[Wollenweber v. Ketterlinus.]

the book, but were exceptions. There was an erasure in the entry, but that was fully accounted for, and therefore did not exclude the book.

But the delivery of the goods was orally proved by the witness, Tyler; and Paul Ketterlinus proved that defendant, after the institution of this suit, several times told him that he expected money from Mercer county, and when he got it, he would call and pay the plaintiff. And the drawing of the bill of exchange or draft hereafter to be noticed, was full evidence that the defendant had got the goods, and was bound to pay for them. These preliminary objections were mere skirmishing at outposts, which could have no decisive effect on the main controversy.

That was the instruction of the court to the jury, that if they believed the facts set forth in Baskin's letter to Ketterlinus, they formed a sufficient excuse for not presenting the draft, or bill of exchange, as it was called at bar, and for not giving notice of its dishonor. A drawer, who either has funds in whole or in part in the hands of the drawee, or who has a reasonable ground of expectation that the drawee has funds to meet the draft, is entitled to notice, if the bill is refused, and, of course, the bill or draft ought to be duly presented. But the converse is equally true. The whole doctrine on the subject may be summed up in two propositions. First, if the drawer has any funds in the hands of the drawee, no matter whether they be sufficient to meet the draft or not, he is entitled to notice, because he may suffer injury to some extent for want of it. Second, if the drawer is without funds in the hands of the drawee, yet if from circumstances and transactions he has a well grounded belief that he has funds, and that the bill will be duly honored, he is entitled to notice, and the bill ought to be presented: 2 Johnston's Rep. 156; Hopkish v. Page, 2 Brockenbrough 20; 4 Cranch. 150; Dickens v. Beal, 10 Peters 578; 2 Howard 457. Baskin was a middle man between McKean and Wollenweber. McKean had agreed with the commissioners of Mercer county to make a map of the county for $300. He agreed with Wollenweber to lithograph the maps, and to assign him for that work $200 of the contract. Wollenweber agreed to do the work, to be paid for by the commissioners when the work was delivered; and McKean assigned to Baskin $200 for Wollenweber when the work was completed. Wollenweber became unable to perform the contract, delayed it for a long time, and finally employed Ketterlinus, who made the work, and under the direction of Wollenweber, sent it off to McKean. Ketterlinus was to be paid by Wollenweber when the work was finished. It was proved that there was no other transaction between Wollenweber and McKean but this, and that the draft was on account of this work. Baskin, in his letter, states these circumstances in the letter referred to, in answer to a letter from Ketterlinus,

[Wollenweber v. Ketterlinus.]

informing him that he had a draft on him. Baskin states, further, that he acted only as the friend and trustee of Wollenweber, and that McKean, although he had received the lithographs, had not yet been able to complete the maps ready for delivery, for causes declared in the letter. He said that he had written three times to Wollenweber, urging upon him the necessity of having the work done, to which Wollenweber had made no answer. That he had no funds, and that none were to be expected until the maps were finished, which were the terms of the contract between McKean and Wollenweber, well known to him, because he had a copy of the contract.

The letter then disclosed distinctly, that Baskin, upon whom the bill was drawn, had no funds; and it disclosed further, that Wollenweber could have had no reasonable belief that he had funds. He had delayed the performance of his contract six or seven months beyond the time fixed upon by his covenant, and a few days afterwards drew upon his agent and friend, without knowing whether the work had been accepted or not, or even delivered; without knowing whether McKean had sufficient time to complete the maps and deliver them to the commissioners of Mercer or not; in short, without advice or communication from the drawee, when that advice would have shown conclusively that he was not entitled to draw. He had no funds in the hands of the drawee, nor any just right or well grounded expectation that he had any. He was, therefore, not entitled to notice, and suffered no injury from the bill not having been regularly presented. The instruction of the court below was right.

Judgment affirmed.

Bank of the United States versus The Common

wealth.

A corporation cannot, merely by its own act, discharge itself from an obligation which it has assumed: Hence the Bank of the United States could not, by partial assignments of its assets, discharge itself from liability to pay to the Commonwealth the annual bonus of $100,000, imposed upon it by the act for its incorporation. If those assignments were lawful; or if they were recognised by the Commonwealth by demanding a dividend from the assignees of the bank on account of their claim for the bonus, this will not vary the case; nor will its ceasing to discount relieve it from its liability for the bonus to the Commonwealth.

Shanword Two suits were brought by the Commonwealth of Pennsylvania, against the President, Directors, and Company of the Bank of the United States, in the District Court for the city and county of Philadelphia; one to June Term, 1850, No. 144, and the other to same Term, No. 145.

The actions were brought to recover from the bank, portions of

[Bank United States v. The Commonwealth.]

the bonus alleged to be due to the commonwealth, under and by virtue of the 6th section of the Act of Assembly incorporating the bank. See Pamphlet Laws of 1835-36, p. 36, &c.

In the first suit to June Term, 1850, No. 144, a bill of particulars was furnished on the part of the commonwealth, the claim in which was stated:

Bank of the United States, to the Commonwealth of Pennsylvania, Dr. June 1, 1841, to annual payment provided for by charter, $100,000, with interest on same.

In the other suit to the same Term, No. 145, a bill of particulars was furnished, containing a claim for $100,000, payable June 1, 1842, and for the same amount, payable on the first day of June, 1843-4-5-6-7-8 and 9, amounting in all to $800,000.

The declaration was in the ordinary form of debt, and the defendant pleaded nil debet and payment with leave, &c.

On the trial of the causes before SHARSWOOD, J., on 15th January, 1851, the plaintiff offered in evidence, under objection, the act incorporating the bank, before referred to; certain minutes of the stockholders thereof, bearing date February 17, 18 and 19, 1836, accepting the charter; certain returns made by the bank to the auditor-general, under the 10th article of the 4th section of the charter, and an exemplification from the office of the secretary of the commonwealth, dated May 4, 1850, of a copy of the proceedings of the stockholders accepting the charter before referred to. And thereupon the plaintiff closed.

The defendant read in evidence the Acts of Assembly of Pennsylvania, passed on the 4th and 5th of May, 1841. (See Pamphlet Laws of 1841, p. 317 and 321, et seq.)

The Act of 4th May, 1841, and of 5th May, 1841, provided for a general assignment of the real and personal estate, whatsoever and wheresoever, of the Bank of the United States. The assignment was to be preceded by a vote of the stockholders; an election of trustees by the stockholders was provided for; the assignment to be for all the creditors pro rata; the notes of the bank to be received at par by the trustees in payment of debts of the bank.

The defendant further offered in evidence four several deeds of assignment made by the President, Directors and Company of the Bank of the United States, bearing date respectively, May 1, 1841, June 7, 1841, September 4, and September 6, 1841, duly recorded, &c. Also certain proceedings of the stockholders of the bank, at meetings which were held on the 3d of January and the 21st of February, 1842. And the defendant further offered to follow this with proof, that from the date of the assignments of September 4 and 6, 1841, the bank ceased to do any banking business, and to exercise any banking privileges. That the corporation had been from those dates, and continued to be insolvent, VOL. V.-51 2L2

[Bank United States v. The Commonwealth.]

(or unable to pay its debts); that the property excepted out of the two last mentioned assignments set forth in the schedule annexed to the assignment, was subsequently sold by virtue of judicial process, except two hundred shares of the capital stock of the Roseburg and Mercer Turnpike Company, which was worthless and had no market value. And in addition to this, the defendant offered to prove that the stocks pledged in Europe, and excepted out of the September assignments, were not worth the sums of money for which they were pledged. And that the plaintiff has made, and is now prosecuting a claim against the assignees under the assignments for a dividend, or for payment out of the assigned effects.

Also, that no demand was ever made upon the bank by the plaintiffs for the sums now claimed, until within one week previous to the commencement of this suit. Which offer of testimony being objected to, the judge rejected the same, and directed the jury to find a verdict for the plaintiff for the amount of the claims in both suits.

On the part of the defendant exception was taken to the ruling of the judge.

The jury rendered a verdict for the plaintiff in both cases; In No. 144, $100,000 debt, and $57,750 damages: In No. 145, $800,000 debt, and $246,000 damages.

The errors assigned in this court were to the rejection of the foregoing offer of testimony, and the direction given by the judge to the jury.

The case was argued by Porter, for the plaintiff in error.—It was contended on the facts, which the plaintiff in error offered to prove :

1. That the assignments made by the Bank of the United States on the 1st May, 7th June, and 4th and 6th September, 1841, were lawful assignments, and operated, therefore, to divest the bank of the property named in them, and to vest the same in the assignees upon the trusts specified in the said deeds respectively. The directors clearly possessed such power without special legislative authority: Dana v. Bank United States, 5 W. & Ser. 223. Even a general assignment (which the above deeds are not averred to be, either separately or collectively), is within the power of a banking corporation. See the following authorities: Haxtun v. Bishop, 3 Wend. 13; People v. Hudson Bank, 6 Cow. 217; Lenox v. Roberts, 2 Wheat. 373; Pope v. Brandon, 2 Stewart (Alabama) 401; Commonwealth v. Bank of Pennsylvania, 3 W. & Ser. 205; State of Maryland v. Bank of Maryland, 6 Gill & Johns. 220; Catlin v. The Eagle Bank, 6 Conn. 233; Union Bank v. Ellicott, 6 Gill & Johns. 363.

Much more, therefore, are partial assignments lawful. Even

[Bank United States v. The Commonwealth.]

if this were doubtful on general principles, the Acts of May 4 and 5, 1841 (Laws of 1841, pp. 318 and 322), in the 19th and 5th sections of those acts, respectively recognize and affirm this right as existing in the President, Directors and Company of the Bank of the United States.

2. That by the said deeds of assignment, which conveyed in trust the available assets of the bank, she was deprived of her banking capital, and it is a part of the case as shown by the offer, that from and after the assignments of September, 1841, she ceased to exercise any banking privileges, and to do any banking business, and has never resumed the same.

3. That the payment of the sum of $100,000 annually on the first Monday in June, together with the other payments stipulated in the 6th section of the Act of Incorporation (February 18, 1836), were, as they are there stated to be, "in consideration of the privileges granted by said act, and in lieu of all taxes on dividends," those privileges being such as were by law conferred on banks in this commonwealth, viz.: those of receiving deposits, discounting, and issuing bills or notes to circulate as money.

4. That by the lawful acts of the bank, viz., her assignments, she was deprived of the capacity to exercise her privilege of banking, and of course of declaring dividends; and that, therefore, the payment of the annual sum of $100,000, should in equity, cease also.

5. That if this were otherwise, in case of any dissent by the state from her assignments, it is clearly so where the Commonwealth has given her assent to and ratification of the deeds of May, June, and September, 1841, as she has done in the Acts of Assembly before referred to, in the clause providing for a dispensation, with an inventory, appraisement, and security by the trustees, "in the case of any assignment or deed of trust or other conveyance which may be made by the President, Directors, and Company of the Bank of the United States, for securing the payment of any portion of its liabilities." [19th section, Act 4th May, 1841, 5th section, Act 5th.] And in the further clause in the proviso to the 20th section of the first named Act, that "any trustee or assignee appointed for the payment or securing the payment of all or any portion of the debts of the said bank," should receive in payment of debts due, at par, the notes or other evidences of debt issued by the bank.

6. That although neither of the said deeds of assignment was made under the said Acts of Assembly (which provided for a general assignment to be executed by the directors when the stockholders, in a certain prescribed form, should pronounce it to be expedient), yet the said Acts of Assembly, besides giving the assent of this Commonwealth, as before stated, to the assignments as executed, are clear evidence of the knowledge by the state, of the embar