
    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 he 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sell all the debts due to the banks to the highest bidder for cash, it was held, that the last law, if constitutional, repealed the former by implication.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 repug-nancy between the two acts ; the first created a trustee, the latter a limited 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 commercialcorporation 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 property and chdses in action of the bank ; the succession is cast upon him, and he becomes in law the owner ; the funds in his hands are however subject to a trust; creditors have a vested beneficial interest in them ; a right to them, and a remedy to enforce that right; these rights, thus vested, cannot be taken away by subsequent legislation ; nor was the power to take them away reserved to the legislature by that part of the law of 1843 which directed the trustees to apply the proceeds of the debts and assets, as might thereafter be directed by law, to the payment of the debts of the bank ; ,the legislature could not reserve a right it never had ; and having no right in itself to the debts and assets of the bank, it could only legislate with reference to them, as with reference to the rights and property of private individuals ; the phrase : “ as might thereafter be directed by law,” reserved to the state simply that which it had previously — the right of general legislation on the subject; which it would have had independent of those words. And as, by the common law, the state, on judgment of forfeiture, had no interest in the debts, they, without legislative interposition, being extinguished ; and none in its realty, that reverting to its grantor, and no right being attempted to be transferred to or vested in the state by the law of 1843, it follows that it had no special right to the property or assets of the banks, and therefore no right to more than general legislation on the subject, and therefore could reserve to itself no other right. But even if it had a special right in the assets and property, it parted with it when it directed their application to the payment of debts.
    By an act of the legislature, passed in the year 1843, it was provided that proceedings should be instituted under certain circumstances against incorporated banks, to ascertain whether their charters had been forfeited ; and in case judgments of forfeiture were declared, it was further provided that the debtors to such banks should not be released from their debts, but that the court rendering the judgments of forfeiture should appoint trustees, with power to sue for and collect all debts due such banks, to sell and dispose of the property of the banks, and to apply the proceeds of the debts when collected, and the proceeds of the property when sold, as might thereafter be directed by law, to the payment of the debts of such bank. In June, 1845, the circuit court of Adams county, in proceedings under the act of 1843, declared the charter of the Commercial Bank of Natchez forfeited, and appointed trustees, as prescribed by the act. In February, 1846, the legislature passed an act entitled an act to amend the act of 1843 ; and provided in it that the trustees appointed under the act of 1843, should embody in an inventory, and sell under order of the court to the highest bidder for cash, all the property and evidences of debt of banks whose charters were declared forfeited, in a mode and on terms prescribed by the act; the proceeds of sale to be distributed among the creditors of the charter-forfeited banks, in the mode designated. In 184S the Commercial Bank of Natchez brought suit against Chambers upon a note in the circuit court of Scott county ; on which ?uit judgment was rendered for Chambers, and the Bank prosecuted a writ of error to the high court of errors and appeals. At the January term, 1847, of that court, the trustee of the bank appointed under the law of 1843 suggested the judgment of forfeiture against the hank and his appointment under the law of 1843, and that under the law of 1846, he was ordered by the circuit court of Adams county to sell the debts, and moved .that the suit against Chambers might be revived in his name ; which motion being resisted, it was held by the court, that by the act of 1843, and the judgment of forfeiture under it, the creditors of the bank acquired rights which the legislature could not, by subsequent legislation, divest; that the law of 1846 was unconstitutional, in attempting to divest those rights ; that by the law of 1843, the relation of debtor and creditor between the bank and its debtors was preserved in full force, and a trustee appointed to enforce the rights growing out of that relation ; that one of those rights was the right to enforce the payment of those debts in a court of law, in attempting to prevent which, by ordering a sale of the debts and thus denying and prohibiting the right to enforce payment of the debts thus preserved, and thereby destroying the trust character of the fund for the benefit of creditors, the law of 1846 was so far unconstitutional and void.
    When the state parts with property even by donation, the transaction is a contract, and places the property beyond her control; private rights are then vested, which cannot be divested.
    By the act of 1843, trustees appointed under it, on a judgment of forfeiture against a bank, were required to give bond conditioned for the diligent collection of the debts and the sale of the property. By the act of 1846, they are required to give bond only for the discharge of the duties required by the act of 1846, which were to sell the debts and other property. If the bond under the act of 1843 enured to the benefit of creditors, it might be a serious question whether any discharge from its obligation could be made, except by those for whose benefit it was intended.
    By the act of 1846, requiring the trustees, appointed and empowered under the act of 1843, to sell for cash to the highest bidder, the rights of the creditors, vested under the latter act, to have the debts collected, and to compel the trustees to collect them and their lien on the debts made a trust-fund by the act of 1843, are all swept away ; the act of 1846 is therefore unconstitutional.
    The legislature can pass no law that interferes with vested rights so as to destroy them, or transfer them to another against the owner’s will ; nor, whilst it can modify or change the form of the remedy, can it destroy or altogether take away the remedy, for where the enjoyment or possession of a right depends upon the remedy, the destruction of the remedy is the destruction of the right. The legal obligation of a contract is destroyed when . the remedy is taken away.
    
      A remedy, in legal contemplation, to enforce a contract must consist of a legal ' mode, through the courts of justice, of establishing the right and of enforcing it by a judgment at law; a forced sale for cash, at auction, of a debt, is not therefore a legal remedy for the enforcement of payment of such debt.
    The trustees appointed under the act of 1843, to collect the debts, &c. of dissolved corporations aTe not public officers subject to legislative control; they are private trustees.
    The act of 1843, which directs the circuit court, when it adjudges the forfeiture of a bank, to appoint trustees, is not unconstitutional for that reason ; trustees may be appointed by the parties themselves, by courts of law, or even by the legislature for public purposes; when appointed, they are amenable to a court of chancery.
    The act of 1846, which directs the peremptory sale of all the debts due to a bank, whose charter has been taken away, violated the rights of the debtors of the banks whose charters were declared forfeited and trustees appointed before its passage, as well as of the creditors; for where the bank has obtained judgment in the court below against one of its debtors, and that debtor has appealed to the high court of errors and appeals, and the suit in that court is undetermined, if the law of 1846 be constitutional, the appeal must be dismissed and judgment of the court below affirmed, for want of power in the court to revive the suit against the trustees ; thus, this judgment would have to he sold, and they be compelled to pay the purchasers ; thus depriving them of a right to make their defence to a pending suit. This does not seem to be in keeping with that provision in the constitution, which declares “ that all courts shall be open, and every person, for an injury done him in his goods, person, or reputation, shall have remedy by due course of law, and right and judgment administered without sale, denial, or delay.”
    Mr. Justice Thacher delivered an opinion reaffirming his dissenting opinion in the case of Nevitt v. The Bank of Port Gibson; and holding that, that part of the law of 1843, which authorized the trustees appointed to proceed to collect their debts, and which purported to preserve the debts of a bank, whose charter was declared forfeited, from extinguishment, was inoperative and void; and that the trustees therefore could not revive or maintain suits in their own names.
    In error from the circuit court of Scott county; Hon. A. G. Brown, judge.
    The Commercial Bank of Natchez sued, to the December term, 1840, of the circuit court, John M. Chambers, James J. Chambers, Thomas M. Pettey, Littleton Turner, and Jeremiah B. White, as joint makers of a note dated on the seventh day of June, 1839, at Brandon, payable twelve months after date to the plaintiff or order, at the plaintiff’s banking-house, in Brandon, for six hundred and fifty dollars. The defendants, John M. Chambers, James J. Chambers, Thomas M. Pettey, and Jeremiah B. White appeared, and plead, 1. Non assumpsit; 2. A special plea of usury in a loan of the depreciated notes of the Mississippi and Alabama Railroad Company to the defendants; and, 3. A similar plea, varied in terms. The plaintiff took issue on the first plea, and tendered an issue’ denying the usury on the others, which was joined, and a trial was had at the October term, 1842, of the circuit court, and judgment was rendered for the defendants. The plaintiff filed a bill of exceptions embodying the testimoi^r, and the opinions of the court excepted to and prosecuted this writ of error; which was issued on the fourth day of November, 1843 ; the citation was served on all the defendants in December, 1843, and the record filed in the clerk’s office of the high court of errors and appeals on the first day of January, 1844.
    At the present January term, 1847, of the high court, the following motion was made in the eourt, viz.
    
      “ Motions of W. Robertson, trustee of Commercial Bank of Natchez, for revival of sundry suits, &e.
    
      “ Robertson et al. 933, v. The Commercial Bank of Natchez.
    
    “ Forfeiture of the charter of the Commercial Bank of Natchez suggested; and William Robertson appointed trustee of the assets of said bank, at the May term, 1845, of the circuit court of Adams county, now appears in court, and moves the court that said suit, as to said Commercial Bank of Natchez, be revived in his name, as trustee aforesaid, and that he be made party to this suit.in the stead of said late Bank.
    £< J. T. McMueRan, for motion.
    “ Nos. 1213, 1214, 1215, 1216, 1217, 1220 —same motion.”
    The case of The Bank v. Chambers et al. (the present one,) was No. 1213.
    In behalf of the motion, the following certificate of an extract from the records of the circuit court of Adams county, was read aijd admission made, to wit:
    
      
      “ State of Mississippi, Adams County.
    
      The State of Mississippi v. The Commercial Bank of Natchez.
    
    “Pleas, &c. And now at this time, to wit: at a circuit court held at the court-house in and for the county of Adams, on the fourth Monday in May, in the year of our Lord one thousand eight hundred and forty-five, come the said parties by their attorneys, and it is ordered by the court, that £ the defendant’s demurrer to the seventh replication be sustained, and the defendant’s demurrer to the first, fifth, eighth, and twelfth replications overruled, and respondeat ouster awarded; and the demurrers of the plaintiff to the second rejoinder to the ninth, tenth and eleventh replications be sustained, and respondeat ouster awarded.’
    “ And afterwards, to wit, on the twelfth day of June, A. D. 1845, it is ordered by the court, that the demurrer to the amended rejoinder of the defendant to the fifth, ninth, eighth, tenth, and eleventh replications be sustained ; it is therefore considered by the court here, that the said defendants do not in any manner further intermeddle with or concern themselves in or about the holding of or exercising' the liberties, privileges and franchises granted by the said charter in said plea of said defendant mentioned, but that the said defendants be and they are hereby absolutely forejudged and excluded from further holding or exercising the same; and it is further adjudged, that all the said liberties, privileges, and franchises heretofore granted to the said defendants, as set forth in said plea, be seized by said State of Mississippi; and that all the property, books and assets of said defendants be seized and delivered to the trustees hereafter to be appointed, and that said trustees have execution therefor; And it is further ordered, that William Robertson be, and he is hereby appointed by the court, trustee (upon his entering into bond with Stephen Duncan as his security, in the penal sum of twenty-five thousand dollars, which said bond is filed and approved by the court,) to take charge of the assets and books of the said Commercial Bank of Natchez, wherever the same may be found, either in the possession of said bank or their officers, agents, trustees, or attorneys, to sue for and collect all debts due to said bank, and to sell and dispose of all property, real and personal, owned by said bank or held by others for its use, at public auction, after giving twenty days notice of the time and place of sale, in some newspaper printed and published in said State of Mississippi, and the proceeds of the debts when collected, and of the property when sold, to apply, as may be hereafter directed by law, to the payment of the debts of said Commercial Bank of Natchez.”
    This extract was duly authenticated.
    The following admission was made, viz.
    “ It is admitted as a fact, on the part of the trustee, William Robertson, in the motions to revive, that the circuit court of Adams county, at the November term, 1846, by its decree and order, ordered said trustee to sell all the assets of the late Commercial Bank of Natchez, including the claims in controversy in these suits; which order was made in pursuance of the 4th section of the act of 1846, but against the will of said trustee, he opposing the same. J. T. McMüRRAN,
    Attorney for Trustees, and for said Motions.”
    For the more full understanding of the opinions of the court, the sections of the laws of 1843, and of 1846, involved in the decision, are subjoined.
    The following is the substance of that of 1843, viz.
    The first section was in these words : “ That it shall be the duty of each and every district attorney in this state, whenever he shall have reason to believe, or whenever the affidavit of one or more credible person or persons shall be presented to him, stating that he or they have good reason to believe, and do verily believe, that any incorporated bank, located within his district, has been guilty of a violation of any of the provisions of its charter, or has done or omitted to do any act or acts the doing or omission of which would in law work a forfeiture of its charter, or is commanded or prohibited by its charter, or any statute of the state in relation to banks, forthwith to file a bill in the clerk’s office of the circuit court of the county in which such bank shall be located, an information in the nature of a quo warranto against such bank, upon the filing of whieh information, it shall be and is hereby made the duty of the clerk of such court to issue the proper process against such bank, returnable to the term of the circuit court aforesaid, next succeeding the day on which such information shall be filed.” The second section is in all respects similar to the first, excépt that it is made the duty of the district attorney to file this information when he has reason to believe or is presented with an affidavit setting forth that the affiant has reason to believe, and does verily believe that “ any corporation, person or persons are exercising, using and enjoying within the district of such district attorney, without legal warrant and authority, the franchise of being a banking corporation.”
    The third section provides the mode of serving any process issued against any bank under an information filed according to the act.
    The fourth section enacts that the information, when thus filed, shall be docketed on the common law issue docket; shall be tried at the first term of the court by the ordinary jury in attendance upon the court when an issue in fact is presented, and shall have priority over other cases.
    The fifth section excepts the application of the law to the funds which legitimately belong to the state of Mississippi; to the Commercial and Railroad Bank of Vicksburg or to the West Feliciana Railroad and Banking Company, so as to affect the railroads and their operations.
    The sixth section is as follows: “ That upon information being filed in pursuance of this act, it shall be the duty of the clerk as a matter of right on the part of this state, to issue an injunction or injunctions to restrain all persons from the collection of any demands claimed by said bank or banks, person or persons, or assignees or corporations and all their officers and agents, or other person or persons, until the said information be finally tried and determined, and said injunction shall have the office and effect of an injunction in chancery; which injunction shall be served by the sheriff or other proper officer of the county in which said information may be filed upon such corporation, bank, assignee or assignees, if any there be, person or persons, or their officers or agents, in like manner as injunctions in chancery are served.”
    The seventh section provides that none of the provisions of the act should be so construed as to prevent any bank from suing out attachments in the same manner and for the same cause that other creditors were allowed lawfully to do.
    The eighth, ninth and tenth sections enacted that upon judgment of forfeiture against any bank or corporation, the debtors to such bank or corporation should not be released thereby from their debts and liabilities to the same; but that the court rendering the judgment of forfeiture should appoint one or more trustees to collect the debts due to the corporation, to sell and dispose of all of its property, and the proceeds to apply in payment of the debts of the corporation as they might thereafter be directed by law. The trustees are required to give bond for the faithful discharge of their duties, and upon embezzlement of any of the assets of such banks as might be placed in their control, and the conviction thereof, they, in addition to the payment of their bond, are to be punished by not less than two nor more than ten years imprisonment in the penitentiary.
    The eleventh section provides that the act shall not be construed so as to release any one interested in or connected with any bank from his individual liabilities for any fraud or mismanagement of the same.
    By the twelfth section it is ordered that the act should take effect from its passage.
    The following is the law of 1846, viz.:
    An act to amend an act entitled an act to prescribe the mode of proceeding against incorporated banks for a violation of their corporate franchises, and against persons pretending to exercise corporate privileges under acts of incorporation, and for other purposes, approved, July 26, 1843.
    Sec. 1. Be it enacted by the legislature of the state of Mississippi, that the trustees appointed, or to be appointed under the act, to which this is .an amendment, shall, before entering upon their duties, execute bond with security, to be approved by the said court, in a penalty to be designated by the court, payable to the governor of the state, conditioned for the faithful performance of the duties enjoined upon them by this act, and the act to which this is an amendment.
    Sec. 2. Be it further enacted, That it shall be the duty of all persons having possession of any property, or evidences of debt of any corporation, against which judgment of forfeiture shall be rendered, upon demand being made upon them by the trustee or trustees, to surrender forthwith to such trustee or trustees, all such property and evidence of debt; and upon failure to surrender, such person or persons shall be deemed guilty of contempt of said court, and punishable as in other cases of contempt.
    Sec. 8. Be it further enacted, That on or before the first day of the term of the court next succeeding their appointment, it shall be the duty of said trustee or trustees, to return to said court, under oath, a full inventory of all the property and evidences of debt which have come into their possession, and said inventory shall be recorded by the clerk.
    Sec. 4. Be it further enacted, That when the inventory is returned as aforesaid, the trustee shall proceed to sell, under the order of said court, to the highest bidder for cash, all the property and evidences of debt, specified and set forth in said inventory; the real estate shall be sold before the court-house door of the county where said real estate is so situated; the personal estate before the court-house in the county where the bank was situated; and the bills receivable, notes, judgments, decrees, and other evidences of debt, secured in whole or in part by mortgages on land, shall be sold before the court-house in the county where said lands are situated; and other bonds, bills, notes, judgments, decrees, and other evidences of debt, shall be sold in the counties where the principal debtor or debtors live, or their executors or administrators reside; and if their principal debtor or debtors be a non-resident, the sale shall be in the county where the security or securities reside, at the court-house, as in other cases, as aforesaid. Said trustee shall give ninety days’ notice of the time and place of such sale under this act; a notice shall be posted up in two public places in the county in which such sale is to take place, and one in a public newspaper printed in this state; said trustee shall render an account of said sale under oath, in like manner as his inventory.
    
    Sec. 5. Be it further enacted, That it shall not be lawful for any trustee to become either directly or indirectly, a purchaser at his own sale, or to act in any way as the agent of a purchaser, and all purchases in violation of this section shall be void.
    Sec. 6. Be it further enacted, That at the term at which judgment of forfeiture is rendered, the court shall appoint three commissioners to audit claims against such corporations, whose duty it shall be to give notice to all persons holding claims against such corporation to present them to said commissioners for allowance; and said commissioners shall audit and allow, all the bonds, bills, post notes, and certificates of deposit which have been issued by said bank, although more than six years may have elapsed since the same may have been due or demanded ; said notice shall be published for two successive months in some newspaper in this state, and all claims pot presented to said commissioners within twelve months after the date of such publication, shall be forever barred.
    Sec. 7. Be it further enacted, That it shall be the duty of said commissioners to makp their report to said court at the first term thereof, after the expiration of the twelve months allowed for the presentation of claims, at which time all exceptions to said report must be heard and determined, and at which time it shall 'be the duty of the court to order distribution of the money in the hands of the trustee or trustees, which shall be made in the following order:
    1st. The compensation of the trustees and commissioners, and all expenses incurred under this act shall first be paid.
    2d. All debts due by such corporation to the state or county for taxes or otherwise, shall next be paid.
    
      3d. All sums of money due by such corporation for costs or fees, shall next be paid.
    4th. A ratable distribution shall next be made among all creditors who have proved their claims.
    5th. The surplus, if any, shall be ratably distributed among the stockholders.
    Sec. 8. Be it further enacted, That nothing in this act contained, shall be so construed as to deprive the debtors of such corporation of the right to discharge their indebtedness in notes, bills, bonds, or other evidence of debt of said corporation, at any time before the sale of the same, as provided by the fourth section of this act.
    Sec. 9. Be it further enacted, That in no case shall the court appoint as trustee or trustees, any person who is, or has been, an officer, agent, attorney, stockholder, director, or assignee of such corporation, or who has not been a resident of this state at least two years next preceding said appointment.
    Sec. 10. And be it further enacted, That no distribution of the efFects of the Planters Bank, and Mississippi Railroad Bank, shall be made among the creditors of the same, until the whole amounts which by said banks are due to this state, on account of the seminary fund, sinking fund, and literary fund, shall first be paid; and that the bonds and coupons of this state, issued for the benefit of said banks, shall at all times be received in payment of any debts due said banks.
    Sec. 11. Be it further enacted, That the provisions of this act shall apply to the .trustees heretofore appointed under the provisions of the act to which this is an amendment.
    Sec. 12. Be it further enacted, That in all cases wherein judgments of ouster or forfeiture have been rendered against any incorporated bank, under the provisions of the act to which this is an amendment, it shall be the duty of the judge of the circuit court, in which said judgment was rendered, at any term of the court within eighteen months after the passage of this act, to appoint three commissioners to audit claims against such banks, in like manner as is contemplated in the sixth section of this act, whose duty shall be the same as the commissioners appointed under and by virtue of said sixth section, and this act shall apply to said commissioners so appointed, as fully as to those appointed under said sixth section.
    Sec. 13. And be it further enacted, That the debtors of any bank or corporation, which has been or may hereafter be ousted of its franchises, by virtue of the act to which this is an amendment, shall have the right to redeem from the purchaser or purchasers, or their assignee or holder of any bond, bill, note, judgment, mortgage, or other evidence of debt, at any time within two years after the sale of the same, by virtue of the provisions of this act, by paying to said purchaser or purchasers, assignee or hdlder, the amount of the purchase-money, and twelve and one-half per cent, thereon per annum, with all costs which may have accrued up to the time of such redemption.
    Sec. 14. Be it further enacted, That this act shall not be so construed as to impair, change or abridge any contract made by the banks of this state, or any of them, or any debtor thereof, according to the laws affecting contracts, which existed at the time such contracts were made.
    Sec. 15. Be it further enacted, That this act shall take effect and be in force from after its passage.
    Approved, 28th February, 1846.
    The following is a statement of the case of Routh and Williams, plaintiffs in error, v. The Agricultural Bank of Mississippi, defendants in error, in which a motion was made to revive, in the name of Elijah Peale :
    The defendants in error obtained a judgment in the circuit court of Adams county, against the plaintiffs in error, at the November term, 1843, for $115,396 05. The writ of error was sued out in December, 1843, and the case brought into this court in 1844. .,
    The death of Williams was suggested pending the writ of error.
    At the May term, 1845, the charter of the bank was declared .forfeited, by the judgment of the circuit court of Adams county, and Elijah Peale was appointed trustee, under the 8th section of the act of 26th July, 1843.
    At the December term of this court, 1846, Peale appeared and moved the court to admit him, as defendant in error, in place of the bank, the plaintiffs in error not resisting the motion.
    
      J. T. McMurrdn, for the motion to revive.
    We submit herewith the evidence of the appointment of Mr. Robertson as trustee, by the transcript from the circuit court of Adams county, and if more detailed evidence is wanting to satisfy the court on these motions, we refer to the record now with the court in the case of TV. Robertson, Trustee, et al. v. The State, No. 1934, and to the record at large in the suit decided in this court of The State v. The Commercial Bank of Natchez, on file in this court. We also refer to our admission of the fact on this motion, that the trustee has been ordered to sell the bills receivable, which admission accompanies the evidence of Mr. Robertson’s appointment.
    The general question as to the rights of the trustee prior to the law of 1846, we conceive, must be decided in favor of the trustee’s right to sue and collect the debts, as provided in the law of 1843.
    Having the right to sue, not deprived of this right by the act of 1846, and the order of sale, we cannot perceive any reason or principle of law against suits being revived in his name, when he comes into court voluntarily, and by a scire facias when he does not.
    On the judgment of forfeiture the cause of action survives to him.
    The decision of this court in the case of Neviti v. The Bank of Port Gibson, in our opinion, authorizes the revival in these suits. And the authorities there cited, (6 S. & M. 530, 531,) establish the correctness of it.
    True, that was a chancery suit, and revived under the chancery rules, adopted in the high court. But the'rule of reviving in that court is no more extended than the law authorizing revivals generally, applied particularly to the circuit courts; but by the one hundredth section of the circuit court law, as contained in the Poindexter Code, the provisions apply to all the other courts, to which the general provisions contained in the circuit court law are applicable. Rev. Code, 46, 47 ; Ibid. 126, sec. 100; How. & Hutch. Dig. 584, 585, sec. 29, 30, &c.
    We think these provisions cover the present applications, and that the decision in the Nevitt case fully sustains us. Many of these suits have been pending for years, and if they were to abate, and the trustee left to commence suit again, besides costs incurred, the statute of limitations would apply in most if not all the cases.
    
      S. S. Boyd, on the same side.
    1. The trustee, under the 8th section of the act of 26th July, 1843, applies to be made a party in place of the bank, whose charter has been declared forfeited, while this appeal was pending. The bank recovered the judgment in the court below for $ 115,000, and the 'trustee seeks to be admitted here as the ap-pellee, to hear the reasons assigned by the appellant, against whom this large judgment was rendered. If this motion is denied the judgment stands affirmed, and the remedy guaranteed by the bill of rights, sec. 14, is wholly taken away from the appellant. No stronger illustration of the character of the act of 28th February, 1846, can be given.
    2. The act of 1843 and that of 1846, may both stand together. They are both affirmative; the one purports to be an amendment of the other ; and they have a common object, that is, to collect the assets of the bank, and dispose of them for the benefit of creditors and stockholders; and taking them together, it would not be a forced construction, to consider that they give the trustee a right to sue, or sell at his election. The principle laid down by this court in the case of The Planters Bank v. The. State, 6 S. & M. 628, would appear to cover this view of our case, and to be more appropriately applied here than it was there. Probably the act of 1846, did not intend to affect rights already vested, as the last section seems to preclude that idea; and there are several sections of it, the 3d, 4th, 9th, and 11th, that would appear to be inapplicable to trustees appointed under the act of 1843.
    But if the repeal of the 8th section of the act of 1843, was intended, we proceed to show, that the act of 1846,. in that respect is void.
    3. We contend that the rights of the creditors, without any legislative interference, would Jrave survived the dissolution of these banking corporations. And that the common law effect of a forfeiture does not apply to trading or banking corporations. These rights could not be touched by legislation, without th.e consent of those interested. (See our brief in the case of The State v. The Planters Bank, in 7 S. & M. 169, and the authorities cited.)
    4. The question of property, and the right of property, is behind every argument and point made in favor of the validity of the act of 1846. It must be met and got rid of, or that act cannot be sustained.
    There was a property, or right of property, in all the effects of this bank, existing as such, somewhere and in some person, down to the time of the judgment declaring the charter forfeited. And no part of this right of property, down to that period, existed in the state. By asserting a common law forfeiture, she could have acquired no right of property in any portion of these efFects, except in the personal estate. By waiving that interest by the act of 1843, which is expressly done, she precluded herself from ever- claiming, in any form or manner, any interest or right whatever, either in the personal estate, real estate, or choses in action. This statutory forfeiture then, whatever effect it may have on other persons or things, must preclude the state from any claim to dispose of any portion of the effects of the forfeited bank. She cannot exercise any proprietary right over them.
    5. The provision of the act of 1843, for appointing a trustee to take the place of the deceased corporation, coupled with the renunciation of any right on the part of the state, left the interests of all other parties exactly where they stood before the forfeiture. The rights of property of creditors, debtors and stockholders, remained unaffected by the forfeiture; and the remedy for asserting these rights, was ample under the general laws of the land.
    There was an original right of property, or trust, in the effects of the bank, existing in favor of creditors and stockholders, and this is left unaffected, and cannot bé affected without a violation of the constitution. If no remedy had been provided by the law, the right being saved, the constitution and general law would have given a perfect remedy, and no statute could take it away. No rights were given by the act of 1843. The previously existing rights were saved from the effects of a forfeiture. It only gave a representative. The charter trust survived, and it cannot be affected by legislation, any more than any other trust. The courts alone can control it.
    6. The act of 1846 takes away all remedy in favor of those whose rights survived the forfeiture of the bank charter. This is a violation of the contract. The contracts with the bank, which are all saved by the act, had as a part of their obligation, the right of enforcement by due course of law. This is what is meant by a right of action ; and it belongs to whatever exists in action, and attaches to it as long as it exists in that condition. When vested, it becomes like any other vested right, sacred from the interference of legislation. The case of executors and legal assignees, is in all respects an illustration of this position. And the condition of distributees, and heirs, is parallel to that of creditors and stockholders under the law in question.
    7. A contract with a bank is like a contract with any other person. In case of the death of the natural or artificial person, the action fails till a representative is provided. As soon as that event occurs, the rights of all persons interested in the contract, remain as they were before; the right of action continues. And this right of action is the remedy given by law and the constitution.
    Now a sale can never be a remedy on a contract. Such a remedy implies three things. 1st. It is what the law furnishes by way of redress, and what the individual cannot have unless the law gives it. 2d. It acts upon the contract itself. 3d. It acts upon the debtor, and compels him to perform the obligation of his violated contract. None of these things can be asserted of a sale at auction; and after the sale, the contract and the debtor remains as they were before, and a new creditor is substituted in lieu of the old one. In what way this new creditor is to obtain his remedy, would seem somewhat doubtful.
    Could the legislature pass a law, under the guise of a remedial statute, requiring all persons holding notes, bonds, or other obligations, in case they were not complied with, to put them up at auction, and sell them to the highest bidder? In principle, there is no difference between such a case, and that provided for by the act of 1846. They both violate the constitution.
    8. But the conditions and terms of sale directed by the act of 1846, are all in conflict with the constitution and settled law of the land.
    1st. The sale is to be an encumbered sale, and the encumbrance is placed upon the thing • sold, by the legislature. Unless the state has acquired some right of property in these assets, the legislature cannot place any encumbrance on them when they are sold. The state may encumber what belongs to her, but cannot deal in that way with the property of others. She has no right of disposition or proprietorship over it, as we have before shown.
    2d. It is a sale coupled with a suspension of remedy for two years. The contract and its obligation is here suspended ; and it needs no argument to show that this cannot be done by the legislature. •
    3d. It impairs the obligation of the contract of the debtor in one important particular. After the sale, he is prevented from paying his debt to the purchaser, unless he pay also interest at the rate of 12J per cent, per annum. This is adding 4¿ per cent, interest to his contract, without his consent.
    4th. It violates the same obligation, whoever may hold the contract, by allowing the debtor to pay it within two years for less than the amount of the contract. He can discharge his debt, by paying what it brings at auction, and not what he contracted to pay.
    5th. If the act of 1846 was intended to take away all right of action in the trustee, it is manifestly void from other considerations. The trustee is by that act required to sell all the effects of the bank. The law does not pretend to alter the ordinary rules of property, and a sale of the choses in action and personal property cannot be made unless they are in the possession and control of the trustee. If they are held by adverse title, how can he sell? He must first reduce them to possession, and this can only be done by suit. As the suit is thus necessary to enable him to discharge his trust, the right must be given or allowed by the statute. Once admit the right of action, for any purpose, to exist in his favor, and there is an end of the question. The extent to which it shall be exercised is a mere matter of expediency. '
    9. It is contended, the trustee under the eighth section of the act of 1843, is an agent of the state, and of course liable to be controlled in the discharge of his duties like an ordinary agent.
    There are two fatal objections to this view. 1st. The state lacks the appointing power, if this is an agency, and not a trust. 2d. The subject-matter of the agency is a thing in which the state has not a particle of interest. The state, by virtue of the law-making power, cannot appoint agents for third persons, or for the transaction of their business. Unless the state has acquired by the forfeiture some right of property in the assets of the bank, she cannot direct the trustee in the discharge of his duty. The question of property is as decisive here as in the other portion of this discussion.
    The case relied on, of The State Commissioner v. The Commissioners of the Sinking Fund, decided by the Chancellor, is overruled by the decision of the high court, in Commissioners of the Sinking Fund v. R. J. Walker et al. 6 Howard, 184. The case of Alexander v. The Duke of Wellington, 2 R. &. Myl. 35, so much relied on, shows clearly, that after the vesting of the interest, no legislation could touch it. It is a direct authority in our favor.
    
      10. It is urged, that the reservation, in the eighth section of the act of 1843, in these words: “And the proceeds of the debts when collected, and of the property when sold, to apply as may hereafter be directed by law, to the payment of the debts of such bank,” &c. &c., is sufficient to give validity to the provisions of the act of 1846. To this we reply, '
    1st. The right, supposed to be indicated by the words, “ as may be hereafter directed by law,” does not necessarily or properly import future legislation. A much safer and more natural construction would be to regard them as referring the whole question of the application of these assets to the judiciary, and the direction by law of the appropriate tribunals.
    2d. The right to direct the manner in which creditors should proceed to obtain payment, would not authorize the legislature to declare the interests of those claiming the fund, or to .divest it from the payment of debts, or to destroy, impair or encumber it, or to interfere with the legally vested rights of the trustee or others interested in it.
    3d. But, lastly, this supposed reservation is based upon a supposition that wholly fails. A reservation implies a preexisting right. The state had no such right, and she acquired none by the statutory judgment of forfeiture. Of course she could reserve none. She could not even direct the order and priority of payment among the creditors. Their rights in these assets were the result of contract, and not of legislation, and the order and priority of payment are judicial and not legislative matters. The question of property, and the rights of property, meets us at every turn in this discussion, and settles every position taken in support of the act of 1846.
    
      George L. Potter, against the motion to revive.
    I. The power to sue is wholly revoked by the act of 1846, and the trustees previously appointed can neither commence nor revive a suit to collect the corporate dues.
    The act of 1846 declares a new rule, manifests a different intent, and is in several particulars repugnant to the act of 1843.
    1st. The act of 1846 requires that all the debts be sold, and that sale be made long before any of the debts could be collected by suit.
    2d. The act of 1846 requires the affairs of the trusteeship to be closed and distribution to be made at the earliest practicable period; the purpose being to avoid delays, costs, fees and charges incident to fruitless suits for the recovery of the doubtful and worthless of the bank assets.
    The act of 1843 limited the period of distribution to an indefinite period, dependent upon the uncertain chances of a desperate litigation. The trustees were commanded to sue for and collect all the debts, without distinction, separate, desperate and worthless ; no discretion was to be exercised by courts of trustees ; the command was to sue for all. This act pledged the fund, in effect, to the payment of the expenses of a desperate litigation, and to the compensation, for years, of the trustees.
    3d. The act of 1843 requires that bank issues should “ at all times ” be received in payment of debts ; the act of 1846 limits the period of such payments to the day of sale. Under the one act, the best result to be expected after years of litigation was payment in insolvent paper; under the other, the result of a speedy remedy gives the most that can be had, and the produce is “cash.”
    The act of 1846 avoids ruinous delays, costs, and expenses of all kinds, reduces the effects to cash with the least possible charge, and provides that the market value of the whole estate shall be speedily realized in cash and distributed. The effects are to be sold in public market, on due notice, and at the proper vicinage where the value can best be ascertained.
    4th. A power to sue upon a claim is revoked by a subsequent command to sell that claim.
    In these several particulars the acts are clearly repugnant; the act of 1846 declares a new intent both as to the mode of reducing the assets to cash and the time of distribution, and the act of 1843 is repealed •pro tanto.
    
    If, by reason of the act of 1846, the power to sue is revoked, the trustees are mere depositaries of the assets, and hold them by a naked statutory right and for the single purpose of sale; no suit, for or against them, would be of any avail to determine whether or not the bank was rightfully entitled to collect a sum of money,- the act suspends the legal controversy, and this court will not call in the trustees to an inquiry whether or not an injunction was properly dissolved or a judgment properly rendered ; the inquiry would be idle. The trustees are not required to sue even for the possession of the assets, but are allowed speedy remedy by process of contempt.
    Again. The act of 1846 applies to trustees theretofore appointed. The first section applies, in terms, to trustees “ appointed,” or “to be appointed.” The sixth section relates to commissioners appointed on future judgments, and the twelfth to commissioners in cases of prior judgments. The eleventh section declares that the provisions of the act shall apply to trustees theretofore appointed; it is manifest, this section relates especially to an application of the third and fourth sections — to the inventory and sale clauses; the intent cannot be doubted; the previous trustees are bound to sell or the eleventh section is a nullity.
    The pith of the objection, on the other side, is, that the old trustees cannot file the inventory within six months after their appointment; but the sale is the main object, and the inventory is of minor importance — not an essential prerequisite; nor are the six months the vital thing. It cannot be that trustees could wholly prevent a sale and defeat the statute by a mere delay of a day and six months; the purpose of the act is attained if the inventory is made without unnecessary delay.
    But suppose the inventory must be returned in the six months, the result would be, not that a sale shall not be had in all cases, but that the old trustees are incompetent to act under the old appointment; if necessary, they must give way rather than that the policy of the statute be defeated.
    But it is plain the legislature intended the old trustees should return the inventory in six months after they gave bond under the first section, and thereby became qualified trustees under the act of 1846.
    II. The act of 1846, in so far as it revokes the power to sue and orders a sale, does not impair the obligation of any contract, nor divest any vested right, created, given, or assigned by or under the act of 1843.
    1st. The act of 1846 merely changes the mode of subjecting the estate to pay the creditors, and is a rightful exercise of legislative power. 2 Peters, 523. The debts to be sold are a part of the estate, which trustees were appointed to reduce into money for intended distribution.
    The great purpose of the legislature was not to grant a power of suit, but to subject the whole bank assets, and convert them into money; the power to sue is given only as a mode of so converting part of the estate.
    We may admit that the trustees do hold and possess everything to the full extent and in the manner claimed by their counsel for them ; the answer still is, that they were empowered so to hold, sue and act, merely for the conversion of the estate into money; the main purpose was to realize the proceeds of the estate; the modus operandi was by writ and sale.
    No one can show wherein the sale will, in the slightest degree, prejudice any right; nor show that a fair sale for cash, at public auction and on due notice, is an unjust or useless sacrifice of property. The act but adopts the practice of Louisiana, and was enacted on the presumption that the market value of a thing is as much as it is worth. The same rule is followed in cases of bankruptcy and insolvency, and is practised upon in all sales by sheriffs, commissioners, tax-collectors, &c. It has been here adopted in cases of administration. Act 1846, § 6, p. 147.
    2d. But suppose the power to sue is not merely modal; still the act of 1846 impairs no contract and divests no right under the act of 1843.
    It is not pretended that the act of 1843 is in any sense a contract, but it is urged that, by the operation of that statute, contracts were assigned to the trustees, and that the obligation of those contracts is impaired by the act of 1846. On this point, the argument is rather peculiar, and amounts to this— “ because the court has adjudged that the power to sue and collect vested in the trustees a legal title to the debts to be sued for and collected, therefore these trustees have the power to sue and collect because they have that legal title.” It is clear that the legal title passed, if at all, as an incident to the statutory power to sue and collect; strike from the statute the words in relation to suits and collections, and there is no pretence that the debts were assigned by the act.
    If the obligation of any contract is impaired, it must be a contract contained in the act of 1843, itself, and not the assigned contract. I transfer the note of A. to B., and empower him to sue for and collect its contents, and then I forbid him to sue ; do I impair the obligation of the note ? If the legislature should enact that the assignees of a bankrupt should sell, and not sue upon notes due the bankrupt, would the statute be void as impairing the obligation of the notes, or null as repugnant to the act of congress ?
    It seems clear beyond doubt, that as these trustees are the mere creatures of the act, and have no title or interest whatever but what is conferred upon them as statutory trustees, they cannot stand apart from the statute, and if that was repealed, their office as well as their interest and title would cease. Suppose, then, the statute was repealed, could any object on constitutional grounds, if the statute of 1843 contains no matter of grant or of contract 1
    It is said the title of the trustees is precisely that of an administrator— title by legal assignment; but the administrator “derives his title wholly from the court granting the administration.” 1 Lomax Ex’rs. 204; Toller, 95. An administrator is the “ officer ” of the court. Toller, 114. In this view, a repeal of the statute would be like a repeal of letters of administration, and the title would cease. Toller, 131.
    3d. Suppose these trustees do take, not by any grant or authority from the state, but as mere assignees in law.
    They hold only in their artificial statutory capacity; they are the mere agents of the state, and the particular mode in which the title is devolved upon them, will not change the character stamped upon them by the statute. As mere agents of the state, they were appointed to take charge of, to sue for, and collect, and to sell, and to hold the proceeds, to be applied as might thereafter be directed by the legislature; the statute creates the office and appoints that the trustees shall convert the estate into money, and hold that money subject to the future directions of the legislature; they cannot pay over one dollar until the legislature shall declare the time, the payee and the manner of payment.
    The law itself plainly declares the agency; they do not collect for their own use, but collect to hold subject to the direction of the legislature. The language of the act, “ to take charge of,” &c., is conclusive in favor of this construction ; their bond is to be on condition “ to pay over as may hereafter be declared by law.”
    No one can deny that these trustees are the mere agents of the state, if the estates are not pledged by the statute to the late creditors of the defunct corporations — if those creditors are not made the cesiuis que trust of these trustees. Now we say no such trust is declared, and those creditors acquired no rights whatever under the statute ; as a grant of the beneficial interest, the law is inchoate and merely expresses a legislative intent— a proposed future law, directing the proceeds to be applied to pay such of the debts, and in such manner, as the legislature might determine. The words, “ as may hereafter be declared by law,” reserved the entire fund for disposal by future legislation; all was left to the will of the lawgiver. If all creditors were to be paid pro rata, the reservation would not have been made; under it the legislature may exclude all, or any class, or any one of the creditors; no one nor any class of them can say he or they must be paid under the trust; the beneficiary is not in esse. It should not bo forgotten that the creditors did not call for the act of 1843; the statute was an enactment in invitum, and the state declared the whole act as a remedy prescribed by herself and for herself. 4 S. & M. 512.
    If the trustees compromise with the creditors and pocket the fund, may not the state call them to account 1
    
    If they divide out the assets among the creditors, may not the state interpose'?
    
      But if we admit all that is claimed, and allow that there are declared cestuis que trust, we still say they had no vested interest, and the legislature might alter or repeal the whole statute. On this and the foregoing propositions see Alexander v. Duke of Wellington, 2 Russ. &M. 35; 6 Eng. Cond. Ch. 383 ; 2 Peters, 503 ; 2 Ohio, 287; 3 Ohio, 553, 579 ; 2 Whart. 395; 1 N. Hamp. 61; 'Young, State Com’r. v. Walworth et al. (per Ch. Buckner.)
    Again ; we think the act of 1843 was a mere seizure of the assets and corporate property, and that the trustees took “charge of” with powers of suit and sale, but did not take title as assignees or as successors or as quasi administrators. It is not necessary that they should have the legal title in order to sue, for they sue not upon common law rules, but under the statute, which is their authority to sue. 1 Chitty PI. 15. They are not required to do any one act which they may not do under the mere authority of the statute, and without any other legal right or title whatever. Administrators, sheriffs, tax-collectors, and commissioners have no title to the lands they sell, and yet they convey a title. As a right to sue will not be inferred from a statutory right of property, so a right of property will not be inferred from a statutory power to sue. Jeffery v. M Taggart, 6 M. & Sel. 126; Wilson v. M Elroy, 2 S. & M. 241.
    If this be the correct view, then the fact of a mere state agency is indisputable. So, if there be no cestuis, the state may control, for the trustees have no interest, and the state created them.
    Before it is determined that the trustees took the estate by mere legal assignment, and that therefore the act of 1846 impairs the obligation of the contracts assigned to them, it may not be amiss to consider the nature of part of these assets. A large portion of the notes due the banks are payable to the banks merely, and not to order or bearer. The duty or obligation of the contract was created at the date of it; and the whole of the obligation was to pay the amount to the bank itself, and not to such person as the legislature should authorize years thereafter, to collect the sum promised. We admit that the legislature may, under some circumstances, authorize a stranger to recover the amount of such a note, but it cannot transfer the obligation of the contract to him; because I have bound myself to perform to A., the legislature cannot enact that I have therefore bound myself to perform to B.; such a law would create an obligation for me, or impair the old one. Story Confl. § 357.
    Again. If the act of 1843 was enacted on the supposition that the bank debtors were about to be “released” by the dissolution of the corporation, and the consequent extinguishment of the debts, and. if, for that reason, the debts and assets were directed to be seized upon by the trustees; then the proposed distribution of the proceeds was an act of mere legislative bounty, and the statute'might be altered or repealed at pleasure. See cases before cited, and 3 Stewart, 387.
    Again. It is urged that the trustees or creditors have some sort óf a vested right under the act of 1843; but, if I appoint A. “ to take charge of” my books and assets, “ to sue for and collect” debts due me, “ to sell ” my property, and “to apply” the proceeds to pay my debts as I may hereafter direct, does any right vest in A. that I may not destroy 1 does any interest vest in any creditor, that I may not defeat by recalling the grant to A. 1 Is it not clear that a deed of trust, so conditioned, would be void, because I had so reserved my right to dispose of the proceeds % The case will not be altered, though the legal title be vested in A., nor if the grant I so make is not of my property, but that of another, provided the proceeds are so subject to my control.
    To conclude on this point; we think the trustees have no vested right to sue for these debts, and the creditors have no such right that the trustees shall so sue; the sale is proposed as a remedy, preferable to suit, by which the estate will be converted into money; no remedy is to be sold under the statute.
    III. On a former argument upon this statute, we took it for granted, that the state had not attempted to legislate a control of an existing trust, but that the trust, if any, was created by the statute; this court has since decided otherwise. 6 S. & M. 558, et seq. The eighth section of the act of 1843 is void as being an unauthorized interference with the jurisdiction of the courts of chancery in the appointment of trustees and the administration of trusts: and void as an unauthorized interference with probate jurisdiction, if the statute be considered as providing for an administration upon the estate of a defunct corporation ; and also void as an improper interference with the rights and interests of the cestuis interested in the trust property.
    As to exclusive jurisdiction in matters of trust and in the appointment of trustees, where the instrument creating the trust does not otherwise provide, see 1 Story Eq. secs. 29, 60, 634; Jeremy, p. 162.
    On the constitutional point, see Com. Bank of Manchester v. The State, 4 S. <fc M, 501, 512, et seq.; Carmichael v. Browder, 3 How. 254, et seq.; Officer v. Yotmg, 5 Yerg. 320; Tate v. Bell, 4 Yerg. 202.
    The whole jurisdiction in matters of law, equity, and probate is vested by the constitution, and each new case that may arise will be subject to the proper jurisdiction, according to the nature of that case, whether it be of law, equity, or probate.
    Neither the state, nor the legislature, nor the circuit courts can administer a trust fund on the estate of a decedent, nor appoint a trustee or an administrator.
    If this be a trust, it belongs to the chancery court; if the estate to be administered is that of a decedent, it belongs to the probate court. The proper tribunal must appoint the person who is to administer.
    In a cáse like this, the circuit court had no more authority to appoint a trustee than it has to appoint an administrator.
    Under the statute of administrations, an administrator derives his title to the property from the probate court, (1 Lomax Exs. 204; Toller, 95) ; and he is the officer of the court. Toller, 114. By the same rule of construction, these trustees derive their title from the circuit court, and are the officers of that court.
    IV. The motion to revive is premature; there is no proof that the judgment of forfeiture has been executed — that the corporation is dissolved by “ execution executed.” 6 S. & M. 548. You must annul the contract of incorporation, take away the charter, for a cause of forfeiture, before you can dissolve the corporation under proceedings in invitum. The charter is the grant of the franchises ; you may dissolve a corporation for an act of forfeiture, because that grant is made upon a condition that it may be resumed for such an act. The judicial proceeding strikes down the corporation by destroying the charter. The ancient and proper remedy was by sci. fa., under which the grant would be resumed, or revoked. If the charter is to remain, the corporators may reorganize after the corporation is dissolved for a forfeiture.
    On the same side, A. G. McNutt, Sanders, Freeman, Attorney-General, and Maury.
    
    
      George S. Yerger, in reply.
    1. Before the passage of the act of 1846, judgments of forfeiture, were rendered against these banks, and trustees were appointed under the act of 1843. The property and assets of the bank were thus, by operation of law, vested in these trustees; they were clothed with the legal interest, and had the right to sue for, and collect the debts due to the bank. Nevitt v. Bank of Port Gibson, 6 S. & M. 629.
    2. Can the legislature divest this right ? The act of 1846, if it is constitutional, does divest it. The power to collect by suit or otherwise is taken from the trustees, if not expressly, by necessary implication, and they are ordered to expose all the debts for sale at public auction.
    I maintain that this act is repugnant to first' principles; it is within the spirit and meaning, if not the letter, of the constitution of the United States, prohibiting to the states the passage of ex post facto laws, and laws violating the obligation of contracts. 7 John. R. 502; 1 Blackford R. 220; Peck’s Tenn. R. 1; 1 Howard’s Miss. R. 188 ; 2 Alabama Rep. N. S. 54; 1 Harrington R. 77; 4 Serg. & Rawl. 401; 1 Kent Com. 455; 2 Greenl. R. 28, 275 ; 2 Peters’s R. 657; 2 Yerger’s R. 603; 5 Monroe R. 129.
    Such right is also protected against subsequent legislation by the tenth and fourteenth sections of the bill of rights, as found in the constitution of Mississippi.
    
      3. The act of 1846, is not only void, because it is within the spirit of the constitution of the United States, in regard to ex post facto laws, and laws impairing the obligation of contracts, and as against common right; but it is directly within the express prohibition of that clause of the constitution, which prohibits to the states the passage of laws impairing the obligation of contracts.
    What is the obligation of a contract ? It is the right which results to the parties, by the law of the state where made. Peck’s R. 13; 3 Story’s Const. 245; 12 Wheaton, 213; Bronson v. Kinzie, 1 How. S. C. U. S. 311; McCracken v. Hayward, 2 lb. 612.
    By what right does an executor or administrator recover on a contract made with the intestate? By what right does an as-signee recover ? They recover because they are the representatives, in a legal sense, of the party to whom the promise was made. The right of the deceased was, by the law, a right to sue and collect, a right to have execution. The legislature cannot take this right from him, and compel him to sell. Why ? because by the law, when the contract was made, the testator or intestate had the right to sue and enforce it; this was its obligation. When he died, by operation of law, the contract and its obligation vested in the personal representative. The representative does not recover by virtue of any contract made with him. He recovers by virtue of the contract made with testator.
    The true reason why a contract with a corporation is extinguished by its dissolution, is, because the common law does not provide for a representative to enforce it. After the legal death of the corporation, the obligation of the contract still existed, but there being no assignee, in fact or in law, who could sue upon it, all remedy to enforce it was necessarily extinct. But the moment the law provides a representative, an administrator, if I may so speak, such representative acquires, by force of the law, precisely the same rights which the corporation had to sue upon the contract. The law assigns the contract to him, and he has the same right to enforce it, which the bank before its dissolution had. If the bank could support an action, he can. If the legislature could not take the right of suit from the bank, it cannot be taken from the representative of the bank. The obligation of the contract is to pay ; “ the remedy to enforce the broken contract is a suit.” Its obligation is necessarily impaired, when a subsequent law says, you shall not recover according to the terms of the contract; you shall not sue upon such contract; but you may or must sell it to some one else. The right which is thus given by the law, at the time the contract was made, to wit, to sue upon it if it is broken, is taken away by the act of 1846, and the party is compelled to transfer his right of suit to another, against his consent. This destroys its obligation. See 3 Story’s Com. on Con. 251.
    To destroy the remedy given by law, is to destroy the obligation of the contract. A remedy is a right by either party to enforce the contract, when violated, against the other party. To destroy or affect this remedy, existing at the time of thecontract, is materially to affect its obligation. 1 How. Miss. R. 188, 191, 192; Bronson v. Kinzie, 1 How. S. C. U. S. 311; McCracken y. Hayward, 2 lb.; Green v. Biddle, 8 Wheat. 1. Let us test this. A. gives his promissory note to B. A fails to pay. The law gives B. a right or remedy, by suit, to compel A. to pay. The legislature pass a law, saying, we prohibit suit on the contract, or repeal all laws authorizing a suit; but in lieu of a suit, we authorize you to sell the note at public auction. Does no! this violate the contract, or rather its obligation 1
    
    In the case of Bronson v. Kinzie, the law, when the mortgage was made, authorized a foreclosure and sale without redemption ; a subsequent law, authorizing redemption, after a sale, violated the contract. The violation of the contract in this case, is more palpable than in that.
    Any alteration of the terms of a contract, is a violation of the obligation of the contract. Any change of remedy, which materially affects the right, is a violation of its obligation. 3 Story’s Com. on Con. 250, 251, and cases before cited in 1 and 2 How. “ The obligation to perform a contract, is coeval with the undertaking to perform it.” The remedy acts upon the broken contract, and enforces a preexisting obligation. . lb. and authorities cited. Suppose the bank was in existence, could the legislature say it should not sue on its contracts, but might put them up and sell them. Would not this violate their obligation, which was to perform them by payment % Surely it would.
    If then a law compelling a sale*of a contract instead of a suit to enforce its obligation, would violate its obligation, whilst in the hands of the living party with whom it was made, by what reasoning can it be shown that it is not equally a violation in the hands of those who represent him. Can the law say the executor shall not sue to enforce its obligation, where the party died, and the executor was appointed before the passage of the law ? Unquestionably it cannot. And why ? Because the law vests the legal interest in the contract in the executor. 1 Chitty PI. 19. What is the legal interest 1 It is the right to enforce it, according to the law, by suit. This is the legal right vested in the testator; this is the legal right vested in the executor by force of the .law, making him represent the testator. The contract and its obligation, that is, the right to performance, is thrown upon the executor. To say he shall not sue for its violation, is to violate its obligation, which was that the party or his legal representatives might enforce it against him.
    So, here the bank could enforce it. By the law of 1843, before the legal death of the bank, the law provided an administrator for it. The trustees represent the dead bank. By the law, they are vested with the legal interest in the contract. That legal interest is to enforce its performance; and to take away their remedy to do this, is unquestionably a violation of the obligation of the contract.
    If the statute had simply said, the trustees should represent the bank, it would have been sufficient; but it does more; it authorizes them to “ sue and collect the debts, and directs them to sell the real and personal property. This clothes them with the legal interest in the contract, and it shows the legislature knew the difference between a sale and a suit.
    The above views are, in fact, sustained, I might say, decided, by all the members of this court, as will presently be shown.
    
      Again, the act of 1846, so far as it deprives the trustees of a right of action on the notes and contracts of the bank, is a palpable violation of the constitution of Mississippi; to wit, the fourteenth section of the bill of rights.
    Upon the legal death of a ‘Corporation, its debts were extinguished by the common law. The act of 1843, gave it an administrator or trustee, and gave to the trustee a right of action. This right of action is vested in the trustee, by the express words of the statute. What is a right of action? It is a right to recover, by process of law, damages for the breach of a contract, or for a tort, or to enforce, by process of law, the performance of a duty? In regard to a contract, it is the right to sue for its breach, to have execution of it. So soon as the forfeiture was judicially pronounced, and the trustees appointed, at that very moment, by the terms of the law, the trustees have a right to sue. To refuse to pay them is an injury to the creditors and stockholders, as well as the trustees. Like an executor, the trustees represent the parties in interest. The fourteenth section of the bill of rights says, “The courts shall be open, and every person, for an injury done him in his lands, goods, person or reputation, shall have remedy, by due course of law, and right and justice administered, without sale, denial or delay.” “ This clause,” says the supreme court of Tennessee, (Peck’s R. 14,.) “relates to every possible injury which a man may sustain,” &c. &c. “ And includes the right, which is vested in him, to demand the execution of a contract,” &c. &c. The trustees then had the right, so soon as they were appointed, to demand the execution of the contracts made with the bank. “ The courts, as to them, were to be open,” to enforce performance, and to have “ justice administered without sale, denial or delay.” Can the legislature close the courts? Can they deny the process of the law ? If they can, what is the use of the constitution. Can the legislature say the courts shall not be open to these5 trustees, that they shall not enforce the right vested in them by the law. But that they may, as a substitute, put up the broken contract, and sell it at public sale. The case in Peck’s Reports decided that, in such case, the law is a nullity.
    
      Suppose the trustees have obtained judgment? Can the right to withhold execution to execute that judgment, be sustained, for any purpose ? The able case, above cited from Peck, demonstrates that it cannot.
    The above views, as before remarked, are sustained by all the members of this court, in the case of the Bank of Port Gibson v. Nevitt, for, although Mr. Justice Thacher dissented in that case, yet assuming the act of 1843 to have the effect, which a majority of the court on that case decided it had, he fully concurs with the other judges as to the unconstitutionality of a law divesting rights vested under it.
    The case of Nevitt, above cited, decided that the law was constitutional ; and the effect of that decision, and the opinion of the court was, that the right thus vested, that is, a right of suit, or right to collect, could not be taken away. See Judge Clayton’s opinion, 6 S. & M. 523-529, 530, 531, 565, 566, 570. In the views expressed by Judge Clayton, Judge Sharkey concurred, as did also Judge Thacher. See pages 541, 597. Such was also the opinion of Chancellor Kent on this act. See 6 S. & M. 517.
    But, it is gravely, said this is a new remedy, a substituted remedy. It is a repeal of all remedies. The remedy given by law was, to enforce the contract by action. The only remedies known to the law, (except by agreement of parlies,) are actions at law and in equity. The right is damages from the party for breaking the contract; the remedy is a suit to recover them. The act of 1846 takes away this and all remedies ; it prohibits all suits by the injured party, and compels him to transfer his right to a third person, and gives to this third person the remedy of which he was divested. But if even it were a remedy, if it materially affects the contract, it violates its obligation. Green v. Biddle, 8 Wheat. 1; Bronson v. Kinzie, 1 How. S. C. U. S. 320; McCracken v. Hayward, 2 lb. 612; 6 How. Miss. R. 632.
    Mr. Yerger commented at length on all the cases cited by the counsel on the other side, with a view to show that they were wholly inapplicable to the points involved in this cause.
   Mr. Chief Justice Sharkey,

delivered the opinion of the court.

The several cases which have been argued, and submitted together as involving the construction and validity of the act of the legislature passed in 1846, entitled “ an act to amend an act entitled an act to prescribe the mode of proceeding against incorporated banks for a violation-of their corporate franchises, and against persons pretending to exercise corporate privileges under acts of incorporation, and for other purposes,” passed July, 1843, so far as it was designed to operate on the assets and property of banks whose charters had been declared forfeited before the passage of the act, have been carefully examined, in view of the objection, that they were not properly before this Court. We certainly do not desire to decide any case which is not properly before us, but we have no wish to evade a decision on the merits of any case that is regularly here. And although it was suggested, that in view of the importance of the question, it ought to receive further discussion on being directly presented to the court, yet we apprehend that but little could be added to the lengthy and able discussions which have been bestowed upon the question by the counsel on both sides.

All of the cases were not properly brought up, but some of them are regularly in this court, and do undoubtedly present the whole question, and from their present attitude, require absolutely that it should be decided. To this class belongs the case of the Commercial Bank of Natchez v. Chambers et al. as will be manifest by stating its condition.

The Commercial Bank brought suit on a promissory note made by Chambers. At the October term, 1842, of the circuit court of Scott county, judgment was rendered in favor of the defendant; the bank sued out a writ of error returnable to the January term, 1844, of this court, pending which, to wit, in June 1845, the corporation was dissolved by judgment of forfeiture. The writ of error must therefore abate, unless there be some one who can prosecute it. The trustee appointed by the court, under the act of 1843, when the judgment of forfeiture was pronounced, now comes into court and suggests in writing the dissolution of the corporation, and moves to have the suit revived in his name as trustee. In support of his motion he produces the judgment of forfeiture rendered against the bank, at the June term, 1845, of the circuit court of Adams county, which judgment also shows that at the same time he was appointed trustee, and he admits that he has been ordered to sell under the act of 1846. Prior to the passage of the act of 1846, we decided that the trustees appointed under the act of 1843, on the dissolution of a corporation, were entitled to have all suits revived in their names which had been instituted by the corporation, and were pending at the time of the forfeiture. The act of 1843 authorizes them to sue,' and having such right, they of course had a right to prosecute suits then pending. This right, the trustee then undoubtedly had prior to the passage of the act of 1846, and the question is, does it still exist, or has it been taken away by the last mentioned act, the construction of which is necessarily involved. A right to revive a suit necessarily embraces the right to prosecute it to final judgment, and to receive the proceeds under execution, just as such power is embraced in a right or authority to institute suits. If this trustee can have this suit revived, it must be under the act of 1843 ; the act of 1846 gives no such power, either directly or by intendment; on the contrary, such power is unnecessary and repugnant to the duty which it requires the trustees to perform. It does not require them to collect, but impliedly forbids it. Its provisions are that the trustees shall return an inventory of the property and evidences of debt, to the court, and then, under an order of court, to proceed to sell to the highest bidder for cash, all the property and evidences of debt specified and set forth in the inventory, including bills receivable, notes, judgments, decrees, and all other evidences of debt, at certain specified places, on giving ninety days notice. It is mandatory in its terms, and leaves no discretion with the, trustee. He cannot collect even the amount of a judgment, nor is he authorized to receive payment, if voluntarily . tendered, but he is to sell everything. Having no power to collect money by execution, there is no necessity for reviving under this act; it did not contemplate any such thing. If it is to prevail, this motion to revive cannot be sustained; but if the act of 1843 is to prevail, then the motion must be sustained. 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 profess a repeal; and this must be the effect of the act of 1846 on that of 1843, unless constitutional rights interpose barriers to such an effect.

It was suggested in argument that possibly both acts might stand, by so construing them as to make them harmonize. It is true, that we ought to follow that rule of construction which requires that acts seemingly repugnant, shall still be regarded as consistent if such construction can be fairly given them. In the present instance, nothing short of an unfair and forced construction, could produce such a result. The two acts are not only repugnant, but the latter seems to have been designed to abrogate that provision of the former, which w*e are now called on to enforce. By the act of 1843, the trustees are authorized to take charge of the assets; to sue for and collect the debts due the bank, and to sell and dispose of the property, without any restriction as to the manner of such sale. By the act of 1846, the trustees are required positively to sell all property and all rights held by the bank. The trustees under the first act had discretion, and a much more extensive power; they could sell the property as they might think best. Under the last act, they have no discretion, and are deprived of the important power of suing and collecting. This act creates but a limited agency; the first created a trustee. As they are thus inconsistent, the one or the other must be inoperative. The last is said to be in conflict with the constitution in several particulars, and to that extent, void. If that be so, the act of 1843 is still the law. We shall proceed, therefore, to inquire into the validity of the act of 1846, in its application to rights, which accrued under the forfeiture of the bank charier, which occurred before its passage.

It is said to be in conflict with the constitution in several particulars; that it is retrospective and destroys vested rights ; that it violates the obligation of contracts, and that it also violates the fourteenth section of'the bill of rights, which declares “ that all courts shall.be open, and every person, for an injury done him in his lands, goods, person, or reputation, shall have remedy by due course of law, and right and justice administered, without sale, denial or delay.”

As the validity of the act is attacked, because it violates constitutional rights, the inquiry seems to give rise to three questions : First, what were the rights of any and all parties in interest, of the state as well as individuals, under the act of 1843, either by the express declaration of that act, or as resulting consequentially from it, independently of such express declarations? Second, how and to what extent have the rights which existed under the law of 1843, been changed by the law of 1846? and third, as to the power of the legislature to make such changes.

.First, with regard to the rights of all parties under the act of 1843, either as directly declared, or as resulting necessarily from it. It was said, in argument, with much plausibility, that even without the interposition of the-legislature, the debts due to and from the bank, would have survived its dissolution; that these commercial corporations should be regarded as partnerships, and the fund or property owned by them a trust fund, which equity would appropriate to the payment of their debts. The current of decisions 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 in the contracts, but from necessity, because there is no person in whose favor, or against whom they can be enforced. But to proceed. What then were the rights which accrued under the act of 1843 ? The question is intended to embrace something more than the rights expressly given. The act was designed to prescribe a mode of proceeding against corporations for violations of charters. To avert the consequences which it was supposed would follow a dissolution of the corporation, the legislature provided by the eighth section, that upon judgment of forfeiture, the debtors of such bank should not be released by such judgment from their debts and .liabilities, but that it should be the duty of the court to appoint one or more trustees to take charge of the books and assets; to sue for and collect all debts due to such bank, and to sell and dispose of its property; and the proceeds of the debts when collected, and of the property, to apply, as might thereafter be directed bylaw, to the payment of the debts of such bank. This act is called the grant, or assignment of all the rights which now exist. It contains two propositions: first, that the debts due to the bank should not be extinguished; and second, that they should be applied to the payment of the debts due from the bank. In the outset, we cannot admit the entire correctness of the argument, on which more than one of the counsel! aid much stress, that there are no other rights, either in the trustee or creditors, than such as are expressly given by the act. By saying that the trustee should apply the proceeds, as might thereafter be directed by law, to the payment of the debts of the bank, the legislature did not make an appropriation in favor of creditors. It gave nothing, for the best of all reasons; it did not own the debts due the bank, and, therefore, could not give them to the creditors. If it had professed to give nothing, it is believed that the result, so far as the right is concerned, would not have been materially different from what it is. To be more explicit; suppose the legislature had said the debts due to and from the bank shall not be extinguished, and had stopped there, how would the rights of debtor and creditor have stood then 1 The contracts would have been saved, and the obligations in full force. The rights of the creditor would have been thereby saved, and the liability of the debtor would also have continued to exist. The only question is as to the remedy, and it is said there is no right without a remedy, and this is true. When the law is inadequate, equity supplies its deficiencies, by furnishing an appropriate remedy. If there be a right, in the legal sense of that term, as contradistinguished from a right in morals, then, either in law or in equity is there a remedy. Let us suppose the legislature to pass an act, with no other object in view than a mere repeal of so much of the common law, as extinguishes the debts of a corporation on its dissolution. It would seem to follow, as a consequence of such repeal, that the debts would still exist, and yet they would not if there was no remedy, for there is no debt in a legal sense unless it can be enforced; and the consequence would be that the legislature cannot repeal that part of the common law, without also providing a remedy. But is it not true that when the contract is saved in full force, the existing law furnishes a remedy? The debts due to the bank, are sometimes regarded as constituting a trust-fund for the payment of debts due from it; but whether that be true to the full extent of a strict trust or not, is not material; it is enough if it be a fund which equity would appropriate for the benefit of creditors. Such was the principle of Wood v. Dummer, 3 Mason, 308, and Robins v. Embry, 1 S. & M. Ch. R. 207. If the creditor should happen to have a judgment, the remedy would be obvious enough. But very clearly, if in such a repealing law, provision had also been made for the appointment of a trustee to take charge of the assets without directing what he should do with them, the remedy would have followed. It is not true then, that all rights are derived from that part of the law which, in terms, declares that the assets shall be applied to the payment of debts. Strike from it these words, “ and the proceeds of the debts when collected, and of the property when sold, to apply, as may hereafter be directed by law, to the payment of the debts of such bank or banks, corporation or corporations,” and creditors would still have recourse against the funds. By saving the debts from extinction, and providing for the appointment of a successor, the existing law attached the trust, or remedy.

In the further consideration of the effect of this law on the present question, we must bear in mind, that two of its prominent features, have, after a very full investigation, received a judicial construction, in the case of Nevitt v. The Rank of Port Gibson, 6 S. & M. 513. We decided, that the law conferred authority and imposed duties on the trustees, which could only be executed by investing them with the legal ownership of the property; and that they can maintain actions at law. We also decided that the act, in effect, declares 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 if the legislature were to attempt to apply them to any other purpose than the payment of the debts of the corporation, it would transcend its constitutional limits. We still adhere to this construction of the act. The trustee then had the legal title, or succession cast upon him. His condition is not materially different from that of a trustee appointed by contract. As a general principle the legal title vests in a trustee, whilst the equity is in the cestui que trust. By the act he is called a “trustee,” and the meaning of the term, was doubtless well understood; it does not create a mere agency, and if the legislature can repeal his authority, why can they not that of any other trustee 1 There is a trust-fund, a use to which it is to be applied, and a trustee to apply it; that is precisely the character of all trusts. The term was appropriate, and used, as we must suppose, understandingly. When a trustee is once appointed, he is amenable to judicial authority only. A court of chancery may remove him for an abuse of the trust, or it may compel him to perform it. The title of the creditors is equally clear. It resulted as a necessary consequence from the declaration, that the debts due the bank, should not be extinguished, and that a trustee should be appointed to receive them; it was recognized and strengthened by the declaration, that the trustee should apply the funds to the payment of the debts of the bank. Although the act does not, in so many words, say that the debts due from the bank shall not be extinguished, yet, this is the necessary consequence of what is said. The debts due the bank could have been kept alive for no other purpose, and besides, the declaration that the funds should be applied to the payment of debts, necessarily kept the claims of creditors in existence to receive the fund; and so it is too with regard to property; the intention was to save all for the benefit of creditors, which is manifest, as the property was to be converted into money. But the legislature had no power to appropriate the funds to any other purpose; that is a point expressly decided in Nevitt’s case. The common law might have been left to operate in extinguishing the debts by a dissolution of the bank, but the very moment they were saved from annihilation, their destiny was fixed. But supposing it to have been within the power of the legislature to change that destiny, it is still perfectly apparent that no such thing was intended; and if legislative intention is worth anything in the construction of a law, it must place the rights of creditors beyond dispute in this instance, so far as the legislative power over the assets extended. When the legislature declared that “ the proceeds of the debts when collected, and of the property when sold” should be applied to the payment of debts as might thereafter be directed by law, a beneficial interest then vested in creditors, even if none would have vested without such declaration, and by interposing a trustee, the creditors had also a remedy by which to enforce their rights.

Let us now look at the condition of things as produced by the act of 1843. The bank had violated the conditions of its charter, and judgment of forfeiture was pronounced against it. It had property and debts due to it. There were also claims against it. The common law, which would have extinguished such debts on both sides, had been repealed; it was not the law of the land that the debts due to and from a corporation should be extinguished. The contracts were preserved in full vigor, and the property did not revert to the original grantor, or to the state. The law required that a trustee or successor should be appointed; this was done, and he thereby acquired the legal title to the property and choses in action. He became in law the owner; he could sue and collect, and sell property. The funds in his hands were subject however to a trust; creditors had a vested beneficial interest in them. They were held by the trustee but to be applied to the use of creditors. Having an equitable interest, creditors had also a remedy; they could resort to a court of chancery to compel the trustee to discharge his duty by collecting the funds, and then, by paying them over, under the direction of the court of chancery. No further legislation was required. The right and the remedy both existed; the one was perfect, and the other was adequate. It would seem to require something more than the exercise of legitimate legislative .power to break up this connection — to produce a total change in the existing rights of the parties, by taking away entirely the remedy of the creditor, and by compelling the trustee to sell his legal title. Yet such power is claimed for the legislature; it was made to rest on these words in the law, to wit: and the proceeds of the debts, when collected, and of the property, when sold, to apply, as may hereafter be directed by law, to the payment of the debts,” &c. In this language, it is argued, there was a reservation of power to give future directions by law with regard to the disposition of the assets. If the state reserved power over this property, or the assets, she must have possessed it, for nothing can be reserved which was not possessed. If anything more than ordinary legislative power can be exerted over this fund, or the choses in action, it must be in virtue of some right of property in the state. Surely, if she has no right of property, she possesses nothing more than a general legislative power, to be exercised only as it is on the property or rights of individuals. Let us briefly, then, inquire into the rights of the state, in this respect. None can be asserted in consequence of any power the state may be supposed to have had over the bank; the bank had ceased to exist, and any power over it must have also ceased. But the property and rights were left. The state had withdrawn the portion of power which it had delegated.to the corporation, and the relation that had once existed between the legislature and the bank, no longer existed. It cannot be that, because this property once belonged to the bank, that more than ordinary power can be claimed over it. Nor does such power exist merely because provision was made that the rights should survive the dissolution ; that would be to assume that the state had a right to appropriate it by legislative act to her own use, which is denied. There is no such thing as a legislative appropriation of property in this country. If it can be shown that the state had no interest whatever in the choses in action, and the real estate, then it will follow that none other than a general legislative power existed over them. The state could have acquired no right on the ground of forfeiture. The constitution declares that no conviction for an offence, shall work a forfeiture of estate. The legislature cannot, in the face of this provision, pass a law of forfeiture for offences, nor can it pass an act to transfer property. It is the province of the judiciary to declare the ownership of property in virtue of some preexisting rule or law; and no judicial determination had been pronounced, giving title to the state. No right whatever can be claimed-under the common law to the choses in action, or the real estate. Suppose that law to have been in full force, what is the consequence? By that the real estate would have reverted to the grantor, not to the state; nor could she control it more than other property, for the moment the forfeiture was declared the title would have passed by operation of law to the grantor. The personal property, the state would have been entitled to, and could have disposed of; but she could have acquired no right to the choses in action; they would have been extinguished. Then if there be any such right as that claimed, it must result from the act of 1843. The most obvious answer to this is found in the want of intention in the legislature to vest the property in the state, even if it had possessed the power to do so. There is nothing in the act which professes, either directly or indirectly, to confer any right of property on the state, either absolutely or conditionally. The state did not, nor could she, acquire any right of property by the common law, and she evidently acquired none by statute; it transfers no right, which it should have done if any was intended to be secured, by it; because as the state had no right, independently of the statute, some act of transfer was necessary, as without it nothing could be acquired. Then how, it may be asked, does the particular clause under consideration amount to a reservation of power, when nothing was possessed to reserve. How does it amount to a conditional gift, when the state had nothing to give? If it is tobe construed as amounting to anything more than a reservation of general legislative power, it is void, for nothing more was possessed to reserve; and if it amounts only to a reservation of a right to legislate in regard to these rights, it was unnecessary ; such right is always in the legislature, unless it has been expressly parted with. For all practical purposes, then, this clause might as well have been left out of the statute, so far as it is attempted to be made the source of authority to the legislature. It neither confers nor reserves power which would not have been possessed without it. In virtue of the right of eminent domain, the state may appropriate private property to public uses, but this can only be done on just compensation first made. The right is not predicated on this ground, nor is it derived from the law of escheats, which does not operate to the prejudice of creditors ; its application is not asserted in the present instance. We are totally at a loss then to perceive how a deduction is to be drawn in favor of a right of property in the state, either past or present; and need we repeat that, without such right, anything more than general legislative power over it cannot exist. Like other property, it is to be held and transmitted by laws prescribed within the acknowledged sphere of legislation; it is subject to nothing more. The common law might have been left to operate, and its consequences would have followed. But the rights were preserved, and when that effect was produced, private interests in them attached, or rather never were removed, because the obligation of the contracts never were interrupted. As the property and debts survived the institution they retained all their incidents. The ownership was somewhere, and wherever it was, it was a private, not a public right; and as such it was protected by the constitution, subject only to such legislative authority as may be exercised over every individual in the community.

But suppose it to be admitted that the state once had such right as that claimed, what follows? She has parted with it. The act of 1843 expressly declares that it shall be applied to the payment of debts. We have decided that under this provision such a trust was raised as would be enforced in favor of creditors in equity, without further legislation. We could not so have decided if the state had reserved the right. Notwithstanding this decision it is argued that there was still a power of control, but this would be inconsistent with the equity of creditors. When the state parts with property, even by donation, it becomes a contract, and is beyond her control. Private rights are then vested, which cannot be divested. The state gave the franchise to the corporation, but had no power to withdraw it at pleasure; it required a forfeiture of the condition to enable this to be done.

Second. Having thus endeavored to show to what.extent rights were vested under the act of 1843, and in whom, we come, in the next place, to inquire how and to what extent these rights are changed by the act of 1846. By the first section the trustee is required to give bond conditioned to perform the duties required by that act. By the 9th section of the first act, he was required to give bond conditioned for the diligent collection of the debts, and the sale of the property. If the bond under the first act enured to the benefit of creditors, it might be a serious question whether any discharge from the obligation could be made, except by those for whose benefit it was intended. The second section of the act of 1846, makes it the duty of every person holding property belonging to the bank, to deliver it to the trustee, and a refusal to do so is made a contempt of court. This is the substitute for the right to sue for property given by the first act. It is a summary remedy, and certainly confers great power on the court, and it might seem a harsh and unauthorized one if the possessor of property should interpose a claim to hold it. The third section makes it the duty of the trustees to return an inventory of all rights and property, at the first term of the court after their appointment. The fourth section gives rise to the principal point involved in this case. It provides that the trustees, under the order of court, shall sell for cash to the highest bidder, all the property and evidences of debt set forth in the inventory, at certain specified places, on giving ninety days’ notice of such sale. By the eleventh section it is declared that all the provisions of the act shall extend to trustees previously appointed under the act of 1843. Here then is a plain declaration that the act was intended to apply to trustees appointed on forfeitures which had been previously declared. Consequently such trustees were imperatively required to sell, at public sale, property to which they held the legal title, whether it was in their possession or not. It deprives them of their right to sue on the choses in action. But the most important change is made in the rights of creditors. Their obligations were in full force under the act of 1843: the fund was declared a trust fund for their benefit — they had an interest in it, and consequently a right to have it collected — they had power to compel the trustees to perform their duty in the collection— and then they had an adequate remedy to enforce the payment of their notes, bills or bonds, out of the trust fund. By the last,act every right they had is swept away. They are compelled to submit to a sale of the property in which they had an interest, and indeed on which they had a lien, for that is the effect of a trust. They have no power over the trustee. They have obligations confessedly subsisting, without any remedy to enforce them. They cannot sue, as they could before, either at law or in equity. The power to sue a trustee in equity, arises out of the duty he is under to apply the fund in payment of the debt. It is a proceeding to enforce a lien upon the fund. When that duty ceases, by giving a different direction to the fund, the remedy is at an end; the lien is destroyed. Nothing is a legal remedy unless it can be carried out by process of execution. These changes are important and striking, and this brings us to inquire,

Third, as to the power of the legislature to declare these changes. When any vested right is taken away, or the obligation of any contract is impaired, the act is so far void. It requires no argument to prove that the legislature cannot interfere with vested rights in such a way as to destroy them. Remedies may be provided in aid of them, but any legislative act which destroys a right, or transfers it from one to another, against the will of the owner, is void. The fundamental principles of government forbid it. It is beyond the legitimate power of the legislature. A retrospective statute, affecting and changing vested rights, is very generally considered in this country, says Chancellor Kent, as founded on unconstitutional principles, and consequently inoperative and void. 1 Kent, 455. This too was the doctrine announced in the case of Dash v. Van Kluck, 7 Johns. 477, in which the effect of retrospective statutes was very much discussed. And in 8 Wheaton, 493, it was said that if rights be acquired under a law, they are not changed or lost by its repeal. The language of Judge Story, in the case of Wilkinson v. Leland, 2 Peters, 276, is worthy of being quoted. He says, That government can scarcely be deemed to be free, where the rights of property are left solely dependent upon the will of the legislative body,, without any restraint. The fundamental maxims of a free government seem to require that the rights of personal liberty and private property should be held sacred. At least no court of justice in this country would be warranted in assuming that the power to violate and disregard them, a power so repugnant to the common principles of justice and civil liberty, lurked under.any general grant of legislative authority, or ought to be implied from any general expressions of the will of the people.” But it must be useless to multiply authorities. The people 'of this country understand very well that there is no power in the legislature to take from them that which they own. They know that they have delegated to the legislature all the power it possesses, and no such authority has been granted. We have seen then that important rights were vested in the creditors of the bank, both before and after the act of 1843; we have also seen that those rights have been materially changed by the legislature; that.they have been actually deprived of all remedy; and we have lastly seen that the legislature possesses no such power. But it has been said there is no such thing as a vested right in a remedy. That is not understood to be the doctrine where the enjoyment or possession of a right, depends upon the remedy. It is true that there is no vested right in any particular remedy; the form of the remedy may be changed. But if it were even true that there is no such thing as a vested right in a remedy, the further question arises, — if the remedy is taken away, is not the obligation of the contract impaired ? It will be sufficient to quote the language of Judge Story, and apply it to the present case. He says, Although there is a distinction between the obligation of a contract and a remedy upon it; yet, if there are certain remedies existing at the time when it is made, all of which are afterwards wholly extinguished by new laws, so that there remain no means of enforcing its obligation, and no redress, such an abolition of all remedies, operating in presentí, is also an impairing of the obligation of such contract. But every change and mod-ideation of the remedy does not involve such a consequence. No one will doubt, that the legislature may vary the nature and extent of the remedy, so always, that some substantive remedy be in fact left.” 3 Story’s Com. on Con. 250. The rule has been even more strictly administered than here laid down, in the more recent decisions of the supreme court. Valuation or appraisement laws have been held to impair the obligation of the contract, because of the delay they produced. It cannot admit of question that where the remedy is entirely taken away, the obligation is impaired. The obligation is the duty which the obli-gor is under to perform the contract, and if the remedy be taken away, the legal obligation is destroyed. The state is bound to furnish a remedy by law for the enforcement of every right of the citizen. When the creditors of the bank entered into the contracts with it, the existing laws furnished a remedy at law. When the forfeiture was declared, the debts were not extinguished, but remained in full force, but the form of the remedy was necessarily changed. A trustee was provided for, and a fund set apart for the payment of debts. That trustee was invested with a legal right to sue. This was a grant of power which is equivalent to a contract; no grant can be impaired.

But the creditors were also clothed with a remedy; they could proceed to enforce their contracts on the fund through the trustee. The late law deprives them of kll remedy. They cannot sue on their contracts, although they are unimpaired, except by the privation of a remedy. The obligation is certainly impaired. But to this objection it was answered tha<t the sale directed by the 4th section is a remedy, but that is not so. It does not enforce the contract, on the contrary, it defeats its enforcement. A remedy is a legal demand of one’s right in a court of justice. It consists in a right to have the contract enforced by a judgment at law. In a legal remedy, the party is an actor, but here he is not. This sale has none of the characteristics of a legal remedy.

Having given our view of the questions involved, it remains to answer some of the arguments of counsel addressed to ns. It was said that no trust was created, no rights vested in any particular creditor, and consequently that no right was divested. This argument overlooks the decision in Nevitt’s case. We held, that the fund was a trust-fund for the payment of debts, and that it would be enforced in a court of chancery. It is now too late to say that no equity vested, or that no trust existed, or that it was so imperfect that it could not be enforced. But another of the counsel said this question was not directly involved in Nevitt’s case, and that the decision of the point is not binding. This is a mistake ; it arose directly on the validity of the law, and was as directly decided.

It was again said, that as the state saved this property for creditors, she had a right to reserve power to control it, and did do so, by directing thát it should be paid as might afterwards be directed by law. The truth of this proposition is not admitted. The state saves all our property by providing laws for its recovery, and its enjoyment. If I save the vessel of a mariner from sinking, I do not thereby acquire a right of property in the vessel, nor do Tacquire a right to manage the helm. It is the highest duty of the state to save and protect the rights of individuals, but this does not enlarge her power over the particular thing which has received protection. The social compact contains no such principle as that extraordinary and unauthorized power may be exerted in consideration of the discharge of an act of duty. All delegated power finds its limit in the constitution, and no benefit bestowed on a particular class of individuals, will authorize a relaxation of constitutional restrictions as to them.

It was insisted also, that the trustee was only invested with a power which is subject to revocation. . The case of a note transferred to an agent or attorney for collection, was given as an illustration. In the supposed case there is no transfer of the legal title. An attorney must bring suit in the name of his principal. But there is this further obvious distinction. No use vests in any one, the beneficial interest still remains in the individual who transferred the note. But that is again begging the question. When did the state get her right to transfer either with power of revocation, or without it. The truth is the state had no right of property; neither was it suspended, or held in abeyance; but vested immediately, the legal title in the trustees, and the beneficial interest or equity, in the creditors, and that consequently it was subject only to the general authority of the legislature, as other rights of a similar character are. It was then irrevocable.

But the main ground taken in argument, was that the legislature has a right to direct the trustees to sell, because they are agents of the state, or public officers, in proof of which, it is made embezzlement in them to misapply the funds. The legislature may make it embezzlement in any private trustee to squander or waste the funds entrusted to his keeping. The argument would be conclusive, if the property and assets belonged to the state; but if it be private property, it would be difficult to maintain that the legislature has power to direct the agents of the state to sell it. The state may control her own agents, but she cannot authorize them to seize and sell private property. Another of the counsel insisted however, that they were not public agents, but private trustees, and that as trusts are cognizable in equity, both the laws are void, because they confer power on the circuit courts to appoint trustees. We fully concur in thinking they are private trustees; we do not think they can, with any plausibility, be regarded as public officers. But we cannot concur in thinking either of the acts void, merely because they confer power on the circuit courts to appoint trustees. Trustees may be appointed by parties, or by courts of law, or even by the legislature for public purposes; but when appointed by the parties, or by a court of law, they are amenable to a court of chancery. That court- never appoints a trustee, except when there is a trust, and no trustee to manage or perform it. By the act of 1844, provision was made for putting the Planters Bank in liquidation, by proceedings in chancery through a trustee. In the case of that Bank v. The State, 6 S. & M. 628, we decided that notwithstanding this remedy, the courts of law might still proceed under the act of 1843, against that bank, in case no proceeding had been instituted under the act of 1844; thus indicating our opinion, that a trustee still might be appointed by a court of law.

It was pressed in argument that no rights were violated, — no contract impaired. Let us put the case of Routh & Williams v. The Commercial Bank of Natchez, which is one of the cases submitted, to prove that the rights of debtors are violated as well as the rights of creditors. The plaintiffs had a judgment rendered against them for over $100,000, in which it is said there was error, and that they are not in law bound to pay it. They prosecuted a writ of error to reverse the judgment, which was actually pending in this court, when the act of 1846 was passed. It does not provide that suits may be brought by, or revived in the name of, or against the trustee. If they cannot revive against the trustee, their writ of error must abate, the inevitable consequence of which is an affirmance of the judgment; it is equivalent to an affirmance of the judgment. Then a judgment stands against them, which is to be sold by the trustee, and which of course they would be bound to pay to the purchaser. This law makes a contract for them, and affirms a judgment on that contract. It imposes an obligation which they say does not exist. It takes away from them a suit pending, which is made a matter of right. This does not seem to be in keeping with that provision in the constitution which declares that all courts shall be open, and every person for an injury done him in his lands, goods, person, or reputation, shall have remedy by due course of law, and right and justice administered without sale, denial or delay.”

We have thus endeavored to give our view of the question involved, as well as to attempt a very brief reply to some of the prominent arguments of counsel. Our conclusion is, that, that portion of the act of 1846, relating to the sale of the property and assets of banks, cannot operate as to the banks whose charters had been forfeited, and trustees appointed under the act of 1843, prior to the passage of the last act. The motion to revive must consequently be sustained.

Mr. Justice Clayton concurred in the conclusions of Chief Justice ShaRKEy, for reasons to be thereafter filed.

Mr. Justice Thacher

delivered the following dissenting opinion:

This is a writ of error to the circuit court of Scott county, sued out by the Commercial Bank of Natchez. Pending the writ of error, in this court, a judgment of forfeiture, under the act of 1843, has been pronounced against the said bank. This is now a motion by William Robertson, who was appointed the trustee of the said bank, upon the rendition of the judgment of forfeiture, for a revival of the suit, in his name, as trustee, and that he may be made party to the suit instead of the late bank.

The first question which arises, under this motion, is, can the trustee sue and be sued % This point arose in the case of Nevitt v. The Bank of Port Gibson, 6 S. & M. 513. In that case, I held that the rights and credits of the bank did not survive the judgment of forfeiture, authorized by the act of 1843, because, by that act, judgment of absolute and entire forfeiture was exacted, the effect of which was the total extinguishment of the franchises of the offending corporation, and as the franchises of the corporation were not, by the statute, continued, either in the original corporators, or in other persons, for any purpose whatever, the choses in action, which only existed by virtue of those franchises, became likewise totally and absolutely extinguished, and being so extinguished, were not the subject of an action at law. Subsequent reflection has only served to fasten this conviction more strongly on my mind.

The right of a banking corporation to enforce the collection of its choses in action, by actions at law, is one of its most important and vital franchises, because the business of a bank is to acquire profits, by loaning its capital stock. By the charters of the banks, in this state, they are authorized to loan three times the amount of the capital stock paid in. In lieu of the capital stock, then, and as a security for the repayment of the same, they acquire nothing but choses in action. A chose in action, in the eye of the law, is not property, but merely gives a right to recover property, by such legal remedies, as the general laws of the land provide, through the instrumentality of courts. If, therefore, the securities taken.for the repayment of such loans; together with the accumulated interest thereon, could not be sued upon, and the payment thereby enforced at law, the consequence would be, that when the bank had loaned out its capital stock, it would cease to exist for want of a power to recover the fund, which alone constitutes the bank. Like the silk-worm, it would have laid its egg, and died. All the authorities agree that when the franchises of a corporation cease to exist for a single instant of time, the rights dependent upon, or flowing out of those franchises, cease also to exist, and can never again be revived, except by the consent of all parties, to be charged or benefited thereby. The majority of the court, in their opinion just read, speaking of the common law rule, say, that it may now be regarded as the settled doctrine, that on the dissolution of a corporation, the debts due to and from it, are extinguished, not by any implied condition in the contract, but from necessity, because there is no person in whose favor, or against whom it can be enforced.” In the case of Nevitt v. The Bank of Port Gibson, 6 S. & M. 566, the majority of the court also said, we “deny that the legislature has any power to force a continued existence upon a corporation, after taking away its material franchises, under a judgment, striking down its capacity of succession, and of electing its own officers. And we deny the power of continuing the corporate existence in the hands of others, without the consent of the corporation, unless power to do so be reserved in the charter, or unless there be a general law, authorizing it to be done before the creation of such corporation.” In the present case, the charter of the Commercial Bank contains no such reservation of power, nor was there any general law to that effect, before its creation. The majority of the court do not deny that the Commercial Bank of Natchez is a dissolved corporation. They do not claim that any of the franchises of the bank are continued in the trustee, nor that the power of the trustee to sue is derived from the charter of the bank ; but, on the contrary, they deny that the legislature had the power to continue any of the corporate franchises in the trustee. Hence it is clear that the majority of the court rely alone on the statute of 1843, for the power of the trustee to sue.

The statute of 1843 was never accepted by the bank, nor is it pretended by any one that it constitutes a part of the charter of the bank. It is, therefore, a general law, passed subsequently to, and entirely disconnected from the special act incorporating the bank. It emanates exclusively from the legislative will, and is dependent upon the constitutional exercise of that will, for its force and' validity.

Having shown by the decisions of the majority of the court, that all the franchises of the bank, including the vital franchise of suing, are totally extinguished, and that the powers of the trustees are solely derived from the act of 1843, it follows as an inevitable conclusion, that there must have been a point of time when the franchises of the bank under its charter ceased to exist, and another point of time, subsequent thereto, when the supposed rights of the trustees, under the statute, accrued. Until the dissolution by judgment of forfeiture takes place, the clause of the statute appointing trustees is inoperative. The question of forfeiture is tried by a jury; the jury find a verdict of guilty against the bank. On the finding of this verdict, the court enters up judgment of forfeiture. Here, according to the opinions^ the majority of the court, all the franchises of the bank cease. At this stage of the proceeding, the statute requires the court to appoint one or more trustees, which trustees are required to give bond before they can enter upon the discharge of their duties. All this proceeding requires time. The judge must exercise his discretion in the selection of a trustee. After the court has made its selection of a trustee, the person selected has the option to accept or refuse the appointment. Hence it is clear that the appointment of a trustee, could be no part of the final judgment of the court, because a final judgment is always binding upon the parties thereto. If the person selected refuse the appointment, it would be the duty of the court to select another, and so on, until an acceptance of the trust was obtained. The person accepting the trust, is then required to find sureties to be approved by the court, who, with the trustee, are to enter into bond, conditioned as the court may direct for the faithful performance of the trust, and until such bond is executed, the trustee has no right accruing under the statute. The time then which intervenes between the dissolution of the corporation by the judgment of forfeiture and the qualification of the trustee, thereafter to be appointed by the court may be an hour, a day, or a year, or more. Certain it is, that a point of time intervenes when there is no person in existence who has a right of action in the choses in action, which were of the dissolved corporation. It matters not how short this period of time may be, but if such an interregnum-in the right of action once exist, it can never be reclaimed by legislative power.alone. See dissenting opinions. Nevitt v. The Bank of Port Gibson, 6 S. & M. 531, 575.

It being thus clearly established, as well from the opinions of the majority of the court as from other authorities, that by the judgment of forfeiture under the statute of 1843, the right of the bank to sue, together with all its other franchises, was entirely cloven down and utterly extinguished, and that those rights are not continued through the charter to the trustee. The question now arises, — does that clause o'f the statute which provides that upon the judgment of forfeiture, “the debtors should not be released by such judgment from their debts and liabilities to the bank, but that it shall be the duty of the court rendering such judgment to appoint one or more trustees to take charge of the books and assets of the same, and to sue for, and collect all debts due such.bank,” confer the right upon the trustees to sue in the lieu and stead of the dissolved bank on its choses in action? Let it be borne in mind, that choses in action are mere rights to a remedy at law for the recovery of property; and are based upon a contract between the parties thereto for property. The bank was the sole owner of those choses in action; and at common law, the bank alone had a right to transfer the same, but by a statute of this state, that common law right was taken away. Alluding to this subject, the majority of the court in their opinion in this case say, — “There is no such thing as a legislative appropriation of property-in this country. If it can be shown that the state had no interest whatever in the choses in action, and the real estate, then it will follow that none other than a general legislative power existed over them. The state could have acquired no right on the'ground of forfeiture. The constitution declares that no conviction for an offence shall work a forfeiture of estate. The legislature cannot in the face of this provision, pass a law of forfeiture for offences, nor can it pass an act to transfer property. It is the province of the judiciary to declare the ownership of property in virtue of some preexisting rule or law; and no judicial determination had been pronounced, giving title to the state. No right whatever can be claimed under the common law to the choses in action, or the real estate. Suppose that law to have been in full force, what is the consequence ? By that the real estate would have reverted to the grantor, not to the state; nor could she control it more than other property, for the moment the forfeiture was declared the title would have passed by operation of law to the grantor. The personal property, the state would have been entitled to, and could have disposed of, but she could have acquired no right to the choses in action; they would have been extinguished. Then if there be any such right as that claimed, it must result from the act of 1843. The most obvious answer to this is found in the want of intention in the legislature to vest the property in the state, even if it had possessed the power to do so. There is nothing in the act which professes, either directly or indirectly, to confer any right of property on the state, either absolutely or conditionally. The state did not, nor could she, acquire any right of property by the common law, and she evidently acquired none by the statute ; it transfers no right, which it should have done if any was intended to be secured by it; because as the state had no right independently of the statute, some act of transfer was necessary, as without it nothing could be acquired. Then how, it may be asked, does the particular clause under consideration amount to a reservation of power, when nothing was possessed to reserve. How does it amount to a conditional gift, when the state had nothing to give.” This reasoning demonstrates beyond a doubt that the state had neither a right of action upon, nor a right of property in the choses in action that were of the dissolved bank, and having no such right, it was not in her power to convey or transfer by legislative enactment such a right to a trustee, subsequently to be appointed by the circuit court. This very ground was taken by me in my dissenting opinions, in the case of Nevitt v. The Bank of Port Gibson, 6 S. & M. 546; Ibid. 590.

Thus far, having shown that the trustees do not derive a right of action through the charter of the bank, and that the act of 1843, in attempting to confer such right, was unconstitutional and void, according to the opinions of the majority of the court, the question still remains to be answered, — whence do the trustees derive the right to sue ! The reply is, that this right results “ from operation of law.” We have already seen that the law of the charter has no such operation, and that by the staute of 1840, all banks were forbidden to transfer their choses in action, which statute has been held valid by adjudication of this court. Planters Bank v. Sharp, 4 S. & M. 17. The majority of the court have decided that the state had no right of property in the choses in action, and no right of action in the same, and having no such rights, the legislature could confer none. It follows then, that the statute of 1843, so far as it attempts to confer a title to property, or right of action to recover the same, must be void for want of power in the legislature to pass such an act. If then the legislature have no power to make such a law, and if such a law be void, how can such a law so operate as to produce an effect which the law itself cannot produce. Can the law have an operation and produce an effect, which the law-making power had no authority to accomplish?

It must be remembered, that a cause of action arises out of a contract between the parties, and that a right to sue on such contract, arises from the legislative will. For instance, the legislature passes a general law, authorizing all persons, owning promissory notes, to bring an action at law upon the same. Under this law, any person owning a promissory note, would have a right to sue at law upon the same, but persons, not owning promissory notes, would acquire no rights under the law. Thus, also, the'constitution guarantees that the courts shall always' be open ; but they are kept open only for persons who seek to vindicate an actual injury done to them in their lands, goods, persons or reputations. The constitution does not open the courts to those persons who have no cause of action. Suppose, a plaintiff file a declaration against a defendant in the circuit court. The defendant demurs on the ground, that the plaintiff’s declaration sets forth no cause of action. On the trial of the demurrer, the court decides that the plaintiff’s declaration contains no cause of action. The judgment of the court, then is, that the plaintiff’s action be dismissed. He is then turned out of the court, yet the constitution provides that the courts shall always be open. So, with the statute of 1843. The legislature says, that the ■ trustees appointed under that act, shall have power to sue for, and collect all debts due the bank. If there were no debts due the bank, none could be collected ; and if the trustees had no legal title in debts formerly belonging to the bank, it would confer no rights, because the right to sue can only exist where there is a legal, preexisting cause of action; and when the legislature says that the trustees may sue, it does not thereby invest the trustees with any title to property nor does it create any cause of action in favor of said trustees, but the trustees are confined, in exercising their right to sue, to such causes of action as had a legal existence independent of the statute of 1833. But, I have already shown that, independent of the statute of 1843, no cause of action exists after the judgment of forfeiture. The statute, therefore, of 1843, in giving the trustees power to sue for, and collect debts due to the bank, is evidently based on the mistaken, supposition of the legislature, that the choses in action, which conferred a right of action on the bank, previously to its dissolution, survived the judgment of forfeiture, and would support an action at law in favor of any person whom the legislature might direct to bring such action. It has already been shown that this is a false assumption, because the choses in action are annulled, and the right of action flowing therefrom, ceases to exist the moment the franchises of the bank cease to exist. In the argument at bar, counsel seem to have confounded a right to sue with a cause of action. The burden of the argument was, that a right to sue was a vested right, and they read many authorities to that point; and so the majority of the court say, that a right to sue, vested in the trustees on the dissolution of the bank, and that such right is a vested right; hence, the statute of 1846, taking away the right to sue, and furnishing no other adequate remedy, was unconstitutional, and to that extent void. But it has nowhere been shown to my conviction, that a cause of action was legally vested in the trustees. It is true, the majority of the court declare, that “ the contracts were preserved in full vigor, and the property did not revert to the original grantor or to the state, and the law required that a trustee or successor should be appointed, and this having been done, he thereby acquired the legal title to the property and choses in action.” This position is not made the subject of argument in the present opinion of the majority of the court, but is based upon their opinion in the case of Neviit v. The Port Gibson Bank, 6 S. & M. 513. My dissenting opinions in that case in addition to the views hereinbefore set forth, are referred to as a reply to this position.

For these reasons, in addition to those heretofore given, I am still of the opinion that the trustees appointed under the statute of 1843, have no such title to the choses in action that were of the dissolved bank, as will enable them to support an action upon the same.

It has been strenuously urged upon me, that inasmuch as the majority of the court have heretofore held the statute of 1843 to be constitutional, that it is now my duty to concur in that opinion, the convictions of my own mind to the contrary, notwithstanding. I cannot yield my assent to this proposition. The judges of this court are sworn to support the constitution of this state,.and to discharge, to the best of their respective abilities, the duties of their office. The constitution is the supreme law of the land. Were I to concur in the opinion of the majority of the court, I should feel that I was doing an act in violation of the constitution of the state. The majority of the court are doubtless as conscientious in entertaining their opinion. But each judge is independent of the others ; and is responsible alone to his own conscience and to his God, for the judgment he may render in any particular case.

In pursuing this cause I am not without a precedent. The constitution of this state prohibits the introduction of slaves as merchandise, or for sale. In the case of Green v. Robinson, 5 How. 80, the majority of this court decided that a contract made in consideration of slaves introduced into the state, in violation of the constitution, might be avoided, by making the defence at law; but if the defence was not made, and a jhdgment on the contract was obtained, such judgment could not be set aside. Chief Justice Sharkey dissented, on the ground that such a contract was not only voidable, but 'absolutely void, and being void no action could be supported on the same, and no judgment at law could make it'valid. At a subsequent term, the same question arose, in the case of Glidewell v. Hite, 5 How. 110, and Chief Justice Sharkey again dissented, and read an able, and to my mind, unanswerable dissenting opinion.

Upon principle and precedent, therefore, I feel bound to dissent in this case.

The following opinion was filed by Mr. Justice Clayton, after the delivery of the foregoing opinions, in accordance with the intimation, given at the conclusion of the opinion of the chief justice.

I concur in the conclusion of the chief justice, in this cause, but desire to give expression to some of the reasons which influence my judgment.

The act of 1843, commonly called the Briscoe bill, with the Guión amendment, has undergone frequent, protracted, and elaborate investigation, in this court. In the first case, that of the Commercial Bank of Rodney v. The State, 4 S. & M. 439, each of the judges delivered a separate opinion. Judge Thacher, in the close of his opinion, after having previously made a summary of the provisions of the law in question, remarks: The foregoing review of this case, brings me to the conclusion, that the statute is, in all respects, constitutional and valid, and that the whole proceedings, as given by the statute, in its inception, progress and termination, is properly, and solely cognizable in the courts of law.” 490.

My own opinion was, that the statute was constitutional, except that part which requires the injunction to be returned into the circuit court, and to be retained until the hearing of the quo xoarranto. Ib. 501. The chief justice was of opinion, that it was constitutional, except as to the whole injunction clause, which he thought was entirely inoperative. Ib. 513.

Next came the case of Nevitt v. The Bank of Port Gibson, 6 S. & M. 513. The majority of the court there held, “ that a judgment of forfeiture against a bank, and appointment of trustees, under the act of 1843, is an assignment, by operation of law, of all the property of the bank to the trustees, for the benefit of creditors; and that the assignment relates back to the period of the issuance of the injunction, against the bank, under the act.” 565 - 573.

Judge Thacher, who dissented in that case, says, “ From the best examination I have been able to bestow on the statute of 1843, and the rules of law applicable to it, I am forced to the conclusion, that the rights and credits of the Bank of Port Gibson do not survive the judgment rendered against that bank.” 532. “ On the contrary, the judgment of forfeiture so extinguishes all the franchises, privileges, rights and credits, of the dissolved corporations, that the trustees, contemplated by the statute, can take nothing by their appointment, save the personal property of the corporation dissolved.” lb. 597.

Then came the case of the Planters Bank, which was twice before this court. On the first occasion, the question was, whether the act of 1844, in regard to that bank and the Mississippi Railroad Company, operated a repeal, by implication, of the Briscoe bill of 1843. To understand the full import of this question, it will be proper to state, that the act of 1844 provided, in the first place, for a surrender of charters, upon the part of those banks, and for a mode of winding up their affairs, and appropriating their assets, in the event of such surrender. But, if they refused to surrender their charters, then jjt provided a mode of proceeding, in the superior court of chancery, to vacate the charter, and to wind up the corporation, for the benefit of the creditors, to appoint commissioners to collect all debts belonging to the same, and to apply the proceeds, first, to the payment of the circulation and certificates of deposit of the bank, and then to the extinguishment of the principal and interest of the bonds issued for state stock, in the Planters Bank. Acts of 1844, 138. The court expressed its unanimous opinion, that there was “ no such repugnancy in the two acts, as to make the last, necessarily, a repeal of the former; and that a judgment, under either, might be pleaded in bar of any subsequent proceeding, in the other court.” 6 S. & M. 632. The next instance was, a mere repetition of this opinion, as to this particular point, and was also unanimous. Planters Bank v. The State, 7 S. & M. 178.

One of two things was established by these decisions; either that the act of 1843 was valid and sufficient to carry out all the objects of the legislature, in the passage of that law; or if not, then, that the act of 1844 was likewise invalid and insufficient for its purposes and objects, so that neither act was of any force. To adopt the latter alternative, as true, would be to condemn the act of 1844 unheard, and to pronounce it unworthy of consideration. For myself, I disclaim all such intention, and am free to declare, that the decision, in my understanding of it, established the validity and sufficiency of the act of 1843, “ in all respects, inception, progress, and termination.”

In his message to the legislature, in January, 1846, the governor communicated a letter from the attorney-general, in regard to these acts of 1843 and 1844, and his course, under them, in reference to the Planters Bank. The letter is to be found among the documents accompanying the message. Senate Journal of 1846, 89. This letter, in reply to the inquiry of the executive, “ why it was deemed better to proceed against the Planters Bank, by quo warranto, than by bill in chancery under the act of 1844,” in substance says: “The proceeding by quo warranto, under the statute of 1843, was pending against that bank, at the time the statute of 1844 was passed. The bank contended, that the law of 1844 repealed the law of 1843, as to that bank, and moved the circuit court to dismiss the information on that ground. The court decided that the law of 1844 did not repeal the law of 1843, and that the information must proceed, as that court had first taken jurisdiction of the law. This decision of the circuit court, put it out of my power to file a bill in chancery, against the bank, under the act of 1844. The powers of the circuit court to wind up the affairs of the bank, were as plenary as those of the chancery court; and had the two proceedings been carried on, it would have presented the singular aspect of a court of law and a court of chancery, both contending for the possession of the assets of the bank.” The legislature appears to have acquiesced in this view; it took no special action, in regard to the Planters Bank, but included it, with a single immaterial exception, so far as the matter in hand is concerned, in the general law, passed at that session.

Thus the law stood, when the act' of 1846 was passed. The decisions of this court upon the act of 1813, were before the legislature. It had been announced, in terms that could not be misunderstood, that the proceedings, under the act of 1843, operated an assignment, in law, of all the assets of the bank, to the trustees, for the benefit of creditors. The statute of 1846, stands on the platform of the act of 1843. It recognizes its validity throughout, and is passed as an amendment to it. It was passed after the judicial construction of this court was had. The views of each member of the court were before it. The statute distinctly recognizes the principle, that the rights and credits were not extinguished, but, on the contrary, that they survived the judgment of forfeiture against the banks. It provides a mode for the disposition of-the rights, credits and effects of the banks. After all this, it seems to me, that the act of 1843 is no longer a matter of controversy, but that its construction is settled, and at rest. The act of 1846 stands upon the act of 1843, and its fixed construction, as its foundation, and upon that foundation I take my place, side by side, with the legislature.

The act of 1846 thus rests upon that of 1843. It recognizes the validity of the legal assignment to the trustees, and legislates upon the rights vested under it. The third section directs that the trustees shall return an inventory of all the property and evidences of debt, which come to their possession, and the fourth, requires them to sell said property and evidences of debt, to the highest bidder for cash, in a certain specified manner. The question is, whether this part of the act, directing a sale of the evidences of debt, is constitutional and valid. It divests the right to sue and collect, in the ordinary course of law; it directs a sale by the trustees, and then authorizes a redemption from the purchaser. Can this be done 1 It is in reference to banks, whose charters had been previously declared forfeited, under the act of 1843, that the question arises.

Let us illustrate the proposition by an example. Suppose the legislature should pass a law requiring the merchants of this state not to sue upon the debts due to them, but to expose all their bills, notes, and open accounts, to public sale, to the highest bidder. No one would contend for the validity of such a law. In principle, it is the same with this. By the act of 1843, recognized, in this respect, by the act of 1846, the trustees were vested with the legal title to the choses in action, else they could have nothing to sue for, or to sell. By virtue of that legal title, they were clothed with a right of action. This law divests the right of property, or what is the same thing, renders it worthless, by taking away all remedy to enforce it, and thus impairs its obligation. Its direct tendency is, to enable the debtor to buy up his debt, at an enormous discount, in disregard of the rights of the creditor. It closes the gates of the temple of justice, against the positive provisions of the bill of rights. In my view, its enactments, on this head, are against the constitution of the United States, and of this state.

But it is said this clause is valid, because, by the act of 1843, the legislature reserved power to direct the disposition of the assets, by further legislation. The best way to solve this point, is to see what power was really reserved. The act says, the court, rendering the judgment of forfeiture, shall appoint one or more trustees, to collect the debts due to the corporation, to sell and dispose of all its property, and the proceeds to apply, in payment of the debts of the corporation, as might be thereafter directed by law.” What was the legislature afterwards to direct? Not the collection of the debts; that was already done; nor the sale of the property, for that likewise had been done. It must have been, then, the mode of applying the proceeds to the payment of the debts. The act of 1846, contains rules for such application, and to this extent the power to legislate had been reserved. Whether the preferences given, by the act, are valid, is a question not now before us. But, by no just rule of interpretation, can it be held, that this power, thus reserved, can extend to defeat the right of the trustees to sue, and collect the debts due to the banks, at the time of their dissolution.

But it is said, that, by the act of 1840, the banks were prohibited from making assignments of their choses in action. That is true; but the act of 1843, under a given state of things, makes an assignment, by law, for them. If the legislature, by one statute, could take away the right of assignment, which the banks previously h^d, surely by another and a subsequent act, the right to assign might be restored, either directly to the banks, or indirectly by operation of law.

For my views of the law of 1843, I merely refer to my opinions, in the case of Nevitt, and have only to say, that my confidence, in the conclusions, is not, in the slightest degree, diminished, by any subsequent discussion or investigation.

The dissenting opinion contains a long.extract from the opinion of the chief justice in this cause, and says that it embodies and adopts the views of the dissenting opinion in Nevitt’s case. I do not so understand the opinion, especially, when the whole of it is taken in connection, and not a selected portion alone. When it asserts the state has nothing to grant, it likewise holds, that, by the operation of law, the assets of the bank pass, upon the judgment of forfeiture, from the bank to the trustee, who, thenceforward, stands in the situation of an assignee. The trustee, being thus clothed, not with the rights of the state, but the rights which pertained to the bank before its dissolution, has power to collect its assets, in the same manner that an administrator has right to collect the effects of his decedent. On the death of a natural person, the law casts all his rights on his legal representative; so, on the dissolution of the corporation, under the act of 1843, all its rights and credits are transferred to the trustee. In each case, the state, by its law, only prescribes a rule to govern the transmission, and to regulate the mode of ultimate distribution. The intention of the legislature is too plain to be mistaken. No one can doubt its meaning, and, in my apprehension, to carry out the intention of a statute, when not contrary to the constitution, and when plainly expressed, is the incumbent duty of the court. The intention is the polar star of interpretation.

But, if this view of the opinion of the chief justice be not correct, and if it contain anything, which adopts the views of the dissenting opinion, in Nevitt’s case, then I cannot concur in such reasoning. I did not formerly, nor do I now concur with that dissenting opinion. I do not regard the conclusion in this cause, to be dependent upon, or affected by the reasoning contained in that portion of the opinion, selected for comment, by the dissenting member of the court. I have not the slightest doubt of the correctness of that conclusion, and it only remains for me to add my cordial concurrence in it.  