the capital stock as was owned by the state in the Bank of Kentucky; and as the treasurer received those moneys he was required to pay them into the bank. The bank had authority to receive money on deposit, to make loans on good personal security, or on mortgage, and was prohibited increasing its debts beyond its capital. Limitations were imposed on loans; and the accommodations of the bank were apportioned among the different counties of the state. The bank was, by a subsequent act, authorized to issue three millions of dollars; and the dividends of the bank were to be paid to the treasurer of the state. The notes of the bank were issued in the common form of bank notes, in which the bank promised to pay to the bearer, on demand, the sum stated on the face of the note. The pleadings excluded the court from considering, that any part of the capital had been paid by the state; but in the argument of the case it was stated, and not denied, that all the notes which had been issued, and payment of which had been demanded, had been redeemed by the bank. By an act of the legislature of Kentucky, it was required that the notes of the bank should be received on all executions, by plaintiffs; and if they failed to endorse on such executions, that they would be so received, further proceedings on the judgment were delayed for two years. The Bank of the Commonwealth of Kentucky instituted a suit against the plaintiffs in error, on a promissory note, for which the notes of the bank had been given, as a loan, to the drawers of the note. The defendants in the suit claimed, that the note given by them was void, as the same was given for the notes of the bank, which were "bills of credit," issued by the state of Kentucky, against the provisions of the constitution of the United States, which prohibits the issuing of "bills of credit" by the states of the United States; and that the act of the legislature of Kentucky, which established the bank, was unconstitutional and void. By the court-The act incorporating the Bank of the Commonwealth of Kentucky was a constitutional exercise of power by the state of Kentucky; and the notes issued by the bank are not "bills of credit," within the meaning of the constitution of the United States. Ibid.

8. Congress has power to incorporate a bank. M'Culloch v. The State of Maryland, 4 Wheat. 316; 4 Cond. Rep. 400.

9. The 17th section of the act incorporating the Mechanics' Bank of Alexandria, providing that "all bills, bonds, notes, and every other contract or engagement on behalf of the corporation, shall be signed by the president, and countersigned by the cashier; and the funds of the corporation shall in no case be liable for any contract or engagement, unless the same shall be signed and countersigned as aforesaid ;" does not extend to contracts and undertakings implied at law. Mechanics' Bank of Alexandria v. Bank of Columbia, 5 Wheat. 325; 4 Cond. Rep.

666.

10. The legislature of a state may impose a tax on the capital stock, dividends, &c., of a bank incorporated by law, unless it be expressly pro

vided that the bank shall be exempt from taxes. Providence Bank v. Billings, 4 Peters, 514.

11. If a bank note is divided, and one-half of it lost, the bona fide holder of the half which is produced is entitled to payment of its amount, on proving the loss of the part, or accounting for the mutilated appearance of that which is produced. Bullet v. The Bank of Pennsylvania, 2 Wash. C. C. R. 172.

12. Upon general principles of law, a man does not lose his right to real or personal property, or to choses in action, by losing the evidence of it. Such loss may be supplied by parol evidence of the contents of the paper, if it be the best evidence the nature of the case will admit. Ibid.

13. The payor of an instrument which passes by delivery, and which is alleged to be lost, may require the claimant to account for its loss; or if it be mutilated, to account for the same, and to prove that he came fairly into possession of it. Ibid.

14. The holder of the part which was lost or stolen, and which has afterwards been found, takes it from the finder or robber, subject to every defence which could have been legally made against the finder or robber. Ibid.

15. A bank holding the bank bills of another bank, and demanding payment of the same, at the banking-house of the latter, is not bound to receive its own bills in payment, but may demand specie. A fortiori, it is not bound to receive other bank bills or a draft in payment. Suffolk Bank v. Lincoln Bank, 3 Mason's C. C. R. 1.

16. A bank is bound to keep its money counted, or weighed, or to employ servants sufficient to count it or weigh it, so as to pay all demands made within the usual bank hours. Ibid.

17. The holder of bank bills is not obliged to take foreign gold, or coin, at the bank count, but the payment must be by weight. Ibid.

18. The holder of bank bills is entitled to be paid in specie the amount of the bills, upon a demand within the usual banking hours of the bank. Ibid.

19. An incorporated bank divided three-fourths of its capital stock, before the expiration of its charter, among the stockholders, without providing funds which were sufficient ultimately to pay its outstanding bank notes. It was held, 1. That the capital stock was a trust fund for the payment of the bank notes, and might be followed into the hands of the stockholders. 2. That a bill in equity for such purpose might be maintained by some of the holders of the bank notes, against some of the stockholders, the impossibility of bringing all before the court being sufficient to dispense with the ordinary rule of making all parties in interest parties. 3. That in such case, the decree against the stockholders before the court should be only for the contributory share of the debt, in the proportion which the stock held by them bore to the whole capital stock. 4. That the holder of bank notes, payable to bearer, is not an assignee of a chose in action, within the 11th sec. of the judiciary act of 1789, ch. 20, limiting the jurisdiction of the circuit court. Wood v. Dummer, 3 Mason's C. C. R. 308.

20. In a suit brought by the President, Directors, and Company of the Bank of the United States, upon a bond given to the bank to secure the faithful performance of the duties of one of its cashiers, evidence of the execution of the bond, and of its approval by the board of directors, (according to the rules and regulations contained in the charter of the bank,) is admissible, notwithstanding there was no record of such approval; and the plaintiff may prove the fact of such approval by the board, by presumptive evidence, in the same manner as such fact might be proved in the case of private persons, not act ing as a corporation, or as the agent of a corporation. Bank of the U.S. v. Dandridge, 12 Wheat. 64; 6 Cond. Rep. 440.

and directors of the branch bank and the defendant, the fact of there being an office of discount and deposit of the Bank of the United States in Richmond, and of the residence of the president and directors of the branch being fixed there, must be considered, with reference to this contract, as fixing the residence of the corporation itself in Richmond, and not in Philadelphia, so far as the saving of the act applies to the locality of the plaintiff. Ibid.

27. It is not usury for a bank to deduct the interest from the amount of a note at the time of its being discounted. Fleckner v. The Bank of the U. S., 8 Wheat. 338; 5 Cond. Rep. 457.

22. Banks, and other commercial corporations, may bind themselves by the acts of their authorized officers and agents, without the corporate seal. Fleckner v. Bank U. S., 8 Wheat. 338; 5 Cond. Rep. 457.

23. A cashier of a bank has, prima facie, authority to endorse, on behalf of the bank, negotiable securities held by it. If there be any restriction of his authority, it must be proved by the bank. Wild v. Bank of Passamaquoddy, 3 Mason's C. C. R. 505.

24. The statute of limitations of New Hampshire (which is in this respect a transcript of 21 Jac. I. ch. 16) does not apply as a bar to an action of debt upon the provision of the statute making the stockholders of a bank liable to the holder of bills; for it is not founded on any contract or lending without specialty. Bullard v. Bell, 1 Mason's C. C. R. 243.

25. The fourth section of the act of limitations of Virginia, limiting the right of action in certain cases to five years after the action accrued, applies as well to corporations as to individuals. That section has reference not to the character of the plaintiff, but to the nature of the action. The Bank of the U. S. v. M'Kenzie, 2 Brockenb. C. C. R. 393.

26. A note was discounted at the Branch Bank of the United States at Richmond, and after it arrived at maturity, was regularly protested for non-payment. An action on the case being brought by the bank against the endorser, to recover the amount of the note, more than five years from the date of the protest, the defendant pleaded the act of limitations. Held, That the right of action is barred by the lapse of time, the plaintiffs not being, in the sense of the saving of the act, "beyond the seas, or out of the country." The contract having been made in Richmond, in their banking-house there, between the president

lution passed on the 27th of October, 1820, suspended him from office till the further pleasure of the board, and directed the property of the bank to be taken out of his hands. This resolu tion was communicated to the cashier, and carried into effect on the 30th day of the same month. Held, That the suspension did not take effect instanter on the 27th, but on the 30th, when it was made known to the cashier; and that until then, he was cashier within the letter of the bond, and the sureties liable for his acts. Bank of U. S. v. Magill, Paine's C. C. R. 661.

29. Had the resolution been to remove the cashier from office, it would have taken effect, and the sureties been discharged from their liabilities from the time of its passage. Ibid.

30. The resolution was sent by mail, and received by the president of the office at Middletown, on the morning of Sunday, the 29th. Held, That its not being communicated on that day was not such a want of diligence as would discharge the sureties from their liability for frauds committed by the cashier on that day. Ibid.

31. Upon a bank note payable to W. Pitt, or bearer, the circuit court has jurisdiction to enforce payment in favour of a holder who is a citizen of another state; although it is not shown that W. Pitt is a fictitious person, or a citizen of another state: the prohibition of the act of the 24th September, 1789, ch. 20, sec. 11, does not apply to such a note. Bullard v. Bell, 1 Mason's C. C. R. 243.

32. Debt lies in favour of a holder of a dishonoured bank note, against a stockholder in the bank, to recover the amount of the note, under the provisions of a bank charter, making the stockholders personally liable for such note, in such case. Ibid.

33. A bank note payable to W. Pitt, or bearer, is in effect payable to the bearer, as between any bona fide holder and the bank; such holder is to be deemed the bearer, to whom the bank is originally liable. Ibid.

34. The deposit of a bill in one bank, to be transmitted to another for collection, is a common usage, of great public convenience; and the duty of a bank, receiving such a bill for col

lection, is precisely the same, whoever may be the owner thereof; and if it was unwilling to undertake the collection without precise information on the subject, the duty ought to have been declined. The Bank of Washington v. Triplett & Neale, 1 Peters, 30.

35. The mere receipt by the officers of a new bank, of the bills of an old bank of the same value, and paying out the same bills, does not make the new bank responsible to pay all the bills of the old bank. Bellows v. Hallowell and Augusta Bank, 2 Mason's C. C. R. 31.

36. Where a new bank was incorporated with the same name as an old bank, whose charter was expiring, the new bank is not responsible for the notes of the old bank, although the major part of the stockholders may be the same in each bank. Ibid.

37. An agreement by the president and cashier of the Bank of the United States, that the endorser of a promissory note shall not be liable on his endorsement, does not bind the bank. It is not the duty of the cashier and president to make such contracts; nor have they the power to bind the bank, except in the discharge of their ordinary duties. All discounts are made under the authority of the directors, and it is for them to fix any conditions which may be proper in loaning money. Bank of the U. S. v. Dunn, 6 Peters, 51.

BANK OF ALEXANDRIA.

1. Suits brought by the Bank of Alexandria, upon promissory notes made negotiable in that bank, are entitled to trial at the return term of the writ. Young v. The Bank of Alexandria, 4 Cranch, 384; 2 Cond. Rep. 150.

are appropriate, which are plainly adapted to that end, and which are not prohibited, may be constitutionally employed to carry it into effect. M'Culloch v. The State of Maryland, 4 Wheat. 316; 4 Cond. Rep. 466.

2. There is nothing in the constitution of the United States similar to the articles of confederation, which exclude incidental or implied powers. Ibid.

3. Congress has power to incorporate a bank; and the act of the 10th of April, 1816, ch. 44, to "incorporate the subscribers to the Bank of the United States," is a law made in pursuance of the constitution. Ibid.

4. The government of the Union is a government of the people; it emanates from them, its powers are granted by them, and are to be exercised directly on them, and for their benefit. The government of the Union, though limited in its powers, is supreme within its sphere of action; and its laws, when made in pursuance of the constitution, form the supreme law of the land. Ibid.

5. The power of establishing a corporation is not a distinct sovereign power, or end of government, but only the means of carrying into effect other powers which are sovereign. Whenever it becomes an appropriate means of exercising any of the powers given by the constitution to the government of the Union, it may be exercised by that government. Ibid.

6. If certain means to carry into effect any of the powers expressly given by the constitution to the government of the Union, be an appro priate measure, not prohibited by the constitu tion, the degree of its necessity is a question of legislative discretion, not of judicial cognisance.

Ibid.

9. The state governments have no right to tax any of the constitutional means employed by the government of the Union to execute its constitutional powers. Ibid.

BANK OF THE UNITED STATES. 1. If the end be legitimate, and within the scope of the constitution, all the means which

11. A state cannot tax the Bank of the United States: and any attempt by the officers or agents of the state to enforce, against the property of the bank, a law imposing such tax, may be restrained by injunction from the circuit court of the United States. Osborn et al. v. Bank of

the United States, 9 Wheat. 773; 5 Cond. Rep.

741.

12. The Bank of the United States has a right to sue in the courts of the United States. Ibid. 13. The act to incorporate the subscribers to the Bank of the United States, of April 10, 1816, ch. 44, (6 L. U. S. 35,) gives to the circuit courts of the United States jurisdiction of all suits brought by or against the bank. Ibid.

14. The clause in the act of incorporation of the Bank of the United States, which authorizes the bank to sue in the federal courts, is warranted by the third article of the constitution of the United States, which declares, "that the judicial power shall extend to all cases in law and equity arising under the constitution, the laws of the United States, or treaties made, or which shall be made under their authority." Ibid.

15. The circuit courts of the United States have jurisdiction of suits brought by the Bank of the United States against a bank incorporated by a statute of a state, and of which the state is itself a stockholder, together with private individuals, who are citizens of the same state with some of the stockholders of the Bank of the United States. Bank of the United States v. Planter's Bank of Georgia, 9 Wheat. 904; 5 Cond. Rep. 794.

16. The Bank of the United States may sue in the circuit courts as endorsee or bearer of a promissory note, although the original payee or endorser could not sue in those courts, being a citizen of the same state with the defendant; such a case is not within the eleventh section of the judiciary act of September 24, 1789, ch. 20, which was merely a limitation on the jurisdiction conferred by that act. Ibid.

17. A corporation can only appear by attorney; and the attorney must receive the authority of the corporation, to enable him to represent it. Ibid.

18. When a government becomes a partner in any trading company, it divests itself, so far as concerns the transactions of that company, of its sovereign character, and takes that of a private citizen. Instead of communicating to it its privileges and prerogatives, it descends to a level with those with whom it associates itself, and takes the character which belongs to its associates, and to the business which is to be transacted. Thus, many states who have an interest in banks, are not suable in their courts, yet they never exempt the corporation from being sued. Ibid.

19. As a member of a corporation, a government never exercises its sovereignty. It acts merely as a corporation, and exercises no other power in the management of the affairs of the corporation, than are expressly given by the incorporating act. Ibid.

20. In a suit brought by the Bank of the United States upon a bond given to the bank to secure the faithful performance of the official duties of a cashier, evidence of the execution of the bond, and of its approval by the board of directors, (according to the rules and regulations contained in the charter of the bank,) is admissible, notwithstanding there was no record Vol. I. 19

of such approval; and the plaintiff may prove the fact of such approval by the board by presumptive evidence, in the same manner as such fact might be proved in the case of private persons not acting as a corporation, or as the agents of a corporation. Bank of the United States v. Dandridge et al., 12 Wheat. 64; 6 Cond. Rep. 440.

21. Where, in such a case, the cashier is duly appointed, and permitted to act in his office for a long time, under the sanction of the directors, it is not necessary that his official bond should be accepted by the board of directors as satisfactory, according to the terms of the charter, in order to enable him to enter legally on the duties of his office, or to make his securities responsible for the non-performance of those duties: the charter and by-laws are to be considered, in this respect, as directory to the board, and not as conditions precedent. Ibid.

22. The charter of the Bank of the United States forbids the taking of a greater rate of interest than six per centum, but it does not declare a contract on which a greater interest has been taken or reserved, to be void. Such a contract is void upon general principles. Courts of justice are instituted to carry into effect the laws of a country, and they cannot become auxiliary to the violation of those laws. There can be no civil right where there can be no legal remedy; and there can be no legal remedy for that which is itself illegal. Bank of the United States v. Owens, 2 Peters, 538.

23. The Branch Bank of the United States, at Lexington, Kentucky, discounted a promissory note, reserving interest thereon, at the rate of six per centum per annum, it being agreed that the owner of the note should receive the proceeds of the discount in notes of the Bank of Kentucky, at their nominal value, although the same were at the time of no greater current value than fifty-four per cent. of the said nominal value. Held, that the contract was usurious, and void; and that the bank could not recover of any of the parties to the discounted note. A fraud upon a statute is the violation of a statute. Ibid. 527. See post. 27 and 32.

24. A profit made, or loss imposed on the necessities of the borrower, whatever form, shape, or disguise it may assume, where the treaty is for a loan, and the capital is to be returned at all events, has always been adjudged to be so much profit taken upon a loan, and to be a violation of those laws which limit the lender to a specific rate of interest. According to this principle, the lender in the case before the court has taken forty-six per cent. for three years, at the rate of about fifteen per cent. per annum above his prescribed interest. This is contrary to the provisions of the charter of the Bank of the United States, and against law. Ibid. 537.

25. Reserving interest as discount, is the same as taking the same; since it cannot be permitted by law to stipulate for the receipt or reservation of that which it is not permitted to receive. In those instances in which courts are called upon to inflict penalties upon the lender, whether in

2 c

26. The district court of the United States of Alabama, has not jurisdiction of suits instituted by the Bank of the United States. This jurisdiction is not given by the act of congress establishing that court, nor is it conferred by the act incorporating the Bank of the United States. Bank of the United States v. Martin, 5 Peters, 479.

27. The office of the Bank of the United States, at Lexington, Kentucky, in February, 1822, held a large amount of notes of the Bank of Kentucky, which had been received in the usual course of business, at the full value expressed on the face of them, as equivalent to. gold and silver, and were so considered by the bank. On the amount of those notes so held, the Bank of Kentucky had agreed to pay interest, at the rate of six per centum, until the same should be redeemed. All the notes of the Bank of Kentucky, held by the Bank of the United States, were finally paid with the interest. In February, 1822, when the notes of the Bank of Kentucky were at a depreciation of between thirty-three and forty per cent., Owens applied to the office of the Bank of the United States, for a loan of five thousand dollars of the said notes, saying they would answer his purpose as well as gold or silver. After repeated refusals and re-applications, with the consent of the board of directors of the Bank of the United States at Philadelphia, the sum of five thousand dollars, in the notes of the Bank of Kentucky, was loaned to him on a promissory note, signed by him, and by Waggener, Miller and Wagley, payable in three years, with interest at the rate of six per cent. per annum. The money so loaned was paid to the borrower in the notes of the Bank of Kentucky, and in a check on that bank; and the interest on that amount of the notes, being so much of the sum due by the Bank of Kentucky to the Bank of the United States, ceased from the date of the loan. In an action on the note given by Owens and others, the defence set up was, that the transaction was usurious, contrary to the charter of the Bank of the United States, and void. Held, that there was no usury in the transaction. Bank of the United States v. Waggener, 9 Peters, 378.

28. The statute of usury of Kentucky of 1798, declares that all bonds, notes, &c., taken for the loan of money, where "is reserved or taken" a greater rate of interest than six per cent., shall be void. In this case no interest at all was taken, the interest being payable at the termination of the three years mentioned in the note; and if the case can be brought within the statute, it must be not as a taking, but a reservation of more than legal interest. Ibid.

29. The ninth article of the fundamental articles of the charter of the Bank of the United

30. The words of the article are, that the bank shall not take (not, shall not "reserve" or "take") more than at the rate of six per cent. In the construction of statutes of usury, this distinction between the reservation, and the taking of usurious interest, has been deemed very material; for the reservation of usurious interest makes the contract utterly void; but if usurious interest be not stipulated for, but only taken afterwards, then the contract is not void, and the party is only liable for the excess. Ibid.

31. In the case of the Bank of the United States v. Owens, 2 Peters, 527, 538, it was said that in the charter, the word "reserving" must be implied in the word "taking." This expression of opinion was not called for by the certified question which arose out of the plea; for it was expressly averred in the plea, that in pursuance of the corrupt and unlawful agreement therein stated, the bank advanced and loaned the whole consideration of the note, after deducting a large sum for discount, in the notes of the Bank of Kentucky, at their nominal value. Ibid.

32. The case of the Bank of the United States v. Owens, 2 Peters, 527, turned upon considerations essentially different from those presented in the present record. The question certified in that case, arose upon a demurrer to a plea of usury; and the demurrer, in terms, admitted that the agreement was unlawfully, usuriously, and corruptly entered into. So that no question as to the intention of the parties or the nature of the transaction was put. The transaction was stated to be usurious, and the agreement corrupt; and the question was, whether, if so, it was contrary to the prohibitions of the charter, and the contract void. In the present case, the questions are very different. Whether the agreement was corrupt or usurious, or bona fide, and without any intent to commit usury, or to violate the charter, are the very points which the jury were called upon, and under the instructions were asked, to decide. The decision in 2 Peters, 527, cannot therefore be admitted to govern this case, for the quo animo of the act, as well as the act itself, constitute the gist of the controversy. Ibid.

33. In construing the usury laws, the uniform construction in England has been, and is equally applicable here, that to constitute usury within the prohibitions of the law, there must be an intention knowingly to contract for and to take usurious interest; for if neither party intend it, and act bona fide and innocently, the law will