Bank of Mississippi v. Duncan

Campbell, J., delivered the opinion of the court. The evidence justified the conclusion that the amendment of the charter of the bank by the act of February 21, 1840, was accepted by it as therein provided for. The testimony of Lacoste; the agreement .of the district attorney, made in 1850, in the quo warranto suit pending in the Circuit Court of Washington County; the affidavit of A. F. Smith, made in that suit; and the allusions in the1 answer of Turnbull, president, and John G. Cocke, in evidence, satisfy us of the acceptance of the amendment mentioned. The circumstances relied on to show the contrary fail to have that effect. The quo warranto suit against the bank quite consists with the [172] fact of an acceptance of the amendment of the charter, and the attempt to surrender the charter under the general law of 1840, as indicated by the entry on the general docket of the Superior Court of Chancery, also consists with having accepted the amendment in 1840; for, notwithstanding such acceptance, the bank was liable to proceedings by quo war-ranto, and may have been anxious to surrender its charter. And the reference by Lacoste’s last report to. the attempt of the bank, through some of the directors, to accept the act on p. 19 of Laws of 1840, which page contains the provision for a voluntary surrender of its charter by any bank in this State, and the remark in the opinion of the High Court of Errors and Appeals, in reference to evidence of a surrender of the charter in accordance with the general law of 1840, harmonize with the acceptance by the bank, in 1840, of the amendment of its charter. Having accepted the amendment of February 21, 1840 (Laws 1840, p. 63), all the “ rights, powers, and privileges” of appellant “ ceased and ended” on the twenty-first day of February,'1850, “ except so far as to enable said corporation to prosecute or defend suits then pending and undetermined.” Sect. 5 of said act. The scire facias against the sureties on the bond of the receiver was not a suit pending and undetermined on the twenty-first day of February, 1850, but is a new suit, and the appellant had no capacity to institute it, unless it derived it from chap. 322 of Laws of 1859-60, approved February 10, 1860, p. 390 of Pamphlet Acts. Bank of Mississippi v. Duncan, 52 Miss. 740. That act granted to appellant the right to sue to collect “the debts and choses inaction due to it,” and if it was competent for the Legislature to confer the right, it existed when this suit was instituted. If, at the time of the passage of this act, there was any thing due to appellant to which creditors or stockholders could maintain a claim in any of the courts of this State, it was within the power of the Legislature to revive the bank for [173] the purpose of collecting its assets, with a view to their distribution among such creditors and stockholders. But if the bank had ceased to exist by. the limitation of time in its charter as amended, and if by its extinction the rights of creditors and stockholders expired, it was not within the power of the Legislature to revive rights before extinguished, and authorize their enforcement. Davis v. Minor, 1 How. 183; Hooker v. Hooker, 10 Smed. & M. 599; Stewart v. Davidson, 10 Smed. & M. 351; Cooley’s Const. Lim. 355. It was firmly settled by the decisions of the High Court of Errors and Appeals of this State, that banks in this State were subject to the operation of the common-law incidents to the dissolution of a corporation, i.e., the extinction of all its rights and liabilities, except in so far as changed by statute. Commercial Bank v. Chambers et al., 8 Smed. & M. 9; Coulter et al v. Robertson, 24 Miss. 278. Audit was expressly declared that the rights of stockholders were not preserved by the act of July 26, 1843, but were left to their fate as at common law, which was to perish. Coulter et al v. Robertson, 24 Miss. 278. The injustice of the common-law rule, and its “ hostility to the more enlightened spirit of the age,” were urged upon the High Court of Errors and Appeals by counsel, who insisted that it was condemned by reason and the principles of modern and enlightened jurisprudence; but the firm answer of the court was, that, exceptas modified by statute, the common-law rule on this subject was in full force and operation in this State. We have no hesitation to declare our full concurrence with the views of counsel on this point, and our dissent from the view of the High Court of Errors and Appeals announced in the case of Coulter et al. v. Robertson, 24 Miss. 278. But the question is, Was it not well-settled law in this State, that the consequences visited by the common law upon the dissolution of a corporation were incident to the dissolution of banks in this State, except as otherwise expressly declared by statute? The affirmative of this question is indisputable; and, [174] although it may be the true view that the rights of creditors and stockholders of appellant did exist, in equity, after dissolution of appellant by efflux of time, we are constrained by the adjudged cases in pur reports to declare that neither creditors nor stockholders of appellant had any rights, at law or in equity, after the dissolution of appellant. It was expressly declared in Coulter et al. v. Robertson, 24 Miss. 278, that the rights of stockholders were left to their fate at common law, and that it was only by virtue of the act of 1843 that the rights of creditors did not also perish. It is manifest that the act of 1843 has no application to appellant, because it in terms related only to banks against which any judgment of forfeiture should be rendered, and had no application to such as should be dissolved by time, without any judgment. No statute applied to them, and the common law, in all its absurdity, applied to them, according to the decisions - of the High Court of Errors and Appeals. We regard the rule, authoritatively announced by the High Court of Errors and Appeals as applicable to banks contemporary with appellant, as obligatory on us in declaring the effect of the dissolution of appellant. Decree -affirmed.