concurred in the first case as follows:
1. Actions brought by the bona fide holders of bank bills which were issued by the bank payable to bearer, and which passed into circulation as money, cannot be controlled by the provisions of the second paragraph of the seventeenth section of article five, of the constitution of 1868, nor can the illegality of such issue by the bank, as contemplated in said provision, be set up as.a defense against the right of such holder to a recovery.
2. If said provisions of the constitution were intended to apply to such cases, they are void under the tenth section of the first article of the federal constitution, inasmuch as they not only annul subsisting contracts which were otherwise legal and valid, but impose upon the holder of such bills impracticable conditions in cases of certain defenses, and which practically deny all right of recovery.
3. The measure of recovery by the owners of bank bills in an action against a stockholder in the Mechanics’ Bank, is to be ascertained from the amount of outstanding bills of the bank at the time such action is brought, and such stockholder’s liability therefor is .in proportion to his share of stock in the bank, subject to be reduced by the amount of bills he has taken up before the commencement of the suit against him.
In the second case, as follows :
*514I concur in the judgment rendered in this case on the grounds and for the reasons I give for the decision in the case of Branch vs. Mechanics’ Bank, 52d Georgia Reports, 525.
McCay, Judge, dissented in both cases.