56 Miss. 166 | Miss. | 1878
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
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
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,
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.