
    84.
    Sup Court
    1825.
    
      Bank of Michigan vs James McCloskey
    
    Fild in open Court Nov. 6. 1826
   Supreme Court Septr Term A D. 1826—

President Directors & Co— | of the Bank of Michigan vs [ James McCloskey— j

Rejoinders of Deft— ■

And now the said James McCloskey as to the said replication of the said Plaintiffs and the several Breaches therein firstly assigned, says that the Plantiffs by reason of any thing by them in their replication alledged ought not to have or maintain their aforesaid action thereof against him because he says that he did not remain and continue in the service and employment of the said Plaintiffs as such cashier from the thirteeneth day of December in the year of our Lord eighteen hundred and eighteen untill the eighteenth day of May in the year of our Lord eighteen hundred and twenty five, that divers large sums of money belonging to the Plantiff to wit the sum of twelve thousand Dollars did never come into the possession and were never put into the charge of this defendant, but whatever sums less were put into the possession and charge of this defendant while he remained in the service and employment of the Plaintiffs, he did safely & securely keep and preserve for the Plantiffs in their said Bank of Michigan as he was in duty bound to do, and did never refuse to account for the same to the Plantiffs in manner and form as is in their replication alledged and of this he puts himself upon the Country fro trial.

By C. Stevens his Aty.

And the Plantiffs doth the like by—

And as to the said second replication and further assignment of the Plantiffs, the said James McCloskey says that while he continued in the service and employ of the said Plaintiffs as cashier as aford he did keep regular Books and accounts of all Business and transactions of the said President and Directors and others, doing business in said Bank, and did not on the Contrary keep irregular and false Books and accounts of such business and transactions as the Plaintiffs in their said replications have alledged and of this he puts himself upon the Country for Trial

By C. Stevens his Aty

And the Plf likewise by

And as to the third and further assignment of Breaches of the said condition of said writing obligatory the said James M°Closkey says that on the eighteenth day of May eighteen hundred and twenty five he was not removed from the said office of Cashier of said Bank, that at the time last aforesaid, he had not divers large sums of money belonging to the said Plantiffs and also divers other large sums of money belonging to sundry Persons who had made deposits in said Bank in his hands and possession amounting to twelve thousand Dollars or any part thereof as the Plantiffs in their said replication hath assigned and alledged against him and of this he puts himself upon the Country for trial

by C. Stevens his Aty.

And the Plantiff likewise by

And as to the fourth breach of the said condition of said writing obligatory specially assigned by the said Plaintiffs the said James McCloskey says, that he did not after the making of said writing obligatory while he was in the service and employment of the said Plantiffs as Cashier as aforesaid on the twelvth day of December eighteen hundred and eighteen or at any other days or times between that day and the eighthteenth day of May eighteen hundred and twenty five receive divers sums of money belonging to the Plaintiffs amounting to twelve thousand Dollars or any part thereof and that he did never fraudulently and deceitfully embezzle from the Plantiffs any sum or sums of money whatever as the Plaintiffs have alledged against him & of this he puts himself upon the country by

C Stevens his Aty—

And the Plantiff likewis

And as to the fifth breach of the condition of said writing obligatory assigned by the Plantiffs this Defendant says, that after the making of said writing obligatory while he continued in the service and employment of the Plaintiffs aforesaid, he did ever lay before the Directors of said Bank, from time to time, whenever he was thereto requested} true and correct abstracts of the funds of the Company, ascertaining the amount of the Debts and credits, the money on hand, whether specie or notes, and the amount of notes in circulation, and on the contrary did never lay before them abstracts thereof, which were false and incorrect as the Plaintiff in his replication hath alledged and of this he puts himself upon the Country for trial

By C. Stevens his Aty—

And the Plaintiffs by

Agreeably to the Statute in such cases made and provided and by leave of the Court first had and obtained

Further, the said James McCloskey, as to the several assignments of breaches of the Condition of said writing obligatory by the Plaintiffs made in the said first, second & third replications to this Defendants plea saith, that the said Plaintiffs by reason of any thing by them in their sd replications alledged, ought not to have or maintain their aforesaid action thereof against him because he says, that after the making the said writing obligatory while this Defendant was in the service and employ of the President Directors and Company aforesaid and before he was discharged from the duties of Cashier as aforesaid, to wit on the first day of January eighteen hundred & twenty, and on divers other days betwen that time and the sixteenth of May eighteen hundred and twenty five, this Defendant was absent from the Territory of Michigan by special order and direction of the President & Directors of the said Bank, on the special business of the said Bank, in the state of New York and other Places and being so absent by order & direction as aford, citizens and strangers were placed in the said Bank by the President & Directors thereof, and on the day & year last aforesaid, before the time last set forth in the Plantiffs first replication to Defts’ plea, at the Bank aforesaid, the Keys of said Bank were arrested by the President of said Bank, by force and arms from this Defendant, and this Defendant was by force turned out of said Bank and so kept out of said Bank & removed therefrom untill discharged and Citizens and strangers by order of the Pres1 and Directors of said Bank, were permitted to enter the same and have free access to the Books, papers, specie, notes, deposits & other property of said Bank belonging to the Plaintiffs and others, wherefore and by which means this Defendant was by order of said President deprived of the power of doing all the duties of said office as Cashier as aford according to the intent and meaning of said Condition to said writing obligatory as set forth in the Plaintiffs assignments of breaches in the said several replications of the Plaintiffs in their first second & third assignment aforesaid— And this the said James McCloskey is ready to verify wherefore he prays Judgment if the said Plaintiffs ought to have and maintain his aford action thereof against him—

By Cyprian Stevens his Aty.  