Minor v. Mechanics Bank of Alexandria
26 U.S. 46 (1828)

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U.S. Supreme Court

Minor v. Mechanics Bank of Alexandria, 26 U.S. 1 Pet. 46 46 (1828)

Minor v. Mechanics Bank of Alexandria

26 U.S. (1 Pet.) 46

Syllabus

It is a general rule in the construction of public statutes that the word

"'may' is to be construed 'must' in all cases where the legislature meant to impose a positive and absolute duty and not merely to give a discretionary power."

And in all cases, the construction should be such as carries into effect the true intent and meaning of the legislature in the enactment.

The provision in the act of Congress incorporating "The Mechanics Bank of Alexandria" which requires that the capital stock of the bank shall consist of 50,000 shares, of ten dollars each is not a condition precedent, and the bank went legally into operation with an actual capital less than that number of shares.

Even if fraud had existed in the original subscription of this stock of the bank, it would he extremely difficult to maintain that such a fraud, which was private, between the original subscribers to the stock and the commissioners, could be set up to the injury of subsequent purchasers of the stock, who became bona fide holders of the same without participation in, or notice thereof.

The law requires every issue to be founded upon some certain point, that the parties may come prepared with their evidence, and, not be taken by surprise, and the jury may not be misled by the introduction of various matters.

What defects in pleading are and are not cured by verdict.

The condition of an official bond that the officer who gives it shall "well and truly" execute the duties of his office includes not only honesty, but reasonable skill and diligence. If the duties are performed negligently and unskillfully, if they are violated from want of capacity or want of care, they can never be said to have been "well and truly executed."

The officers of a bank are held out to the public as having authority to act according to the general usage, practice, and course of their business, and their acts within the scope of such usage, practice, and course of business would in general bind the bank in favor of third persons possessing no other knowledge.

No act or vote of the board of directors of a bank in violation of their own duties and in fraud of the rights and interests of the stockholders of the bank will justify the cashier of the bank in acts which are in violation of the stipulation in his official bond "well and truly" to execute the duties of his office. Acts done by a cashier under the authority of such a vote or of a usage permitted by the directors in violation of the trusts assumed by them are on the responsibility of the cashier and of his sureties.

The official bond of the cashier must be construed to, cover all defaults in duty which are annexed to the office from time to time by those who are authorized to control the affairs of the bank, and the sureties in the bond are presumed to enter into a contract with reference to the rights and authorities of the president and directors under the charter and bylaws.

On a joint and several bond, the plaintiff may sue one or all of the obligors,

Page 26 U. S. 47

but in strictness of law he cannot sue an intermediate number. He must sue all or one. But if such error is not taken advantage of by plea in abatement, it is waived by pleading to the merits.

According to modern decisions, a nolle prosequi does not amount to a retraxit, but simply to an agreement not to proceed further in that suit as to the particular person or cause of action to which it was applied.

In an action on a joint and several bond, some of parties' sureties severed in their pleadings from the principal, and a trial and verdict were had against them; afterwards the principal was called upon to plead, and he did so; judgment was then entered against the sureties and a nolle prosequi entered against the principal. To this judgment or the proceedings no exception was taken in the court below, nor was a new trial asked by the sureties. The Court held that there is no decision exactly in point to the case; that there is no distinction between the entry of a nolle prosequi before, and the entry

after judgment, as applicable to this case. The decisions of the courts of the United, States, upon this proceeding, have been. on the ground that the question is matter. of practice and convenience.

When the defendants sever in their pleadings, a nolle prosequi ought to be allowed against one defendant. It is a practice which violates no rules of pleading, and will generally subserve the public convenience. In the administration of justice, matters of form not absolutely subjected to authority may well yield to the substantial purposes of justice.

An act of Congress was passed on 16 May, 1812, entitled "An act to incorporate a bank in the town of Alexandria, by the name and style of the Mechanics Bank of Alexandria," which institution soon afterwards went into operation, subscriptions for filling up the capital stock of the corporation and bank having been opened in the Town of Alexandria on the first Monday in June, 1812, under the direction of fifteen commissioners appointed for that purpose. On 3 September, 1817, Philip H. Minor was elected cashier of the bank, and on the same day, by a resolution of the Board of Directors, it was ordered "that the present officers of the bank do the whole duties of the bank."

In the office of cashier, Philip H. Minor was the successor of William Patton Jr., who died in August, 1817, and before his appointment as cashier, Philip H. Minor (who had several years preceding served as an officer of the bank, for some time as discount clerk, and afterwards as bookkeeper) had, in March, 1817, been appointed teller for one year ending in March, 1818, from the time of his appointment, and had given approved bond and security conditioned that he would well and truly execute the duties of the office of teller. After the appointment of Philip H. Minor in September, 1817, to be cashier of the bank and the order of the Board, on the same day relative to the whole duties of the bank being performed by the then officers of the bank, no renewal of the appointment

Page 26 U. S. 48

of teller was made, and he usually performed the duties of cashier and teller.

On 19 March, 1818, Philip H. Minor and the plaintiffs in error executed a joint and several bond in the sum of $20,000 which contained the following condition:

"Whereas the above bound Philip H. Minor hath been duly elected to the office of cashier of the Mechanics Bank of Alexandria, the conditions of the above obligation are such that if the above bound Philip H. Minor shall well and truly execute the duties of cashier of the Mechanics Bank of Alexandria, then this obligation to be void, but otherwise, shall remain in full force and virtue in law."

"PHILIP H. MINOR [L.S.]"

"GEORGE MINOR [L.S.]"

"D. MINOR [L.S.]"

"WILLIAM MINOR [L.S.]"

"SMITH MINOR [L.S.]"

In the Circuit Court of the District of Columbia for the County of Alexandria, the defendants in error instituted an action of debt upon this bond against all the obligors, and the declaration filed in the same was for the penalty, without taking notice of the condition.

Oyer of the bond and condition having been prayed, &c., the defendants being the sureties of Philip H. Minor, to-wit: George Minor, Daniel Minor, William Minor, and Smith Minor, pleaded joint pleas, separate from Philip H. Minor, the cashier of the bank. The substance of these pleas was as follows:

1. The Mechanics Bank was not competent to sue, because the commissioners, who, by the act of incorporation, were authorized to open and take subscriptions to the capital stock of the company, and who took the subscriptions, had colluded with the subscribers to the stock, and that $180,000 of the stock had been frequently subscribed, and that an election for directors of the bank was fraudulently and illegally held by which the persons named as commissioners were elected the directors of the bank, the votes of the fraudulent holders of the stock, amounting to $180,000, having been taken at the said election; that afterwards the sums paid by the fraudulent or collusive holders of the $180,000 stock were, by the president and directors, paid back to them, and thereby the capital was diminished to $320,000, and, by the said proceedings the capital stock of the bank was reduced below $500,000, as was collusively held out

Page 26 U. S. 49

to the public, without this that the plaintiffs, the obligees in the bond, or any other person whatsoever, at the time and times of making the said bond and of commencing the suit thereon or at any time whatsoever used, claimed, or exercised, or yet use, claim, or exercise the name and style, privileges, and capacities of the said supposed corporation or ever claimed to compose the same, otherwise or by any other ways or means or in any other manner or form whatsoever than in virtue of the said subscription, conducted and concluded as aforesaid, and so the said defendants say the said supposed writing, obligatory in manner and form aforesaid made is utterly inoperative and void in law, and this, they are ready to verify, &c.

The second plea states, that the defendants ought not to be charged, &c., because the plaintiffs demand the said debt, and bring this action, as pretending and claiming to be a corporation aggregate in and by virtue of the act of Congress mentioned in the first plea, by the name of the Mechanics Bank of Alexandria, to be composed of the subscribers to the said Mechanics Bank of Alexandria, which subscribers were not in being at the time of the passing of the said act, but were to be composed of such persons only as thereafter might subscribe thereto according to the provisions of the act, whereas the subscriptions were not taken according to the said provisions, so as to entitle the persons pretending to be subscribers to the said Bank, and their successors and assigns, to compose the said corporation, wherefore there was not any person authorized, or lawfully competent to take the bond which is the subject of this suit, nor was there any such person at the commencement of this suit capable of instituting and prosecuting the same, but that the said persons did unjustly and illegally arrogate to themselves to compose the said corporation without the capital stock having been filled by subscription or the supposed corporation having been composed of actual subscribers to the Bank pursuant to the directions of the said act of Congress or other lawful warrant whatsoever, contrary to the purview and effect of the said act of Congress, and so the defendants say that the said writing obligatory, was at the time of making the same and is utterly void in law, &c.

The third plea alleged that the cashier had well and truly performed the condition of the bond according to the tenor and effect and the true intent and meaning of it.

The fourth plea alleged that the cashier had performed the condition of the bond "to the best of his ability, skill and judgment," without any fraud, deceit, or willful default or breach of duties whatever.

The fifth plea alleged that the cashier had performed his duties

Page 26 U. S. 50

in obedience to and in pursuance of the rules, orders, usages, and customs of trade and business ordained, established, and practiced in the Bank by authority of the president and directors thereof.

The sixth plea asserts that although the duties of the cashier had not been performed by him, yet the nonperformance was by the wrong, connivance, and permission of the president and directors of the institution.

The seventh plea states that the bank had not been damnified by the acts of the cashier.

The eighth plea was that although the bank was damnified by the acts of the cashier, yet it was by the wrong and connivance of the president and directors, &c.

The ninth plea states that the business and affairs of the company and the conduct and duties of the cashier were performed under the regulation and management of the president and directors, who had been chosen according to the provisions of the act of incorporation, and if at any time the corporation has sustained damage since the making of the writing obligatory by reason of any matter contained therein, it has been by the wrong, connivance. or permission of the said president and directors.

To the first and second pleas the plaintiffs below put in general demurrers, and on each of the seven remaining pleas issue was taken by general replications, all precisely in the same terms, as follows:

"And the said Mechanics Bank of Alexandria, by Thomas Swann, their attorney, say they ought not to be precluded, &c., because they say that the said cause of action, in the declaration mentioned, did accrue as in the said declaration and breaches are set forth; without that, that the matters set forth in the said plea, are true, and this they pray may be inquired of by the country, and the defendants likewise."

But at the next term, the plaintiffs withdrew these general replications as to the 3d and 4th pleas, and to these two pleas put in special replications, leaving the issues on the remaining five to stand on the general replications and issues as above. The replications thus put in to the 3d and 4th pleas, and rejoinders of the defendants taking issue upon the same, being precisely in the same terms, mutatis mutandis, to each, were as follows:

"And the said Mechanics Bank of Alexandria, by Thomas Swann, their attorney, say that they ought not to be precluded from having and maintaining their action aforesaid against the said defendants, George Minor, Daniel Minor, William Minor, and Smith Minor, by anything alleged by the said defendants in their third plea, pleaded as aforesaid: because they say

Page 26 U. S. 51

that the board of directors of the said Mechanics Bank of Alexandria, in pursuance of the authority granted to them by the act of Congress incorporating the said bank, did duly make and declare sundry bylaws for the government of the said bank, its officers and affairs, and, among other laws so made and declared as aforesaid, they did enact and declare, in substance, as follows, to-wit: "

"Section 2d, article 5th. It shall be the duty of the cashier to countersign, at the bank, all the bills or notes to be signed by the president, by order of the directors; carefully to observe the conduct of the persons employed under him; duly to examine into the settlement of the cash account at the bank; count the money deposited in the vaults every evening; compare the amount thereof with the balance of the cash account of that day, and in case of disagreement report the same to the next meeting of the directors; to see that all deeds appertaining are duly recorded, and to do and perform all other duties that may from time to time be required of him by the president or board of directors relative to the affairs of the institution."

"Article 6th. It shall be the duty of every other officer, clerk, and servant of the bank to do and perform all other duties that may from time to time be required of them respectively by the president and cashier, and in no case to divulge the transactions of the bank."

"Article 8th. That no officer of the bank, the president excepted, shall leave the bank after it closes until the cashier's account shall be found to agree, or if it does not agree, until a strict examination be made to discover the error."

"Section 3d, Article 3d. That no discount shall be made without the consent of a majority of the directors present, nor shall any reason be required by the directors to each other, nor assigned to the public, for refusing discounts."

"Which said bylaws, so made, enacted, and declared, as aforesaid were, at the time of the sealing and delivery of the writing obligatory, in the declaration mentioned, in full force and effect. And the said plaintiffs say that the said Philip H. Minor, in the said writing obligatory mentioned, was duly appointed cashier of the said Mechanics Bank of Alexandria, and in virtue of his said appointment did accept the office of said cashier, and on the day of the date of the said writing obligatory in the declaration mentioned, did thereupon enter upon the duties of the said cashier, and the said plaintiffs further say that the said Philip H. Minor did not well and truly execute the duties of the said Mechanics Bank as cashier of the said bank according to the true intent and meaning

Page 26 U. S. 52

of the condition of the said writing obligatory, but violated his duty as cashier aforesaid and broke the condition of the said writing obligatory in the following instances, that is to say,"

"1. That during the period that the said Philip H. Minor acted as cashier of the said Mechanics Bank under the writing obligatory as aforesaid, he, the said Philip, as cashier aforesaid, received into his custody, and keeping the moneys of the said bank, amounting to very large sums, that is to say amounting altogether to $500,000 and upward, which said moneys, so received as aforesaid, the said Philip, although often required, hath failed to account for or to pay over to the said bank or to make a correct report of the same from time to time to the board of directors of the said bank."

"2d. And further that he, the said Philip, during the period aforesaid, and in his capacity of cashier aforesaid, wrongfully and contrary to the duty of his office of cashier aforesaid did waste and suffer to be wasted of the moneys of the said bank in his care and custody as cashier aforesaid, the sum of $30,000 and upwards, whereby the same became entirely lost to the said bank."

"3d. And the said plaintiffs further say that the said Philip, during the period aforesaid and in his capacity of cashier aforesaid, wrongfully and contrary to the duty of his office of cashier aforesaid and without the authority of the said bank, did apply and appropriate, of the proper money of the said bank in his care and custody as cashier aforesaid, to his own proper use, the sum of $5,728, and to the use of Thomas J. Minor and himself, "

the said Philip H. Minor, the further sum of

$3,179.00

1,898.63

---------

$5,077.63

"so that the said sums were entirely lost to the said bank."

"4th. And the plaintiffs further say that the said P. H. Minor, during the period aforesaid and in his capacity of cashier aforesaid, wrongfully and contrary to the duty of his office of cashier aforesaid, and without the authority of the said bank, did pay away and did suffer and permit to be paid away, of the proper moneys and funds of the said bank in his care and keeping as cashier aforesaid, to Jabez B. Rooker divers sums of money, amounting altogether to the sum of $4,967.30, and to one Francis Adams, divers others sums amounting altogether to the sum of $1,884.18, and to William F. Thornton divers other sums of money amounting altogether to the sum of $7,407.25, and to Benjamin G. Thornton divers other sums of money, amounting altogether to the sum of $4,810.74, and to Lewis

Page 26 U. S. 53

Hipkins the sum of $2,375, and to Robert Young divers other sums of money amounting altogether to the sum of $9,294.44, so that the said several sums of money were entirely lost to the said bank."

"5th. And the said plaintiffs further say that the said Philip H. Minor, during the period aforesaid and in his capacity of cashier aforesaid and without the authority of the said bank, did endorse upon a certain check, drawn by Lewis Hipkins upon the said Mechanics Bank, in favor of 'note in city or bearer' for $3,000, that the same was 'good' when in fact and in truth the said Lewis Hipkins had no money or funds in the said Mechanics Bank at the time of the said endorsement to pay the said check, nor has he at any time since had in the said bank any money or funds to pay the said check so endorsed as aforesaid, and the said bank has actually paid and taken upon itself the payment of the same."

"7th. And the said plaintiffs further say that Benjamin G. Thornton, on 18 December, 1818, drew a certain bill or draft upon a certain bank in the State of Ohio called the Bank of New Lancaster, which bill or draft was in substance as follows: "

" ALEXANDRIA, December 18, 1818. Cashier bank of New Lancaster, Ohio. Pay to the order of W. F. Thornton, ten days after sight, $4750 and charge the same as per advice to yours, &c."

"B. G. THORNTON"

"And the said plaintiffs say that the said Philip H. Minor, while he acted as cashier aforesaid, under the writing obligatory aforesaid, wrongfully and contrary to the duty of his office of cashier aforesaid, and without the authority of the said bank, did advance and pay, upon the credit of the said draft or bill, to William F. Thornton and Lewis Hipkins, the amount of the said draft -- that is to say the sum of $4,750 by means of which said advancement, so made as aforesaid, the said sum has been entirely lost to the said bank."

"8th. And the said plaintiffs further say that said Philip H. Minor, while he acted as cashier aforesaid under the writing obligatory aforesaid, wrongfully and contrary to his duty as cashier and with a view to deceive and mislead the board of directors of the said bank, did make sundry false and erroneous entries in the books of the said bank in his care and custody as cashier aforesaid, and among others, the following, to-wit: a charge against the Bank of Alexandria of the date 31 August, 1818, for the sum of $1,791 and another against the Bank of Potomac of the date

Page 26 U. S. 54

of 31 August, 1818, for the sum of $2,581.25, and another against the Bank of Washington of the date of 2 March, 1818, for $1,000 dollars when in fact and in truth at the periods aforesaid there was nothing due from the said last mentioned banks to the said Mechanics Bank, by means of which said false entries and charges, the said Mechanics Bank has lost the said several sums of money. All which said several matters and thing the said plaintiffs are ready to verify. Wherefore, &c."

To these pleas, the plaintiffs in error put in the following replication:

"And the said defendants, George Minor, Daniel Minor, William Minor, and Smith Minor say that the said Mechanics Bank of Alexandria ought not to have or maintain its aforesaid action against the said defendants by reason of anything by the said Mechanics Bank of Alexandria, in its said replication to the said third plea of the defendants above in replying alleged, because they say that the said Philip H. Minor, in the said plea and replication named, did not violate his duty as cashier aforesaid and break the said condition of the said writing obligatory in the instances by the said Mechanics Bank of Alexandria, in their said replication above pleaded and alleged, nor in any of them, with or by means of any fraud, or deceit, or willful default whatsoever. And this they pray may be inquired of by the country, and the said Mechanics Bank of Alexandria in like manner."

At the same term, the demurrer to the first and second pleas and the issues on the remaining seven between the plaintiffs and the four sureties were respectively argued and tried, the first and second pleas were adjudged insufficient on general demurrer; the issues were found for the plaintiffs, and damages, in gross, upon all the issues and breaches, assessed against the four sureties, at $8,607.30, and, upon the motion of the plaintiffs, a rule was then laid on the principal obligor and co-defendant, Philip H. Minor, to plead to issue on the morrow. In compliance with which rule, he did, within the time prescribed, plead five several matters in bar, the same, mutatis mutandis as the third, fourth, fifth, seventh and ninth, of the aforesaid pleas, put in by the co-defendants, his sureties. A day was given at the next ensuing term to the plaintiffs to reply, at which term the plaintiffs took a judgment on the judgment against the four defendants, with whom the several issues had been tried as aforesaid, and then entered a nolle prosequi as against the co-defendant, Philip H. Minor, who thereupon recovered judgment for costs against the plaintiffs.

On the trial of the cause in the circuit court, a bill of exceptions was taken to the opinion of this Court upon certain

Page 26 U. S. 55

instructions which the court was requested to give to the jury. The court instructed the jury according to the expressed desire of the plaintiffs below except as hereafter stated, but refused to charge the jury as requested by the counsel of the defendants.

The instructions given by the court on the motion of the plaintiffs' counsel and on the evidence given in the cause were:

"1st. If the jury, from the evidence aforesaid, should be of opinion that the said Philip H. Minor, upon his leaving the Mechanics Bank of Alexandria, that is to say, on 9 March, 1819, failed to pay over or to account to the said bank for any portion of the moneys of the said bank received by him as cashier of the said bank while he acted as cashier of the said bank under the writing obligatory in the declaration mentioned, then the jury may and ought to infer that the said moneys so unaccounted for were willfully wasted by the said Philip H. Minor or applied to his own use, and that under such circumstances the defendants are liable to the bank for the moneys which he so failed to pay over, or account for to the said bank."

"2d. And the said plaintiffs requested the court further to instruct the jury that if from the evidence aforesaid it should be of opinion that the said Philip H. Minor, while he acted as cashier aforesaid under the writing obligatory aforesaid, did willfully pay or apply or did knowingly and willfully, suffer or permit to be paid away or applied to the use of Thomas I. Minor and himself jointly, or to himself individually, any portion of the funds or moneys of the said bank, without the authority of the board of directors of the said bank, so that the said sums or any part thereof were lost to the said bank, that the said defendants are liable for the said moneys or funds so paid away or applied and lost."

"3d. And the said plaintiffs prayed the court further to instruct the jury that if from the evidence aforesaid it should be of opinion that the said Philip H. Minor, while he acted as cashier aforesaid under the writing obligatory aforesaid, willfully paid away or appropriated or knowingly suffered or permitted to be paid away, or appropriated to the use of Jabez B. Rooker, Wm. F. Thornton, Benjamin G. Thornton, Lewis Hipkins, and Francis Adams, or to either of them, the moneys and funds of the said bank, without the authority of the board of directors of the said bank, so that the said moneys or funds or any part thereof were entirely lost to the said bank, then the said defendants are liable for the said moneys so paid away or appropriated and lost."

Upon the first and second issues, being the issues under the

Page 26 U. S. 56

third and fourth pleas, and upon the third, being the issue joined on the fifth plea, the court gave the instructions as prayed for by the counsel for the bank. Upon the third issue, being the issue joined in the fifth plea, the court gave the first instruction, with the addition of the following words:

"unless such failure to pay over or account for the money so received by the said Philip H. Minor was in obedience to and in pursuance of the directions, rules, orders, usages, and customs of trade and business ordained, established, and practiced in the said bank, by the authority of the said president and directors."

Upon the fourth issue, being the issue joined under the sixth plea, the court gave the instructions prayed for, adding in each instruction after the words "directors of the said bank" the words "and without the wrong, connivance, or permission, of the said president and directors."

Upon the fifth issue, being the issue joined in the seventh plea, the court gave the first instruction, adding the words

"if the jury should be also satisfied by the evidence that moneys which the said Philip H. Minor so failed to pay over or account for were thereby lost to the bank,"

and upon this issue also the court gave the second and third instructions.

Upon the sixth and seventh issues, the court gave the second and third instructions, adding the words to make them applicable to the fourth issue, and upon the sixth issue the court also gave the second and third instructions, adding in each instruction, after the words "directors of the said bank," the words, "and without the wrong, connivance, or permission, of the said president and directors."

The counsel for the defendants, then moved the court to instruct the jury:

"1. That if it were the established usage and practice of the said bank that the cashier might, in his discretion, permit customers to overdraw and to have checks and notes charged up without present funds in bank, and for the cashier to receive and pass, as cash, checks and drafts, upon other banks, and if the said balances, so appearing against the several persons above charged on the books of said bank, arose out of the exercise of such discretion, by the said cashier, and in the course of the ordinary transactions of said bank, and pursuant to established usage and course of business there adopted, and personally known to the said president and directors, and practiced and continued with their knowledge for a series of years from the commencement of the bank to the termination of the said Philip H. Minor's cashiership, though the existence of such balances or the particular circumstances attending them were not formally communicated to the board of directors,

Page 26 U. S. 57

the jury may infer the approbation, assent, and acquiescence of the said president and directors as to such usage and course of business."

"2. That if the said balances appearing against the several persons above charged on the books of said bank arose in the course of the ordinary transactions of said bank pursuant to the established usage and course of business there adopted and known to the president and directors and expressly or tacitly acquiesced in and approved by them, or if the said president and a majority of the directors were personally acquainted with such usage and course of business, purposely connived at the same, and declined investigation, then the jury may infer that the same were approved and permitted by the said president and directors, though no formal communications of the same were made, by the said cashier to the board of directors at their official meeting, and upon finding such to be the fact, the jury, as to such balances, should find for the defendants under the issues joined on the replications to the sixth, eighth, and ninth pleas."

Which instructions the court altogether overruled, and refused to give to the jury.

"3. If the jury finds from the evidence that the several officers of the said bank, annually appointed by the said president and directors as aforesaid, each gave separate bond and security for the faithful performance of the duties of his office, that the said William Patton, so being cashier, as aforesaid, died on or about 28 August next ensuing his last appointment on 9 March, 1817, and that on the third day of September following, the said Philip H. Minor, having all along acted as teller under his said appointment, as such, for one year, from March, 1817, was duly appointed cashier in place of said Patton and gave bond and security in the usual form for the faithful performance of his duties as such cashier, being at the same time under bond and security for the faithful performance of his duties as teller for the year ending in March, 1818, as above stated; that he continued to be such cashier under his said appointment till 9 March, 1818, when he was again appointed cashier for one year, and on the 19th of the same month gave the bond now in suit, that on the said 3 September, 1817, the said president and directors duly passed the said orders of that date appointing the said Philip H. Minor cashier, as aforesaid and directing the then officers of the bank to do the whole duties of the bank, and did not then or any time after the said 9 March, 1817, make any new appointment of teller, that the said Philip H. Minor, from the time of his first appointment as cashier, usually performed

Page 26 U. S. 58

the duties of teller, which duties, as well as those of cashier, were occasionally, and frequently, during the continuance of said Minor in the office of cashier, performed by the other officers of the said bank whilst the said Minor was absent and otherwise occupied with the business and affairs of said bank; that the separate office of teller was established at the first institution of said bank by the written laws and ordinances of the president and directors as above given in evidence; that after the said president and directors ceased to appoint a distinct person as teller as aforesaid, all the distinct functions and duties of teller and the forms of keeping the accounts and transacting the business by the cashier, or some other officer of said bank in the name and capacity of teller were pursued the same as when the office of teller was filled by a distinct person, the practice being still continued of placing the money of the bank, intended to answer the current demands of each day, in the hands of the officer as teller, of keeping separate accounts of such moneys and of all deposits and of all payments upon checks or otherwise in the name and capacity of teller, such accounts being distinct and separate, and in distinct and separate books from those kept in the name and capacity of cashier, and that the said board of directors, and the proper committees of the same, in their quarterly and other examinations and reports of the state and condition of said bank and of the accounts of its officers, still kept up the distinction between the teller's and the cashier's accounts, and the teller's and cashier's money, then that the defendants are not chargeable in this action for the conduct of said Philip H. Minor in the execution of the duties distinctly appertaining to the office of teller whilst he was cashier, as aforesaid."

Which instruction the court refused to give, the plaintiffs having offered in evidence to the jury the following bylaw of the said president and directors, to-wit:

"Article fifth, in section second of the bylaws, above given in evidence, and having also offered in evidence to prove that, after the appointment of the said Philip H. Minor to the office of cashier on 9 March, 1818, he did in fact generally perform the duties of teller with the knowledge of the president of the said bank, from which it was competent for the jury to infer that he, the said Philip H. Minor, as cashier, as aforesaid, was required by the president of the said bank or by the board of directors of the said bank to perform the duties appertaining to the office of teller. "

Page 26 U. S. 62

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