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JULY TERM, 1839.

Of the city of New York, Counsellor at Law.




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THE history of judicial controversy, so far as my knowledge of
it extends, does not furnish a case, in which such an immense
amount of property and such vital interests of the community
were involved, as were brought into discussion and subjected to judi.
cial determination, by the argument of the cause of Anson Tho-
mas, President of the Bank of Central New-York, against Samuel
D. Dakin, at the last July Term of the Supreme Court of this
State, held at the city of Utica. The question raised, discussed
and submitted to the Court, in that cause, was, whether the Act of
our Legislature, entitled, “ An Act to authorize the business of
banking," passed the 18th April, 1838, and commonly called the
" General Banking Law,” was constitutional or not. If it is not
constitutional, it is of course void, and gives the banking compa-
nies, formed under it, no legal authority to conduct banking business.
Every one will readily see, the immeasurable amount of unmixed
evil which must flow from such a result. The contemplation of it,
even, is appalling. It became my duty to take a responsible part
in this


The tens of millions which have already been invested under this Statute, and now actively employed, and the arrangements which have been made for the investment of hundreds of millions, give the subject an unparalleled importance as regards mere amount of property. The peculiar moment too, at which the question arises, is most inauspicious for the business and commerce of the country, and the public credit of the States of our Union. The determina. tion of the question will, moreover, have a material influence on the future legislation of this State, so far as relates to private incorpo. rations; and, it is hoped, may have a beneficial effect upon it, and check, if not entirely cure, many serious evils we now endure.


These various aspects of the subject have created great anxiety in the public mind, as I learn, to be informed of the grounds taken in the argument, the precise questions raised and discussed, and the views taken and suggestions made by the Court.

The passing of the present month at this place gives me an opportunity, and I have concluded to write out and publish my argument, in the hope, that its publication may be of some benefit, at least, in allaying the anxiety felt to be informed of what occurred on the discussion, and perhaps, in exhibiting the firm grounds on which the rights of those rest, who have invested their property on the faith of a public statute of our state.

SAMUEL A. FOOT, GENEVA, August 1, 1839.


STATEMENT of the case—and how the question arises, respecting the constitutionali

ty of the General Banking Law. Preliminary remarks. Propositions maintained in the argument : First. The associations authorized by the Statute and organized under it, are not

corporations; and, consequently, the clause in the Constitution of this State, which restricts the power of the Legislature in creating bodies corporate, does not

apply to it. Second. But admitting that the associations are corporations ; still, this Statute is con

stitutional ; because, the restrictive clause of the Constitution does not prohibit the Legislature from passing a law, authorizing an indefinite and unlimited number of corporations; or, in other words, does not apply to a general act of incorporation; and, consequently, the Legislature may now provide, by a general law, for the incorporation of an unlimited number of voluntary associations; as it could

and did, in many instances, before the adoption of the present Constitution. Third. Admitting that the constitutional restriction does apply to a general act of in

corporation; nevertheless, such an act may be passed by a two-thirds vote ; and the Statute in question, having passed through the regular forms of authentication, and appearing on the statute book, must be presumed to have been passed by the

requisite constitutional vote. Supreme Court. ANSON THOMAS, President of the Bank of Central New-York,


This is an action of Assumpsit, commenced by declaration in the usual form, upon three drafts, amounting together to about five thousand dollars, drawn by Dakin, the defendant, in the

* This cause was argued at Utica, before the Supreme Court, on the 22d, 23d and 24th days of July, 1839, by Ward Hunt, Esq., for the defendant, and by C. P. Kirkland, Esq., and the writer of these pages, for the plaintiff. Mr. Hunt made a full and strong argument. Having evidently studied the cause thoroughly, he presented his propositions and sustained them with propriety, clearness and force. Mr. Kirkland opened the argument for the plaintiff

, in a speech of upwards of three hours in length; and during the whole of its delivery, he had the undivided attention of the Court and audience. He appeared to realize the very great importance of the question under discussion, and fully met it. His reasoning was forcible and conclusive, and his manner, as usual, remarkably appropriate.

I hope I may be indulged the remark, that the Bar of this state is in no great danger of declining in usefulness or public estimation, while gentlemen like Mr. Kirkland are rising into its first ranks.

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