Grand Gulf Bank v. Bryan,

Green v. Wright,

Grenada Male and Female Acade-

CASES

ARGUED AND DETERMINED

IN THE

HIGH COURT OF ERRORS AND APPEALS

FOR THE

STATE OF MISSISSIPPI.

JANUARY TERM, 1847.

THE COMMERCIAL BANK OF NATCHEZ vs. JOHN M. CHAMBERS et al.

An act of the legislature, which is inconsistent with the provisions of a former act, repeals the former by implication, from necessity, although it may not propose a repeal.

Therefore where, by an act of the legislature, it was provided that when the charters of banks were declared forfeited, the debts due by and to them should not be extinguished, but that trustees should be appointed to sue for and collect those due to them, and at a subsequent session of the legislature, an act was passed directing the trustees to sell all the debts due to the banks to the highest bidder for cash, it was held, that the last law, if constitutional, repealed the former by implication. Statutes, seemingly repugnant, should be so construed that both shall stand and harmonize, if possible; but where one act of the legislature directed the appointment of trustees to sue for and collect the debts and sell the property of charter-forfeited banks, and a subsequent act directed a sale of debts and property in a prescribed mode, it was held that there was a direct repugnancy between the two acts; the first created a trustee, the latter a limited VOL. VIII. 2

Commercial Bank of Natchez v. Chambers et al.

agency; the first allowed a discretion, the latter was peremptory; the two laws being thus inconsistent, the latter, if constitutional, must prevail. Although it may be plausibly argued, that, without the interposition of the legislature, the debts due to and from a bank under judgment of forfeiture would have survived its dissolution, and that such commercial corporation should be regarded as a partnership, and the fund or property owned by it a trust-fund, which equity would appropriate to the payment of the debts, yet the current of decision seems to have fallen into a different channel; and it may now be regarded as the settled doctrine, that, on the dissolution of a banking corporation, the debts due to and from it are extinguished; not by any implied condition of the contract, but from necessity, because there is no person in whose favor or against whom it can be enforced. By the act of the legislature of 1843, it was provided, that after judgment of forfeiture against a bank, its debts should not be extinguished, but that trustees should be appointed to collect them, and apply their proceeds to the payment of the debts of the bank; it was held, that the legislature did not thereby make an appropriation in favor of creditors; for the reason, that, not owning the choses in action, it could not direct their appropriation; and that, wholly independent of the legislative provision, the trustees should apply the proceeds in favor of the debts of the bank; the creditors would have a right, growing out of the relation of debtor and creditor preserved by the act, to such application.

Where the legislature provided that, on the rendition of a judgment of forfeiture against a bank, the debts due to and from the bank should not be extinguished, they thereby continued and preserved the right of the creditor of such bank to satisfaction of his debt out of the debts due to the bank as it existed previously; and as no right can exist without a remedy, if the legislature had failed to provide an adequate remedy for the enforcement of that right, a court of equity would have supplied the deficiency and furnished an appropriate remedy; the preservation of the debts from extinction, of itself entitled the creditor to a remedy for their collection; otherwise, the legal anomaly of a debt in full force, without power of enforcing it, would exist. By the decision in the case of Nevitt v. The Bank of Port Gibson, 6 S. & M. 513, it was determined that the Act of 1843 conferred authority, and imposed duties on the trustees appointed under it, which could only be executed by investing them with the legal ownership of the property; that they could maintain actions at law; that the act in effect declared the assets to be a trust-fund for the payment of debts, which would be enforced in a court of equity without any further legislation; and that the legislature could not, without transcending its constitutional limits, apply the assets of the bank to any other purpose than the payment of its debts. This decision confirmed, adhered to, and established.

By the law of 1843, a trustee appointed under it acquired a legal title to the