#### The President &c. of the American Bank *versus*Nathan Adams.

A bond for the *u faithfuln*performance of the duties of a teller of a bank, is a security for competent skill and ordinary diligence, as well as for integrity, in the discharge of the duties of the office.

In an action upon such bond, an allegation that the teller as such, has received money for which he has not accounted, is a sufficient assignment of a breach.

If it is a sufficient answer to such assignment of a breach, to say that either the teller accidentally lost the money in over-payments or it was fraudulently stolen from him, such justification is not supported by evidence that the teller had the character of an honest, careful and vigilant officer, that similar losses by tellers of banks, and for which they are unable to account, are frequent and almost inseparable from the nature of the office, that the president and directors of the • particular bank have expressed their conviction that the loss in question was occasioned by over-payments, and that after the loss they have employed the person who was the teller, in offices of trust and confidence, and individually recommended him as honest and trustworthy.

Debt on a bond, dated May 12, 1824, with a penalty of $ 16,000. The condition is, that whereas Ashur Adams, the principal, has been duly appointed to the office of teller of the American bank, if he shall faithfully perform and discharge the duties of his office for and during the whole term in which he shall continue therein, then the obligation shall be void, otherwise, &c.

Plea, general performance.

Replication, that Ashur Adams remained in the office from May 12, 1824, to January 10, 1828, and that it was a part of his duty as teller, to dispose of, to the use of the plaintiffs, or to pay over and account to them for all moneys that he might receive as teller; that he received at various times, during &c. various sums, amounting to $2638, to be disposed of &c. yet though requested, he has not disposed of or paid or accounted for the same, contrary to the effect of the condition.

Rejoinder, that Ashur Adams accounted with the plaintiffs for all moneys, and the sum of $2638 was found in arrear; and that that sum was accidentally lost by him while in the discharge of his duties as teller, by reason of over-payments made by mistake, at different times, in divers payments of money made by him in his capacity of teller, or was fraudu*309lently stolen from him, without any fraud or want of fidelity . on his part.

Surrejoinder, that the sum of 02638 was lost by and through the default of Ashur Adams, traversing that the same was accidentally lost or fraudulently stolen from him in manner and form &c. and tendering an issue thereon; which is joined.

Upon the trial of the foregoing issue, before *Shaw*C. J., it was ruled that the affirmative was with the defendant to prove that Ashur Adams lost the sum specified, by accidental over-payments in the course of his business as teller, or that it was fraudulently stolen from him.

To maintain the issue on his part, the defendant did not propose to offer any specific proof of any particular loss by over-payments in the course of business, or of any particular theft, but to show ; —

1. That the character of the teller was that of an honest, Careful and vigilant officer ; —

2. That losses of moneys by tellers of banks, to an amount like that above mentioned, and which they may be unable to account for, are frequent; that from the multitude and complexity of the transactions in which they are engaged, and the rapidity with which those transactions must often be despatched, such losses may be considered as almost inseparable from the nature of the office, and that they occur without any impeachment of the capacity or fidelity of such officers ; —

3. That the president and one or more of the directors oí the American Bank, after the happening of the alleged losses, expressed their conviction, in various conversations at the bank relating to this business, that the same were occasioned by over-payments ; — and

4. That the president and directors, after these losses, employed Ashur Adams in offices of confidence and trust, and individually recommended him to the governor of the Commonwealth as honest and trustworthy.

The chief justice was of opinion, that this evidence was not of itself competent to go to the jury and sufficient to warrant them in finding the issue affirmatively for the defendant ; whereupon the cause was withdrawn from the jury by consent, *310subject to the opinion of the Court upon the pleadings and upon a report to be made.

If, in the opinion of the Court, the evidence ought to have been received, and would have warranted the jury in finding the issue for the defendant, and if a verdict on such issue for the defendant would bar the plaintiffs’ action, the cause was again to be sent to a jury to try the issue; if the evidence was rightly rejected, or if a verdict for the defendant on the issue would not bar the plaintiffs’ action, and if the plaintiffs,

upon the whole record, would be entitled to recover notwithstanding such verdict, judgment was to be entered accordingly ; and a nonsuit or default was to be entered, as the case might require.

*1thrch 9th.*

*S. Hubbard*and *C. G.*Loring,

for the defendant, contended that no sufficient breach of the bond was assigned by the plaintiffs. The word “faithfully” renders the defendant responsible only for a want of moral honesty and ordinary diligence on the part of the teller, and nothing short of a fraudulent act or gross negligence would constitute a breach of the bond. It should have been averred that the teller *unfaithfully*omitted to pay over or account for the money, and the burden was upon the plaintiffs to prove this by presumptive evidence. *Union Bank*v. Clossey, 10 Johns. R. 271, and 11 Johns. R. 182 ; Story on Bailm. 390, § 620.

The facts alleged in the rejoinder, if proved, are a defence to the action. The case of a teller cannot be distinguished from that of a servant or bailee for hire ; and if so, a stipulation for his fidelity does not create a responsibility for the fraud of others, or for accidents on his own part, which are inseparable from the office. It is not necessary, however, to rely on the ground of his being a servant or bailee for hire; it is sufficient to say, that simply because he is so much exposed to such losses, they must have been in the contemplation of the parties, and must have been considered as forming no breach of the bond. *Coggs*v. Bernard, 2 Ld. Raynn. 918 ; *Vere*v. *Smith,*1 Ventr. 121; *Russell*v. *Hanksy,*6 T. R. 12 ; Story on Bailm. 16, 289.

The evidence offered by the defendant was admissible, a -1 tended to sustain the issue on his part. Over-payment* .» 1 *311larceny would be the only modes, (except the teller’s own fraud,) in which the loss could happen, and the only way in which this action could be defended would be by showing a loss in one of those two ways. It is a case of probabilities. If the burden of proof is on the defendant, he offers to show that such losses are unavoidable, that they are not usually regarded as evidence of fraud, that the teller was always at his post, that he was vigilant, and that his employers never suspected him of want of honesty. The jury are to weigh these circumstances and to determine what inference is reasonably to be drawn from them. *Hare*v. Travis, 7 Barn. & Cressw. 14.

*F. Dexter*and *W. H. Gardiner,*for the plaintiffs,

cited *Minor*v. Mechanics’ *Bank,*1 Peters’s S. C. Rep. 46, as to the construction of the bond.

*Marca*19ln

*Per Curiam.*

1. The Court are of opinion, that a bond faithfully to perform the duties of teller, binds the obligors to a responsibility for reasonable and competent skill and due and ordinary diligence in the performance of his office ; that what is reasonable and competent skill and due and ordinary diligence depends upon the nature of the office ; that the obligors were bound, not for the honesty only of Ashur Adams, but for a faithful execution of the duties of his office, which embraces competent skill and due diligence; and that, taking into consideration the known nature and duties of the teller of a bank, the allegation that he has received moneys for which he has not accounted, is a sufficient assignment of a breach of the bond, which, if not justified or excused, will amount to a forfeiture.1

2. Taking it for granted, that the justification set forth in the rejoinder, viz. that the teller accidentally lost the money in over-payments, or that it was fraudulently stolen from him, would, if found for the defendant, be a good answer to the assigned breach, the only remaining question is, whether the evidence offered would warrant the jury in finding the issue for the defendant. This evidence, though it goes strongly to *312repel the suggestion of loss by a want of integrity, yet, we think, is not sufficient to prove the specific mode of the loss. The burden is upon the defendant. He must show affirmatively the truth of the justification pleaded. And we are all of opinion, that the jury would not have been warranted in finding for the defendant upon the evidence offered.

There being, therefore, a sufficient breach set forth, and the rejoinder not being supported by the evidence, the penalty of the bond must be adjudged to be forfeited, and the defendant may be heard in chancery.

1

*State Bank*v. Chetwood, 3 Halstead, 1; *Barrington*v. *Bank of Washing*ton, 14 Serg. & R. 405.