Page images

in the judgment of Turner, L. J., in the case of Bur- looking at the form of the attractive words on the gess v. Burgess, indicates very clearly what the rights counter bills, or whatever they are called, at the conare under similar circumstances. I do not profess to tents of the almanacs, the sending round of these say now whether J. W. Thorley, if honestly carrying almanacs purporting to be the Illustrated Farmers' on a business on his own account in the manufacture Almanac, or words very similar, implying the same and sale of this article, might not call it by the name thing - all these things bear out the same view. But of “Thorley's Food for Cattle," provided he took when we come to consider what took place between proper precautions to prevent it being supposed that the travellers and the different persons whom they the articlo he was so manufacturing was manufactured visited, unless we are to disbelieve some eight or ten by the representatives of Joseph Thorley, but I feel witnesses, all of whom speak most positively on the satisfied that the company has no right whatever to subject, there were representations made to them, use that name. I strongly lean to the opinion which representations, I fully admit, in particular instances, was given by Lord Westbury in the Glenfield Starch as far as regards the words used, not in themselves case in describing the expression “Glenfield” as hav- false, but calculated and proved to convey a very coning a secondary signification indicating the trade de- trary impressiou of what the real fact was to those nomination of the article manufactured by the partic- who listened to them. It has been said that Mr. ular person, but as I have said, I do not think it Stillwell must have been almost an idiot to think that necessary to express a decided opinion on that point. these representations would be successful. Very posI should be prepared to assume in this case that the sibly it occurred to him that in the great majority of defendant company had not only the right to manu- instances it would be unsuccessful, that it would facture this article, but to call it “Thorley's Food for be found out; but still would it always be found Cattle," and even on that assumption I have come to out? Was there not that prospect of success in the conclusion on the evidence in this case, that they making these representations to the different persons did adopt such a mode of endeavoring to push that to whom he was going that some at least would be inarticle in the market as to induce the reasonable belief duced to purchase? The evidence shows that they did which was entertained by many persons, that the arti- purchase. It is unnecessary to go further into the cle they were so putting upon the market had been facts of this case. I am satisfied on the whole transmanufactured by the representatives of Joseph Thor- actiou from beginning to end that the object was to ley. Now, in that sense, even the adoption of the obtain as far as possible a slice of the large business pame is not to be left out of consideration, because no previously carried on by Joseph Thorley and by his doubt, in a doubtful case, the article being sold under executors, and to obtain that by making representathe same name as that by which it was sold by another tions which the practice of this court will not allow to person helps the deception, if any is practiced. I pass be made. from that to the form in which this article was sold. Mr. Hivgins said that nothing was made in the evi

BRAMWELL, L. J. I am of the same opinion, and I dence with reference to these packets, but it came out have very little to add. As to the action in which the in this way: He was putting forward a strong case on company are plaintiffs, I am satisfied that the two behalf of the defendants that they had done every

documents were libels. As to that one which uses the thing that they possibly could to prevent any mistake. word “foist,” it is needless to say any thing at all He talked loudly about the different sized boxes, and about it, because it seems to be confessed that it is a the carriers observed that the shape of one box was libel. I had some misgiving about the other one, bedifferent from the shape of the other. But when we

cause I doubted at first whether it was any thing more come to look at the packets with which these said than that sort of commendation of their wares which boxes were filled — and that is the article which finds people may put in; but really, when one thinks of the its way into the hands of the customers – I cannot old way of declaring for libel or defamation, and confail to be struck with the remarkable resemblance be- siders this advertisement in that way, that is to say, tween the one and the other. You have a packet not

with the statement of the surrounding circumstances only of the same size and the same shape, but you have to which it is applicable, and begins to have au idea of them of the same color, and you have indorsed upon this introduction that the plaintiffs carried on the them corresponding terms as regards the amount to be business of preparing food which they said they pregiven to each description of cattle, whether horse, pared according to a recipe which Joseph Thorley had cow, sheep, or pig, to which it is to be given, every formerly used in his life-time — when one considers thing exactly following not in every case according to this case with such an introduction as that, it is manithe same words, but the same character of direction fest that this advertisement is a libel on the plaintiffs being given in alınost every case. It is all very well to in their trades. It begins “Caution," and it says, say that we sitting here, having heard this discussion, “The public, and in particular farmers, are warned and looking at the two together, at once see there is a that any food for cattle not signed with the name of difference between the two; but how would it affect Joseph Thorley, is not the manufacture of the estabthe customer who went into a druggist's shop, or some lishment carrying on the business of Joseph Thorley, other shop, in a country town, and asked for a packet the proprietors of which are alone possessed of the of this condiment to be given to him, and had it given secret of compounding that famous condiment." I to him in a packet similar in color, similar in shape, am satisfied that was a libel on the plaintiffs in the way similar in size, and exactly at the same price as that of their trade, and calculated to do them injury, and which he had been in the habit of having given him consequently an action is maintainable with reference before? The form of these packets is enough to indi- to that as well as with reference to the other. Now as cate au intention to deceive. As has been very often to the other case, the complaint of the plaintiffs is not said in these cases, why did they choose to adopt every that the defendants made and sold the same article thing which could make what they are selling as like that the plaintiffs made, but the complaint of the as possible to what was being sold by somebody else? plaintiffs is that it was sold in such a way as to iuduce Why adopt the same color, the same size, why sell it purchasers to believe, or cause purchasers to believe, exactly in the same form ? The only reply which, look- that it was the article manufactured by the establishing at it with common sense, we can give to such a ques- ment which was Joseph Thorley's, and now is his extion as that is, that it was done with a view to induce ecutors'. That is the complaint which is made, and it the public to believe they were the same. I think is admitted by the learned counsel for the defendants that if those are the suggestions which come to our in that action that if that is so there is a cause of acminds in the first place, looking at the packages, and tion against them, and they must be restrained from doing it. The question therefore is one of fact. Was for Cattle," just as I suppose anybody may make the trade so carried on by the defendants as to give Liebig's extract of meat, or any body may make Daffy's rise to that belief ? Now really it is almost impossible elixir, or the other things which have been mentioned. to make a doubt about it. I coufess, for my own part, Very likely they got hold of Thorley, who had the directly I saw the two packages I thought there was an good fortune to have that name, and to know the end of the case. It is impossible to suppose that those secret, and so they began this business. Now, let us are not calculated to deceive. It is all very well to suppose, for instance, that Bass's firm consisted of say, if you examine them you will find a difference Bass, Smith, and Jones - and it seems as though it between them. No doubt; so you will between a would be admitted, as long as Bass continued one of Bank of England note and a Bank of Elegance note, the firm, no one would havo a right to brew ale and but people have got into trouble for obtaining money sell it under the name of “ Bass's Pale Ale,” unless he under false pretenses who passed off a Bank of Ele- took care it was not confounded with that well-known gance note, although they never could be convicted of beer or ale which is produced by tho firm which, I forgery. It is impossible to suppose that there was suppose, to consist of Bass, Smith, and Jones. Now, not an intention to mislead at the bottom of that. If suppose Mr. Bass retired, and Sinith and Jones carnot, all I can say is, the defendants ought to be very ried on the business under the samo name as before much obliged to those who have pointed out to them that is to say, Bass & Co. - could it be supposed for a that they are doing that which they do not intend to moment that, because Mr. Bass had left the firm, do, but which there is no doubt they are doing, that is people would then have a right to say, “Oh, there is to say, misleading people. I should like to say one no louger a Bass who makes Bass's palo ale, therefore thing about this expression, “Thorley's Food for Cat- we will call ourselves makers of ‘Bass's Pale Ale.'" tle." It has been said that the defendants have a right It seems to me manifest there would be no right to do to say they make Thorley's food for cattle, if they do such a thing as that. Bass's pale alo has acquired, as not deceive. Well, I agree, and if one could by any Thorley's cattle food has here, a sort of name, and is possibility suppose - 1 ought not perhaps put it so known as the production of a certain establishment, strongly, but if one could supposo that they could use and that is a right- a property I suppose one can that expression without the risk of deceiving, I should hardly call it - in the proprietor of the establishment, think they ought to have a right to do so; but it seems and no one else has tho right to so act that people to mo almost impossible that they can. Now it is said dealing with him may think they aro dealing with tho that it is hard upon them, because it is said every original establishment. If after Thorley's death some Thorley has a right to make food, and therefore to sell time had elapsed before anybody had started afresh, it in bis own name, and consequently I suppose call it before his executors had started the manufacture of “ Thorley's Food.” But not only has every Thorley a this food, then tho words “Thorley's Cattle Food" right to do that, but every John Doe has a right to do might have become common property just in the same that, because he may give himself the namo of Thor- way as Liebig's extract of meat. But that not being ley, and carry on business uuder that name if he thinks the case, it seems to me the defendants have done, tit. A surname is acquired by reputation, and is not and I must say I think willfully done, what is to be any man's legal property or conferred upon him by regretted and what they must be restrained from law in any particular way; it is gained by reputation, doing, that is to say, endeavored to injure, not for the and if he choose to adopt it and other peoplo call him sake of injury no doubt, but endeavored to make a by that name, he is “Thorley" to all intents and pur- profit at the expense of the plaintiffs, by producing an poses, although his name was originally John Doe. article and selling it in such a way as to cause tho Then it is said it is hard, if a man has the name of public to believe that they are buying the article

horley, that he cannot make food and call it “Thor- manufactured by the plaintiffs and not a different arley's Food.” So he may, but if unfortunately for him ticle. some preceding Thorley has carried on the business of Appeal in the first case dismissed, in the second making cattle food in such a way that by the name allowed. “Thorley's Cattle Food" is understood the manufacture of that man, then the second Thorley, or the man

DISBARRING ATTORNEY FOR LIBEL ON who assumes his name, must take care so to conduct

JUDGE. his business that he is not mistaken for the original Thorley, and if he willfully, or even I should say with

PENNSYLVANIA SUPREME COURT. out willfulness, does carry on bis business so as to be mistaken, he must be restrained from doing it, and

IN THE MATTER OF THE RULES DISBARRING ANDREW really there is no hardship upon him at all. It is not

J. STEINMAN AND WILLIAM A. II ENSEL, a hardship upon him that he should put into his ad

ATTORNEYS. vertisements, as these persons might do here, “The article produced is the same as Joseph Thorley pro- An attorney, who is also an editor of a newspaper, cannot duced it; it is the article which he called Thorley's be summarily disbarred on account of his publishing in Food for Cattle; it is the same article, and we make it,

his newspaper a libel on a judge, not designed to acand you may buy it of us as well as of them." If they

quire an influence over him in tho exercise of his judido that, in that sense they might use the words "Thor

cial functions through tho instrumentality of popular

prejudice. ley's Food for Cattle," no doubt; but if they cannot

TRIT of error to review an order summarily dismust not use it, because it is a thing to the detriment of the plaintiff. I should like to make one remark relating to the same business which James, L. J., SHARSWOOD, C. J. [Omitting a technical point.] The mentioned. I think I can sce very well how this complainants were members of the bar of Lancaster thing arose. The persons who got up this thing, who county and were also the editors of a newspaper pubhave done this, who are now sought to be restrained, lished there. They printed in their paper an article on the death of the original Thorley, I suppose, severely reflecting upon the conduct of the court in a there was no one who had any particular right to use certain prosecution in the Quarter Sessions in which -Thorley's Food for ('attle" any more than anybody the defendant had been acquitted on an indictment else had; consequently anybody with the name of for violating the liquor law. It charged that the acThorley, and possibly without for all I know, could quittal “was secured by a prostitution of the machinmanufacture this article and call it "Thorley's Food ery of justice to serve the exigencies of the Republican



party,” and added that as the judge belonged to that public capacity where the fact that such publication party it was unanimous for once that it need take no was not maliciously or negligently made shall be cognizance of the imposition practiced upon it and established to the satisfaction of the jury." the disgrace attaching to it." We may safely assume But the grievance of the offense of the complainants that it meant to charge and did charge that the judge was that the publication was a libel on the court of had decided the case wrongfully from motives of polit- which they were attorneys - and this, it is earnestly ical partisanship. We have no hesitation in pronoun- contended, was "misbehavior in their office," which cing such a publication to be a gross libel on its face. gave the court power to exercise summary jurisdiction Nothing can be more disgraceful - not even, perhaps, by removing them from their office. a charge of direct bribery - than such an imputation on The duty of an attorney is briefly comprehended in the motives of a judge in the administration of jus- the terms of his oath “to behave himself in the office tice.

of attorney according to the best of his learning and The court thereupon sent for the complainants, and ability, and with all good fidelity, as well to the court on their appearance and taking upon themselves the as to the client." Was the publication in question a responsibility of the publication in question, entered breach of this oath? Fidelity to the court includes rules upon them to show cause why they should not many particulars, but they all evidently concern his be disbarred and their names stricken from the list of official relations. “The sum of the matter," says Chief attorneys for misbehavior in their office as attorneys. Justice Gibson in Austin's case, 5 Rawle, 205, is that To this rule they appeared and put in answer respect- an attorney-at-law holds his office during good behavively, and the rule was afterward made absolute. ior and that he is not professionally amenable for

Many objections have been raised to the proceeding, assaulting the official conduct of the judge which which we will not stop to consider. We entertain no would not expose him to legal animadversion as a citidoubt that a court has jurisdiction without any formal Some of the remarks in the opinion in that case complaint or petition upon its owu motion to strike the have been much relied upon by the learned counsel in name of any attorney from the roll in a case, provided support of the action of the court below. But there he has had reasonable notice and been afforded an op- are two considerations bearing upon the question, portunity to be heard in his own defense.

which now exist, but did not at the time that decision No question can be made of the power of a court to was ordered. The first is the new provision on the strike a member of the bar from the roll for official subject of the liberty of the press, which has been inmisconduct in or out of court. By the 73d section of troduced into the Bill of Rights of the Constitution of the act of April 14, 1834, P. L. 354, it is expressly 1873, and the second is that at that time the judiciary enacted that “if an attorney-at-law shall misbehave was not elective. Judges in 1835 were appointed by himself in his office of attorney, he shall be liable to the governor, and their term of office was during good suspension, removal from office, or to such other pen- behavior. There might then be some reason for holdalties as have heretofure been allowed in such cases by ing that an appeal to the tribunal of popular opinion the laws of this Commonwealth." We do not mean was in all cases of judicial misconduct a mistaken to say — for the case does not call for such an opinion course and unjustifiable in an attorney. The proceed- that there may not be cases of misconduct not ings by impeachment or address were then the ones, strictly professional which would show a person not to and the only ones, which could be resorted to to effectbe fit to be an attorney, nor fit to associate with hon- | ively remedy the supposed evil. To petition the Legest men. Thus if he was proved to be a thief, a forger, islature was then the proper step. To appeal to the a perjurer or guilty of other offenses of the crimen people was to diminish confidence in the courts and falsi. But no one, we suppose, will contend that for bring them into contempt without any good results. such an offense he can be summarily convicted and We would not say that the case is altered and that it is disbarred by the court without formal indictment, a not the right and the duty of a lawyer to bring to the trial and conviction by a jury, or upon confession in notice of the people who elect the judges every inopen court. Whether a libel is an offense of such a stance of what he believes to be corruption or partischaracter may be a question, but certain it is that if anship. No class of the community ought to be the libel in this case had been upon a private indi- allowed freer scope in the expression or publication of vidual, upon a public officer, such as the district- opinion as to the capacity, impartiality or integrity of attorney, the court could not have summarily con- judges, than the members of the bar. They have the victed the defendants and disbarred them from best opportunities of observing and forming a correct practice. The office of an attorney is his property, and judgment. They are in constant attendance on the he cannot be deprived of it unless by the judgment of courts. Hundreds of those, who are called on to vote, his peers, the law of the land - the last phrase meaning never enter a court-house, or if they do, it is only at as we have been taught by Lord Coke, due process of intervals as jurors, witnesses or parties. To say that law.” By the seventh section, the first article of the an attorney can only act or speak on this subject under Constitution of 1874 -- the Bill of Rights - it is de- liability to be called to account and to be deprived of clared “that no conviction shall be had in any prose- his profession and livelihood by the very judge or cution for the publication of papers relating to the judges he may consider it his duty to attack and exofficial conduct of affairs of men in public capacity, or pose, is a position too monstrous to be entertained for to any other matter proposed for public investigation a moment under our present system. or information when the fact that such publication In admitting, as he seems to do, that a libel on the was not maliciously made shall be established to the

court may be a breach of professional duty in an attorsatisfaction of a jury.” This is a new and very im- ney, Chief Justice Gibson adds a most material portant provision introduced into the Bill of Rights by qualification. “The motive should be clearly shown to the Constitution of 1873. It would be a clear infraction have been the acquirement of an influence over the of the spirit, if not the letter, to hold that an attorney judge in the exercise of his judicial functions by the can be summarily disbarred for the publication of a instrumentality of popular prejudice." No such molibel on a man in a public capacity, or when the matter tion has been or can be imputed to the complainants. was proper for public investigation or information, for The learned judge who delivered the opinion of the as he certainly does not forfeit his constitutional court below imputes no such motive to them. He rights as a free man by becoming an attorney, it says: “Their motive, though not openly or at all guarantees to him immunity from all liability to avowed in the publication, is too obvious to admit of punishment in the case of “the publication of papers doubt. The least reprehensible motive by which their relative to the official conduct of affairs of men in professional misconduct can be supposed to have been

[ocr errors]

animated is a desire for prominence or notoriety in cluding the said William H. Blumer, composed the the editorial corps. The real or true motive could be bauking-house of William H, Blumer & Co., which no other than partisan malice or a willful, headlong carried on business but a few hundred feet distant zeal to promote their partisan interests in the face of from the First National Bank of Allentown. The their official fidelity to this court, and regardless of all plaiutiffs having money on deposit with the bank, and consequences." Suppose the motives here assigned be being desirous of obtaining interest-bearing certificates the true motives which actuated the complainants - therefor, called at the bank for that purpose. Dr. A. desire for notoriety, and a willful, headlong zeal to P. Steckel, one of the plaintiffs, testifies as to what ocpromote partisan interests - what had they to do with curred, substantially as follows: “I went to the bank professional conduct or fitness to practice law? The every week or two to make my deposits; some time in complainants, in their sworn answers to the rule, aver August, when I made deposit, I asked the teller, that in making the publication in question they were George Straub, does the First National Bank take any "acting in good faith, without malice, and for the money on certificates? He said, 'yes, sir; do you public good."

want to leave us some?' I said, 'no, not to-day,' I asked Of course wo mean to express no opinion on the him whether the First National Bank issued certifimerits of the controversy between the court below and cates of deposit, and as a matter of course pay interthe complainants. We concede to the court all that est, and he said 'yes;' then I came there again in has been claimed on their behalf — that the publica- September, 1876, and made my ordinary deposit in the tion in fact was a false and ma us libel and that in bank, and after we were through I said to the teller making the rule absolute they were actuated by a sim- that I would take the First National Bank certificates ple desire to uphold the authority and dignity.of the for $700. I filled out a check, and he handed ine a cercourt. If this were a mere question of discretion we tificate; I looked at the certificato for $700; it was to are of opinion their order was a mistake. The act of be made on demand, and asked him, is this the First 1879 gives this court jurisdiction to review the discre- National Bank certificate?' the answer was, 'yes, sir, tion of the court below, and wo think it was not in this it is;' I then said, “this reads Blumner & Co.; I want case wisely exercised.

this distinctly understood, I want nothing but the The order which made absolute the rule to show First National Bank certificates;' he answered me cause why tho names of the complainants should not that this was one and the same thing; that it should be stricken from the list of attorneys is hereby vacated pass to the credit of the company, the same as it was and the rule discharged, and it is ordered that the before. With this assurance I took that certificate. complainant be restored to the bar, the costs of this This was in the presence of the casbier of the bank, proceeding and writ of error to be paid by the county Jacob A, Blumer.” Two other certificates, aggregatof Lancaster.

ing, with the one above mentioned, the sum of $3,000, were obtained under circumstances not essentially dif

ferent. There was evidence that the president of the NATIONAL BANKS, WHEN LIABLE FOR bank recognized them as binding upon the bank, and

offered to reinstate the plaintiffs as they were before, FRAUDS OF OFFICERS.

when the bank examiner was through his examination.

That examination, however, resulted in the closing of PENNSYLVANIA SUPREME COURT, MAY 3, 1880.

the bank.

Wo must assume the jury would have found the

facts as testified to by the plaintiff Steckel. The facts STECKEL V. FIRST NATIONAL BANK OF ALLENTOWN.

established, wo have a case of palpable fraud. It is

not an answer to say the plaintiffs ought not to have Plaintiff,who was a depositor in a National bank, requested

been deceived, and with ordinary care would not have a certificate of deposit drawing interest for a portion of

been. The fact that the Blumers were respectively his deposit. The teller of the bank gave him a certifcate which purported to be issued by B. & Co., a private

president and cashier of the National Bank, as well as banking frin, and informed him in the presence of the

leading members of the banking-house of Blumer & cashier of the bank that this was the bank's certificate, Co., was calculated to mislead and deceive, and when upon which assurance plaintiff accepted it. The mem- told in positive terms that the certificates, although bers of the Arm were the managing officers of the bank, signed by Blumer & Co., were the certificates of the but had i separate place of business in the same town. bank, the plaintiffs may readily have believed it was Held, that the bank was liable to tho plaintiff for the

all right. amount of his deposit.

It was urged, however, that even if there was a fraud it does not affect the bank; that an agent can only act

within the scope of his authority; and that a bank is $3,251.63, a balance of money alleged to be depos

not bound by the fraudulent representations of oue or ited with defendant. The opinion states the case.

more of its officers. There is no doubt as to the geneThe court below directed judgment for $251 in favor of

ral rule that an agent can only bind his principal so plaintiffs, from which they took a writ of error.

long as he acts within the scope of his authority; but

А E. 1. Fox, Evan Holben, and D. D. Roper, for plaint

we do not think the principle applies in this case.

bank is responsible for the safe keeping of the money iffs.

of a depositor, and it cannot set up fraud of its own Edward Ilarvey, R. E. Wright, Jr., and G. & H. officers as an answer to a demand for repayment. Lear, for defendant.

Public policy forbids it. The plaintiffs, after ascer

taining the fraudulent character of the transaction, Paxson, J. The principal cause of complaint in tendered the certificates to the bank and demanded this case that the learned judge of the court belo 10 payment of their original deposit. In other words, withdrew from the jury the consideration of the ques- they rescinded the 'contract on the ground of fraud. tion of fraud upon the ground that there was not If their allegations are true, they had a right to do so, sufficient evidence to submit it.

and proceed upon the original cause of action. The plaintiffs kept au account with the corporation The question of fraud should have been submitted defendant, and were in the habit of making deposits to the jury. What bas been said sufficiently covers and drawing checks in the usual manner. William H. the points involved. Blumer was the president of the bank; his son, Jacob Judgment reversed and a renire facias de novo Blumer, was the cashier. Three of the directors, in- awarded.

ACTION by Philip Zeisler to recamers 2,980: Sfalleged


unwise to permit its chief officers to occupy a dual

position with divided interests, but tho consequences Plaintiff, who was unable to read, deposited money in a

resulting therefrom cannot be visited upon those who National bank and took a certifcate of deposit therefor which the officers of the bank represented was a certif

dealt in good faith with the bank. cate of the bank. It was, on its face, the certificate of

This case is ruled in a great measure by Steckel v. a private banking firm, composed of some of the officers First National Bank of Allentown, just decided. It of the bank. Held, that the bank was liable for the was error to reject tho evidence contained in plaintiff's amount of the deposit.

offer. The facts offered to be proved amounted to a

fraud upon the plaintiff, and he was entitled to have . At the trial

the question passed upon by a jury. plaintiff proposed to prove that prior to 1874 he had Judgment reversed and a venire de novo awarded. done business at the Union National Bank of Reading; that for his own convenience he wished to change

RESH, Plaintiff in Error, v. FIRST NATIONAL BANK his bank, and applied to Blumer, the cashier of the

OF ALLENTOWN. First National Bank of Allentown, the defendant corporation, at its banking house, and told Blumer that

Defendant, who had money on deposit in a National bank, he wished to deposit money to be entered on a deposit when demanding payment thereof, was induced by an book, and draw checks as he had done in the other officer of the bank to sign a promissory note, which was bank; that Blumer informed him that the defendant

represented to him to be a receipt for the money. He bank did not do business in that manner, but that it

was unable to read English. Held, that he was not

liable to the bank upon the note. would issue certificates of deposit for his deposit and he could draw checks upon the bank and the bank would pay them; that he deposited his money, took a the defendant below and payable to his own order certificate of deposit, which he was assured was the and indorsed by him in blank. Upon the trial plaintiff certificate of the First National Bank of Allentown by below proved the note. Defendant offered to show in Blumer; that he was unable to read the certificate; substance that at the time the note was made he held that at the same time Blumer gave him a number of

a certificate of deposit of the First National Bank of blank checks on said bank; that from time to time

Allentown, the plaintiff, for $500, for moneys deposited after that he deposited money and received certificates

by him in such bank; that on the 7th of March, 1877, and drew checks on the said bank wbich were paid;

he presented the certificate at the bank for payment; that on the 11th of October, 1876, a settlement of ac

that he was requested by an officer of the bank to counts between plaintiff and the bank was had, the

sign what the officer represented to him was a receipt checks drawn by plaintiff were surrendered, plaintiff for the amount, and that under such representation made a deposit and a new certificate of deposit for the

he signed the paper, which was the noto in suit; that balance then due ($2,980.80) was given him by the off

being unable to read or speak the English language he cers of the bank. This certificate was in fact the cer

supposed the paper to be a receipt. This evidence, on tificate of the banking-house of Wm. H. Blumer &

the objection of plaintiff below, was excluded as in('0., a firm doing business near the bank, aud whose

competent. From a judgment for plaintiff defendant members were the managing officers of the bank.

took a writ of error. That plaintiff did not then know that the certificate was that of the firm but believed it to be that of the R. Clay Hamersly and Thomas B. Metzger, for plaintbauk; that he did not know of the existence of the iff in error. firm named until after their failure, and the failure of the bank, which took place in 1877 ; that at the time

Edward Harvey and R. E. Wright, Jr., for defendant of the issue of the certificate last named the firm

in error. named were insolvent, which fact was known to the Paxson, J. While this case differs somewhat in its officers of the bank.

facts from Zeigler v. First National Bank of Allentown, This evidence was, on the objection of defendant,

and Steckel v. First National Bank of Allentown, just excluded by the trial court and in the absence of evi

decided, it is similar in principle, and comes within dence a verdict rendered for defendant. From the

the rulings of those cases. judgment entered upon it plaintiff took a writ of

The third assignment covers all that it is necessary error.

to discuss. The court rejected evidence offered to John Rupp and John D. Stiles, for plaintiff in error. prove that the note in suit was procured from defendEduard Harvey and R. E. Wright, Jr., for defend

ant below by fraud on the part of tho bank officers; ant in error.

that he went to the bank to receivo payment of a cer

tificate of deposit for $500; that when the money was Paxson, J. When the plaintiff took his money to paid he signed a paper represented by the bank officer the First National Bank of Allentown and handed it to be a receipt for $500, but which afterward turned out to the cashier for deposit the bank becamo responsible to be a note for $500, upon which this suit was brought. therefor. The cashier was the executive officer of the It is true the plaintiff denies tho facts upon which bank, and authorized by the very nature of his office

this offer was based. But this denial goes for nothing, to receive money on deposit. After receiving it, no as the jury were not allowed to pass upon them. trick or fraud on his part by means of which the money

The evidence should have been admitted. Judgment was passed over to Blumer & Co., a firm in which the reversed and a venire facias do novo awarded. bank officers were largely interested and appeared to have had the control, could absolve the bank from its liability. No class of men have the confidence of the

NEW YORK COURT OF APPEALS ABSTRACT. people to a greater extent than bank oflicers. Depositors do not deal with them at arms' length, and cau be APPEAL-WHAT CASE UPON SHOULD BE - APPELimposed on with the greatest ease by such officials. It LATE COURT WILL NOT ALTER RECORD CONTRARY TO would be monstrous to allow them to take advantage FACTS. — The case upon appeal should be a transcript of the ignorant and unwary by reason of their position of the proceedings upon the trial, or so much of them and the confidence which it inspires. It was doubtless as will present fairly the decision sought to be rea misfortune to this bank to have unworthy officials, viewed. The court is aware of no authority or pracif such sbould prove to be the case. It certainly was tice which will permit an appellate court to direct such

« PreviousContinue »