The Wheeling daily intelligencer. [volume] (Wheeling, W. Va.) 1865-1903, 1882-01-26

THAT CHARLESTON nANK CASE.
why the surstles are IlesistInE Payment
oitho states Claim.

OF tue states Claim.
Editors lntOlligenssE
An article in the DAILY INTELLIGENCE
otthe 18th inst, doubtless without intend
ing it, does injustice to one Of the most VI
right and highly esteemed judges in tn
State, ms well as to the sureties Of the Mel
chants Bank.
Now, some ofthe latter were HtvT stock
holders, Us supposed, in the bank other
may have been many years age, but had Ion
since disposed Of II; and two only GU. Q
eight are believed to have been stockhold
es when the controversy commenced year
ago, or arc so now. Nor was any divideAC
ever paid to any stakeholder from the dat,
ofthe alleged contract Of suretyship to til,
present time, But, on the contrary, all tht
net earnings Of the bank were held, will
the general fund, to meet the demands o
depositors. In addition to this, every dol
lar deposited to the credit Of the SLatI
after the date Of the alleged contract o
suretyship, was repaid, and more too, t
the State, before the bank was enjoined BY
tho court from paying any further; but
tho money so paid was applied by the
State on Il former Indebtedness Of the bank.
aud went to discharge other securities, and
shit the liability upon the defendants, and
they resist it.
The bank has been practically dead and
buried for half u dozen years, and cannot
now be affected by praise or blame. Requi.
cScdt in pace. But who killed It, is the
questioned quite rs much importance US
"WhO killed Cock Robin"
The State did not deal with the bank as
u blilee for the safe keeping Of It's funds,
but like any other trader, for its own con.
veniencc and profit deposited on special
contract Of loan for interest. II was OF the
essence Of the contract that the bank
should have the use Of these funds, and
make interest thereon with which to pay
the interest required. Profit and loss are
incidents Of trade; and who ever embarks
in the business takes the risks OF the re-
suit. Soin trade, us in litigation, the prin-
ciple is the same, that when States engage
in either they doR their sovereignty, and
are subject to the same rules as others.
Sureties have equal rights with the cred
itors. As they receive no consideration
they owe no debt, and are not bound in
law or equity, nor in conscience, to pay
except as they specifically stipulated in the
contract OF suretyship. Their obligations
must be sought in the terms Of the con-
tract. Ifthose terms be, us in this case, that
the bank shouldrepay all moneysdepoSited
by the Board OF Public Works, then they
cannot be made responsible for moneys not
deposited by the Board, and If the Board
never deposhrfany they were not liable
at NIL, and certainly not for deposits made
by sherilrs and others, nor for unpaid bal
ances existing long prior to the date OF the
contract OF suretyship-nor were they lia-
bic for deposits never demanded OF the
bank; nor for demands made while the
bank WIS enjoined from paying.
But the default Of this bank to pay was
the result OF IN injunction granted by the
court on an Gx parta application, without
the knowledge Of the bank, and while its
cashier was absent Mt Wheeling by compul-
sion OF the State, US a witness in tue i'm
parchment cases OF the State against the
Auditor and Treasurer, which injunction
prohibited and restrained the bank and
its officers from paying its debts or collect
ing its assets, or exercising any OF its cor
porate functions" The State also, at a
subsequent day, on its own motion, became
Il party plaintiff to the injunction suit,
which is still pending and undetermined,
aud the injunction undissolved. So that
the State became a pariiccp and contribu-
tory cause in producing the breach Of the
conditions, for whch-lhc suit against the
alleged sureties was brought.
Inc alternative was thus presented be-
tween obeying the injunction, or perform
ing the condl4ons. The condition was 10
pay; the injunction prohibited ut. But,
where the law compels breach OF q con-
dition it discharges the penalty OF it. The
State instituted two suits on the same
bond, one at Kanawha and the other at
Wheeling. The latter was deliberately
argued before his Honor, Judge Melvin,
and submitted for decision, and time taken
to consider, about year before Judge
Guthrie decided the case ut Kanawha.
The gravity and difficulty OF the questions
involved may be inferred from the time
taken to consider by Judge Melvin, pend
ing which, the State prays for hearing
OF The Kanawha case before Judge Guthrie
at the first term Of his official life. The
defendants preferred TO wait the decision
OF Judge Melvin, but the State demanded
the hearing before Judge Guthrie. The
case was again deliberately argued before
the latter judge.
The court gave TO the parties patient
and attentive hearing, and after careful in
vestigation OF the numerous authorities
cited, found itself constrained to pronounce
the law Of the case TO be against the State
and that the plaintiffs action could not bC
maintained, yet gave the plaintiff leave L
amend and make the Case better, il posi-
bic; but the plaintiff declined to amend
and so final Judgment wus rendered for thu
defednants: "That the plaintiff take moth
ing by the bill, but for its false clamor b.
in mercy, &c;" but without costs to the de
PENDANTS. Pending the argument Their,
were present, not only the resident bar
but lawyers OF distinction from other part
Of the State, and from Baltimore, Md
And the opinion was expressed. several,
Dy LlliluN VI lAlCIu NAlll nluSNlhl uLuulllllLl
that the plaintiff could not succeed in il
effort to subject the defendants TO the pay
mcnt Of its debt against the bank.
Judge Guthrie is resident Of Maso
county, and q stranger comparatively il
Kanawhn, until his recent official dutie
brought him to hold court in that county
Though, perhaps, the youngest judge O
the bench, he has shown himself courteou.
but firm, attentive and prompt, impartis
and laborious. Asan upright and etiicien
Judge he has given such satisfaction rs I
rank him high with long line Of predt
cesson. There is, perhaps, not judge |
\ the State upon whom the principle Of tn
NaugntuCket jury would have had less ii
Guencc. As to the defendants, for MOI
than half decade they have been ha
rasscd BY the State with untiring litigatio
in the premises ut law and in equity, I
Wheeling and at Kanawha, in the inferiC
courts and in the Court Of Appeals, an
they have been subjected to great cost an
expense, labor and trouble in deiendir
themselves successfully against relende
$ pursuit.