and left the jury to find whether there had been such a performance, was improper and well calculated to mislead the jury. 2. Where the work on a building is not performed according to the agreement and not done in a workmanlike manner, or the materials used are not as good as contracted for, the contractor can only recover the reasonable worth of the work and materials, not exceeding the contract price, notwithstanding an acceptance of the building, unless such acceptance is in full discharge of the contract. 3. Where a contract for a building is not performed according to the terms of the contract, the owner may recoup the damages sustained in consequence thereof in a suit to recover the price, although he may have done acts amounting to an acceptance of the building. Common Carrier-Fraudulent Concealment and Imposition by between the surviving partners and representatives of the deceased partner, and does not affect the right of the latter to have the joint-property applied to the payment of the joint-debts, and a due distribution of the surplus, but is rather confirmatory of these rights, as previously recognized in courts of equity. 5. Where, after the death of a partner, the survivors, one of whom was the executor of the will of the deceased partner, formed themselves into a new firm and purchased from themselves the whole of the interest of the deceased at ten per cent. below its appraised value, to be paid for in four equal installments in six, twelve, eighteen and twenty-four months, without interest or security, held, that a decree confirming such pretended sale was palpably erroneous, as the sale was void. 6. It is indispensable to every legal co tract that there be two contracting parties competent to contract; therefore an con attempted sale from one man to himself, or from surviving partners to themselves, is void. 7. Executors, trustees, and those sustaining fiduciary relations, can not purchase property at their own sale, even through the intervention of another acting ostensibly as the purchaser. Such a sale is fraudulent per se, and can be sustained by no explanations which do not disprove the facts. 8. This doctrine is based upon an inflexible rule of public policy which forbids those acting in a fiduciary capacity from bringing their own Shipper.-Chicago & Alton R. R. Co. v. Shea, opinion by Breese, J. [66 Ill. 471.] Where a shipper delivered to a carrier for transportation a bundle having the appearance of bedding only, but which in fact contained inside the bedding valuable clothing, such as a silk dress, a brocha shawl and furs, of the value of $200, which fact was not disclosed, and thereby shipped them at a low rate of freight, was held, that this was such an imposition and fraud practiced upon the carrier as to release him from liability for loss, except personal interest, in any way, into conflict with that which their duty requires as to what might properly be termed bedding. Dailment-Estoppel-[Same Case.]-Where goods were shipped by a married woman and a receipt therefor given to her, in a suit by her to recover for their loss it was urged that she, not being the owner, could not sue in her own name, but should have sued in her husband's name; but it was held, that, as she was the bailor and consignor, she had a right to maintain the action, and that the defendant, having recognized her as the owner in receiving the goods, was estopped from disputing her ownership when sued for the loss. Commissioners of Highways-Power of public Officer to submit to Arbitration-Agency-Liability of Officer who exceeds his Authority-Arbitration Bond.-Mann v. Richardson, opinion by Scott, J. [66 Ill. 481.] Where commissioners of highways are unable to agree with the owner of land over which a highway is sought to be laid out, as to the damages to be paid him, they have no authority to submit the question of such damages to arbitration, and thus bind their town. 2. Where the law imposes a personal duty upon an officer, in relation to a matter of public interest, he can not delegate it to others, and therefore such officer can not submit such matters to arbitration. 3. Where an agent undertakes to contract on behalf of an individual or corporation, and contracts in a manner which is not legally binding upon his principal, he will be personally responsible, as he is presumed, in such case, to know the exact extent of his authority. 4. But where an officer or public agent contracts in good faith with parties having knowledge of the extent of his authority, or who have equal means of knowledge, he will not become individually liable, unless the intent to incur personal liability is clearly expressed, although it should be found that through ignorance of the law, he may have exceeded his authority. 5. Thus, where commissioners of highways, in a proceeding to lay out a highway, being unable to agree with a land owner as to the damages he would sustain, submitted the matter of damages to arbitration, and executed their bond in their individual names, containing an express covenant to abide by and perform the award, they having no power to bind their town in this manner, it was held, that they were not individually liable on such bond. 6. Where parties enter into a bond conditional that they will abide by and perform an award to be made by the persons chosen, if it be made in writing, under the hands and seals of the arbitrators, by a day stated, they will not be liable upon an award not under seal; and a declaration on such bond will be fatally defective if it fails to aver that the award was made under the seals of the arbitrators. Surviving Partner-Relation to Representatives of Deceased Partner-Purchase by at Executor's Sale.-Nelson v. Hayner, opinion by McAllister, J. [66 Ill. 487.] 1. The death of a partner is, ipso facto, from the time of the death, a dissolution of the partnership, however numerous the association may be. But a community of interest still exists between the survivors and the representatives of the deceased partner, and the latter have a right to insist on the application of the joint-property to the payment of the joint-debts, and a due distribution of the surplus. So long as these objects remain to be accomplished, the partnership may be considered as having a limited continuance. 2. If the surviving partner does not account in a reasonable time, a court of chancery will grant an injunction to restrain him from acting, and appoint a receiver, and direct the account to be taken. 3. In equity, the surviving partners are treated as trustees, with the fiduciary rela tion existing between them, and the representatives of the deceased partner, of trustees to cestuis que trust. 4. While the statute of 1869, in respect to the settlement of estates of deceased partners, provides some remedies which may be regarded as cumulative, it does not change the nature of the relation them to do on behalf of their cestuis que trust. Legal News and Notes. -CHIEF JUSTICE WAITE is, it is said, waiting at Put-in-Bay. -JUDGE BLATCHFORD is taking his summer vacation at Newport; so is Dr. Wharton. -" ON Tuesday," says the Law Times, " a thief, who is suspected to have been well acquainted with Westminster Hall, got into Mr. Justice Archibald's private room, and took away the learned judge's coat, waistcoat, and umbrella." -THE LATE BARON PIGOTT.-A correspondent of the Liverpool Post says he has received a copy of the last letter ever written by Baron Pigott. It is dated from Sherfield Hill. The learned baron combats the theory of apostolical succession, and challenges his opponent to show that bishops, priests, and deacons were orders instituted by the Apostles. In another letter the baron states that for five years back he had been a member of a very liberal Baptist chapel, but his views being modified he had joined the Plymouth brethren, and "broken bread" with them the very day before he fell from his 7 26 ΙΟ II 54 -AT the recent commencement exercises of the law department of the Iowa State University, thesis were read by ten class representatives, as follows: Nathan W. Macy of Springdale, Iowa, "Trial by Jury;" Smith M. Ellis of Glasgow, Ky., "The True Sphere of a Lawyer;" Charles J. Dodge of Burlington, Iowa, "Criminal Practice; Andrew Jackson Hirschl, "Jura Scire Omnes Tenentur; " John L. Griffiths "Law and Society; " Hiram P. Dillon of Davenport, Iowa, " Magna Charta; " William J. Bailey, Esq., of Postville, Iowa, "Organization of the Judiciary;" Mrs. Annie N. Savery of Des Moines, Iowa, "Woman's Relation to Civil Government; Mrs. W. J. Woodcock, Genii of the Law;" and Mr. Edmundson (valedictorian), 'Law as a Civilizing Agent." Dr. Hammond, the resident professor of law at this University, deserves great credit for the successful results achieved under his management and tuition. It is safe to say that he can do as much towards starting a young man on the road to success at the bar, as the next man can do, in one year, SEYMOUR D. THOMPSON, Editor. } ST. LOUIS, FRIDAY, JULY 23, 1875. IN publishing the case of the Queen v. Taylor, in our last issue, we inadvertently omitted to credit the report of the case to the Weekly Reporter. He being childless, after provision for his wife, gave the bulk of his large estate to found a college to be named after him, a legacy of $10,000 to Stonewall Jackson's widow, and then certain legacies to his nephews and nieces, with the condition THE publishers desire us to say to those of our readers precedent that they should lend their aid to defeat this suit— who are subscribers to the SOUTHERN LAW REVIEW, that by the gigantic swindle of the old land-pirate Thomas an unforeseen and unavoidable delay, occasioned by high wa- Dickens, and his ally and tool, Sarah W. Bolton." The ter at the mill which furnishes their supply of paper, they record of the case carries one back to the days when the inhave been prevented from issuing the July number of the RE-stitution of slavery was in the height of its prosperity, and VIEW at the appointed time. It is now in press, and will be out in a day or two. In the case of Terry v. The Imperial Fire Insurance Company (ante p. 459) the opinion was delivered by Mr. District Judge Foster, and not by Mr. Circuit Judge Dillon. The latter, however, concurred. The mistake came from the fact that the opinion came to us not signed, but certified by the clerk of the circuit court, and we took it for granted that it was Judge Dillon's opinion. Bolton v. Dickens. yet, as it afterwards transpired, in the first stages of a rapid decay. For these facts, as well as for the report of the case elsewhere published, we are indebted to E. S. Hammond, Esq., one of the counsel in the case. It The New York Court of Arbitration. Last year, we believe, the experiment was first tried in the United States, under such auspices as to command general attention, of the establishment of a court for the speedy arbitration of matters of difference between merchants. was fit that the experiment should first be tried in the commercial metropolis of America, in order that its success or Our general disinclination to publish decisions of the state failure might be an admonition to other cities seeking the escourts at nisi prius, has yielded this week in the case of tablishment of like tribunals. The information which has Bolton v. Dickens, recently decided by Chancellor Morgan reached us through our legal exchanges, warrants us in saying at Memphis, Tennessee. Apart from the fact that some of that the experiment in New York has been eminently successful. the points in judgment are new in that state, this case has By an act of the last legislature of New York, the court was become notorious on account of the many tragedies con-organized and established upon a permanent basis. This act nected with it and growing out of the transactions involved is given in full in the New York Daily Register of July 9th. in it. The parties were all related, more or less, by consanguinity or marriage. In May, 1857, Isaac L. Bolton killed one W. Millen, under circumstances which created great excitement. He was tried for murder and acquitted. The expenses of his defence have been said to be quite $100,000, and their payment is one of the matters connected with this case, it being alleged on one side that the partnership agreed to pay them because the trouble arose in defence of the rights of the firm, and the agreement to pay being denied by the partners, who are suing. During the progress of a trial collateral to this suit, on one occasion in open court before the Chancellor, the parties opened fire with their pistols and one or two persons were wounded.* Not long after, the house of Thomas Dickens was attacked in the night time and several persons killed, he himself being wounded. The perpetrators of this deed were hunted to the mountains, and, it is said, killed. After this, Wade Bolton was killed by Thomas Dickens on the streets, and subsequently Dickens was assassinated on the road-side. Samuel Dickens, a son of Thomas Dickens, was after this killed by the accidental discharge of his own weapon. Since the suit was commenced, the house of Wade Bolton was destroyed by fire, he alleging that it was done at the instigation of Dickens to destroy the firm's books which he had in possession, and Dickens alleging that it was done by Wade Bolton himselt to destroy the books, so that they could not be used in evidence against him. Wade Bolton's will is a notable document. * "We" were there, and went after the doctor.-[Ed. C. L. J. The judge, who is styled "the official arbitrator," holds his It seems that lawyers cannot be entirely dispensed with in such a court, although we notice no provision in the act, or in the rules of the court, with regard to attorneys; yet the arbitrator himself, who has administered this court of conciliation with so much success during the past year, is Judge Fancher, a ripe jurist, formerly a judge of one of the courts of that state. to give the notary's certificate the character of an official document and make it independent evidence, in cases coming within its provisions. Chitty on Bills, 465-6; Harris v. Benson, 2 Strange, 910; Lumley v. Palmer, 2 Strange, 1000; Windle v. Andrews, 2 B. & Ald. 696. Promissory notes were, by statute of Anne, put upon the same footing as inland bills; and as a general rule statutes referring in terms to the latter, apply equally to the former. Right of Holder of Dishonored Promissory Note This is otherwise only in cases where the reference is to to Recover Protest Fees. The question has often been mooted, Has the holder of a promissory note, negotiable by the law merchant, being an endorsee in regular course of business, a right, upon non-payment by the maker, to have the same protested and to recover protest fees against the maker or endorser? This is a question of some importance, since half the business of the country is done through these instruments, and a custom is rapidly growing up, especially among the banks, to have notes and inland bills protested the same as foreign bills. By the common law neither notes nor inland bills were protestable, and the certificate of a notary was not evidence of either a presentment or notice of non-payment, and this was because such protest was not required by law, and was hence not an official act. Chitty on Bills, 170, 334-5. Borough v. Perkins, 1 Salk. 131; Brough v. Parkins, 3 Salk. 69; Chesmer v. Noyes, 4 Camp. 129; Marin v. Palmer, 6 C. & P. 466; Chitty on Bills, 454-5, 465-6. Nevertheless inland bills were sometimes protested in England under the common law, before any statutes were passed authorizing such protests. If, however, it was not evidence of the dishonor, it is not easy to see what object could be accomplished thereby, nor what motive could actuate the holder, since it was well settled that the notarial fees could not be charged against prior parties. Chitty on Bills. 466, 683; Kendrick v. Lomax, 2 Cromp. & Jerv. 407. The rule in England, it is fair to presume, was founded upon the general principle that a protest in such cases was not necessary; that the object and efficacy of a protest was, as in the case of foreign bills, to accompany the bill into foreign countries, there to attest the dishonor of the bill, as the mode of proof prescribed by the common consent of all commercial countries, to avoid the delay and expense of the ordinary course of proving facts abroad; and that no such exigency or object could apply in the case of an inland bill, where presentment and notice of non-payment by the holder or his agent would answer every purpose of a protest. The courts would never permit one party to incur unnecessary expense for another party to pay. By the statute 9th and 10th William III., c. 17, however, it was enacted that inland bills for five pounds or upwards, expressed to be for value received, and payable at a definite time after date, might, after acceptance, be protested for nonpayment. This statute expressly required the party from whom the bill was received, upon notice being sent according to its provisions, to pay the bill with all interest and charges from the day it was protested, and the fees for protest were fixed at a sum not to exceed sixpence. This statute was construed not to require a protest, but only to make one optional―to give an additional remedy. Its only effect was properties of the one not common to both. It has never been held by the courts in England, that expenses of protest above referred to, where it was expressly authorized by Act were chargeable upon notes or inland bills, except in the case of Parliament; nor has it ever been held, either in England or any of the United States, where these instruments were governed by the law merchant, that a protest in any case was necessary, in order to fix the liability of prior parties. Now, presume, the law merchant prevails in regard to this queshowever, and where such charges are provided for by statute, tion in nearly, or all the states. States where it does not, form exceptions. Ι I By what right, or upon what authority, then, do banks and other holders of these instruments charge, and collect protest fees? If it be said that the In Arkansas, and I presume in most other states, there are statutes changing the law merchant to the extent of providing that notes may be protested, and that the protest and notice by the notary shall be prima facie evidence to fix the liability of the endorser. Nevertheless the courts have almost unanimously held the very ground upon which, in England, a charge of protest fees was denied that the protest of notes was neither obligatory nor necessary, no more where these statutes prevail than where the common law remains unchanged; but, as said by Judge Story (see his work on Promissory Notes, page 297), the practice "is simply an arrangement made for the convenience of the holders." See Burke v. McKay, 2 How. Sup. Ct. R. 66; Pinkham v.. Macy, 9 Met. 174; Coddington v. Davis, 1 Comst. 185; Young v. Bryan, 6 Wheat. 146. right to charge protest fees, follows the right to go to protest as provided in these statutes, it may be answered that the position is directly opposed to all the authorities, which hold that the protest of inland bills being If the statute 9 and unnecessary, no fees are chargable. 10 Will. III, ch, 17, required, in addition to the authority to protest inland bills, an express provision authorizing such. charge, then the same should be true of these statutes. The question has seldom been drawn into litigation in this country, for the evident reason that the amount is so small in each individual case as not to be worth contending for, and it is for this very reason that the practice has grown into a huge oppression upon a small scale, in which official patronage is multiplied, banks reap large profits, and all or most of which is at the expense of small debtors, as these are the parties oftenest compelled to go to protest, and upon whose debts the percentage of expense is a thousand fold perhaps greater than that upon the large debts of the capitalist. The only direct authorities upon the question, which I am able to find, are the cases of The City Bank v. Cutter, 3 Pick. 414; Merritt v. Benton, 10 Wend. 116, and Doughty, Diblee & Co. v. Hildt, 1 McLean, 334. In the first case the charge was denied by the Supreme Court of Massachusetts, on the true ground that a protest was unnecessary. In the second, it was allowed by the Supreme Court of New York, without reason or comment, other than that "it might fairly be considered as a charge incident upon the endorser's failure to perform his contract." This moreover was a suit against an accommodation endorser, and upon well known principles a distinction might have been taken between such a case and one against a maker or endorser for value, upon a regular transfer. In the last case cited, Judge McLean allowed the charge upon a judgment by default, and seemed to take a distinction between such case, and a judgment after full defence. The case cited from 7 Cranch, 273, in support of his position wholly fails to sustain him. The question has, therefore, in the main, been left to be decided and controlled by those general principles which we have referred to governing inland bills by the law merchant, and by which no protest fees were chargable except when the protest was obligatory as in cases of foreign bills, or when made so and the fees allowed by express statute. In this view all the authorities in England and America settling this principle, as well as those deciding that the maker of a note and the acceptor of a bill (except in case of foreign bills), can in no case be liable for more than the principle of the note or the amount of the acceptance with interest, are directly appliable to the question. See Chitty on Bills, 683-4; Simpson v. Griffin, 9 John. 131; Napier v. Shneider, 12 East, 420; Hanrick v. Farmers' Bank, 8 Port. (Ala.) 539. SOL. F. CLARK. LITTLE ROCK, ARK., July 14th, 1875. Power of National Banks to act as Bond Brokers Liability for Damage accruing through Sale of Worthless Bonds-Ultra Vires. not know who represented the appellant. A copy of the valuable brief which was submitted by the counsel for the bank, may be obtained by addressing Albert Small, Esq., Hagerstown, Md. MILLER, J., delivered the opinion of the court. A question of importance and of first impression in this state arises on this appeal. The suit was instituted by the appellant against the appellee, a national bank organized under the act of Congress approved June 3, 1864, known as the "National Curin substance, that the defendant, as a part of its business as such rency Act." The first and second counts of the declaration aver, banking association, was engaged in the sale of the bonds of the Northern Pacific Railroad Company, and in solicting orders for the purchase of the same, and receiving commissions for such sales and orders; and by means of certain specified false, fraudulent and deceitful representations made by its teller, the plaintiff was induced to and did purchase from the bank two of said bonds of $500 each, and paid the bank therefor the sum of $1000, and the plea of not guilty. There was conflicting proof as to the makwas thereby damnified. The case was tried upon issue joined on ing of the alleged false representations by the teller. The court rejected all the prayers offered on both sides, and instructed the jury, in effect, that the national banking act, under which the defendant was organized, limits the action of the bank to the pursuit of the objects specified in the act of Congress; and that the purchase and sale of such bonds is not within the chartered powers of the defendant; and that the plaintiff can not recover from the evidence, that the teller of the bank fraudulently induced against the defendant in this action, although the jury may find the plaintiff to purchase the bonds in question, by making the alleged false representations, and that she suffered loss thereby. This presents broadly and clearly the question whether the bank had authority, under the act of congress, to engage in the business of selling bonds of railroad companies on commission. A bank, like other private corporations, is confined to the sphere of action limited by the terms and intention of its charter. The supreme court, in the case of The Bank of the United States v. Dandridge, 12 Wheat. 68, states the rule by which the powers of the bank are to be determined, thus: "Whatever may be the implied powers of aggregate corporations by the common law, and MECKLER v. THE FIRST NATIONAL BANK OF HAG- the modes by which those powers are to be carried into operation, 1. National Banks as Bond-Brokers-Liability for Sale of Worthless Bonds-Ultra Vires. Under the 8th section of the act creating National Banks [Revised Statutes of the United States, 5,136], and the other acts of Congress relating to such banks, no power is conferred on them, either directly or by implication, to engage in the business of selling the bonds of railway corporations on a commission. Therefore, an action can not be maintained against a national bank for damages sustained through the misrepresentations of its teller as to the character of the bonds of a railway company which it sells to a customer. The power to engage in such a transaction not having been conferred upon the bank by the statutes creating and regulating it, the bank may set up the defence of ultra vires in such an action. 2. Payment of Draft in Worthless Railway Bonds-Liability-Conclusion upon the Facts.-It seems that if a customer of a national bank were to present at its counter a draft for collection, and the teller of the bank should induce the customer to accept in payment worthless railway bonds, by representing them to be good, the teller would be in that respect acting within the scope of his employment, and the bank would be liable for the consequent damages,—on the same principle that it would be liable in case of the paying over its counter of worthless or depreciated bank-notes. But upon an examination of the evidence, it is held that no such case arises on this record. Appeal from the Circuit Court for Washington County, Maryland. The case is stated in the opinion. It was argued at length for the bank by Albert Small and George Schley, Esqrs. We do corporations created by statute must depend both for their powers and the mode of exercising them, upon the true construction of the statute itself." And in that case the court adopts as entirely correct and applicable to the bank, the doctrine laid down by Chief Justic Marshall, in 2 Cranch, 167, in reference to an insurance company, viz.: "Without ascribing to this body, which in its corporate capacity is the mere creature of the act to which it owes its existence, all the qualities and disabilities annexed by the common law to ancient institutions of this sort, it may be correctly said to be precisely what the incorporating act has made it, to derive all its powers from that act, and to be capable of exercising its faculties only in the manner in which that act authorizes." And in this state the law is well settled that a corporation created for a specific purpose, not only can make no contract forbidden by its charter, but in general can make no contract which is not necessary either directly or indirectly to enable it to answer that purpose. In deciding, therefore, whether a corporation can make a particular contract, it must be considered in the first place, whether its charter or some statute binding upon it, forbids or permits it to make such a contract; and if its charter and valid statutory law are silent upon the subject, in the second place, whether the power to make such a contract may not be implied upon the part of the corporation, as directly or incidentally necessary to enable it to fulfil the purpose of its existence; or whether the contract is entirely foreign to that purpose. A corporation has no other powers than such as are specifically granted, or such as are necessary for the purpose of carrying into effect the pow ers expressly granted. Penn., Del. & Md. Steam Navigation Com- pal, of the country. The more carefully they confine themselves pany v. Dandridge, 8 Gill. & J. 318, 319. We must therefore determine the true construction of the act of Congress, authorizing the formation of these banking associations, and whether the power to make contracts like the one in question is expressly conferred upon them, or is directly or indirectly necessary to enable them to fulfil the purpose of their creation, or is entirely foreign to that purpose. So far as the purpose of the law is indicated by its title, it is: "To provide a national currency, secured by a pledge of United States bonds, and to provide for the circulation and redemption thereof." After prescribing in previous sections the mode by, and the conditions under which banking associations may be formed, the 8th section declares that every association so formed, shall become a body corporate from the date of its certificate of organization, but shall transact no business "except such as may be incidental to its organization, until authorized by the comptroller of the currency to commence the business of banking." Power is then given it to adopt a corporate seal, to have succession by the name designated in its organization certificate, and in that name to make contracts and sue and be sued, to elect directors and other officers," and exercise under this act all such incidental powers as shall be necessary to carry on the business of banking, by discounting and negotiating promissory notes, drafts, bills of exchange and other evidences of debt; by receiving deposits; by buying and selling exchange, coin and bullion; by loaning money on personal security; and by obtaining, issuing and circulating notes according to the provisions of this act." This is the only portion of the statute to which, for the purposes of this case, it is necessary to refer. By it the associations are not simply incorporated as banks, and the scope of their corporate business left wholly to implication, but the kind of banking which they may conduct is limited and defined. As we read the language of this 8th section, it authorizes the associations to carry on banking “by discounting and negotiating promissory notes," etc., and to exercise "all such incidental powers" as shall be necessary to conduct that business. The mode in which the incidental powers may be exercised is not defined, but all incidental powers which they can exercise must be necessary or incidental to the business of banking thus limited and defined. To the usual attributes of banking, consisting of the right to issue notes for circulation, to discount commercial paper and to receive deposits, this law adds the special power to buy and sell exchange, coin and bullion; but we look in vain for any grant of power to engage in the business charged in this declaration. It is not embraced in the power to "discount and negotiate" promissory notes, drafts, bills of exchange and other evidences of debt. The ordinary meaning of the term "to discount" is to take interest in advance, and in banking is a mode of loaning money. It is the advance of money not due until some future period, less the interest which would be due thereon when payable. The power "to negotiate" a bill or note is the power to endorse and deliver it to another so that the right of action thereon shall pass to the endorsee or holder. No construction can be given to these terms, as used in this statute, so broad as to comprehend the authority to sell bonds for third parties on commission, or to engage in business of that character. The appropriate place for the grant of such a power would be in the clause conferring authority to "buy and sell," but we find that limited to specific things, among which bonds are not mentioned, and upon the maxim, Expressio unius est exclusio alterius, and in view of the rule of interpretation of corporate powers before stated, the carrying on of such a business is prohibited to these associations. Nor can we perceive it is in anywise necessary to the purposes of their existence, or in any sense incidental to the business they are empowered to conduct, that they should become bond-brokers, or be allowed to traffic in every species of obligations issued by the innumerable corporations, private and munici to the legitimate business of banking, as defined in this law, the This eighth section is almost identical in terms (and as respects We are, therefore, clearly of opinion that this business of selling bonds on commission is not within the scope of the powers of these corporations, and the bank could not, under any circumstances, carry it on: and being thus beyond its corporate powers, the defence of ultra vires is open to the appellee. 8 Gill. & J. 348. It any false follows from this that the bank is not responsible for representations made by its teller to the appellant by which she was induced to purchase the bonds in question. Hence there was no error in the court's instruction to the jury nor in the rejection of the appellant's first and second prayers. * Reported, 2 Cent, L, J. 271, note. |