The power to issue bank-notes by an incorporated bank must always be a question of statute. In the case of a private banker it must always be an inquiry as to a statutory prohibition. As to a corporation it is a question of grant of power, although the want of a grant is to be inferred either from a failure to grant the power or a prohibition against its exercise. Certificates of deposit are not forbiddenby the prohibition of the issuance of bank-notes,1 nor a time certificate of deposit forbidden by a prohibition directed against post-notes.2 A bank must have an existence in order to make a contract, and hence the bills of an unconstitutional bank are void.3 A banking corporation with general banking powers may issue bank-notes or post-notes,4 but the power to receive deposits and give acknowledgments therefor does not authorize the issuance of certificates to circulate as money.5 An insurance company,6 or a canal company,7 or a loan com of bills of credit.16 Two state decisions very properly held otherwise.17

1 Talladega Ins. Co. v. Landers, 43 Ala. 115; Hargroves v. Chambers, 30 Ga. 580. Compare Mum ford v. American Life Ins. Co., 4 N. Y. 463. But see In re Horner, 10 Leigh, 700.

2 See notes 5 and 6 to Sec. 125, ante. But compare National Life Ins. Co. v. Beebe, 7 N. Y. 364; Weed v. Snow, 3 McLean, 265.

3 Skinner v. Doming, 2 Ind. 558. See Sec. 30, ante. While the bills might in this case be considered worthless, yet a remedy would exist against the corporators or those conducting the business. See Sec. 30, ante.

4 Campbell v. Mississippi Bank, 6 How. (Miss.) 625. The power to issue notes is one of the ordinary functions of a bank; but if post-notes are forbidden they are void when issued. Swift v. Biers, 3 Denio, 70; Leavitt v. Blatchford, 3 N. Y. 19. So as to a post-dated draft. Oneida Bank v. Ontario Bank. 21 N. Y. 490.

5 Bliss v. Anderson, 31 Ala. 612. Compare People v. River Raisin Co., 12 Mich. 389.

6 In re Ohio Life Ins. Co., 9 Ohio, 291.

7Lawler v. Walker, 18 Ohio, 151. But its bonds, although negotiable, pany8 cannot issue bills, where such power is either not granted or forbidden to all except banks; but an army sutler seems to be able to issue currency in spite of law. But this might be called another case of the "war power," by one who had a sense of humor. At any rate he does not fall within the terms of the prohibition.9 Drafts issued by a bank to circulate as money are not unlawful unless expressly forbidden by a valid law;10 but under a prohibition against bills to circulate as money, which are not made payable in gold or silver, certificates payable in current bank-bills, and of course drafts or notes to circulate as money, payable in bills, are forbidden.11 If forbidden to issue bills not for immediate circulation, a bank which issues its notes upon the understanding that they are not to be returned for a period violates the prohibition.12 Municipal corporations have no power to issue bills to circulate as money, where all corporations except banking corporations are forbidden to do so, and it would seem even if there were no such prohibition l3 The state may incorporate a state bank and own all the stock14 and pledge the faith of the state to redeem the notes;15 and yet, as we are informed by the bench that decided the Dred Scott case, would not violate the prohibition of the Federal Constitution directed against the issuance by a state are not forbidden. McMasters v. Reed, 1 Grant Cas. 36.

8 Southern Loan Co. v. Morris, 2 Pa 175 (the bill was negotiable and unlawful).

9 Weston v. Myers, 33 I11. 424 (the documents were due-bills purporting to call for so much money).

10 King v. Dedham Bank, 15 Mass. 447; State v. Mathews, 48 N. C. 451. But see as to checks, Utica Ins. Co. v. Cadwell, 3 Wend. 296.

11 Darden v. Banks, 21 Ga. 297.

12 Commonwealth v. Bank of Mut. Redemption, 86 Mass. 1.

13 Thomas v. City of Richmond, 12

Wall. 349; Cothran v. City of Rome, 77 Ga. 582. Contra, Allegheny City v. McClurken, 14 Pa. 81; Devely v. Cedar Falls, 27 Iowa, 227.

14 Lampton v. Commonwealth Bank, 2 Litt. 300; Briscoe v. Bank of Commonwealth, 11 Pet. 257; Woodruff v. Trapnall, 10 How. 190. Contra, Bank of Commonwealth v. Clark, 4 Mo. 59; Linn v. State Bank, 2 111. 87. These last two cases were right. See Sec. 16, ante, note 5.

15Darrington v. State Bank, 13 How. 12. This is perhaps the wildest decision ever made by that court.