People v. Brewster, 4 Wend. 498

People v. Brewster

4 Wend. 498 | N.Y. Sup. Ct. | 1830

By the Court,

Sutherland J.

The plaintiff wás properly nonsuited. The discounting of notes alone will not subject an individual or company to the penalty given by the act *500un^er which this suit is brought. The first section provides, “ That it shall not be lawful for any person, association of persons or body corporate, from and after, &c. to keep any °ffice °f deposit for the purpose of discounting promissory notes, or for carrying on any kind of banking business or operations which 'incorporated banks are authorized by law to carry on, or issue any bills or promissory notes, as private bankers, unless thereunto specially authorized by law.” This is a penal act, and is to be construed strictly. It was not intended to prohibit individuals or corporations from lending theh- own proper funds upon promissory notes by way of discount or otherwise. The evil to be suppressed was unauthorized banking—the keeping of an office of deposit for the purpose of carrying on any kind of banking business. An office of deposit must be kept, and it must be kept for the purpose of discounting notes, &c. Where an office of deposit is kept by an individual or company who are in the habit of discounting notes, the fact that it was kept for that purpose would be sufficiently established. If the legislature had intended to prevent the discounting of notes absolutely, they would have said so in direct terms; they would have used the appropriate language for that purpose, as they have in the next number of the same sentence, where they prohibit the issuing of any bills or promissory notes by any individual or corporation as private "bankers. They there change the phraseology and omit the particle for and use the verb issue instead of the participle issuing ; by which omission and alteration the connection of what follows, with the keeping of an office of deposit, in the commencement of the sentence, is broken, and the prohibition becomes absolute and unqualified.

The business of the defendant, as established by all the evidence, was that of an exchange broker, the buying of notes, uncurrent bills, bills of exchange, &c. There is no evidence that he ever received a cent in deposit, or that he ever solicited deposits, or was willing to receive them, except a single expression in a publication made by him in relation to the Washington Banking Company, in which he pledges himself to receive them at all times at par in payment of notes due at his office, and also in deposits. His mere readiness, for *501special reasons, to receive the notes of this company in any manner certainly afforded no evidence of his keeping an office of deposit for the purpose of carrying on banking operations. The case of The People v. Barton, (6 Cowen, 290,) is in point

Motion to set aside nonsuit denied.