vs. Coulon, and Mitchell vs. Smith, cited by Chief Justice Tilghman in the case of Spangler vs. the Commonwealth. (3 Binney's Reports, 536.) I now proceed to answer your questions specifically, under the act of 1805; and I shall state them in your own words.

"1. Can the Saline Bank (being unchartered) sustain suits?'

"Answer. I think not: certainly not as the Saline Bank; for that is a name unknown to the law. And, for the reasons above stated, I do not think that the individuals who compose the company could maintain a suit on their banking contracts, or on any assumpsit, express or implied, growing out of any banking transaction; all such contracts, promises, and undertakings, whether verbal or written, being (to use Lord Kenyon's language) founded in a breach of the law.'

"2. Can a stockholder be sued for a debt due to the bank before a dissolution of the partnership?'

"Answer. For the reason just given, I think not; nor after the dissolution, either.

"3. Is it not usurious to take $10 50 as interest for the forbearance of $1,000 for sixty days?'

"Answer. Certainly it is, in all individuals and companies not expressly authorized so to do by law; which is clearly the case of all unchartered banks.

"4. "The notes given to the bank by its debtors are mere single bills, payable to John Webster sixty days after date, not stating that the debt is to the use of the bank or his agency. Can the interest of the bank, the purposes for which it was given, or the relation between the debtor, (he being a stockholder,) be pleaded to an action brought on that note?'

"Answer. All these circumstances may be pleaded. Illegality of consideration may be pleaded even to a bond which is fair upon its face. (1 Esp. N. P., 223.)

5. The notes emitted by the Saline Bank are made payable to A, accepted by the cashier, and endorsed by A, or the person to whom they are made payable. If the Saline Bank should become insolvent, or refuse to redeem its notes, will not the person so endorsing its notes become liable for the note so endorsed?'

"Answer. I think not; for the whole transaction is illegal, notoriously so; because the notes were notoriously the notes of an unchartered bank; and every one being presumed to know the law, the person who receives such a note is legally apprized of the guilt and invalidity of the paper, and so takes it with notice.

"6. Are the stockholders individually liable for the notes issued?" "Answer. I think that they are not liable, either individually or collectively, for the reason so often repeated: that both the notes issued by the bank, and the discount notes given to it, are contracts founded in a breach of the law, and which, therefore, a court will not lend its aid to enforce.

"This is my opinion of the operation of the act of 1805. Do the late acts (those of the 24th February and 15th November, 1816) produce any change in the operation of the pre-existing laws? I think not; for the latter act merely suspends the operation of that of February; the suspension is expressly limited to that of February; so that it does not touch, by way either of suspension or repeal, any former law. Between the 15th November, 1816, and the 31st August, 1817, (the period of suspension,)

the act of February is a dead letter as to the Saline Bank; but during this period the pre-existing laws remain in full operation, and six days hence the act of February also will be in full operation.

"If it should be said that the act of November is an implied agreement on the part of the legislature that the operations of the bank should go on to the 31st of this month, I answer: 1. That, if the argument be correct, it gives legitimacy to the operations of the bank only between the 16th November, 1816, and the 31st August, 1817; for the previous contracts (I mean those previous to the 16th November) being illegal by virtue of the laws then in force, could not be rendered legal even by the subsequent actual repeal of all the former laws. (1 Comyn on Contracts, pp. 38, 39, on the authority of 1 H. Blackstone's Reports, p. 65.)

"7. You ask the best and most speedy mode of divesting John Webster of his agency over the affairs of the bank.

"Answer. Before this answer reaches you, neither John Webster nor the stockholders can have any further legal agency with the affairs of the bank, for, six days hence, the act of February, 1816, will resume its operation; and any act performed by any member, officer, or agent of the association, after the 31st instant, will be a misdemeanor punishable by fine, and produce a forfeiture of the bank capital.

"Blended with this inquiry as to Mr. Webster, I perceive there is another question by you.

"8. No dividends have been declared for the last twelve or eighteen months; yet the business is thought to be productive. Where a judgment has been obtained by the bank against a stockholder, for a debt due by such stockholder, can he not enjoin such judgment until an account is rendered, and apply the amount of his dividends and stock, or both, as credits to the extinguishment of the said debt?'

"Answer. If the principle which reigns throughout this opinion be correct, the case put can never occur; because no judgment can ever be obtained against a stockholder, the contract on which he is sued being founded in a breach of the law. If there has been such a judgment, and the true nature of this case appears upon the record, I think the judgment may be reversed by appeal; if not, I think the injunction will be until the whole affairs of the bank are wound up.

"9. How are the affairs of the bank to be concluded?'-that is, as I understand you, on what principles are they to be settled?

"Answer. We have seen, that after the 31st day of this month the operations of the bank cannot be continued without misdemeanor and forfeiture: there will then remain for adjustment its floating paper, the notes due to it, and the capital of the bank. I will consider them separately: "1. As to the floating paper, it will fall dead in the hands which may chance to hold it on the 31st of August, without the legal right either to circulate or to recover it. An exception may, perhaps, be made in favor of the notes emitted since the 16th November last, under countenance of the law of that date.

"2. The notes due to the bank will share the same fate, perhaps with the same exception.

"3. As to the banking capital, I believe, on the authority of the cases cited on the first page, that it could not before the court of King's Bench be recovered out of the hands of John Webster; but, from the side-wind authority given to this bank by the act of November last, and from the

interference of the chancellor with the directorship of the bank, I presume that a court of equity would interfere so far as to distribute the capital among the subscribers; but, in taking the account, it surely could not, without the most palpable violation of the principle last above cited from! Comyn and H. Blackstone, look to any engagements anterior to the 16th November last: if it should, the controversy would become a scramble beyond the pale of the law, as to the issue of which any other man is just as well qualified to guess as a lawyer. A debtor to the bank, for example, whose own illegal note was about to be enforced against him, would probably (in violation of the acts of 1805 and February, 1816) collect as much of the dead and illegal paper of the bank as he could, and claim the right of setting it off against his own illegal note; and certainly one would be just as legal as the other. There is only one hypothesis on which it is possible to conceive that this course can be tolerated; and that is, by considering the act of the 16th November, 1816, as operating retrospectively, and giving an implied sanction to all the past transactions of the bank. I do not believe that the legislature intended this; it was an awkward plaster, awkwardly applied to a desperate case, without taking time to weigh very nicely the legal consequences of the act. I have already assigned my reasons for the opinion that this retrospective effect cannot be given to the act of November; but if it can, then all the answers which I have given to your inquiries are wrong: the bank becomes a legal bank from its first inception, and all its acts perfectly legitimate and ob ligatory down to the 31st of this month; at which time it must stop, and wind up its affairs, like any other bank at the expiration of its charter. It is even possible that our courts, in their lenity, and to avoid the very serious and extensive inconveniences of my opinion, (however correct it may be in point of law,) may be disposed to give this retroactive operation to the act of last November. Indeed, there are but two courses which can clear the case of inextricable confusion: either to regard the bank as an illegal association, and all its acts void; or as a legal association, and all its acts valid. The former, however unpalatable it may be, is my opinion; and that, for the reasons which have been already so fully assigned.

"To EDWARD S. DUNCAN, Esq.,

[WM. WIRT.]

Clarksburg, Virginia."

WATER-LOTS ON THE POTOMAĆ.

So long as the law of Maryland, and the order of the commissioners under it, remain unrepealed and unmodified, the wharves proposed to be built by the owners of water-lots on the Potomac and Eastern Branch must follow the direction of the present streets of the city, and cannot be projected at right-angles from Water street to the channel.

The order of the comissioners, allowing the proprietors to erect buildings beyond the line of Water street, is invalid; they having no power to make such an order.

ATTORNEY GENERAL'S OFFICE, July 8, 1818.

SIR: I have examined the two questions propounded by the Commis sioner of Public Buildings, which you submitted to me, and have now the honor to furnish the answers.

These questions are-1st. Whether the wharves proposed to be built by the owners of water-lots on the Potomac and Eastern Branch shall follow the direction of the present streets of the city, or start at right-angles from Water street; and, 2d. Whether the proprietors of those water-lots have a right to erect buildings beyond the line of Water street.

1. According to the documents submitted for my information, there was nothing in the terms of their purchases which authorized the owners. of those lots to build wharves at all. They bought "with a water privilege" merely, which privilege was not defined. And if there was no general law then in force, which authorized the purchasers of watet lots to build wharves, the mere purchase of a water privilege does not necessari. ly include the right of wharving. It gives the free use and enjoyment of the water, as it lies on its natural bed; but it gives no right to vary that bed, by the erection of wharves, or any other obstruction whatever.

The only legislative act on this subject which has been brought to my notice, is the act of cession from the State of Maryland to the United States, which passed on the 19th December, 1791. By the 12th section of which, it is provided "that the commissioners for the time being, or any two of them, shall, from time to time, until Congress shall exercise the jurisdiction and government within the said territory, have power to license the building of wharves in the waters of the Potomac and the Eastern Branch, adjoining the said city, of the materials, in the manner, and of the extent they may judge durable, convenient, and agreeing with general order; but no license shall be granted to one to build a wharf before the land of another, nor shall any wharf be built in the waters without license as aforesaid." Since Congress assumed jurisdiction and govern. ment within the territory so ceded, this act has been repeatedly recognised, and the powers conferred by it on the commissioners several times transferred to others. Thus, on the 1st of May, 1802, an act was passed to abolish the board of commissioners in the city of Washington, and for other purposes;" by the 2d section of which act, it was provided that the affairs of the city, which had theretofore been under the care and superintendence of the said commissioners, should thereafter be under the direction of a superintendent, to be appointed by, and to be under the control of, the President. And the superintendent was thereby expressly vested with all the powers with which the said commissioners had been vested by any act of Congress, or any act of the General Assembly of Maryland. Again: by an act of Congress of April 29, 1816, entitled "An act making an appropriation for enclosing and improving the public square near the Capitol, and to abolish," &c., &c., the office of superintendent was abolished, and all his powers devolved on a single commissioner, to be appointed by the President, by and with the consent of the Senate.

Thus the commissioner in office under the last mentioned act is now vested with all the powers which belonged to the superintendent, and, before him, to the three commissioners at first in office."

What these powers are in relation to wharves, we have seen from the quotation before made from the law of Maryland. Before the abolition cf the three commissioners, (to wit, on the 20th July, 1795,) they issued a general order, purporting to be founded on that law, by which a general permission was given to the proprietors of water lots to wharf and build as far out into the river Potomac and the Eastern Branch as they think

convenient and proper, not injuring or interrupting the channels or nav gation of the said waters; leaving a space, wherever the general plan the streets in the city require it, of equal breadth with those street which, (streets,) if made by an individual holding the adjacent property shall be subject to his separate occupation and use until the public sha reimburse the expense of making such street; and where no street streets intersect said wharf, to leave a space of sixty feet for a street at th termination of every three hundred feet of made ground. The building on said wharves, or made ground, to be subject to the general regulation for buildings in the city of Washington, as declared by the Presiden Wharves to be built of such materials as the proprietors may elect.

I doubt the regularity of this order, on the ground of its being a generi one. The law of Maryland clearly contemplated specific and single license to each individual separately, as applications might be made. In suppo of which construction it will be observed, that, in the same section of th law, the language is changed to "regulation" wherever a general order i contemplated;-for example, in relation to the discharge of ballast, th landing of cargoes, &c. The policy of the law in relation to wharve was probably to enable the commissioners to avoid, in subsequent licenses any inconvenience which might have been observed to arise from forme ones, and thus to profit by their own experience as they went along. Bu admitting that the advantage of a general system in the construction o wharves is an object of paramount importance, and that the general orde or license which has been quoted was a correct exercise of power on the part of the commissioners, the order itself (which has never been revoked or altered, so far as I can learn, and which, therefore, gives the law in thi case) answers both questions; for, first, the order clearly contemplates the continuance of the present streets in their present direction over the made ground of the wharves-an effect which cannot be produced in any other way than by following the present direction of the streets in giving form to the wharves. In looking at the plan of the city, or at the diagram accompanying the commissioners' statement, it will be seen that a wharf, standing at right-angles from Water street to the channel of the river, will inevitably cross the present direction of the streets, and therefore violate that provision in the order of the commissioners which requires the builders of the wharves "to leave spaces, wherever the general plan of the streets in the city requires it, of equal breadth of those streets;" language which I can understand in no other way than as contemplating the projection of the present streets in the same direction, and of the same width, over the artificial ground constituting the wharves.

Again: the law of Maryland itself, from which the commissioners derived their power, imposed one specific restriction on its exercise; which was, that no license should be granted to one to build a wharf before the lands of another. But, in casting the eye on the commissioners' diagram, it will be seen that a wharf, projected at right-angles from Water street to the channel, will not only cross the course of the streets, but pass over so as to lie "before the lands of another," in direct violation of the act.

My answer to the first question, therefore, is: that, so long as the law of Maryland, and the order of the commissioners under it, remain unrepealed and unmodified, the wharves must follow the present direction of the streets, and cannot be projected at right-angles from Water street to the channel.