
    William Lewis, Trustee of the Mechanics and Traders’ Bank of Cincinnati, v. Robert R. McElvain.
    The act of March 8, 1845, “ to authorize “William Lewis, trustee of the Mechanics and Traders’ Bank of Cincinnati, to commence and prosecute suit against the debtors of said bank,” is a valid and constitutional act.
    Under said act, suits may be-prosecuted at law against a debtor of said association, although such debtor is a stockholder in the association.
    This is a writ of error, directed to the court of common pleas of Hamilton county.'
    The original action was assumpsit, brought by the plaintiff *as trustee, etc., against the defendant, upon a promissory note, made by .the defendant for twenty dollars, and discounted at the Mechanics and Traders’ Bank of Cincinnati. The declaration is special.
    To this declaration the defendant plehded, issues were joined* the case submitted to a jury, and a verdict returned for defendant, upon which judgment was entered.
    On the trial of the case a bill of exceptions was allowed, which is as follows:
    Be it remembered, that on the trial of this cause, the plaintiff put in evidence the promissory note of defendant, payable to the order of Wm. Surtees. It was also proved that Surtees, at the time said note was executed, was cashier of said Mechanics and Traders’ Bank, and an authorized officer thereof; that said note was discounted by the said Mechanics and Traders’ Bank, from the funds .thereof and’for its use; and that the proceeds thereof, to wit, nineteen and 50-100 dollars were paid to defendant, and that the same was discounted for the term of ninety days. It was also in evidence that said note, with other assets of the bank, was, on July 29, 1844, assigned by general assignment, but not indorsed by Surtees as cashier, by the stockholders, at a general meeting, to William Lewis, the plaintiff, as trustee for the payment of debts of the institution, for the benefit of the concern, and that said debts exceeded the assets between $25,000 and $30,000. Plaintiff also gave in evidence a special act of the general assembly of the State of Ohio, authorizing him to sue as such trustee, the printed act being, by consent of counsel, used for this purpose. See 43 Local Laws, 308. A copy is also hereto appended, marked exhibit A. It was in evidence upon the part of the defendant, that the said Mechanics and Traders’ Bank of Cincinnati was not a bank incorporated by any law of this state; but that the same was an association of individuals formed for the purpose of doing'business under the name and style aforesaid; that the stock '^thereof was divided into shares of ten dollars each; that defendant was a stockholder or partner therein to the extent of three shares, being thirty dollars, and that he had paid said stock or shares in full. That said bank loaned money, in small sums, to mechanics and business men of limited means. That in October and November, 1838, and in Januaiy, 1839, as also in January, 1840, said bank issued certificates of deposit, of which one of the latter dates, as a specimen of such issue, was put in evidence as follows: “ This certifies that D. A. James has deposited in the Mechanics and Traders’ Bank of Cincinnati -two dollars, payable to his order hereon in current bank notes, on return of this certificate.” Signed by the president and cashier, and indorsed in blank. Defendant also proved that said certificates of deposit circulated in the community as and for money; and were received and passed as money'; that they were received at the counter of said bank, and that they wore paid out there in November and December, 1838, in January, 1839, as money, and also in January, 1810. It was proved by plaintiff, on cross-examination, that said certificates had alwaj's been redeemed on presentation; that a fund certain had been set apart for their redemption ; and that those still in circulation were at par with the city banks; and that said certificates wore paid out and received as money by said bank from December, 1838, until the assignment in 1844, in the ordinary business of the institution. But there was no evidence that any other issues were mado than those previously mentioned in the years 1838,1839, and 1840. And the testimony being closed, the plaintiff, by his counsel, asked the court to charge the jury, “That William Lewis, as trustee of the Mechanics and Traders’ Bank of Cincinnati, may have and sustain an action at Jaw against one who was a stockholder in said bank, upon a note given by such'stockholder, for money borrowed of the bank, notwithstanding he was a partner in the association so named.” Which charge the court refused; but instructed the jury that if they should find that the defendant was *a stockholder or partner at tho time the note was given, and that it was given for a loan of the partnership funds; and that no settlement of the concerns of said association had been made, and no settlement between them and the defendant, the plaintiff could not recover at law, but would be bound to resort to a court of chancery. That if the note was for a balance struck, or amount found due between defendant and association on settlement, the remedy would be at law.
    And the said 'plaintiff, by his counsel, further asked the court to chai’ge the jury, thatprior to the passage of the act of 1839, the loaning of money and issuing certificates of deposit, payable to order, and indorsed in blank, though designed, calculated, and intended to circulate as money, did not constitute the Mechanics and Traders’ Bank an unathorized bank within the provisions of the act of 1816;” which charge the court refused to give, as stated above, in the language therein set forth; but instructed the jury, that under the act of 1816, and prior to the act of 1839, the issuing of real certificates of deposit was not illegal and would not make tho association an unauthorized bank. But if they found from the evidence that the paper issued by the Mechanics and Traders’ Bank was not bona fide certificates of deposit, but that the paper was merely put in that form for tho purpose of enabling them to circuíate it as money or currency, that the bank calling it a certificate of deposit would not make it such, but that it would have the effect of, and be a “ bill,” within the letter and spirit of the law of 1816, if they were issued to circulate and be redeemed as such, no matter what tho form.
    And the said plaintiff, by his counsel, further asked the court to chai’ge the jury, “ That after the passage of tho act of 1839, the Mechanics and Traders’ Bank of Cincinnati only became an unauthorized bank, within the provision of the act of 1816, upon tho issue thereafter of certificates of deposit, as prohibited by the said act of 1839 ;” which charge the court refused to give in the language specified *above; but instructed the jury, as above, that a real certificate of deposit was not illegal under the law of 1816, although intended to circulate as money or currency, and that such issuing, prior to the taking effect of the act of 1839, was not illegal, but if the paper that they issued was not certificates of money really deposited, but a mere shift and device for putting them in circulation, that they would come within the provisions of the act of 1816, as above stated.
    And the plaintiff further asked the court to charge the jury, “ That if the jury find that the said bank did issue such certificate of deposit for circulation, prior to the passage of the act of 1839, but did not make any such issue after the passage of said act, and before the time that the indebtedness of the defendant accrued, that the evidence of such indebtedness is not void under the acts of 1816 and 1824;” which charge, in the language therein stated, the court refused to give; but in addition thereto, and as a part thereof, instructed the jury in substance as above given.
    And the said plaintiff further asked the court to charge the jury, “That section 4 of the act of 1845 (as set forth in exhibit A), enabling Wm. Lewis to sue, as trustee of the Mechanics and Traders’ Bank, for the benefit of the creditors and stockholders, and prohibiting the defense that such institution was an unauthorized bank, and that its contracts are void from public policy, does not impair any legally acquired or existing right of any debtor of said Mechanics and Traders’ Bank. That the legislature had full power to enact it, and that it is in full force and effect; and, further, that this suit is not for the benefit of said Mechanics and Traders’ Bank.” Which said charge the court refused to give; but instructed the jury, that thej1' should find that the Mechanics and Traders’ Bank, at the time this note was given by the defendant, was an unauthorized bank, that no recovery could be had on it. That so far as the legislature had undertaken to give legal validity to notes and other instruments, which before the passage of said act were void, the act itself was a nullity. And this note, if void in the *hands of the Mechanics and Traders’ Bank, would bo equally so in the hands of Lewis, their-trustee, notwithstanding the passage of said act.
    To all which refusals of the court to charge as prayed for, and each of them, and to all and each of the charges so given as aforesaid by the court, the plaintiff, by his counsel, excepts, and prays this, his bill of exceptions, may be signed and sealed by the court, which is done accordingly.
    
      Upon this record nine errors have been assigned, but all are substantially embraced in those two—that the court erred in refusing to instruct the jury as requested by the plaintiff, and also in the instructions actually given, as set forth in the bill of exceptions.
    Brough & Zinn and Charles Fox, for plaintiff in error.
    Taet, Key & Mallon, for defendant in error.
   Hitohcock, J.

It will be seen by the bill of exceptions that the Mechanics and Traders’ Bank of Cincinnati was an unauthorized banking company, if not within the act of 1816, prohibiting “ the issuing and circulating unauthorized bank paper,” still within the law further to amend that act, passed on January 27, 1839. Swan’s Stat. 140. Whether, by its action, it was brought within the former law, is not very material, so long as it is within the latter. By section 9 of the act of 1816, all bonds, notes, bills, or contracts, negotiable or payable at such bank, or made for the purpose of being discounted at such bank, are declared to be void. This law was in force at the time the note now in suit was made, and the note was made for the purpose of being discounted, and was actually discounted at the Mechanics and Traders’ Bank. For this reason it is insisted by defendant’s counsel that it is void, and that no action can be sustained upon it. If the question depended alone upon the law of 1816, the position assumed by counsel for defendant would not bo controverted.

*But on March 8, 1845, the general assembly passed an act entitled an act “ to authorize William Lewis, trustee of the Mechanics and Traders’ Bank of Cincinnati, to commence and prosecute suits against the debtors of said bank.” 43 Ohio L. 308.

In the preamble of the act it is recited, that certain persons associated together in the year 1838, by the name of the Mechanics and Traders’ Bank of Cincinnati, for the purpose of carrying on business according to the articles of the association, in the city of Cincinnati, and that many persons are indebted to the association by bonds, bills, notes, etc., and that owing to the large number of the associates, and to doubts entertained as to the right of said associates to recover the debts so due, “ whereby the association is unable to meet its own obligations, and whereas, said Mechanics and Traders’ Bank has ceased to transact business, and for the purpose of winding up its affairs and liquidating its debts, has assigned its assets to Wm. Lewis as trustee, for the benefit of its creditors and stockholders,” etc.

In section 1, authority is given to Lewis, as such trustee, in his own name to commence and prosecute all necessary suits in law and chancery against any and all persons, etc., who are indebted to said bank, and to receive in such suits the amount which may be found due and owing; and it is further provided, “that suits may. in like manner, be prosecuted upon any notes, bonds, or bills, and all parties thereto, which may have been payable, or negotiated to said institution or any authorized officer thereof, and also against all delinquent stockholders of said institution, for the balance due upon their subscription for stock in such company.”

By section 4 of the act, it is declared that “ it shall not be lawful for the defendant or defendants ” in such suit, “ to plead, set up, or insist upon, in defense, that the notes, bonds, bills, or other written evidences of such indebtedness, are void on account of being contracts against, or in Violation of any statute law of this state, or on account of their being contrary to public policy.”

There can be no doubt of the intention of the legislature in the enactment of this law ; and if within the scope of their constitutional power, it is a law which can be enforced, being in accordance with the strict principles of justice. It provides a mode by which an insolvent association may be enabled, in part, to pay its own debts, by authorizing it to collect debts due to it. It is, in fact, a law peculiarly i'or the benefit of the creditors of the institution. And it requires nothing from the debtors, which they would refuse to perform, if they had a due and proper sense of moral obligation. For, although under the law of 1816 contracts made with similar institutions are declared to be void; still there is nothing immoral in such contracts, although they were supposed to be inconsistent with public policy.

It is urged, however, that this law is unconstitutional and void, inasmuch as the effect of it is to give validity to contracts which were, by the law in force when they were entered into, null and void. There was a time when it was dangerous for the courts of this state to inquire as to the constitutionality of legislative enactments. And the journals of our legislature will show that at least two judges have been impeached for this high offense. But we have fallen upon different times. Supremacy seems to bo claimed for the court, instead of the general assembly. And scarce a case has been presented to us, dependent upon legislative enactments, in which it is not claimed that the constitution has been violated. I am no advocate of legislative supremacy, nor do I doubt the power and the duty of this court, in a proper case, to declare a law unconstitutional. I do not believe, however, that the general assembly will over pass a law with the intention of violating the constitution. Nor can I ever consent to declare one of their acts void on this account, unless it is palpably both against the letter and spirit of that instrument. So long as there is any, the least doubt upon the subject, the law must be enforced.

*Now, what provision of the constitution of Ohio is violated by this law? Certainly it violates no contract. Its very object is, that contracts may be enforced. But it is said to be a retrospective law, or a law retrospective in its character. I find nothing in the constitution prohibiting the enactment of retrospective laws. The enactment of ex post facto laws is prohibited, not retrospective. Such laws may be impolitic, but with this, as a judgo, I have nothing to do. This law interferes with no vested rights. It merely compels men to do justice. Still, it is my duty to say that I have doubts of the propriety of enforcing laws similar to this, but have at length yielded those doubts in a ease decided at the present term of the court. I allude to the case of Johnson v. Bentley et al.

That was a suit brought against the defendants, charging them, as stockholders of an unauthorized bank, to receive the amount of certain bills and notes put in circulation by the company as money, which notes and bills were put in circulation previous to March, 1840. It will be remembered that, by section 23 of the act of January 28,1824, “ regulating judicial proceedings where banks and bankers are parties,” etc., it is provided “ that no action shall be brought upon any notes or bills hereafter issued by any bank, banker, or bankers, and intended for circulation;” but all such notes and bills “shall be held and taken in all courts as absolutely void.” This applies to unincorporated banks alone. The phraseology of this section is somewhat different from that used in section 9, before cited, of the act of 1816, which declares notes or bonds given for the purpose of being discounted at an unauthorized bank null and void, but there is no difference in substance and effect. The act of 1824 declares that all notes and bills put in circulation by such bank or banker “shall be held and taken in all courts as absolutely void.” If a note or bill is to be held absolutely void by all courts, is it not void everywhere? There certainly is no other tribunal which can enforce its payment. And well may it be *said that a contract is void which can not be enforced. The section further declares that no suit or action shall be brought upon such note or bill. Now, taking these two provisions of law together, and I can perceive no difference between a note or bill given to or issued by an authorized bank—all were void.

By the act of March 23, 1840, this provision of the act of 1824 was repealed. Swan’s Stat. 141. And the court held in the before-cited ease of Johnson v. Bentley et al., that inasmuch as this provision was repealed, the bills and notes were left as under the law of 1816, and that although void by the law of 1824, still that the plaintiffs could recover—in other words, that the repeal of the law of 1824 set up or gave validity to notes and bills which were uncollectible when issued. Such, at least, is the effect of the decision.

Having so held, I can not see with what propriety we can refuse to enforce the law of 1845, authorizing. Lewis to sue as trustee. The only difference, as it seems to me, is, that this law operates in favor of those who have acted as unauthorized bankers, or rather in favor of their creditors, while the other, in its effects, operates against them. Apply the principle to the case now under consideration, and see the operation. At the time the Mechanics and Traders’ Bank issued their bills for circulation, those bills wore void under the act of 1824. In 1840 the general assembly repealed this provision in the act of 1824; and we say, according to the decision in Johnson v. Bentley et al., that the members of this association are liable jointly and severally for the whole amount of bills which they have put in circulation. The same general assembly, by another Jaw passed in 1845, authorizes this association, through a trustee, to sue for and collect debts due to it, and prohibits the debtors from insisting, in defense, that the written evidences of indebtedness were void. Shall we say this latter enactment is void ? It seems to me we can not, unless we disregard the oath that is upon us to administer equal ^justice to all. Admitting the validity of this act of 1845, a question is made whether, inasmuch as tho defendant in error was a member of this association, or partnership, an action at law ean be sustained against him by tho trustee. The court of common pleas held that such action could not be sustained, and so charged tho jury. This is ono of the errors complained of.

There is no doubt of the rule upon this point, as it exists at common law. Ordinarily, partners can not, in their partnership name, sue a copartner for a debt due the firm, in a court of law, but must resort to chancery. But wo suppose that so far as this association is concerned, that this rule is changed by the act of 1845, before referred to, and that tho effect of that act is to authorize the trustee to prosecute suits against all the debtors of the association, whether stockholders or not, in the same manner as if the association had been incorporated, and its concerns had been placed in like manner, in the hands of a trustee. To adopt the construction contended for by defendant’s counsel, would almost, if not entirely, defeat the objects of the law. If the law is sustained, and we think it must be, it should be so construed as to effect, not to defeat those objects. -And if so construed, it may operate to afford some relief to the creditors of this institution, while it can do no injustice to its debtors.

UjDon full examination, we are of opinion that the court of common pleas erred in deciding that the act of 1845 was void, and in holding that a suit at law could not be sustained to enforce the collection of a debt due from a member of the association.

For these errors, without examining the others assigned, tho judgment of the court of common pleas is reversed, with costs; and the case remanded for further proceedings  