ON MOTION FOR REHEARING.
Hines, J.1. Counsel for the plaintiff takes offense at some of the language used by the writer in his opinion in this case. The language to which he excepts does not bear the construction which *89he puts upon it, and is in no way a depreciatory reflection upon his logic; but as counsel thinks otherwise, the writer cheerfully disclaims any such purpose. Furthermore, we withdraw the language to which he takes exception, and insert in its place a clearer statement of our argument in reply to his contention.
2. In the second ground of the motion for rehearing it is insisted that we erred in holding that the execution which issued against the stockholder in this case was under the act of 1925, and that this act was constitutional as it gave to the stockholder a right to defend against an execution issued thereunder. It is insisted that we overlooked the fact that, the execution in this case recites that it was “ issued by and under the authority of the said act of the legislature of the State of Georgia, approved 'August 16, 1919,-amendment August 14, 1920,” and that it was not issued under the act of 1925. It is urged that this court is powerless to change the language of the writ as issued by the banking department, as this court is powerless to change the language of an act of the legislature. We did not undertake to change the recital of this execution. We simply construed the meaning of this recital. We hold that the meaning of the recital that the execution was issued under the act of August 16, 1919, is not to be determined from that act as it was originally passed, but from that act as it was amended at-the date of the issuance of the execution. After the passage of the act of 1919 it was amended by the act of 1925, so as to provide for defenses to executions issued under the act of 1919 as- so amended. The language in this recital, “amendment approved August 14, 1920,” should be disregarded, as the act of August 14, 1920, does not in any way refer to the issuance of executions to enforce’ stockholders’ liability to depositors in insolvent banks. Property construed, this execution was issued under the act of 1919 as amended by the act of 1925.
3. In the third ground of the motion for rehearing it is urged that we overlooked, in passing upon the question of duress, the decision in Logan v. Sumter, 28 Ga. 242 (73 Am. D. 755), in which it was held that “A defendant who has paid an execution on which he is not liable may recover back the money — he having paid it under the belief that he was liable.” In that case the defendant paid when he was not liable. In the instant case the defendant admitted liability, but was attempting to set off a counter-demand against the same.
*904. In the fourth ground of the motion for rehearing it is asserted that we overlooked section 7 of article 18 of the banking act of 1919, making the same provisions as to the individual liability of stockholders as are made for the liability of persons doing business in the name of a bank before proper organization, and declaring that the liabilities of stockholders “shall be assets of such bank,” and that both of these liabilities shall “be enforced only by and through the superintendent of banks.” Movant further assets that we overlooked the caption of the act of 1894, and the language used in section 3 thereof, which dearly shows that the aim of the legislature was to make the stockholders’ liabilities actually assets of the bank, and that the same were to be collected and administered as assets of the bank. It is further insisted that we overlooked the provisions of section 20 of article 7 of the banking act of 1919 (Acts 1919, pp. 135, 160), and the language in the amendment thereto of 1925 (Acts 1925, pp. 119, 131), which provides, that, “After all the indebtedness of such bank is paid in full, the remaining assets of such bank shall be applied, first, to reimbursing the stockholders who have paid such assessment or assessments, and thereafter prorated to all the stockholders.”
After due consideration, we do not think that the provisions of the statutes referred to require a different conclusion from that reached and expressed in the opinion rendered in this case. By these statutory provisions funds collected from the liability of stockholders to depositors are assets of the bank only in the sense that they are to be collected and applied to the payment of depositors, and not for the payment of debts which the bank may be due to depositors.
Motion for rehearing denied.