erty was really worth more than it sold for. But, at all events, the action of the court is justified by the language and reason of the statute, and by a recent decision of this court. The language of the Act is: "The assignee may recover the property, or the value of it, from the person so receiving it, or so to be benefited." This rule of damages was, in effect, adopted and approved by the court in the late case of Marshall v. Knox, 12 Am. Law Reg. (N. S.,) 630, Affirmed in 21 L. ed., 481. In that case the defendants were held accountable for the "full value of the property, whether they realized that value or not." Mr. Justice Clifford delivered the opinion of the court: day, and on the 22d of the same month the sheriff seized certain quantities of white pine boards, amounting in the whole to a million and two hundred thousand feet, and three days later the same officer seized the stock of goods owned by the debtor. Suffice it to say that such proceedings followed that the goods seized were sold and the net proceeds were paid over to the creditor, amounting to $9,359.06, and that the balance of the judgment was afterwards paid by a sale of the lands of the debtor situated in another county. and on the 6th of January of the next year he instituted this suit to recover back the property, or the value of it, so received by the creditor. By the record it also appears that the debtor during the same month, filed his petition in the district court praying to be adjudged a bankrupt, and that he was so adjudged on the 9th of September following. Pursuant to those proceedings the plaintiff below was duly apAssignees of the bankrupt's estate may re-pointed the assignee of the bankrupt's estate, cover back money or other property paid, conveyed, sold, assigned or transferred contrary to the provisions of the Bankrupt Act, if such payment, pledge, assignment, transfer or conveyance was made within four months before the filing of the petition by or against the debtor, and with a view to give a preference to one or more of the creditors of the bankrupt, or to a person having a claim against him, or who was under any liability on his account, provided the debtor was insolvent or in contemplation of insolvency, and the person receiving such payment or conveyance had reasonable cause to believe that a fraud on the Bankrupt Act was intended, or that the debtor was insolvent. 14 Stat. at L., 536. Briefly stated, what the plaintiff alleges is, in substance and effect, that the debtor, being then and there insolvent, with a view to give a preference to the creditor, executed and delivered to him the said bond or note with the warrant to confess judgment thereon against him for the specified *amount; that all the [*336 proceedings which led to the judgment, execu tion and levy were had with intent to give the creditor a preference over his other creditors, and that the creditor Bank accepted the bond or note with the warrant to confess judgment and received the proceeds of the sale of the property, having reasonable cause to believe that the debtor was insolvent, and that the bond or note, judgment, exemplification, execution and payment were made in fraud of the provisions of the Bankrupt Act. Several counts were filed, but the particulars in which they differ are not material to the questions presented in the assignment of errors. Nor is it necessery to reproduce the pleas filed by the defendant, as it will be sufficient to say of the declaration, except the execution and that they controvert every material allegation delivery of the note and warrant to confess judgment. Two notes of $5,000 each were discounted by the defendant corporation for the firm of which the debtor is the surviving partner. Each note was made payable four months after date and neither had become payable at the date of the transaction which is the subject of complaint. They were dated as follows, to wit: the first April 16, 1867, and the second March 16, in the same year, and each was indorsed by the firm of which the debtor was a member. Subsequently the senior partner of the firm deceased. and on the 9th of July next after the dates of the notes, the officers of the Bank insisted upon a different security, and the debtor yielding to their importunity gave the Bank a new note, payable one day after date, for the sum of $10,000, with interest, coupled with a warrant Witnesses were introduced by the plaintiff of attorney to confess judgment against him tending to show that the debtor was insolvent for the amount as of any term, with costs of when he gave the bond or note with the warrant suit, waiving inquisition, and agreeing to the to confess judgment, and that the debtor gave condemnation of any property that may be lev- it to secure a preference to the creditor over his 335* ied upon by any execution which may other creditors, and that the defendant had issue forthwith on failure to comply with the reasonable cause to believe that the debtor was conditions hereof, also hereby waiving the bene-insolvent, and that the bond or note with the fit of the exemption laws, or any Act of Assembly, relative to executions now in force or hereafter to be passed, as more fully set forth in the record. Armed with that power the creditor, on the 18th of the same month, entered judgment against the debtor for the sum of $10,300 in one of the State Courts, under the warrant of attorney annexed to the note, and by exemplification transferred the same to the county where the debtor resided and was engaged in business. Promptitude seems to have characterized the whole transaction, and on the 19th of the same month the creditor filed a præcipe for a fieri facias, which it appears was issued on the same warrant to confess judgment was given in fraud of the provisions of the Bankrupt Act. On the other hand, the defendant introduced witnesses whose testimony tended to prove that the debtor at that time was not insolvent, that he did not then contemplate insolvency or bankruptcy, and that the defendant had no reasonable cause to believe or suspect that he was insolvent or that he contemplated anything of the kind. Matters of that sort, however, are not now in issue, as they were submitted to the jury, and the record shows that the verdict of the jury was in favor of the plaintiff. All such matters having been settled by the verdict of the jury, nothing remains except to re-examine the ques tions of law presented in the bill of exceptions, | jecting the offer of the defendants to prove by to be made. I. Three of the errors assigned are addressed to the charge of the court, which was substantially as follows: showed that he gave it, as alleged in the declaration; for if he gave it, the fact that he was urged to do so by the creditor would constitute no defense to the action. 2. That if the jury find that the quantity and value of the assets of the debtor had not materially diminished from the date when the judgment note was given till the day when he filed his petition in bankruptcy and the day when he was adjudged a bankrupt, they may find that he was insolvent when he gave the judgment note. Even taken separately, it would be impossible to hold that the circumstantial facts embodied in the instruction did not tend to prove the hypothesis assumed by the plaintiff, and it is well settled that the force and effect of evidence, whether direct or circumstantial, should be left to the jury; but much other evidence be an unreasonable construction of the charge was given to prove the same issue, and it would to suppose that the court, in submitting that from their consideration all the other evidence proposition to the jury, intended to exclude in the case which was applicable to the same issue, and it is clear that the instruction, when viewed in the light of the circum- [*339 stances under which it was given, is entirely unobjectionable. 3. That the measure of damages is the value of the property seized and sold by virtue of the execution issued on the judgment obtained against the debtor. 1. That everyone is presumed to intend that which is the necessary and unavoidable consequence of his acts, and that the evidence introduced that the debtor signed and delivered to the defendants the judgment note payable one Instead of that, it is contended by the deday after date, giving to them the right to en- fendants that the amount realized by the deter the same of record and to issue execution fendants is conclusive as to the value of the thereon without delay, for a debt which was not property seized and sold, but the plaintiff was then due, affords a strong ground to presume not a party to that proceeding, and the express that the debtor intended to give the creditor a provision of the Bankrupt Act is that the aspreference and that the creditor intended to signee may in such a case recover the property, obtain it, and that it is wholly immaterial or the value of it, from the person so receiving whether the preference was voluntary or was it or so to be benefited by it. Sold as the propgiven at the urgent solicitation of the creditor. erty was at a judicial sale, it cannot be recovPersons of sound mind and discretion must, ered in specie, and the only remedy of the asin general, be understood to intend, in the or- signee is for the value of it, and no doubt is dinary transactions of life, that which is the entertained that the rule prescribed as the necessary and unavoidable consequences of their measure of damages by the circuit court is coracts, as they are supposed to know what the rect. Conard v. Ins. Co. 6 Pet., 274: Comlu v. consequences of their acts will be in such trans- Fisher, Taney, Dec., 121; Marshall v. Knox, actions. Experience has shown the rule to be a 16 Wall., 559, 21 L. ed. 485; Eby v. Schu338*] sound one and one safe to *be ap-macher, 29 Pa., 40; Sedg. Dam., 6th ed., 634; plied in criminal as well as civil cases. Exceptions to it undoubtedly may arise, as where the consequences likely to flow from the act are not matters of common knowledge, or where the act or the consequence flowing from it is attended by circumstances tending to rebut the ordinary probative force of the act or to exculpate the intent of the agent. Nor is it any valid objection to the charge that the rule as stated is not one of universal application, as the court is not able to perceive that it was too broadly stated for the case to which it was applied, and the court is the better satisfied with that conclusion in view of the fact that the record shows that witnesses were examined upon the same subject and that their testimony tended to prove the same issue. Equally unfounded also is the objection to the closing paragraph of the instruction in question, as it is obviously immaterial whether the debtor gave the preference with or without solicitation from the creditor, if the evidence May, Dam.; 2d ed., 317. 4. That the circuit court erred in refusing to charge the jury that inasmuch as the 35th section of the Bankrupt Act does not specify the giving of a warrant to confess judgment as a prohibited act, that no recovery in this case can be had under that section, and that the verdict must be for the defendant. Much discussion of the proposition embodied in that prayer cannot be necessary, as it is repugnant to the words of that section and to the repeated decisions of this court upon the same subject. 5. Complaint is also made that the court below erred in refusing to charge that the court would not take jurisdiction of such a case where the claim had passed in rem judicatam, and that the goods had been sold upon the execution issued upon the judgment, but it is too clear for argument that the proposition is inconsistent with the provisions of the Bankrupt Act and utterly opposed to the settled doc trines of this court, which is all that need be 7. Burns, the debtor, was called and examined by the defendants as a witness, and they offered to prove by him that the entry of the judgment and the issuing of the execution were a surprise to and wholly unexpected by him, and that from the time he was first apprised of it he opposed the proceeding and endeavored to have the judgment opened. Under the ruling of the court the defendants were allowed to prove all acts which the witness did in opposition to the enforcement of the judgment, but the court rejected the first part of the offer of proof, to wit: that the entry of the judgment and the issuing of the execution were a surprise to the debtor, and the defendants excepted to the ruling and now assign that ruling for error. Well founded doubts may arise whether even what the debtor did in opposition to the enforcement of the judgment was material to the issue between the parties, as the whole matter, when the debtor gave the note and warrant to confess judgment, passed entirely beyond his control. By his own voluntary act he empowered the defendants to enforce the payment of the amount whenever they pleased, in spite of any opposition he could make. Opposition, under such circumstances, being wholly unauthorized, and gratuitous and useless, it could not serve to unfold, explain or qualify the antecedent act of giving the note and warrant to confess judgment, as he knew, when he executed and delivered the instrument to the defendants, that it gave them the irrevocable power to enter the judgment and create the lien on his property, and to sue out the execution and to seize and sell the property to pay the debt; but the evidence of what the debtor did in that behalf was admitted, and the ruling 341*] of the *court not having been made the subject of an exception by either party, it is not necessary to express any decided opinion as to its admissibility. lien on his property, and that it would secure to the creditor a preference over all his other creditors, even in opposition to any remonstrance or entreaty he might make to the contrary. Such circumstances, unexplained, would certainly have some tendency to show that the debtor procured his property to be seized on the execution, with a view to give a preference to the favored creditor; but it is not necessary further to define in this case the force and effect of such an instrument as evidence to support such a charge, as other evidence was introduced by the plaintiff to prove that issue, which is conclusively established by the verdict of the jury. Power to enter the judgment was expressly conferred by the warrant duly executed by the debtor, and the direct effect of the judgment was to give the defendants a lien or the means of effecting a lien upon the property of the debtor, and to authorize the defendants to sue out the execution and the property subject to the lien to be seized and sold to make the money to pay the judgment. cause Viewed in the light of these suggestions, it is obvious that *it is wholly immaterial [*342 whether the debtor was surprised or not at the consequences, as they had all flowed from his own voluntary act. argument but, inasmuch as they are not within Several other questions were discussed at the the errors assigned in the record, it is unnecessary to give them any separate examination. Decree affirmed. GEORGE M. OCHILTREE, Plff. in Err., THE v. IOWA RAILROAD CONTRACTING COMPANY, Stockholder in Missouri, Iowa, & Nebraska Railway Company. (See S. C., 21 Wall., 249-255.) Amendment to State Constitution, when does not impair contract-construction of liabil ity of stockholders for corporate debts. 1. Where, by the Constitution of a State, a liability to double the amount of their stock was imand subsequently by an amended Constitution this posed upon stockholders in private corporations, provision was changed, so that the liability did not extend beyond the amount of subscribed and paid up stock, and the Supreme Court of the State has construed the Amendment so as to relieve stockholders in corporations subscribing after it went into operation, from the effects of the former Conment; held, that the Amendment, thus interpreted, stitution as to debts contracted prior to the Amendhas not the effect of impairing the obligation of the contract as to such debts within the meaning of the Constitution of the United States. 2. Those who subscribed for stock while the old Constitution was in force, were and remained liable under the double liability clause of that Constitu tion. Those who subscribed for stock after the amended Constitution took effect, were liable only under the singie liability clause of such amended Constitution. Suppose the acts of the debtor in that regard were admissible; still it was quite clear that it was wholly immaterial whether the course pursued by the defendants in entering the judg ment and issuing the execution was expected or unexpected by the debtor, as he had given them full power to do everything which they did do, whether he consented at the moment or not, and in spite of every opposition which he could make. Surprised or not, the debtor must have known that the defendants, as against him, were plainly in the exercise of their legal rights as derived from him under the note and warrant to confess judgment. When he gave the instrument conferring that power he knew beyond peradventure that the defendants could enter the judgment for the amount of the note whenever they should see fit, and that the judgment when entered would or might become a Submitted Dec. 11, 1874. Decided Jan. 18, 1875. tion did not deprive the plaintiff of any of the [No. 486.] IN N ERROR to the Supreme Court of the State of Missouri. The case is fully stated by the court. Messrs. Geo. W. McCrary and James Hagerman, for plaintiff in error: The Supreme Court of Missouri, as early as March, 1869, construed the constitutional and statutory provisions, and held that ey imposed the double liability on the stockholders who owned stock at the issuance of execution, and not upon the stockholders who owned stock at the time of the contract. McClaren v. Franciscus, 43 Mo., 452. This case has since been re-affirmed and the doctrine is well settled. Miller v. Great Repub. Ins. Co. 50 Mo., 55. This doctrine is in harmony with the following Massachusetts authorities: Curtis v. Harlow, 12 Met., 3; Marcy v. Clark, 17 Mass., 335; see also, Nixon v. Green, 11 Exch., 550. The fact that defendant became a stockholder in the Missouri, Iowa & Nebraska Railroad Company after the Constitutional Amendment of 1870, cannot affect plaintiff's rights. The contract of plaintiff was made first in order of time. The defendant assumed the burdens of a stockholder. It was bound to know the old law. We commend to the defendant the language of the Supreme Court of Massachusetts in Marcy v. Clark,, 17 Mass., 335. All who are members of the corporation are virtually defendants in the action, and have an opportunity to be heard in the form they have chosen by joining the Company. As to those who become members after judgment against a corporation, or after a debt has accrued, they voluntarily subject themselves to the inconvenience, having the means to satisfy themselves of the solvency of the company if they choose to make inquiry. Those who become inhabitants of towns after a liability for debt is incurred, are in the same predicament." Could the new stockholders complain? No. because they should have known the law; that it could not tamper with the sacred rights of the Corporation creditors. An analogous principle to this was settled by this court at an early day. In Sturges v. Crowinshield, 4 Wheat., 122, where it was held that a state insolvent law could not discharge contracts existing at its passage, Chief Justice Marshall, in delivering the opinion of the court, said: "It has been contended that, as a contract can only bind a man to pay, to the full extent of his property, it is an implied condition that he may be discharged on surrendering the whole of it. But it is not true that the parties have in view only the property in possession when the contract is formed, or that its obligation does not extend to future acquisitions. Industry, talents and integrity, constitute a fund which is as confidently trusted as property itself. Future acquisitions are, therefore, liable for contract; and to release them from this liability impairs their obligation." We call the particular attention of the court to the decision of the Supreme Court of Missouri in the case of Provident Sav. Inst. v. Jackson Skating and Bathing Rink, 52 Mo., 552. In that case, the court held that the con stitutional Amendment of 1870 was null and void, because it impaired the obligation of the creditor's contract. Hawthorne v. Calef, 2 Wall., 10, 17 L. ed., 776, is applicable to this case. A thorough examination of this case convinces us that, on principle, it fully sustains our position. Messrs. T. T. Gantt, F. T. Hughes and A. J. Baker, for defendant in error: The case of McClaren v. Franciscus, 43 Mo., 452, only decides that the assignee of stock who holds it at the time of execution, and not the assignor, is liable upon execution. The plaintiff's counsel rely upon this case, and quote from it to establish the doctrine that all who are stockholders at the time of execution are liable, and draw from that the conclusion that the contract of the plaintiff was that all who might be holders of stock at that—as he calls it the "appointed"-time, should be liable to contribute personally to the payment of his debts. No such conclusion can be deduced from the opinion in that case, neither the facts nor the opinion warrant it. In Von Hoffman v. City of Quincy, 4 Wall., 535, 18 L. ed., 403, the court decides that a citizen, moving to Quincy after a debt has been contracted by the city, subjects all the property which he takes with him into the corporation, to taxation for the payment of such debts. It will not be claimed, however, that he subjects any of his property not so taken into the corporation to such tax. Just so in this case. The defendant puts of his property an amount equal to $100 per share, for each share of stock he subscribes, into the Corporation, and this becomes subject to the debts of the Corporation, whether contracted before or after his subscription. The law in existence at the time he made his subscription, however, did not subject any of his property over and above the par value of his stock to such debts, and this being the law of his contract, he cannot be made further subject. In Woodruff v. Trapnall, 10 How., 190, this court decides that bank-bills issued while the law was in force, making them a legal tender in payment of all debts due to the State, still continue to be a legal tender after the law is repealed, and that this is so whether the notes came into the possession of the debtor defore or after the repeal; but that notes of said bank issued after the repeal are not a legal tender. This is just what we claim here, and is the only case in point which we have been able to find. We say that personal liability is an incident which attaches to the stock and follows it into the hands of whoever may become the owner thereof; and that if issued before the repeal, it will be liable; but that if issued subsequent to the repeal, it will not be so subject. Mr. Justice Davis delivered the opinion of the court: By the Constitution of Missouri, adopted in 1865, a liability to double the amount of their stock was imposed upon stockholders in private corporations. This provision was changed by the amended Constitution of 1870, so that the liability did not extend beyond the amount of subscribed and paid up stock. This Amendment has been construed by the Supreme Court of the State as applicable to all stockholders in corporations, who become such by original subscription after the Amendment took effect, and that it relieves such stockholders from the payment of debts contracted before the Amendment was adopted. The plaintiff in error in this cause obtained a judgment in his favor against the Missouri, Iowa and Nebraska Railway Company, upon a debt contracted with the Alexandria and Nebraska City Railroad Company before the Amendment went into operation. The latter company was consolidated with the Iowa Southern Railway Company and the consolidated Company adopted the name of the Missouri, Iowa and Nebraska Railway Company. The judgment obtained against this Corporation having proved unavailing, a proceeding was commenced under the Statute of the State to enforce the double liability clause against the Iowa Railroad Contracting Company, on the ground that it was a stockholder of the Corporation at the time the execution was issued and returned, "Nulla bona." The defendant became a stockholder in the Corporation, after the repeal of the double liability clause, by an original subscripition of stock for which it made full payment; and the question is, whether, in this state of the case, it is liable in double the amount of its stock for debts owing by the Corporation prior to the repeal. The Supreme Court of the State decided the point adversely to the plaintiff (Ochiltree v. Iowa Contracting Company, 54 Mo., 117), and this writ of error is brought to revise that judgment. It is quite apparent that considerations of public policy induced the adoption of the double liability clause in the Constitution of 1865, and equally apparent that, in the minds of the framers of the Amendment of 1870, this provision had operated injuriously to the interests of the State, and that sound policy dictated its repeal. It is not difficult to see, with this provision in force, that great public improvements, in some of the States of the Union at 252*1 least, could not be successfully carried on. Instead of inviting capital it would repel it. There are few persons who would consent to take stock in such enterprises, if subject to the double liability provision. Although willing to risk the loss of their stock, they would be unwilling to involve their estates beyond it. Especially would this be so if they were invited to take part in the completion of works greatly in debt, and which had languished for years. It is, therefore, important to determine, not only for this case, but all others similarly situated, whether the change of policy on this subject, as manifested by the change in the organic law, is effectual to accomplish the desired object. The Supreme Court of the State having construed the Amendment of 1870 so as to relieve stockholders in corporations, subscribing after it went into operation, from the effects of the former Constitution, as to debts contracted prior to the Amendment, the only question at issue here is, whether the Amendment, thus interpreted, has the effect of impairing the obligation of the plaintiff's contract within the meaning of the Constitution of the United States. It would serve no useful purpose to restate the views of this court on this general subject; nor to review the cases, which are neither few nor unimportant. It is enough to say that the law of the contract forms its obligation, and that legislation which materially impairs the remedy is void. The law of the contract in this case undoubtedly gave the plaintiff the right to subject existing stockholders in the Corporation, with whom the debt was contracted, to the double liability provision. This provision could be invoked so soon as the assets of the Corporation were exhausted. The plaintiff trusted this Corporation and the members composing it at the time the contract was made. It cannot be said that he gave credit beyond this, for what right had he to assume that other stock would be taken? It may be that he expected this would be done, and that thereby his security would be increased; but the obligation of a contract within the meaning of the Constitution is a valid, subsisting obligation, not a contingent or speculative one. It was no part of the obligation of a contract that future [*253 stock should be taken. The value of it would be enhanced if this were done, but the obligation of it would be the same whether the stock were taken or not. If taken, it subjected the holder to the personal liability imposed by the law at the time of the subscription, and to the extent of this additional responsibility the plaintiff is benefited. But suppose no additional stock were taken, the plaintiff has all that he trusted, and has no right to complain that his contract is not as valuable as he thought it would be. If, then, the credit was given to the Corporation and the personal liability of the members composing it at the date of the contract, how does the repeal of the double liability clause impair the plaintiff's contract? It is true, while unrepealed, he had the opportunity to accumulate securities for the payment of his debt; but is this opportunity to be continued after experience has proved that the policy on which it rested was injudicious and should be abandoned? Such a doctrine would tie up legislation, in order that the speculative expectancies of creditors may be protected. It was the object of the National Constitution to protect rights, and not mere incidental advantages which may affect the contract indirectly. The incident of individual liability attached to and formed a part of the contract as long as it lasted, but its repeal did not deprive the plaintiff of any of the rights secured to him when the contract was made. They still exist, and the remedy to enforce them remains the same. the Corporation itself cannot pay, the members who composed it at the time of the repeal are unaffected by it, and there is nothing in the way of subjecting them to the double liability provision. Instead of the plaintiff being injured by the repeal, he is benefited by it, for it cannot be supposed that the defendant would have taken stock with the burden imposed by the old law, and the subscription made by it increased the capacity of the Company to pay its debts very largely, as it is agreed that it owns eight thousand nine hundred and sixty shares of stock, each share being for $100. This stock was paid for and risked in the general enterprise and, like other assets, liable for the If debts of the Company; but the plaintiff [*254 seeks to place upon the defendant a liability beyond this, which it cannot be believed it meant to assume, as the law did not impose the liability upon it when the stock was taken. The plaintiff contracted with the Alexandria |