ministrator, vs. Mallory and others, has said, "that it is a mistake to suppose that the stock of an individual consists of so much money owned by him in the bank; the money in the bank is the property of the institution, and to the ownership of which the stockholder has no more claim, than a person has who is not at all connected with the bank. The stockholder has an entire and perfect ownership over his own stock and may sell and transfer it to whomsoever he pleases, and from doing which the bank has no power to restrain him." It necessarily follows that the capital stock of the bank cannot be taxed as the property of the stockholder, as he has no legal title to any portion of it, but only the immediate right to receive his share of the dividends as they are declared, and the remote right to his share of the effects on hand at the dissolution of the institution. Then bank stock is not a thing in itself capable of being taxed on account of its locality, and any tax imposed upon it, must be in the nature of a tax upon income, and of necessity confined to the person of the owner, and if he be a non-resident, he is beyond the jurisdiction of the state, and not subject to her laws. We therefore think that as the Union Bank has purchased from the State, for a valuable consideration, the right to use her capital stock in banking operations, that the State has no power without the consent of the bank to impose any additional burthen by way of taxation on the enjoyment of this right, and that the State has no power to raise a revenue from the stock of non resident owners, but that this may be done from the stock of resident owners, which must however be taxed like all other property, at its cost value, and not at its first cost, so that the equality of taxation intended by the constitution may be preserved: and we also think, that if the stock of our own citizens be taxed, it must be listed for taxation in the county where the owner resided, and that he individually, and not the bank is responsible for the payment of the tax. The judgment will therefore be reversed and rendered for the plaintiff in error. Judgment reversed. NASHVILLE. Dece ber, 1836 Union Bank, V The State: NASHVILL December, 1836. Hubbard V Cole. HUBBARD AND WATSON vs. COLE. A capias ad satisfaciendum by virtue of which, a bond under the provisions of the acts of 1824 and 1825, is executed, constitutes a proceeding in the suit, when it is returned. Where a bond is given on the execution of a ca, sa. if the money be paid at court, it is a satisfaction alike of the bond and of the original judgment. If a bond is given upon the execution of a ca. sa, under the provisions of the acts of 1824 and 1825, and the oath of insolvency is taken, its effect upon, and its relation to the suit, are the same as if taken in prison. Where a bond is executed under the acts of 1824 and 1825, upon the e.ecution of a ca. sa, and is forfeited, it is not necessary for the plaintiff in his motion to describe, nor need the judgment describe the bond, ca. sa, &c; these are matters of record and are already before the court. In this case, a judgment was obtained by the defendant in error against one of the plaintiffs in error; upon which a capias ad satisfaciendum issued, was executed, and a bond, with the other plaintiff in error as surety, was taken, under the provisions of the acts of 1824 and 1825, conditioned to appear at the return term of the writ, and pay the debt or take the insolvent debtors oath. This bond was forfeited, and judgment upon motion was rendered against the plaintiff in error. The judgment did not set out the bond, or the capias ad satisfaciendum, &c. for which supposed defect this writ of error was prosecuted. REESE, J. delivered the opinion of the court. It has been settled in this court, by a train of decisions, supported by authority, and founded upon grounds and principles which claim our approbation, that in summary and ex parte proceedings in derogation of the common law, the court must show upon the face of the proceeding, that it has been warranted by law, and falls within the scope and limits of its authority. This salutary principle, which we have no purpose or wish to weaken or disturb, embraces not, it is believed, a case like the present. A capias ad satisfaciendum, in which a bond under the provisions of the acts of 1824 and 1825 may be executed, when returned, with the bond, to the court from which it issued, constitutes a proceeding in the original cause; if the money be paid at court, it is a satisfaction alike of the NASHVILLE. Hubbard V Cole. bond and of the original judgment; if the oath of insolvency December, 1836. be taken, its effect upon, and its relation to the suit, are the same as if taken in prison. If neither of these be done, but a motion in default of these be made upon the bond against the debtor and his security, it is made in behalf of a plaintiff and against defendants, who by the very process and terms of the bond, have notice of the proceedings, have a day in court and are expressly bound to be present. In such case, the bond and process being a continuation and part and parcel of the original suit, it is not incumbent on the plaintiff, it seems to us, in his motion to describe, nor need the judgment describe, the bond, ca. sa. &c. which are of record, and already before the court. Judgment affirmed.* *This case was decided at Jackson, April Term 1836. |