Lewis v. President of Eastern Bank , 32 Me. 90 ( 1850 )

Wells, J.

The question presented in this case is, whether the cashier of a bank is a competent witness for the bank, to testify to a mistake made by him in entering a deposit in the plaintiff’s bank book for too large a sum.

It is agreed, that the witness before testifying, received a discharge, duly made under seal, granted him by a vote of the directors of the bank, without any thiug having been paid by him for it.

It is contended on the part of the plaintiff, that the directors have no power to authorize a release of the witness, without the consent of the stockholders.

The directors have the care of the financial affairs of the bank, within the scope of its charter and the provisions of the statute. They can direct the prosecution or defence of suits involving its interests. Having such power, they possess all that is incident to it, and can judge of the mode and manner of exercising it. It became their duty to determine as to the course most proper to be pursued, in relation to the interests of the bank, in defending this suit. They must either release the witness, with a reasonable expectation that his testimony would enable the bank to recover, or allow the case to take its ordinary course, and have the question of his admissibility settled by law, and if a decision should be adverse to the bank, then commence a suit against the witness, when they were also probably satisfied, that he had acted honestly, but had merely made a mistake. They did not give away the property of the bank, but elected what was best, in their judgment, to be done to protect it from loss. And in our opinion, they have not exceeded their power.

The entry in the bank book is ¡substantially a receipt, by which the bank acknowledges the reception of the money on deposit, through the agency of its cashier. It is now well settled, that receipts are open to explanation by parol evidence. This case falls within that principle, and the testimony is admissible for that purpose.

It does not become necessary to 'decide the question of the admissibility of the witness if no release had been given to him. Plaintiff nonsuit.