#### Bristol *against Barker.*

NEW-YORK,

May, 1817.

TheThe *aa*entitled, *vomita*. *associations, than & &*234.} *j*tends only to associations „ or form-ed for banking purposes, and not to an inamdualwho carnes on banking operations alone, and on bis own credit and

THIS was an action brought to recover the penalty given *to*the second section of the act of the 6th April, 1813, *banking .*7 . (2 *An act to prevent the passing and receiving of bank notes ¿ess*ex-£ *o o**206*the nominal value of one dollar, and to restrain unincorporated hanking associations.*The cause was tried before his honour the chief justice, at the *KewYork*sittings, in April, 1816.

At the trial, *Walter Morton,*cashier of the *Exchange Bank,*in the city of Kew-York, was examined as a witness on the part of the plaintiff, who testified, that in the month of *April, 1&Í 5, Jacob Barker,*the defendant, established a banking house in the first ward of the city of *Kezo-York,*which was denominated the *Exchange*Bank: that the defendant has, since the establishment of the bank, issued notes in his own name, and has received deposits and made discounts in the manner usually done by incorporated banks, and that he carried on the business of a private banker, on his individual account and responsibility, under the name and style of the *Exchange Bank.*The plaintiff having rested his cause, the defendant moved for a nonsuit, which was granted.

The plaintiff now moved to set aside the nonsuit, and the case was submitted to the court without argument.

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, *207The 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»,