The People against Bartow

The People against Bartow. UTICA, Aug. 1826. in declaring ,<on the 1st and the statute, 23<T) Gainst unlicensed bankers, it is sufficient to set forth the act so far as it reíales to the offence charged, and then to describe the offence according to the statute, averring* that, by (orce of the statute, the defendant forfeited, fcc. and an action arose, &c. without saying, M contrary to the form of the statute.” On demurrer to the declaration. This was in debt for *2,000. The first count recited the statute passed April 21si, 1818, which enacted, that it should not be lawful for any person, association of persons, or body corporate, from and after the first day of August then next, to keep any office of 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 ; unless thereunto specially authorized by law. And that in case any person or persons, or body corporate, should contravene the foregoing provisions, every such person or persons, and the members of every such corporation, who should, either directly or indirectly, assent thereto, should, for every offence, forfeit the sum of ⅜1,000, to be sued for, &c. and recovered in an action of debt, in the name of the people. This count then alleged that the defendant, not regarding the act, nor the provisions therein contained, after, &c. to wit, on the 1st day of April, 1825, at, &c. did keep an office of deposit, for the purpose of discounting promissory notes, he not being thereunto specially authorized by law; whereby, &e. by force of the statute in this case made and provided, the defendant forfeited $1000; and, by force of the statute, an action hath accrued, &c. An individual keeping an office of deposit for the purpose of discounting notes, is an offender within the act, though the office be not for the purpose of any other banking operation. An individual, keeping an office for carrying on any single banking operation, is within the act. It is not necessary, to subject him to the penalty, that it should be for carrying on banking business generally, or in more than one branch. A declaration under the act, that the defendant kept an office of deposit for the purpose of carrying on banking business and operations, without saying what, is not too general, as it follows the words of the statute. A declaration on a penal statute creating an offence unknown to the common law, and. giving an action, should, in some way, shew an offence against the statute ; but it is not always necessary to say contraformam staiuti. It is enough that the offence appear to be, in truth, against the statute. On a demurrer to the whole declaration, if either count be good, judgment will be for the plaintiff on that count, though the other counts be bad. The second count stated, that after, &c. to wit, on the 1st day of April, 1825, at, &c. the defendant, not regarding the act, nor the provisions therein contained, did keep an office of deposit, for the purpose of carrying on banking business and operations, which incorporated banks are authorized by law to carry on, he not being thereunto specially authorized by law. Whereby, &c. (as before.) General demurrer and joinder. S. A. Foot, in support of the demurrer. The first count is defective, in not alleging that the defendant has contravened all the provisions contained in the 1st section of the act, (sess. 41, ch. 236, s. 1,2.) The same objection applies to the 2d count. The words in the second section are not the foregoing provisions, or any of them. The crime charged, is keeping an office only. To warrant the action, all the provisions, and each of them, must be violated. Otherwise the act must be extended by construction, which cannot be of a penal statute. Any man has aright to keep an office of discount and deposit. The only ob-jec£ ac^ wag |f) restrain companies not incorporated, from carrying on banking operations. The offence is not alleged in either count, to have been committed against the form of the statute. Such an averment is material in ah action for a penalty given by statute. A general demurrer is sufficient to reach this defect. In a penal action, a general demurrer is equivalent to a special one in any other. The defect is fatal even after-verdict. (1 Chit. PI. 358. Lee v. Clarke, 2 East, 353.) The second count is also bad for want of sufficient precision and certainty. It does not specify what kind of banking business or operations it was the purpose oí the defendant to carry on. Talcott, (attorney general) contra. The language of the statute is too plain to be mistaken. An individual can carry on no kind of banking business or operations. According to the construction contended for on the other side, any kind of banking business may be carried on, if all are not joined, and this too by a company. The object was to prevent every species of imposition which had so long been practiced upon the community by private banks. Yet, within the rule set up against us, three individuals, by dividing their operations, may violate all the provisions of the statute. If they do not go to work as a company, it is enough. They escape. One may keep an office of deposit; another issue notes; and a third discount. No. The true sense of the act is distributive. It reaches any separate kind of banking business. The intention of the legislature should be consulted. (Bac. Abr. Statute, (l) pi. 9, and the cases there cited.) As to the formal objection, Lee v. Clarke is itself against the plaintiff. The only difficulty in that case, arose from the circumstance that there were two different statutes. This will be seen by adverting to the opinion of the court, and the cases cited in the course of the discussion. The attorney general also cited to this point, Esp. on Penal Actions, 107-8 : 2 Salk. 504 ; and Reynolds, q. t. v. kmith, (2 Browne’s Penn. Rep. 257, 260,) which was a: much stronger case for the defendant than the present one, the statute neither being reeited in the declaration, nor the general conclusion inserted, contra formam, &c. Yet a motion in arrest was denied. It was held enough, that the declaration brought the defendant within the act by the description of the offence. Foot, in reply, said, if the construction contended for by the attorney general, was the correct one, the statute might be extended to 20 or 30 different branches pf business, very usually and generally carried on in community by individuals and mercantile houses. The words, any kind of banking business or operations, would reach almost the whole of the commercial world.' [MAJORITY — Woodworth, J.] 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,