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.
Section 1. Be it enacted by the Legislature of the State of Mississippi, 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 creditable 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 which 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.
Sec. 2. 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 creditable person or persons, shall be presented to him, stating that he or they have good reason to believe, and do 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, forthwith to file in the clerk's office of the circuit court of the county in which such franchise shall be so exercised, used and enjoyed, an information in the nature of a quo warranto, against the corporation, person or persons aforesaid, upon the filing of which information it shall be, and is hereby made the duty of the clerk of said court, to issue the proper process against such corporation, person or persons, returnable to the term of the circuit court aforesaid next succeeding the day on which such information shall be filed.
Sec. 3. That when process shall be issued against any bank upon information filed under the provisions of this act, the same shall be served by the sheriff or other proper officer, who shall execute the same by delivering a copy thereof to the president, cashier, or secretary of such bank, or if there be no such president, cashier, or secretary, or if the sheriff or other officer is unable to find them, then by leaving a copy of such process at the banking house, or other place of business of said bank; and when process shall be issued against any person or persons, upon information filed in pursuance of the provisions of the second section of this act, such process shall likewise be served by the sheriff or other proper officer, who shall execute the same by delivering a copy to every such person or persons whom he can find in his county, and by leaving a copy for those whom he is unable to find at the banking house or other place occupied for the purpose of exercising the franchises aforesaid.
Sec. 4. That all informations in pursuance of this act, shall be docketed upon the common law issue docket, and shall be tried at the first term of the court after they shall be filed: provided, the process issued against them shall have been served twenty days before the commencement of the court: and provided, that each party shall be entitled to continuance upon the proper showing; said causes shall have priority over all other civil causes upon the docket, and when an issue of fact shall be made up it shall be tried by the ordinary jury in attendance upon the court in the same manner and under the same rules and regulations that govern upon the trial of civil cases.
Sec. 5. That the provisions of this act shall not extend to the funds which legitimately belong to the State of Mississippi, or to the Commercial and rail road bank of Vicksburg, or to the West Feliciana rail road and banking company, so as to affect the rail roads and their operations.
Sec. 6. That upon information being filed in pursuance of the provisions 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.
Sec. 7. That none of the provisions of this act shall be so construed as to prevent any bank or corporation, assignee, or assignees, or any of their officers or agents from suing out attachments in the same manner and for the same cause that other creditors are allowed lawfully to do.
[The four following sections constitute the amendments to the original bill.]
Sec. 8. That upon judgment of forfeiture against any bank or banks, corporation or corporations, person or persons, pretending to exercise corporate powers in this state, as contemplated by this act, the debtors of such bank or banks, corporation or corporations, person or persons, pretending to exercise corporate privileges, shall not be released by such judgment from their debts and liabilities to the same; but 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; to sue for and collect all debts due such bank or banks, corporation or corporations, person or persons pretending to exercise corporate powers, and to sell and dispose of all property owned by such bank or banks, corporation or corporations, person or persons pretending to exercise corporate powers, or held by others for its or their use, 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, or person or persons pretending to exercise corporate powers: provided further, that the notes of any such bank or banks, corporation or corporations, or others pretending to exercise corporate powers, shall at all times be received in payment of any debts due the same.
Sec. 9. That such trustees shall give bond with good and sufficient security, in a penalty to be prescribed by the court or determined by law, conditioned to diligently and faithfully collect the debts due such bank or banks, corporation or corporations, or person or persons pretending to exercise corporate powers, and to sell and dispose of the property belonging to the same, and the proceeds when collected, to pay over as may hereafter be directed by law: provided, however, that the compensation allowed to such trustees shall be paid in preference to all others, but shall in no case be chargeable upon the public treasury.
Sec. 10. That if any trustee shall embezzle or convert to his own use, or fail to pay over to his successor in office, or to others, as may be directed by law, any of the proceeds or assets of any such bank or banks, or other corporations, or person or persons pretending to exercise corporate powers shall, upon indictment and conviction thereof, in addition to the payment of his bond, be imprisoned in the penitentiary not less than two years, nor more than ten, for each and every offence.
Sec. 11. That the foregoing section of this act shall not, nor any part thereof, be so construed as to release any person or persons interested in, or in any way connected with any such bank or banks, corporation or corporations, or person or persons pretending to exercise corporate powers from his individual liabilities, for any fraud or mismanagement of the same.
Sec. 12. That this act shall take effect and be in force from and after its passage.
(From Vicksburg Sentinel, July 11, 1845.)
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