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October 1st 1845
Sir,
By the resolution of the last General Assembly you were authorized to employ Council to consult with the Attorney General upon the subject of enquiring whether there had been a violation of the charter by the Merchants Insurance & Trust Company of Nashville, which was chartered by the act of 1839. 40. Chapter 60. One of the undersigned being appointed by you as additional Counsel under that resolution, he & the Attorney General have had the matter under consideration, have examined the Charter and consulted the decisions of of the Courts of other States, & are of opinion that the [illegiable] have exercised powers not granted by the Legislature in discounting Bills of exchange receiving money on deposit and dealing in exchange and other States. The Charter granted to the Knoxville Marine Fire Insurance and Life and Trust Company, the privileges and rights of which were granted by the Merchants Insurance and Trust Company contains a provision that nothing therein contained shall be so construed as to give the company the power of issuing bills of credit, or exercising
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Banking privileges. It has been decided that discounting Bills of exchange and [illegiable] notes, drawing checks or drafts, and receiving money upon deposit, where it is [illegiable] as a business, are banking privileges, and banks of discount and deposit without the power of issuing notes for circulation, are well known in the commercial history of all countries. [illegiable] act of 1829 ch. 85 is a [illegiable] act, forbidding the establishment of any banking institution association or concern; or any office of discount on deposit, unless authorized by the Laws of this State, or the United States.
Entertaing this opinion, it becomes our duty to inform you; why we have not instituted and prosecuted a suit as required by the resolution. The [illegiable] of proceeding at common Law would be by merit of [illegiable] warrants, and our Supreme Court many years ago in the case of the State against Turk Martin [illegiable] Zerger page 293, [illegiable] an opinion that the [illegiable] of [illegiable] warrants was never introduced in North Carolina, and was not in force in this State. A Court of Chancery has no original jurisdiction to enquire of the abuse of franchise by a corporation; and to have been the decisions in New York. In most of the States, the Legislature have provided the means of proceeding by a writ of scire [illegiable] or [illegiable] warrants, or something [illegiable]; but in our State Code there is no [illegiable] whatever regulating suits against corporations or
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providing for an enquiry into abuses, except in some special cases in the Charters of Banks. Under these circumstances we came to the conclusion that it was adviseable to defer the [illegiable] [illegiable] of a suit until the next session of our General Assembly; when it is probable that some provision would be made by a general law regulating proceedings against corporations, and providing the means of enquiry into the assumption of privileges not granted by their Charters.
We have the honor to be With great respect Your obedient Servants Frances [illegiable] Fogg [illegiable]. A. Humphreys
To his Excellency The Governor of Tennessee