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[Weston et al. vs. The City Council of Charleston.]

United States: whereas it is the opinion of this Court, that so much of the said ordinance as imposes the said tax, is repugnant to the Constitution of the United States, and void. Whereupon it is considered, ordered, and adjudged by this Court, that the said judgment be, and the same is hereby, reversed and annulled, and that the said cause be, and the same is hereby, remanded to the said Constitutional Court for the state of South Carolina, that such further proceedings may be had therein as may consist with law and justice.

361

VOL. II.-2 H

46

*THE PRESIDENT, DIRECTORS, AND COMPANY OF THE BANK OF THE UNITED STATES, APPELLANTS, vs. DAVID WEISIGER, APPELLEE.

Where the appellee had died after the commencement of the term, and the Court not knowing his decease had decided upon the case, after argument, the Court ordered the decree to be entered as of the first day of the term.

IN this case, which had been argued on a previous day of the term, and the opinion of the Court delivered in favour of the appellants, (See ante, page 331,) Mr. Bibb having informed the Court that the defendant, Weisiger, had died since the commencement of the term; stated that he had been of counsel with the respondent, but he considered that his authority had expired by his death. He objected to the entry of a decree.

Mr. Sergeant, for the complainants, moved the Court to cause the decree to be entered of a day in the term before the respondent's death; and he cited Davis vs. Davis, 9 Ves. 461. Campbell vs. Mesier, 4 Johns. C. R. 342. Asburnham vs. Thompson, cited 2 Mad. C. P. 529, as fully establishing the practice according to his motion.

Mr. Bibb, contra.

The Court ordered the decree to be entered as of the first day of the term.

362

*JOSEPH MANDEVILLE AND OTHERS, APPELLANTS, vs. ROMULUS RIGGS, APPELlee.

Where a bill was filed against the stockholders of a voluntary association for the purposes of banking, and the process was returned “served" upon some of the parties named in the bill, and as to others, who were not within the reach of the process, "not found;" the Court stated, that it was not meant to say, that in cases of this nature it is necessary to bring all the stockholders before the Court, before any decree can be made. It is well known, that there are cases in which a Court of equity dispenses with such a proceeding, when the parties are very numerous and unknown; and the adoption of the rule would evidently impede, if not defeat the purposes of justice. [487]

Upon the death of some of the parties to the bill who had been served with process, the bill ought to have been revived against their personal representatives, if they could be brought before the Court; unless some good reason, such as absolute insolvency, could be assigned to justify the decision. [487]

One of the great principles upon which Courts of equity generally require all parties who are known and within the reach of its jurisdiction to be made parties, is to prevent future litigation and to take away multiplicity of suits. There are exceptions, it is true, to the rule, but they are founded upon special considerations. [487]

We know of no instances where a joint liability has been asserted before a Court of Chancery, on which the decree has not been made against all the parties before it who did not establish some personal discharge. [488]

In a bill filed in the Circuit Court of Alexandria county, in the District of Columbia, against the stockholders of an association for banking purposes, the bill was dismissed as to those stockholders who were named in the bill, but were not served with process; and it was held to be error. As non-residents, the act of Congress of the 3d of May, 1803, allows proceedings to be had against them by publication in the newspapers in the district. [489] Where an appeal from the Circuit Court to this Court was prayed by a number of the defendants, and one only executed the proper appeal bond, the objection to the proceeding ought to have been taken by way of preliminary motion to dismiss the appeal for irregularity, on account of the failure to give the proper appeal bond. [490]

THIS was an appeal from the decree of the Circuit Court of the United States for the county of Alexandria, in the District of Columbia.

In that Court, in July, 1818, a bill was filed by the appellee against certain individuals named in the subpoena, charging them with having entered into a certain association or copartnership, called "the Merchants' Bank of Alexandria." That the partnership, for a considerable time, issued notes *and bills, and in other respects [*483 prosecuted their trading or business as a bank, until about the month of May, 1816, at which time they became so embarrassed as entirely to put a stop to their proceedings. The bill then alleges, that sundry notes or bills of various denominations and amounts, issued and sent into circulation by the bank during its operations, amounting in the whole to twenty thousand dollars, regularly came. into the possession of the complainant, and that no part of them has been paid. The bill proceeds to present other facts and proceedings upon which the complainant claimed relief, and concludes with a demand for general relief.

The process was served on twenty-two of the stockholders and defendants; the whole number being sixty-one. An alias subpœna

[Mandeville et al. vs. Riggs.]

having issued, the marshal returned, as to the others, "not found; non-residents in the county of Alexandria." On the 13th of August 1818, a pluries subpoena was issued, on which the marshal returned, "executed on John M'Pherson; the other defendants not found.”

In November, 1818, the bill was taken for confessed, as to those defendants on whom process had been served, and who had not answered, and continued as to the others.

At May rules, 1820, and at November term, 1820, the suit was abated as to such of the deceased defendants upon whom the process was executed; and no proceedings were instituted to bring in their legal representatives. The answers of some of the defendants who were served with process having been filed, depositions taken, reports of the auditor made, and the arguments of counsel heard, the Court went on to decree the payment of certain sums to the complainant by the parties thus before the Court; apportioning the same according to the time they became stockholders in the bank, and the periods of issuing the notes held by the complainant. The bill was dismissed as to the other defendants who did not answer; and also as to all those who were either not served with process to appear in the case, or who were served with process, and not charged by any evidence on the part of the complainant.

The defendants against whom the decree was rendered, prayed *484] an appeal to this Court, which was allowed on their *giving bond and security, &c. Joseph Mandeville alone, of all the defendants, gave bond to prosecute the appeal.

It is not considered necessary to state in this report any of the points presented by counsel, upon which no opinion was expressed by the Court; and therefore those proceedings in the case, and matters set forth in the bill, answers, and evidence, which are not connected with, or required to exhibit the only question decided by the Court, and the arguments of the counsel upon them, are omitted.

The case was argued upon all the questions presented by the record, by Mr. Jones and Mr. E. J. Lee for the appellant; and by Mr. Wirt and Mr. Coxe for the appellee. The only points upon which the Court gave an opinion were, 1. The dismission of the bill as to the absent defendants who were not served with process. 2. The omission to make the legal representatives of those defendants who had died after they were served with process, parties to the proceedings. And, 3. The regularity of the appeal to this Court, Mandeville only having given bond.

Mr. Justice STORY delivered the opinion of the Court.

This is an appeal from a decree rendered in the Circuit Court of the District of Columbia, sitting in Alexandria, in a suit in chancery, in which the appellants were original defendants. The appellants are stockholders in an unincorporated association, which was formed in 1815, for the purpose of carrying on the business of banking, under the name of the Merchants' Bank of Alexandria; the nature and

[Mandeville et al. vs. Riggs.]

extent of which association is evidenced by certain articles of agreement, which were at the time published in the newspapers in the district, and are set forth in the case. The first article provides, that the capital stock may consist of one million of dollars, divided into shares of one hundred dollars each, which were to be payable by calls, provided for therein. In the other articles provision is made for the management of the business of the bank by directors, and for the issuing of bank notes, &c., to be signed by the president and countersigned by the cashier of the bank. The fifteenth *ar[*485 ticle declares the object of the stockholders to be, that the joint stock of the company "shall alone be responsible for the debts and engagements of this company; and that no person who may deal with the company, &c., shall on any pretence whatsoever have recourse against the separate property of any present or future member of this company, or against their persons, farther than may be necessary to secure the faithful application of the funds thereof to the purposes to which, by these presents, they are liable. But all persons accepting any bond, bill or note, &c., of the company, &c., thereby give credit to the said joint stock or property of said company, and thereby respectively disavow having recourse, on any pretence whatever, to the persons, or separate property of any present or future member of this company, except as above mentioned."

The whole stock of one million of dollars was subscribed, and calls to an amount of about one hundred and eighty-three thousand dollars were paid in, with money or by stock notes discounted for that purpose. The bank went into operation, and circulated its notes to a large amount; and finally, after about a year, the bank failed, leaving its notes to an amount, as it is said, of about ninety thousand dollars in circulation and unpaid, and having assigned all its property to certain assignees (who were not parties to the bill) for the payment of certain preferred debts, and then for the benefit of the creditors generally. These assignees have now no property in their hands for distribution. The original plaintiff is the holder of the bank notes of the bank to the amount of twenty thousand dollars and upwards, which remain unpaid. The form of the notes issued by the bank was as follows, "Capital, one million of dollars. The Merchants' Bank of Alexandria promises to pay to C. M'Knight or order, on demand, dollars." These

notes were signed by the president and countersigned by James S. Scott, who was cashier, and endorsed by C. M'Knight, in blank, without consideration; and solely to enable the notes to circulate as currency, as notes payable to the bearer.

The bill seeks payment out of the separate property of the stock holders, to the amount of twenty thousand dollars, the notes so held *by the plaintiff. It states the articles of copartnership, and charges that the notes were issued by the bank, and that it [*486 prosecuted business until May, 1816, at which time its affairs, either by mismanagement or by a fraudulent issue of paper beyond its known means, became embarrassed and stopped payment. But it

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