The Charleston daily news. [volume] (Charleston, S.C.) 1865-1873, 1868-11-02

| they we're to be attached. 1t was Lot an ofder
10 the sheriff to 80 and take the things. There
fore, if the respondents should be contu-
macious, they might be sent to prison and
kept there, out, SO lonr as they chose to stay
there, the object sought, l. e., the obtaining
posse ssion of the assets of the blnk, would not
be accomplished. He did not wish to say that
they would be contumacious, but they had
been advised by counsel, and it was still the
opinion OF counsel, that they would not be Just;-
fed in morals, conscience, or in law, If they
surrendered the assets of the bank until final
hearing was had in the case. For his part he
would not trust them with the key to safe II
they were to do such thing. Justice Willard
here remarked that he supposed that what the
counsel had just said vas intended by way OF
illustration. Mr.. Campbell said certainly, that
it was only intended as illustrative. He then
summed up his points against naandamnS be-
ing the proper remedy, as follows First, be-
cause there was no title shown in the claim
ants, but on the contrary, title was
acknowledged in the respondents. Second,
because the president and directors Of the
the writ, if pursued to the end, would still
be nugatory. Fourth, because the act does
not direct the officers to surrendo, the proper
ty. And fifth, because the power of the Attor-
ney-General to sue out nandanauS according
to the common law, as enlarged BY the act OF
1868, did not extend to this case. The Attor-
ney-General had said that he could not bring
det,nue, because part Of the assets was real
estate. "Trespass to try title" was as much
the proper action for obtaining possession OF
real estate as deti,1ue was to obtain possession
of personal estate, and the objection as to the
personal estate that the judgment in detlnue
was in the alternative, giving the subject OF
the suit or. damages; that fell to the ground,
because the very act itself called for sale at
auction, and it was better to get damages,
which were sure to be larger than the proceeds
of an auction. The next point in the argu-
on the other side had said that there was no
suit in the United States Court, because there
was suit pending in the Court OF Chancery,
and that there was no suit in the Court OF
Chancery, because jurisdiction had been taken
away. 1t was plain, however, that if the juris-
dicton of the Chancery Court had been taken
away, the suit in the United States Court was
o lis pendens, and if on the contrary the juris-
diction of the Chancery Court was good, and tho
suit in that court lis pendens, and the case in
the United States Court bad on that account,
the application for q mandamus here was bad
for the same reason.
Mr.. Campbell next took into consideration
the act OF 1865, which declared that the assets
OF the bank should be applied, first to the pay
ment of the foreign boDdholders, secondly to
the payment of the American bondholders,
and lastly to the payment OF the general credi-
tors This he said was n statutory mandate
to the officers of the bank. It was not political
statute but Just such an order as the corpora
tors of private bank would have right to
make but which would be OF no legal elect
unless it was carried ont through the rornnrn-
ton, i. e, by the officers or the bank. The
officers of the Bank Of the State had &C.
ceptcd the act of 1865, and had acted upon
it; they had given notice of it to the
foreign bondholders, and the latter had ever
since acted upon the faith Of that act. 1t had
been said on the other side that the act OF 1860
created no contract; that there were no parties
and no consideration, and that it was nudunl
pactun,. That there were parties to it had
already been shown-tLey woro the State on
one side and the bondholders on tho other.
The consideration was tho debt, the fact that
the money was owed. The money had been
borrowed on the faith of previous acts, and the
credit of the State had been faithfully sustain
ed BY the Barring Brothers in England up to
tho timc of the passage Of tho act-so well
sustained that the interest on its debt was paid
in gold when only enc other State IN the
Union massachusetts, was able to pay III
gold These we're COOL considerations that
would certainly enuro o support the act as
binding contract.
Justice Willard hero inquired whether coun-
sci supposed that the Barring Bros, the foreign
bondhoders, were the creditors of the bank or
only of the State, and whether, in either case,
the transfer of the possession OF the assets
from the president and directors of the bank
to the Governor Of the State would have the
effect of Violating the contract. Considerable
conversation ensued between the Justice a..d
the counsel on both sides as to the points in
volycd in the question. In tho coarse OF this
conversation, Mr.. Campbell! sad that the ques-
ton of whether the bank should be recharler-
ed or not, had been question of party poll
tics for years; ono party con:ending that
it was inexpedient to recharter the bank, and
that the State, being the only stockholder,
could revoke the charter at pleasure, and the
other that revocation of the charter would
be in bad faith to the creditors OF the bank.
The people had determined that the latter
opinion was correct, and the bank had been re-
chartered. During the time that question bore
so important part in State politics it had been
discussed in all its bearings. Nh. c. here read
the opinion of Mr.. Petigru, in which it was
stated that the creditors had the security Of
the public faith, and also the security Of the
bank. Mr.. c. read also, as part of the history
of the case, a letter from the Barings to Cover
nor Seabrook, written in lS49, in which
it was evident that they took the same
view of the matter. He also reviewed
the history of the case to show that it was the
understanding Of all parties that the pledge
of the profits was in addition to the pledge OF
the capital OF the bank already made. He
then went on to say that ii was new thing in