Opinion of the Court. pay such checks, had also promised third parties to pay them, could not invalidate the liability previously incurred, or impair the security which had previously been given to the defendant upon a valid consideration; that the fact of the certification was entirely immaterial in respect to the liability incurred by Capron & Merriam to the defendant; that there was no evidence impairing the title to the bonds acquired by the defendant through the transfer of them to it by Capron & Merriam; that the purpose for which the bonds were transferred by the testator of the plaintiffs to Capron & Merriam contemplated their transfer and sale by the latter to third persons; that the defendant acquired a valid title to them by their transfer to it; that the transaction between Capron & Merriam and the defendant was in the ordinary course of business pursued by the latter; that it received the bonds in good faith, for a valuable consideration, and within all the authorities this gave it a good title to the bonds; that it was authorized to deal with them for the purpose of effecting the object for which they were transferred to it; that its right to hold the bonds continued so long as any part of its debt against Capron & Merriam remained unpaid; that the testator of the plaintiffs could at any time have established his equitable right to a return of the bonds, and could have procured their surrender, by paying the amount for which they were pledged, but he refrained from doing so, and impliedly denied any right in the defendant by demanding the unconditional surrender of the bonds; and that he never became entitled to such surrender, and of course was not authorized to recover possession of them. We regard those views as sound, and as covering this case. The agreement of December 2, 1873, between Capron & Merriam and the defendant, did not call for any act violating the statute. There was nothing illegal in providing that the securities which the bank might hold to secure the debt to it of Capron & Merriam should be available to make good such debt. The statute does not declare void a contract to secure a debt arising on the certifications which it prohibits. In addition to that, the statute expressly provides that a Opinion of the Court. check certified by a duly authorized officer of the bank, when the customer has not on deposit an amount of money equal to the amount specified in the check certified, shall nevertheless be a good and valid obligation against the bank; and there is nothing in the statute which, expressly or by implication, prohibits the bank from taking security for the protection of its stockholders against the debt thus created. There is no prohibition against a contract by the bank for security for a debt which the statute contemplates as likely to come into existence, although the unlawful act of the officer of the bank in certifying may aid in creating the debt. In order to adjudge a contract unlawful, as prohibited by a statute, the prohibition must be found in the statute. The subjection of the bank to the penalty prescribed by the statute for its violation cannot operate to destroy the security for the debt created by the forbidden certification. If the testator of the plaintiffs had pledged the bonds to the defendant, he could not, after receiving the defendant's money, have replevied the bonds; and after possession of the bonds. had been given by him to Capron & Merriam, and after they had been subsequently taken by the defendant in good faith, neither he nor his executors can set up the statute to destroy the debt. This construction of the statute in question is strengthened by the subsequent enactment, on July 12, 1882, of § 13 of the act of that date, c. 288, 22 Stat. 166, making it a criminal offence in an officer, clerk or agent of a national bank to violate the provisions of the act of March 3, 1869. This shows that Congress only intended to impose, as penalties for overcertifying checks, a forfeiture of the franchises of the bank and a punishment of the delinquent officer or clerk, and did not intend to invalidate commercial transactions connected with forbidden certifications. As the defendant was bound to make good the checks to the holders of them, because the act of 1869 declares that the checks shall be good and valid obligations against the defendant, it follows that Capron & Merriam were bound to make good the amounts to the defendant. It necessarily results that the defendant, on paying the checks, Opinion of the Court. was as much entitled to resort to the securities which Capron & Merriam had put into its hands, as it would have been to apply money which they might have deposited to meet the checks. Moreover, it has been held repeatedly by this court that where the provisions of the national banking act prohibit certain acts by banks or their officers, without imposing any penalty or forfeiture applicable to particular transactions which have been executed, their validity can be questioned only by the United States, and not by private parties. National Bank v. Matthews, 98 U. S. 621; National Bank v. Whitney, 103 U. S. 99; National Bank of Xenia v. Stewart, 107 U. S. 676. The bonds in question came into the possession of the defendant before it certified the checks. They were not pledged to it under any agreement or knowledge on its part, or in fact on the part of Capron & Merriam, that subsequent certifications would be made. The certifications were made after the pledge, and created a debt of Capron & Merriam to the defendant, which arose after the pledge. The agreement of December 2, 1873, applied and became operative simultaneously with the certifications, but independently of them, as a legal proposition. In Logan County Bank v. Townsend, 139 U. S. 67, 77, decided in March, 1891, after the present case was decided by the Court of Appeals of New York, this court approved the decision in National Bank v. Whitney, 103 U. S. 99, and said that a disregard by a national bank of the provisions of the act of Congress forbidding it to take a mortgage to secure an indebtedness then existing, as well as future advances, could not be taken advantage of by the debtor, but "only laid the institution open to proceedings by the government for exercising powers not conferred by law." Judgment affirmed. Opinion of the Court. TOPLITZ v. HEDDEN. ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK. No. 45. Argued November 16, 1892. Decided November 28, 1892. "Scotch Imported articles, used as head-coverings for men, invoiced as bonnets," and entered, some as "worsted knit bonnets," and others as "worsted caps," and made of wool, knitted on frames, were liable to duty as "knit goods made on knitting frames," under " Schedule K, Wool and Woollens," of § 2502 of the Revised Statutes, as enacted by § 6 of the act of March 3, 1883, c. 21, (22 Stat. 509,) and not under "Schedule N, Sundries," of the same section, § 2502, p. 511, as "bonnets, hats and hoods for men, women and children." Testimony held competent, on the cross-examination of a witness, as affecting his credibility, in view of contradictory statements which he had made. An exception to a copy of a paper is unavailing, where both sides treated it as a copy, and no ground of objection to it as evidence is set forth. It was proper, in an action brought by the importer against the collector, to recover duties paid under protest, for the defendant to show that the articles were not known, on or immediately before March 3, 1883, in trade and commerce as "bonnets for men." It was right on the evidence for the court to direct a verdict for the defendant, especially as the plaintiff refused to go to the jury on the question as to whether on March 3, 1883, the word "bonnet" had in this country a well-known technical, commercial designation such as would cover the goods in question. THE case is stated in the opinion. Mr. Edwin B. Smith for plaintiffs in error. Mr. Solicitor General for defendant in error. MR. JUSTICE BLATCHFORD delivered the opinion of the court. This is an action at law brought by Lippman Toplitz and Herman Schwarz, composing the firm of L. Toplitz & Co., against Edward L. Hedden, late collector of the port of New Opinion of the Court. York, to recover the sum of $6896.06, as an excess of duties paid under protest by the plaintiffs on 24 importations made into the port of New York from Glasgow, in Scotland, from July, 1885, to December, 1885, both inclusive. The suit was commenced in the Superior Court of the city of New York, in July, 1886, and removed by the defendant, by certiorari, into the Circuit Court of the United States for the Southern District of New York. At the trial before Judge Lacombe and a jury, in January, 1888, the court directed a verdict for the defendant, which was rendered, and judgment was entered thereon against the plaintiffs in November, 1888, to review which the plaintiffs have brought a writ of error. In the invoices of the articles imported, they were described. as "Scotch bonnets;" and in the entries thereon at the customhouse they were, in some, described as "worsted knit bonnets," and in others as "worsted caps." The collector assessed duties upon them as "knit goods, made on knitting frames," under the following provisions of "Schedule K.- Wool and Woollens," of § 2502 of the Revised Statutes, as enacted by § 6 of the act of March 3, 1883, 22 Stat. 509, c. 121: "Flannels, blankets, hats of wool, knit goods, and all goods made on knitting frames, balmorals, woollen and worsted yarns, and all manufactures of every description, composed wholly or in part of worsted, the hair of the alpaca, goat or other animals, (except such as are composed in part of wool,) not specially enumerated or provided for in this act, valued at not exceeding thirty cents per pound, ten cents per pound; valued at above thirty cents per pound, and not exceeding forty cents. per pound, twelve cents per pound; valued at above forty cents per pound, and not exceeding sixty cents per pound, eighteen cents per pound; valued at above sixty cents per pound, and not exceeding eighty cents per pound, twenty-four cents per pound; and in addition thereto upon all the abovenamed articles, thirty-five per centum ad valorem; valued at above eighty cents per pound, thirty-five cents per pound, and in addition thereto forty per centum ad valorem." The goods were shown to be made of wool, knitted on frames. The plaintiffs duly protested against the assessment of more |