Johnston v. Talley

Bleckley, Judge. As to the bare question of the application of the limitation act of 1869, to bank-bills which ceased to circulate as currency prior to June 1st, 1865, this case is controlled by that in 49 Ga., 419. Holders of the stagnant bills should have brought suit upon them by the first of January, 1870. The bank did not surrender its charter until 1877, so that the ordinary period allowed by the Code, §2917, for instituting actions on promissory notes, bills of exchange or other simple contracts in writing, had run out whilst the bank could have been sued, even after the time fixed by the act of 1869 expired. Thus there was a double bar. The remaining question is, whether the bar can be urged by the stockholders of the defunct institution in a contest with creditors over the assets. “ Upon the dissolution of a corporation, for any cause, all of the property and assets of every description belonging to the corporation shall constitute a fund — first, for the payment of its debts, and then for equal distribution among its members. To this end the superior court of the county where such corporation was located, shall have power to appoint a receiver, under proper restrictions, properly to administer such assets under its direction.” Code, §1688. The fund is first for the payment of debts, but the debts referred to are such as the corporation might be coerced to pay, were it still in existence. Its defenses to claims survived the corporate dissolution, just as the claims survived. The right of urging the defenses would pass to whomsoever would take the assets as the result of defending successfully, to creditors in competing among themselves, and to stockholders in competing with creditors. This seems to us to be the reason of the matter; and the reason of it is the law of it, there being no other authority on the subject that we are aware of. [543] Cited for plaintiff in error: 19 Ga., 121; 30 Ib., 770; 2 Otto, 156; acts of 1869, p. 131; Code, §2922; 15 Ves. R., 196; 7 Metc. R., 352; 2 Ves. & B. R., 275 ; Ang. Lim., 233 ; 30 Ga., 771; 7 Ib., 159. Judgment reversed.