# Solomon Etting v. The Bank of the United States/Opinion of the Court

* Court Documents
* Case Syllabus
* Opinion of the Court
If this case depended on the deservedly high character of the individuals who were engaged on the part of the bank in the transactions in which the suit originated; if elevation above the possibility of suspicion that they could have meditated any thing believed by themselves to be legally or morally wrong, could decide it, this cause would not have required the great efforts which have been bestowed upon it. The names which appear on this record can never be connected with actual fraud; nor would any difficulty be found in protecting them from the imputation, were it possible that it could be made. But judicial inquiries are into the rights of the parties;
At the trial several points of law were raised by both parties, on which opinions were given, to which exceptions were taken, and the correctness of those opinions constitutes the single inquiry in this Court. [Here the learned Chief Justice stated the case, as it is stated above.]
As preliminary to the inquiry, whether the law arising on the facts, and on the inferences assumed in the bills of exceptions contained in the record, was correctly stated by the Court, a point has been made at the bar, which must be disposed of. It has been contended, that a Court is not bound to answer abstract or hypothetical questions of law, not growing out of the testimony in the cause, which may be propounded at the bar; and, to apply this principle, it has been also contended, that the testimony contained in the record, and referred to in the bills of exceptions, contains nothing from which the jury could possibly draw those inferences of fact upon which the Court was asked to declare the law. That the points made in the bill of exceptions constitute a distinct and totally different case from that made by the evidence.
That a Judge cannot be required to declare the law on hypothetical questions which do not belong to the cause on trial, has been frequently asserted in this Court, and is, we believe, incontrovertible. #fno The Court may, at any time, refuse to give an opinion on such a point; and if the party propounding the question is dissatisfied with it, he may execpt to the refusal, which exception will avail him, if he shows that the question was warranted by the testimony, and that the opinion he asked ought to have been given. But, if the Judge proceeds to state the law, and states it erroneously, his opinion ought to be revised; and if it can have had any influence on the jury, their verdict ought to be set aside.
It cannot, however, we think, be correctly affirmed with respect to the case now under consideration, that the points stated in the bills of exception have no relation to the testimony to which those bills refer. That testimony consists of various communications and reports, made to the bank, of their own transactions, and of the admissions of parties. It has been said, that this testimony is all in writing, and is to be construed by the Court; and from this proposition is deduced the corollary, that the jury was not at liberty to draw inferences from it.
Were the fact as alleged, and were it true, that the testimony is all in writing, the consequence drawn from it cannot be admitted. Conceding it to be the province of the Court to construe any particular paper which was offered in
We are far from saying that these inferences were all of them such as the jury ought to have drawn. It is not difficult to perceive, that the bank might have acted on motives equally unexceptionable in morals and in law. The jury might very well have believed that the bank thought the 26,550 shares of stock were not worth more than the sums for which they were pledged, or, at any rate, were not a safe security, and might, therefore, think it advisable to relinquish that pledge, if other security could be substituted in its place. Others might estimate that stock more highly than they did, and might estimate it rightly. Friends, therefore, acting on their own judgment of the value of this stock, might be found willing to endorse the paper of Mr. M'Cullough on receiving it as a pledge. The motive, too, for retaining Mr. M'Cullough in office might be to induce him to do the bank all the justice in his power, not to induce others to endorse his notes. The whole subject was before the jury, and they might have drawn from the testimony either these inferences, or those which are stated in the bills of exceptions. The counsel for the plaintiffs, believing the law to be in their favour even upon that view of the testimony which is taken in the exceptions, and fearing that the jury, should they take that view, might find for the defendant, chose to refer the law to the Court. Whether his fears respecting the jury were well or ill founded, this cause must now be decided on the correctness of the opinion given by the Circuit Court.
In the very elaborate arguments which have been made at the bar, several cases have been cited which have been attentively considered. No attempt will be made to analyze them, or to decide on their application to the case before us, because the Judges are divided respecting it. Consequently, the principles of law which have been argued cannot be settled; but the judgment is affirmed, the Court being divided in opinion upon it.
Judgment affirmed.

## Notes

* ↑ o