
    
      The State vs. The Bank of Charletson.
    
    After a Bank has suspended specie payments, its charter (in contemplation of law,) is forfeited; but where, after its charter was thus forfeited, it continued to exist de fado, and exercised all the privileges and immunities previously granted by the Legislature', and the Legislature afterwards, by subsequent legislation, declared that the corporation shall exist — It was held to be a waiver by the State of previous forfeiture.
    Note. The pleadings ave given entire in this case, believing'that they will be acceptable- to the profession, as valuable precedents for future reference. — Rep.
    
      Before Butler, J., at Charleston, May Term, 1843.
    This was a scire facias to vacate the charter of a bank, for having suspended specie payments ; and came up upon a demurrer to the defendant’s plea. The pleadings are as follows:
    DECLARATION.
    
      State of South Carolina, ) T Charleston district. $ o vn .
    
    The State of South Carolina sent to the sheriff of Charleston district aforesaid, its writ in these words, that is to say: The State of South Carolina, to all and singular the sheriffs of the said State, greeting. Whereas, in and by a certain Act of the General Assembly of the said State, duly made and ratified on the seventeenth day of December, in the year of our Lord one thousand eight hundred and thirty-four, entitled “An Act to establish and incorporate another Bank in the city of Charleston,” after reciting that it was beneficial to the citizens of the said State, that another bank should be established in the city of Charleston, in the district of Charleston and State aforesaid, it was provided and enacted, that subscriptions should be received for the purpose of raising the sum of two millions of dollars, to constitute the capital stock of the said bank, by certain persons, at certain places and on certain days, in the said Act mentioned and specified ; and . that all subscribers to the said capital stock, paying their subscription moneys respectively, and all persons who might afterwards become stockholders in the said company, upon complying with certain terms and conditions precedent, in the said Act mentioned, should be, and were thereby, incorporated, and made a corporation and body politic, by the name and style of “ The Bank of Charleston, South Carolina,” and should so continue until the first day of June, in the year, of our Lord one thousand eight hundred and fifty-six; with power at any time, before the expiration of the charter of the said Bank of Charleston, South Carolina, to extend the amount of the capital stock subscribed to a further sum of two millions of dollars. And in and by the said Act of the General Assembly aforesaid, the said State did, amongst other things, give and grant unto the said Bank of Charleston, South Carolina, the liberties, privileges and franchises following, that is to say; to be a corporation and body politic, and by the name and style aforesaid to be capable in law to have, purchase, receive, possess, enjoy and retain, to it and its successors, lands, rents, tenements, hereditaments; goods, chattels, promissory notes, bills of exchange, and all other dioses in action, moneys and effects, of what kind, nature or quality soever, to an amount not exceeding, in the whole, three times the amount of the capital stock of the said corporation, and the same to sell, alien or dispose of; and also, to sue and be sued, implead and be impleaded, defend and be defended, in Courts of record, or any other place whatsoever; and also, to make, have and use, a common seal, and the same to break, alter and renew, at'pleasure ; and to discount promissory notes, at a rate of interest not exceeding one per cent, for every sixty days, and to deal and trade in bills of exchange; and also to ordain, establish and put in execution, such by-laws, ordinances and regulations as shall seem necessary and convenient, for the government of the said corporation, not being contrary to the laws of this State or of the United States; and generally to do and execute, all and singular, such acts, matters and things, which may be deemed necessary and proper for the good government and management of the said corporation ; subject nevertheless- to such regulations, restrictions, limitations and provisoes, as shall hereafter be prescribed and declared. And in and by the provisions of the said Act of the General Assembly aforesaid, the said State did further give and grant unto the said Bank of Charleston, South Carolina, the liberty, privilege and franchise of receiving and holding moneys on deposit; and also the liberty, privilege and franchise of issuing promissory notes and bills of credit, in the nature of a circulating medium, payable on demand when due, in gold and silver current coin of the said State; provided, that no bill or promissory note, for the payment of money, should be issued by the said Bank of Charleston, South Carolina, of a less denomination or of a less amount than the sum of five dollars. And in and by the said Act of the General Assembly aforesaid, it was also provided and enacted, that thirteen directors should be annually elected by the stockholders of the said Bank of Charleston, South Carolina, and that the said directors should choose one of their own number as president; and that the said president and directors should exercise such powers and authorities for the well government and ordering of the officers of the said corporation, as should be prescribed, fixed and determined by the laws and regulations thereof. All which, in and by the said Act of the General Assembly aforesaid, reference being thereunto had, will, amongst other things, more fully and at large appear. And whereas, after the making and ratification of the said Act of the General Assembly aforesaid, the subscribers to the capital stock aforesaid, and other persons, being stockholders in the said Company, having complied with and fulfilled the conditions precedent aforesaid, in the said Act prescribed, commenced business as an incorporated bank in the city of Charleston aforesaid, in the district and State aforesaid ; and from thence hitherto, to wit, for the space of five years last past, and upwards, at the city of Charleston aforesaid, in the district and State aforesaid, the said Bank of Charleston, South Carolina, by virtue of the said Act of the General Assembly aforesaid, did use, and still doth use, the liberties, privileges and franchises following, that is to say ; of being a corporation and body politic, in' law and in fact, by the name and style aforesaid ; and, as such corporation and body politic, of issuing promissory notes, and bills of credit, in the nature of a circulating medium ; of receiving and holding moneys on deposit; of discounting promissory notes ; of dealing and trading in bills of exchange ; and of carrying on and transacting such other moneyed operations and banking business, as are usually carried on, transacted and performed by incorporated banks. And whereas, we are given to understand, that after the said Bank of Charleston, South Carolina, had commenced business as an incorporated bank, as aforesaid, to wit, on the eighteenth day of May, in the year of our Lord one thousand eight hundred and thirty-seven, at the city of Charleston aforesaid, in the district and State aforesaid, the said Bank of Charleston, South Carolina, having, before that time, put forth and issued, and having then and there outstanding and in circulation, as part of the actual currency of the said State, the promissory notes and bills of credit, in the nature of a circulating medium, of the said Bank of Charleston, South Carolina, so put forth and issued as aforesaid, to a large amount, to wit: to the amount of one million of dollars and more, and having also, before that time, received, and then and there having and holding, on deposit, divers other large sums of money, amounting, in the whole, to the sum of eight hundred thousand dollars and more, for and on account of divers citizens of the said State, and others ; the president and directors of the said Bank of Charleston, South Carolina, resolved to suspend the payment in gold and silver, legal current coin of the said State, as well of all promissory notes and bills of credit, in the nature of a circulating medium, put forth and issued by the said Bank of Charleston, South Carolina, and of all moneys received and held by the Bank of Charleston, South Carolina, on deposit, as of all other debts, dues, obligations and liabilities, whatsoever, of the said Bank of Charleston, South Carolina; and then and there declared the determination of the said Bank of Charleston, South Carolina, to suspend and refuse the payment in gold or silver, legal current coin of the said State, of the promissory notes and bills of credit, in the nature of a circulating medium, of the said Bank of Charleston, South Carolina, and of all moneys received and held by the said Bank of Charleston, South Carolina, on deposit; and that the said Bank of Charleston, South Carolina, from the said eighteenth day of May, in the year of our Lord one thousand eight hundred and thirty-seven, until the first day of September, in the year of our Lord one thousand eight hundred and thirty-eight, at the city of Charleston aforesaid, in the district and State aforesaid, continually did refuse, on demand made at the banking house of the said Bank of Charleston, South Carolina, during the regular hours of doing business, to redeem or pay in gold or silver, legal current coin of the said State, the promissory notes and bills of credit, in the nature of a circulating medium, of the said Bank of Charleston, South Carolina, which had been put forth and issued by the said Bank of Charleston, South Carolina, and did also then and there refuse to pay in the said coin the moneys received and held by the said Bank of Charleston, South Carolina, on deposit; and during all the time last aforesaid, the said Bank of Charleston, South Cai’olina, at the city of Charleston aforesaid, in the district and State aforesaid, continued, nevertheless, to put forth and issue the promissory notes and bills of credit of the said Bank of Charleston, South Carolina, in the nature of a circulating medium, to receive moneys on deposit, to discount promissory notes, to deal and trade in bills of exchange, and to carry on and transact such other moneyed operations and banking business, as are usually carried on and transacted by incorporated banks, and then and there, during all the said time last mentioned, paid out, as money, upon such deposits, discounts and other banking operations and transactions, the promissory notes and bills of credit of the'said Bank of Charleston, South Carolina, and of other incorporated banks which had also then suspended payments in legal current coin. To the great damage of all the good citizens of the said State; in violation of the trusts and conditions pf the charter of incorporation granted to the said Bank of Charleston, South Carolina, by the said Act of the General Assembly aforesaid, and to the utter perversion of the ends, objects and purposes for which the powers, authorities, liberties, privileges and franchises aforesaid, were given and granted to the said Bank of Charleston, South Carolina, as aforesaid.
    And whereas, also, in and by another Act of the General Assembly of the said State, duly made and ratified on the eighteenth day of December, in the year of our Lord one thousand eight hundred and forty, entitled “An Act to provide against the suspension of specie payments by the Banks of this State,” it was, amongst other things, provided and enacted, that the provisions of the said last mentioned Act should be and become a part of the charter of every Bank already incorporated within the said State, which should accept the same; and that every Bank in the said State which had heretofore suspended the payment of its notes in legal coin, or which had declared its determination to refuse or suspend such payment, should, on or before the first day of Máreh next after the ratification of the said last mentioned Act, notify the Governor of the said State of its acceptance of the provisions of the said last mentioned Act: and that in case any such Bank should neglect to give such notice, the said Governor should forthwith cause legal proceedings to be instituted against such Bank, for the purpose of vacating and declaring void its charter. And whereas, we are further given to understand, that although the said first day of March next after the ratification of the said last mentioned Act, hath elapsed, the said Bank of Charleston, South Carolina, not only hath not as yet notified the Governor of the said State of its acceptance of the provisions of the said last mentioned Act, but, on the contrary thereof, at a general meeting of the stockholders of the said Bank of Charleston, South Carolina, duly called, according to the provisions of. the charter aforesaid of the said Bank of Charleston, South Carolina, and held in the city of Charleston aforesaid, in the district and State aforesaid, on the twenty-seventh day of February, in the year of our Lord one thousand eight hundred and forty-one, the said stockholders, by a resolution duly made and adopted, absolutely refused to accept the provisions of the said last mentioned Act, as a part of the charter of the said Bank of Charleston, South Carolina.
    By reason of which said several premises, the charter of incorporation aforesaid, and all the powers, authorities, privileges and franchises, in and by the said first mentioned Act of the General Assembly aforesaid, given and granted to the said Bank of Charleston, South Carolina, as aforesaid, have become forfeited to the said State, and are and ought to be forfeited and made void, and of no force and effect in law; and the said charter of incorporation, and all the said powers, authorities, liberties, privileges, and franchises, oughtto.be repealed, revoked and annulled : And we being willing that what is just and right should be done in the premises, you and each of you are hereby ’Commanded, that by good and lawful men, of your and each of your respective districts, you give notice to the said Bank of Chárleston, South Carolina, to be and appear before the justices of the said State, at the court of common pleas, to be holden at Charleston, in the district of Charleston and State aforesaid, on the first Monday in May nest, to shew cause, if any cause the said Bank of Charleston, South Carolina, can shew, why the said charter of incorporation, and all the powers, authorities, liberties, privileges and franchises aforesaid, in and by the said first mentioned Act of the General Assembly aforesaid given and granted to the said Bank of Charleston, South Carolina, as aforesaid, should not be forfeited to the said State, and be repealed, revoked, annulled and declared void and of no force and effect in law. And have you this writ before the Clerk of the said court, at Charleston aforesaid, fifteen days next before the sitting thereof. Witness, B. R. Carroll, Esq., Clerk of the court at Charleston, the twelfth day of April, in the year of our Lord one thousand eight hundred and forty-one, and of American Independence the sixty-fifth.
    At which said first Monday in May, in the year of our Lord one thousand eight hundred and forty-one, comes here Henry Bailey, Attorney General of the said State, and on behalf of the said State offers himself against the said Bank of Charleston, South Carolina, of the plea aforesaid; and the said sheriff, to wit: Alexander H. Brown, sheriff of Charleston district aforesaid, now here, returns that he hath in due form of law given notice to the said Bank of Charleston, South, Carolina, to be here, on the said day in the said writ mentioned, to shew, as by the said writ the said Bank of Charleston, South Carolina, is commanded: and the said Bank of Charleston, South Carolina, being solemnly demanded, appears by Petigru & Lesesne, its attorneys. Whereupon, the said Henry Bailey, Attorney General as aforesaid, on behalf of the said State, prays judgment against the said Bank of Charleston, South Carolina, and that the charter of incorporation aforesaid, and all the powers, authorities, liberties, privileges, and franchises, aforesaid, given and granted unto the said Bank of Charleston, South Carolina, as aforesaid, may be repealed, revoked, annulled, and declared void and of no force and effect in law.
    Plea.
    And the said The Bank of Charleston, South Carolina, by Petigru and Lesesne, their attorneys, come, and make protestation, that there is not any such provision in the Act of the General Assembly, made on the seventeenth day of December, in the year of our Lord one thousand eight hundred and thirty-four, declaring the bills of credit, or promissory notes, thereby authorized to be issued by the said The Bank of Charleston South Carolina, to be in the nature of a circulating medium, and making the payment of the same, on demand, in gold and silver coin, a condition annexed to the grant of the franchise of being a corporation, and that the matters contained in the said writ of scire facias are insufficient in law, and that the said The Bank of Charleston, South Carolina, is not bound by the law of the land to answer thereto; for plea, nevertheless, the said The Bank of Charleston, South Careliha, say; that the franchises conferred by the said Act of the seventeenth day of December, in the year of our Lord one thousand eight hundred and thirty-four, ought not to be seized by the State, and taken away from the said The Bank of Charleston, South Carolina, nor the said charter revoked; because, they say, that after the first day of September, in the year of our Lord one thousand eight hundred and thirty-eight, that is to say, on the twenty-first day of December, in the year of our Lord one thousand eight hundred and thirty-nine, by a certain Act of the said General Assembly, entitled An Act to extend the time of payment of the last instalment of the increased capital of the Bank of Charleston, South Carolina, it was enacted, that the last instalment of fifty dollars .'on the increased capital stock of the Bank of Charleston, South Carolina, should be paid at such time as the president and directors might call therefor, as by the said Act, among other things, relation being thereunto had, doth fully appear; by reason whereof, the charter of the said The Bank of Charleston, South Carolina, is confirmed, made good, available and of perfect force, to all the citizens of this State, according to the true intent and meaning of the said Act of Assembly. All which the said bank is ready to verify, and therefore demand judgment, whether the said charter should be revoked, or the franchise of being a corporation seized by the said State, and so forth.
    To this plea the Attorney General, on behalf of the State, demurred generally, and the defendant joined in demurrer.
    Judgment of the Court.
    This case is distinguished from that of The State against The Bank of South Carolina, in the particulars set forth in the defendants’ special plea, and should therefore be decided on its own separate merits'. I am satisfied that the special plea of the defendant is a sufficient and valid bar to the proceedings of the plaintiff; and I therefore overrule the plaintiff’s demurrer, and award judgment for the defendant on the plea.
    The Attorney General, on behalf of the State, appeals from the judgment of his Honor, and moves that the same may be reversed, and judgment awarded for the State, on the sevei'al grounds of appeal taken from the judgment of his Honor in the case of The State against The Bank of ■South Carolina, which is above referred to by him, a copy of which judgment and grounds of appeal is hereunto annexed ; and upon the further ground,
    That the matters set forth in the plea of the defendant, in the present case, do not constitute a bar to the action of the State.
   Curia, per

Harper, J.

If the charter of the defendants was forfeited by the suspension of specie payments in 1837, and the forfeiture were incurred from the time of the act committed, we are of opinion that the Act of 1839, which is pleaded, must be regarded as a waiver of the forfeiture. If the process of quo warranto would be a proper one to try the question of forfeiture, it follows of necessity that the forfeiture is regarded in law as incurred from the time of the act committed. The very foundation of the proceeding is, that the defendants are guilty of usurpation, by exercising their corporate franchise after the act by which forfeiture is incurred.

In the case of the King vs. the city of London, so much referred to on both sides, and which is the earliest case we have upon the subject, to the quo warranto, the city pleaded its charter. To this the Attorney General replied the acts which were relied on as the causes of forfeiture, and concluded “ by which the Mayor, Commonalty and citizens, the privilege, liberty and franchise of being a body politic and corporate, did forfeit, and afterwards, by the time in the information, that liberty and franchise of being a corporation did usurp upon the Kingand according to this was the judgment of the Court. 8 Cobbett's State Trials, 1071. It was objected by Sir George Treby, the City Recorder, that if the defendants were charged with usurpation and not being a corporation, whether by forfeiture or otherwise, the information should not have been against the City by its corporate name, but against particular persons — the individuals composing the pretended corporation. Ibid, 1118. To which Sir Robert Sawyer replied, that úntil seizure they continued a corporation de facto. Id. 1154. Both seem to agree that, de jure, the forfeiture is incurred from the time of the act committed. Sir James Smith’s case is relied upon as tending to shew that the quo warranto is not the proper process, and that the corporation continues till judgment. The question in that case, as reported in 4 Mod. 58, seems to be with respect to the validity of the judgment against the city ofLondon. Lord Holt is made to say — “A corporation may be dissolved, for ’tis created upon a trust; and if that be broken, ’tis forfeited; but a judgment of seizure cannot be proper in such case — for if it be dissolved, to what purpose should it be seized.”

‘‘Therefore, by this judgment in the quo warranto, the corporation was not dissolved; for it doth neither extinguish nor dissolve the body politic.”

“Whenever any judgment is given for the King, for a liberty which is usurped, 4is quoad extinguatur, and that the person who usurped such a privilege, ‘libertat, &c., nulla tenus intromittat, &c.,’ which is the judgment of ouster. But the quo warranto must be brought against particular persons.” But if the quo warranto must be brought against particular persons, it should seem to follow that by forfeiture, the corporation is dissolved both de facto and de jure. This would be a most dangerous doctrine, especially with regard to banks, whose contracts and transactions with third persons are so numerous. But in Skinner, 311, (where the judgment is more fully reported under the title of the King vs. The City of London,) nothing of this sort appears, and the judgment is made to turn on a totally different point. It is said, the decision must depend, not on the judgment which was actually entered, but on the recital of it in the Act of Parliament restoring the privileges of the city of London. The stature recites the judgment, “the which is, thai the liberty, franchise, and privilege of the city of London, being a body politic, may be seized” — instead of “the liberty, &c., of being a body politic.” The statute was held to be conclusive, that the body politic continued to exist; for a corporation may continue to exist, though deprived of its franchises.

The case of the King vs. Amery, 2 T. R. 515, was one in which there was a judgment on a quo warranto against the City of Chester, similar to that against the City of London — that “the liberties, <fec. should be seized” but “quosque” until the further order of the Court. Against the judgment it was argued that there could be no judg-. ment of seizure under the quo warranto; if any, it should have been a judgment of ouster — that when corporations legally created, abuse any of the franchises to which they are entitled, or usurp others to which they have no claim, there the information is brought against the corporation as such, and there a judgment of seizure is given. But when a body of men assume to themselves to be a corporation, by any given name, and an information is brought against them, it must be by their individual names. To which it was replied that the corporate name is only a description of the persons sued; they continue a corporation, de facto, till judgment; and that only can decide whether they be such or not. The Court held that, the corporation not having appeared, the judgment against the city of Chester was final and conclusive, and the’ King having granted a new charter, the subsequent restoration of the old charter was null and void.

This j udgment was reversed in the House of Lords— not on the ground of any irregularity in the process of quo warranto or judgment of seizure ; but, as I learn from Kyd’s treatise on Corporations, (2 vol. 510 — the report of the case is said to.be published in two volumes, quarto — ) on the ground that the effect of the judgment quosque was only to suspend the use of the corporate franchises, so that the King might appoint a cusios, but not grant a new charter ; and by the charter of pardon and restitution of the old charter, the King’s hands were removed. The authority is fully in point as to the process and the judgment.

The judgment of the Court was delivered by Ash urst, Justice, and I cannot regard what is said by him in the later case, of the King vs. Parmon, 3 T. R. 244, as inconsistent with it, or intended to impugn it. In that case, where an integral part of the corporation was gone, which it had no power to restore, it was held ipso facto dissolved. The Judge says, “It was argued that admitting the old corporation to be in a state to be dissolved, that could not be effected without a scire facias to repeal the former grant, Or a judgment on a quo warranto. But I think those modes are only necessary to be pursued in the following cases. A scire facias is proper when there is a legal existing body capable of acting, but who have been guilty of an abuse of the power entrusted to them, <fec. And a quo warranto is necessary when there is a-body corporate de facto, who take upon themselves to act as a body corporate, but who, from some defect in their constitution, cannot legally exercise the powers they affect to use,” I do not very well understand what may be meant by “some defect in their constitution,” but the whole is said incidentally[as matter of argument, to shew the absurdity of requiring such formal proceeding to dissolve a body which is already ex> tinct.

All the elementary authorities take it for granted, as the familiar law, that this is the proper process when there has been a forfeiture for abuse, as well as when there was an original usurpation. So it is said in 1 El. Com,. 485, that a charter may be forfeited by neglect or abuse, and “that the regular course is to bring an information in nature of a writ quo warranto, to inquire by what warrant the members noto exercise their corporate power, having forfeited it by such and such proceedings.” The same thing is laid down with equal explicitness by Kyd, 2 vol. 395, 403-4. So it-is said by Justice Story in Terrett vs. Taylor, 962, 51, “A private corporation, created by the Legislature, may lose its franchises by a misuser or nonuser of then, and they may be resumed by the Government under a judicial judgment upon. a quo toarranto.” The various American cases brought to our view, from New York, from Pennsylvania, from Alabama and Indiana, were proceedings -by quo toarranto, to enforce a forfeiture for abuse, and in none of them is it questioned to be the proper process. In short, I have found no case or authority, in which there is a doubt or suggestion to that effect, or that the continuing to exercise the corporate franchises after an act of forfeiture, is not an usurpation.

Then the-Bank, though forfeited, in contemplation of law, continued to exist, de facto, so as to render its transactions valid. And this is by no means a thing unknown to our law. Such is the familiar case of administration granted, when there is a will and executor; the acts of the admistrator are valid until his appointment be revoked. Such too is the case of public officers who have failed to take prescribed oaths. The Banks thus existing, the Act of 1839 was passed, which provides “that the last instalment of fifty dollars on the increased capital stock of the Bank of Charleston may be paid at such time as the president and directors may call therefor, on notice of one month, published in two or more of the public gazettes in Charleston.” The original charter required those instal-ments to be paid at a specified time. Now it is not possible that any implication could be more absolutely necessary — if indeed it can be called implication — than that by virtue of the Act, the Bank shall be and continue a corporation, for the purpose of fixing the time for calling in the instalments, and giving the notice ; and of course for the purpose of exercising the other functions to which this is merely accessory, the power is granted indefinitely as to term. But when the Legislature, by law, declares that a corporation shall continue to exist, can it be doubted that this is a waiver of a previous forfeiture'? To say that a corporation existing by authority of law, is not a corporation de jure, would be an absurdity in terms. The case of The People vs. The Manhattan Co. 9 Wendall, 351, is an authority expressly in point, that a forfeiture may be waived by a subsequent act of the Legislature, recognizing the existence of the corporation.

I am inclined to think, too, that the adoption by the Legislature of the report of the Committee of Ways and Means, of the 20th Dec. 1837, was a waiver of this forfeiture. It appears from the report that the Governor had communicated to the Legislature the fact of the suspension of specie payments by the Banks of the State, with an exposition of the reasons for the step they had taken. This part of the message was referred to the Committee, who reported that they feel satisfied that the Banks are entitled to public confidence, which report was concurred in by both branches of the Legislature. The Comptoller General also communicated the same information to the Legislature. I think this must be interpreted into an approval of the conduct of the banks. I do not know any particular manner by which a party entitled to a forfeiture may waive it. Whatever is clearly significant of the intention, I suppose, will be sufficient. In Webster vs. Bannister, Doug. 394, the forfeiture of an annuity bond was waived by parol and giving day to the obligor. I do not know that the Legislature must waive by law. It may by resolution direct its officer to proceed to enforce the forfeiture ; and by parity of reason, it may direct him to forbear and remit the penalty. And certainly, when the pardon or amnesty is once granted, it cannot be recalled. It has passed in rem actam. To hold the contrary, would work the utmost injustice to persons who may have become holders of stock on the, faith of the legislative amnesty.

After these proceedings of the Legislature, it is scarcely necessary to investigate the question of notice to it of the act of forfeiture. It is ordered that the demurrer be overruled, and the judgment affirmed.

D. Johnson and Dunkin, Chancellors, Richardson, Q’-Neall, Butler and Wardlaw, Justices, concurred. J. Johnston, Ch., and Earle, J., absent.  