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and recites the several acts amending the charter. The scire facias recites the privileges and franchises of the bank, and the use of the several liberties, privileges and franchises given to it by the act of incorporation, and then further alleges that the president and directors, for the time being, of the said Bank of South Carolina, resolved to suspend the payment of gold and silver, legal current coin of the said State, as well as of all promissory notes and bills of credit in the nature of a circulating medium put forth and issued by the said Bank of South Carolina, and of all moneys received and held by the said Bank of South Carolina on deposit, as of all other debts, dues, obligations and liabilities whatsoever of the said Bank of South Carolina, and then and there declared the determination of the said Bank of South Carolina to suspend and refuse the payment of 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 South Carolina, and of all moneys received and held by the said Bank of South Carolina on deposit; and that the said Bank of South Carolina from the 18th day of May, 1837, until the 1st day of September, 1838, continually did refuse, on demand made at the banking house of the said Bank of South Carolina, 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 South Carolina, which had been put forth and issued by the said Bank of South Carolina, and did then and there refuse to pay, in the said coin, the moneys received and held by the said Bank of South Carolina on deposit," etc.

The scire facias then, in the same manner, alleged a second suspension of specie payment on the 14th of October, 1839, and from that day to the 21st of July, 1840, during which time the bank continued to do business, receive de

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posits, discount notes and issue bills paying out only its own notes and the notes of other suspended banks.

"The scire facias lastly set forth that by an act of the General Assembly of said State, ratified on the 18th December, 1840, entitled 'An act to provide against the suspension of specie payment by the banks of this State,' it was provided that the provisions of the said act should be and become a part of the charter of every bank already incorporated within 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, and that every such bank should, on or before the first day of March next, after the ratification of the said mentioned act, notify the Governor of said State of its acceptance of the provisions of the said act, and 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. The scire facias averred that the bank did not accept the said act within the time specified," etc.

To this declaration the defendants pleaded-first, not guilty; second, that the bank at or between either of the times mentioned in the declaration did not, on demand made, refuse to redeem or pay in gold and silver, etc.-a general denial; third, that the bank did not continually refuse to pay its depositors in gold or silver on demand; fourth, "nul tiel record," as the charter alleged in the declaration; and, fifth, a special plea-to-wit:

The Bank of South Carolina saith that before the 18th of May, in the year 1837-that is to say, on the 1st day of May, in the year aforesaidthe banks in New York, Baltimore, Philadelphia, Richmond, and Fayetteville had suspended specie payments; by reason whereof an extraordinary scarcity and appreciation in value of gold and silver coin took place, whereby the payment of the notes of the Bank of South Caroolina, and of the debts due and owing by the said bank for deposits in

gold and silver without delay became impossible; and the said, the Bank of South Carolina, in common with all the banks in Charleston, did resolve to suspend the ordinary redemption of their bills and the payment of their deposits in gold and silver until such time as the same could be done by solvent banks in good credit with safety to the country, as well they might. And that on the first day of September, in the year 1838, the said Bank of South Carolina resumed the ordinary payment of gold and silver, in satisfaction of their debts and liabilities without delay, until the 14th day of October, in the year 1839; and that before the last-mentioned day another general suspension of the banks in Fhiladelphia and Baltimore, and in the States of Virginia and North Carolina, as well as of the banks to the south and west of Charleston, with like effects, took place; that in consequence thereof the demand for gold and silver, in payment of bank notes and deposits in bank, became and were extraordinary and irregular, having no reference to the quantity of paper in circulation or unto the credit or solvency of the banks on whom such demands were made, but solely to the drain of specie for foreign markets, and for the traffic in gold and silver carried on by persons trafficking in the precious metals; that the said Bank of South Carolina, on both the said last-mentioned days and years was, and from thence continually has been, a solvent company, having sufficient means for the payment of its debts without any diminution of its capital stock; but by reason of the confusion of commercial affairs and extraordinary demands for coin, the said bank was not able to pay its dues and liabilities in gold and silver coin without making oppressive and ruinous exactions of its own debtors, and that under these circumstances the president and directors of the said bank, in common with divers other good and solvent banks of the city of Charleston, resolved to suspend the payment of gold and silver coin, etc.

And that afterwards-to-wit: on the 21st day of July, in the year 1840the said Bank of South Carolina, having all along kept in view the duty of paying their debts and liabilities in gold and silver coin, according to the law of the land, made their arrangements to accelerate, as far as in them lay, the day when the resumption of specie payments might be made, without great and material injury to all persons indebted to them, did resume the ordinary payment of specie in discharge of their dues and liabilities, and from thence have continued so to do, etc.

The State joined issue on the first and fourth pleas and demurred specially to the second and third, on the grounds that each was pleaded in bar to the whole action and yet answered only a part of the matter charged in the declaration; that they did not answer any part of them with cer

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tainty, and that the substance of the matters charged in the declaration were neither confessed and avoided, traversed or denied, by either of the pleas, which were evasive, uncertain and wholly insufficient. The replication to the fifth plea, protesting that the matters contained in that plea were wholly insufficient in law, traversed the allegation therein; that the notes of the bank and its deposits were not depreciated in value and lost to the holders and owners during the suspension. To this replication the bank demurred generally.

The cause was argued upon the demurrers before Justice Butler at Charleston, during the May term of 1841, by Mr. Memminger, Mr. Burt and Attorney-General Bailey for the State, and by Mr. Petigru, Mr. Legare and Mr. Walker for the defendant.

Judge Butler in an elaborate opinion delivered his judgment in favor of the defendant, whereupon the AttorneyGeneral, in behalf of the State, appealed from the judgment of the court.

The writ of error in this cause sets forth eighteen grounds of exceptions to the judgment of the circuit court. I do not deem it necessary to place these several grounds of exception before the reader, as the argument of Mr. Memminger which follows will enable him to gather the points embraced in each of these. The appellate court consisted then of the several judges of the circuit courts, conformably to the provisions of the act of 1831. The case was referred to the "court for the correction of errors," composed of all the chancellors and law judges. It was argued before that tribunal in Charleston at the sittings in February, 1842, by Mr. Memminger, Mr. Hunt and Attorney-General Bailey for the State and Mr. Petigru and Mr. Walker for the defendant.

No judgment was pronounced by the court, but a reargument was ordered, which was had in Columbia at the

May term of 1843, when the case was again argued by Mr. Memminger, Mr. Hunt and Attorney-General Bailey for the State, and Mr. Walker and Mr. King for the defendant.

I am enabled to present the argument of Mr. Memminger as it is printed in a volume of reports by special act of the Legislature in 1844. It is as follows:

Mr. Memminger, on behalf of the State, opened the argument by stating that it became the duty of the counsel for the State, in the first place, to extricate from the pleadings on the record, the questions which are to be decided by the court; and in doing so, they must premise that they have desired to meet these questions fairly; that they have answered the special pleading of the defendants with replications intended, merely, to keep them to the real issue; and that if, as they believe, it will be found that the defendants themselves have become entangled by these pleadings, the counsel for the State design to make no further use of their advantage, than to bring back the court to the question raised by the scire facias, and to ask judgment only upon the broad proposition, that by suspending specie payments, the bank has forfeited its charter.

The allegations of the declaration on the scire facias, then, must make out, by proper averments, a sufficient cause of forfeiture of the charter. In point of fact, the declaration sets forth what is usually termed a suspension of specie payments by alleging four distinct facts:

1. That the Bank of South Carolina having received a charter as a bank, and having issued a large amount of notes as a circulating medium, payable in gold and silver, and accepted a large amount of deposits payable also in gold and silver, afterwards resolved to suspend the payment of these notes and deposits in gold and silver coin. 2. That the said bank publicly declared this its determination. 3. That it actually refused to pay its notes and deposits in current coin for a long space of time; and, 4, that during such space of time it nevertheless continued to do business under its charter as a bank, making discounts, receiving deposits, issuing notes and declaring dividends among its stockholders.

The declaration then charges a repetition of the same acts, after a temporary resumption of specie payments. And the simple question of law raised by these allegations is whether these acts make out a cause of forfeiture, or in other words, whether such a suspension of a bank, confessedly without actual fraud, is a sufficient ground in law to declare the charter forfeited. In any view of the pleadings which may be taken, coming up as they now do before the court upon a general demurrer,

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