Bank of State of Missouri v. Snelling

35 Mo. 190

• Court: Supreme Court of Missouri
• Decided: July 15, 1864
• Status: Published

Opinion

Bates, Judge,

delivered the opinion of the court.

This is a suit upon a promissory note of the defendants, discounted and held by the bank. The defendants answered that “ the plaintiff being a corporation created by the laws of Missouri, did, between the 11th day of July, 1862, and the 2d day of March, 1863, contrary to section 4 of the act of the General Assembly of the State of Missouri, entitled ‘An act to prevent illegal banking and the circulation of depreciated paper currency within this State,’ approved December 8, 1855, pass and receive within the limits of this State, certain paper currency promising the payment of money of less denomination than five dollars, &c., whereby the charter of the plaintiff became and is forfeited,” &c.

On motion of the plaintiff, this answer was stricken out and -judgment given for the plaintiff. Defendants bring the case to this court.

The suit was begun in August, 1863. The General Assembly by an act approved March 23,1863, (Acts of 1863, p. 5,) repealed so much of the act to prevent illegal banking as authorized a defendant sued by a corporation to plead in bar of the suit a forfeiture of the charter under that act. The act, when in force, vested no rights in any person. It only granted the privilege to enforce a penalty, which privilege could be withdrawn at any time ; and the act having been repealed before this suit was brought, the defendants have no right under it.

In the absence of a special authority by law to the defendant to plead such forfeiture in bar of an action, it is well settled that the forfeiture cannot be established or taken advantage of in a collateral proceeding, but that it can only be established in a proceeding instituted directly for that purpose.

Judgment affirmed.

Judge Dryden concurs; Judge Bay absent.