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Anderson and others rs. The State of Georgia.

Second. That the Court below erred in charging the jury that the plaintiffs in error were liable for interest from the time of the reception of the money by J. R. Anderson. 1 John. R. 315; Peters C. C. R. 172, 221, 224; 2 Penn. R. 652; 1 A. K. Marshall R. 576; 2 Blackf, R, 312; 7 Halst. R. 316; Cox R. 242; 1 Call R. 194 ; 2 Dallas R. 182,

By the Court - Nisbet, J. delivering the opinion.

This was an action of debt brought in the name of the Governor of the State of Georgia, against John R. Anderson and his securities, upon a bond given by him as agent of the Central Bank, to take charge of and to collect the effects of the Bank of Darien, The bond is made payable to the Governor. The obligations as expressed in the bond are, "to take charge of the assets, books and papers of the Bank of Darien, and to perform such duties in regard to them as may be required by the board of directors of the Central Bank." It is conditioned for the faithful performance of “the duties required of him in virtue of his office as clerk and book keeper, according to law and the trust reposed in him." The usual breaches are assigned. Upon the trial the defendant objected to the bond going in evidence, because it was void in this, that it was made payable to the Governor of the State, when according to law, it ought to have been made payable to the Bank of Darien; which objection was overruled, and the overruling of which is relied upon

before this Court as error. To a proper understand, ing of this exception, take the following facts. The Bank of. (1. Darien being in a dilapidated condition and the State of Georgia being a stockholder to a large amount, the legislature in 1841, passed an act repealing the act incorporating that institution and all acts amendatory of that charter, "except (to use the language of the repealing act,) as hereinafter excepted." The Central Bank was authorised and required to provide forth with for winding up the affairs of the Darien Bank ; to collect in the assets and pay the debts and to pay the balance of the assets if any, to those entitled to them. To do which things the Central Bank was clothed with authority to prosecute suits in the name of the Darien Bank, to defend all suits brought against it, and to use all powers conferred upon that corporation, necessary to the ends proposed. The debtors of the Darien Bank were permitted to renew and run their notes in the Central Bank, upon the terms allowed the debtAnderson and others vs. The State of Georgia. ors of the latter Bank upon accommodation notes. The directors of the Darien Bank elected by the State were reduced to four, and those elected by the stockholders to one, and the former were directed to facilitate the intents of the legislature, by turning over the whole of the assets of the Darien Bank to the directors of the Central Bank; and service of suits brought against the Darien Bank, was directed to be made on the president of the Central Bank. Such are the principal provisions of the Act of 1841. In pursuance of which, it appears from the record, that the assets of the Darien Bank were turned over, and the defendant below, John R. Anderson, was appointed by the Central Bank an agent to take charge of and collect them; and as such gave the bond upon which the suit was brought. It is contended by counsel for the plaintiff in error, that the charter of the Darien Bank was not repealed by the Act of 1841; that the persons beneficially interested in the bond, are the stockholders, and therefore the bond ought to have been made payable to the Darien Bank. In support of this proposition it is urged that the State has no other or better rights in the Darien Bank, than a private stockholder; that when a state becomes jointly interested with citizens in a corporation, her sovereign character is lost, so far as concerns that corporation. We recognise the latter proposition, also the proposition first stated by the counsel, to wit, that the bond ought to have been made payable to the Darien Bank, if its charter is not repealed. The exception we think, depends upon the question, whether that charter is or not repealed by the Act of 1841; and for the purpose of determining it, I have recited the principal provisions of that act. Our construction of the Act of 1841 is, that it repeals the charter of the Darien Bank, ercept so far as to authorise the institution of suits in its name. It is divested of its franchises, denuded of its powers, which are devolved upon the Central Bank, and its assets are cast into the hands of the Central Bank; all its unsettled business is to be conducted by the Central Bank, this corporation being clothed with power to pay its debts and wind up its affairs finally. For these purposes the Central Bank is created the agent, and becomes a trustee, for the creditors and stockholders of the Darien Bank. She is at the same time the fiscal agent of the State. In this twofold character she appoints Mr. Anderson her sub-agent to aid in the execution of her trust. By this appointment he becomes an officer, not of the Darien Bank, but of the Central Bank. To whom then is his bond to be made payable? This question is Anderson and others os. The State of Georgia. settled, aside from any other view of the subject, by the charter of the Central Bank, which directs the bonds of the officers of the Central Bank to be made payable to the Governor. Hotchkiss, 220, 221, 214.

From the record it appears that Col. Anderson made a re- [2.] turn to the Central Bank in 1844, in which a balance of collections made upon the assets of the Darien Bank, seems to be admitted to be in his hands. This balance, with interest from the date of that return, make up the finding of the jury against him. The record discloses no mutuality of accounts, no claim of any

kind on his part against the Central Bank. He was in fact acting under a salary. The evidence amounts to an acknowledgment that he held in his hands, as agent of the Central Bank, a balance of collections, made out of the assets of the Darien Bank. The Court below instructed the jury that, under the facts in the case, they should allow interest to the plaintiff from the time of the receipt of the money by Anderson.” I have, for reasons that will hereafter appear,

recited the opinion of the presiding judge, literally, as it is written in the bill of exceptions. The two additional errors of which the plaintiff in error complains, grew out of this charge. And first, it is claimed that the Court erred in instructing the jury that the defendant in error was entitled to interest on the money receired by the plaintiff in error, from the time it was receired, because this is not such a liquidated demand as, according to law, bears interest. Second, in this, that the Court in its charge instructed the jury that, according to the facts in the case, they should find interest for the plaintif; thus usurping the province of the jury, by pronouncing a binding opinion upon the facts of the case. Other points were made in the assignment, but waived

upon

the argument. Whether Anderson is liable for interest on this

money, may depend upon the character in which he holds it. There is no question about the liability of executors, administrators, guardians, and other trustees, to pay interest upon trust funds in their hands, even before the cestui que trust is legally entitled to demand them; much more, [3.] therefore, shall such funds bear interest when improperly withheld from those entitled to receive them. The same doctrine applies to agents. “ Thus, (says Story,) if an agent improperly withholds the money of his principal, he is made liable for the ordinary interest of the country where it ought to be paid.” Story on Agency, 215; Short vs. Skipwith, 1 Brock. Cir. R. 103, 104; 2 Kent, 630, note.

He was the agent of the Central Bank, his duty was to pay to that

Anderson and others rs. The State of Georgia.

Bank all moneys collected by him as such, within a reasonable time; the money in this case was improperly withheld. If it was his duty to pay it over at once, and he shows no excuse or reason why it was not, the inference of the law is, that the money was improperly withheld. And here we might safely rest this question, but we think it expedient to inquire further, whether this is such a liquidated demand as under our statute and the general law bears interest.

[4.] The consideration of this question was brought before this Court in Nisbet rs. Lawson. Nisbet, an attorney, having collected money and paid it over to the person claiming it, and who he supposed, but erroneously, entitled to receive it, was sued by the true owner, and by this Court held liable to pay, with interest from the time demand was made. In the opinion delivered in that case, the statute of Georgia, and also the general law, came under review of the Court. The 28th section of the Judiciary act of 1799 is in the following words: “ No verdict shall be received on any unliquidated demand, where the jury have increased their verdict on account of interest, nor shall interest be given on any open account in the nature of damages.” Prince, 427. In relation to this statute, this Court, in Nisbet vs. Lawson, held this language: “ Are all demands open accounts and unliquidated, unless evidenced in writing? We hold not. We understand by liquidation, an amount certain and fixed, either by the act and agreement of the parties, or by operation of law; a sum which cannot be changed by the proof; it is so much or nothing; and that the term does not necessarily refer to a writing: an open account is the reverse of this. And this definition is warranted not only by the most approved lexicons, and by common as well as legal parlance, but imperiously demanded by the principles of justice.” 1 Kelly R. 287. This opinion is sustained by authority. By all fair construction the Legislature, in the use of the terms unliquidated and open accounts, must have had reference to their-legal import. The act itself remits the courts to the law of force at the time of its passage, for a determination of what are unliquidated demands and open accounts. If it was the intention of the Legislature to say, that no demand is liquidated but that which is reduced to writing, and that all accounts are open which are not so reduced, the first suggestion of common sense, as well as the first impulse of legal learning, would have constrained a simple declaration to that effect. The manner in which these terms are used in the act demonstrates that the Legislature, by open accounts, meant

Anderson and others os. The State of Georgia.

unliquidated demands, and rice versa. Now I think it is well, even incontrovertibly, established by authority, that debts cristing in account, not reduced to writing, are liquidated. I do not, of course, mean that all debts resting in account are liquidated. Thus in cases cited from Burrow and Vesey in Blaney vs. Hendrick, 3 Wils. 205, an account stated between merchant and merchant, is said to be liquidated. Mr. Story commenting upon this head of contracts says, “a contract to pay interest is implied whenever there is a liquidated claim, or account of which there has been a demand or notice" - making an account of which there has been demand and notice, synonymous with a liquidated claim. Story on Con. 432. The same writer further says, “the demand of payment of an unsettled claim, being equivalent to the rendering of an account, entitles the party making it to interest from the time of the demand and liquidates it if it were before unliquidated.” Story on Con. 433. Again, what is an open account is shown in the following quotation from Story: “No interest is allowed on an open and running account, but as soon as an account is stated and rendered to the debtor, and no objection is made thereto by him, interest begins to run.” Story Con. 432. By which I understand the writer to say, that when an account is stated and rendered and no objection made to it, it is no longer an open and running account, it is liquidated. So also in Walden vs. Sherburne, 15 John. 409, where there were mutual accounts and a balance ascertained by the parties, the account was said to be liquidated. Without labouring this point further, we may assume, that open accounts are such as are not liquidated, for example where there are mutual accounts still running and no balance struck; where the balance is constantly varying. See 6 John. R. 45. And that accounts are liquidated, in all cases in which, according to the books, interest bas been allowed, for liquidation is the test of interest. Certainly it may be safely assumed from the authorities cited, that reduction into writing is not necessary to constitute a liquidated demand.

It still remains, however, to be ascertained whether the account against Anderson is a liquidated demand ; if it is, it bears interest, and the Court below committed no error, as to this matter, in its instructions to the jury. It may be necessary to repeat, that Anderson, as agent, in his report to the Central Bank admits a balance in his hands. He is the wrongful detainer of the money of his principal. The question is, does such admission and such wrong. ful detainer charge him with interest ? in other words, is it a liqui

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