Opinion
September Term, 1851
H.M. Western, for appellants.
Wm. Curtis Noyes, George N. Titus, and B.W. Bonney, for respondent.
The first question presented by this case is, as to the validity of the act entitled, "an act to authorise the "business of banking," passed April 18th, 1838. There has been much diversity of opinion as to the constitutionality of this act; that question, however, has been deliberately passed upon by the court of last resort in this state, and its constitutionality sustained. ( Gifford v. Livingston, 2 Denio, 380.) The question must therefore be regarded as put at rest, by authority binding upon the courts of this state.
The court below was right in overruling the appellants motion to empannel a jury for the trial of the issues, made by the pleadings. The suit having been commenced in the late court of chancery, was triable by the court, unless in its discretion it saw fit to refer the issues to a jury or referee. The code of 1849, under which this cause was tried, required every issue of fact in an action for the recovery of money, or of specific real or personal property, to be tried by a jury, and every other issue by the court, ( secs. 253, 254.) These sections were not made applicable to existing suits, as will be seen by ch. 1 of the act supplemental to the code; the cause was therefore properly heard by the court.
It was also objected by the court below, that the superior court had not jurisdiction of the cause. The record shows that it was transferred to that court, by the order of the supreme court, as authorised by the code. No reason was assigned for the objection, and none occurs to me; and inasmuch as the point was not again raised upon the argument here, it will be regarded as abandoned.
The objection to the competency of one of the judges of the superior court to hear the cause was not well taken; he had no interest in the controversy, and none that could be affected by the result.
It is at least doubtful, whether the defences of fraud and usury, were well set up by the defendant's answer; but however that fact may be, they were not sustained by the proofs.
Judgment affirmed.