#### Rockwell vs. Elkhorn Bank, impleaded with Sibley and another.

Corporations, authorized generally to engage in a particular business, have, as an incident, the power to contract debts in the legitimate transaction of such business, and to give negotiable notes or bills in payment or security therefor, unless restrained by their charters or by statute from doing so.

Banking associations under chap. 71, B. S. 1858, have power to contract debts in the regular course of their business, and to give negotiable notes or bills' in payment or security therefor, if they are exeouted in the common form of such instruments, and not under such circumstances and in such form as to ¿fake it evident that they were designed as an evasion of the 10th section of the act, in which case they would of course be void.

The legislature has power to prescribe the manner in which corporations shall contract, and when it has done so, the mode prescribed must be strictly pursued or the contract will be invalid.

But the requirement in sec. 10, of chap. 71, that the bills or notes of any banking association formed under that chapter, shall be payable at the office where its business is conducted, on demand and without interest, is by express words confined in its operation, to bills or notes which are to be put in *circulation as money.*

The 7th section of the same chapter, which relates to the signing of contracts, notes and bills of any such association, by its president, or vice president, and cashier, applies only to agreements where *both parties*become obligated, and to notes and bills issued for *circulation as money.*

APPEAL from tbe Circuit Court for *Walworth*County.

*Bockwell*sued tbe *Elkhorn Bank*as tbe maker, and Sibley & Mills as indorsers, of tbe following note:

$2,020 00. Elkhorn, August 4, 1857.

Seventy-two days after date, for value received, tbe *Elk-horn Bank*promises to pay to tbe order of Sibley & Mills, *654two thousand twenty dollars, payable at tbe *Elkhorn Bank,*with interest, at tbe rate of twelve per cent, per annum.

d. d. SpeNCEK, *Cashier.*

Tbe evidence tended to show tbat tbe note, which was indorsed by Sibley & Mills before its delivery, was given for a balance due to tbe plaintiff for money deposited in tbe bank, and for bis salary as its president.

On tbe trial, tbe defendants asked the court to instruct tbe jury tbat tbe note was void, because *the Elkhorn Bank*bad no lawful authority to make and issue it, and because it was not executed in form or substance according to the requirements of chap. 71 of tbe Revised Statutes, and is not signed by tbe president of tbe bank; and tbat tbe plaintiff was not a *Iona fide*bolder, but took it with notice of its illegal character. These instructions were refused. Yerdict and judgment for plaintiff.

*A. W. Farr,*for appellant:

The bank bad no authority to issue tbe note, and *Bock-well*is not a *bona fide*bolder, as be knew fully such want of authority at tbe inception of tbe note. *Safford vs. Wyckoff,\*4 Hill, 442; S. 0., 1 id., 11; *Smith vs.*Strong, 2 id., 241; 12 Wheat.-, 68; 5 Denio, 567; 2 Crancb, 167. Tbe note is not executed according to tbe requirements of tbe statute. R. S., chap. 71, sec. 7; 4 Hill, supra, and pp. 446-7; 13 Peters, 587. Tbe note is a *post note,*drawing interest, in violation of tbe statute. Chap. 71, R. S. 1858, sec. 10.

*Winsor & Smith, contra,*

as to tbe power of a corporation to incur debts in tbe prosecution of its legitimate business, and to give its notes for such indebtedness, cited *Ketchum vs. The City of Buffalo,*4 Kern., 863; Edwards on Bills, 77; *Moss vs. Oakley,*2 Hill, 267; *Att. Cen'l vs. L. & F. Ins. Co.,*9 Paige, 470; *Mott vs. Hicks,*1 Cow., 513; *Mead vs. Keeler,*24 Barb., 20; *Curtis vs. Beavitt,*15 N. Y., 9; 18 U. S. Digest, 152, §§ 62 and 63; *Hamilton vs. Hew Castle &c. B. B. Co.,*9 Ind., 359; 17 U. S. Digest, 137 and 138, §47; *Aggs vs. Nicholson,*38 Eng. Law and Eq., 308.

-Sec. 10 of chap. 71 relates only to notes made by banking associations, to be put in *circulation as money.*Tbe New York statute is different, and tbe decisions relied upon *655by tbe appellant are inapplicable. A bank bas power to give time paper to pay a debt, if under no statutory straint other than a prohibition of such paper to be put in circulation as money. *'Safford vs. Wyckoff,*4 Hill, 442, 450, 456; *Co/rter vs. Leavitt,*15 N. Y., 9, 10, and 68-72. Sec. 7, of chap. 71, requiring that notes of banking associations shall be signed by the president, or vice president, and cashier, applies only to notes issued to circulate as *money.*

May *15.*

*By the Court,*

DixoN, C. J.

It is a universally accepted principle, that corporations authorized generally to engage in a particular business, have, as an incident to such authority, the power to contract debts in the legitimate transaction of such business, unless they are restrained by their charters, or by statute, from doing so. It is likewise an equally well acknowledged rule, that the right to contract debts carries with it the power to give negotiable notes or bills in payment or security for such debts, unless the corporations are in like manner prohibited. These positions are abundantly sustained by the authorities cited by the respondent’s counsel. That our banking associations are corporations possessing general powers in relation to the business which they are authorized to transact, is not questioned. The powers usually exercised by such institutions are expressly conferred by the 4th section, and in addition it is declared that they may exercise “such incidental powers as may be necessary to carry on such business.” It is not contended that the act contains any express words by which they are prohibited from giving negotiable notes or bills, but on the authority of *Safford vs. Wyckoff,*1 Hill, 11, and *Smith vs.*Strong, 2 Hill, 241, it is insisted that they are restrained by the general frame and scope of the statute, and the policy which led to its enactment. It is said that if they are allowed to issue negotiable paper independently of the agents of the state, such paper will take the place of the currency which they are authorized to issue, and be circulated as money, and that thus the' supervision of the state officers and the security of the bill holders will be entirely thrown away. These cases, however, were expressly overruled by *656in *Safford*vs. Wyckoff, 4 Hill, 442, and decision has since received the unqualified sanction 0f the court of appeals. 15 N. Y., 9; 19 N. Y., 152. 'Without entering into any discussion of matters which are there so fully examined, we may say that the reasoning of the chancellor and senator Hopkins in the court' of errors, is far more conclusive ^nd satisfactory to our minds than that of the supreme court. It clearly appears to us, that like other corporations, these banking associations must, in the absence of express prohibition, be held to have the power to give negotiable notes and bills, by a necessary implication from their power to contract debts in the regular course of their business. No one denies their power in the last respect. They may make agreements for the purchase or hire of their banking houses, for the payment of rent and the salaries of officers and employees, and for many other purposes necessarily connected with the lawful transaction of their business. And if they do so, we perceive no reason which would prevent them giving negotiable notes and bills in security or payment of debts thus contracted, which would not operate with equal force to prevent other corporations and private individuals from doing the same thing, unless it should appear that the notes or bills were given under such circumstances and in such form as to make it evident that they were designed as an evasion of the 10th section of the act, in which case they would of course be void. If executed in the ordinary form of such instruments and for legitimate purposes, we can perceive no possible detriment or wrong which is to result to the public *from*their use. Certainly there is no person so ignorant or stupid as to mistake them for the legitimate currency of the bank. If they are transferred, they pass, like other negotiable paper, upon the responsibility of the makers and indorsers, if they have any. No one would take them, believing them to be secured by a pledge of public stocks, and consequently no one would be deceived or imposed upon. Neither would they impair the protection afforded by the law to the holder of bills issued pursuant to its authority. Their security consists in the stocks deposited with the state treasurer, which cannot be reached *657except by the redemption of the circulation, of the bank. We think, therefore, that such- associations may give tiable notes and bills in the ordinary course of their business, and that such notes and bills are valid.

By the 10th section of the act, the legislature manifestly intended to prescribe the form and tenor of bills or notes which are intended *be put in circulation as money.*Such bills and notes mnst be payable at the office where the business of the association is conducted. They must be payable on demand and without interest. If not so made they are declared to be unlawful. But this section is, by express words, confined in its operation to notes or bills issued for that purpose, and was not intended to affect or govern the execution of negotiable notes or bills of the ordinary character. These are left to such regulations as to time and place of payment and rate of interest, as the wishes and convenience of the parties may dictate, subject to the general laws which govern such matters.

In the case before us it is not pretended that the note was given for any unlawful purpose, or in the transaction of any business which the bank might not lawfully do. It was given to secure to the respondent a balance due for moneys deposited, and for his salary as one of the officers of the association. The debt was honest and fair, and the law would have enforced its payment. How then were the interests of the public, or of third persons, affected by the mere change of its form ? Clearly not at all. Neither is it claimed that the note was given for the purpose of being circulated as money. The good faith and honesty of the parties, both in giving and receiving it, are not called in question. It is therefore a valid security, unless the objection that it is not executed in the manner required by section seven is well taken.

There can be no question as to the power of the legisla] ture to prescribe the manner in which corporations shall contract ; and when it has so done, the mode, prescribed must be strictly pursued or the contract will be invalid. The seventh section declares that *contracts made by such associations, and all notes and bills by them issued and put in circulation as**658*money, shall he signed by the president, or vice president, and cashier.*A like provision in tbe banking law of New York bas given rise to mucb debate and some contradictory decisions in that state. It is discussed in tbe three cases in Hill, in tbe last of wbicb it was beld to apply only to agreements where both parties became obligated, and to notes and bills issued for circulation as money. This decision was reaffirmed by tbe court of appeals in *Barnes vs. Ontario Bank,*19 N. Y., 152, though not without reluctance on the part of some of the members of the court, and it is now the settled law of that state that negotiable bills, notes, drafts and other instruments of that nature, are good if executed by the cashier or other agent properly designated and authorized by the associates for that purpose. The reasoning in support of this restricted application of the word *“*contracts” is, that if the legislature had intended to apply it to *all*agreements, according to its general sense, then *notes and bills issued and put in circulation as money*would not have *been*specifically named. The express mention of notes and bills of a particular kind shows that they were not embraced in the general term “ contracts,” and by implication that no other were intended so to be; and hence, that as to all others, the bank is at liberty to adopt such methods and appoint such agents for their execution as it may see fit. Those who oppose this construction understand the word *“*contracts” in its general sense. We have concluded to adopt the construction which was finally sanctioned by the courts and has become the settled law of New York, and shall therefore hold that the note was properly executed by the cashier alone.

Judgment affirmed.