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

CHARGE OF COURT.
Carlisle Barrere, Plaintiff, vs. The Citi.
zens' National Bank, and r. M. Dittey,
Receiver, Defendants.
Gentlemen of the Jury -
This action is brought to recover a
Judgment against the defendant, The
Citizens National Bank, of Hillsboro,
on certain alleged Certificates OF Deposit,
of which copies are attached to the Pc
tition. The defendants for defense to
this action deny the execution Of said
alleged Certificates of Deposit by the
bank and allege that there is no consid-
Grafton for said Certificates of Deposit.
For second and further defense, they
allege that if said Certificates of Deposit
were made and delivered and if there
was any consideration therefor, the con-
sideration was money borrowed by one
G. NJ. Overman, the president OF said
bank, from the plaintiff. The answer
admits the execution OF said certificates
by said o. NJ. Overman as president OF
said bank, but AYERS that he had no au.
thority from the bank to do so. The
burden is on the plaintiff to prove by a
preponderance OF the evidence, that is
the greater weight of the evidence, that
the defendant, The Citizens National
Bank, executed to the plaintiff the GER
titicates sued on, or some one or more
OF them and that such certificates were
issued for a consideration paid to said
bank. If the plaintiff has so proved the
execution OF any one or more OF such
certificates, in the manner to be here
after explained, and the consideration
therefor, in whole or in part, he will be
entitled to a verdict at your hands for
the amount of the consideration so
proved, with interest as hereinafter in.
dicated. Ii he has failed so to prove the
execution of any one of such certificates
and consideration therefor, your verdict
should be for the defendant. The de.
fendant, The Citizens National Bank,
being corporation, can only execute
the certificates in question by an agent
or officer possessing the authority Of the
corporation to execute them. In this
connection, read special instruction
given and read to you before the argu.
ment commenced.
Clarence M. Overman, as president
of The Citizens National Bank, did not,
under and by virtue of the acts of Con-
gress establishing and governing ma.
tional banks, nor under the general
rules of law applicable to banks and
banking, by virtue of his said Office of
president, have power and authority to
execute and issue certificates of deposit
of said bank, and certificate so issued
his name as president of said bank, bind
said bank"
The only officer of the defendant, bank,
who, by virtue Of his Office, had the au.
thority to receive deposits offered to said
bank and bind the bank by his certiti.
Gates therefor was the duly elected and
acting cashier. But the president may
be authorized, either expressly or by
custom or usage in the conduct of the
business of said bank, to transact any or
all the duties devolving upon the cashier
by virtue Of his, the cashiers Office. 1t
was Competent for the Boar of Direc-
tors 10 clothe Overman in Lis capacity
OF president, with the authority and
power to receive deposits offered to said
oank, and bind said bank by his official
signature as president to certificates of
deposit as efectually as the cashier
could do. 1t is not required that this
authority To the president should he be-
slowed by any express pr formal ,ction
ny the directors, but it may be Implied
from circumstances, or long uniform
course of dealing on the part of the bank.
II Z. NJ. Overnan in the capacity of
president WAS in thu habit of receiving
deposits OF said hank and issuing its GER
titcates therefor and this habit existed
for considerable length OF lime and
the directors, or majority Of them, for
a long time knew Of such habit of Over.
man, and made no objection thereto, an
authority from them 70 Overmaa to do
such acts may be presumed. And if
these acts OF Over nan were frequent,
long continued, open and notorious, the
knowledge of the directors may reason.
ably be presumed. And it was the duty
of the Board of Directors of said bank to
give such attention to its business as
would enable them to become acquaint.
ed with and know the manner in which
the business of the bank was being con-
Quoted, and to accertain whether any
officers constituted by them were disre
garding or exceeding the authority en-.
trusted to them by the board. And if
the Board of Directors of The Citizens
National Bank, in careful and prudent
discharge of their duties just defined,
and by the employment of an ordinary
amount of care therein, could, or might
have discovered that Overman was
usurping the functions of the cashier to
INC eAIenI VI receiving uepOSltS ana Is.
suing the certificates OF the bank there
for, they will be charged in law with
such knowledge as they could have thus
obtained, and their silence and failure
to object, under such circumstances,
would in law amount to an authority
from the directors to Overman to do the
acts he assumed to do in that regard and
to bind the bank therefor. And if the
directors, or majority of them, without
objection or protest on their part suffer
ed Overman to exercise the duties of
the cashier in respect to the receipt of
deposits and issuing certificates OF the
bank to an extent that would justify a
person with ordinary prudence and
caution, dealing with the bank, in the
reasonable belief that he, Overman, had
the authority from the directors to do
those acts, and if the plaintiff in his
dealings with Overman in good faith re-
lied upon the appearances thus created,
the bank will be estopped to deny that
Overman poss essed the authority appar.
emily possessed by him. But he must
have relied in good faith upon such ap.
pearances and if he knew that Over |