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MVB Attorney General Briefs, c16 May 1818

Sup. Court

The People

vs

The Utica Insurance

Company 

For Points see Points

Ist. Does the act of Incorporation confer the privilege of banking on the Defendants.

6th. <Bacon> 384

title Statute

letter (I5)

Ist such was not the Intention of the Legislature & their acts like private grants use to be construed according to the Intention of those who make them.

2d. That such was not the Intention of the Legislature is evident from the great difference between this act & the established mode & manner in which banking privileges were confered at that day & have been since the passage of the Restraining act. 

viz. In them the privilege is given eo nomine on account of the restraining act & the general impression that that a special authority was necessary since the restraining act.

True the word Bank or banking is not mentioned, the privilege is sought to be made out by the Injurious combination of various parts of the act, & under <clauses> to say the least of them equivocal & ambiguous.

3d. It would be difficult to conceive a reason why the Legislature should adopt the mode of confering these privileges instead of the common & ordinary course if they really intended to confer them.

4th. But the truth is they did not so intend & if there <may> clauses in the bill which confer these privileges they ^were^ passed unwittingly.

But it is contended that although it may not be supposed from these considerations to have been the Intention of the Legislature, still by the terms of the act all the power of a banking Institution are specifically given. 

6th. Bacon

385.

I If we should admit that these privileges are given by the letter of the <Bill> act as they are not within the Intention of the Legislature they are not granted. 

2d. They are not within the letter of the act

=

The business of Banking's consist of 

1st. Issuing notes

2d. Receiving deposits

3d. making discounts

1st. The right of issuing notes.

I Turn to the 15th & 16th Section & contrast it with the manner in which this authority is generally given to Banks.

2d. The words "Bills or notes" are technical terms, particularly to Banks & Banking notes, well understood. 

3d. The words "Engagements & agreements in the above section can never be construed to mean bills or notes & must therefore be understood as meaning Engagements & agreements for Insurance, with the age &c & not bills or notes which were to form a part of the circulating medium of the Country. 

2d. To receive deposits.

=

1st. Although any person has a right to receive a particular deposit, yet the business of receiving depositskeeping accounts with various persons of such deposits receiving their checks & in the course of banking operating as a business & as such <retained> ^<prohibited>^ by the restraining act. 

See charter of

Niagara bank &c

2d. Banks are explicitly authorized to receive deposits,

3d. By the plea they claim the right of receiving deposits <usual> <in> banks.

4th. The word deposit is not in this act nor is there in any of these provisions thereof any Phraseology in which took take it, except the authority to receive by way of Pledge mortgages, for debts due to them can be so considered. 

IIId. To make discounts.

I. Making discounts, is a technical term, applicable to Bank, & distinguished from loans when the principal & Interest are to be repaid at the end of the loan, call deriving its appellation from the circumstance of the Interest being deducted in the first Instance or discounted.

2d. An authority therefore to loan their surplus capital must does not vi termine, authorise to ^them^ discount.

3d. This right will be attempted to be sustained

Ist. in the Provision of the 9th. Section giving, the powers of the Directors.

answer

1st. The first section of those powers which speak of the management of the Stock property & effects of &c. only relates to such parts of the Stock as is engaged in the business of Insurance. 

2d. The Power to Invest the surplus funds which is the residue of the authority given so far from authorising them to be used by the company by the force of the Term Investment excludes that power, to <remark> being to place in the possession of the a other 

3d. If the Legislature had contemplated what is now claimed the terms would have been the use or appropriation of the said residue.

4th. These terms are explaind by the 12th. Section which shews the manner in which the Legislature contemplated that their surplus should be bound namely on mortgages. 

2d. By the Term under the 8th section of "to call in all parts of the funds & which may have been loaned by the said Corporation, & all debts of any value due to the said Corporation. 

& by similar expressions throughout the act shewing that it was contemplated that debts that should be due to them. 

answer

Ist the provision in the 12th. Section as to <states> explains the first part

2d. That they must ^or must^ have debts viz in their agent-officers &c. growing out of & connected with their insurance business is evident without their banking. 

The act under consideration therefore neither gave the pright of banking in general terms nor ^of performing^ any of the particular acts which constitute the system. 

But it is contended that because the Legislature have restrained other Incorporations from Banking in their charters, & thus not that therefore they intended to confer banking powers.

answer

1st. If this is true to any extent it must to the whole. If it confers banking powers on this Institution it must on all others similarly circumstanced

2d In a great Number of the acts granting Incorporations this restriction is not contained & ^on^ which it is ridiculous to suppose that the Legislature intended to confer Banking powers

3d. The truth is that the circumstance of that restriction being put in depended more ^altogether^ on the <dispart> state of the Bank or anti Bank fever. the

4th. There ought to be a great difference between the construction of Statutes here & in England upon that subject, there all bills are prepared by the Atty. Genl. here by every body

But why reason to the Judge they know that a bank was not intended, by the <illegible> provision of our constitution, the makers are the expounders of our laws & there is no rule or rather that requires them to shut their <no> minds agt. what they know.

The decision of the Judges who lived at the time of the Statute have always been deemed of the highest authority why is this so if they are to Judge by the letter only. 

Recapitulation 

IIId Point, No banking powers being especially granted, are they embraced in the restraining act. 

6th Bacon

391,

Hammond V Webb

10th <Moddes> 282

Atty. Genl V Luddel

Precedents in charge

215.

Ist The act being for the public good must be liberally & equitably construed so as to fullfill the Intention of the Legislature & <prevent> is <evasion>, although final
6th Bacon 391 . 2d. Such construction ought to be put before a statute or does not suffer it to be alluded

3d. The restraining effect is inartificially drawn but by reference to its object is susceptible of an easy & fair construction

4th. Bank paper owing to the scarcity of precious metals having become the circulating medium of the country & of consequence a matter of public concern ^the business being <done> <possible>^ danger was apprehended from the issues of paper by persons without responsibility & with the public without the means of <soliciting> it. 

5th. In this situation it was thought necessary to regulate & controul the Issues of paper to provide for the security of the public & to guard agt the mischief to be ^which was^ apprehended.

6th. To effect this it was necessary to deprive the Citizens of the right which was common to them of forming banking associations & to erect a general prohibition to all except such as they should from time to time authorize which was intended to be done. 

7th. Here then was the old law the mischief & the remedy viz

1st. By old law the right of banking universal 

2d. The mischief, the danger that the credit of the circulating medium of the Country arising from the <united> &c <illegible> want of restraint & want of Regulation. 

3d. The remedy, a restraint of all who are not authorised

8th. under such circumstances is it reasonable to suppose that they would not intended to restrain Individual associations, liable in their Individual capacities & relying on their Individual credit but leave ^<petty>^ <Incorporations> with the <illegible> at liberty to follow the business

27th Session

Chapter 110.

9th. That the intention of the Legislature was to embrace incorporations is clearly proved, by the declaratory act which followed it on the 10th of April 1804.

1st. This act in two excepts the Manhattan company, which according to the present construction would not have been embraced by it.

2d. This act passed the two houses while the restraining act was before the council of revision, & that company being then the only ^one^ which carryed on banking business ^& was^ not established as a Bank, the exception would not have been made in their favor had it not been then well understood that the act would otherwise embrace them.

3d. This act derives ^great^ additional weight from the circumstance of the attention of the Legislature being directed to the extent of the provisions of the restraining act by the chamber of commerce

<again>

1st <If> by this declaratory act it is in substance provided ^<deciding> that the restraining act grants that^ that "every person, association or Company should be prevented from ^transacting^ pursuing any business which companies or Banks incorporated for the express purpose of Bank usually do

2d. The only question therefore can be whether by "companies" ^& associations^ here they meant to include "incorporated companies."

3d. Of this there can be no doubt, for it was at the Instance of an "Incorporated company" viz. the Chamber of Commerce that they pass made ^passed^ the explanatory act. 

4th. In the same section they use the word companies & incorporated Banks as synonymous

Again

27th. Session

Chapter 110

The very act which of which the declaratory act is a part viz "an act to incorporate the Columbian Friendly Union Society in the City & County of Albany, gives all the power to make by laws which the Charter of the U. In C. gives, it is not restrained, & would on the construction set up have been entitled to the privilege of Banking

again

7th. Session

Chapter 30th

That every chamber of commerce were unless embraced by the restraining act & are ^would^ now be possessed of full & ample power to institute a bank. They had the power ^right^ of issuing holding real & personal estate of such a nature as they thought would be best calculated to enable the to promote commerce, of the the annual Value of £3000 Sterling & they were in no way restrained except by the provision similar to the one in the Charter

That the act was intended to prevent existing associations appears from the two exceptions contained in the act itself.

But they as

The restraining act therefore was intended to & does restrain corporations.

IIId. Points. The President Director & Company of the U. I. Company when acting as Bankers, were but ^do not act as^ a body corporate but as Individuals associated for the purpose of banking, & are therefore within the express words of the Statute

Ist. If they have banking powers expressly given them then this question cannot, but it is the assumption that banking is not authorised by their <notice> charter that the question arises whether or not they are restrained by this the restraining act.

2d. It would be a contradiction in terms to say that they acted as Corporation in doing a thing which their act of Incorporation did not allow.

3d. Allmost the whole community are members of some corporation or other & if the construction set up should prevail there are none of our prohibitory laws would be evaded.

4th. <suppos> A variety of cases may be supposed in which the same Instance might be set up & in which its absurdity would be manifest as.

1st a public house set up by a Corporation without license.

2d. Distillery under the United States laws without license by a similar Corporation

3d. A Ferry set up to the Injury of an other Ferry without License

4thly. Steam boats, started on the north river, by a ^Turnpike^ Company.

IVth Point, Corporations as such have no rights except such as are given to them or are necessaryily implyed as necessary to carry into effect those which are given, no banking power having been given express or implyed to the company, they are therefore prohibited by the nature of their Institution from banking without any restraining law. 

1st. If therefore they claim the right on Individuals association, they are embraced by the restraining act, if as a Corporation, they have no such right given to them.

2d. The right which would independent of the restraining act attach to them as individuals, ceases when they act as a body corporate, they can then only go on their delegated rights and have no common rights.

3d. If this implyed restriction did not exist in all incorporations, they Legislature nor could act with safety <intreating> them.

4th. The very object of Incorporation is exemption from the personal Responsibility & which that ought to be gextended, on how far extended must depend on the nature of the business to be pursued by the Corporation. 

5th If therefore the Corporation had a right to an follow any other pursuit than for which they were incorporated there would be no safety in them.

6th. The correctness of this rule is not shaken by the fact that our acts of incorporation contain more several restrictions, they are only such as it was apprehended would be deemed included in the power granted by implycation.

1st Blackstones

Com. 479

7th. The law requires that every corporation shall act up to the object of its institution, & when it is appropriated to any other purpose that duty is not performed.

8th. Could the Legislature have thought otherwise, could the council of revision have thought otherwise & have granted so many incorporations without banking restriction at a time when ^on^ a check to the establishment of Banks was deemed to depend the Welfare & prosperity of the State. 

V. ^Point^ Is the remedy adopted, the proper one or are we confined to <their> action for the penalty.

Answer

9 Johnson 557. <illegible> <assunder> Ist. The rule set up is only applicable to criminal cases, if brought to punish & having the same object on the penalty.

Rex v Bennett

1 Strange 101.

 Rex v. Jones

8 <Modder> 201

King agt, Frances

2d <Denfield> & <East>

484.

2d. This is a civil remedy not principally to punish for the Intrusion but to point oust from the possession, & as such it is immaterial whether it is in the name of the people or a Individual.

The court said

that of late years

a quo warranto

information has

been considered merely

in the nature of

a civil proceeding.

3d. If this should be the construction of the statute, the Legislature have <reserved> to redress to the public, they cannot insist because there is a penalty, they cannot try the weight by Quo Warranto for the same reason, & they cannot <sue> for the penalty because that is given to an Informer & they have only half the avails if an Informer sues.

4th. The only penalty given by the Statute for entering into the association upon the construction set up therefore, they <admitting> them to be without right they might still go on after the payment of the first penalty with impunity & thus gain a right by the violation of law.

V These considerations render it preposterous to suppose that the Legislature intended the penalty as the only remedy.

The particular remedy adopted

Ist. An Information in the nature of a quo Warranto, may be filed ex officio by the Atty. Genl. to try the right to a <Franchise>

2d Kyd or Corp.

415.

2d <Bacon> 870.

Rose v. The Corporation of <Casmatther>

2d. This may be ^ex officio^ at the common law or under the Statute of <Anu> in England or on Statue here at this Instance of a relation

Commonwealth

vs

Union Insurance

Company.

5th Massachusetts

382.

3d. Information at the common law was adopted as a substitute for the writ of Quo Warranto when the circuits of the Justices Itinerant ceased, from the great expense attending the original writs to have their <retention> at Westminster Hall.

2d Kyd 4067-

407.

1st <Sackett> 373 

4th. The Judgment on the Information is the same as on the writ, when the The franchise is ^<exercised>^ without colour of right the Judgment is ouster only, when the Franchise has been granted but is forfeited it is seized into the hands of the King, with the further difference that in the writ there is no Judgmnt of to fine for as the defendant comes in & claims in consequence of the Statute if he fails no Judgmt is given agt him except for loss of the Franchise, but ^in^ the Information the Crown are made the <actors> & therefore they fine. 

Supreme Court

The People 

vs

The Utica Insurance Company

Brief

 

The Atty Gen

The Utica Insurance 

Company.

Contents of An information

I The Restraining act

2d Notice published in the papers of their intention to apply for insurance company

3 Petition

4. The act & its preamble.

5th. Averment that no Bank was established

6th. Organization of the company

7th. Avermnt that they have engaged in extensive banking concerns.

Contrary to the intentions of the Legislature incorporating them & contrary to the restraining act. 

 

Supreme Court 

The People

v

The Utica Insurance

Company

Brief for Argument May term 1818

 

Is the right to Bank conferred by their act Charter.

6th. <Bacon> 384

title Statute letter

(I.5). Ditto 385

I It was not the Intention of the legislature to confer that right & on their grant like those of Individuals are to be construed according to the situation of the <motives>.

The title. the

preamble.

2d. That such was not their intention in this particular case is clearly deducible for a comparison between this act & the usual mode of conferring similar privileges since the restraining act,

viz in the latter case the privilege is given eo nomine on account of the restraining act & the general impression that such special authority was necessary.

here, the word Bank or banking is not even mentioned, but on the contrary the privilege is sought to be made out by the injurious combination of various ambiguous & <acrimonial> clauses at the least.

3d It would be difficult to conceive a reason why this mode of conferring a well known privilege should have been adopted by the legislature instead of the usual mode if they

4th. But the plain truth is they did not so intend it & if there are any clauses in the bill giving banking privileges they were passed unwillingly.

But it is contended that although it may not be supposed from these considerations that it was the deliberate intention of the legislature to give banking privileges, still by the terms of the act, all the powers of a banking institution are specifically given. 

To which I answer

Ist If we should admit that these privileges are given by the letter of the act as they are not within the Intention of the makers they have not been granted.

6th Bacon 385

"a thing within the letter of the Statute is not within the Statute unless it be within the Intention of the makers."

IId Banking privileges are not conferred by the letter of the act.

The Business of banking consists in 

Ist. Issuing notes

2d Receiving deposits

3d making discounts

1st. The right of Issuing notes

I. This is claimed under the 15th. & 16th section contrast this with the manner of in which this authority is given to Banks

2d. The words "bills & notes" are technical terms, particularly applicable to Banks & Bank notes, well understood

3d The words "engagements & agreements" in the above section can never be construed to mean to mean bank bills or notes & must therefore be understood as meaning engagements or agreements for insurance, with their agents &c. & not bills & notes which were to form a part of the circulating medium of the Country

IId. To receive deposits

Ist although any person has a right to receive a particular deposit, yet the business of receiving deposits Keeping accounts of them with various persons recing their checks &c. in the course of banking operations is a business & as such intended to be prohibited by the restraining act. 

See Charter

of Niagara

Bank

2d Shew the manner in which banks are authorised to receive deposits

 3d By their plea they claim the right of receiving deposits usual by banks

4th. The word deposit is not mentioned in their charter nor is there in it any Phraseology which looks like & it except the authority to receive mortgage by way of Pledge for debts due to them can be so regarded.

IId. Point, no banking privileges being expressly granted are they embraced by the provisions of the restraining act. 

Rules of Construction application to that act

6 Bacon 391

Hammond V Webb

10th <Mod> 282

Atty. Genl. V Luddel

precedents in chancy

215.

1st. It being an act for the public good must be liberally & equitably construed so as to fullfill the Intention of the legislature & prevent its evasion, although penal
Ditto. 2d such a construction ought to be put upon a statute as does not subject it to be eluded

The restraining act though inartificially drawn is susceptible of an easy and Just construction.

2d. Owing to the scarcity of the precious metal bank paper became the circulating medium of the Country, its general use gave it value & profit to those who issued it & foreboded an excess, being therefore a matter of public interest the legislature intended too to regulate it as to prevent abuse

3d. This could only be done by rending that privilege a special one which was before common, that in every case when the Issue of notes was authorised they might provide such security for the public as they thought proper

4th. How then was the old Law & the mischief viz

1st By the old law the right <criminal>

2d The mischief the danger <rising> from excessive issues without restraint & without regulation

5th. For such case what should be & was the remedy intended, certainly <illegible> a restraint coextensive with the right, it is in the last degree unreasonable to suppose that they intended, only to restrain individual and associations liable in the individual capacities & reling on individual credit without the meritorious influence of a charter of incorporation & leave every petty corporation with their exemption &c. to furnish the circulating medium of the country 

6, That it was the intention of the legislature to embrace incorporations is clearly proved by the declaratory act which followed it of the 10th of April 1804

1st. This not in terms excepts the Manhattan company which according to the present construction would not have been embraced by it. 

2d. This act passed while the restraining act was before the council of revision, the Manhattan company was the only incorporated company which banked without having been established as a bank, the exception would not have been made in their favor had it not been well understood that they would otherwise be affected by it.

3d. The declaratory act in terms extends the terms of the restraining act and instead of persons speaks of association or company, & the only question is whether by company they meant an incorporated companies.

4th. Of this there can be no doubt for it was at the instance of an incorporated company the chamber of commerce, that they exposed.

5th. In the same instance they used the words companies & incorporated Banks as synonimous.

again the

27th. Session

Chapter 110th

The very act of which the declaratory act is part would on the opposite construction have right to Bank

again

7th. Session

Chapter 30

That very chamber of commerce would have made an excellent Bank, they have the right given to them of holding real & personal estate of such a nature as they thought proper & best adapted to promote commerce of the clear annual Value of £3000 sterling & they are in no way restrained except by the usual <promise>. 

The exceptions in the act itself. 

IIId. Point The defendants when acting as bankers do not act as a body corporate but as individuals associated for the purpose of banking & are therefore within the express words of the Statute. 

I If they have express authority to bank this question cannot arise, it is on the assumption that they have no express authority that the question can only become material whether they are embraced by the restraining act. 

2d It would be a contradiction in terms to say that they acted as corporation in doing what their act of incorporation did not allow.

3d. Almost the whole community are members of some corporation or other & if the construction set up should prevail all our prohibitory laws would be evaded.

4th. Innumerable use may be supposed in which the same pretence might be set up & in which its absurdity would be manifest. viz

I a public house set up without license by a manufacturing corporation

2d. a Ferry set up without license by an incorporated company

4th Steam boats started on the north river by a turnpike Company without license from Fulton & Livingston or their assignes

IVth. Point

1st Kyd 13

70.

Corporations have no right except such as are given to them or are necessarily implyed as necessary to carry into effect those which are given, no banking power having been given express or implyed to this company they are therefore prohibited by the nature of their institution without any restraining law.

1st. If Therefore they claim the right as an individual association they are embraced by the restraining act if as a Corporation they have no such right given to them.

2d The right which would independent of the restraining act attach to them as individuals ceases when they act as a body corporate they can then only go on their delegated rights & have no common rights

3d. If this implyed restriction did not exist in all corporations the legislature never could act with safety in creatg them

4th. The very object of incorporation is exemption from Responsibility as Individuals & whether that ought to be granted or how far extended must depend on the nature of the business to be pursued by the Corporation.

5th. If they had the right of following other business than that which is the declared object of their incorporation there would be no safety in creating them.

6th. The correctness of this position is not shaken by the fact that the acts generally contain restrictions, they are only such as it was apprehended would be included in the powers given by implication

1st Blackstone

Comm 475)

7th. The law requires an adherence on the part of Corporations to the object of their <charter> & when that is not approved their duty is not performed

8th Could the legislature have thought otherwise & granted to many exceptions when Banking <corporations> exceed so much interest &c.

The Remedy Adopted.

Ith. The ^Injustice of the^ complaint that I did not in opening shew the fitness of the remedy.

2d If The objection to this remedy is founded solely on the assumption that the "liberty to Bank is not a franchise, if it is conceded that this would be the proper remedy.

3d. It is a principle of the common law that to oust a court of Genl. Jurisdiction like that of chancery of it Jurisdiction of a particular case, the party objecting to the Jurisdiction must Shew what is the true remedy & where to be pursued

read a

Chancellors report

of this case

4th. In complyance with the rule the Council from the defendant in the Court of Chancery did point out this very course as the only proper one

5th. Although this may not be authority we certainly have a right to urge it no on <weighty> if not in the deliberate & of course honest opinion of ^most^ counsel at least as good ground why their present argument should be recd. with great circumspection if not Jealousy

again

I Is In the County Incorporation this privilege is described as a franchise eo-nomine.

2d. By the plea the defendants do not content themselves with <naming> that question & with setting up the right to carry on the business they be it Franchise or not, but they expressly admit that it is a franchise & that they claim it as such

3d. Upon that plea being demurred to, they have come forward & say that we have solemnly admitted on the record that this is a franchise but are now doing that & say it is no such thing.

4th. This we say they have no right to do be it law or fact & that it would be a libel on the integrity of pleading to prevent them to do so to do.

5th. Courts & Jurors are only to try & decide on matters of facts or matters of law which are <traversed> or contradicted by the <par> not those that are conceded on the record.

2

see the cases

refered to in first

Chitty.

6th. The ground on which this right is predicated is not trouble, but an attempt to prevent a whole some doctrine to unwholesome purposes, state to what defects in the original pleading the party may resort & their difference from this case

7th This would be matter in abatement, either to be Jurisdiction of the Court or the force of the action & is therefore waved by the <play> on

But again

Bearing for the sake of argument their admission & concession as well on athe record, as <illegible> the record is there a rational doubt but that is a franchise & if it is the remedy adopted is conceded to be the proper one.

vide his

opinion.

I. The chancellor after a full discussion of the subject decides it to be so.

2d This discussion entitlted to respect as much as if made in the court although not binding

3d. But ^what^ is a franchise, ^it is^ a liberty or privilege, of which there are almost innumerable kinds but their general division in England is into

1st. Into such as one common to the subjects as the right of being tryed by Jury; to vote at Elections &c. 

2d. Those which form part of the prerogative of the Crown & are duly <wishd> as royal prerogatives, which can only be enjoyed by the subject when granted to him.

4th. By the establishment of our State government & independence from the british crown, our citizens succeeded to all the franchises of english subjects & more, and the government to all the peculiar privileges which were rested on the crown, so far as they were not incompatible with the spirit & genius of the governmt

5th. With with the right to all most of the franchises <illegible> belonging to the Crown the governmt of course succeeded to the capacity of telling 

If this remedy is not proper there is no other

I As there is a penalty given it would with propriety be counted that there could be no indictment

2d. As it is an incorporation it <illegible> no Ejectmt could be brought

3d. The penalty is given to the informer, there is but a single penalty & after that they could enjoy the privilege without right & without responsibility.

Sup. Court

The People &c

vs

The Utica Insurance

Company.

 

 

 

 

Construction of the Act of Incorporation

6 Bacons

abridgment

page 354

Statute 3.5

"Such construction ought to be put upon a Statute as may best answer the intention which the makers had in view."

The preamble is a good mean to find out the meaning of the Statute, and as it were the key to open the understanding thereof."

Coke upon Littleton 79 a Plowden 369.

Kyall vs Rolle 

1st. Atkins 174 Lord Parker. "If the <act> Restraining the generality of the enacting clause will be attended with an inconvenience, the preamble shall restrain it." Lord Hardwicke says "I am strongly inclined to be of opinion with Lord Chief Justice Holt & my Lord Chief Baron that this clause ^is^ to be restrained by the preamble, & differ from Lord Cowper in the cause of Copeman vs Gallant (1 Peare Wms. 514)

<Crespgny>

Witleman

4 T. R. 793. Butler Jr. "I agree that the preamble can not control the enacting part of a Statute, which is expressed in clear and unambiguous terms. But if any doubts arise on the words of the enacting part, the preamble may be resorted to, to explain it."

 

6 Bacons

abridgment

385.

"A thing within the letter of the Statute is not within the Statute, unless it be within the intention of the Makers."

 

The Restraining Act

"A statute which is made for the public good ought altho' it be penal to receive an equitable Construction." 6 Bacons ab. 391

Hammond

vs

Webb.

10th Modern 282 The Statute of Marlbridge against committing waste, a penal statute; yet construed liberally.

Atty. Genl

vs

Ludell

Precedents in Chy. 215

Wright Lord Keeper "This Court will aid remedial laws notwithstanding they are penal, not indeed so as to make them more penal, but to give them their proper effect."

6 Bacons Ab.

391.

"Such a Construction ought to be put upon a Statute, as does not suffer it to be eluded."

The General duties of all bodies politic <covered> in their Corporate capacity may like those of natural persons be reduced to this single point, that of acting up to the end on of design whatever it be for which they were created by their founder.

Sup. Court

The People

vs

Utica Insurance

Authorities

M.VanBuren

     Atty Gen

Supreme Court

The People &c

The Utica Insurance

Company

Points on the Part of the

People.

IId The act of the Legislature passed March 29th 1816 by which the Defendants were incorporated, was not intended by the Legislature to confer on the Defendants the right of banking nor does it give that right.

27th Session Chapter 170 ^117^

7th Session Chapter 30

IInd The act of the Legislature Entitled "An Act to restrain unincorporated Banking associations" originally passed the 11th. of April 1804, and revised in 1813 was intended to prevent and restrain all companies & associations whether incorporated or unincorporated from Banking unless expressly authorised so to do by the Legislature, and does so restrain them. 

IIIrdly The Defendants when exercising the priviledge of Banking although they act in their Corporate name, do not act within their Corporate powers And must therefore be regarded as it respects their Banking powers as an association of Individuals unincorporated and therefore embraced by the letter of the restraining act

2d. Johnson

109. 114

3d Johnson

424

1 Blackstone

Commentary

479.

IVth The Defendants being a body corporate have no rights except such as are specially granted to them, or as are necessary to car^r^y into effect such as are so granted, the right of banking not being granted either expressly or by implication they could not have exercised it even if no restraining act had ever been passed.

 

Sup. Court

The People

vs 

The Utica Insurance

Company

Points

Court Leets

Waif

<wreath>

<Estray>

Treasure trove

Royal fiat

Fairs & Markets

Free fishery &c

Source: DLC Library of Congress
Collection: MVB Papers (DLC)
Series: Series 3 (17 February 1815-2 December 1821)