
    The State of Mississippi vs. The President, Directors and Company of the Commercial and Rail Road Bank of Vicksburg.
    By the 5th section of the act of 1843, prescribing the mode of proceeding against incorporated banks, for a violation of their corporate franchises, &c., it is enacted, that the provisions of the act shall not extend to the Commercial and Rail Road Bank of Yicksburg, so as to affect the railroad and its operation ; held, that this hank was not by this provision exempted entirely from the operation of the act; the provision only limited the extent of the judgment of forfeiture against the bank, in the event one should be rendered.
    Previous to the passage of the act of 1843, the Commercial and Rail Road Bank of Vicksburg made an assignment of all of its assets and property to assignees, for the benefit of creditors ; in the year 1846, proceedings in the nature of a quo warranto were commenced against the bank ; the assignees moved to quash the information, and dissolve the injunction on' the ground of the assignment to them; held, that the motion could be sustained only so far as the interest of the assignees in the railroad was concerned.
    On appeal from the circuit court of Warren county; Hon. George Ooalter, judge.
    On the 16th day of February, 1846, Fulton Anderson, Esq. district attorney of the third judicial district, (upon the relation of Mark Valentine, whose affidavit had been presented to him according to law,) lodged an information in the nature of a quo warranto against the president, directors, and company of the Commercial and Railroad Bank of Vicksburg; alleging an illegal exercise on their part of corporate privileges. Upon the filing of the information, the clerk issued a summons and an injunction ; both of which were executed on the proper officers of the corporation, and also upon Thomas E. Robins, William S. Bodley, and William C. Walker, as the assignees of the corporation. At the May term, 1846, the corporation moved to quash the information, writ and injunction, because it was not embraced in the law under and by virtue of which the proceedings had been instituted. The motion, after argument, was sustained, and the information and proceedings quashed.
    At the same term the assignees entered a similar motion, on the ground that the corporation had by deeds of assignment of the 11th of February, A. D. 1840, transferred to them all the bills receivable, bonds, accounts, assets, and other property, real and personal, of the bank, in trust for the payment of its debts, and for other purposes set forth in the assignments, which had been duly proved and recorded; which motion, on argument, was also sustained. The state took a bill of exceptions, embodying the deeds of assignment; (they are the same reported at length in the case of Arthur v. The Commercial & Railroad Bank of Vicksburg, 9 S. & M. 394:) and prayed this appeal.
    
      John D. Freeman, attorney general for the state,
    Contended that, in the case of The State v. The Commercial Bank of Manchester, 4 S. & M. 439, the court had decided this case by holding that the statute only exempted the railroad privileges, not the banking' privileges, from the operation of the act.
    
      George S. Verger, for appellees.
    1. The proviso or exception in the act of 1843, exempts banks having railroad privileges from its operation, so far as the railroad is concerned. If the charter of the bank is destroyed or adjudged forfeited, it of course destroys the corporation. The railroad is held by the corporation; the railroad cannot be assigned, and has not been. If the corporation or corporate rights are destroyed by a judgment, what is to become of the railroad 7 As the exception exempts it from being proceeded against, if the railroad is affected, and as a judgment of ouster of its corporate rights would affect it, it would seem to come within the exception.
    But, 2. The assignment in this case was made before the act of 1840. In the cases heretofore decided in this court, the assignments were made after the passage of that act; and the court, upon a motion of this kind, would not inquire into the fact, whether the act prohibited a general assignment or not, but leave that for future determination. But in this case, the assignment having been made before that act, there can be no question that the notes, bills, bonds, &c. were legally transferred to the assignees, so that the dissolution of the corporation would not prevent them from suing or collecting. The fact, therefore, that the bank had forfeited its charter can have no effect on them. They cannot be enjoined; the injunction therefore, as to them, was rightfully quashed.
   Mr. Justice ThacheR

delivered the opinion of the court.

This is a proceeding against the president, directors and company of the Commercial and Railroad Bank of Yicksburg, under the statute of 1843, 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.”

In the circuit court two motions were made and sustained, the injunction dissolved, and the information in the nature of a quo warranto quashed.

The first motion was made to dissolve the injunction and quash the information, »by the corporation, upon the ground that it was exceptéd out of the operation of the statute by the act of 1843.

The fifth section of that act enacts that the provisions of the act shall not extend to the funds which legitimately belong to the state of Mississippi, or 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 chief design of this statute is to prosecute to judgment of forfeiture of their banking franchises, such corporations as may have violated their corporate franchises. The judgment against the Commercial and Railroad Bank of Vicksburg, in the event of conviction, would probably be a judgment of forfeiture as t its banking franchises. It was not the intention of the law to exempt this corporation entirely from its operation, but merely to limit the extent of the judgment of forfeiture against it in the event any should be required. The motion should not therefore have been sustained in the circuit court, only so far as the railroad and its operations were concerned.

The same principle holds also as to the motion made by the assignees of the corporation. It could not be sustained so as to quash the information, or so as to dissolve the injunction, only so far as the interests of the assignees in the railroad are concerned.

The judgment must be reversed, and the cause remanded for further proceedings.  