Olney, Receiver v. Chadsey

| R.I. | Sep 6, 1862

The account of the bank against the defendant, as it stood upon the bank books during his presidency, accompanied by the proof that the books were regularly kept, and open to his inspection, and were probably examined by him, was proper evidence to pass to the jury, not, as in ordinary book account, in direct proof of the charges in the account, but as an implied admission of them by the defendant; since he did not object to them when he might be presumed to know what they were, and was in a position in which he might object to them with effect. The evidence stands, in principle, upon the same footing with an account rendered, which, if not objected to within a reasonable time, is presumed to be admitted, and is treated as an account stated. It affords a presumption against the defendant, not indeed from his declaration, but from his silence and acquiescence; belonging to a class of evidence which declines by gradual shades from the most express and solemn admissions, down to expressions and acts which afford but remote and weak presumptions as to the particular fact in question. 2 Starkie on Ev. 37; 1 Ib. (Sharswood's ed.) 762, 763.

The returns made by the bank to the bank commissioner during the defendant's presidency, and which set forth an amount of indebtment from directors to the bank, which could not be made up without including this account against the defendant, rest, as evidence, upon the same support, — the defendant's admission. Although made up by the cashier, they were examined and allowed by the defendant, who, from his position and duty, must be presumed to have ascertained their minute correctness, which could only have been done by examining the items of which they were composed. The weight of such evidence is wholly for the jury; and is to be measured by the standard of common experience and knowledge of mankind. Supra.

We are at a loss to perceive the ground of objection to the cross examination of the defendant, which was merely a close following him up, upon the ignorance which he pretended, in his direct examination, of the existence of any account against him on the books of the bank. When he had sworn, too, that he was ignorant of any such note as the Deacon note, and even, that he had never heard of such a man as Edward Deacon, it seems to us quite proper, that, in cross examination, his attention should be called to the discount book, and the discount of that note and several others by himself and other directors, whom the record of the directors meeting, kept by the cashier, showed to have been present on the occasion. Certainly, the minute book of that meeting, — kept by an authority which he recognized, — was good evidence of who were present, and what was done at the meeting, as between him, a member and officer of the corporation, and the plaintiff, who officially represents it. Starkie on Ev. (Sharswood's ed.) 455, side, 411, top, n. 1, 457, side, 413, top, n. 1.

Nor do we see any fault in the instructions of the judge to the jury, in relation to the power of the president of the bank who succeeded the defendant in that office, to give up to the defendant the securities which the bank held against him; or in relation to the latter's claim against the bank for services performed by him whilst holding the office of president. The president of a bank in Rhode Island has no authority, as such, to surrender or release the claims of the bank against any one; and if he possesses such authority, it is not virtute officii, but must be derived, as the jury were instructed, from the board of directors, by their vote, or from their assent, express or implied. Again, the defendant, as president of this bank, could claim no compensation for his services in that capacity, unless, as a clause in the charter of the bank provides, such compensation is voted to him by the directors; and if he performed any service for the bank, it was to be presumed, as the court charged, that he did it as president, unless from the nature of the services, or from the evidence, it appeared, that the service was rendered outside of the duties of his office.

The imputed neglect of the judge to instruct the jury upon the well known presumption arising from the delivery up to a debtor, upon settlement, of the securities then held against him, and of his possession of them, which it does not appear that he was requested to do, could have done no disservice to the defendant; as enough of the case appears, from the motion, to show us, that the question went deeper than this, to wit, to the power of the then president of the bank, under the evidence, to deliver up to the defendant these securities.

The whole evidence, or its substance, not being reported to us by or with the allowance of the judge trying the cause, no foundation is laid for the last ground for a new trial taken by the motion, that the verdict is against the weight of evidence; and upon all the grounds set down in it, the motion must be dismissed, with costs, and judgment be entered upon the verdict.