
    
      O'BRIEN vs. LOUISIANA STATE BANK.
    
    Appeal from the court of the first district.
    The teller of the bank, who has overpaid a check, is a good witness without a release.
   Martin, J.

delivered the opinion of the court. The plaintiff and appellant complains that, having deposited in the defendant’s banking house a sum of $1400, and procured from their teller a corresponding entry in his bank books, they now refuse to restore it, and their officer fraudulently struck out the entry and substituted one for a very trifling sum, viz: $55.

Eastern Dis'ct

January 1827

They pleaded the general issue, and averred the plaintiff had deposited the latter sum only, and the first entry was made through error and was afterwards corrected. They had a verdict and judgment, and the plaintiff appealed.

There is a bill of exceptions to the opinion of the inferior judge, admitting the testimony of the teller. It is urged that the release the defendants gave him was not under the seal of the bank, and that they released him from the consequences of his error, but not of his fraud.

We are of opinion no relief was necessary. This point was inquired into and disposed of in this court last year, in Jordan vs. White, vol. 4, 340. And we held that “agents and servants may be received as witnesses, for their principals and masters without a release of responsibility for apparent misconduct and negligence, and where the affairs conducted by them have been in the ordinary course of business. Starkie, in his admirable treatise on the law of evidence, has collected all the English authorities on this head, and in Metcalf’s edition of that work, the American have been added. 2 Starkie on evidence, 753.

Hoffman for the plaintiffs, Grymes for the defendants.

The testimony fully establishes the averred mistake, and that another customer having at the same time deposited the large sum, the smaller was entered in his book, and the larger in the plaintiff’s.

It is therefore ordered, adjudged and decreed, that the judgment of the district court be affirmed, with costs.  