Bristol v. Barker

14 Johns. 205 | N.Y. Sup. Ct. | 1817

Thompson, Ch. J.,

delivered the opinion of the court. The only question in this case is, whether the act to restrain unincorporated associations, (2 N. R. L. 234.) applies to an individual, who may alone, and on his own credit and account, carry on banking operations. The act declares, that no person unauthorized by law, shall subscribe to, or become a member of, any association, institution, or company, or proprietor of any bank or fund, for the purpose of issuing notes, &c., or transacting the usual business of incorporated banks ; and any person, unauthorized by law, as aforesaid, who shall subscribe, or become a member or proprietor, as aforesaid, shall forfeit one thousand dollars.

It ought, in the first place to be observed, that this is a penal act, and, therefore, to be construed strictly. It is very evident, from the structure of the whole clause in the act, that it was intended to extend only to associations, or companies formed for banking purposes. This construction comports with the title of the act, which, although no part of the statute, shows, in some measure, the intention of the legislature. No difficulty arises in giving force and effect to all the words used in the act, and still confine their application to companies or associations, except as to the word proprietor, in regard to which, there appears, The word proprietor is here not used. If the prohibition had been intended to extend to individuals, this clause would also have made void all notes given to any proprietor of any bank or fund. We are accordingly of opinion, that the motion to set aside the nonsuit, must be denied. at firsfview, to be some little difficulty. But taking the whole section togethet, this word may be satistied, by considering it used as synonymous with the word member; and the clause may be read and understood, as declaring~ that no person, unauthorized by law, shall become a member or proprietor, with others, of any bank or fund, &c. This construction is much strengthened by the last clause in the section, which declares, that all notes and securities, &c. made, or given to any such association, institution, or company, not authorized as aforesaid, shall be null and void.

Motion denied»,