Wiggin v. Freewill Baptist Church, 8 Met. (Mass.) 301 476 Wild v. Bank of Passamaquoddy, 3 Mason, 505 71, 140, 142, 151, 164 Wilkinson v. Johnson, 3 Barn. & C. 428 . 295, 297, 299 295 193, 239, 262, 284, 285 v. Georgia R. R. & Banking Co., 34 Geo. 330 v. Reed, 3 Term, 554 Wyman v. Hallowell & Augusta Bank, 14 Mass. 58 Y. Yates v. Bell, 3 B. & Ald. 643 Yeaton v. Bank of Alexandria, 5 Cranch, 49 York, &c. Railway Co. v. Hudson, 19 Eng. L. & Eq. 361 460 335 98 44 .301, 302 361 Z. 36 DEFINITIONS. THE definitions of the words Bank, Banker, and Banking, in Worcester's Dictionary, are too deficient in precision to be of any use for legal purposes. Those given by Webster are, likewise, certainly open to criticism; but as they are the best there are, we give the pertinent portions of them, as follows: “Bank.—4. By analogy. A collection or stock of money, deposited by a number of persons, for a particular use; that is, an aggregate of particulars, or a fund; as, to establish a bank, that is, a joint fund." "6. A company of persons concerned in a bank, whether a private association or an incorporated company; the stockholders of a bank or their representatives, the directors acting in their corporate capacity." "Banker. One who keeps a bank; one who traffics in money, receives and remits money, negotiates bills of exchange, &c." “Banking. The business or employment of a banker; the business of establishing a common fund for lending money, discounting notes, issuing bills, receiving deposits, collecting the money or notes deposited, negotiating bills of exchange, &c." Of these definitions the second is both the least satisfactory and the most important. For the question will often arise, in reference especially to taxation, whether or not a person or firm doing business on his or their own account, and not as a corporation or association, is a banker or a banking firm. Clearly the fact of "trafficking in money "does not suffice to convey this legal character. Our own view of the subject is supported by no direct adjudications placing any technical construction upon the term, but is obtained from a general consideration of the topic of the law and business of banking. To render an individual a banker, then, the following facts should combine : : I. He must receive on general deposit the funds or money of other persons, which he must mingle together or with his own money or capital, and use as a general fund subject to his own sole control. II. This general and concrete fund he must use for the prosecution of some of the functions of the banking business. If he simply uses it for what are properly called investments, which from time to time he changes, as he deems advisable, he rather resembles a trustee than a banker. But if he uses it for the prosecution of any description of banking business, as for the purpose of making temporary loans and discounts, of dealing in exchange, foreign bills and 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 suffice. 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 or buys and sells exchange 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. 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, amendatory of sect. 79 of the Internal Revenue Acts of June 30, 1864, and March 3, 1865. 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; since 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 valueless. 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. |