
    The State v. Samuel M. Williams and others
    Where an answer contains several distinct pleas, one of which presents a valid defense, ana the plaintiff demurs to the answer without distinguishing between the pleas, it is not error to overrule the demurrer generally.
    Where the plaintiff' demurs to the answer it is not understood that he also joins issue upon the facts stated in it, as is the practice where no demurrer is filed ; and in such a case, if the demurrer tie overruled, the judgment goes for the defendant on the merits, unless the plaintiff' should ask leave to amend or to join issue upon the facts stated in the answer.
    A general demurrer by the plaintiff* to the answer of the defendant briugs the sufficiency of the petition before the court for adjudication; (hat is. the demurrer goes back to the first error in matter of substance, that would not be cured by verdict, committed by either party.
    Where an offense unknown to the common law has been created by statute, whether the proceeding bo by bill, information,-or the common-law declaration, the same certainty is required in the specification of the fact or facts constituting the offense as in a bill of indictment. (Note 60.)
    Exercising banking or discounting privileges is a statutory offense unknown to the common law.
    The court disclaims any right or authority to give to the language of a penal statute any more lenient construction than would be its import in ordinary use.
    Where the statute imposed a penalty on the exercise of “banking or discounting privileges” the court said: The charge con tained in the petition is kept their office and exercised banking privileges,” adding to the words of the statute “kept their office,” and omitting “or discounting” between the words “banking” and “privileges” in the statute, thus materially departing from the language of the statute, more objectionable for the word-* omitted than for those added, as they formed a component part of the offense defined.
    Where the statute imposed a penalty on the exercise of banking or discounting privileges, and in a subsequent section declared that each and every month during which the same should be exercised should be a separate offense, the court said: But the charge In the petition is still more defective, because, after setting out the offense as defined by the statute, it should have alleged with great particularity the specific fact or facta"con-stituting the offense charged, the person or persons who had obtained the discount or discounts, and thus to have raised the foundation for proof that it had been so continued for the space of one month.
    
      Appeal from Galveston. The petition in this case, after the introductory .part, continued:
    “The petition aucl complaint of the State of Texas, by John W. Harris, attorney general, would respectfully represent unto your honor thm an association and a company of individuals, hereinafter to be called defendants, consisting of Samuel M. Williams, J. A. Reynolds, Jesse J. Davis, Jacob L. Briggs, Michael B. Menard, George Ball, Henry Ilubbell, all of whom arc residents of the said county of Galveston, (and consisting- of ottiers also, to petitioner yet unknown,) have, from and after the first day of May, eighteen hundred and forty-eight, until the second day of June, in the said year, that is to say, for the space of one month next from and after the said first day of May, 1848, kept their office and exercised banking privileges in said county and State -without the authority of law, and bave'been thereby guilty of a misdemeanor, and are liable to afine of live thousand dollars. Petitioner further represents that the said Samuel M. Williams is and was the president and a director of the said association and company; that the said J. W. McMillen is and was the cashier and a director thereof, and that the residue of the above-named defendants are and were the directors thereof, and that they, the said Williams, McMillen, and other named defendants, continued to be and to act in their capacities aforesaid from and after the said first day of May to the second day of June aforesaid: wherefore, in consideration of the premises, your petitioner prays that the above-named defendants and the other individuals who composed the residue of the said association and company from the said first day of May to the said second day of June, when discovered, may he made parties to this suit, and may he cited to appear at the next regular term of the District Court to bo holden,” &e. Then followed a prayer for judgment.
    The defendants answered:
    “And the said defendants come and defend the wrong and injury when, &c., and as to so much of the petition of the plaintiff in the above-entitled cause as charges or alleges that these defendants, for the space of one month next from and after the first clay of May, A. D. 1848, or at any other time, in the county of Galveston aforesaid, or elsewhere in this State, have exercised banking privileges without the authority of law, and have thereby been guilty of a misdemeanor, and are liable to a fine of live thousand dollars, these defendants deny the truth of the same, and say they are in nowise guilty in manner and form as is thereof in and by the said petition charged against them, and of this they put themselves upon the country.
    By Allen ^ aUorMys^
    
    And for further answer in this behalf, these defendants say that the State of Texas ought not to have and maintain its action aforesaid, thereof, against them, because they say that heretofore, to wit, on the thirtieth day of April, A. D. 1835, the territory belonging to the present county of Galveston aforesaid was embraced and included in the department of Brazos, then, so called, in the State of Coahuila and Texas, then one of the United Mexican States, and that by an act or decree of the Congress of the said State of Coahu-ila and Texas, made and passed on the thirtieth day of April aforesaid, known as decree Ho. 308, a copy whereof, marked “Exhibit A,” is herewith filed as a part hereof, a bank was granted and authorized to be established in the said department of Brazos, to be called the “Commercial and Agricultural Bank,” which is the same as the “ Bank of Agriculture and Commerce,” mentioned in the joint resolution hereinafter referred to, and the same as the “Banco de Commercio y Agricultura,” mentioned iu the said decree, whereof the said Samuel M. Williams, as empresario, was authorized and required to take the proper measures in pursuance of the said decree and of the law of the land, which decree further provided, among other tilings, that a commissioner should be appointed by the executive previously intervening, who should furthermore examine every year the state of the concerns of the association or bank afore•said. '
    
      And these defendants further say that afterwards, to wit, on the tenth day of December, A. D. 1836, by a certain act of the Congress of the Republic of Texas, entitled a “Joint resolution for the i-elief of Messrs. McKinney and Williams,” approved the 10th day of December aforesaid, it was, among other things, provided that the President of the said Republic should be authorized and required to appoint a commissioner for the purpose contemplated in the 10th article of the charter of the Bank of Agriculture and Commerce, granted to Samuel M. Williams by the Legislature of the State of Coahuila and Texas in April, 1835, in order that the parties might exercise and enjoy their privileges under the said act; and these defendants aver that the charter so named in the said joint resolution as aforesaid was and is the aforesaid decree Ño. 308; also that the said commissioner mentioned in said joint resolution was a like commissioner, and to be appointed for like purposes as the commissioner mentioned in the said decree, and that the Congress of the Republic of Texas, by their said joint resolution, recognized and adopted the said decree as a good’ and valid laxv, with all the immunities, franchises, privileges, and provisions therein or thereby conceded, granted, or contained.
    And these defendants further say that, in conformity to the requirements of tile said joint resolution, the president of the Republic of Texas did, on the-day of-, A. D. 18 — , subsequently to the passage of the same, appoint one Miles P. Smith as commissioner, for the purposes contemplated in the same; and that afterwards, to wit, on the 30th day of December, A. D. 1847, the subscribers to the capital stock of the said bank having joined for more than three thousand shares thereof, and the said shares being taken and paid for to the amount of one hundred thousand dollars, the said empresario, in pursuance of the requirements of said decree, called a meeting of the said subscribers on the said last-named day at the city of Galveston, in said county, which meeting was then and there duly held and attended as -well by the subscribers as by'the said commissioner, who then and there, in pursuance of his duties as such commissioner, examined the affairs and concerns of the said association, and counted the money then in the vaults of the said bank, amounting to the sum of one hundred thousaud dollars as aforesaid, and eert-ilied the same in due form; and that at the said meeting on the day last aforesaid these defendants were duly elected directors of the' said association, and that they then and there chose the said Samuel M. Williams as the president thereof, each and all of whom accepted the said office to which they were respectively elected and chosen as aforesaid.
    And these defendants further say that, by reason of the premises and in manner aforesaid, the said Commercial and Agricultural Bank was then and there duly organized and established in accordance with the provisions of its aforesaid charter and of the law of the land, ever since which time the said bank has been and continued in lawful operation, and these defendants, as the proper and lawful directors and officers thereof, have, under the charter and laws aforesaid, exercised banking privileges as they were and are lawfully and by authority of law entitled to do; and that these are the same banking privileges wheréfor and for the exercise whereof they, the said defendants, are sued and complained against in the plaintiff’s petition aforesaid, all which they are ready to verify. 'Wherefore they pray that the plaintiff be precluded from having or maintaining the aforesaid action thereof against them and for costs.
    By ALLEN and Hale, their attorneys.
    
    Exhibit A.
    Art. 1. It is hereby granted that a bank be established in the department of Brazos, to be called “ Commercial and Agricultural Bank.” Samuel M. Williams, as empresario, shall take the proper measures for the esiabiishment thereof.
    
    Art. 2. The capital of said bank shall not exceed the sum of one million of dollars, to be divided into ten thousand shares of one hundred dollars each.
    Art. 3. Subscribers having joined for three thousaud shares at least, the eir.~ presario shall call a meeting of the same and proceed to elect eight directors, who shall choose a president among themselves, and they shall perform the-duties of their office one year.
    Art. 4. To obtain the office of director it shall be required to be a citizen of the State and an owner of five shares at least.
    Art. 5. The votes shall be given at the rate of one for each share, but no-subscriber shall have more than fifty votes, whatever be the number of shares he may own. Absent persons may vote by proxy.
    Art. 6. The board of directors shall be annually renewed, and the letter of convocation shall be issued by said board forty-five days before the expiration of their terms, and the election shall be holdeu eight days before the close of the corresponding year.
    Art. 7. The board of directors shall form internal regulations for the financial management of all the business of the association.
    Art. 8. The notes that are issued shall be signed by the president and cashier in the name of the association, and the bank capital shall bo responsible for the payment of the value thereof. Said bank may sue and be sued.
    Art. 9. To give activity to commerce, arts, and industry, the bank may make loans, receiving as high as at the rate of eight per cent, per annum for • a period not exceeding six months, and ten per cent, when it exceeds that term, exacting the necessary security of the person interested.
    Art. 10. The subscribers shall adequately secure the value of their shares with real estate in the Republic, and as soon as one hundred thousand dollars at least have entered the vault of the bank it may commence operations, a commissioner to be appointed by the executive previously intervening, who shall furthermore examine every year the state of the concerns of the asso-" ciation.
    Art. 11. The bank shall continue for the term of twenty years, and may establish branches thereof at any place in the State.
    Tiie plaintiff demurred as follows:
    “And now at this term of the court comes the said plaintiff and says that the matters and tilings contained in the answer of defendants in manner and form as therein stated are insufficient in law and present no legal defense to this action—
    “1st. Because he says that there never existed any decree such as that described in the plaintiff’s petition (defendant’s answer) for the establishment of any bank to be called ‘'Commercial and Agricultural Bank,’ by the defendants or either of them, or by any other person whomsoever.
    “2d. That the said decree, No. 308, in said answer mentioned, was repealed on or about the sixteenth day of March, 1840, and the said defendants have not alleged that any rights had rested in them or either of them, or any other person under whom they claim, at any time anterior to the repeal of said decree, nor do they allege that any such bank was ever established at any time anterior to the repeal of said decree, or even anterior to the adoption of our State Constitution.”
    The demurrer was overruled, and the plaintiff not asking leave to amend or to join issue on tlie facts stated in thejpuswer, the judgment went for the defendants.
    This case was argued.
    
      A. J. Hamilton, for appellant.
    
      Allen and Hale, and J. B. Jones, for appellees.
   Lipscomb, J.

The petition in this ease was filed by John W. Harris, Esq., Attorney General, in behalf of the State. It represents that an association and a company of individuals, consisting of Samuel M. "Williams, J. W. McMil-len, J. N. Reynolds. Jesse J. Davis, Jacob L. Briggs, Michael B. Menard, George Ball, and I-Ienry Hubbell, all of the county of Galveston, “ have, from and after the 1st day of May, eighteen hundred and forty-eight, until the 2d day of June in the said year, that is to say, for (lie space of one month next from and after the said'first day of May, 1848, kept their office and exercised banking privileges in said county and State without authority of law, and have been thereby guilty of a misdemeanor, and are liable to line of livo thousand dollars.'’

It further represents that Samuel M. Williams is and was the president and a director of tiie said association and company; that the said j. W. McMillan is and was the cashier and a director thereof, and that the residue of the above-named defendants are and were the directors thereof, and that the said Williams and McMillen, and other named defendants, continued to be and to act in their capacities aforesaid from and after tiie first day of May to the second day of June aforesaid. It prays for process and judgment.

Tiie citation was waived; and tiie defendants answered, first, a general denial of the petition; and secondly, answered, citing special matters as a justification in law.

The. attorney general filed a general demurrer, on which the court below gave judgment in favor of the defendants; from which the State appealed.

It is contended for and in behalf of the, State; that the court below erred in giving judgment for the defendant, when its judgment ought to have been for the State, and a reversal is asked.

The statute under which the proceedings in this case were had is in tiie following words, i. e., “That any corporation, company, or association of individuals who shall use or exercise hanking or discounting' privileges in this State, or who shall issue any bill, cheek, promissory note,'or other paper in this State to circulate as money, without authority of law, shall be, deemed guilty of a misdemeanor, and shall be liable to a fine of not less Ilian two thousand dollars nor more than five thousand dollars, which may be recovered by a suit in the District Court in the name of the State.” The 4th section of the act enacts that each and every mouth that any corporation, company, or association of individuals shall use or exercise banking or discounting privileges in (iiis State without authority of law, shall be deemed a separate offense, as defined in the first section of this act; and each and every bill, check, promissory note, or other paper issued by any corporation, company, or association of individuals in this State to circulate as money, without authority of law, shall also be deemed a separate offense, as defined in the first section.” (Hart. Dig., arts. 87, 00.)

The ollense on which the petition was filed is defined in the first section, and tiie penalty is sought to be enforced for exercising banking or discounting privileges for one month as provided for by the first clause of the 4th section of the act cited above.

The validity of the legal defense claimed by the second plea of the defendants has been elaborately and ably discussed by the counsel on both sides ; but as other grounds have been presented for onr consideration in support of the judgment of the court below by the counsel for the appellees, arising from tiie pleadings as presented by tiie record, and as it is likely that wo should find some difficulty in arriving at a satisfactory conclusion on the legal sufficiency of the defense set up in the appellee’s second answer, we have concluded that as the view we have taken of the ground taken by the appellees, arising from the pleadings, will affirm the judgment, it is most proper to rest our opinion on these grounds only, without discussing the other, as, whatever might be our opinion on that point, it could not afieet the judgment in this ease.

It is contended by the appellees’ counsel that the demurrer went to the whole of tiie answer of the defendants. In this proposition we fully concur, and also in its application. The first answer of the defendants was not objectionable, and presented an issue of fact; and whatever the law presented by the second answer may be, as to its legal sufficiency, tiie first answer ought not to have been demurred to, but it should have been tried by the jury, and the plaintiff should have confined his demurrer to the second answer; and the plaintiff not having asked leave to amend, the judgment was correctly rendered for the defendants. This of itself would be decisive in support of an affirmance of the judgment.

The appellees have presented another ground (and, perhaps, a more important one) in support of the judgment on the pleadings. They object to the sufficiency of the plaintiff’s petition, and say that it is not such as, under the statute on which the suit was instituted, would have authorized any valid judgment against the defendant, and that the plaintiff’s demurrer brought the sufficiency of his petition before the court to be adjudicated.

The proposition is believed to be incontrovertible that a general demurrer goes back to the first error in matters of substance, we mean1" to the first error that would he fatal to the action or the defense, and not to such as would be considered as matter of form and cured by a verdict. (10 Pet. R., 264; 2 Johns. R., 405; 3 Id., 366; 11 Id., 482; 3 Cr. R., 229.)

We will then proceed to examine the plaintiff’s petition, first laying down some preliminary rules that must control us in that investigation. Wc lay it down as a well-established rule of law that where an offense has been created by a statute unknown to the common law, in any proceeding under such statute to punish the offense or to enforce the penalty prescribed, whether such proceedings he by hill, information, or the common-law declaration, tile same certainty in the specification of the fact or facts constituting the offense defined will he required that would he natural in a hill of indictment. (Bacon, INFORMATION, C., 4 vol., p. 411; 1 Chitt. Crim. Law, 846 ; 2 Id., pages 6, 11, Burrow.)

That tiie offense, defined by the Legislature, under which this suit was commenced, is clearly statutory and unknown to the common law, caunot for a moment be. doubted. (2 Johns. Chan. R., 377.)

The offense defined by the law is the use of banking or discounting privileges, and it further particularizes wliat is meant by banking privileges; “or shall issue any bill, check, promissory note, or other paper in this1 State to circulate as money;” and by the fourth section eacli of these specifications is made to constitute a separate offense as defined by the first section. Row let us take both sections together and construe them in reference to each other, and the result of the analysis will he that the following facts will each constitute a separate offense, on which the penalty prescribed can be brought to bear; first, the use or exercise of banking or discounting privileges for one month; second, the issuance of a bill; third, cheek; fourth, promissory note; fifth, or other paper to circulate as money. The issuance of any of these papers, from number two to five inclusive, if with a view to its circulation as money, constitutes a separate offense from the one first numbered. The statute is one of exceeding severity. It would subject the violators to a separate prosecution and penalty of not less than two thousand dollars for each and every paper within the batch of the four specifications. A statute so penal would strongly incline us, were we allowed, as English judges often took it on themselves to do, to give a more lenient construction t,o the language employed in it than would ho their import in the ordinary use of those words, and to say that when the Legislature have said that each and everyone of these should be deemed a separate offense, they only meant that proof of these facts should he deemed plenary to the offense. We, however, disclaim any right or authority to do so, and must content ourselves with the plain meaning of 'the language employed by the law-makers.

This suit was brought to recover the penalty for the infraction of the law under the first specification in our analysis: “ The use or exercise of banking or discounting privileges for one month,” The charge contained in tlie petition is, “kept their office and exercised banking privileges,” adding to the words of the statute “kept their office,” and omitting “or discounting” between the words “banking” and “ privileges ” in the statute, thus materially departing from the language of the statute, more objectionable for the words omitted than those added, as they formed a component part of the offense defined. But the charge in the petition is still more defective; because, after setting out tiie oífeñse as defined by the statute, it should have alleged with great'particularity the specific fact or facts constituting the offense charged, the person or persons who had obtained the discount or discounts, and thus to have raised the foundation for proof that it had been so continued for the space of one month. We have no answer to make to the objections that under the rule laid down it would bn exceedingly difficult to convict on this specification of the offense defined. We are only applying a well-known rule of law to the case presented for our consideration, and for its correctness we will refer to Bush v. The Republic of Texas, 1 vol. Tex. R., 455, and Burd v. The Republic, particularly the last, 1 vol. Id., 608, in which the doctrine on this question was fully discussed on principle and the authorities on tho subject examined. These two cases so entirely and clearly sustain the conclusion to which we have come that a reference to them might well have justified us in relying on them without any further investigation. ‘ We are, therefore, of opinion that tho petition in this case is insufficient in law to have authorized a judgment against the defendants, and that the judgment in their favor on the plaintiff and appellant’s demurrer be, and the same is, affirmed.

Note 59. — Orton v. Engledow, ante, 20G; The State v. williams, 14 T., 98.

Judgment affirmed.  