Bank of Missouri v. Anderson

• Decision Date: 30 November 1822
• Parties: BANK OF MISSOURI v. ANDERSON.
• Court: Missouri Supreme Court

1 Mo. 244

BANK OF MISSOURI

v.ANDERSON.

Supreme Court of Missouri.

November Term, 1822.

ERROR FROM ST. LOUIS CIRCUIT COURT.

MCGIRK, C. J.

This was a proceeding by motion, in a summary way, to recover judgment on certain bank notes, which had been presented to the bank for specie payment, and refused. The 27th section of the bank charter gives the remedy in a summary way on motion, and says, if the bank refuse specie payment on demand, it shall forfeit five per centum per month, for every month such specie payment may be refused, in addition to the amount of such note or notes. The court entered judgment for the amount of the notes, and five per cent. thereon per month, till paid; before and at the trial, the bank demanded a trial by jury, which was refused. To reverse this judgment, a writ of error is brought; many points were made by the counsel for the bank, none of which are worthy of consideration, except the two first: did the court err in refusing a jury trial? and secondly, was the judgment wrong, as to the five per cent. per month?

It was argued by the counsel for the defendant in error, that the words of this statute exclude the right of the party to have a jury trial; the statute says, by motion in a summary way, and that the acceptance of the charter was a waiver of the right of trial by jury.

It is to be supposed, the Legislature which passed this Bank charter, knew what the law was, then in force, relative to jury trials. If they did, the result will be, that if the law then was, that either party should have a jury trial if demanded, then if the Legislature, by the Bank charter, intend otherwise, they would have said so expressly; this they have not done. By the English law, a trial by motion dispenses with writ and declaration, and the words “in a summary way,” dispense with all sort of formal pleading, and a jury also; and, in this case, it is contended, the course must be the same. This doctrine would be good in England, and in this State, if it were not for a provision in our constitution, which says, the trial by jury shall remain inviolate; the meaning of which is, that with respect to facts, the trial shall be by twelve men, and they shall all and each of them be good and lawful men; they must have a good fame, possess integrity and intelligence; they must not be aliens, vagrants, outlaws, nor under conviction of crimes. They must all be under oath when they try a fact or cause; they must all agree in their verdict; and the right to...