The President, Directors & Company of the Planters Bank of the State of Mississippi vs. Thomas L. Sharp, et al.

Mr. Justice Clayton

delivered the opinion of the court.

The only point of difference between this case, and that of Payne, Green Wood v. Baldwin, Vail and Huffy, decided at this term of the court, is that in that case the assignment by the PlantersBank appeare d upon the face of the declaration; in this the transfer is set up and relied on by a flea, puis darrein continuance.

The object of the legislature, in passing the act of 1840, prohibiting the transfer of their bills receivable and evidences of debt by banks, would seem to have been, to enable the debtors of the banks under all circumstances to pay their debts in the notes of the banks. Hence when the suit is in the name of the bank, and ostensibly for its own use, as the judgment may be satisfied by the payment of its own bills, the case would appear not tofall within the reason of the law. Yet the terms of the act forbid all transfers. Its words are, “ it shall not be lawful for any bank in this state to transfer by indorsement or otherwise, any note, bill receivable, or other evidence of debt; and if it shall appear in evidence, upon the trial of any action, upon any such note, or other evidence of debt, that the same was so transferred, the same shall abate, upon the plea of the defendant.” Acts of 1840, p. 15, sec. 7. This language is too plain to admit of more than one construction, and we cannot refuse to enforce it because the case may not seem to come fully within the mischief intended to be remedied. Upon the trial the plea was sustained by the evidence, and the jury found a verdict for the defendants. A judgment in bar was entered by the court, but according to the act it should have been in abatement.

It is now the settled doctrine, that an act prohibited by astat ute, will not lay the foundation of a suit that can be sustained in a court of law. The penalty annexed to the transgression of this statute is an abatement of the action — what will be the consequence of such abatement, we are not now called on to decide.

It is possible that if another suit be brought, and the same matter be pleaded, that a replication that there had been a re-transfer of the instrument to the bank, would enable it to maintain the action. But it is not proper for us to volunteer an opinion in this respect. We have no intention to do so, but simply to mark the limits of this judgment.

The judgment of the court below must be reversed, because entered in bar, and one here entered in conformity with the statute in abatement.

Mr. Justice Thacher:

I concur in the above opinion and judgment.

Mr. Chief Justice Sharkey

delivered the following dissenting opinion.

Although it is with great reluctance that I dissent in any case, yet I cannot bring my mind to the conclusion that this action should be abated on the plea of the defendant. This suit is not brought in the name of an assignee or indorsee, nor is it for the use of a third person, but it is in the name of the Planters Bank, as plaintiff. The assignment of the note since the suit brought is pleaded. The language of the statute is very broad, it is true, but still we must look at its spirit and meaning. If the object of the legislature be apparent, it should be so construed as to accomplish that object, and there it should end. It declares “ That it shall not be lawful for any bank in this state to transfer by indorsement or otherwise any note, bill receivable or other evidence of debt; and if it shall appear in evidence, upon the trial of any action upon any such note, bill receivable, or other evidence of debt, that the same was so transferred, the same shall abate upon the plea of the defendant,” I regard this provision not as a punishment on the bank, by compelling a forfeiture of its right of action, but as intended solely and exclusively for the benefit of bank debtors. Bank paper was then generally very much depreciated, and the country was full of this depreciated currency, and it was designed to secure to debtors the right to pay the banks in their own notes. By allowing them to transfer their notes, debtors would have been compelled to pay the indorsees in the constitutional currency. But when the suit is brought in the name of the bank, this difficulty cannot occur. An assignee can then have no control of the matter. The legal rights of parties are determined by the record. If the bank alone is plaintiff of record, all the legal consequences follow and no assignee can change the rights of parties by asserting a claim. The court would not, under such circumstances, recognize the right of any one who was not a party to the record, and when the reason of the law fails the law itself should cease. An assignment made after suit brought, is but a transfer of the proceeds of the suit. The indorsee cannot make himself plaintiff in the suit; nor can he vary the right of recovery, or the defendant’s right to offsets, or his right to make satisfaction in a particular way. I regard the statute as applying only to cases in which the suit is brought in the name of the assignee or for his use. In such cases it gives the defendant the right to have the suit abated or not, at his discretion.

In the case of Payne, Green & Wood v. Baldwin, Vail, and Hufty, (3 S. & M. 661,) we held that the legal right of the bank to sue was not impaired by this act. Any act impairing that right would be unconstitutional. In this action she only seeks to enforce that right, she does not seek to enforce the right of the indorsee. She may sue on her notes, and she must sue in her own name, and if we abate this action, the only remedy she has is to bring another in the same way. There is no defect in the form of the action, or in the legal rights of the parties to the record. The transfer is prohibited by law, and it is therefore either void, or it is voidable. If it be void, it did not change any right. The legal right is still in the bank, and the suit being in her name, how can it be abated by that which was a nullity ? But suppose it be voidable merely, then what does the defendant get rid of by his plea? He gets rid of the assignment only. He remains debtor to the bank instead of being debtor to a third person. Now I believe such assignments .to be voidable only, subject to be affirmed or avoided by the maker. When the action is brought in the name of the indorsee, by pleading the transfer in abatement, the maker gets rid of that action, because the plaintiff’s title fails. But when the suit is.in the name of the bank, she may answer such a plea by saying, admitting it to be true that the note has been transferred, your plea avoids nothing but the transfer; it does not affect our right of action, which does not depend on an indorsement. Such a plea strengthens our right to recover, because it admits a promise made to us,, and avoids the attempted change of that right. As an evidence that the act was only designed to prevent the banks from coercing payment in a sound currency, I may cite the supplemental act, passed.the day after the original act, which compels the banks to receive their notes at par in payment of debts due them. This act was no doubt intended to explain fully, and to .carry out.the original design. Thinking then that this plea was defective in substance, and regarding it as a waiver of all other pleas, my opinion is that the plaintiff was entitled to judgment on the demurrer.