I can see no foundation for this action. The statute is penal, and a very plain and obvious construction appears on the face of it. It was intended to restrain banking associations unincorporated. An individual may certainly, by law, issue notes, receive deposits, and make discounts.
Plaintiff non-suited.(1)
This case came before the Supreme Court, upon a motion to set aside the non-suit, which was decided in May term, 1817, (14 Johns. 208.) The construction given to the statute at Nisi Prius, was confirmed by the court. The only difficulty to which the attention of the court seems to have been drawn, in opposition to that construction, arose from the word “proprietor,” as used in the act. And, upon this, the court remarked that there was no difficulty in giving force and effect, to all the words used in the act, and still confining their application to companies, or associations, except as to the word proprietor; in regard to which they observed that there appeared, at first view, to be some little difficulty; but that, taking the whole section together, that word might be satisfied by considering it used as synonymous to the word member, and that the clause might then be read and understood as declaring that no person, unauthorized by law, should become a member, or proprietor with others, of any bank or fund, &c.