The 6th section, ch. 36, of Bev. Code, title “ currency” making it a misdemeanor to “ pass or receive” bank notes under the denomination of three dollars, does not apply to the bank; the punishment intended for it is imposed by the 3rd section, to wit: a penalty of fifty dollars for making and issuing such notes. There is nothing by which an indictment for a misdemeanor is superadded. Indeed the bank is bound by its eonhracts, to receive and redeem its notes, and the Legislature had no power to forbid it.

Whether the Legislature had power, besides imposing a penalty, to denounce the “ pain” of being deemed to have violated its charter for making and issuing such notes, may be questioned. Conditions by which an estate is defeated, must be made at the time of its creation. This principle would seem to be applicable to the grant of a franchise ; but we express no opinion in regard to it.

Judgment reversed, and judgment for defendant.