Shenandoah herald. [volume] (Woodstock, Va.) 1865-1974, 1892-03-18
Trial Of Rosenberger, Shirley &c,
Postponed.

Trial of Rosenberger, Shirley &c,
Postponed.
The trial of the Warrenton bank wreck
ers hich was to have come off at the
present term of the LoudouD comfy
court, has been postponed to the April
term upon the grounds that there was
not sufficient time for summoning wit
nesses, &c. Below we give the decision
of Judge Splman in everything the de-
murrer IN the above case. 1t is strong
and clear document, and will doubtless
receive tke appreciation of every honest
reader:
NV view of tits case is briefly this
The statute under consideration IS as
broad as language can make it. Special
cases of fraud bad already been provided
against, and the Legislature int nded by
general and sweeping enactment to pun
ish every case of fraud where any person
had obtained possession of property of
another "by virtue of his office, trust, OF
employment, or which shall have been en-
trusted or delivered to him by another"
After reciting cases of employer and en-
ployee, principal and agent, bailor and
bailee, it uses these broad and cOmpre-
hensive terms indicating clearly, that the
word "emplOymtnp means occupation or
calling. The question which has been
discussed with much ability and ingenui-
ty, viz: thai the relation of debtor and
creditor exists between banker and credi-
TOR, in my opinion, has nothing to do
with the case. IL is n necessary doctrine
of mercantile Jaw that this relation should
exist. For otherwise the depOsitor would
be left without security OF any kind and
banks of deposit would cease to exist.
The fallacy of the argument of counsel for
the defence consists in maintaining that
the relation of debtor and creditor cannot
exist, except between borrower and lender.
So far as the remedy is concerned there
are many transactions whose character is
by no means of this nature, that for pur-
poses OF relief will be regarded as between
debtor and creditor. The remedy does
not always determine the character Of the
transaction.
Banks of deposit are creatures OF the
mercantile law. This law is an edifice
erected by the usage and convenience Of
the business woili. 1t is as fully recog-
nized, and as strongly enforced, by the
| iudicIal tribunals, as the positive enact
ments of Legislatures. These banks OF
deposit were resorted to by the CONNER
Gill world. for the convenience aud bene-
fit of depostors and those with whom
they conducted business, primarily and
incidentally, Tor the benefit OF bankers
There are some peculiar features of this
business, that are universally recognized
and acted on, which are wholly neon
sistent with the idea of lender and bor-
rover. The depOsitor entrusts and de-
| livers to the banker his money Tor dis
tlnct aud single purpose, which the bank
er undertakes on his part to carry out.
This Is the central fact which fixes the
character of the Transaction. Whatever
ownership may be thereby conferred on
the banker, Is subject to, and controlled 6y
this purpose Otherwise, as | have before
remarked, these institutions couli not eX-
ist. 1t can, therefore, b. properly and
accurately said a banker receives for
another the money entrusted and de-
livered to him" by depositOr. There is
no single feature of the transaction that
IIkens it to the case OF the ordinary loan
of money for which the borrower executes
his obligation.
have not been able to examine the au-
thorities cited on the question OF the re.
lation between deposltOr and banker.
believe a critical examination of them
will disclose the fact, that this doctrine
had its origin IN the necessity before adj
verted to without regard to the real ma
ture of the transaction between the par
ties. That it was established for the Sc
curity and safety of the deposition and not
as shield for crime. That he might
have a plain, direct and simple remedy,
by an action the very form of which de-
mands of the defendant money chad and
received by him for the plaintiff" This
relation of debtor and creditor between
banker and depositor, was not established
as house of refuge for embezzlers and
wrong doors. 1t is only by technical
reasoning that such a position can he
supported and courts OF Justice should
never sanction a technically that ls
urged to defeat the ends Of justice, unless
constrained thereto by some imperative
and well-settled principle OF law.
II isno anomaly of the law that debtor
may be sued, and at the same time pro-
ceeded against crminally even N case
where the relation springs ont OF
the nature of the dealings of the
parties. The case of a person obtaining
goods under false pretenses is an ex-
ample. The law does not abhOr the
criminal prosecution Of debtor, because
you have a civil action ag ainst him. 1t
seeks the punishment Of crime in all the
relations OF business and lite.
The demurrer must be oyerruled.
In addition to the brilliant array Of
counsel on both sides, the commonwealth
attorney has written to commemorative
attorney Meade F. White, of Augusta
county. asking him to assist in the prose-
cuton. Mr. White has written consent
ing to do so, and will be on hanl when
the case is called, to prosecute with his
accustomed rigor.