The Montgomery advertiser., 1903-05-30

sions of opinion on points not necessar, : to the decision of the case, though in } volved on the facts, was hot binding or , that or other courts because It was no Unnecessary to the decision of the parucu' lar case. Every court, therefore, Wnict , is called upon to administer the law witr ! reference to particular case, If the facts are at all different upon supse- auent trial. is bound to interpret the opinion of an appellate court, not merely according to its letter or general expres- sions or arguments, but according to the
 real principles decided in the opn-
 Ion as applied to the facts then before
 1t. As great an authority as Chief Jus
 tice Marshall says: Tt is a maxim not to be disregarded, that general expres-
 sions in every opinion are to be taken Tn connection with the case in which those
 the case they may be respected, but
 ought not to control the judgment in a
 subsequent case when the very point is presented" .,t
 Coming now to the issues before you: will state them briefly, and in the or der in which they arise in the different
 counts of the complaint. This, as has
 been fully explained to you. is suit l against Cochran and his sureties upon | his official bond as Treasurer of Mont gomery County, for alleged breaches l thereof. These breaches, broadly stated,
 are of three classes. First, that he con. Il
 in his hands. Second, that he failed to collect a check which it was his duty to | collect, and. thirdly, that by giving a re- | ceipt, under the circumstances stated in l one of the counts. he is estopped to set l up the real facts of the transaction, be- | cause he misled the Clerk of the Board | of Revenue into delivering the bonds of
 the county. under the belief that the l sum of money represented by the check
 handed by Allen to the Treasurer for | collection, had been actually paid in mon- | ey, before the bonds were delivered to
 the purchaser. To enable you to intelli- 1 gently decided these issues, you can dis
 miss Kohn as an individual from your l consideration and treat him wherever he
 acted in behalf of the Treasurer as Coch-
 ran himself, and whenever he acted for
 ness under the name of Josiah Morris & Co.,, as Billing himself. This Is the char
 acter which the law ascribes to Kohn in
 these transactions. Taking the transac- | tions, therefore, in a legal aspect, what have we?
 There is no dispute that the bonds
 were issued. that filing, purchased them
 the s Board who returned 1t # to tas the Treas
 for IS po s. for sns Psss of wsa ss
 took place? I state it in this way because
 the evidence Is not in any conflict or dis
 as s an af individual % and A treating his action under power of attorney as Cochran's
 act. tends to prevent confusion in your
 ran the Treasurer go to Alien. who rep resented the Board of Revenue Billing | says to Allen T am here for those bonds.
 nrer for the preep of tSe Alien | who represented the Board of Revenue, delivers the check to Cochran the Treas
 ent the other issues to the estoppel. about | which you will be presently instructed.
 what so far. is the liability of Cochran or the sureties, for what Cochran did or failed to do with this check? l charge you under the facts that he received this
 Sheek from the Board of Revenue se , and lection. and that thereupon 1t became his duty to use due diligence. or, to quote
 anguase to or ths ne dtVp of o of public funds to exercise fidelity. skill and diligence to get the money on this
 cautious man exercises in respect to the most important matters" It was Coch- rans duty. the check having been deliv- mand payment on the opening of the bank next morning. and then to take all
 steps within his power to force the pay
 preached the obligation of his pond. and became liable for all that he could have
 collected upon the check. The Court does not attach any importance to the fact
 ed The check in this particular in-
 aote n of s es eeeS by Josiah Morris and Go. on themselves
 and payable to Cochran's order. The
 paFss %ho or bound SS s9 protest. Therefore no legal right was
 lost by not protesting Cochran became collected on the check. using the degree
 of diligence 1 have already described.
 Ills duty. l repeat. was to collect the | regard, leaving out the question of estop- pei. is the amount which he could have
 recovered by. due diligence, if he had dence shows that the bonds were negotia- ble. had been sent the evening before by
 express consigned to a New York bank
 far as anything in the evidence shows.
 af Eh 5ay d he S o the he snh morning. Here. 1t is proper to say to you that Cochran is not chargeable with of the affairs of Josiah Morris and Go, while Kohn was acting for Cochran, un-
 less that knowledge came to Kohn in the
 an ~h the bans Besdes Se t2e er ence from the evidence Is that Kohn was
 acting in the interest of the bank in pro
 presumption. of law under such circum-
 stances is, that an agent acting adverse
 y to his pgFncRPahl, R h,s does not mpart to
 So Cochran is not chargeable in this
 case by reason of any knowledge which
 hOnn mlSnL nave possessed Of the con-
 dition of the. bank, at thu. time the check
 was received or the bonds delivered. So
 far as this phase of the transaction
 representing the Board of Revenue, and
 Cochran the Treasurer. acted in the ut- most good faith in the receiving of the
 check and its delivery to Cochran for
 collection. Nevertheless, as I have be-
 fore said to you, it was Cochran's duty
 to be dillgcnt in collecting the check, and
 whatever could have been collected by
 due diligence it was his duty to collect
 and the amount which you find he could
 have collected by due diligence. is the
 measure of recovery for his failure to
 collect the check. less. of course such
 credits as were afterwards realized from
 the assets and paid to the county on ac-
 count of Cochran's dealings with the
 bank. What. could have been collected is
 circumstances. The amount the bank
 had on hand on that day. is only one of
 the facts to be considered by you. What was the condition of the bank at that time? If the payment of the check had been demanded in cash before the bonds were delivered to the bank on the next morning after the raised the cash and paid the check? In whole evidence What assets did 1t have. which could be realized upon to get the cash? How much did 1t owe? What demands were being made upon 1t for the pay ment of money at that time, and in what amounts? You may look to all the facts among them the fact that the assets were left in the hands of the pro- prietor of the bank, and how long 1t took | him to realize 9 per cent dividends