
    Davis B. Lawler and others v. Andrew G. Burt.
    The liability imposed by section 11 of the act “ to prohibit the issuing and circulation of unauthorized bank paper,” passed January 27,1816, was not a liability in contract, but one in tort.
    
    Notes issued by the Cincinnati and Whitewater Canal Company, in 1840, to its creditors, in a form to circulate as money, while said act of 1816, as amended by the act of March 18, 1839, was in force, did not make stockholders of that company, who had, as its directors, ordered their issue, liable as maicera of the notes.
    The liability imposed by said act upon the stockholders, etc., to pay the amount of said notes, is in the nature of a penalty for issuing the notes in a form,, and with a design to be circulated as money; and a right of action thereon would be barred in four years.
    The repeal, in 1845, of the amendatory act of March 18, 1839, terminated the right of action for such penalty.
    The case of Lawler et al. v. Walker et al., 18 Ohio, 151, overruled.
    This is a petition in error to reverse the judgment of the Superior Court of Cincinnati.
    *The defendants in the court below, the present plaintiffs in error, were, with others, stockholders and directors of the Cincinnati and Whitewater Canal Company, a corporation chartered April 1,1837, by the general assembly of Ohio, to construct a canal from Cincinnati to the east boundary line of the State of Indiana. The company was not authorized by its charter, or any other law of the state, to exercise the functions of a bank.
    In the year 1840, the company becoming embarrassed in constructing the canal, the plaintiffs in error and others, as directors of the company, and on its behalf, caused a large amount of the notes of the company, payable twelve months after date to order, to be engraved and struck by a bank-note engraver, on bank-note paper, and in the similitude of bank-notes, and to be signed by the president and secretary of the company.
    The names of the plaintiffs in error nowhere appear on the notes.
    None of the notes were of a higher denomination than five dollars, and a large proportion of them were of a lower denomination.
    These notes, thus calculated to circulate as money, were used by the company and its directors for no other purpose than in payment of the debts of the company.
    
      The president of the company, without the knowledge of the directors, paid the engraver’s charges with the notes.
    The notes were always made payable to the order of the person to whom they were delivered. These persons were generally, the-contractors on the canal, who, receiving them in sheets,- each containing several notes, at the office of the company, sometimes indorsed them there. The indorsements were in blank. Many of the notes, from their similitude to bank-notes, were circulated without indorsement.
    The notes, thus issued at various times during the year 1840, passed and circulated as money. The plaintiffs in error knowing-this fact, and still being directors of the company, continued, on its-behalf, to pay out these notes.
    It is not claimed that the company ever did any banking business-otherwise than as stated.
    *The plaintiffs in error received no compensation for their-services on behalf of the company, and derived no profit from their connection with it.
    The company acknowledges its liability on the notes, and has taken them up, as far as it was able, since the plaintiffs in error-ceased to be directors of the company.
    Burt, the defendant in error, became the holder of these notes-to the amount of two hundred and thirty-one dollars, and in March, 1855, brought an action in the Superior Court of Cincinnati against the plaintiffs in error, as stockholders, to recover the amount of the-notes so held by him, with interest from July 15, 1841.
    The right to recover was placed upon the notes issued, and upon-the first section of the act of March 18,1839, “further to amend-the act entitled 1 an act to prohibit the issuing and circulating unauthorized bank paper,’” passed January 27,1816; and upon the-11th, 12th, 13th, and 14th sections of the act last mentioned.
    The first section of the act of March 18,1839, is as follows:'
    “Seo. 1. That every company or association, except a bank incorporated by a law of this state, that shall lend notes, bonds, bills, checks, orders, certificates of deposit, or any other evidence of debt, and shall issue, by their officer or officers, agents, or any other' person or persons, notes, bonds, bills, checks, orders, certificates of deposit, or other evidence of debt, payable to order and indorsed in blank, or payable to bearer, designed, calculated, or intended to circulate as money; or shall issue, put in circulation, or pay out for debts or property, with or without any such loan, any such notes, bonds,. bills, checks, orders, certificates of deposit, or other evidence of •debt, or use other shift or device whereby any such notes, bonds, bills, checks, orders, certificates of deposit, or other evidence of ■debt, so issued, put in circulation, or paid out by said company or association, or on their behalf, pass, or circulate by delivery, shall -be taken and deemed an unauthorized bank within the meaning of the act to which this is an amendment, entitled, 1 an act to prohibit the issuing and circulating of unauthorized bank paper,’ passed January 27, 1816.” Swan’s Stat. (ed. 1841,) 140.
    The following are the provisions of the sections of the act of January 27, 1816 (1 Chase, 904), referred to :
    “ Seo. 11. That every stockholder, shareholder, or partner, hereafter interested in any such bank, shall be jointly and severally unswerable, in their ^individual capacity, for the whole amount of the bills, bonds, notes, and contracts of such bank, here.after executed, any agreement, shift, or device in such bond, bill, note, or contract, or otherwise, to the contraiy notwithstanding.
    “ Seo. 12. That the holder of any bond, bill, note, or contract of •such bank, may institute suit.and recover judgment thereon, against any part or the whole of the persons who were interested in such bank at the date of such bond, bill, note, or contract, or who became interested in such bank at any time between that and the commencement of said suit.
    “ Sec. 13. That in such suit, it shall be sufficient for the plaintiff to set forth, in substance, that he is the holder of such bond, note, bill, or contract; that the defendants were interested in said bank .at the date of such bond, bill, note, or contract, or subsequently thereto, and that it remains unpaid; it shall be unnecessary to show in the declarations or pleadings, and unnecessary to prove on the •trial, that a demand was made of the contents of such bond, bill, note, or contract, at the time and place when and where it purports to be payable, but the persons aforesaid shall be liable without such demand.
    “Seo. 14. That if during the progress or on the trial of such suit, it shall appear that any one or more of the defendants are not liable to such action under this act, it .shall not prevent the suit from proceeding as to any other defendant, but judgment shall be .given for the full amount of such bond, bill, note, or contract, against .any one or more of the defendants, who may appear to be liable.” Swan’s Stat. (ed. 1841) 137.
    In 1845, the legislature repealed the law of 1839, and all of the law of 1816 except the four sections already quoted. Swan’s Rev. 'Stat. 110.
    
      The plaintiffs in error interposed two defenses to the action of the court below:
    1. That they were not liable as stockholders or otherwise; that the company alone was liable.
    2. That the cause of action did not accrue to Burt within four years next before the commencement thereof.
    The case was submitted to the court upon the petition, answer, and1 agreed statement of facts, the substance of which has been given above, and the finding and judgment was in favor of Burt.
    To reverse this judgment is the object of this proceeding in error..
    
      Groesbeclc & Thompson, for plaintiffs in error, argued:
    1. That there is no common-law liability of plaintiffs in error, and that it was so held in Lawler et al. v. Walker et al., 18 Ohio, 157.
    *2. That the liability can not be ex contractu, but,
    3. Statutory, and in the nature of a penalty; and that, therefore,, the action was barred by the statute of limitations.
    
      Collins & Serrón, for defendant in error:
    Our propositions are:
    1. Defendants are liable on those notes ex contractu by the principles of the common law.
    2. Defendants are made liable on those notes by the statutes of Ohio, and the statutes referred to clearly show that it is a contract liability.
    3. The statute of limitations will not be extended to cases not strictly within its provisions.
    4. The court will not reverse the former opinion of the law in this case (Lawler et al. v. Walker et al., 18 Ohio, 151), on the prinple of stare decisis.
    
    
      Flamen Ball, for defendant in error,
    made the following points:
    I. The directors, as managers of the corporation, had power to make a canal, but not to make paper money, and the law at that time provided that if they should step outside of their charter and do the latter, they should be jointly and severally bound on such contracts for the payment of the money to the holders.
    This requirement of the law was neither a penalty, nor a provision in the nature of a penalty, nor did it create a penal obligation.
    1. A penalty is a punishment imposed by statute for the commission of an act or the omission to perform an act prohibited or commanded by law, 1 Bla. Com. 88; 1 Kent. Com. 467; 2 Hawk. P. C., c. 26, sec. 17; Sedg. on S. & C. Law, 41.
    2. Statutes for- the prevention of fraud, for the suppression of public wrong, or to effect a public good, are not, in a strict sense,, penal acts, although they impose a penalty. Taylor v. United States, 3 How. S. C. 197.
    3. The act of issuing such notes by the directors and officers was-not prohibited by the statute. It merely prescribed the nature and extent of the liability of the parties concerned in making *such contracts, in case the officers of such corporations saw proper to make them. No penalty having been imposed by the-statute for the commission of the act, the act was not prohibited,, and was therefore not void. Lewis v. Welch, 14 N. H. 294; Act of 1816, Swan’s ed. 1841, 137; Act of 1839, Ib. 140.
    4. But no penalty was imposed on the officers of such a corporation for issuing such notes, either by the act of 1816, or by the act of 1839-They are merely held liable by said acts on the contracts so made by them. Lawler v. Walker, 18 Ohio, 151.
    5. A penalty implies a prohibition, although there be no prohibitory words in the statute. Griffith v. Wells, 3 Den. 226; 1 Kent’s Com. 467.
    II. The notes issued by the directors of the company were evidences of debt, and as such were contracts, inuring under the laws in force-at the date of issue, to the benefit of the holder. There was then, immediately on the issuing of the notes a perfect obligation created,, on the one part, to pay according to the forms of law then in force, and on the other to receive payment, which obligation was evidenced; by the written contract so put forth by the parties, and the moment, it was put forth it became an executed contract. Act of March, 1839, Swan’s Stat. (ed. 1841) 140; Act of January, 1816, Ib. 137, secs. 11-14; 1 Doth, on Ob. 77, 91.
    1. Every contract is supposed to be made with reference to the laws, and the laws in force at the time of making the contract, enter into and become part of the contract. Smith v. Parsons, 1 Ohio 238; Bocock v. May, 4 Ib. 334; Nichols v. Poulson, 6 Ib. 309.
    311
    
      2. This court has already decided these notes to be the contracts of the directors. Lawler v. Walker, 18 Ohio, 161.
    3. Where the directors or officers of a company act within the scope of their corporate powers, they are not personally liable at. common law; but when they exceed the authority conferred by their charter, and do acts which injure others, they can. not shield themselves from liability for those acts by claiming protection under the charter. Vose v. Grant, 15 Mass. 519; *Bartholomew v. Bentley, 15 Ohio, 667; Johnson v. Bentley, 16 Ohio, 97; Lawler v. Walker, 18 Ohio, 161; Kearny v. Buttles, 1 Ohio St. 362.
    4. The directors of a corporation are merely its agents to exercise its lawful powers; and when they exceed those powers they act not as corporators, but as individuals, and are liable as individuals. Story on Prom. Notes, sec. 71; Salem Bank v. Gloucester Bank, 17 Mass. 29; Thayer v. Burton, 19 Pick. 516; Angell & A. on Corp., see. 625; Goodloe v. Cincinnati, 4 Ohio, 513.
    III. An executed contract is a vested right. So, also, where a right in the nature of a contract has become vested by force of a statute it becomes an executed contract, and subsequent repeal of the statute can not affect or impair the obligation of the contract. Fletcher v. Peck, 6 Cranch, 87; Butler v. Palmer, 1 Hill, 324; Sedg. on S. & C. Law, 133.
    1. A right of action vested under the original law, can not be «divested by a repealing statute. Bedford v. Shilling, 4 S. & R. 401; Duffield v. Smith, 3 Ib. 590; Butler v. Palmer, 1 Hill, 324; Hitchcock v. Way, 6 Ad. & Ell. 943; Paddon v. Bartlett, 3 Ib. 884.
    2. If the repealing act of 1845 was intended to impair the obligation of those contracts, it is unconstitutional and void. Const. United States, art. 1 see. 10; Const. of Ohio, 1802, art. 7, sec. 16; McCormack v. Alexander, 2 Ohio, 75; Woodward v. D. College, 4 Wheat. 518; Ohio v. Com. Bank Cin., 7 Ohio, 1, 125; The Charles River Bridge case, 11 Pet. 420; Ohio L. I. & Trust Co. v. Debolt, 16 How. 430.
    3. A contract by which a definite, fixed, private right of property is vested, is a contract within the meaning of the constitution, the obligation of which can not be impaired by state legislation. Evans v. Eaton, Pet. C. C. 337; Butler v. Pennsylvania, 10 How. S. C. 416; Quackenbush v. Danks, 1 Den. 130; Sackett v. Andross, 1 Hill, 334.
    IY. There is no difference in law, between án act of a state legislature ■which, destroys the remedy whereby a contract may be *enforced, and an act which impairs the obligation of the •contract. It is just as fatal to the contract for the state legislature to destroy the one as the other.
    1. A remedy given by law for the collection of a debt (which is merely the legal mode of enforcing the obligation of a contract) may be modified, but it can not be altogether taken away by a state legislature, without impairing the obligation of the contract. 1 Kent’s Com. 455; Mason v. Haille, 12 Wheat. 870.
    2. It was never claimed by the Supreme Court of the United :States, that a state law might take away the entire remedy without impairing the obligation of the contract. Mason v. Haille, 12 Wheat. 370; McCracken v. Hayward, 2 How. S. C. 612.
    3. Nor did Mr. C. J. Marshall intend to be so understood. Sturges v. Crowninshield, 4 Wheat. 200.
    4. Nor did the Supreme Court of New York, in the case cited -by Mr. Worthington, in argument, so construe the law; but in that -case they held that inchoate rights only derived by statute, might be lost by the repeal of that statute; but they also expressly held that civil rights perfected far enough to become executed contracts, -could not be affected by a repealing statute. Butler v. Palmer, 1 Hill, 324.
    5. A right of appeal already attached by virtue of a statute, can not be taken away by a repeal of the statute. Grover v. Coon, 1 Comst. 526.
    6. But the legislature have never attempted to repeal the remedial part of the statute of 1816. Vide see. 11, act 1816.
    The case was further argued orally by Y. Worthington, for plaintiffs in error, and by Gollins and Ball, contra.
   Suttliff, J.

From the statement of facts it is evident that the issuing of the notes by the plaintiffs in error in 1840,'brought them within the provisions of those sections of the statutes relied upon by defendant in error. Indeed, from the agreed statement, the whole case must depend upon the question, whether the plaintiffs in error, by force of the statutes referred to, can be held liable in ^contract as the makers of the notes, and thereby bound to ■perform the promises expressed by the notes, as the makers thereof. If liable upon the notes as. makers, the plea of the four years’ limitation,urged by their answer, would be insufficient; but if the liability imposed by the statutes upon plaintiffs in error, is only statutory, or in the nature of a penalty, four years would limit the-right of action, and the plea would be good.

Let us then proceed to an examination of the nature of the liability imposed by the statutes referred to.

It appears in the first place that the notes were issued on the account of the company; that the company had received the consideration for the notes; was indebted to the contractors of the work to the amount, and delivered the notes to them as evidence of such indebtedness.

The Cincinnati and Whitewater Canal Company, by its charter, was authorized to execute notes, under such circumstances, expressive of the amount actually due their creditors; and it was their duty to do so, if unable to pay, and requested by their creditors to give its notes. The consideration, circumstances, and terms of the transactions and notes, show that the company was the maker, the promisor of the notes, and liable, upon their issue for the payment thereof; unless released from such liability by the statute. But upon reading the statute relied upon by defendant in error, it is evident that the law does not exonerate the company from the obligations of its contract expressed by the notes. Indeed, the power to issue notes to its creditors, expressive of the indebtedness of the company to the workmen engaged in constructing the canal, for which the company was incorporated, is so obviously within the provisions of its charter, we apprehend no legislature would feel authorized to attempt to inhibit the exercise of such right by the company, under its charter.

The following is the form of the notes:

“The Cincinnati and Whitewater Canal Company promise to pay three dollars to S. & H. Howard & Co., or order, twelve months after date, for value received, at their office. Cincinnati, 17th June, 1840. “ J. Bonsall, President.
“ Sam’l E. Foote, Secretary.”

*Thc notes were of different denominations, but none larger than five dollars; and were engraved and issued in the likeness of bank-bills. •

According to the terms of the notes, the company appears to be the only promisor, and holden for their payment. If sued upon its indebtedness expressed by the notes, it might be well doubted' whether the company could be permitted to so far take advantage-of its own wrong, as to set up as a defense that it had issued its-notes for such indebtedness in the similitude of bank-notes to circulate as money.

The contract or promise expressed by the notes, and shown by the statement of the case, was one made by the canal company aspromisor to the promisee or indorsee as the other party. This relation and liability of the company as promisor being established by the terms of its promissory notes, and not taken away by the-statutes, must necessarily remain, irrespective of any liability upon individual stockholders by the statute.

In what manner then, are the plaintiffs in error liable upon those-notes ? Is their liability one in contract, or in tort ? If in contract, is it a contract made by themselves; or, is it one imposed: upon them by the statute ? .

A contract is an agreement, upon sufficient consideration, between-two or more persons to do or not to do a particular thing.

Hence, to constitute a valid contract, there must be parties capable to contract; a lawful subject-matter of contract; a sufficient-consideration therefor; and an actual agreement between the parties-to do, or to forbear doing the thing proposed in the agreement.

The rules of construction applicable to written contracts generally, are the rules applicable to the promissory notes under consideration, in determining whether they are in fact the contracts or promises of the plaintiffs in error.

In the first place then, the question proposed is to be determined' by the express provisions of the promissory notes, if those provisions are clear and unambiguous, without resorting to rules of interpretation. In such a case the common-law maxim, “quoties■ *in verbis nulla est ambiguitas ibi nulla expositia contra verba fienda est,” should apply. 2 Saund. 157.

“The first general maxim of interpretation,” says Mr. Vattel, “isr that it is not allowable to interpret what has no need of interpretation. When a deed is worded in clear and precise terms; when its meaning is evident, and tends to no absurd conclusion, there can be no reason for refusing to admit the meaning which such deed naturally presents. To go elsewhere in- search of conjectures in order to restrict or extend it, is but an attempt to evade it.”

Under the application of these leading maxims, we are precluded! from having respect to anything else than the plain and expresa language of the promissory notes to determine whether the plaintiffs in error are, by the terms thereof, the makers and promisors of the notes.

The meaning of those instruments of writing is certainly clear, and tends to no absurd conclusion.

No mention is made of the names of plaintiffs in error, either within, or upon the notes. It is evident from their express terms, .that the notes are expressive of the promises of the company to pay; but contain no intimation of any promise on the part of the plaintiffs in error. And this being so, it is no more admissible to look to the statutes under consideration, to determine whether the notes express a contract or promise on the part of plaintiffs in error, than it would be to call witnesses to prove their meaning to be contrary to the express terms of the notes.

It is obvious, therefore, that the statutes can not be referred to, for the purpose of showing that the plaintiffs in error in fact made the promise in writing expressed by the notes; and that such promise is in writing, and so not subject to a limitation of four years.

Reference can only be had to the statutes under consideration to show that a liability has been imposed upon plaintiffs in error to pay the notes, and to show the nature of that liability.

And here, we apprehend, arises the single question upon which the right of action in this case depends.

*Does the statute, ex vi termini, constitute plaintiffs in error makers or promisors of the notes sued upon ?

It is insisted by counsel for defendant in error, that the liability imposed by the statute is one ex contractu, and not in tort; and that the statutet makes plaintiffs in error liable as makers of the notes.

But in order to show that this liability of plaintiffs in error to pay the amount of the notes arises in contract, instead of in tort, the following conclusions must be arrived at: 1. That there is no need of two parties to make a contract; 2. That there is no need of a consideration, or to have any actual promise or agreement, on the part of the person liable for the payment, expressed by the terms of the contract; and, 3. That it is not necessary that there should be a legal subject-matter of contract.

If the plaintiffs in error were held liable on the notes in contract, and if the amount of the judgment should be' collected from one of them, he would of course be entitled to contribution. If a recovery should be had under section 4 of the act of 1816, of the penalty thereby provided, of four times the amount of one of these notes, against an indorser thereof, after paying such penalty, having possession of the note, he could recover its amount from one or more of the stockholders.

Another embarrassment, which would arise from legalizing the circulation of this unauthorized bank paper, would be found in determining the rights of the indorsers. When would an indorser, other than a stockholder, become liable upon his indorsement? Would his liability attach upon presentation to the company and due notice of dishonor; or would the stockholders, in'that respect, also be regarded as the makers of the notes ?

Many other questions, involving the .parties in doubt, perplexities, and inextricable difficulty would necessarily arise, from construing the liability imposed by the statute upon the stockholders' to be one in contract, and making them liable as makers of the notes. It would legalize this unauthorized currency, and tend, necessarily, to put its market value at a premium, not only over paper legally executed by the same company, but over unauthorized paper generally, and thereby promote its circulation.

*But can it in fact be maintained by any just reasoning, that the legislature has the power to constitute a contract between, two persons, by statute, without their assent, and against their will ? The British Parliment (whose power and jurisdiction Sir Edward Coke pronounced so transcendent and absolute that it could not be confined, either for causes or persons, within any bounds), it is believed, has never assumed the right to enact written contract obligations between subjects of that realm. And surelysuch a power can not be conceded to the legislature of Ohio, by admitting that the statutes under consideration constituted the notes sued upon, the valid written promises of the plaintiffs in ex*ror.

We have carefully considered the arguments of counsel for defendant in error, and the authorities to which they refer, to show that plaintiffs in error, by force of the statutes mentioned, are liable, in contract, as the promisors and makers of the notes in question. But neither their able and ingenious arguments, nor the authorities referred to, at all remove the difficulties we have suggested;. and which prevent our arriving at the conclusion, that the liability imposed upon plaintiffs in error is one arising in contract against them, as the makers and promisors of the notes: Upon this point -of the case, we think the able argument of counsel for plaintiffs in ■ error must remain unanswered.

The high respect we entertain for the distinguished judges then -composing the court, and the strong desire we have to preserve, so far as practicable, a consistency in the decisions of the court, have induced us to very carefully examine and consider the statement and opinion of the court, in the case of Lawler et al. v. Walker et al., 18 Ohio, 151.

The report of that case does not show what instructions, requested •on the trial by defendants’ counsel to be given to the jury, were refused by the court; but the instructions actually given, as appears by the report of the case, and sustained by the Supreme Court on hearing the writ of error, do not perhaps necessarily imply a construction of the statutes under consideration inconsistent with the views which we entertain. There is nothing in the statement of the case indicating a necessity to find *the plaintiffs in error holden upon the promissory notes, in contract, as the promisor or makers thereof, in order to affirm the judgment.

But the opinion expressed by the court in that case, in regard to the nature of the liability imposed by the statute, that the plaintiffs in error were liable in contract as promisors and makers of the notes, is an opinion in which we find ourselves utterly unable to ■concur. We can not regard such to be the legal effect of the statutes under consideration.

,The suggestion, in that opinion,"that the plaintiffs in error may be held liable on the notes in contract as partners, can not be admitted under the facts of this ease. Nor does this fall within that ■class of cases where one acting professedly in the capacity of an .agent, but without authority, thereby makes himself liable as principal.

In this case, the plaintiffs in error are not shown to have acted without authority from their principal, in advising or directing the issue of the notes. The notes were issued in the name of the company, for the existing indebtedness of the company, and, after issued, were acknowledged and recognized by the company as properly issued, in the name of the company.

Again, if the plaintiffs in error had in fact exceeded their authority in the issuing of the notes, so as to become personally liable, they could not even then be made liable, in contract, on the .notes. The notes contain no mention of their names, nor other language necessary to charge the plaintiffs in error, upon the notes, as promisors. “Is seems clear,” says Mr. Justice Story, “that in no case can an agent be sued on the very instrument itself, unless there are apt words therein so to charge him.” Story on Agency, sec. 264.

It appears to us evident, as well from the language of the statutes as from the circumstances of the case, that the object of the legislature in enacting the statutes was to prohibit wrongs, rather than to invade the rights of incorporated companies.

While the beneficent effects of those artificial persons, called bodies politic, or corporations, have been universally felt and acknowledged wherever civilization has made progress, from the ^time of their first establishment in the Roman empire until the present time, still, like all other potent instrumentalities for good, if not properly conducted and controlled, corporations are liable, by abuses, to become productive of serious evils.

The act of January 27,1816, had evidently for its object (as indicated both by the title and the provisions of the act), “to prohibit the issuing and circulating of unauthorized bank paper.” Section 1 of the act imposes a penalty of SI,000 ; other sections impose fines and forfeitures, to be recovered by action of debt or indictment. Bonds, bills, notes, or contracts, executed to the bank or company in violation of this act, are by its provisions declared null and void — clearly indicating the object of the act to be what its title expresses.

The provisions of section 11, “that every stockholder, shareholder, or partner . . . shall be jointly and severally answerable, in their individual capacity, for the whole amount of the bonds, bills, notes, and contracts of such bank, hereafter executed,” can not, consistently with other provisions of the act, be regarded as contemplating anything more than the imposing of a penalty, to the amount of the bond or note issued’, upon the stockholder, shareholder, or partner concerned in issuing the same.

The object of section 11 is evidently the same as that'of section 4, which imposes a penalty of four times the note, bill, etc., upon any one who shall knowingly receive, pass, or circulate such unauthorized bank paper. No effect could be legally given, we apprehend, to either section, further than to regard them as penal statutes, intended to inhibit rather than encourage the issuing and circulating unauthorized bank paper.

This view of the statutes under consideration disposes of the case

The repeal of the statute of March 12, 1839, and the statute of' limitations pleaded in this case, are' alike determinate of the cause of action of defendant in error.

That clause of the statute of limitations relied upon by counsel for plaintiffs in error, to support their plea, provides as follows:

“All other actions not herein enumerated, within four years-after such right of action shall have -accrued, and that whenever-*any,action for a forfeiture or penalty shall-be given and limited by statute, such action shall be commenced within the time limited.”

As this is not an action enumerated in the statute of limitations governing the case, and it is not “ an action for a forfeiture or penalty given and limited by statute,” it falls within the above-recited provision, and was barred in four years after the right of action accrued. The plea of limitations by plaintiffs in error is therefore well pleaded in this case; and the judgment of the Superior Court must be reversed.

Bartley, C. J., and Brinkerhoee, and Scott, JJ., concurred.

Swan, J., dissented.  