Dickerson, 41 N. J. L. 450, 32 Am. Rep. 239, sureties on bond of "assistant clerk" not liable for his defalcation after promotion to position of "bookkeeper."

Distinguished in Brockway v. Pettet, 79 Mich. 624, 45 N. W. 61, 7 L. R. A. 741, and n., where a liquor dealer's bond was approved but not filed until after its breach, the sureties were not released.

Principal and surety.- A partner, payee of note drawn by his co-partner, with other persons as sureties, may not show by parol, in an action against the sureties, that his co-partner's name was inserted by mistake, p. 299.

Miscellaneous. - Cited in State v. Davis, 14 S. C. 432, erroneously. See State v. Turner, 39 S. C. 426, 17 S. E. 888.

6 How. 301-344, 12 L. 447, PLANTERS' BANK v. SHARP.

Obligation of contracts - Corporate charter. - A charter empowering a bank to grant, alien or dispose of goods, chattels or other effects, whatsoever, is a contract authorizing the assignment of promissory notes, and a State law prohibiting such assignments is in violation of the Federal Constitution, pp 319-320.

Cited and followed in Jemison v. Planters & Merchants' Bank, 23 Ala. 192, where the same statute considered in the principal case was before the court; Micou v. Tallassee Bridge Co., 47 Ala. 656, act establishing a company to build toll bridge, a contract which cannot be impaired by a subsequent legislative act; City of Brownsville v. Basse, 36 Tex. 501, grant of land by legislature created a beneficial interest which could not be destroyed by the repeal of the act; Second Ward Bank v. Schranck, 97 Wis. 262, 73 N. W. 35, 39 L. R. A. 575, holding, where power is given by warrant of attorney, to enter judgment on promissory note when due, law destroying it impairs obligation of contract. Approved, in Grand Gulf R. R. & B. Co. v. Marshall, 12 How. 167, 13 L. 939, arguendo, the record not showing that this question was involved. Cited, arguendo, in Jamison v. P. & M. Bank, 17 Ala. 757, reserving opinion upon the constitutionality of statute considered in principal case; Railroad Co. v. Commissioner, 36 Tex. 434, that a legislative grant is a contract within article 1, section 10 of the Federal Constitution; in Louisiana v. Jumel, 107 U. S. 750, 27 L. 462, 2 S. Ct. 160, in dissenting opinion, per Harlan, J., majority holding ordinance forbidding payment of interest due on bonds withdrew from the officers of the State the means of carrying her contract into effect; State v. Matthews, 3 Jones (N. C.), 465, majority holding the legislature had power to prohibit the circulation of small notes although their issue was not restricted by bank charter. Cited in notes, 9 Am. Dec. 68, and 10 Am. Dec. 135.

Distinguished in Pennsylvania College Cases, 13 Wall. 214, 20 L. 553, holding provison in charter that the college constitution could not be altered except by an act of legislature, equivalent to an express reservation to make alterations; Pearsall v. Great Northern Ry. Co., 161 U. S. 663, 40 L. 844, 16 S. Ct. 709, where a general power to consolidate, given by a railway charter, has remained unexecuted, the legislature may, subsequently, prohibit consolidation with parallel or competing lines; Thorpe v. R. & B. R. R. Co., 27 Vt. 151, 62 Am. Dec. 634, it is within the authority of the legislature to require cattle-guards at railroad crossings; McElvain v. Mudd, 44 Ala. 76, in dissenting opinion, majority holding void, ordinance concerning validity of contracts where consideration was Confederate money.

Denied in McIntyre v. Ingraham, 35 Miss. 56, refusing to follow the United States Supreme Court where the constitutionality of the same statute was called into question.

Corporations. - If nowhere forbidden, a corporation may do what is necessary and proper to be done, in order to carry into effect express grants, p. 322.

Cited and followed in Blackburn v. S., M. & M. R. R. Co., 2 Flipp. 542, F. C. 1,467, holding railroad corporation, not restricted by charter, may acquire lands and mortgage franchises; United States Nat. Bank v. First Nat. Bank, 79 Fed. 300, 49 U. S. App. 73, act of bank, in reâiscounting its bills, not ultra vires; Ward v. Johnson, 95 III. 238, a bank, under its charter, has the implied power to borrow money; Detweiler v. Breckenkamp, 83 Mo. 53, a fund company is authorized to make loans to its members on real estate security and to sell or assign such contracts or loan; Bank of Chillicothe v. Chillicothe, 7 Ohio (pt. 2), 36, 30 Am. Dec. 187, holding power to borrow money is incident to ordinary powers of municipal corporation.

Corporations. - A bank, in discounting notes and managing its property in legitimate banking business, must be able to assign or sell those notes when necessary and proper, and such a power may well be regarded as an incident to its business, p. 323.

Cited and principle applied in Marvine v. Hymers, 12 N. Y. 227, 234, holding bank may sell and transfer a promissory note, discounted and owned by it, which has been dishonored; Bank of Genesee v. Patchin Bank, 19 N. Y. 315, a bank has the right to procure its paper, to be rediscounted for its own use; Miller v. Andrews, 3 Cold. 383, assignment by a bank of a promissory note, in consideration of bills of its own issue was legal.

Statutes - Federal courts. - Although Supreme Court is generally governed by a decision of a State court on a State statute, such decision will not control in the very case which, on account of that decision, is brought up by appeal or writ of error, p. 326.

Obligation of contracts. - A contract is not, by the Constitution, to be impaired at all. This is not a question of degree or cause, but of encroaching, in any respect, on its obligation - dispensing with any part of its force, p. 327.

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Cited with approval and variously applied in the following cases: Van Hoffman v. City of Quincy, 4 Wall. 553, 18 L. 409, holding, where a municipal corporation was authorized to issue bonds and exercise power of local taxation to pay them, a subsequent statute restricting taxation is a nullity; Edwards v. Kearzey, 96 U. S. 601, 24 L. 796, also in concurring opinion, per Hunt, J., p. 611, 24 L. 800, where a State law exempted certain property from executions, a subsequent law extending exemption is void; Antoni v. Greenhow, 107 U. S. 797, 27 L. 479, 2 S. Ct. 115, where a State bound herself, by funding act, to receive certain coupons for taxes and all demands due the State, a subsequent enactment forbidding such receipt is void; United States v. Jefferson Co., 1 McCrary, 361, 5 Dill. 315, F. C. 15,472, where statute authorizes a county to issue bonds and levy a tax to pay principal and interest, this obligation cannot afterwards be lessened; Mut. Life Ins. Co. v. Richardson, 77 Fed. 598, act which would have changed place of payment of mortgage not applicable and decree void; Edwards v. Williamson, 70 Ala. 153, 154, laws authorizing tax collectors to give separate bonds for collection of general and special taxes, invalid as against county bonds issued under former law; Getto v. Friend, 46 Kan. 31, 26 Pac. 475. reduction of interest on notes by decree of trial court, a material impairment of contract; Watkins v. Glenn, 55 Kan. 431, 40 Рас. 319, concurring opinion, S. C., 55 Kan. 435, 40 Pac. 320, law concerning sale and redemption of real estate has no retroactive operation, if so intended by legislature it violates the Federal Constitution; Collins v. Collins, 79 Ky. 91, to the same effect: Forstall v. Consolidated Assn., 34 La. Ann. 777, in act postponing payment of outstanding bonds, without consent of holders, is unconstitutional; Phinney v. Phinney, 81 Me. 461, 10 Am. St. Rep. 269, 17 Atl. 407, 4 L. R. A. 350, and n., statute affecting mortgage rights, unconstitutional so far as it applies to mortgages in existence prior to its enactment; Peabody v. Stetson, 88 Me. 281, 34 Atl. 77, insolvent law cannot have a retroactive effect; State v. Young, 29 Minn. 547, 9 N. W. 751, constitutional amendment providing that no law for the payment of interest or principal on certain bonds shall take effect until adopted by a vote of electors, is void; Lawson v. Jeffries, 47 Miss. 706, 12 Am. Rep. 354, ordinance granting new trials upon certain classes of final judgments, a judicial act, and, therefore, void; Lessley v. Phipps, 49 Miss. 800, law increasing homestead exemption is void as to debts created before its passage; Priestly v. Watkins, 62 Miss. 806, an act of legislature imposing new conditions and burdens upon holders of bonds is void; Leavitt v. Lovering, 64 N. H. 609, 15 Atl. 415, 1 L. R. A. 59, statute providing that payments made within three months before an assignment by debtor shall be void, does not apply to payments on existing contracts; State v. Blake, 35 N. J. L. 215, substantial advantages of franchise cannot be impaired without consent of grantees; Langdon v. Mayor, etc., 93 Ν. Υ. 158, grants made by the State can only be resumed under right of emi

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nent domain; University v. N. C. R. R. Co., 76 N. C. 108, 22 Am. Rep. 674, enactment that all dividends declared by any corporation or association, not claimed within five years, shall be paid to university trustees, is unconstitutional; Goodale v. Fennell, 27 Ohio St. 432, 22 Am. Rep. 326, the power to restrict taxation and assessments by municipal corporations is subject to the limitations imposed by the Federal Constitution; State v. Carew, 13 Rich. L. 514, 91 Am. Dec. 253, so much of stay law as declares it unlawful for any officer to serve or execute process for the collection of money is vaid; Goggans v. Turnipseed, 1 S. C. 83, 98 Am. Dec. 398, to the same effect; Skinner v. Holt, 9 S. Dak. 434, 62 Am. St. Rep. 883, 69 N. W. 597, act providing that life insurance policy, in the absence of contrary agreement, shall inure to separate use of husband or wife, independently of creditors, is unconstitutional; Taylor v. Stearns, 18 Gratt. 275, 288, an act staying the collection of debts and forbidding sales under trust deeds before a certain date, is, in relation to such deeds, unconstitutional; The Homestead Cases, 22 Gratt. 289, 293, 12 Am. Rep. 516, 519, article 11, section 1 of the Constitution of Virginia, and act in pursuance thereof, in relation to homestead exemptions, are in conflict with the Federal Constitution; Swinburne v. Mills, 17 Wash. 618, 61 Am. St. Rep. 937, 50 Pac. 491, retroactive law relating to the sale of property under execution and decree, etc., is void.

Approved in Ex parte Pollard, Ex parte Woods, 40 Ala. 102, in dissenting opinion, majority holding act postponing the rendition of judgments, not in violation of the Constitution; Hardeman v. Downer, 39 Ga. 456, majority holding homestead and exemption laws although retroactive are not in violation of the Federal Constitution; Common Council v. Assessors, 91 Mich. 116, 51 N. W. 799, 16 L. R. A. 79, and n., majority holding act providing for the assessment and collection of taxes upon mortgage interests in land, constitutional. See also the following valuable notes: 6 Am. Dec. 541, 10 Am. Dec. 135, 11 Am. Dec. 98, 45 Am. Dec. 252, 87 Am. Dec. 464, 8 Am. Dec. 320, 492.

Distinguished in Connecticut Mut. Life Ins. Co. v. Cushman, 108 U. S. 65, 27 L. 653, 2 S. Ct. 245, holding law reducing rate of interest allowed upon purchaser's bid in case of redemption, does not impair contract between mortgagor and mortgagee; Hardeman v. Downer, 39 Ga. 428, homestead and exemption laws, although retroactive, are not in violation of the Federal Constitution; State v. Gilliam, 18 Mont. 107, 44 Pac. 399, 31 L. R. A. 726, and n., extension of period for redemption does not impair contract between mortgagor and mortgagee; Penniman, Petitioner, 11 R. I. 344, 346, act providing that stockholders should not be imprisoned upon execution issued upon judgment against corporation, is constitutional.

State insolvent laws, applying to past contracts, have been held not to be constitutional, except so far as they discharge the perso from imprisonment, or in some other way affect only the remedy, p. 328.

Cited in Penniman, Petitioner, 11 R. I. 347, holding act providing that stockholders should not be imprisoned upon execution issued upon judgment against corporation, constitutional.

Set-off.- A law providing that promissory notes, though assigned by banks, should still be open to set-offs by their billholders, where assignment was made collusively to prevent such set-off, would have been equitable and within common-law principles, p. 329.

Cited with approval in Davis v. Tileston, 6 How. 120, 12 L. 369, holding bill to enjoin a judgment, charging that complainant had a good defense, and that he was entitled to pay in depreciated bank notes, of which advantage he was fraudulently deprived, not demurrable.

Contracts.- Where laws have been upheld, which seem to avoid some of the important incidents of contracts, it will usually be found that they relate to future contracts, or if to past ones, relate to the form of remedy merely, p. 229.

Cited approvingly and relied upon in Ex parte Pollard, Ex parte Woods, 40 Ala. 86, holding act postponing the rendition of judgments not in violation of the Constitution; Commissioners Court v. Rather, 48 Ala. 447, statute prescribing a period of time within which officials are to perform acts regarding the rights of others is directory, and does invalidate acts after specified time; Hardeman v. Downer, 39 Ga. 428, 431, homestead and exemption laws, although retroactive, are not in violation of the Federal Constitution; Taylor v. Stockwell, 66 Ind. 514, statute providing that a wife's inchoate interest in husband's property cannot be sold on an execution, is constitutional; Davis v. Rupe, 114 Ind. 594, 17 N. E. 166, statute altering redemption laws not in conflict with the Constitution; Morse v. Goold, 11 N. Y. 292, 62 Am. Dec. 111, act exempting certain property from levy and sale on execution, applies to judgments on debts contracted before and after its passage; Story v. Furman, 25 N. Y. 226, an act to secure payment without preference of debts of certain corporations, incorporated under a general law, is valid; Hill v. Kessler, 63 N. C. 443, provisions of State Constitution giving a homestead and other exemptions applies to pre-existing contracts; Garrett v. Cheshire, 69 N. C. 403, 12 Am. Rep. 653, to the same effect; In re Kennedy, 2 S. C. 224, article of State Constitution, providing for homestead exemption, is not void as against existing contracts.

Eminent domain. - Under the right of eminent domain, all property, whether private or corporate, may be taken, on a public necessity, and on making full compensation for it, and this is an implied term of all public grants and charters, p. 330.

Cited and approved in Terre Haute v. E. & T. H. R. R. Co., 149 Ind. 180, 46 N. E. 78, 37 L. R. A. 193, a municipality may exercise right of eminent domain over grounds of a railway company operat ing under a special charter.