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business, as for the purpose of making temporary loans and discounts, of dealing in notes, foreign or domestic bills of exchange, credits, and the remission of money, or in the transaction of any like matters which are recognized as departments of the banking business, then he is properly a banker. He need not combine all these functions; the exercise of any one of them would probably suffice, provided that it be conducted with the aggregate capital aforesaid, and not by way of brokerage, or of mere buying of business paper with intent to sell again.

III. Generally speaking, a banker would also be under the obligation of allowing his customers to draw against their deposits, in substantially the same manner as an ordinary depositor in an incorporated bank draws checks upon the bank. It is possible, however, that arrangements might be made by which the depositors should agree not to draw for a certain time, or to leave always a certain sum to their credit, or not to draw without notice of one or more days. Agreements of this description need not prevent the character of banker from accruing. But it is essential that the deposits should be in the nature of general deposits. The fact that a man borrows from another a certain sum and uses it for loaning, or discounting, or dealing in exchange, no more makes him a banker than does a similar use of his own money; and it cannot be questioned that a man who simply discounts business paper or buys and sells exchange solely with his own private funds is not a banker in the proper and strict sense of the term. As is easily to be gathered from the definitions of Mr. Webster, there must be a joint character, a joint stock, a combination of the funds of several, as a primary condition of the existence of a bank or banker, or of the transaction of a banking business. An individual, not acting under a corporate form or style, but simply as one man dealing with another, lending to that other money belonging to the lender himself, is not a banker but a money-lender, even though the loan takes the form of a discount. This principle, of the necessity of a joint fund, will be further illustrated and enforced forthwith in connection with the subject of The Right of Banking and Restraining Acts.

In 1866 the Congress of the United States thus defined a bank or banker :"Every incorporated or other bank, and every person, firm, or company having a place of business where credits are opened by the deposit or collection of money or currency, subject to be paid or remitted upon draft, check, or order, or where money is advanced or loaned on stocks, bonds, bullion, bills of exchange, or promissory notes, or where stocks, bonds, bullion, bills of exchange, or promissory notes are received for discount or for sale, shall be regarded as a bank or banker." Acts of 1865-6, ch. 184.

This enactment does away with the necessity of a joint stock and of the combination of funds through the medium of general deposits. It would in most cases render private money-lenders, bankers. Its intent, however, is not to have this force generally, but only for the specific and narrow purpose of taxation. Every money-making occupation is to be taxed; a few broad lines are drawn, and the whole community is marshalled into the various areas by means of this and similar imperative definitions. The act does not say a private money-lender is a banker, but simply that he shall be taxed as such; probably for the reason that his business is more nearly akin to banking than to any thing else. But for purposes of strict legal construction, in all questions arising beyond the control of the provisions of this act, these arbitrary boundary lines are value

less. A private money-lender could not have been taxed as a banker in the absence of this express legislation; and it was to remedy this that the legislation was deemed necessary.

In construing this statute, the Supreme Court of the United States adopt the definition of a banker therein given (Act 1864, § 79), and say generally : “Having a place of business where deposits are received and paid out on checks, and where money is loaned upon security, is the substance of the business of a banker.” It will be observed that the statute uses the disjunctive and the court the conjunctive particle. The statute says: "Where credits are opened by deposit... or where money is advanced," &c. The court speak of the depositing "and" loaning. For all general purposes, beyond the artificial influence of the act, the court is clearly the more correct.

1 Warren v. Shook, 91 U. S. 704.

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AT common law, the right of banking pertains equally to every member of the community. Its free exercise can be restricted only by legislative enactment; but that it legally can be thus restricted has never been questioned. After laws upon the subject have been passed, the business must be undertaken and conducted in strict accordance with all the provisions contained in them. It is not in its nature a corporate franchise, though it may be made such by legislation, and individuals may be prohibited from transacting it, either altogether in all its departments or partially in any specified ones. A law which forbids the carrying on of "any kind of banking business" is a total prohibition against each particular department of the business, though conducted singly, and may be infringed equally by exercising any separate one of the various banking functions as by exercising all.1

But the restraining statutes, being really in derogation of common-law rights, will always be interpreted, with reasonable

1 Curtis v. Leavitt, 15 N. Y. 9 (p. 52); Attorney-General v. Utica Ins. Co., 2 Johns. Ch. 371; The People v. Same, 15 Johns. 358; Same v. Bartow, 6 Cow. 290; Nance v. Hemphill, 1 Ala. 551; State v. Williams, 8 Tex. 255.

liberality, in favor of the supposed infringer; and when they are penal in their character they will be construed with considerable strictness in his favor. Isolated acts do not constitute an infringement. Thus, discounting notes is one of the most important of banking functions, and the one which, next to the utterance of bills for circulation, is of most interest to the public, and has therefore been most frequently and most carefully regulated by statute. But any person may occasionally discount a note for another without coming within the legislative prohibition. If he is simply dealing with his own funds, he is not properly encroaching upon the business of banks in the same department. For, in order to bring discounting within the proper definition of a banking function, it must be done with money, in part at least that of other persons, intrusted to or deposited with the discounter, so that he has the practical use and control of it for these purposes as fully as if it were his own. Even if he does use the money of others, he must do it, not on comparatively rare occasions, and as the special agent of each one of them empowered to this specific end; but with some degree of frequency, and as a general agent having control of the combined or intermingled funds of several. In New York, restraining statutes, penal in nature, and treating in their exact phraseology only of "associations or companies," have been declared to have no application to individuals. Any single person may enjoy all his common-law rights unimpeded by them.2 But, upon the other hand, no person can enjoy any of the powers or privileges granted or appurtenant to associations or companies, even though for the purpose of conducting his business he assumes the style of a corporation. He may furnish all the capital, may control all the business, may be practically the bank itself, yet he must go through all the forms of organization prescribed in the organic banking laws of the country or State before he can be entitled to any of the rights which inhere in corporations only by virtue of those laws.3

1 Utica Ins. Co. v. Scott, 8 Cow. 709; People v. Brewster, 4 Wend. 498.

2 Bristol v. Barker, 14 Johns. 205; Codd v. Rathbone, 19 N. Y. 37. To the same effect is also the law in Illinois. Hunt v. Divine, 37 Ill. 137.

3 Hallett v. Harrower, 33 Barb. 537.

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