Bond vs. The Central Bank of Georgia.

to discount notes, a contract not made void by the act itself, could on this account, be avoided by the party to the contract." 8 Wheat. R. 338.

Fearing that this opinion may be extended to an unreasonable, at any rate an unreadable length, I will content myself with one more reference. It is the case of Bates & Hines vs. The Bank of the State of Alabama, 2 Ala. R. Judges, 451.

By the 40th section of the charter of the Bank of the State of Alabama, it is enacted: "It shall not be lawful for the president and directors of said Bank to purchase or discount any draft or bill of exchange for a larger sum than five thousand dollars. And on any draft or bill of exchange purchased or discounted by the said Bank, there shall be at least two responsible indorsers, each of which shall be considered good for the amount of such draft or bill." The ordinary loans of the Bank were limited to two thousand dollars, and, by the 20th section of the charter, the Bank was forbidden from dealing in goods, wares, or merchandise. One John M. Bates, of the County of Greene, being possessed of one thousand and twenty-two bales of cotton in Mobile, Major Cook, acting as the agent of the Bank, advanced to Bates on the cotton seventy-nine thousand six hundred and thirty-two dollars and seventyfive cents. The cotton was delivered to Pitcher & Ball, the agents appointed by the Bank to receive it, and Cook executed a receipt setting forth the above facts, and thereupon the defendant made and delivered to Cook the bill of exchange sued upon, and also fifteen other bills of exchange, each for the sum of five thousand dollars, all bearing date, becoming due, and payable at the same time, and indorsed by one Ellis, now deceased, and Hines.

To the action against Bates & Hines on one of these drafts, it was urged in behalf of the defendants, that the Bank, although the property of the State, was a mere corporation, and as such possesses those powers only which are conferred by the charter, or necessary to its existence. That this transaction was illegal, there being no express authority in the charter sanctioning it; and that if the charter prescribes a mode of contracting, and that mode is not observed, or if a contract be made which the charter does not authorize, in either case the contract will be void, and no action can be maintained on it.

For the plaintiff it was insisted that the money was lent on the bills, and that the cotton was taken as collateral security; that it was in the nature of a pledge. But if, within the prohibition of the

Bond vs. The Central Bank of Georgia.

charter, though it might authorize a forfeiture of the charter, it could not be taken advantage of by the defendants.

The Court, in their opinion, admit distinctly, that the directions contained in the 40th section of the charter cannot be evaded by splitting up a large loan of money into fragments, and taking several bills from the same parties for the whole amount. That it cannot be disguised, that the loan of money, though apparently divided into small sums, is a single transaction, and in effect a loan to the same individuals of the enormous sum of near eighty thousand dollars; thus producing the very result which it was the design of this clause to guard against. Still the Court were unanimous in opinion, that this clause of the charter is directory merely; and that, if it be disregarded, no one, a party to its violation, can take advantage of it.

Ormond, Justice, observes: "The management of a private stock Bank might be safely left to the jealous scrutiny of the stockholders; but an institution like ours in which the directors have no private interest, is required to be guarded and secured by checks on the conduct of the agents of the public, to whom the management of the Bank might be intrusted. Accordingly, we find, among other restraints, that the directors were ordered not to lend on note more than two thousand dollars to one individual, or to advance more than five thousand dollars in the purchase of a bill of exchange. The reason of this restraint is most apparent, its intention cannot be misunderstood; it was to secure the Bank against loss, by the loan of large sums to one person. To accomplish this object not only the amount is limited, but the directors are required to take at least two responsible indorsers, either of whom shall be considered good for the whole amount, We presume no one would say the latter part of the clause was not directory, and yet it stands precisely on the same footing with the previous part. It was doubtless expected by the Legislature that its commands should be obeyed by its agents, but it is impossible to suppose that it was contemplated, as the result of a regulation intended to protect the public against loss, that if, by collusion with the directors, or, as was doubtless the fact in this case, by an honest mistake on the part of the directors, an individual could succeed in getting on a bill of exchange a larger sum than the charter allowed, that the same regulation would protect him against paying it. Whatever may be the liability of the directors in such a case, nothing can be clearer to our minds than that the borrower must refund the money.

Bond vs. The Central Bank of Georgia.

Any other construction would place the entire capital of the Bank at the mercy of a venal directory and profligate borrowers."

If these adjudications and numberless others which might be adduced to the same effect, be sound expositions of the law, there cannot remain the shadow of a doubt as to the right of the plaintiffs to recover on the case before us. Had they to rely entirely on the original charter of 1828, the case would even then be free from difficulty. The limitations contained in the 11th, 21st, and 25th sections, as to renewals, indorsers, and amount of loans, would clearly be construed directory only. And, notwithstanding any or all of them were disregarded, the debtor would not, on that account, be absolved from his liability. Any other doctrine would be alike revolting to common sense and common honesty. But the amendatory acts of 1829 and 1838, are unequivocal in their character. [10.] And by the latter the directors of the Bank have power and authority to discount, or purchase bills of exchange or other paper, which, in their opinion, may be good, unlimited in amount, and with no other restriction on the grant than the end in view, and that is for the purpose of remitting funds to pay interest on the State's bonds, or any other debt contracted abroad by the authority of the Legislature. And this they are authorised to do, "without reference to the limitation contained in the 25th section of the charter of said Bank." Here is an express legislative declaration, with which this Court dare not interfere. What plainer language could have been employed to evince the legislative intention that there should be no restraint in the case specified in this statute. And the proof before the Court below showed, that the indebtedness of Beall to the Bank originated in this way. We are bound to conclude, therefore, that the Bank in the present instance has not exceeded the limits prescribed in its charter. And, were it otherwise, it would afford no justifiable excuse to the defendant for refusing to pay his note. And public policy, as well as the law, fully sanctions, in the judgment of the Court, the doctrines we have endeavoured to establish.

In every way of considering this case, it appears to the Court that there was no error in the Court below, and that the judgment ought to be affirmed.

Robinson vs. McDonald.

No. 14.-BOLLING H. ROBINSON, plaintiff in error vs. JAMES MCDONALD, defendant in error.

[1.] In an action of Trover by an executor or administrator, who declares on his own constructive possession, and alleges the conversion after the death of the testator or intestate, it is necessary for him to introduce in evidence his letters testamentary, or of administration, on the trial, as a part of his title, to enable him to recover. [2] Where the defendant purchased a negro at Sheriff's sale, as the property of a third person, who was a stranger to the plaintiff's title, used him as his own, and exercised dominion and control over him, it was held to be sufficient evidence of a conversion to maintain trover, without evidence of a demand and refusal. [3.] When the testator bequeathed certain negroes, at his mother's death, to his son Robert, his heirs and assigns forever; but, if Robert should live single, and die without a lawful heir of his body, the above property is to be equally divided between my three sons, James, John, and Lovett, it was held to be a limitation over upon an indefinite failure of heirs or issue, and therefore void, as being too remote, according to the rules of the Common Law, and vested the property in the first taker. Held, also, that if the bequest over had been good at Common Law, our Statute of 1821 would have vested the property in the first taker.

Trover. From Early Superior Court. WARREN. October Term, 1846.

Tried before Judge

For the facts of the case, see the opinion of the Supreme Court.

TAYLOR, for the plaintiff in error, contended

A remainder cannot be limited upon a fee simple conditional at Common Law. Bedon vs. Bedon, 2 Bailey's R. 231; 4 Kent's Com. 11, 12.

A charge upon lands given by devise, without words of perpetuity, will give a fee. Dunlap vs. Crawford, 2 McCord's Ch. R. 178.

Where personal property is given by will to the first taker, in words which would give an estate tail at Common Law, or a fee conditional in lands, and is then limited over, the limitation over is too remote, and therefore void, and the first taker takes an estate in fee simple; words giving an estate tail in lands, will give an absolute estate in personalty. Henry and wife vs. Felder, 2 McCord's Ch. R. 323; Prince Dig. 247; 1 Nott & McCord, 69.

If there be an absolute power of disposition given by will to the first taker, with remainder over, in all such cases the remainder is void, as inconsistent with the power of disposition expressly given

Robinson vs. McDonald.

in the will, or necessarily implied. 4 Kent Com. Lect. 59, pp. 233, 248, 264, 268, 273; Jackson, ex dem. Brewster vs. Bull, 10 John. R. 19.

A limitation repugnant to an estate given by will is void as a devise to A and his heirs, or a devise to A of all his estate; a limitation of the estate previously given is repugnant. Jackson vs. Robbins, 16 John. R. 565; Ide vs. Ide, 5 Mass. R. 499; 15 John. R. 171; Bradley vs. Peixoto, 3 Ves. Jr. 324.

The word heirs not necessary to create an absolute estate in Georgia. Prince Dig. 247; 2 McCord's Ch. R. 171.

A settlement of negroes, made by a father upon his daughter for life, and after her death to her children, but limited in the habendum to the heirs of her body, deemed too remote; so that the whole vests in the first taker. Stockton vs. Martin, 2 Bay's R. 471; 4 McCord's, R. 198; Fearne Cont. Rem. 444.

A limitation of chattels to the heirs of donee, and on failure to issue of donor, manifests the intention of the donor to part with the whole estate. Powell vs. Brown, 1 Bailey R. 100.

In support of the 3d position, that a demand and refusal were indispensable to be proven, in order to authorise a recovery in favour of the plaintiff; would refer to 2 Starkie Ev. 838, 9; 1 Chitty's Plead. 156.

The fifth and last ground, that the executor should have produced upon the trial his letters testamentary as a part of his title, the authorities are, that where the cause of action accrued since the death of the testator, or intestate, the executor or administrator sues in his individual and not his representative character; and his administration forms a part of his title and must be produced, although the defendant has not craved oyer, nor has pleaded in abatement. Browning vs. Huff, 2 Bailey's R. 194; 2 Starkie Ev. 4th part, 548. 516; Kirby vs. Quin, Rice R. 264; Hollis vs. Smith, 10 East R. 293; Bullard vs. Spencer, 7 T. R. 358; 1 Bailey, 79; 2 Bailey, 319.

DEVON, and TOWNS & SMITH, for defendant in error, cited the following authorities:

On the Probate, 2 Bla. Com. 424; Leigh's Nisi Prius 1001.

On the Limitation over, 2 Bla. Com. 139; Am. Ch. Dig. 334; 1 John. R. 440; 10 John. R. 13; 16 John. R. 382; 20 John. R. 483; 1 Roper on Legacies, 87, 88, 401,402; 2 Roper on Legacies, 372, 373; 1 Peere Willms. R. 563.