The News-Herald. [volume] (Hillsboro, Highland Co., Ohio) 1886-1973, 1894-05-31

bank. And in order that the plaintiff
may recover from the bank for any
deposits handed to and received by
Overman, in case he had no authority
to receive the same, the plaintiff must
show, by a preponderance Of the evi.
dence, that the bank actually received
such money, and used and got the bene.
ft of the same.
And the entering of any payments
made by Barrere upon the books of the
bank is evidence tending to show the
actual receipt of such sums of money by
the bank.
1 will now call your attention to
another special instruction which
allowed and read to you at the begin
ming of the argument.
"The defendant, The Citizens Ma.
tional Bank, had not the power, under
the law, as part of its usual and ordi-
nary business as bank 10 borrow
money and issue its obligation therefor
either in the form of certificate of de.
posit payable at certain time in the
future, or in the form of promissory
note"
You will observe that this instruction
refers to the usual and ordinary business
of bank. But said bank might, to re-
lieve itself from pressure of circum-
stances arising from extraordinary or
unusual conditions, borrow money. But
no officer or agent Of said bank could
lawfully bind it for the payment of a
loan unless he be authorized by the
directors to negotiate and make such
loan on the part of the bank, or unless
the money was received by the bank on
said loan with the knowledge on the
part of the directors that such loan had
been made and they acquiesced in the
same. But the right to receive deposits
by national banks is one of the powers
expressly conferred upon them by the
act OF Congress authorizing their crea-
ton. And for the more effective exer.
cise of this conferred power, and as Incl
dental thereto the Board of Directors of
The Citizens National Bank had the
power to authorize the officers and
agents OF said bank to pay interest on
| deposits, either current or on time,
whenever they, the directors, should
think the prudent management of the
bank would justify them in so doing.
And this authority, like the authority 10
borrow money outright, need not be
evidenced by resolution of the Board
of Directors, nor is it required that it
should have been given by the board
while in session as such 1t will be suf.
ficient authority from the board, if a
majority of its members, four in number,
gave their assent to the paving of inter.
est on deposits, or the borrowing of
money.
And this power to borrow money must
be special authority for that purpose,
that is, it can not be implied from a
general authority to manage, and trans.
act the business OF the bank. And the
necessity for such borrowing must be
ascertalned and declared by the Board
of Directors, and the determination of
such necessity can not be delegated to
an officer of the bank, however general
his powers may be. But it is not essen.
tial to the exercise of the power to Dor.
row money that the directors should
| direct the particular person from whom
the money shall be borrowed. And if
the special power to borrow money be
give n, the necessity for such borrowing
and the finding Of such necessity by the
directors will be implied in the grant of
such power.
And as to whether an exigency existed
which would Justify the directors of The
Citizens National Bank in authorizing
loan, if they did authorize one, the
plaintiff is not required to show Nor
is it required that he should show that
he knew of such authority being given,
if as matter of fact, the authority was
given. If the bank, through its direc.
tors, authorized loan to it, the giving
of such authority by the directors would
be conclusive upon the bank as to the
necessity for such loan. AS to what
would be deposit with bank or
loan to it, the law lays down no infexi.
BILE rule which can be applied in all
cases. AS a general rule it may be said
that money furnished bank at its re-
quest, or with the consent of it's author
lied agent, in the usual and ordinary
course of it's business as known to and
authorized by the directors, whether
payable on demand or at future time
and whether it bears interest or not, and
whether evidenced by certificate or
not is deposit, and in such case there
is an obligation on the part of the bank
to repay such money according to the
terms of the agreement upon which the
money was furnished. But If money be
furnished bank not in the usual and
ordinary course of its business as known
to and sanctioned by the directors, then
it is not deposit but loan. and in
such case the person furnishing the
money must look to it that the loan was
authorized by the directors either ex-
pressly or by implication, or it must
appear that the directors acquiesced in
the use of the money with full knowl.
edge of the facts upon which it was
obtained. AS to whether the transact
ions between Barrere and the president
and cashier of The Citizens National
Bank amounted to deposits or loans
will depend upon the intention of the
parties to such transaction. This inten.
ton must be ascertained by you from a
consideration of all the testimony in
the case, and the form of the instru-
ment used, as we'll as the circumstances
surrounding the parties and connected
with the transaction.
| now read to you another special in.
struction which gave and read to you
before the argument began:
"You are not bound to conclude that |
the transactions of the plaintiff with G. |
M. Overman, the president of The Citi.
zens' National Bank, claimed to be eyi.
denced by the certificates sued on were
SUCH as such certificates thems~lvoo