vania; and it is not less necessary, on the principles of our constitution, that uniformity in the imposition of imposts, duties, and excises, should be observed in the one than in the other. Since, then, the power to lay and collect taxes, which includes direct taxes, is obviously coextensive with the power to lay and collect duties, imposts and excises, and since the latter extends throughout the United States, it follows that the power to impose direct taxes also extends throughout the United States.

The extent of the grant being ascertained. how far is it abridged by any part of the constitution?

The 20th section of the first article declares, that "representatives and direct taxes shall be apportioned among the several states which 320] may be included within this Union, according to their respective numbers."

The object of this regulation is, we think, to furnish a standard by which taxes are to be ap portioned, not to exempt from their operation any part of our country. Had the intention been to exempt from taxation those who were not represented in Congress, that intention would have been expressed in direct terms. The power having been expressly granted, the exception would have been expressly made. But a limitation can scarcely be said to be in sinuated. The words used do not mean that direct taxes shall be imposed on states only which are represented, or shall be apportioned to representatives; but that direct taxation, in its application to states, shall be apportioned to numbers. Representation is not made the foundation of taxation. If, under the enumeration of a representative for every 30,000 souls, one state had been found to contain 59,000, and arother 60.000, the first would have been entitled to only one representative, and the last to two. Their taxes, however, would not have been as one to two, but as fifty-nine to sixty. This clause was obviously not intended to create any exemption from taxation, or to make taxation dependent on representation, but to furnish a standard for the apportionment of each on the states.

The 4th paragraph of the 9th section of the same article will next be considered. It is in these words: "No capitation, or other direct tax, shall be laid, unless in proportion to the eensus. or enumeration hereinbefore directed to be taken."

321] *The census referred to is in that clause of the constitution which has just been considered, which makes numbers the standard by which both representatives and direct taxes shall be apportioned among the states. The actual enumeration is to be made "within three years after the first meeting of the Congress of the United States, and within every subsequent term of ten years, in such manner as they shall by law direct."

As the direct and declared object of this census is, to furnish a standard by which "representatives, and direct taxes, may be apportioned among the several states which may be included within this Union,” it will be admitted that the omission to extend it to the district or the territories would not render it defective. The census referred to is admitted to be a census exbibiting the numbers of the respective states. It cannot, however, be admitted, that the argu

ment which limits the application of the power of direct taxation to the population contained in this census is a just one. The language of the clause does not imply this restriction. It is not that "no capitation or other direct tax shall be laid, unless on those comprehended within the census hereinbefore directed to be taken," but "unless in proportion to" that census. Now, this proportion may be applied to the district or territories. If an enumeration be taken of the population in the district and territories, on the same principles on which the enumeration of the respective States is made, then the information is acquired by which a direct tax may be imposed on the district and territories, "in proportion to the "census or enumeration" which the [*322 constitution directs to be taken.

The standard, then, by which direct taxes must be laid, is applicable to this district, and will enable Congress to apportion on it its just and equal share of the burthen, with the same accuracy as on the respective states. If the tax be laid in this proportion, it is within the very words of the restriction. It is a tax in proportion to the census or enumeration referred to.

But the argument is presented in another form, in which its refutation is more difficult. It is urged against this construction, that it would produce the necessity of extending direct taxation to the district and territories, which would not only be inconvenient, but contrary to the understanding and practice of the whole government. If the power of imposing direct taxes be co-extensive with the United States, then it is contended, that the restrictive clause, if applicable to the district and territories, requires that the tax should be extended to them, since to omit them would be to violate the rule of proportion.

We think a satisfactory answer to this argument may be drawn from a fair comparative view of the different clauses of the constitution which have been recited.

That the general grant of power to lay and collect taxes is made in terms which comprehend the district and territories as well as the states, is, we think, incontrovertible. The subsequent clauses are intended to regulate the exercise of this power, not to withdraw from it any portion of the community. *The [*323 words in which those clauses are expressed import this intention. In thus regulating its exercise, a rule is given in the 2d section of the first article for its application to the respective states. That rule declares how direct taxes upon the states shall be imposed. They shall be apportioned upon the several states according to their numbers. If, then, a direct tax be laid at all, it must be laid on every state, conformably to the rule provided in the constitution. Congress has clearly no power to exempt any state from its due share of the burden. But this regulation is expressly confined to the states, and creates no necessity for extending the tax to the district or territories. The words of the 9th section do not in terms require that the system of direct taxation, when resorted to, shall be extended to the territories, as the words of the 2d section require that it shall be extended to all the states. They, therefore, may, without violence, be understood to give a rule

Mechanics' Bank of Alexandria.

No. 18

Mechanics' Bank of Alexandria,

June 25th, 1817.

CASHIER of the Bank of Columbia,

Ten Thousand Dollars.

$10,000.

Wm. Paton, Jr.

This check was offered in evidence by the plaintiff below, and testimony to prove that the said Paton, before, at the time, and subsequent to the drawing of the said check, was cashier of the said Mechanics' Bank, and the said Minor, the teller thereof; and in order to prove that the said check was drawn by the said William Paton in his capacity as cashier, and was so understood by him, and so understood by the said Bank of Columbia, their offi. cers and servants; evidence was further offered

to prove, that from the 5th of May, 1817, to the time of drawing the said check, there was kept in the said Mechanics' Bank, by the proper officer thereof, a book of printed checks in blank, for the purpose of being used by the cashier, in drawing his official checks; and that the check in question had been cut out of the said book. That the said cashier, in his official character, had frequently used the blank checks out of the said book, in drawing upon other banks in the district, and there was no other difference between the checks so drawn and the check in question, other than the letters "Cas." or "Ca." being superadded to the name of the said William Paton, Jun., in the checks 328*] *so drawn upon the said other banks. That although the said check-book was intended for the use of the bank, the checks in the same were sometimes used for other purposes; that the business of the said banks was sometimes managed through the medium of letters;

R. 117; Pusey v. N. W. R. Co. 14 Abb. Pr. N. S. 434; Chestnut Hill T. Co. v. Rutter, 4 Serg. & R. 16: Middleton v. Railroad Co. 43 How. Pr. 481; McGargle v. Hazleton, 5 Watts & S. 436; Hamilton v. Lycoming Ins. Co. 5 Barr. 344, 345; Bk. of Kentucky v. Schuylkill Bk. 1 Pars. Sel. Cas. 251, 265; Legrand v. Hampton S. College, 5 Munf. 324; The Banks v. Poittaux, 3 Rand. 143; Hope Ins. Co. v. Perkins, 38 N. Y. 104, 4 Rob. 182; Union Bank v. Ridgley, 1 Harr. & G. 413; Elysville M. Co. v. Okisko Co. 1 Md. Ch. 392; Ross v. Carter, 1 Carter Ind. 281; Hayden v. Middlesex T. Corp. 10 Mass. 401; White v. Westport Co. 1 Pick. 215; Bulkley v. Derby F. Co. 2 Conn. 256; White v. Derby Co. 2 Conn. 260; Waring v. Catawba Co. 2 Bay. 109; Garvey v. Colcock, 1 Nott & McC. 231; Petrie v. Wright, 6 Smedes & M. 647; Inhabitants, etc. v. Wood, 13 Mass. 193; Baptist Ch. v. Mulford, 3 Halst. 132; Gray v. Portland Bank, 3 Mass. 364; Sanger v. Third Parish, etc. 8 Mass. 265; Titcomb v. Union Ins. Co. 8 Mass. 326; Brown V. Penobscott Bk. 8 Mass. 445; Dorr v. Un. Ins. Co. 8 Mass. 494; Shotwell v. McKeown, 2 South,

the bank.

Evidence was further offered to prove that the check given in evidence as aforesaid, was (together with a number of other checks, drawn by the said William Paton upon other banks, with the addition in his signature of the letters "Ca." and "Cas." and cut out of the official 12th of July, 1817, by the hands of the said check-book) sent by the said Paton, on the Philip H. Minor, then being teller as aforesaid,

to Richard Smith, cashier of the office of discount and deposit of the Bank of the United of a balance due from the said Mechanics' States at Washington, to be paid in liquidation Bank to the said office of discount and deposit. That the said letter was *delivered by [*329 the said Minor to the said Smith, and the checks and moneys contained in the same were applied to the credit of said Mechanics' Bank. $17,626.05, written upon, and cut out of the That among the checks so sent, was one for check-book aforesaid, and in the words and figures following, to wit:

Mechanics' Bank of Alexandria, No. 32. July 12, 1817. Cashier of the Branch Bank of the United States, Washington-Pay to the order of Philip H. Minor, amount of discount made me, which I believe is seventeen thousand, six hundred and twenty-six dollars and five cents.

WM. PATON, Jun.

That the said Richard Smith, about the 17th of July, 1817, did cause the same to be presented to the Bank of Columbia for payment, and the same was accordingly paid, and was thereupon immediately charged to the said Mechanics' Bank.

Evidence was further offered to prove that the said Richard Smith considered the said 828; Abbot v. Hermon, 7 Greene, 118; Waller v. Bk. of Kentucky, 3 J. J. Marsh. 201; Lee v. Flemingsburg, 7 Dana, 28; Muir v. Canal Co. 8 Dana, 161; Bunscombe Turnpike Co. v. McCarson, 1 Dev. & B. 310; Bates v. Bk. of Ala. 2 Ala. 452; Eastman v. Coos Bk. 1 N. H. 26; Maine Stage Co. v. Longley, 14 Me. 444; Lime R. Bk. v. Macomber, 29 Me. 564; Bk. of Metropolis v. Guttschlick, 14 Pet. 19: Poultney v. Wells, 1 Aiken, 180; Sheldon v. Fairfax, 21 Vt. 102; Gassett v. Andover, 21 Vt. 343; San Antonio v. Lewis, 9 Tex. 69; Palmer v. Medina Ins. Co. 2 Ohio, 537; Ang. and Ames on Corp. ch. 8: N. Y. R. Co. v. New York, 1 Hilt. 587; Merrick v. Burlington Co. 11 Iowa, 75; Buckley v. Briggs, 30 Misso. 452; Railroad Co. v. Lightfall. 16 Rob. N. Y. 407; 36 How. Pr. 481; 5 Abb. N. S. 458. When the charter of the statute are silent as to what contracts a corporation may make, it has a power, as a general rule, to make all such contracts as are necessary and useful in the course of its business, and none other. Broughton v. Manchester Co. 3 Barn. & Ald. 1; Old Colony R. Co. v. Evans, 6 Gray, 25.

cashier, and that the presumption was, that it was an official act. 2. But supposing it to be equivocal on the face of the instrument, whether he acted in his official or private capacity, extrinsic parol evidence, to show in what capacity he acted, was admissible. This would not 334*] *be evidence to contradict the written instrument, but only to explain it.1 Suppose the Bank of Columbia had sued Paton, the date and entire face of the check would have been sufficient to defeat their action. There was enough to raise a presumption that he acted officially, because the act was within the scope of his authority. No rule of law obliged him to add to his name any designation of his official character; and even supposing him to be liable in his individual capacity, it does not follow that his principles are not liable for what he has done, the presumption being strongly in favor of the official character of the act. And if it be doubtful whether he is personally liable to the Bank of Columbia, he is certainly liable to the Mechanics' Bank, whose servant he was; who had the best means of knowing and correcting the fraud or mistake; and who, upon the principle of the rule de damno evitando, ought to bear the loss. 3. As to the law incorporating the Mechanics' Bank, it has no application to this case, unless it be contended that it would extend to the case of a deposit, and every other case where the law implies a contract. The action is not brought upon any such express undertaking as the act contemplates must be signed by the President, etc.; but upon an undertaking which the law implies, and which it may as well imply in the case of a corporation as of an individual.

Mr. Justice Johnson delivered the opinion of the court: The merits of this case lie within a very limited compass. The question is, 335] whether a certain act, done by the cashier of a bank, was done in his official or individual capacity. Had the draft, signed by Paton, borne no marks of an official character on the face of it, the case would have presented more difficulty. But if marks of an official character not only exist on the face, but predominate, the case is really a very familiar one. Evidence to fix its true character becomes indispensable.

It has been contended-but the argument was not pressed with much confidence that this defendant could not be bound otherwise than in conformity with the 17th section of the charter: by which it is enacted, "that all bills, bonds, notes, and every other contract or engagement, on behalf of the corporation, shall be signed by the president, and countersigned by the cashier; and the funds of the corporation shall in no case be liable for any contract or engagement, unless the same shall be signed and countersigned as aforesaid.”

It is to be hoped this argument was not in tended to reach the case of a deposit of money; and yet if it proves anything, it proves that no contract in law could be imputed to this bank. The truth is, that a check is properly neither a bond, bill, or note, with regard to the bank drawn upon, but an acquittance. And the contract arising out of a payment upon it, is a

1.-Dexter v. Hodgson, 1 Cranch, 345.

contract for money advanced, and must be so declared upon. It is true that checks are generally made payable to bearer, and this was made payable to order; but it is in evidence that it was drawn as a check, and paid as a check, and the declaration contains only the common money counts.

Of the six exceptions in the transcript of the *record, the 1st, 2d, 4th and 5th are [*336 taken on behalf of the Mechanics' Bank of Alexandria. Upon comparing these exceptions with the evidence, it does not appear that they affirm any other proposition growing out of that evidence, but that the check, on the face of it, purported to be the private check of Paton, and no extrinsic evidence could be received to prove the contrary.

The only ground on which it can be contended that this check was a private check, is, that it had not below the name the letters Cas. or Ca. But the fallacy of the proposition will at once appear, from the consideration, that the consequence would be, that all Paton's checks must have been adjudged private. For no definite meaning could be attached to the addition of those letters without the aid of parol testimony.

But the fact that this appeared on its face to be a private check, is by no means to be conceded. On the contrary, the appearance of the corporate name of the institution on the face of the paper at once leads to the belief that it is a corporate, and not an individual transaction; to which must be added the circumstances, that the cashier is the drawer, and the teller the payee; and the form of ordinary checks deviated from by the substitution of to order. for to bearer. The evidence, therefore, on the face of the bill, predominates in favor of its being a bank transaction. Applying, then, the plaintiff's own principle to the case, and the restriction as to the production of parol or extrinsic evidence could have been only applicable to himself. But it is enough for the purposes of the defendant to establish, that there existed, on the face of the paper, circum- [*337 stances from which it might reasonably be inferred that it was either one or the other. In that case, it became indispensable to resort to extrinsic evidence, to remove the doubt. The evidence resorted to for this purpose was the most obvious and reasonable possible, viz., that this was the appropriate form of an official check; that it was, in fact, cut out of the official check-book of the bank, and noted on the margin; that the money was drawn in behalf of, and applied to the use of the Mechanics' Bank; and by all the banks, and all the officers of the banks through which it passed, recognized as an official transaction. It is true, it was in evidence that this check was credited to Paton's own account, on the books of his bank; but it was done by his own order, and with the evidence before their eyes that it was officially drawn. This would never have been sanctioned by the directors, unless for reasons which they best understood, and on account of debits which they only could explain.

It is by no means true, as was contended in argument, that the acts of agents derive their validity from professing, on the face of them, to have been done in the exercise of their agency. In the more solemn exercise of deriv