
    THE COMMONWEALTH against THE HUNTINGDON BANK.
    The act of the 21st of April, 1814, which exacts a duty of eight per cent, upon the amount of dividends declared by any bank, provides, that upon the failure of • the bank to pay the same to the state treasurer, within a given period, he shall proclaim the charter of such bank to be forfeited. Held, That such proclamation having been made, and the charter forfeited, will not preclude the state from recovering in an action, the duty of eight per cent. also.
    ERROR to the Special Court of Common Pleas of Huntingdon county.
    This was an action on the case brought by the Commonwealth to recover from the Huntingdon Bank, eight per cent., the state tax, upon the dividend declared by the said bank, for the year ending the first Monday of November, 1821.
    The bank was incorporated by the act of the 21 st of March, 1814, and continued to do business till December, 1821. On the first Monday of November, 1821, the bank declared a dividend on its capital stock of $2846 62; and on the 24th of November, 1821, remitted and tendered to the state treasurer, the sum of $227 73, in notes of the bank, which he refused to accept, because the said bank was then not paying specie for its notes. On the 30th of December, 1821, the state treasurer officially declared the charter of the said bank forfeited, because of the non-payment of the state tax. The bank never afterwards acted under its charter.
    Upon this state of facts the court below was of opinión, That the state, having exacted the forfeiture of the charter, was not entitled to recover the money also; and rendered a judgment for the defendant, which was here assigned for error.
    
      Blanchard for plaintiff in error.
    The eight per cent, which the act of the 21st of April, 1814, section 10 provides, shall be paid to the state, is a duty payable by the bank for the privilege of banking; and the provision in the act, that the charter shall be forfeited in ease of non-payment, does not take away the common law remedy, to recover that which the bank, by the acceptance of its charter, contracted to pay.
    The offer of their own notes in payment was after the passage of the act of the 27th of January, 1819, which prohibited the treasurer from receiving the notes of any bank which did not pay specie. But if it was a legal tender, yet it was not continued.
    
      Potter for defendant in error.
    The Commonwealth had an election, either to exact the forfeiture or require the money; and haying made "the election, they could not pursue any other course. 1't was eyidently not the intention of the legislature to résort to a courtof law; but to'compel the payment by a penalty. There is no provision in'the act authorizing a suit to be brought. • ,' .
    The court was of opinion that the 'judgment of the court below was’erroneous, and therefore reversed jj, and entered a judgment for the plaintiff. , . '
   Judgment reversed, and judgment entered for the plaintiff  