Schenck v. Peay, 21 Fed. Cas. 685, implying "agent from word "owner;" United States v. Debs, 64 Fed. 749, holding “conspiracy" in restraint of trade, broader than mere combination or trust; Thurber v. Miller, 67 Fed. 376, 32 U. S. App. 209, applied in construing judiciary act of 1888; Kahnweiler v. Phenix Ins. Co., 67 Fed. 488, 32 U. S. App. 230, in construing insurance policy; Chouteau v. Missouri Pac. Ry., 122 Mo. 389, 22 S. W. 461, construing eminent domain statute; People v. Peck, 138 N. Y. 395, 34 N. E. 351, 20 L. R. A. 385, holding statutory duty of labor commissioners to collect papers implied a duty to preserve; Capital Bank v. School District, 1 N. Dak. 495, 48 N. W. 367, grant of certain powers to school district, impliedly excluded others.

Municipal corporations.- Iowa city charter authorizing city to borrow money for public purposes, and railroad charter providing that municipal railroad aid bonds might draw 10 per cent., by implication authorize an Iowa municipality to subscribe stock and issue bonds in aid of such railroad, p. 221.

Cited and followed in Rogers v. Burlington, 3 Wall. 664, 18 L. 83, and Mitchell v. Burlington, 4 Wall. 274, 18 L. 352, similar cases. Distinguished in Green v. Dyersburg, 2 Flipp. 492, F. C. 5,756, no such implication under Tennessee act; Williamson v. Keokuk, 44 Iowa, 90, denying power to issue them under charter there involved.

Contracts. Where there is no imputation of malum in se, valid part of a separable contract may be enforced and invalid disregarded, p. 222.

Cited and principle applied in Webb v. Allington, 27 Mo. App. 570, provision as to attorney fee, in a note, is separable; Southwell v. Beezley, 5 Or. 462, that part of a contract performable in one year may be upheld; International Trust Co. v. Boardman, 149 Mass. 163, 21 N. E. 241, holding, therefore, that assignee should have kept lawful part of proceeds of a contract separate; Western U. Tel. Co. v. Burlington, etc., Ry., 3 McCrary, 144, 145, n., where consideration legal a separable illegal provision may be rejected. Affirmed in Garlington v. Priest, 13 Fla. 568, in holding void act delaying enforcement of executions; Gulf, etc., Ry. v. Hume, 87 Tex. 218, 27 S. W. 112, but adjudging entire freight contract void for illegality of provision as to suit thereon; McCullough v. Virginia, 172 U. S. 115, 19 S. Ct. 139, coupons made payable for all taxes are not invalidated because special statute prevents their payment for certain taxes.

Municipal corporations. In pleading a municipal contract for borrowing of money, averment of its sanction by two-thirds of the electors, as required by law, is unnecessary; on demurrer this sane tion will be presumed, p. 223.

Cited in Connell v. Hill, 30 La. Ann. 254, presumption is that municipality in making a contract has acted legally.

Municipal corporations.- Contract of individuals with a city to pay certain pressing interest demands against the city which, in turn, agreed to levy taxes to repay them, is not a contract for borrowing money within charter provision requiring assent of twothirds of city electors thereto, p. 223.

Followed in City of Richmond v. McGirr, 78 Ind. 196, purchase of realty by city on ten years' credit is not a borrowing of money; Austin v. District Township, 51 Iowa, 105, 49 N. W. 1052, school district may pledge its credit for debt legitimately created. Cited in Lovejoy v. Foxcroft, 91 Me. 377, 40 Atl. 145, to point that munic1pality might borrow money to pay debts or for their renewal or substitution.

Miscellaneous.- Cited in Bank of Old Dominion v. McVeigh, 20 Gratt. 466, to point that State cannot impair obligation of contracts; McElvain v. Mudd, 44 Ala. 63, 4 Am. Rep. 116, as instance of such a law; Smith v. Ivey, 48 Ala. 51, to point that special statute with general purpose is to be liberally construed; Lawson v. Miller, 44 Ala. 624, 4 Am. Rep. 149, not in point.

1 Wall. 223-234, 17 L. 531, BALDWIN v. HALE.

Insolvency. A discharge under a State insolvent law cannot bar action on a note payable in the State, but to a person resident in another State and who has not proved his claim nor been a party to the insolvency proceedings, pp. 233, 234.

Baldwin v. Hale is a leading authority upon this point, and its ruling has been widely followed by citing cases. It has been relied upon in the following cases, where the precise question involved in the principal case was presented and similarly decided: Gilman v. Lockwood, 4 Wall. 411, 18 L. 433, Rhodes v. Borden, 67 Cal. 9, 10, 11, 6 Pac. 851, 852, Security, etc., Co. v. Rogers, 57 Pac. 316 (Idaho), Pullen v. Hillman, 84 Me. 131, 132, 30 Am. St. Rep. 341, 342, 24 Atl. 795, 796, Kelly v. Drury, 9 Allen, 28, 29, Stoddard v. Harrington, 100 Mass. 88, 97 Am. Dec. 81, Phoenix Nat. Bank v. Batcheller, 151 Mass. 590, 591, 24 N. E. 917, 918, 8 L. R. A. 645, 646, Newmarket Bank v. Butler, 45 N. H. 237, 239, Perley v. Mason, 64 N. H. 7, 8, 3 Atl. 630, 631, Carbee v. Mason, 64 N. H. 11, 4 Atl. 792, Pratt v. Reath, 44 N. Y. 599, 600, 4 Am. Rep. 719, 720, Phelps v. Borland, 103 N. Y. 410, 411, 57 Am. Rep. 756, 757, 9 N. E. 309, Bedell v. Scruton, 54 Vt. 494, and Roberts v. Atherton, 60 Vt. 565, 6 Am. St. Rep. 154, 15 Atl. 160, note 15 Am. St. Rep. 212, 214, 215, 221. An action for goods sold and delivered by a non-resident cannot be barred by a discharge under a State law, Newton v. Hagerman, 10 Sawy. 462, 22 Fed. 526, Guernsey v. Wood, 130 Mass. 504, Stirn v. McQuade, 66 N. H. 404, 49 Am. St. Rep. 623, 22 Atl. 452, Main v. Messner, 17 Or. 79, 20 Pac. 255, and McDougall v. Page, 55 Vt. 196, 199, 45 Am. Rep. 608, 611. Nor can an action of assumpsit on an account, Hills v.

Carlton, 74 Me. 160. Discharge under a State law cannot bar action on a judgment obtained in that State by a non-resident, Worthington v. Jerome, 5 Blatchf. 279, F. C. 18,054, Easterly v. Goodwin, 35 Conn. 284, 287, 95 Am. Dec. 238, 240, Hawley v. Hunt, 27 Iowa, 307, 308, 309, 311, 314, 1 Am. Rep. 274, 275, 276, 278, 279, and Murphy v. Manning, 134 Mass. 489; a fortiori, where judgment is rendered in another State, Bean v. Loryea, 81 Cal. 153, 22 Pac. 513, and Lowenberg v. Levine, 93 Cal. 220, 28 Pac. 942, 16 L. R. A. 160. Nor can it dissolve an attachment levied by a non-resident creditor, Mississippl Mills v. Ranlett, 19 Fed. 195; nor bar action to collect subscription to stock in foreign corporation, Glenn v. Clabaugh, 65 Md. 69, 3 Atl. 904; and a debt due a partnership is not barred if one member thereof was not a resident of the State of discharge, Chase v. Henry, 166 Mass. 579, 55 Am. St. Rep. 424, 44 N. E. 988. A nonresident creditor may attach the debtor's property in the State where the former resides, subsequent to the discharge, Dunlap v. Rogers, 47 N. H. 288, 93 Am. Dec. 437.

Upon the point that a non-resident creditor is bound by a discharge if he submits himself to the jurisdiction by accepting dividends or becoming a petitioning creditor, the following citing cases are decisive: Cole v. Cunningham, 133 U. S. 115, 33 L. 542, 10 S. Ct. 272, Rosenheim v. Morrow, 37 Fla. 189, 20 So. 245, and Wendell v. Lebon, 30 Minn. 239, 15 N. W. 112. And see note in 15 Am. St. Rep. 217, 218. Cited also in dissenting opinion in Soule v. Chase, 39 N. Y. 346, 347, majority holding non-resident creditor estopped if he has accepted dividends under assignment. Cited, arguendo, in State Tax on Foreign-Held Bonds, 15 Wall. 326, 21 L. 189, denying extraterritorial operation of State tax laws; dissenting opinion in Canada Southern Ry. v. Gebhard, 109 U. S. 544, 27 L. 1026, 3 S. Ct. 375, majority holding non-resident creditors of corporation bound to take notice of laws under which corporation organized; dissenting opinion in Moore v. Speed, 55 Mich. 93, 20 N. W. 806, majority holding State court may subject non-resident debtor's property to payment of debts due residents. The following valuable notes collect and review other authorities on this subject: 11 Am. Dec. 484, 23 Am. Dec. 347, 350, 351, 352, 353, 77 Am. Dec. 211, and 23 Am. St. Rep. 113. See also note in 70 Am. St. Rep. 256. Cited in discussion, obiter, in Brown v. Smart, 145 U. S. 457, 36 L. 775, 12 S. Ct. 959, Von Glahn v. Varrenne, 1 Dill. 519, 520, F. C. 16,994, In re Barrow, 2 Fed. Cas. 942, 1 Bank. Reg. 481 (125), Scammon v. Bonslett, 118 Cal. 97, 62 Am. St. Rep. 229, 50 Pac. 274, Brown v. Smart, 69 Md. 327, 14 Atl. 470, Donnell v. Lewis County Bank, 80 Mo. 172, Erickson v. Nesmith, 46 N. H. 377, Elton v. O'Connor, 6 N. Dak. 19, 68 N. W. 90, 33 L. R. A. 530, and Mumford v. Sewall, 11 Or. 70, 50 Am. Rep. 464, 4 Pac. 587, and dissenting opinion in Second Ward Bank v. Schanck, 97 Wis. 273, 73 N. W. 39, 39 L. R. A. 578.

Explained in Denny v. Bennett, 128 U. S. 497, 32 L. 494, 9 S. Ct. 137, holding rule does not operate to prevent State from providing

that debtor may assign for benefit of all creditors, resident and nonresident. Approved in Torrens v. Hammond, 4 Hughes, 600, 10 Fed. 903, holding, however, non-resident creditor cannot attach property of insolvent in hands of assignee. Distinguished in Litchford v. Convillon, 20 Fed. 609, 610, holding alien resident in State bound by discharge; Wade v. Sewell, 56 Fed. 130, holding, where non-resident beneficiaries under will are represented by resident trustee, they are bound by discharge of debtor of estate; Thomas v. Crow, 65 Cal. 472, 4 Pac. 449, holding notes payable to resident, but transferred after discharge to non-resident, are included in discharge; Orr v. Lisso, 33 La. Ann. 479, holding non-resident creditor's contract with reference to existing insolvent laws and are bound by discharge thereunder; Owen v. Roberts, 81 Me. 445, 17 Atl. 404, 4 L. R. A. 230, holding law providing for dissolution of attachments levied within four months previous to commencement of insolvency proceedings embraces those levied by foreign creditors; dissenting opinion in Bergner, etc., Brewing Co. v. Dreyfus, 172 Mass. 160, 161, 162, 51 N. E. 534, majority holding debt due foreign corporation not barred, although corporation had licensed office in State.

Insolvency. The power of Congress to pass bankrupt laws is rot exclusive; in the absence of congressional legislation the States may pass such laws, pp. 230, 231.

Cited and reaffirmed in Butler v. Goreley, 146 U. S. 313, 36 L. 986, 13 S. Ct. 88, Mather v. Nesbit, 4 McCrary, 506, 13 Fed. 873, Ebersole v. Adams, 10 Bush, 85, Orr v. Lisso, 33 La. Ann. 477, In re Damon, 70 Me. 154, Stevens v. Bowen, 49 Miss. 599, Merrill v. Bowler, 20 R. I. 231, 38 Atl. 116, and Hempstead v. Wisconsin, etc., Bank, 78 Wis. 380, 47 N. W. 629. See also note in 23 Am. Dec. 356.

Insolvency.- A State insolvent law does not impair the obligation of contracts so far as it affects debts contracted subsequent to its passage, pp. 230, 231.

Cited and followed in Chamberlain v. New Hampshire Ins. Co., 55 N. H. 265. Cited, arguendo, in Fogler v. Clark, 80 Me. 240, 14 Atl. 10, holding debtor whose debt accrued before passage of act is estopped from denying constitutionality if he accepted dividends under discharge. Cited in discussion, obiter, in Mather v. Cincinnati, etc., Co., 3 Ohio C. C. 288.

Miscellaneous.- Cited erroneously in Prichard v. Budd, 76 Fed. 713, 42 U. S. App. 186, reference being apparently to following case. Cited in Deering v. Boyle, 8 Kan. 535, 12 Am. Rep. 489, on point that State insolvent law cannot operate restrospectively; Goreley v. Butler, 147 Mass. 12, 16 N. E. 737, but application not apparent; State ex rel. v. Severance, 29 Minn. 270, 13 N. W. 48, on point that insolvency proceeding is in nature of judicial investigation, and holding final order therein appealable; as also in Grodsell v. Benson, 18 R. I. 249.

1 Wall. 234-243, 17 L. 534, BALDWIN v. BANK OF NEWBURY.

Insolvency.-Discharge under State insolvent law cannot bar action on a note payable in the State to a person resident elsewhere, who has not proved his claim, nor been a party to the insolvency proceedings, p. 243.

Cited and rule applied in the following cases, where the precise question was presented: Gilman v. Lockwood, 4 Wall. 411, 18 L. 433, Phoenix Nat. Bank v. Batcheller, 151 Mass. 591, 24 N. E. 918, 8 L. R. A. 646, and Newmarket Bank v. Butler, 45 N. H. 238; also in Newton v. Hagerman, 10 Sawy. 462, 22 Fed. 526, and Guernsey v. Wood, 130 Mass. 505, holding discharge cannot bar action for goods sold and delivered; Glenn v. Clabaugh, 65 Md. 69, 3 Atl. 904, nor action to recover unpaid subscription to stock in foreign corporation. Cited also in dissenting opinion in Moore v. Speed, 55 Mich. 93, 20 N. W. 806, majority holding State may subject non resident debtor's property to claims of resident creditors. Cited in discussion, obiter, in Green v. Collins, 3 Cliff. 507, F. C. 5,755, Eastern Bldg, etc., Assn. v. Bedford, 88 Fed. 20, and Erickson v. Nesmith, 46 N. H. 377. See also notes on this subject in 11 Am. Dec. 484, and 23 Am. Dec. 351.

Distinguished in dissenting opinion in Bergner, etc., Co. v. Dreyfus, 172 Mass. 160, 161, 51 N. E. 534, arguing that debt due foreign corporation having offices in State should be barred by discharge. "cashier,"

Evidence. Where a note is payable to a person as but there is nothing to indicate the particular bank of which he was cashier, parol evidence is admissible to show that he was cashier of plaintiff bank, and as such acted as agent for the plaintiff in taking the note, pp. 242, 243.

Cited and relied upon in the following, where the facts were somewhat similar: Pacific Guano Co. v. Holleman, 4 Woods, 463, 12 Fed. 62, and Bickley v. Commercial Bank, 43 S. C. 536, 21 S. E. 889, distinguishing 39 S. C. 291, 39 Am. St. Rep. 726, 17 S. E. 978, infra; also in Blair v. First Nat. Bank, 2 Flipp. 114, F. C. 1,485, holding, where note is payable to cashier, presumption is he acted as agent for bank; as also in Vater v. Lewis, 36 Ind. 293, 10 Am. Rep. 33, where note payable to treasurer of corporation; Bank v. Kennedy, 17 Wall. 25, 21 L. 556, and Martin v. Smith, 65 Miss. 3, 3 So. 34, holding, in suit by receiver on note, parol evidence is admissible to show whether cashier in drawing it acted for himself or as agent for bank; Nave v. Hadley, 74 Ind. 157, holding bank may sue on such note, cashier being also party; Hodge v. Farmers' Bank, 7 Ind. App. 99, 34 N. E. 124, holding addition of word cashier to note payable to individual changes payee and is material alteration; Swarts v. Cohen, 11 Ind. App. 23, 38 N. E. 537, holding parol evidence admissible to show capacity in which president of corporation signed note (and see dissenting opinion in Mathews v. Dubuque

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