The Charleston daily news. [volume] (Charleston, S.C.) 1865-1873, 1868-11-03

400; Freeman vs.. Howe. "a How, $50.
For jurisdiction Of United States Court to
restrain State officers. see Conkling's Trea-
tise, 162 Osborn vs. Bank OF United States, 8
Wheaton, 757; Marbury ys. Madison, Cranch.
The exemption of the State from stability
is no objection to proceeding against it's Off
ce"s for executing an unconstitutional law.
Osborn vs. Bank Of United States, 0 Wheaton,
1852, 1881 Even though the State be interest
ed and not party, because not subject to
jurisdiction of court. Same case, 757; Woo
ruff vs. Trapnall, 10 Howl
State stript OF IT'D sovereignty by becoming
stockholder in corporation. (Conillng's
Treatise, 157, 159; Bank of United States vs..
The Planters Bank OF Georgia, Wheaton,
954.)
case pending in the Court OF Equity of this
State styled "Dabney, Morgan & Co., vs. the
Bank of the State of South Carolina and
others" Jurisdiction Of the Court is undoubt-
cd, and all parties in interest are repres ented,
including the Attorney-General Of South Caro-
lima. This case arises on bill filed by hold
er OF the bills or notes OF the bank, praying
that the assets now proposed to be taken by
the Governor should be appropriated to the
billholders. The prayer is alternative that the
assets sh .uld go either to the bflholders in
preference to all other creditors, or to the bill
holders pro rata with other creditors. The
President and Directors answer that they arc
Stockholders, but that under the act OF 1865
they arc ordered to pay, first, the fi1c loan
bondholders in Europe; second, the fire loan
stockholders IN the United States; and third,
the billholders; and defend this act as in con-
formity with the duty of the bank, as imposed
by the act of 1888. and the equities OF the par
ties Interested. The Barings were afterwards
made defendants by consent, who claimed not
only that good faith required that the act OF
1865 should be carried out, but that the act OF
1888 gave them lien on the assets of the
bank, and that the act of 18j was but con-
pledge bo OF ''profts" only, or Of the wholefre
loan "fund" is immatcrial, as conceive:
pledge OF "prohts" until debt is paid is
pledge, until that event, Of the fund
itself. Besides, in this case, 1t can be shown
that the bank has returned to the State the
thereon, and that the whole Of the assets con-
sist of profits" These "pro6ts" were
directed to be made "sinking fund.-" to be
held for the ultimate redemption OF the fire
loan debt. 1t can be shown that all OF the
most valuable of these assets were in fact
purchased by the money arising from these
"prof;s," and invested in the assets now held
by the bank. But all this, have supposed,
was only material in the case in equity, which
is intended to determine the order Of priority
among creditors. 1t is sufficient on this
occasion, to show that the funds sought to be
taken are subject to the Court of Equity for
distribution among creditors to whom, 1.-THE
creditors as is decided by the Supreme Court
of the United States, they" solely belong"
In addition to the return of lis pendens thus
arising, it Is urged that the iecretat orders Of
Chancellor Carroll give vested right to the
parties in all the benefits to bo derived there
tlom. The jurisdiction Of the court Was
confirmed by tho Convention, has never been
taken away by tho Legislature and it is o IN.
heard Of legislation that n particular case
should be taken out OF the courts and tho
subject matter disposed of by the Legislature.
1t is au interference with vested rights, and
an "impairng Of tho obligations Of con-
tracts" In the sense in which contracts are
protected by the Constitution OF the United
States.
These points Mr. H. thought 50 Conclusive
that he only briefly touched on those that fol-
low.
Mandamus should not be granted when it
will subject those executing it to legal liability.
Tapp Man. GO; Rex w. DAyrell, 8Eng. Z. l.. II.
1885, Queen vs. Pitt 81, Eng. G. L. K. 1O7.
President and Directors would be liable to
suing creditor And cashier would be liable
OH his bond il he oboyed an order palpably IL
legal. They arc liable in tho suit pending.
Certainly arc liable should they disregard the
decrotal orders OF Chancellor Carroll; and hav-
ing boon notified of tho motion of Barring Bros.
& Co. for injunction, arc bound to await tho
decision.
AlanQIlnuS IS nOG nTduJcu W plhC I'LL CtoiOi
or moro expeditions remedy, but only where
therc is no other remedy. Tapp. Mand. IL;
Rex vs. Stafford 8, I. II. 649.
Parties interested in defonce should be made
parties Angel & Ames on Corp. 5S1; Rex vs.
Banks 8; Burrows 1452.
The Jurisdiction OF the court to command tho
PARTICULAR act or duty must b9 clear otherwise
Tn conclusion, it is submitted that nothing
l., ND
charge the Directors OF the bank with contu-
macy as standing out improperly against the
authority OF the State. As Stockholders, they
have duties to perform and obligations OF honor,
as we'll as legal. They arc trustees, and as
such they surely are not to shrink from the
duties which the law, as vol as good faith and
personal honor requires, simply because they
have "not!liug to gam" Arc duty and good
faith the less sacred because there is '.nothnG
to gain" by observing them? Tho directors
have no salaries" however ''paltry the sum-"
They have none at all, nor have they emolu-
m.nts OF any kind. or incidental advantages,
all OF which IL set forth in their return. Ihcy
have, however, as trustees, legal rcsponsblil-
tics, and as men OF honor and problty, they
feel that these arc not the less obligations be-
cause their performance gives no gain"
And in regard to the suit in the United States
Court can it, with any propriety, be said that
Barring Brothers & 20. arc "prcsumptnons IN
termeddlcrs?" 7" They arc creditors OF the Dank,
with bonls past due and unpaid, Is it pre-
sulnptuous in debtor to ntermcd.lle when The
assets of his debtor arc the subject Of conlro-
versy? Is it "prcsumptuOus' for creditor to
protest against the act OF the co-debtor, who
has failed to meet his engagements, when he
attempts to possess himself OF these assets?
The Barings, besides this, claim specific
lien in preference to all other creditors-a
lien, as they believe, created by the act IT
1888, attempted to be enforced and confirmed
oy the act Of 1865, and constantly acknowledge
cd and confirmed by the bank, which, for
thirty years, has been the debtor with whom
they have dealt. But they submit this as they
do their entire claim against the bank to the
adjudication OF the courts, and ask: on the
present occasion, only that the funds which
belong certainly to the creditors should not be
placed beyond tho reach Of the courts and the
proceedings already instituted. Arc they to
be stigmatized for this? Whether they are to
be preferred or not, they leave to future ad-
Indication; but that they are creditors cannot
be doubted and as such the president and
directors of the bank are bound by every prin-
ciple of law, Of good faith and honor, to pro.
tect them, although they may 'gain nothing"
in the contest but the consciousness OF duty
performed.
ROhnrfa ~ Till