Meighen v. The Bank

25 Pa. 288 | Pa. | 1855

The opinion of the Court was delivered by

Knox, J.

That the rale in Post v. Avery, and kindred cases, does not apply so as to prevent a stockholder from assigning his stock after suit brought, and testifying in behalf of a corporation, was clearly shown by Chief Justice Black in Hartman v. Keystone Insurance Company, 9 Harris 466. The contingent liability of one who has been a stockholder to the noteholders of a bank, in case of its insolvency, is too remote an. interest to disqualify him from testifying in favour of the bank, unless there is some evidence of the inability of the institution to meet its engagements : Willing v. Consequa, 1 Peters 301. Curcier and others v. Pennock, 14 Ser. & R. 51; Irwin v. Lumberman’s Bank, 2 W. & Ser. 190. As the directors had relieved the cashier from any liability to the bank, connected with the transaction in suit, he was competent, and there was no error in his admission as a witness.

The action was against the bank, upon a certificate of deposit, purporting to have been given by the cashier to the plaintiff on the 19th of March, 1858; and the defence was that no deposit had been made on that day, but that it was really made on the 19th of March, 1852, and had been paid out on the plaintiff's check, and that the date of the year was a mistake.

After the cashier had sworn positively that the plaintiff had made no deposit in the bank on the 19th of March, 1853; and that he had no doubt the certificate, upon which the suit was brought, was the one he gave to the plaintiff on the- 19th of March, 1852, and had given, as a reason, that he stated so from the books; and, from his recollection-, he was- permitted,, under objection, to add as follows, viz., “ it is the invariable custom of the bank to balance and settle the books every evening. There was no transaction of the kind in March, 1853. If he (Meighen) had made a deposit on that day, I would have entered the deposit in the daily receipts; and this is one reason for my belief that he made no such deposit. If he had made such a deposit, it would have’been such a coincidence as would not have escaped my mind; besides, he owed no note of this kind- at the time, and that, if there had been any discrepancy in the books, I would' have heard of it. It is our custom to endorse- such drafts before sending them away.” Upon the reception of his evidence, the 2d, 3d, 4th, and 5th errors are assigned. It is unnecessary to notice the assignments separately and in detail, as they are all involved in the question whether the above stated evidence was properly received or not. The allegation of the plaintiff in error is, that the witness was illegally permitted to prove the custom of the bank in settling its books, and endorsing drafts, and to speak of the contents of the book, and to express his belief with his reasons for it, that no deposit had been made on the 19th March, 1853. It is important to remember that the witness had already stated, without objection, that no deposit was made by Meighen on the 19th of March, 1853, and that the evidence which is alleged to have been improperly received, was given merely as corroborative, or, rather, as explanatory of his previous assertion. Where a witness has stated a fact, or given an opinion, he may be asked, either in chief' or on cross-examination, how he knows the fact, or upon, what grounds his opinion is founded; and there is no error in permitting him- to answer as to-his knowledge-of fact's, or to give his reasons for opinions expressed-; If it should appear that either the one or the other were based upon grounds which were legally inadmissible, it would clearly be the duty of the Court to instruct the jury to disregard the testimony. But surely there was no error in permitting the witness to give “ the reason for the faith that was in himand it seems to us that the reasons which he gave entirely justified his statement, that no deposit had been made in March, 1853, but that the certificate was really given in March, 1852.

Had the evidence of the usage and custom of the bank, in settling books and endorsing drafts, been offered of itself to disprove the liability of the corporation, upon the certificate in question, it might have been liable to the objection that it was the act of the party in whose behalf it was offered, and therefore not competent ; but, as we have already observed, it was given merely as one of the reasons which induced the conclusion of the cashier that the certificate of deposit was erroneously dated, and for this purpose it was plainly admissible. In Schoneman v. Fegley, 2 Harris 376, the witness said, “he did not know whether he gave a-receipt for a note or not;” and it was held that the question, whether he usually gave receipts for notes, was properly ruled out. This is by no means an authority against the decision of the Court in the case now in hand. If the witness in Schoneman v. Fegley had stated that he did give a receipt for the note in question, and had been refused permission to give, as one of the reasons for believing that he had given a receipt, his invariable practice to give such receipts, the case would have been in point here ; but it is not now.

We see no objection to the reception of the deposition of Mr. Pennock, the teller, as to the entries in the books of the bank made in his handwriting. The books would not have been evidence, unsupported by the oath of the party making the entries; but, in connexion with the oath of the teller, they were evidence in accordance with the decision of this Court, in the ease of The Rank v. Boraef, 1 Rawle 152.

Judgment affirmed.