With regard to the prayers 1st, 2d, and 3d, in No. 3, although their relevancy to the true issues taken in this cause is not shown, and the opinion of the court is perhaps not sustain. able with respect to them, yet as that opinion, so far as expressed, is more adverse to the defendants than to the plaintiff, and the de fendants have not asked its reversal, no right can be recognized in the plaintiff to complain that he has failed to obtain all he required, when he has already obtained too much. Upon an examination of this somewhat anomalous and confused record, we have come to the conclusion that the judgment of the Circuit Court should be, and it is hereby accordingly affirmed.

the books, notes, and accounts of the firm, and | & Ficklin, which they had an unquestionable of his obligation to collect the resources and right to do. to pay the debts and settle all the affairs of the concern, so far as the means placed at his command were adequate for these ends. The above facts, disclosed by the petition and the agreement of dissolution, were certainly competent evidence for the consideration of the jury, and from which they might infer the purpose for which the note to McMicken & Ficklin was executed, the duty of McMicken to settle the partnership affairs, and to pay the debts of the concern with the funds placed at his disposal; and if they should infer from these facts, that the note executed to McMicken & Ficklin was given provisionally, and designed to abide the settlement of the affairs of the firm, and that McMicken was bound by the agreement of dissolution to liquidate and settle the affairs of the firm, then the jury were bound to find that the fulfillment of these obligations on the part of McMicken should precede any right of action on the note, and that, without proof of such fulfillment, they were equally bound to find for the defendants.

*Order.

[*801

This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the Eastern District of Louisiana, and was argued by counsel; on consideration whereof, it is now here ordered and adjudged by this court, that the judgment of the said Circuit Court in this cause be, and the same is hereby affirmed, with costs.

6th. This instruction affirms a position, as to which, we presume, there can be no room for difficulty or doubt; namely, that on the note given by Ficklin to his own firm of McMicken &Ficklin, with Webb and Smith as sureties, 800] Ficklin, as a partner, *was entitled to one half, upon the dissolution of the firm, and that thereupon, pro tanto, the obligation of THE PLANTERS' BANK OF MISSISSIPPI, these sureties would cease, as Ficklin could have no right of action against himself to compel payment to himself.

7th. With regard to the instruction numbered 7, given on the prayer of the defendant, we deem it to be in substance the same with Nos. 3 and 4, which having been already examined and approved, it is unnecessary to review in detail the same questions in the last instruction.

Plaintiffs in Error,

V.

THOMAS L. SHARP, Edward Englehard, and
Henry Hampton Bridges, Defendants in
Error.

MATTHIAS W. BALDWIN, George Vail, and
George Hufty, Merchants and Persons in
Trade under the Name, Style, and Firm of
Baldwin, Vail & Hufty, Plaintiffs in Error.

V.

JAMES PAYNE, Abner E. Green, and Robert
Y. Wood, Defendants in Error.

State law prohibiting banks, previously em-
powered by charter, from transferring bills,
notes, etc., unconstitutional.

There is, also, though not designated by any number, what is denominated in the record an "additional charge" prayed by the defendants. This, upon examination, being found a mere general legal proposition in the language of the 2094th article of the Civil Code, and no immediate application or connection of which to the pleadings or testimony in this case being attempted nor being perceived by the court, it is passed by as immaterial and unimportant. On the part of the plaintiffs, there are in structions prayed, and designated on the record as No. 2 and No. 3; and in No. 2 by the irreg-soever, nature, and quality, and the same to grant. ular ordinal arrangement of 4th and 7th; in No. 3 in the arrangement of 1st, 2d, and 3d. Instruction 4th, in the first division, is in the following words: "That the defendants to this suit, having bound themselves in solido, cannot claim the right or oblige the plaintiff to discuss the property of Ficklin or his succession. Civil Code, art. 3015, 3016. The court below very properly disposed of this prayer (as it might have disposed of what was called the additional charge prayed on behalf of the defendants), by justly remarking, that its apslicability to the cause was not perceived, as the defendants were not endeavoring to interfere with the property or affairs of Ficklin any farther than to assert the true import and character of their own contract with McMicken

etc.,

Where a bank was chartered with power to "bave, possess, receive, retain, and enjoy to themselves and their successors, lands, rents, tenements, hereditaments, goods, chattels, and effects of what kind demise, allen, or dispose of for the good of the bank," and also. "to receive money on deposit and pay away the same free of expense, discount bills of exchange and notes, and to make loans,' and, in the course of business under this charter, the bank discounted and held promissory notes, and then the Legislature of the State passed a law declaring that "it shall not be lawful for any bank in the 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 transferred, the same shall abate upon the plea of Constitution of the United States, and is void. the defendant"-this statute conflicts with the

NOTE. As to repeal of modification of statutes as affecting vested rights and what laws are unconstitutional as impairing the obligation of con tracts, see notes to 3 L ed. U. 8. 162; 4 L. ed.

U. S. 529.

They were kindred cases, and were argued together. Although the court pronounced an opinion in each case separately, yet the dissenting opinion of Mr. Justice Daniel treats them as they were argued, and hence it becomes necessary to blend the two cases together. The facts in each case will be stated, then the arguments of counsel, and then the opinions of the court, with the separate opinion of Mr. Justice McLean, and the dissenting one of Mr. Justice Daniel.

THESE HESE two cases were both brought up, by | Lawrence County (State court). The defendwrit of error issued under the twenty-fifth ants pleaded the general issue, and a jury was section of the Judiciary Act, from the High sworn. The declaration and note having been Court of Errors and Appeals for the State of read, the defendants filed the following plea. Mississippi. "And now, at this day, that is to say, on the second day of the term aforesaid, until which day this cause was last continued, come the said plaintiffs, by attorney, and the said defendants, "by attorney; and the said [*303 defendants say, that since the last continuance of this cause, that is to say, since the sixth day of the May Term, 1842, of this court, from which day this cause was last continued, and before this day, that is to say, on the 10th day of June, in the year 1842, at the county aforesaid, the said plaintiffs then and there being the owners of the said note sued on in this cause, and then and there being a bank in the State of Mississippi, and within the intent and meaning of the statute of this State, entitled 'An Act requiring the several banks in this State to pay specie, and for other purposes,' transferred the aforesaid note to the United States Bank of Pennsylvania, contrary to the statute in such cases made and provided; and this the said defendants are ready to verify; wherefore they pray judgment if the said plaintiffs ought further to be answered in this said action, and that the same may abate.

Planters' Bank v. Sharp et al.

On the 10th of February, 1830, the Legisla302*] ture of Mississippi passed "An Act to establish a Planters' Bank in the State of Mississippi."

The sixth section of the charter enacts, among other things, that the bank "shall be capable and able, in law, to have, possess, receive, retain, and enjoy to themselves and their successors, lands, rents, tenements, hereditaments, goods, chattels, and effects, of what kind soever, nature, and quality, not exceeding in the whole six millions of dollars, including the capital stock of said bank, and the same to grant, demise, alien, or dispose of for the good of said bank."

The seventeenth section gives power "to receive money on deposit and pay away the same free of expense, discount bills of exchange and notes, with two or more good and sufficient names thereon, or secured by a deposit of bank or other public stock, and to make loans to citizens of the States in the nature of discount on real property, secured by mortgage,"

etc.

The twenty-second section enacted, "that it shall not be lawful for said bank to discount

any note or notes which shall not be made pay able and negotiable at said bank."

By a supplement to the charter, passed in 1831, and accepted by the bank, it was provided that "such promissory notes shall be made payable and negotiable on their face at some bank or branch bank.”

On the 24th of May, 1839, Sharp, Englehard, and Bridges gave their promissory note to the Planters' Bank for one thousand dollars, due twelve months after date. A copy of the note is not to be found in the record, but the declaration states it to have been "payable and negotiable at the office of the Planters' Bank of the State of Mississippi, at Monticello."

"Personally appeared in open court Thomas L. Sharp, one of the defendants in the above stated case, who, being duly sworn, upon his oath says, that the matters and things set forth in the above plea are true in substance Sworn to and subscribed in open and fact. Thomas L. Sharp." court. The plaintiffs demurred to this plea, upon the following grounds:

1st. Because said plea is not assigned by counsel.

2d. Because said plea does not state the day, year, time, and place of the transfer of said note.

to deal in promissory notes, bills of exchange, 3d. Because the plaintiffs have a right by law etc., secured by charter.

4th. Because the statute, the title of which is recited in said plea, is, so far as relates to transfers of notes, bills receivable, or other evidence of debt, unconstitutional.

5th. That said plea does not state to what term said cause was continued.

6th. That said plea does not allege that said note was transferred for value received.

7th. That said plea is a plea in bar of this action, but does not conclude in manner and form as provided by law.

8th. That said plea was not presented until issue joined under the plea of non assumpsit, and the declaration and note read, and a jury impaneled to try said issue.

9th. That the statute referred to in said plea does not affect the plaintiffs.

On the 21st of February, 1840, the Legislature of Mississippi passed "An Act requiring the several banks of the State to pay specie, and for other purposes," the seventh section of which was as follows: "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 trans-in this cause. ferred, the same shall abate upon the plea of the defendant."

In October, 1841, the Planters' Bank brought a suit upon the note in the Circuit Court of

10th. That the said defendants did not tender the costs of suit in said case, up to the time of their tendering said plea, with said plea.

*11th. That said plea is not entitled [*804

12th. That the affidavit subjoined to said plea is not sufficient.

The defendants having joined in demurrer, the court, after argument, overruled it, and Howard 4.

leave being granted to the plaintiffs to reply to the plea, an issue was joined in short by consent, and the cause proceeded, when the jury found a verdict for the defendants.

A bill of exceptions was taken by the plaintiff's counsel, as follows, viz.:

"Be it remembered that on the trial of the above cause at the term aforesaid, after the case was submitted to the jury, and after the plaintiff had introduced his evidence upon the issue joined, the defendant introduced a witness, who proved that, since the suit in the above case was instituted, the note had been transferred to the United States Bank of Pennsylvania, the defendants offered a plea, in the words and figures following, to wit.: [Then followed the plea above recited.]

"To the reception of said plea the counsel for the plaintiff's objected, which objection was overruled; to which opinion of the court the counsel for plaintiffs except, and having reduced their exceptions to writing before the jury retired, pray the same may be signed [and] sealed.

"Given under my hand and seal this 6th December, 1842.

(Signed)

"A. G. Brown. [Scal.]"

Upon this exception, the case was carried up to the High Court of Errors and Appeals, which, at December Term, 1842, pronounced the following judgment:

"This cause having been submitted at a former term of this court, and the same having been duly considered by the court, it is ordered and adjudged that the judgment of the Circuit Court of Lawrence County, rendered against the plaintiffs in error at the December Term thereof, A. D. 1842, be, and the same is hereby reversed, because rendered as a judgment in bar; and this court, proceeding to render the judgment that should have been pronounced by the court below, doth order and adjudge that the plaintiffs in error, the plaintiffs in the court below, take nothing by their writ, and that the suit be abated."

To review this judgment, a writ of error brought the case up to this court.

Baldwin. Vail, and Hufty v. James Payne

et al.

Matthias W. Baldwin, George Vail, and George W. Hufty, copartners, brought this ac305*] tion on the 15th April, 1841, in the *Circuit Court of Jefferson County, Mississippi, against James Payne, Abner E. Green, and Robert Y. Wood, the makers, and the Mississippi Railroad Company, the indorsers, of two certain promissory notes, each in the sum of $6,283.95, payable at the Merchants Bank, New Orleans, the first, sixty days after December 4, 1839, and the other ninety days thereafter. The notes were without date on their face, and were discounted, at the instance of Payne, one of the makers, by the Mississippi Railroad Company, under their banking powers, on the said fourth December, 1839, to whose order they were made payable, and were by said company, on the 1st day of April, 1841, indorsed over, transferred, and delivered to the plaintiffs for a valuable consideration.

the following special plea, viz. That the said promissory notes, in the declaration of the said plaintiffs mentioned, were executed and delivered by them, the said defendants, to, and discounted by, the Mississippi Railroad Company, on the 4th day of December, in the year 1839, at the county aforesaid, and thereby became and were the property of the said Mississippi Railroad Company, to wit, on the day and year aforesaid, at the county aforesaid; and that the said promissory notes continued to be and were the property of the Mississippi Railroad Company from the day and year last aforesaid until and after the 26th day of April, in the year 1840, at the county aforesaid, after which 26th day of April, in the year 1840, to wit, on the 1st day of April, 1841, at the county aforesaid, the said Mississippi Railroad Company, by their indorsement thereon, transferred the said two promissory notes, in the said declaration mentioned, to the said plaintiffs; and this they are ready to verify. Wherefore they pray judgment, if the said plaintiffs ought to have or maintain their aforesaid action thereof against them."

To this special plea the plaintiffs demurred, and the defendants joined in demurrer.

The Circuit Court, on the 11th of November, 1842, sustained the demurrer, and awarded judgment of respondent ouster, but the defendants refusing further to plead, the court thereupon gave judgment upon said demurrer to the second plea for the plaintiffs.

On the same day the cause, being dismissed as to the Mississippi Railroad Company, came on for trial before a jury, on the general issue, against the other defendants, and a special verdict was found, as follows, viz.: "We, the jury, find that defendants, James Payne, Abner E. Green, and Robert Y. Wood, executed the two several promissory [*306 notes (described in the plaintiff's declaration) on the 4th day of December, 1839, and on the same day delivered the said notes to the Mississippi Railroad Company, to be discounted for and on account of said James Payne; one of which said notes is for the sum of $6,283.95,

payable sixty days after the said 4th of December, 1839, to the order of the said Mississippi Railroad Company, at the Merchants' Bank in the city of New Orleans; and the other of the said notes is for the sum of $6,283.95, also payable ninety days after the said 4th of December, 1839, to the order of the said Mississippi Railroad Company, at the Merchants' Bank in the city of New Orleans. That said two notes were discounted by said Mississippi Railroad Company, under their banking powers, on the said 4th of December, 1839, at the instance of the first drawer, said James Payne, and the proceeds thereof were received by him, and the said company thereby became the holder of said notes. That the said notes, or either of them, were not paid at maturity, and were presented for payment at maturity, and protested for nonpayment, and that no part of them, nor any interest, has been paid by said defendants, or either of them. That the Mississippi Railroad Company, on the 1st day of April, 1841, being inThe defendants, Payne, Green, and Wood, debted to the plaintiffs, Baldwin, Vail, and were served with process, and appeared and Hufty, transferred and delivered said two sevpleaded the generel issue. They also pleadederal promissory notes to said plaintiff's, for a

valuable consideration, in payment of said debts. If, upon the facts, the court is of opinion that the law is in favor of the plaintiffs, we find for the plaintiffs, and assess their damages at $15,300.90. But if, upon these facts, the court is of opinion that the law is for the defendants, Payne, Green, and Wood, then we find in their favor."

The Circuit Court gave judgment, upon this special verdict, in favor of the plaintiffs and the defendants thereupon took a writ of error to the High Court of Errors and Appeals. The cause was argued in the Court of Errors, and on the 11th day of November, 1844, the said court rendered their final judgment, viz.: "That the judgment of the Circuit Court of Jefferson County be reversed and for nothing held, and that the defendants in error, the plaintiffs below, take nothing by their writ, and that the suit is abated."

was drawn in question the construction of the tenth section of the first article of the said Constitution, which declares that "no State shall pass a law impairing the obligation of contracts," and the decision was against the title and right specially set up and claimed by the plaintiffs in error, under such clause of the Constitution.

3. That the charter and supplemental charter of the Mississippi Railroad Company is a contract, within the meaning of the Constitution, between the people of the State of Mississippi, and the stockholders of the corporation and all claiming under the charter.

4. That the said charter authorizes the bank to transfer *notes, bills receivable, and [*308 other evidences of debt, belonging to it, and to destroy this right impairs the obligation of the aforesaid contract.

fer its property aforesaid may, of right, be exercised with freedom from all restraints not contained in the charter, nor imposed by the law of Mississippi when the charter was grant ed; of which restraints there were none.

6. That the said law of Mississippi cuts off all suit in case of transfer, and is therefore unconstitutional.

5. That the charter is an unqualified conThe charter of the Mississippi Railroad Com- tract, and is all inviolable in point of obligapany was conferred by an act of the Legislation; and that the power to acquire and transture of Mississippi, approved February 26, 1836, entitled "An Act to incorporate the Mississippi Railroad Company." By the first section of a supplementary act, passed May 12th, 1837, the company were "authorized and empowered to exercise all the usual rights, powers, and privileges of banking which are permitted to 307*] banking institutions within this State, subject to the limitations and restrictions hereinafter mentioned." And by section eighth of said supplementary act, the company were, among other things, made capable "to purchase and sell real and personal estate, and to hold and enjoy the same to any amount not exceeding in value at any time $500,000 over and above the property in and necessarily connected with said railroad." By the same section, its "banking privileges, rights, and powers were secured to said company until the 30th day of December, 1858."

The Planters' Bank of the State of Mississippi was an incorporated banking institution, existing within said State at the date of the foregoing charter.

From the above statement of these two cases, it is apparent that in the first one, viz., that of the Planters' Bank, the suit was in the name of the original payees of the note, and in the second, it was in the name of the indorsees. being brought in both cases against the makers of the notes. The main question in both was the constitutionality of the statute of Mississippi passed on the 21st of February, 1840.

The two cases were argued, as has already been remarked, together, by Mr. Wharton and Mr. Sergeant for the plaintiffs in error, and by Mr. Coleman, Mr. Gilpin, and Mr. Webster, for the defendants in error.

The counsel for the plaintiffs in error made the following points in the case of The Planters' Bank:

1. That by the final judgment of the High Court of Errors and Appeals of Mississippi in this suit, there was drawn in question the validity of the Act of that State of the 21st day of February, 1840, on the ground of its being repugnant to the Constitution of the United States, and that the decision was in favor of the validity of the act.

2. That by said judgment in this suit, there

7. That the said act is repugnant to the Constitution of the United States, unconstitutional, and void.

In the case of Baldwin, Vail, and Hufty, the following was an additional point:

That the plaintiffs in error were the holders of certain promissory notes put in suit by them, which they had purchased for value from a company that by its charter had the right to sell and transfer them, and that the judgment of the High Court of Errors and Appeals in favor of the defendants below, on the mere ground that the plaintiffs had possession of said notes by transfer from the Mississippi Railroad Company, impaired both the obliga tion of the contract between the State and the company, and that between the makers of said notes and the holders.

Mr. Wharton, for the plaintiffs in error, stated the circumstances of each case and the difference between them. The point was the same in both, viz., the right to transfer the notes, and the validity of the statute which forbid it. In the case of The Planters' Bank the judgment of the State court was, that the statute not only disabled the bank from transferring, but also that the bank itself had lost the right to sue, in consequence of such a transfer having been made whilst the suit was pending. The suit in this case was in the name of the original payees. In the other case the suit was brought by the indorsees. The transfer was pleaded as a defense, and the court sustained it. Therefore the judgment of the State court was, in the two cases, that neither the payee nor indorsee could maintain an action where a transfer had been made. We say that this decision is contrary to the Constitution of the United States. The principles upon which we stand are elementary. The State law was passed in 1840, after the grant of the charter and after the execution of the notes.