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Augusta v. Earle (13 Peters, 587) the several authorities just mentioned are cited in the opinion of the court; all of them approved, 338*] and none of them, *it is presumed, will be questioned as not laying down the law with perfect accuracy.

Such being the well settled rule of this court with respect to statutory corporations, let us inquire into its operation on the case before us. Neither by the charter granted to the Missis sippi Railroad Company, or to the Planters' Bank of Mississippi, nor to any other banking corporation within the State, was the power ever directly given to assign bonds, bills, or promissory notes. Is this power necessarily implied in any of the express grants contained in the charters now under consideration? It is admitted on all sides that the clause in this charter of the Planters' Bank which authorizes the bank to discount bills of exchange and notes, and to make loans, contains no such di❘ rect grant; but it is said that the bank is au thorized to possess and receive lands, rents, tenements, hereditaments, goods, chattels, and effects, to a certain amount, and to grant, demise, alien, or dispose of the same for the good of the bank; and that this authority confers the power of assigning notes discounted by the corporation. Could the doctrine of implied powers, in contravention of the express decisions of this court just cited, be extended in its utmost latitude to these statutory corporations, still it would seem difficult, even by the greatest violence of construction, to torture the language of this charter into an expression of the meaning here ascribed to it. The right to acquire and to dispose of effects cannot, by the natural import of language, nor by any received intendment. be made to signify the power to discount bills and notes; much less can it be interpreted to mean the power to transfer bills and notes discounted, or securities of any description, and beyond this, even, the power (in opposition to the principles of the common law in reference to choses in action) of investing the assignee with the right of maintaining an action at law in his own name. The extravagance of the construction contended for on behalf of the plaintiffs may be seen by bringing it to another test. Let it be supposed that the charters of these companies contained not one word about rights and powers of banking, as then permitted to other corporations in the State of Mississippi; sup pose, too, they had been silent as to any right to discount bills and notes, and had been limited to the simple power of receiving and possessing goods, chattels, and effects, and of disposing of such effects for the good of the bank; would it be pretended that, under this latter provision, the power of discounting bills or notes, or of discounting at all, was given by the mere import of the word "effects"—that the power of receiving and disposing of effects meant the power of discounting bills and notes? 339*] This can hardly be pretended. If, then, this term be not synonymous with the words "bills" and "notes" when taken in connection with the power of discounting and of making loans, how can it become so by being connected with the right of acquisition and enjoyment, or with the jus disponendi? The power to sell or assign discounted notes cannot

be deduced from the clause in the charter which authorizes the exercise of the usual banking powers granted to the banks of Mississippi, first, because in no charter granted by the State is it shown that such a right is expressly conferred; second, it is manifest that a traffic in the sale of its own paper, or in notes or bills discounted, is conformable neither with the regular functions of a bank, nor reconcilable with the purposes of its institution. Banks are usually created for the purpose of making loans, and this in a medium, in theory at least, equal to money; not for the purpose of borrowing, or of raising means to eke out their daily existence by seiling off their securities or their own paper. Their establishment rests upon the idea of their possessing funds of their own as the foundation of their credit and of their circulation. The practice of becoming brokers for the sale of their own paper or the paper of their customers, to put themselves in funds, is not, therefore, one of their regular functions, and can flow only from an abuse of these functions, and is a perversion of the legitimate ends of their creation. So, too. it is entirely inadmissible to place this practice of brokerage by the bank upon the mere absence of an inhibition in the charter; such a mode of reasoning cuts up entirely the admission that the banks have no power except such as is expressly granted or necessarily implied. The fallacy of the idea, that the right to dispose of effects conferred by the charter of the Planters' Bank implied the right of an habitual and unrestricted sale or brokerage of discounted notes, is exposed by adverting to another provision of the charter, by which the amount of effects of every kind which the bank was permitted to acquire and dispose of was positively limited to a specified amount. The power of the bank being thus restricted, that power could by no sound reasoning be made coincident or co-extensive with regular and permanent operations on the part of this corporation; for if its banking powers were deducible from such a limited privilege, or were dependent upon it, of course, when this permitted limit should be attained, the operations of the bank would be at an end. It is clear, therefore, that these corporations, restricted as are all statutory corporations under the decisions of this court, to the express grants contained in their charters, and to im plications necessary to and inseperable from those grants, never were by the provisions of

their charters invested with the power [*340 to assign bills or notes, and much less by such assignment to invest their assignee with the right of suing at law; that whatever power of assignment these corporation at any time may have possessed, and whatever the effect implied in such assignment, both were conferred upon them in common with all other persons, natural or artificial, within the State, by a general public law, subject at all times to modification or repeal by the authority which enacted it. (Vide section 12 of the statute, Howard and Hutchinson's Laws of Mississippi, p. 373.)

The actual repeal of such a statute cannot correctly be regarded as the violation of any vested right, or the impairing of the obligation of a contract, for no one can claim to have a perfect and vested right, through all future time, in the mere capacity to do an act, from

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the absence of a law forbidding that act. pretension like this would forestall and prevent legislation upon every subject. A wholly different state of things would have existed had the assignment to the plaintiffs been made an terior to the repeal of the statute, for then the rights of these parties would have been vested and complete; but the assignment was in this instance subsequent, by more than a year, to the passage of the repealing statute, was a new and separate contract, and entered into with necessary knowledge of its provisions, and made apparently in defiance thereof. This view of the question is clearly and forcibly presented by the Supreme Court of Louisiana, in the case of Hyde et al. v. Planters' Bank of Mississippi (8 Robinson, 416), a case arising upon the laws and charters now under consideration, and in all its features essentially, nay, mutato nomine, literally, the same with the present. It has been said, that, in the case from 8 Robinson, the note was made after the enactment of the repealing statute, I think that this statement is not warranted by the statement of facts in that case. Certainly the rea soning of the court rests on no such hypothe sis, for it covers the whole of the language and policy of the statute of Missisippi, and vindicates them to the utmost extent. In this case, the note was assigned after the enactment of the repealing law, and with full knowledge thereof, and the assignment was an independent and posterior contract which the law had forbidden. The question, then, as to the valid ity of the statute of Mississippi seems to resolve itself into this inquiry, whether a sovereign State of this Union possesses the right within her own territory to regulate the formation of contracts, to define the rights and interests such contracts shall give to the parties thereto, and to declare the modes and extent in and to which these may be enforced by her own tribu341*] nals. *To such an inquiry I can give none but an affirmative answer; and any other, I feel assured, is not evoked either by the language or spirit of the federal Constitution, and would be highly unjust and inconvenient with respect to the States.

With regard to the plaintiffs in error no injustice nor hardship of any kind is perceived in enforcing against them the provisions of the statute of 1840. In the first place, they have, with full knowledge of the law, placed them selves directly in the attitude of resistance thereto; for they have entered into an agreement explicitly inhibited upon grounds of public policy, and this long after such inhibition was proclaimed to every person within the State. In the next place, there surely can be no merit in a combination, the effects and manifest purposes of which were to deny to the holders of the notes of these banking corporations the power of making payment to them in their own currency, and to enable the latter to seize or to appropriate to themselves or their favorites the substance of those very note holders to whom such right of payment was denied. A proceeding thus subversive of justice has not been heretofore sanctioned by this court, and in one instance has been, to a certain extent-indeed, as I think, to the whole length of the present case directly condemned. The case of The United States v. Robertson (5 Peters, 641) was

a case in which a judgment had been recovered by the United States against the Bank of Somerset for an amount of money which had been deposited by a collector in that bank. By an act of Congress of the year 1818, it was provided that in any suit thereafter instituted by the United States against any corporate body for the recovery of money upon any bill, note, or other security, it should be lawful to summon as garnishees the debtors of such corporation, who were required to state on oath the amount in which they stood indebted at the time of serving such summons, for which amount judgment should be entered in favor of the United States, in the same manner as if it had been due and owing to the United States. On the 9th of February, 1819, a year after the act of Congress giving the remedy by attachment to the United States, the Legislature of Maryland passed an act de claring that, in payment of any debt due to or judgment obtained by a bank within that State the notes of such bank should be received. Attachments were laid in behalf of the United States, after their judgment against the Bank of Somerset, on debts in the hands of various debtors to the bank, and on some of these attachments judgments had been obtained. It was contended in behalf of these garnishees, that they had a right to discharge their debts in the notes of the Bank of Somerset, as well in those cases in *which judgment had [*342 been obtained on attachment by the United States as in those wherein there were no judg ments. Upon this question Chief Justice Mar shall, in delivering the opinion of the court (p. 659), remarks, first, upon the Act of Congress, of 1818, "That it operates a transfer from the bank to the United States of those debts which might be due from the persons who should be summoned as garnishees. They become, by the service of the summons, debtors of the United States, and cease to be debtors of the bank. But they owed to the United States precisely what they owed to the bank, and no more." 2. "That the Act of the Legislature of Maryland of 1819, so far as respects debts on which judgments have not been obtained, embodies the general and just principles respecting effects, which are of common application. Every debtor may pay his creditor with the notes of that creditor. They are an equitable and legal tender. So far as these notes were in possession of the debtor at the time he was summoned as garnishee, they form a counter claim, which diminishes the debt due to the bank to the extent of that counter claim. But the residue becomes a debt to the United States, for which judgment is to be rendered, May this judgment be discharged by the paper of the bank? On this subject the court are divided. Three of the judges are of opinion, that, by the nature of the contract, and by the oper ation of the act of Maryland upon it, an origi nal right existed to discharge the debt in the notes of the bank, which original right remains in full force against the United States, who come in as assignees in law, and not in fact, and who must therefore stand in the place of the bank. Three of the judges are of opinion that the right to pay the debt in the notes of the bank does not enter into the contract." May not this decision, I inquire, be considered as substantially covering the whole ground of the

case before us? For, after stating that the garnishees became by the service of the summons the debtors of the United States, and ceased to be the debtors of the bank, it goes on to declare, that they owed to the United States what they owed to the bank, and nothing more; that, by the just and general principles of set off, every debtor may pay his creditor with the notes of that creditor, which as to him are an equitable and legal tender. And by the unanimous declaration of the court, not until after the claim against the garnishee was carried into a judgment, and after the allowance of all rights of tender and set-off in the notes of the bank, could payment be coerced from him in any other medium than the notes of the bank. One half the court deemed the garnishee, even after judgment, entitled to the same privileges against the creditor of the bank which he pos343*] sessed *against the bank itself. This right, as between note holders and the assignees of a failing or insolvent bank, is fully sustained by the Court of Appeals of Maryland in the case of The Union Bank of Tennessee v. Elicot, Morris, & Gill (6 Gill & Johns., 364), and in that of The Bank of Maryland v. Ruff (7 lb., 448), in which last case the authority of this court is relied on. But, at all events, the principles of these decisions are broad enough to vindicate the legislation of Mississippi, and the objects of that legislation, against the imputation of oppression or hardships as respects these plaintiffs, and all who may occupy a similar position, if legislation can need vindication or apology, the purposes of which are to prevent, if possible, the paper of these corporations, spread over the community by them, from utterly perishing on the hands of the note holder, and to disappoint dishonest combinations to set the public laws at defiance, and, further, to oppress and ruin the note holder by taking his property, and leaving him the worthless and false and simulated representatives of an equivalent.

1 am of the opinion that the judgment of the Supreme Court of Mississippi should in both these cases be affirmed.

ORDER.

THE PLANTERS' BANK v. SHARP ET AL. This cause came on to be heard on the transcript of the record from the High Court of Errors and Appeals of the State of Mississippi, and was argued by counsel; on consideration whereof, it is now here ordered and adjudg ed by this court, that the judgment of the said High Court of Errors and Appeals in this cause be, and the same is hereby reversed, with costs; and that this cause be, and the same is hereby remanded to the said court, to be proceeded with in conformity to the opinion of this court, and as to law and justice shall apper

tain.

ORDER.

BALDWIN ET AL. v. PAYNE ET AL.

This cause came on to be heard on the transcript of the record from the High Court of Errors and Appeals of the State of Mississippi, and was argued by counsel; on consideration whereof, it is now here ordered and adjudged by this court, that the judgment of the said HOWARD 6. U. S., BOOK 12.

High Court of Errors and Appeals reversing the judgment of the Circuit Court of Jefferson County in this cause be, and the same is hereby reversed, with costs, and held as entirely void, and that the said judgment of the said Circuit Court of Jefferson County be in all things affirmed and *remain in full [*344 force and virtue, the said judgment of the said High court notwithstanding; and that this cause be, and the same is hereby remanded to the said High Court of Errors and Appeals, to be proceeded with in conformity to the opinion of this court, and as to law and justice shall appertain.

THE MERCHANTS' BANK OF BOSTON, Libelants.

Common carrier-owner of specie, employing expressman to carry may maintain suit for loss against owners of steamboat, contracted with by expressman-owner's rights controlled by such contract-stipulation that carrier is not responsible for loss, does not excuse from ordinary care -U. S. courts, admirality jurisdiction over libels.

A decree of the Circuit Court of Rhode Island affirmed, which was a judgment upon a libel in loss of specie carried in their boat by one of the personam against a steamboat company for the persons called "express carriers," and lost by fire in Long Island Sound.

THIS was United States for the District of Rhode Island, in the exercise of admiralty jurisdiction.

HIS was an appeal from the Circuit Court

In February, 1839, the State of New Jersey chartered a company by the name of The New Jersey Steam Navigation Company, with a capital of five hundred thousand dollars, for the purpose of purchasing, building, repairing, and altering any vessel or vessels propelled by &c.; under which charter they became propristeam, and in the navigation of the same, &c., etors of the steamboat Lexington.

On the 1st of August, 1839, the following agreement was made:

This agreement, made and entered into this 1st day of August, A. D. 1839, in the city of Massachusetts, on the one part, and Ch. Overing New York, by William F. Harnden, of Boston, Handy. President of the New Jersey Steam Navigation Company, of the other part, wit

nesseth:

"That the said William F. Harnden, for and in consideration of the sum of two hundred and

mon carrier is not to be responsible for loss or damage, exonerates.

NOTE. From what liability a contract, that a com

A special contract between the owner of goods liability of the latter, is valid." and a common carrier, limiting the common law Davidson v. Gra ham, 2 Ohio St., 131; Nicholson v. Willan, 5 East., 30 465

fifty dollars per month, to be paid monthly to the said New Jersey Steam Navigation Company, is to have the privilege of transporting in the steamers of said company, between New York and Providence, via Newport and Stonington, not to exceed once on each day, from New York and from Providence, and as less frequently as the boats may run between and from said places, one wooden crate, of the dimensions of five feet by five feet in width and height, and six feet in length (contents unknown), until the 31st of December, A. D. 1839, and from this date.

The following conditions are stipulated and 345*] agreed to, as *part of this contract, to wit: The said crate, with its contents, is to be at all times exclusively at the risk of the said William F. Harnden; and the New Jersey Steam Navigation Company will not, in any event, be responsible, either to him or his employers, for the loss of any goods, wares, merchandise, money, notes, bills, evidences of debt, or property of any and every description, to be conveyed or transported by him in said crate, or otherwise, in any manner, in the boats of the said company.

"Further, that the said Harnden is to attach to his advertisements, to be inserted in the public prints, as a common carrier, exclusively responsible for his acts and doings, the following notice, which he is also to attach to his receipts or bills of lading, to be given in all cases for goods, wares, and merchandise, and other prop, erty committed to his charge, to be transported in said crate or otherwise:

"Take notice.-William F. Harnden is alone responsible for the loss or injury of any articles or property committed to his care; nor is any risk assumed by, nor can any be attached to, the proprietors of the steamboats in which his crate may be, and is transported, in respect to it or its contents, at any time.'

"Further, that the said Harnden is not to violate any provisions of the postoffice laws, nor to interfere with the New Jersey Steam Navigation Company in its transportation of

507; Grace v. Adams, 100 Mass., 505;1 Am. Rep.,131; Derwont v. Loomee, 21 Conn., 246.

It was formerly held that such a contract was against the policy of the law, and void. Cole v. Goodwin, 19 Wend., 751; Gould v. Hill, 2 Hill. N. Y. 623; Jones v. Voorhies, 10 Ohio, 145; Fish v. Chapman,2 Kelly (Ga.), 349: Wyld v. Pickford, 8 Mees. & W., 443; Hinton v. Dibbin, 2 Q. B., 646.

But the doctrine of these cases has been expressly overruled. Dorr v. Steam Nav. Co., 4 Sandf. N. Y., 136; S. C., 8 N. Y. Leg. Obs., 345 S. C., 11 N. Y., 1 Kern., 485; Parsons v. Monteath, 13 Barb., 353: Mercantile Mut. Ins. Co. v. Chase, 1 E. D. Smith, N. Y., 115; Austin v. Manchester Railway Co., 11 Eng. Law & Eq., 506; Carr v. Lancashire Railway Co., 7 Ex., 707: 14 Eng. Law & Eq.. 340; Peek v. North Staffordshire Railway Co., 10 H. L. Cas., 473, 494.

And the validity of an express contract between the owner of goods and a carrier, limiting the general responsibility of the latter, is well established. Kimball v. Rutland R. R. Co., 26 Vt., 256; Wallace v. Matthews, 39 Ga., 617; Reno v. Hogan, 12 B. Mon., Ky., 63; Roberts v. Riley, 15 La. Ann., 103; Mobile R. R. Co. v. Weiner, 49 Miss., 725; Camden R. R. Co. v. Baldauf, 16 Penn. St., 67: Falkenau v. Fargo, 55 N. Y. 642; Walker v. York R. R. Co., 3 Car. & Kir., 279; Slim v. Northern R. R. Co., 26 Eng. Law & Eq., 297; 14 C. B., 297.

A common carrier may limit his common law liability as insurer; but there must be an express agreement, not a mere notice, and the limitation cannot extend to exempt him from damages for actual negligence of himself or his servants. Pacific, Deady, 17; Phila. R. R. Co. v. Derby, 14

The

letters and papers, nor to carry any powder, matches, or other combustible materials of any kind, calculated to endanger the safety of said boats, or the property or persons on board of them.

"And that this contract may be at any time terminated by the New Jersey Steam Navigation Company, or by the said Harnden, upon one month's notice given in writing.

"Further, that a contract made by the said Harnden with the Boston and New York Transportation Company, on the 5th day of July, A. D. 1839, is hereby dissolved by mutual consent.

"

In witness whereof, the said William F. Harnden has hereunto set his hand and seal, and the president of the said New Jersey Steam Navigation Company has hereto affixed his sig. nature and the corporate seal of the company. "WM. F. HARNDEN, [L. 8.] "CH. OVERING HANDY, President. Sealed and delivered in presence of ROSWELL E. LOCKWOOD." It is proper to remark, that, prior to the date of this agreement, Harnden had made a similar one with the Boston and *New York [*346 Transportation Company, which became merged in the New Jersey Steam Navigation Company on the 1st of August, 1839. Harnden, having begun to advertise in the newspapers in July, 1839, whilst his contract with the Boston Company was in force, continued to use the name of that company in the following advertisement, which was inserted in two of the Boston newspapers until the end of the year 1839.

"Boston and New York Express Package Car. Notice to Merchants, Brokers, Booksellers, and all Business Men.

"Wm. F. Harnden, having made arrangements with the New York and Boston Transportation, and Stonington and Providence Railroad companies, will run a car through from Boston to New York, and vice versa, via Stonington, with the mail train, daily, for the purpose of transporting specie, small packages of

| How., 486; The York Company v. Central Railroad, 3 Wall., 107; Walker v. The Transportation Co., 3 Wall.. 150; Express Company v. Komitze Brothers, 8 Wall., 342; Railroad Company v. Manf. Co., 16 Wall., 318: Steamboat New World v. King, 16 How., 469; Mobile and Ohio R. R. Co. v. Hopkins, 41 Ala., 486.

And the fact that the bill of lading contains words limiting the liability is not enough, without proof that the consignor assented. The Pacific, Deady, 17; Bostwick v. Baltimore and Ohio R. R. Co., 45 N. Y., 712; Hill v. Syracuse R. R. Co., 8 Hun, 296.

But these exemptions from liability by contract must be such only as are just and reasonable in the eye of the law. Statute 17 & 18 Vict., ch. 31. sec. 7; Peed v. North Staffordshire Railway Co., 10 H. L. Cas., 473, 493; Railroad Co. v. Lockwood, 17 Wall., 357; S. C., 10 Am. Rep., 366.

V.

So, a common carrier cannot, by notice or special contract, limit his liability so as to exonerate him from responsibility for his own negligence or misfeasance, or that of his servants and agents. Laing v. Colder, 8 Penn. St., 479; Camden and Amboy R. R. Co. v. Baldauf, 16 Penn. St., 67: Goldey v. Pa. R. R. Co., 30 Penn. St., 242; Pa. R. R. Co., v. Henderson, 51 Penn. St., 315; Farnham Camden R. R. Co., 55 Penn. St., 53; Empire Transf. Co. v. Wamsutta Oil Co., 63 Penn. St., 14; 3 Am. R., 515; Knowlton v. Erie R. R. Co., 19 Ohio St., 260; 2 Am. Rep., 395; Graham v. Davis, 4 Ohio St., 362; Welsh v. Pittsburgh R. R. Co.. 10 Ohio St., 75: Jones v. Voorhies, 10 Ohio, 145; Fillebrown v. G. T. Railway Co., 55 Me., 462; Sager v. Portsmouth,