In the Matter of Oliver Lee & Co's Bank. itself a provision which saved and reserved to the Legislature the right to withdraw the franchises granted or to modify them at its pleasure. But it is argued that they could not be revoked or altered by a change of the Constitution, even if it could be done by the Legislature. We have seen that the Supreme Court of the United States has held that a State constitutional provision, acting prejudicially upon a contract, is a law passed by a State impairing its obligation, within the inhibition of the Federal Constitution. This is upon the ground that the substance of the provision is, that the State shall not interfere in any way with the rights which citizens have acquired by contract. It may be said with equal reason, and without any greater departure from the strict meaning of language, that the reservation contained in the laws under which corporations are formed, looks to a revocation of the franchises by any legal act which shall possess the force of law, though not strictly an act of legislation. But it is unnecessary to rely upon this answer to the argument. The act of 1849, under which this proceeding was commenced, adds the legislative sanction-if any were necessary to the mandate of the Constitution; for it declares the liability of the stockholders to the same extent and under the same circumstances. The right reserved in the general banking law has therefore been exercised in the precise manner indicated by its language. It is argued that because the act left it to the election of the stockholders to determine whether they would embark in the business upon the footing of personal liability, or upon that of corporate liability only, and they declared by the articles that they would not incur any individual responsibility, a private contract was established which was beyond the influence of the clause allowing a modification or repeal of the act. It is not in the power of the associates, by any stipulations inserted in their articles of association, to limit the power of the Legislature under the reservation contained in the act. These associations originally had the power to issue negotiable paper, payable on time, upon proper occasion, provided it was not of a character In the Matter of Oliver Lee & Co's Bank. to circulate as money. In 1840, the Legislature passed an act making it unlawful to issue any such paper, unless it should be payable on demand. Suppose the articles had expressly provided that the associations should have the right to issue such time paper, no one, I presume, could doubt but that the act would effectually take away that power, though it was allowed by express stipulation in the articles. ६ It might be safely admitted that neither the people in their Constitution nor the Legislature could convert a debt which a the time it was contracted bound no one but the corporation, into the private debt of the stockholders. But this has not been attempted. None of the debts owing before the Constitution took effect, nor any of those which were contracted within three years afterwards, are charged upon the stockholders. The power of the corporation to contract at all was a corporate franchise, and subject to the control of the Legislature by force of the reservation. They might wholly annihilate the power to contract by repealing the act, or continue it, subject to such conditions or restrictions as they saw fit to impose. Where a party has a discretion to prohibit an act altogether if he considers it best for his own interest, he is never bound absolutely and unconditionally to forbid it. He may allow it on such conditions as he supposes may be consistent with his interests. What the Legislature did was, to continue the power to contract upon the corporate credit alone, on condition that the association would relinquish the faculty of issuing a paper currency after January 1, 1850; and to declare that if it should elect to remain a bank of issue after that day, it should not incur debts on the sole credit of the corporation; but it might in that event continue to make contracts after that day, upon the corporate credit, with a limited personal responsibility superadded. The association elected to retain the faculty of issuing bank notes, and thereby voluntarily assumed, so far as it was competent to do it, in behalf of its stockholders, the individual liability attached to its contracts by the Constitution and the act of 1849. But it is said that the corporation could not, by any act or omission of its own, implicate its stockholders in a liability In the Matter of Oliver Lee & Co's Bank. which they had not consented to assume, and which, on the contrary, they had declared they would not incur. But they had voluntarily consented to become stockholders upon the conditions held out by the general banking law. One of these conditions was that the Legislature might amend and alter the act, and in that way change and modify the constitution of the corporation. A change under this reservation to alter might render their investment more or less profitable, and their position more or less hazardous. Whatever peril it entailed they consented to assume. Stockholders cannot put in the plea non haec in fœdera veni; for, although they have not by a direct act become parties to the contracts of the association, they have conferred powers upon others to contract, to a limited extent, in their behalf. In the first place, they have empowered the corporation to affect their individual interests to the extent of the corporate authority, and then they have agreed that the corporate power may be changed by the Legislature. That change might operate by way of restriction or extension. In fact it was materially enlarged. Originally the acts of the corporation could only affect the shareholders to the amount of their contributions to the capital stock, but by the enlargement of its powers it was enabled to make contracts which might call for a further contribution of an equal amount. The superadded liability is as clearly within their contract as that incurred in the first instance; for it has been incurred, according to the terms of an arrangement to which they were parties. In the two cases referred to from Kernan's Reports, the defendants insisted that they had never contracted to embark their money in the enterprises which were being actually prosecuted by the directors; but the answer which this court gave was that they had voluntarily embarked their credit in corporations, whose powers were liable to be enlarged by the Legislature. It is further argued that the appellants, supposing them to hold only the minor part of the stock of the association, had no means of embracing the alternative held out by the constitutional provision and the act of 1849, of abandoning the business of issuing bank notes. This may be true; but it is the same In the Matter of Oliver Lee & Co's Bank. disability which attaches to every stockholder in a corporation, who cannot control a majority of the stock. The direction may do acts which he wholly disapproves, but, as many persons have found to their cost, he is utterly powerless to arrest the proceedings of the governing authority. Whether the power which is exercised originally belonged to the corporation or has been superimposed by competent authority, his liability for its acts is of the same character. The power of a State Legislature to impose personal liability upon the stockholders of a corporation for debts created subsequently to the passage of the act prescribing the liability, has been affirmed by the Supreme Court of Maine. (Stanley v. Stanley, 13 Shepley, 191.) A manufacturing company was chartered in 1833. There was a prior act passed in 1831, declaring that the Legislature might alter or repeal any act of incorporation. In 1839 an act was passed making the stockholders in corporations chartered after 1831, personally liable for debts contracted after the act of 1839. The company incurred a debt in 1841, and the plaintiff subsequently purchased stock in the corporation, and his property was taken on an execution against the company; that being the mode, in that State, of enforcing the personal liability of stockholders. In an action of trespass against the sheriff, the court held the plaintiff liable for the debt, and gave judgment for the defendant. They said "if the corporators were not satisfied with their individual liabilities so created, they had it in their power to cease creating them." My conclusion is that the provision in the Constitution and in the act of 1849, which imposed upon the stockholders of banks the personal liability which was enforced by the proceedings under review, did not impair the obligation of any contract to which the appellants were parties. If this view is concurred in by my brethren, the order appealed from must be affirmed. SELDEN and BACON, Js., expressed no opinion; all the other judges concurring, Judgment affirmed. Ogden v. Peters. OGDEN v. PETERS et al. The solvency of a debtor, in his own estimation or in fact, does not invalidate his assignment of all or any portion of his property for the payment of his debts. An intention to hinder or delay creditors is fraudulent and avoids the assignment, but such intention cannot be inferred from the solvency any more than the insolvency of the debtor. A direction in the assignment to the trustee "to convert the assigned property into cash as soon as the same may conveniently and properly be done" is supererogatory and harmless. APPEAL from the Supreme Court. Action to set aside an assignment. The trial was before Mr. Justice EMOTT, without jury. He found these facts: The defendant Peters, being in fact insolvent to a large amount, but supposing that his property was sufficient to pay his debts, made, on the 29th September, 1849, a general assignment of all his property and choses in action to the defendants Doughty and Brock, in trust "to sell the said assigned and conveyed property and effects, to collect the said choses in action, evidences of debt, &c., and to convert the whole of the said assigned premises into cash as soon as the same may conveniently and properly be done," and to apply the proceeds for the payment of his debts according to a declared order of preference. The judge found that the assignment was not fraudulent in fact and determined as matter of law that it was valid on its face. He ordered judgment dismissing the complaint, which having been affirmed at general term in the second district, the plaintiff appealed to this court. Gilbert Dean, for the appellant. John K. Porter, for the respondent. COMSTOCK, Ch. J. The assignment is not void for the reason merely that it contains a provision directing the assignee to |