The note on which this action was instituted | note in question was made to the petitioner, and referred to in the petition is in the follow- and that Ficklin, Webb, and Smith ing words:

And, lastly, they insist that, upon the dissolution of the firm of McMicken & Ficklin, McMicken had received all the books, notes, and claims due to the firm, and bound himself to settle all the affairs of the concern out of these funds, so far as they should prove adequate; that Ficklin was to take the goods on hand, to pay McMicken for one half of that stock in certain acceptances, and to execute his note, with Webb and Smith, as sureties, for the remaining half in value, subject to a contingent responsibility upon the settlement of the concern by McMicken; that McMicken had not made such settlement according to the terms of the agreement of dissolution, and therefore had no right of action against the Several pleas were interposed by the defend-representatives of Ficklin or the respondents. ants or respondents below to the demands in the petition. The court deem it necessary to advert to such of these pleas only as are connected with the points comprised in the rulings of the judge at the circuit.

in favor of and payable to McMicken & Ficklin, and that said note ought properly to have been made in favor of Charles McMicken only, plaintiff could not recover without proving such error and mistake; and if no such error or mistake was proved, the verdict of the jury ought to be in favor of defendants; for, without such proof, McMicken alone could not recover on a note drawn in favor of McMicken & Ficklin.

2d. That if the jury were satisfied that Webb and Smith were originally only sureties, and that whatever consideration there was for the note passed between McMicken as one party, and Ficklin as the other party, in such case an express written contract on the part of sureties is to be strictly construed in their favor, and they could only be made liable on their contract in the form and manner in which they had entered into it; and no proof of any error or mistake, as between the principal parties to the contract, could make mere sureties liable beyond the terms of the contract, unless they were privy to and agreed to the same; and if plaintiff could only recover against the principal party to the contract sued on by showing error or mistake in that contract, the verdict of the jury as regarded the sureties should be in their favor.

|ciency, and that McMicken charged himself with the liquidation of the partnership affairs in 1817, and that McMicken had not rendered an account of such liquidation before bringing this suit, it was competent for the jury to say that there was such a laches, neglect, and default on his part as discharged the sureties.

1st. We can perceive no objection to the ruling of the court in this instruction; neither argument nor authority can be called for, to sustain a position so elementary and so trite as that the allegation and proof must correspond. In this case, the petitioner alleges a separate and exclusive right in himself; the proof which he adduces discloses an equal right in another. He avers this discrepancy to be the result of error; he must certainly reconcile this contradiction, or his claim is destroyed by conflict with itself.

2d. This second instruction we hold to be correct. Even as between principals, a court will not bind parties to conditions or obligations to which they have not bound themselves, according to a fair interpretation of their contract. How far any written contract may be explained, as between parties confessedly principals, by evidence aliunde, is a nice and difficult question, always approached with doubt 4th. That if the jury believed that the note and caution; but as against a surety, neither a sued on grew out of the settlement of the part-court of law nor a court of equity will lend its nership affairs of McMicken & Ficklin, and was aid to affect him beyond the plain and necesgiven provisionally in relation thereto, and that sary import of his undertaking. Equity will McMicken had charged himself with the settle-not, as against him, assist in completing an imment of the partnership affairs, that then Mc- perfect or defective instrument; much less will Micken cannot recover on this note without ait add a new term or condition to what he has final liquidation and settlement of the partnership affairs; and that if, under the circumstances aforesaid, McMicken persists in submitting the suit on this note to the decision of the jury, their verdict ought to be for the defendant.

stipulated. He must be permitted to remain in precisely the situation in which he has placed himself; and it is no justification or excuse with another, for attempting to change his situation, to allege or show that he would be benefited by such change. He is said to pos5th. That if the jury believed that the note sess an interest in the letter of his contract. sued on was given to attend on a settlement *That this is the doctrine in England [*299 and liquidation of the partnership affairs of we see in the cases of Nisbet v. Smith, 2 Bro. McMicken & Ficklin, and McMicken charged Ch. R. 579, Rees v. Berrington, 2 Ves. himself with the liquidation and settlement of Jun., 540, and Boult bee v. Stubbs, 18 Ves. the partnership affairs of McMicken & Ficklin, 20. It is the doctrine of this court, so deand that McMicken has received partnership as-clared in the case of Miller v. Stewart et al. sets sufficient to pay the debts of the partner- 9 Wheat. 680. It is probably the doctrine ship, in such case plaintiff McMicken ought not of all the States. Vide. Croughton v. Duvall, to recover, and the verdict of the jury ought¦ 3 Call, 69; Hill v. Bull, 1 Gilmer, 149. If, then, to be for the defendants.

6th. That if the jury believed that Ficklin was a partner of the house of McMicken & 298*] Ficklin, to whom the note was payable, and that the said house has long since been dissolved, and that the same Ficklin was principal debtor, and Amos Webb and Jedediah Smith were only sureties in the note sued on, that these facts created a confusion of the characters of creditor and debtor; and whenever such event happened, there was a payment of the note to the extent of the correlative characters of debtor and creditor, which in this case was one half.

7th. That if the jury believed that the note sued on was given in pursuance of the terms of the dissolution of partnership between McMicken & Ficklin, and under an implied agreement that, if the debts due to the partnership were not sufficient to pay the debts due by the partnership, then Ficklin and his sureties were to make good and supply one half of the defi

Webb and Smith were mere sureties in the note declared on, the plaintiff could not, by setting up another contract as formed or as intended to be formed between himself and Ficklin, transfer the responsibility of these sureties to such contract, differing in its terms from that which they had in fact executed.

4th and 5th, which should be numbered the 3d and 4th instructions. These two instructions are essentially the same. The petitioner, in his count or petition, sets out the fact of the dissolution of the firm of McMicken & Ficklin, and refers to the agreement of dissolution as evidence of the conditions on which it took place, and of the rights vested and the obligations imposed by that agreement. It is from this document that we gather the facts of the transfer of the goods on hand to Ficklin, in consideration of the acceptances to be procured and of the note to be executed by him, with Webb and Smith as his sureties, and the further facts of McMicken's possession of all

With regard to the prayers 1st, 2d, and 3d, in No. 3, although their relevancy to the true issues taken in this cause is not shown, and the opinion of the court is perhaps not sustainable with respect to them, yet as that opinion, so far as expressed, is more adverse to the defendants than to the plaintiff, and the defendants have not asked its reversal, no right can be recognized in the plaintiff to complain that he has failed to obtain all he required, when he has already obtained too much. Upon an examination of this somewhat anomalous and confused record, we have come to the conclusion that the judgment of the Circuit Court should be, and it is hereby accordingly affirmed.

the books, notes, and accounts of the firm, and | & Ficklin, which they had an unquestionable of his obligation to collect the resources and right to do. to pay the debts and settle all the affairs of the concern, so far as the means placed at his command were adequate for these ends. The above facts, disclosed by the petition and the agreement of dissolution, were certainly competent evidence for the consideration of the jury, and from which they might infer the purpose for which the note to McMicken & Ficklin was executed, the duty of McMicken to settle the partnership affairs, and to pay the debts of the concern with the funds placed at his disposal; and if they should infer from these facts, that the note executed to McMicken & Ficklin was given provisionally, and designed to abide the settlement of the affairs of the firm, and that McMicken was bound by the agreement of dissolution to liquidate and settle the affairs of the firm, then the jury were bound to find that the fulfillment of these obligations on the part of McMicken should precede any right of action on the note, and that, without proof of such fulfillment, they were equally bound to find for

the defendants.

*Order.

[*301

This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the Eastern District of Louisiana, and was argued by counsel; on consideration whereof, it is now here ordered and adjudged by this court, that the judgment of the said Circuit Court in this cause be, and the same is hereby affirmed, with costs.

6th. This instruction affirms a position, as to which, we presume, there can be no room for difficulty or doubt; namely, that on the note given by Ficklin to his own firm of McMicken & Ficklin, with Webb and Smith as sureties, 300*] Ficklin, as a partner, *was entitled to one half, upon the dissolution of the firm, and that thereupon, pro tanto, the obligation of THE PLANTERS' BANK OF MISSISSIPPI, these sureties would cease, as Ficklin could have no right of action against himself to compel payment to himself.

7th. With regard to the instruction numbered 7, given on the prayer of the defendant, we deem it to be in substance the same with Nos. 3 and 4, which having been already examined and approved, it is unnecessary to review in detail the same questions in the last instruction.

There is, also, though not designated by any number, what is denominated in the record an "additional charge" prayed by the defendants. This, upon examination, being found a mere general legal proposition in the language of the 2094th article of the Civil Code, and no immediate application or connection of which to the pleadings or testimony in this case being attempted nor being perceived by the court, it is passed by as immaterial and unimportant. On the part of the plaintiffs, there are in structions prayed, and designated on the record as No. 2 and No. 3; and in No. 2 by the irregular ordinal arrangement of 4th and 7th; in No. 3 in the arrangement of 1st, 2d, and 3d.

Instruction 4th, in the first division, is in the following words: "That the defendants to this suit, having bound themselves in solido, cannot claim the right or oblige the plaintiff to discuss the property of Ficklin or his succession. Civil Code, art. 3015, 3016. The court below very properly disposed of this prayer (as it might have disposed of what was called the additional charge prayed on behalf of the defendants), by justly remarking, that its applicability to the cause was not perceived, as the defendants were not endeavoring to interfere with the property or affairs of Ficklin any farther than to assert the true import and character of their own contract with McMicken

Plaintiffs in Error,

THOMAS L. SHARP, Edward Englehard, and
in
Henry Hampton Bridges, Defendants
Error.

MATTHIAS W. BALDWIN, George Vail, and
George Hufty, Merchants and Persons in
Trade under the Name, Style, and Firm of
Baldwin, Vail & Hufty, Plaintiffs in Error.

V.

JAMES PAYNE, Abner E. Green, and Robert
Y. Wood, Defendants in Error.

State law prohibiting banks, previously em-
powered by charter. from transferring bills,
notes, etc., unconstitutional.

Where a bank was chartered with power to "have, possess, receive, retain, and enjoy to themselves and their successors, lands, rents, tenements, hereditaments, goods, chattels, and effects of what kind soever, nature, and quality, and the same to grant. demise, alien, or dispose of for the good of the bank," and also. "to receive money on deposit and pay away the same free of expense, discount bills of exchange and notes, and to make loans," etc., and, in the course of business under this charter, the bank discounted and held promissory notes, and then the Legislature of the State passed a law declaring that “it shall not be lawful for any bank in the State to transfer, by indorsement or otherwise, any note, bill receivable, or other evidence of debt; and if it shall appear in evidence, upon the trial of any action upon any such note, bill receivable, or other evidence of debt, that the same was transferred, the same shall abate upon the plea of Constitution of the United States, and is void. the defendant"-this statute conflicts with the

NOTE. As to repeal of modification of statutes as affecting vested rights and what laws are untracts, see notes to 3 L. ed. U. S. 162; 4 L. ed. constitutional as impairing the obligation of conU. S. 529.

HESE two cases were both brought up, by | Lawrence County (State court). The defendwrit of error issued under the twenty-fifth section of the Judiciary Act, from the High Court of Errors and Appeals for the State of Mississippi.

On the 21st of February, 1840, the Legislature of Mississippi passed "An Act requiring the several banks of the State to pay specie, and for other purposes," the seventh section of which was as follows: "It shall not be lawful for any bank in this State to transfer, by indorsement or otherwise, any note, bill receiv-der the costs of suit in said case, up to the able, or other evidence of debt; and if it shall time of their tendering said plea, with said appear in evidence, upon the trial of any action plea. upon any such note, bill receivable, or other evidence of debt, that the same was transferred, the same shall abate upon the plea of the defendant."

leave being granted to the plaintiffs to reply to the plea, an issue was joined in short by consent, and the cause proceeded, when the jury found a verdict for the defendants.

A bill of exceptions was taken by the plaintiff's counsel, as follows, viz.:

"Be it remembered that on the trial of the above cause at the term aforesaid, after the case was submitted to the jury, and after the plaintiff had introduced his evidence upon the issue joined, the defendant introduced a witness, who proved that, since the suit in the above case was instituted, the note had been transferred to the United States Bank of Pennsylvania, the defendants offered a plea, in the words and figures following, to wit.: [Then followed the plea above recited.]

the following special plea, viz.: That the said promissory notes, in the declaration of the said plaintiffs mentioned, were executed and delivered by them, the said defendants, to, and discounted by, the Mississippi Railroad Company, on the 4th day of December, in the year 1839, at the county aforesaid, and thereby became and were the property of the said Mississippi Railroad Company, to wit, on the day and year aforesaid, at the county aforesaid; and that the said promissory notes continued to be and were the property of the Mississippi Railroad Company from the day and year last aforesaid until and after the 26th day of April, in the year 1840, at the county aforesaid, after which 26th day of April, in the year 1840, to wit, on the 1st day of April, 1841, "To the reception of said plea the counsel at the county aforesaid, the said Mississippi for the plaintiffs objected, which objection was Railroad Company, by their indorsement overruled; to which opinion of the court the thereon, transferred the said two promissory counsel for plaintiffs except, and having re-notes, in the said declaration mentioned, to the duced their exceptions to writing before the said plaintiffs; and this they are ready to jury retired, pray the same may be signed verify. Wherefore they pray judgment, if [and] sealed. the said plaintiffs ought to have or maintain their aforesaid action thereof against them." To this special plea the plaintiffs demurred, and the defendants joined in demurrer.

"Given under my hand and seal this 6th December, 1842.

(Signed)

"A. G. Brown. [Seal.]" Upon this exception, the case was carried up to the High Court of Errors and Appeals, which, at December Term, 1842, pronounced the following, judgment:

"This cause having been submitted at a former term of this court, and the same having been duly considered by the court, it is ordered and adjudged that the judgment of the Circuit Court of Lawrence County, rendered against the plaintiffs in error at the December Term thereof, A. D. 1842, be, and the same is hereby reversed, because rendered as a judgment in bar; and this court, proceeding to render the judgment that should have been pronounced by the court below, doth order and adjudge that the plaintiffs in error, the plaintiffs in the court below, take nothing by their writ, and that the suit be abated."

To review this judgment, a writ of error brought the case up to this court. Baldwin. Vail, and Hufty v. James Payne

et al.

Matthias W. Baldwin, George Vail, and George W. Hufty, copartners, brought this ac305*] tion on the 15th April, 1841, in the *Circuit Court of Jefferson County, Mississippi, against James Payne, Abner E. Green, and Robert Y. Wood, the makers, and the Mississippi Railroad Company, the indorsers, of two certain promissory notes, each in the sum of $6,283.95, payable at the Merchants Bank, New Orleans, the first, sixty days after December 4, 1839, and the other ninety days thereafter. The notes were without date on their face, and were discounted, at the instance of Payne, one of the makers, by the Mississippi Railroad Company, under their banking powers, on the said fourth December, 1839, to whose order they were made payable, and were by said company, on the 1st day of April, 1841, indorsed over, transferred, and delivered to the plaintiffs for a valuable consideration.

The defendants, Payne, Green, and Wood, were served with process, and appeared and pleaded the generel issue. They also pleaded

The Circuit Court, on the 11th of November, 1842, sustained the demurrer, and awarded judgment of respondent ouster, but the defendants refusing further to plead, the court thereupon gave judgment upon said demurrer to the second plea for the plaintiffs.

On the same day the cause, being dismissed as to the Mississippi Railroad Company, came on for trial before a jury, on the general issue, against the other defendants, and a special verdict was found, as follows, viz.: "We, the jury, find that defendants, James Payne, Abner E. Green, and Robert Y. Wood, *executed the two several promissory [*306 notes (described in the plaintiff's declaration) on the 4th day of December, 1839, and on the same day delivered the said notes to the Mississippi Railroad Company, to be discounted for and on account of said James Payne; one of which said notes is for the sum of $6,283.95, cember, 1839, to the order of the said Missispayable sixty days after the said 4th of Desippi Railroad Company, at the Merchants' Bank in the city of New Orleans; and the other of the said notes is for the sum of $6,283.95, also payable ninety days after the said 4th of December, 1839, to the order of the said Mississippi Railroad Company, at the Merchants' Bank in the city of New Orleans. That said two notes were discounted by said Mississippi Railroad Company, under their banking powers, on the said 4th of December, 1839, at the instance of the first drawer, said James Payne, and the proceeds thereof were received by him, and the said company thereby became the holder of said notes. That the said notes, or either of them, were not paid at maturity, and were presented for payment at maturity, and protested for nonpayment, and that no part of them, nor any interest, has been paid by said defendants, or either of them. That the Mississippi Railroad Company, on the 1st day of April, 1841, being indebted to the plaintiffs, Baldwin, Vail, and Hufty, transferred and delivered said two several promissory notes to said plaintiffs, for a