Pratt v Short. These cases may be recovered, although the security itself is void," citing, among other authorities, the case of Robinson v. Bland, supra. This distinction was adopted and followed in several subsequent cases. Utica Ins. Co. v. Kip, 8 Cow., 20; Utica Ins. Co. v. Cadwell, 3 Wend., 296, and Utica Ins. Co. v. Bloodgood, 4 id., 652. have been criticised, but have never been overruled. People, 25 Wend., 64; Tracy v. Talmage, 14 N. Y., 189; Curtis v. Leavitt, 15 id. 97. The first restraining act was passed in 1804, and was re-enacted in 1813, 2 R. L. 234, and extended in 1818. Laws 1818, chap. 236. The object of these enactments, as shown by SAVAGE, C. J., in New York Fireman's Ins. Co. v. Ely, supra, was to protect the chartered banks in the monopoly of banking, and to exclude other corporations, associations or individuals from conducting a banking business in either department, of issue, deposit or discount. But the State subsequently departed very widely from this policy. In 1837 the legislature repealed the restriction before existing, preventing individuals or unincorporated associations from keeping offices of deposit, and discount. Laws of 1837, chap. 20. This act, as was said by COMSTOCK, J., in Curtis v. Leavitt, 15 N. Y. 97, reduced banking to a private business, except in the department of creating a circulating medium. After this repeal any person or association, except incorporated companies, could conduct the business of receiving deposits and making discounts. In 1838 the legislature, by the general banking law, opened the whole franchise of banking to any person or association of persons, subject only to the condition of complying with the provisions of the act. It will be seen, from this reference to the law, that the policy upon which the restraining acts were passed, viz., the securing of the monopoly of banking to special favorites of the legislature, has been abandoned. Any individual, or association of individuals, may now conduct the business of receiving deposits and discounting commercial paper. The restraint continues as to incorporated companies not authorized by their charter to conduct the business. The only public policy upon which this remaining restriction upon incorporated companies against discounting paper seems now to rest, is that of restraining corporations from exercising powers not granted by their charters. The Utica insurance cases have stood as the law of the State for more than forty years. They gave a construction to the restraining laws which has never been reversed. Union Hotel Company v. Hersee. The court is not called upon at this late day, in a case similar in principle, and involving the construction of the same statute, to reconsider the grounds of those decisions, especially when there remains but a remnant of the policy upon which they were founded, and when the business of discounting notes has been made lawful as to all the world except corporations not authorized by their charters to conduct it. In view of the special language of the restraining act, and the specification of the consequences which should follow the unlawful discount of commercial paper, there is great force in the suggestion that the legislature regarded the particular penalty imposed, and the remedy by quo warranto or by an action in equity to restrain the exercise by a corporation of unauthorized powers, as a sufficient protection against corporations, or individuals unlawfully engaging in the business of discounting paper, and that it was not intended that they should also forfeit all claim to money loaned or advanced upon the prohibited security. The justice of the particular case before us calls for no departure from these decisions. If the defendants avoid their indorsement it is the plainest equity that they shall restore the money which they received on the faith of it. The judgment of the General Term should be reversed, and the judgment of the Special Term affirmed, with costs. A subscription was made on condition that a certain sum be subscribed by the citizens of B. One of the subscribers was domiciled in A., but boarded, did business, and spent nearly all his ame in B. Held, that he was a citizen of B. within the meaning of the subscription. A CTION on a subscription for stock. The plaintiff was incorporated, for the purpose of constructing and carrying on a hotel in the city of Buffalo. The business was to be managed by a board of directors, who were clothed with the powers usual in such cases, Union Hotel Company v. Hersee. and among others that of "calling in subscriptions" to the stock of the company. The defendant subscribed for fifty shares of the capital stock of the company, at $100 per share, "provided the sum of $200,000 be subscribed by the citizens of Buffalo." Afterward the defendant gave notice to the plaintiff that he withdrew his name as a subscriber to the capital stock of the company. Subsequently the board of directors made two calls for portions of the subscriptions, amounting, in the defendant's case, to $1,500; and these not being paid, this action was commenced on the 9th of February, 1876, for their recovery. Upon the trial the defendant's counsel moved for a nonsuit because "the plaintiff had not proved that the subscribers to the capital stock of the company were citizens of Buffalo or residents of that city." A nonsuit was denied. The defendant asked to go to the jury. This was also denied. The opinion states other facts, plaintiff had judgment, which was reversed by the General Term. Sherman S. Rogers, for appellant. George Cleveland, for respondent. DANFORTH, J. [After stating the facts, and omitting another question.] The objection most earnestly relied upon by the learned counsel for the respondent is, that the sum of $200,000 was not subscribed for by citizens of Buffalo; and if this is so, the judgment appealed from must stand, notwithstanding the validity or even payment of the subscriptions so made, for the defendant thus qualified his promise. In order to answer the question now raised, we are to ascertain who were intended by the term "citizens of Buffalo." The word has more than one meaning, and must be taken in the sense which best harmonizes with the subject-matter in reference to which it is used. With what object and intention, therefore, was it introduced into the contract? This inquiry accords with an accepted rule of interpretation, that "all words, whether they be in deeds or statutes, or otherwise, if they be general and not express and precise, shall be restrained unto the fitness of the matter or person:" Bacon's Maxims of the Law, Regula X. By the definition usually given, a citizen is "an inhabitant of a city, town or place," and so would include every person dwelling in the place named; but it is subject to various limitations depending upon the context in which it is found. It may indicate a permanent resiVOL. XXXV-68 Union Hotel Company v. Hersee. dent, or one who remains for a time or from time to time. That it has various meanings, according to the object in view, is well illustrated by different statutes in which it appears. An act which imposes the burden of making and repairing bridges on the "inhabitants," in the town or county in which they are situated, is held by that term to include all holders of houses and lands in the locality, whether resident or not, but as excluding actual dwellers who had no ratable property in the place, such as servants (Rex v. North Curry, 4 B. & C. 953); and this agrees with the definition given by Jacobs in his Law Dictionary and adopted by ALLEN, senator, in Matter of Wrigley, 8 Wend. 141, viz.: "He who hath a house in his hands in a town may be said to be an inhabitant." But where a person occupied premises in one parish and carried on his business in person there, but resided in his dwelling-house in another, he was held not to be an inhabitant of the former parish, so as to be bound to serve as its constable. Rex v. Allard, 4 B. & C. 772 ; Rex v. Nicholson, 12 East, 330. A man may be domiciled in one place and be a resident in another, at the same time, as in the case of Wrigley, supra. His domicile was England, but he was said to be an "inhabitant" of New York while he transacted business there; and so in questions affecting the rights of creditors, 19 Wend. 47; and those concerning taxation. By the Revised Statutes, tit. 2, p. 1, chap. 13, art. 1, vol. 1, p. 389, § 5, it is assumed that a person may reside in more than one place during the same period; and his residence, within the meaning of that section, is declared to be the county, town or ward in which his principal business shall have been transacted. This question is considered in Bell v. Pierce, 51 N. Y. 12; and it is there shown that a man may be a resident of two places at one and the same time, and that "to establish a residence requires a less permanent abode than to give a domicile, or even to create an iuhabitance." In the case before us, the object of the subscription was to provide for the erection of a hotel; and this is well put by counsel in behalf of the respondent. It was, he says, "a project in which the business men of the city were pecuniarily interested," and the object of the respondent himself is stated by his learned counsel. He "desired," it is said, "that the hotel, which he expected and hoped the corporation formed for that purpose would build, and from the erection of which he calculated great pecuniary benefits in his business, should be under the control and management of his fellow townsmen men whose interests Union Hotel Company v. Hersee. were in the same direction as his." This statement is warranted by the defendant's evidence as a witness. Now to promote this object it was not necessary or expected that the subscriptions should be by persons who were qualified voters in Buffalo. They would constitute one class of citizens, and for certain obvious purposes the only ones entitled to that name; and it is not unlikely that much local patronage of the hotel when erected would be drawn from that class. But the object was to erect the hotel, and for that purpose, not only to procure the necessary funds, but at the same time to enlist the interest of the business men of Buffalo in the enterprise, so that as far as possible, they would be concerned in securing for it patronage, and contribute to its success. For that purpose, it would be immaterial whether the subscriber occupied with his family a house within the limits of the city, or outside of them, so long as his place of business was in Buffalo, and he had a permanent pecuniary interest in its welfare and in the success of the new house. In that view we must consider the objections pointed out by the exception taken to the subscriptions of Richmond and Spencer. Mr. Richmond resided, at the time of the trial, in Buffalo, but at the time of the subscription, had his house and legal residence in Batavia, Genesee county, and says: "I boarded in Buffalo, at the Tifft House. I spent nearly all my time in Buffalo. I was engaged in business there." His domicile, then, was Batavia; but that is in no respect inconsistent with the fact that his residence was in Buffalo. He was actually there the greater part of the time, and was permanently there for business purposes. He is within the definition adopted in In re Thompson, 1 Wend. 45, viz. : "He who stops even for a long time in a place for the management of his affairs, has only a simple habitation there, but has no domicile." [Omitting other points.] We are thus led to the conclusion that the case was well disposed of by the learned trial judge. Therefore the order of the General Term should be reversed, and judgment absolute rendered for the plaintiff upon the verdict, with costs. Order reversed, and judgment accordingly. All concur. |