People v. Bartow

6 Cow. 290 | N.Y. Sup. Ct. | 1826

Curia, per

Woodworth, J.

It is objected that the first count is defective, for two reasons ; 1. Because it does not appear that the defendant has contravened all the provisions in the first section of the act; 2. Because the of-fence charged is not alleged to have been committed against the form of the statute.

As to the first, it may be observed, that although a penal statute is to be construed strictly, the court are not to disregard the plain intent of the legislature. Among other things, it is well settled, that a statute which is made for the good of the public, ought, although it be penal, to receive an equitable construction. (6 Bac. Abr. 391.) When it is considered that this statute was intended to strike at an existing evil, deemed to be of serious injury to the community, it cannot well be doubted that its enactment was to promote the public good.

Applying these rules to the construction of the act, ⅜ apprehend the intention cannot be mistaken. It is evident, from the first part of the section, that all banking operations are prohibited. To keep an office of deposit, for the purpose of discounting notes, is a specific violation of the statute. It next forbids the carrying on of any kind of banking business. The latter may include, but is certainly more extensive than the former. There are operas tions of a bank other than the mere discounting of notes. The penalty attaches upon every person who contravenes f°reg°ing provisions. To allow the construction contended for by the defendant, would be to render the stat-tute a dead letter. The discounting of notes, is, undoubtedly, the principal business of a banking institution. If, in addition to this, it must be shown that the defendant has conducted other and further operations incident to banking, before he is liable to the penalty, the act becomes nugatory and inoperative. On this ground, it is only necessary for a party to confine himself strictly to the keeping of an office for discounting notes, the great evil intended to be remedied, and he is sure then not to be reached. He is excused, because he has not also conducted some of the minor operations of a bank, distinct from the discounting of notes. The statute speaks a different language. It must, I think, be understood to attach, whenever either of the prohibitions have been violated. This is the manifest construction, although the words, “ or either of them,” are omitted.

As to the second objection, it seems to be generally necessary, in an action on a penal statute, where the act prohibited was not an offence at the common law, to allege in the declaration, that it was done “against the form of the statute.” Stating merely, that by force of the statute, an action accrued, is not sufficient. (Lee v. Clark, 2 East, 333. 1 Chit. Pl. 353.) In Lee v. Clark, the action was debt for a penalty on the game laws. The declaration did not set out the statute, or show that the acts done were prohibited by it, otherwise than by averring that the defendant had not lawful authority; whereby, and by force of the statute, an action accrued. It was held that the omission to say, against the form of the statute, was fatal. But the same case seems to admit, that the omission of these word may be supplied. Lord Ellenbor-ough observed, “the fact must be alleged to be done against the form of the statute. I do not see such circumstances stated, as brings the case within anv of them. without alleging it to be against the form of the statute.” Lawrence, J. inclined to the sufficiency of an allegation, “ by force of the statute, an action hath accrued.” On a subsequent day, the court commented on the case of Coundell or Kendall v. John, (2 Salk. 505, Holt's Rep. 632, 5, and Fortes. 125, S. C.,) which was supposed by the counsel to decide that such an averment was unnecessary. Lord Ellenborough remarked, that upon comparing the case with other authorities, there did not appear to be that incongruity which the court at first apprehended. That the different reports of that case concur substantially in this: that it is not necessary to conclude contra for-mara statuti ; but, in the language of Holt, C. J. “ you must bring yourself within the description of it.” I think it appears that the court, in Lee v. Clarke, acquiesced in this distinction. It was observed by Lord Ellenborough, with respect to the case of Kendall v. John, that the ultimate opinion of the court was, that in all actions founded on a statute, it is necessary, in some manner, to shew that the offence on which you proceed, is an offence against the statute. This principle, which I think sound, disposes of the objection ; for here it is clearly shewn that the statute prohibits the keeping of an office for discounting notes ; and that the defendant did keep such office. Independent, therefore, of the words insisted on as necessary, the offence appears to be against the statute.

The plaintiffs are, therefore, entitled to judgment, even if the second count be defective, the demurrer being general to the whole declaration. On such a demurrer, if either count be sufficient, the plaintiff will be entitled to judgment upon it. (1 Chit. Pl. 643. 1 Saund. 286, n. (9.) 2 id. 379, n. (14.)

But I think the second count also good. It is contended that this count does not specify what kind of banking business the defendant intended to carry on. The declaration alleges that an office of deposit was kept for the purpose of carrying on such business. The penalty is incurred, if an office of deposit is kept, and the purpose, or intent, be made out. The defendant must come prepared to defend himself against the intent of doing any act, which may be considered as constituting banking business. The statute does not require a specification. The allegation, although general, is not more so than the statute.

The demurrer not being well taken to either count, the plaintiffs are entitled to judgment. But the defendant may withdraw his demurrer, and plead, on payment of costs.

Rule accordingly,