
    
      The Union Bank v. Henry Sollee.
    
    The Cashier elect of the Union Bank gave his receipt for so much money i&c^ to the Committee of Directors appointed to count and transfer to hint the funds of tire Bank. The count was made in the presence ot the representative of his deceased predecessor. Each sealed package was counted as so much money, according to the mark on the envelope; some eight years after, upon the opening of the packages, and the actual counting of tire money, a considerable loss was discovered. An action was then brought upon the official bond of the Cashier, and a verdict rendered for the defendant. On appeal, the Court held that the receipt was examinable, and that the jury had found their verdict upon sufficient testimony. ,
    Receipts are to be regarded as admissions, and admissions which have been acted upon by others are conclusive against the party making them, in all cases, between him and the person whose conduct he has thus influenced. Greenleaf Ev 240.
    Mistake of a fact of the case, by the Circuit Judge, in his chargeto the jury, is not a sufficient ground for a new trial.
    In an action of debt on the official bond'of the Cashier of a Bank, for overdrafts made by him as a private depositor, the Court held that the Bank was entitled to interest only from the time he went out of office, or from a demand, if one had been made earlier, and not from the date of each overdraft.
    
      Before Mr. Justice O’Neall, at Charleston, May Term, 1847.
    REPORT OF THE CIRCUIT JUDGE.
    This was an action of debt, on the official bond of the defendant, as Cashier of the Union Bank. Under it, two demands were presented, 1st, for a deficit in the money of $20,400; 2d, for a balance of overdrafts. The bond is dated 26th September, 1837. Wilkie, who preceded the defendant as Cashier, left the bank 2d August, 1837, and never returned to it any more.
    After the defendant’s election, in a few days perhaps, a Committee of the Bank counted (as they termed it,) the specie and Union bills. But instead of actually counting the bills, they counted the packages sealed up, and took the quantity from that indorsed on the envelope. Pursuing that course, they found and reported the funds of the Bank to be $60,084, 3-100, in specie, $211,000 in Union bills ; total, $271,084, 3-000. For this sum thus ascertained, the defendant gave his receipt.
    In 1845, Mr. Godard, the President., died. Mr. Tobias, one of the Directors, was appointed President ad interim. At his suggestion, the money was counted on the 21st of July, ’45. On going, into the money vault, they (that is, he, Brown, Ottolengui, Mowry, aud Hedly,) found the money chest open, and the money bundles rather confusedly lying in it. The chest being open was not remarkable, as it was in business hours. The situation of the money led them to scrutinize more closely than they otherwise would have done. Five packages were more clumsily put up than the rest, though their seals were entire; these were selected to be counted: out of them two were fraudulent; one marked 19th July, 1837, $10,000, had $6,000 in bills, the balance white paper ; this package was countersigned by Wilkie and Godard : the next was marked 29th April, 1835, $10,000, countersigned C. Bu'rckmyer, Joseph Leland, R. Godard, William Wilkie ; it had no money, it was entirely white paper. The other three packages were found to be right. This deficiency led to counting all the money; another package marked 3d May, 1837, $10,000. was found to be fraudulent. This, it seems, was what, was called Teller’s money, and was counted by Mowry and Burckmyer, was countersigned by them, and also Wilkie ; it had $5,600, the balance $4,400, was in brown paper. The defendant had notice of the proposed count from the 16th to 21st ; he exhibited no confusion or alarm. After the deficit was discovered, he appeared much distressed. Conferring with 
      Mr. Tobias, he asked him what he should do: he advised him to see his surety and kinsman, Mr. Carson ; he said he could not mention it to him. Mr, Tobias then advised him to see the Attorney General, Mr. Bailey. In that conversation he offered $5,000 to compromise ; asked the President if the Bank would not give him time to realize property ; he was told they would. After seeing Bailey, he withdrew the proposition to compromise, averring his innocence and challenging investigation. April, 1843, as Mr. Winthrop proved, he was one of a committee on the vault. When about counting, by opening the packages; Mr. Godard, the President, said it was of no use, there were his signature and seal, and accordingly there was no actual count. When there was one, did not appear ; the probability is, each package as counted and sealed up, was ever after annually counted as so much money, according to the mark on the envelope. In ’42, August 9th, the circulation was reduced to $2,796 67. From ’37, indeed, the circulation was very small, until Mr. Godard’s death in’45, As an experiment, a package of bills was marked by the President, and sent to Augusta; in less than two weeks they were all returned, and redeemed at the counter. Mr Smith; the present Cashier, and Teller through the whole term of Mr. Sollee, proved that the Bank had not to this day been •called on to redeem more than the amount of bills, which they knew they had rightfully in circulation. He said this deficit must have occurred before ’42. In 30 years, h'e said; it was possible that $30,000 of the bills would be lost. — 1 The characters of both Wilkie and defendant were proved to be above suspicion. Wilkie was one, however, who indulged in eating and drinking to excess. He was in had health beioro he died; he-kept his accounts well: he was poor and necessitous up to the period of his death, and there appeared to be no ground to believe he had ever possessed himself of such a sum as $20,400. The defendant was shown to be a prudent and economical man, of good and steady habits. He purchased a wharf on’ 3d July; 1838, for $119,000, to be paid in six annual instalments; with interest from 1st January, 1839. He purchased in ’36 or ’37 a residence at $8,000 ; two of the bonds, $3800, remain still unpaid. The defendant exhibited a full account of the profits and expenses of the wharf; he proved that he borrowed of his mother and sister something like $32,' 800, which, with the profits of the wharf, covered all the payments he made. After carefully analizing the testimony, I thought it was the clearest and most satisfactory account of the defendant’s money transactions, from ’37 to ’45, I had ever witnessed. If he purloined the money, it was clear he had made no use of it, so far as we are able to discover from an examination of his affairs. The wharf was finally sold for 100,000, and after paying claims against it, and applying the balance to the balance of the purchase money,' $92,127, there was a balance left of $18,017 51, which was paid by Mr. Carson, the security of the defendant.
    One or more of the packages had the appeanance of be-being re-sealed. One of the packages, that having the private seal of Mr. Godard, had an appearance of being tampered with ; so said Mr. Headley, one of the witnesses. ' One of the packages, he said, appeared to have fallen when sealed; sand adhered to the seal. The Cashier and Tellers have different vaults, each have a key, but the outer door leading to them all is in the possession of the Cashier. The fact of an overdraft on the private account of the Cashier was established ; a small balance was due.
    The jury were told, that it was true, as argued by the plaintiff, that if the defendant had done an act, such as giving a receipt, which discharged a previous liability, that then he would be fixed by it, whether he received the sum or not. But here, I did not regard that as the case, for the count by the Directors, and finding the sum right, was-what discharged Mr. Wilkie. The receipt of the defendant was really to be regarded as his admission to them of so much received from the-Bank. In this point of view, like every other receipt, it was examinable, and if founded in mistake would be corrected.
    The jury were told that the defendant must account for $20,400, with interest from 2lst July, 1845, unless he had satisfied them that the money never came to his hands, or if it came to his hands, that he lost it without negligence.
    Under these heads the testimony was carefully arrayed and examined. In commenting upon the testimony audit) considering that part of Aaron C. Smith’s testimony, in which he said the Bank had never been called on to redeem more of their bills than they knew were rightfully in circulation, although in ’42 the circulation was reduced to $2796, I said to the jury, it seemed to me to be clear, that if $20,400 had been purloined between ’37 and ’42, they had not been called on to pay adollar of it.
    I said to the jury, that the defendant’s general good character was a strong circumstance in his behalf; it would go far, in a case of doubt, to negative a presumption of fraud.
    The jury were further instructed to charge interest on the overdrafts, from the time the defendant went out of office, or from a demand made, if that was earlier. This instruction was given on the ground that this suit was on the official bond; there was no official default until he went out of office, and then failed to deliver the funds in his hands ; or on failing to do the same on demand.
    The jury found for the plaintiff the balance of the overdrafts, computing interest, as I had directed.
    The plaintiff appealed, on the annexed grounds:
    1st. Because the defendant, by countersigning the Report of the Committee of Directors, admitting that the former cashier had delivered over, and that he, the present Cashier, had received the amount of money therein stated, and thereby inducing an acquiescence on the part of the Bank, for so long a time as to prevent the recovery of the money lost, was estopped from now enquiring into the truth of the admission upon which the Bank had thus acted ; and the presiding Judge erred in not charging the jury accordingly.
    2d. Because an admission, by the Cashier, is not the less an admission on his part, on account of previous or cotem-poraneous action of a Committee of the Directors on the same subject.
    3d. Because no carelessness or breach of duty, on the part of the Committee of Directors, could relieve the Cashier from legal responsibility for carelessness or breach ot duty on his part, within the legitimate sphere of his own official acts.
    4th. Because the acceptance of the funds of the Bank, by Sollee, the new Cashier, at the count of the old Cashier, and the consequent discharge by the Bank of the old Cashier and his sureties, was conclusive upon the new Cashier ; and his honor the Presiding Judge, erred in not charging the jury accordingly.
    5th. Because the Committee of the Board of Directors, who attended at the settlement, had no authority over the funds in the hands of .the Cashier, and were merely present to witness the transfer, and that they neither did nor could saction the abandonment of the legal rights of the corporation, or authorize the discharge of one Cashier, without securing the liability of his successor.
    6th. Because his Honor the Presiding Judge erred in. charging the jury that the Committee of the Board of Directors was an intermediate agent, who received the money from the one Cashier, and then transferred it to the other; and that the settlement was not direct between the two Cashiers.
    7th. Because his Honor the Presiding Judge erred in charging the jury that the Bank was not entitled to interest on the overdrafts of the Cashier, except from the time he went out of office, or demand made on him to repay the •same.
    8th. Because the receipt of Sollee having charged him with the legal liability, it became incumbent on him, in order to excuse himself, to prove that the money was not there at the date of his receipt, and there was no evidence in the case to warrant the finding of the jury to that effect.
    9th. Because his Honor the Presiding Judge mistook the testimony, when he charged the jury that “it was clear that the Bank had never been called on for one dollar that was lost,” and the jury were thereby, misled.
    10th. Because his honor the Presiding Judge erred in charging the jury “ that defendant’s good character was sufficient, to negative the idea of his taking the money intentionally.”
    11th. Because the verdict was otherwise contrary to the law and the evidence.
    HayNe, for the motion,
    said this was not a criminal prosecution, in which the defendant should have been allowed the 'benefit of doubts. The jury should have weighed the evidence, and as the scales inclined, the more to the plaintiffs or defendant, so should they have found their verdict.
    The Bank had lost $20,000 through the carelessness or fraud of some of its agents. Was this defendant responsible? He was the Cashier, and receipted for the amount; had acknowledged it weekly for more than seven years, and the deficiency was detected during his term of office, while the treasure was still in his custody. If this did not charge him with the loss, official responsibility is nothing — not worth the paper on which it is written. With such administration of the law, there is no need of legislation to get rid of Banks and all other corporations.
    What then was the most favorable view which can be taken for the defendant? That this state of facts fixed his responsibility, unless the evidence had established either that the money was lost before he took the cash in charge, or that if afterwards, it was lost without default or carelessness on .his part. These circumstances of excuse must be affirmatively proved. Where is the testimony that the money was not there at the time the defendant gave the receipt ? Is the law and justice and evidence of the whole case to be can-celled by the prima facie showing of good character in the party ? There is nothing to show that the cash was taken 'from the packages between the time of their being sealed up and their delivery to the defendant. It was proved to have been there at the time of their first being sealed: what then is there to disprove his' receipt of the money? He is affirmatively to show that he did not take it. Prima facie, all is against him.
    It may be readily inferred, that whoever took from one package, took from all three. No person, out of the Bank 
      «could, from the situation of the vaults, the keeping of the keys, <fcc., have abstracted the money; for the same reason's, no bank officer but a cashier could have taken it. Besides, no thief would have taken a part only of a package. It would have been as easy to have taken all. Whoever took this money, meant, at the time he- took it, to return it again. None but the keeper of the money was interested in keeping up appearances, and certainly none but the keeper would have taken out money with the view of returning it again.
    It must have been taken by a cashier, and, as the packages were only in the custody of Wilkie and the defendant, however painful the conclusion, we are forced upon it, that one of these two must, in the nature of things, have tampered with the packages.
    Could it have been Wilkie? He was proved to have been a high-toned, honorable man, of unimpeached integrity, exact in business — as cashier, uniformly correct, and not extravagant in his expenditure. He was proved to have lived up to-his income, and to have died .poor. Two of the deficient packages he had in custody only from the 19th of July to the 1st of August, a period of 13 days, during which he was feeble, nervous, sick, expecting to die, and he did die very soon afterwards.
    Sollee had the money in custody upwards of seven years. He was shown to be a man much in debt, and bent upon the accumulation of a fortune; excessively economical, and very diligent; borrowing money from all who would lend, and for a course of two years and a half, while cashier, overdrawing his private bank account. To this there was no set-off but that which, in every case involving embezzlement, was, from-the nature of the case, supposed to exist — the previous good ■character of the defendant.
    If Wilkie took the money, how could he have hoped to replace it? We see clearly how Sollee might have hoped to do so.
    With longer opportunity, stronger motive, greater means of' concealment, why pass over the officer in whose keeping the money was when the loss was discovered, to suggest suspicion against the dead, towards whom no single circumstance pointed ?
    Allowing then the receipt given by the defendant to the bank committee to be examinable, we find that, on examination, there was not sufficient evidence to vitiate it. But the receipt was not examinable. The action of the defendant,, in giving his acknowledgment of the amount of the money received, and in his other subsequent conduct: the Bank, depending on his returns, and acting on them) does not allow him now to set up in defence that he did not receive the amount. Nor does the acquiescence of the Bank discharge him. Admissions, acted on by others, are: conclusive against the party making them, in favor of all third persons acting under them. No matter whether true or false, if acted on, they are binding; but not otherwise.' — 1 Greenleaf on Ev. 240, 243 and 246; 1 Camp. R. 532; 3 East, 147 (23 E. C. L. Rep. 81, note). The person induced by a receipt to alter his condition, has rights to recover against the person giving it, pro tanto. The fact of the committee acting in concert, does not make them the Bank, and in any manner discharge Sollee. They were merely agents of the Bank. Both Sollee and the committee were agents of the Bank. The directors and cashier are all only agents of the Bank, for certain purposes. — Angelí & Ames on Cor. 212,213,224, 226, &c. Neither are able to bind the Bank but in the legitimate scope of their authority. The safe keeping of the cash was peculiarly the duty of the cashier. He gave bond for that purpose, and the carelessness of the directors is no excuse for him. — Minor et al. v. the Mechanics Bank of Alexandria, 1 Peters, 46 and 69. The directors do not give bond.
    The signing of the receipt by the defendant was, at least, carelessness for which he should be responsible, and after sanctioning for eight years his own receipt, he must now be bound by it. You cannot now inquire into it. After'so long a time, the Bank has lost the means of recovering its money in any other way. In this view of the case, the moral character of the defendant is not involved. It is purely a question of legal responsibility.
    As to the overdraft, it was clearly a breach of official duty. (Angel! and Ames, 265, 258, 244, and 1 Mill’s Con. Rep. 404.) Having been continued for two years and eight months, the defendant must have been aware of it. The amounts over-' drawn were too large to admit of the idea that they were accidental. If he, the defendant, knew of the overdraft, then, in every weekly account during these two years and a half, he represented falsely the condition of the Bank, by just so much as he had overdrawn.
    Mr. Hayne said the overdraft was now reduced to a small amount, and that this branch of the case was important only from its bearing on other matters.
    Bailet, contra,
    said: This is a case for the jury entirely, and should remain as decided by them. The first six grounds of appeal involve the question of the receipt. The general rule certainly is, that receipts are examinable. The proof of mistake will let in evidence to correct it.- — 1 Johns. 145; 5 Johns. 68; 2 McCord, 320, and 2 Brev. 222. The cases referred to in Greenleaf also admit the general rule. The defendant and the Bank committee are in pari delicto. It was a mutual mistake. — -Angelí & Ames, 9th chap. 210 and 250. A corporation is bound by its agents as much as any person can be. The Bank surely is bound by this committee. They were the only agents of the Bank in the matter, and the defendant was the antagonist party. They were counting the money against him. The funds were counted before they were turned over to him. If the Bank can show any thing to exempt them, why did they not do so? The defendant relied upon the correctness of the Bank’s actings: how, then, can he be made liable for the Bank’s mistakes? As to the 8th ground of appeal, the jury have found, after the case was fairly opened to their consideration, and their verdict is conclusive. As to the 7th ground, Sollee is not liable officially on his bond for money drawn by himself on his private account. The deficiency in his account cannot be recovered in this -action at all. It was not in his hands officially, and had nothing to do with this case. (Mr. B. said: We object to the charge of the Circuit Judge on this ground ourselves.) If the plaintiffs, then, are not entitled to the principal, how can they be entitled to the interest ? The case cited from Peters shows the Cashier’s conduct to have been official, and does not apply here. If this money was in the defendant’s hands as Cashier, he is not bound for interest; if not, in this action, he is not bound for the principal. There should have been a special count in the declaration also for interest, but there was not one in this case. Mr. B. said the charge of the Judge, referred to in the 9th ground of appeal, had no bearing on the verdict, nor did that referred to in the 10th ground.
    Petighu, with Bailey, said: Because Sollee was Cashier, that did not make his overdraft, in a private capacity, a breach of the bond, which so elaborately enumerates all his official liabilities. Assumpsit was the action against him as a private individual. The charge against him was one of embezzlement, a criminal charge, and the proof against him should have been, that he had the money — and this fact must forever remain uncertain. — 1 Hawk. P. C. 136 and 139. (The packages were never opened when they were delivered to Sollee.) Mr. P. asked, who would attempt to establish a philosophical fact, without first establishing the basis upon which such a state must exist, be based? He said there was nothing in the case cited from Peters applicable here. The packages were taken as money, and they were returned as such. — 1 Johns. 145, and 5 Johns. 68. The receipt surely is-explainable. The case of Laval v. Cromwell, 2 Treadway,. 593, was a more glaring case against the defendant than this, and the Court refused to set aside the verdict.
    Is Sollee to suffer only because he had an opportunity? Where, then, is the boasted security of the law ? The only difference between theft and embezzlement is, that in .the latter case the goods were placed in charge of the defendant. 'That the money did come into Sollee’s possession then, must ■first be proved. — See Hawkins, «fee. as above. Sollee has a right to his character; and rights are not to be conjured up by conjecture, nor spirited away by supposition.
    Memmingeb., for the motion, in
    reply, said, this case rests on the force of presumptive evidence. The receipt, and the returns for eight years, make a conclusive presumption, and proof to the contrary is not admissible. — 1 Green leaf Ev. 33. The general rule is -with us. They seek to explain the written instrument by parol, which makes the exception. It is too late to do so after the receipt has been acted upon.
    The money was counted to Sollee after he was elected, and had given his bond. Would the board have accepted the report of the committee, unless signed by him 7 Until accepted by the board, it was a blank. Their acceptance discharged Wilkie. If the committee were in fault, it did not excuse Sollee. AH'the officers of the Bank are but agents of the corporation — both he and the committee were agents. Minor’s case, from Peters, is this case. The committee had no right to discharge Wilkie. Every week the Cashier makes to the board a statement in writing of the money in the Bank, each amounting to a receipt — should he not then be precluded from going beyond this, after others have been acting on his receipt, statements, <fcc. 7 The committee were only present to see the delivery of the money from one Cashier to-another — his bond covered it; it could not have been delivered to the committee. He had aright to count or not count it, as he pleased, and he chose to take it under the seals.— The committee had no authority to take or receive the money; it never was, for a moment, from under the Cashier’s bond.
    If this is a presumption disputable, we say there was not evidence enough to upset it. A presumption reflects back, and proves the ground — the premises, and you must rebut it with evidence. (We had not to fix the fact.) Now what was the evidence 7 The previous good character of the defendant. Trusts are only imposed on persons of good character.
    
      Mr. M. said, every branch of commercial law refers back to the principle of irrebutable presumptions. As where there is a negotiable instrument, it is not to be questioned only because it is in writing; but also because the rights of third persons have intervened, and the drawer is' estopped from opening the transaction. In Coxe v. Masterton, 17.E. C. L. Rep. 517, where one pays a note, indorsed with a forged acceptance, he cannot recover against the person to whom the cash was paid — his right had intervened, and they should have been more vigilant, and not have allowed the first day to elapse. It is the law, in its majesty, which comes in and raises a conclusive presumption against you. In the Bank v. Hull, Dudley’s L. Rep. 259 and 261, the Bank could not enter into evidence of their mistake in paying the check.— By accepting even a forged bill, you give your name to be acted on by another, and shall be bound thereby. 1 Campb. Rep. 532. This principle is not applicable alone to negotiable instruments. It is a great principle of the law, running through all the transactions between man and man in their usual intercourse. Wyatt v. The Marquis of Hertford, 3 East, 147. Even where the receipt does not come under the above head, the Court of Appeals will examine the evidence to see if it amounts to a rebutter of the presumption. M’Dowel Black v. Lamater, 2 McC. 320. In Benjamin v. Sinclair, 1 Bail. 174, a receipt is not examinable unless it is only for the payment of money. In our case here, the receipt is not only for the payment of the money, but also for its safe keeping, &c.
    The receipt was not for so many packages, but for so much money, and the Union Bank has acted on the faith of it. It has rendered no demand against the administrator of Wilkie. The year and day, since his death, have elapsed. It is by this very receipt that they have been misled, and have acquiesced in the discharge of Wilkie’s sureties, and lost their remedy against them.
    If the committee did receive the money, (which we admit for the argument,) it did not excuse the Cashier. This is not a question between the Bank and third persons, where the whole Bank may be bound, but a question between the Bank and'its servants; each one of which is responsible under his bond. The only action which binds the Bank, is the action of the board.
    If this is a case open for evidence, the Court ought to send it back for a new trial. See M’Dowel Sf Black v. Lamater. The evidence has not gone to adduce some collateral matter —collateral with the receipt, but to dispute the very fact es~ tablished; and which can be established by the receipt. — ' Cozens v. Pooser, 1 Spears, 328. The evidence of mistake; should be very clear. It is very difficult, in a case like thisr to get a verdict from a jury, and it is one in which the Court should aid to further impartial justice, and to establish it under the law.
    So far from its being clear that Sollee did not take the; money, all the presumptions are in favor of his having done: so. (Here Mr. M. drew a parallel between the character and habits of Wilkie and Sollee, similar to that drawn by his-colleague in this case, Mr. H.) Mr. M. said that the continual over-drafts, made by Sollee, indicated defective moral character — that it was parallel to the drawing from the vaults. 'The Cashier was bound to guard against over-drafts by ethers, and, as a private person, he came within that category himself, and should have guarded against himself. It has not been shown that Wilkie took the money, and all the probabilities are against his having done so.
    Mr. M. said, we object to the Judge’s charge, as to the Bank not having lost the money. The fact of there having been on the books only $2700 out, shows rather that they must have had out money not on the books, and the amount taken in, with that on the books, makes about the amount lost. $30,000 would have been shown to have been out (to-correspond with the loss of bills in ordinary cases,) instead of $2700, if this amount had not been surreptitiously put out. Could the Bank have gone on with a circulation of only $2700? No, the $20,000 went out, and the $2700 did come in. If $70,000 were out, and $30,000 lost, how could all the 70,000 return to the Bank (all except 2700) if money had not been put out, and not entered on the books ? The loss is to be based upon the issue during Sollee’s whole term .of office, and not on the $70,000 merely.
    There is no difference between the defendant as Cashier, and as a private person, as to the over-drafts. Did not the money come to his hands ? Did he not have to return a report of all the money in Bank weekly ? Must he not have made false returns ? The money was in his hands, in either capacity. If the Bank had been put in bankruptcy at the hour he drew it, who would have lost ? He had no money there of his own. If he then did overdraw, from what time is he bound to pay interest? Surely from the time he did overdraw, and not from the time he was discovered.
   'O’Neall, J.

delivered the opinion of the Court.

In this case, I don’t propose to pass over the grounds in; the order set down in the notice of appeal. The objections are of law and fact. I will first dispose of the facts,, and then take up the legal objections, disposing first of the 7th ground, and then of the legal question covered by the-first six grounds.

Before I proceed to the task before me, 1 trust I may be-allowed to say, 'that in this case,, from the beginning, 1 have brought to it all the powers which I possess — so that justice, impartial, even handed justice, should be done between a corporation and a citizen. If in any matter I am or have been in error, I confess, after all the argument and examination, I am unable to perceive it. 1st. It is enough, as to the facts, to say, that they went to the jury under the rule of law contended for by the plaintiff; that the burden of proof, to exempt himself from the liability cast upon him by his receipt, was on the defendant. The jury have said, we are satisfied the defendant never received the money, and in that conclusion I fully concur. It is impossible to put upon paper the many little matters which lead to that opinion. The principal facts are, that the defendant received the packages without counting ; that they were all sealed up; one of them was under the seal of the late venerable and excellent President of the Bank.. Some of those packages appeared to be bunglingly put up, and some of them looked like they had been re-sealed, yet some ot these were found to be right; they were annually counted as so much money. On one occasion, the President pointed out his seal as a reason why there was no necessity to count. The defendant’s character was not only good, but above suspicion; he showed how he acquired the largo sums of money which he paid away, and indeed, accounted for his monetary affairs in a way which few men could do. The circulation of the Bank was a very limited one, during his term as Cashier, never reaching $100,000; the bills embezzled or stolen, in whole or in part, were old bills which were never intended to bo again put in circulation ; if they were put in circulation, it is difficult to conceive that they could not have been discovered and the fraud or larceny early detected ; so too, the circulation of the Bank was not only limited in amount but also in time. A package of bills, $10,000 loaned and marked by the President, were all redeemed at the counter in less than two weeks. These facts thus thrown together, make out enough to satisfy most minds, that the defendant never had the money ; and here it may be remarked, that it is not necessary in this Court to demonstrate that the jury have decided the facts right, it is enough if it be not shown that they are palpably wrong. The only suspicious circumstance, is that the defendant, as a private dealer with the Bank, over-drew his deposits from January, 1843, to August, 1845. This, although the result of great, carelessness, was not the result of design, as the jury have found, and as I believe. For this matter, as.one of the evidences of the defendant’s guilt, was pressed upon the jury ; notwithstanding it, they have found for him, and hence the conclusion that they did not think it intentional. For if they had found it to be intentional, it would have shown him to befalsus in uno, and thence falsus in omnibus. This would have been a very ‘pertinent conclusion. Bat I have indorsed the conclusion of the jury, and said, that I also do not believe there was any intentional over-draft.— The books of the Bank were badly kept. The book-keeper from ’39 to ’45, Mr. Alexander, said, that previous to ’39, the books had never been balanced. He attempted it, but in his books there were such errors of addition and subtraction, that nothing certain could be obtained. From his books, when Sollee went out of office, there appeared no over-draft. Another person was employed to go over his books, and then to his astonishment, and that oí Sollee, it was found he had over-drawn. It is very true, the defendant ought to have kept his own Bank book. He was a very large depositor ; for his own security, he ought to have kept the account. But he might have thought it was wholly unnecessary; the Bank books could be referred'to daily, and the situation of his account ascertained. Finding the error leading to the over-drafts in the Bank itself, it negatives the fraudulent intention on the part of the defendant. But it is said, the Judge misled the jury in saying to them, that it seemed to him to be clear, that if $20,-400 had been purloined between ’37 and ’42, they (the Bank) had not been called on to pay a dollar of it. It' is enough, and it is all I intend to say for the Court, that if there be error here, it was merely on a fact about which the jury, and not this Court, were to judge. Such an error has never been held to be a ground for new trial. But for myself, I may be allowed to vindicate the instruction, and show, even against the admission of one of the defendant’s learned counsel, that there was even here no error. It has been assumed, that of the bills issued by the Bank, there must have been at least $20,000 lost by wear and tear and accidents, in 35 years. That I deny. In 20 years, Mr. Ravenel, the intelligent President of theFlanters’ and Mechanic’s Bank, stated the largest loss to be on the $5 bills, as we would naturally expect from .their greater circulation. It was, he said, $1 40-100 in the hundred. The loss on $20 bills was, he said, 32-100 in the hundred, in the same time.

The circulation of the Union Bank, from its commencement in 1810, to 1820, only at three times exceeded $600,-000, it never reached $700,000. It began at $615,000, and was oftener below than above $500,000. For the ten years, I assume that sum as the average circulation — it is greatly above the truth. If every bill issued by the Union Bank had been of $5, and its circulation as extensive as that of the Planters’ and Mechanics’ Bank, the loss in ten years would have been $3,750; but its circulation could not have been more than one-fourth of the whole in $5 bills, the rest was in $10-20-50 — 100. The result would be, I have no doubt, nigher the truth, to put down the loss from the largest portion of the circulation, being in larger bills, at about one-half of what it would have been if 5s had been the whole circulation, say 1,875. From ’20 to ’37 — 17 years — the circulation never much exceeded 200,000, and when it did, only for a very short time. It was often below it, and very much below it. Taking that as the average circulation, and ascertaining the loss .in the same manner in which it was done for the first ten years, and it amounts to 1,500. From ’37 to ’45/ the circulation never exceeded 100,000; it often was much below it. The loss in that time, could not exceed 750; add the losses for the three periods, it makes the aggregate 4,125. Strike off from this, one-third for over-estimates of circulation, and the narrower sphere in which the Union Bank bills circulated, and it will bring down the loss lo 2,740; within less than 200 of the sum to which Mr. Godard reduced the circulation in 1842. . Now, unless there be something strangely mysterious in Banking, or some error in the data on which I have, based my calculation, it is plain, that if the money was stolen, the thief still has it locked up. For, as Aaron C. Smith said, the Bank has never been called on to pay more bills than she knew she had in circulation. Now, if ■we could believe, that from the beginning these packages were fraudulent, the whole mystery would be removed, by showing, as the calculation would do, that in fact, they never had the sum, now alleged to be stolen, in circulation. But the defendant is only responsible for the period from. ’37 to ’45. In that time, the circulation never exceeded 100,000, and indeed its average would not be 50,000.— Throw out 20,000 additional and surruptitiously — would not the Bank have soon found that she had out more money than she knew? So much for this part of the case’, it maybe that, like me, the jury thought this was the true view, and if they did, how can this Court say, they or I were or was in error.

2d. The 7th ground insists, that the plaintiff should have-had a verdict on the over-drafts with interest from the time they respectively occurred, and not, as I ruled, from the time he went out of office, or from a demand, if one had been made, earlier. There is no doubt,.if the action was for money had and received against Mr. Sollee, as an individual, and not as Cashier, that then the Bank would be-right in their demand, and that he must allow interest from, the day of each over-draft. But the action is for an official default. Most of my brethren, think, if I erred, that; the error was in allowing the Bank to recover at all for the over-drafts on the official bond. They think that his official duty terminated when he handed the money to the Teller, and that the Teller is answerable officially for the over-drafts. Be this, however, as it may, it is perfectly clear, that the only official default chargeable to the defendant in reference to the over-drafts, is, that he did not turn over that much money which might then be regarded as in his hands. As Cashier, he is not liable to interest; his duty is to keep the money. When he went out and failed to pay, then, and not before, (as there was no previous demand,) the right to interest accrued.

3d. The six first grounds maintain, that the- defendant,, by his receipt of the 27th September, 1837, discharged his predecessor, Wilkie, from his liability to the Bank, and that therefore, and thereby, he was concluded from denying that he had then in his hands the 20,400, found to be wanting on the count 21st July, 1845.

I have no doubt about the rule stated by Prof. Green-leaf, in his vol. on Evidence, page 240, s. 207. “Admissions which have been acted upon by others are conclusive,, against the party making them, in' all cases between- him- and the person whose conduct he has thus influenced.”" Receipts are to be considered as admissions! The case of Wyatt v. The Marquis of Hertford, 3rd East, 147, is a¿ very perfect illustration of the rule. The plaintiff had done work for the defendant; his account was presented to the defendant’s Steward, who gave him his own draft on a banker; the plaintiff gave him a receipt for so much money, on the account of the defendant. The banker refused to pay the draft; the plaintiff returned it to the Steward, who gave him another payable twenty days after. No information about these occurrences were given to the defendant. The second draft was not paid, and the Steward being insolvent, the plaintiff sued the defendant, who relied on the plaintiff’s receipt as his discharge, inasmuch as his Steward had sufficient funds of the defendant’s to have paid the plaintiff, and had gone away much in arrear to him. It did not appear that the defendant had settled with his Steward and passed this receipt to his credit. Lord EUenborough, on the circuit, thought the defendant was discharged, and a verdict was found accordingly. But on the motion for a new trial, he placed the case on the proper ground. ' He said “ there must be a new trial; for on revising his note of the evidence, it did not appear that the defendant was in any way prejudiced, by his Steward having given his own security and taken the latter’s receipt. That if it appeared, that the defendant had in the interval inspected the Steward's accounts, and had in any manner dealt toith him differently on the supposition that this demand had been, satisfied, as the receipt imported, no doubt the defendant would have been discharged, for it was clear, that Hunt had sufficient money of the defendant's in his hands to answer the demand." The rule, as. stated by Greenleaf and illustrated by this case is good-law ; under it, let it be assumed, that the defendant gave his receipt to Wilkie, (which however, is not the true view, as will be hereafter shown,) and then the question will be, has the Bank acted on it, and discharged Wilkie? It is-clear they have not, for when the turning over of the assets of the Bank to the defendant, and the fact that he had given a receipt for them, was reported to the Bank, it was received as information merely: no order accepting and confirming the report, or to discharge Wilkie, was then, or afterwards, made. Even his bond, from any thing which appears, may now be in the possession of the Bank. There is nothing therefore done by the Bank, in consequence of Sollee’s receipt, which if it had not been given, they would not have done. But it is useless tO' pursue a supposed case, and leave that which is before us. Sollee, as Cashier, did not receive the money and other assets of the Bank from Wilkie’s representative.— The Committee of the Bank tell us, what was done in the document before us. They say that “they proceeded toan examination of the vault in the presence of Mr. C. J. Steed-man, a friend of the late Cashier; examined and counted the specie, bills and notes, certificates of stock and ¡bonds, in the possession of the deceased, and found the whole as follows This shows, that, they made the count: it was that which discharged Wilkie,: if any thing did, the funds being found right. They were in the Bank’s own vault, and the 'Committee, not Mr. Wilkie’s representative, turned them over to the defendant. They say further, in their report '“the whole was delivered over to Mr. Henry Sollee, who acknowledges the same.” This report was signed by the Committee, and also by the defendant. This was in fact and in law, an admission to the Bank; “I have to-day from your counting Committee, received the funds of the Bank, as appears by their statement.” Considered in that way, there is no doubt it is examinable, and if erroneous the defendant is not bound by it. It is true, however, in sue h an examination, the onus of showing the error is entirely on him ; if he fails to make it out satisfactorily to the court and jury, he must abide by his receipt and admission. So the'jury were charged, and it is now in vain to say they might have thought the plaintiff was bound to satisfy them, that the defendant had the money. No' such issue was submitted to the jury ! They felt the responsibility devolved upon them; they knew well that unless the facts satisfied them, that the defendant never had the money, they must charge him under the receipt with it. It is very true that the defendant made up weekly reports, of which this receipt was the predicate, but if it were wrong, they1 were also wrong. They, no more than their parent, led the Bank estray ; the error began with the Bank, and they had constantly the means of correcting it. They counted annually, yet they always counted by the package, and if they had gone on, in that way, to the end of time, the error never would have been detected.

But it is said, that neiLher the Directors nor the Committee are the Bank. This is true, but they, as well as the defendant, were agen Is of the Bank. They were the defendant’s superiors; they had the right to. direct-his conduct in every thing, not inconsistent with the by-laws, rules, and regulations of the Bank. If it had been peculiarly the defendant’s duty to settle with 'Wilkie, then indeed, perhaps, the act of the Committee would be his, and he would be obliged to answer for it, but I am not aware of any such duty. The Bank could, and did, by their Directors, send down a Committee to make the settlement. The defendant, in no view of this transaction, can be concluded from examining the correctness of the receipt.

The motion is dismissed.

Richardson, J. Evans, J. and Withers, J. concurred.

Wardlaw, J. and Frost, J. concurred in the law as stated, and in refusing a new trial upon a question of fact.  