contained in the original order, was in the handwriting of Kibbie, who is charged with having perpe*376trated the forgery. The plea of non est factum was filed by the directors; and the Court should have presumed nothing— for in such case the law presumes nothing — but should have left the whole question to have been, passed upon by the jury. Printup vs. Mitchell, 17 Ga. Rep. 558. Nor does this view of the law contravene the earlier case of Scealie vs. Dill, 2 Kelly Rep. 128. This Court, after referring to numerous decisions upon this controverted doctrine, come to the conclusion that the defendants would have been entitled to a verdict in that case, had they not failed to put in the plea of non est factum. In the case before the Court, that has been done.
I look upon this question, however, as one of minor importance. It will not occur on another trial. Besides, I must say, that to my mind, there is little merit in this plea, as the face of the Minutes show that it was the purpose of the Board of Directors to appoint a vice-president and assistant cashier, if not the particular persons whose names were substituted by interlineation in the place of those originally nominated.
The great question in this case is, were these bills signed by the vice-president and assistant cashier binding upon the corporation ?
The words of the charter of the Planters’ & Mechanics’ Bank of Dalton are peculiar in this respect: By section
IXth, it is declared that “The bills obligatory and of credit, notes and other contracts whatsoever in behalf of said corporation, shall be binding upon the said company: Provided the same be signed by the president and countersigned by the cashier of said corporation.” So far, the language is similar to that of the South-Western Bank of Georgia, chartered at the same session, and to like clauses, in most of the b.ank charters granted in this State, and might be construed to be directory, merely. But the section stops not here, but proceeds: “And the funds of said corporation shall in no case be liable for any contract or engagement whatever, unless the same be signed and countersigned as aforesaid.” (See Pamphlet Acts, I§53-4, p. 190.)
If bank bills are included in the clause to which this prohibition applies, there would seem to be an end of the question. At the very time when these new appointments were made, and the appointees authorized to fill up bills to an un*377limited amount, there was. a regular president and cashier in the discharge of their duties; and the only reason assigned for this violation of the charter was, that money could not be manufactured fast enough; that is the substance of it, and hence, subordinates are constituted, who resided in the State of Illinois, to fill up an impression which was never in the bank, and thus flood the Northwest with an irredeemable currency.
As to the personal liability of the directors, we. have nothing to say; but for the' protection of the stockholders, and those who hold the genuine bills of the bank, signed by the president and cashier proper, we are not disinclined to see this spurious circulation repudiated.
If it be said, that these bills have got into the hands of innocent holders, our reply is, that' they could have protected themselves by looking at the charter, which, in strong phraseology, has exempted the corporation from liability for bills thus signed. The want of power to bind even the corporate funds, in this way, was patent, and whosoever would, might avoid imposition.
It may be suggested that, by the Vth section of the charter, the directors were authorized to appoint such officers and clerks under them as might be deemed necessary for executing the business of the corporation. But a cursory examination of that section will show that it was not intended to clothe the directors with the power to appoint co-ordinate officers to perform functions which could alone be discharged’ by the president and cashier, and especially during the continuance in office of those incumbents. It is not unusual, we believe, for banks to appoint a president pro tempore and an assistant cashier. The former is invested with all the powers of president for the time being; he is, in fact, the president. Assistant cashiers aid the regular cashier in the performance of his onerous duties. But the assistant never countersigns bills. The very mode of signing these bills indicates that a swindle was intended. The V. added to the name of the vice-president, and the Ass. to that of the cashier are so- obscure as not to be noticed by an ordinary person or a casual inspection.
*378JUDGMENT.
Whereupon, it is considered and adjudged by the Court, that the judgment of the Court below be reversed, upon the ground that the Court erred in charging the jury that the alteration made in the order passed by the directors was done at the time that the order was put upon the Minutes, and also in holding that the bills sued on in this case were binding upon the company.