7 Ga. 191 | Ga. | 1849
By the Court. —
delivering the opinion.
Is there any thing in this case which will take it out of the general rule 1 It is said in the argument, that Rawls was, at the time of this transaction, the President of the bank; that in that character he sold the judgments and received and receipted for the money, and, therefore, the act of receiving it was an official act, and he is not liable until he has been proven in default. The vice of this argument ■ consists in the assumption that the President of a banh is its receiving officer. He is not by the general law, and is not in this case by any charter provision, or by law of the institution over which he presided. It was competent for the President, by authority from the Directors, to execute the sale of these judgments, but not, I apprehend, without such authority; for, in general, the Board of Directors have the authority to control all the property of the bank. Angell & Ames on Corporations, 242, 243. 11 Mass. 94. Ib.288. 14-Mass. 180. 17 Ib.97.
It is in general the duty of the Cashier to receive directly, or through subordinate officers, the funds oft the bank — it is by and through him that the whole moneyed operations of the bank are conducted. He is the receiving officer and agent of the bank. Angell & Ames on Corporations, 244. 8 Wheat. 360, 361. 12 Serg. & Rawle, 265. 6 Port. 166.
These views of the powers and duties of the officers of the Bank of Hawkinsville, afterwards the Merchants’ Bank of Macon, by the general law, are not varied by the charter of that institution. Mr. Rawls was not, therefore, as President, authorized to receive this money, and liable to pay it only upon proof of default. The record discloses no by-law or special order authorizing him to transfer these judgments and receive the money. He can derive no immunity from the general rule above laid down, from the fact that he was the President of the banh, and consummated this transaction in that name.
How, then, does [he stand ? Altogether one side of his official character. He occupies the position of one who, without authority, has sold the goods of another and retains the proceeds. That is the position which this record gives him. The ground
These books belong to a particular custody — to the officers of the bank in this case — and when they are proven to come from the proper repositm-y, they are received as evidence without farther proof. 1 Greenleaf's Evid. §485. 1 Starkie's Evid. 202. 2 Anstr. 387. 4 Price, 216. 3 Taunt. 91. 1 Greenleaf’s Evid. §142.
The books iu this case were the books of the plaintiff, produced, I conclude, under a notice, and proven to come from the proper repository. They were, therefore, properly before the Court and rightfully proven to be the books of the bank. We hold that the defendant having introduced them, could not attack them by proof that they are not the books of the bank, and thus discredit them as a whole, but that it was competent to show errors in particular items; that is, it was competent to show mistakes or frauds in the entries, and thereby disprove facts which the books, on their face, purport to prove. If one introduces a witness, he cannot discredit him generally, but he may prove the truth of a
The Court instructed the Jury, that if they found the books not fairly kept, and should find entries improperly erased, or leaves torn out, they might disregard the books, and in that event ought to find for the defendant. To these instructions the plaintiffs excepted. It is not denied but that it was the province of the Jury to determine whether the books were fairly kept. The objection lies to the instruction, that if they did find them unfairly kept, that then their verdict ought to hefor the defendant. There was evidence before the Jury besides the books.
The plaintiff' had proved by other testimony, that the defendant had sold the judgments and received the money. The effect of the charge was, an instruction to the Jury to disregard that testimony. Upon the principles previously ruled by the Court, he was right. The books were the only testimony relied on by the plaintiff to show that the defendant had not accounted for or paid over the money. The Court had previously ruled, that plaintiffs could not sustain their action without proving this. Rightly enough, therefore, if the books were to be disregarded, the Jury must find for the defendant, for in that event the plaintiffs’ action was not made out. But upon our view of the case, it was only necessary fof the plaintiffs to prove their right to the money, and the possession of it by defendant. The case was, therefore, made out by testimony independent of the books. Upon our principles the charge of the Court was erroneous.
Let the judgment below be reversed, and a new trial had in acJ cordance with this opinion.