Collins v. Johnson

By the Court.

Benning, J.

delivering the opinion.

There are quite a number of questions in this case, but only two were decided. The decision of these two will, probably, put an end to the case, and the other, questions are of little general importance.

Of these two questions, the first is — was Mr. DeGraffenreid, the Attorney for Collins, a competent witness to prove the notice to Johnson, to “commence suit”.

The Act of 1850, “to regulate the testimony of Attorneys at Law,” declares — “that it shall not be lawful for any Attor'ney at Law or in Equity, in any case”, “to give testimony” “ of any matter or thing, either for or against his client, the knowledge of which he may have acquired from his client, or during the existence and by reason of the relationship of client' and; Attorney”. (Cobb’s Dig. 280.)

This Act, as far as it goes, puts Attorneys at Law below the' level of slaves, free- negroes and convicted felons, for these may testify among themselves. Rut an Attorney at Law is not allowed to testify at all, as to anything which comes to his knowledge,- as an Attorney at Law, As to any such thing as that,, •he is a person not to be believed on his oath. An Act so harsh.-, —-so almost penal in its nature, is certainly not to be enlarged by construction. If, therefore, it is- doubtful whether a case falls within or without the Act, a proper presumption will pronounce the case to fall without it.

■ In giving the notice to “commence suit”, did Mr. DeGraffenreid act as Attorney at Law, or Attorney in fact ? This is a point left in doubt. There is no doubt that he was Attorney at Law in the defence of the suit. Rut this Act — this giving of the notice to “ commence suit”, had, at the time when the Act was done, nothing to do with the defence of the suit. And if the notice had been observed, it would never have had any. This Act was a “ matter or thing” independent of the suit— was a matter or thing which it did not need an Attorney at Law to do. It was one which any Attorney in fact, might do, and a lawyer may be an Attorney in fact. The Act was of a kind which it is not usual for Attorneys at Law to do — if, indeed, it was not of a kind which falls wholly out of the province of Attorneys at Law. Could the Attorneys at Law, of Mr. Johnson, have acknowledged service of this notice, so as to' bind him ? And eertainly, if the Attorneys at Law for the plaintiff have no authority, as such, to accept a notice, those for the defendant have no authority, as such, to give one.

[1.] This being so, it is to be presumed that Mr. DeGraffenreid, when he gave the notice, acted as Attorney in fact. And if so, then it follows that he did not acquire the knowledge of the act i. e. of the. notice which he gave, “ by reason, of the relationship of client-and Attorney”.

The Court, therefore, was wrong in holding him to be incompetent to testify of the notice.

[1.] The other question is as to the effect of the addition of the word “cashier” to the name of the payee, in the face of the draft, and to the same name indorsed on the back of the draft. The draft is expressed to be payable “to the order of John Peabody, Esq. Cash.” It is indorsed, “John Peabody, Cash”. What effect has the word cashier, taken by itself, in this connection ?

It is to be presumed that the word was meant to have an effect of some sort. It can have only one of two effects — either to show that a particular person, named Peabody, was meant, viz: that Peabody, who was a cashier, or to show that some bank was meant, viz: that bank whose cashier was named! John Peabody. But for the former of these two, effects, the addition of the word cashier was not needed. On the contrary, as far as the indorsement was concerned, that effect would-be better produced by the naked words, “John Peabody” written in the hand of John Peabody. The name and the handwriting would fully identify the writer, while if the word cashier were added, with whatever intent, it would be the means of at least giving rise to a doubt whether the person meant was the private man, John Peabody, or the cashier, as cashier of some bank.

Hence it is, perhaps, that in practice, when men go to bind themselves, personally, they hardly ever add words of any sort to their names. They do not sign themselves A B, Judge, Sheriff, Clerk, Trustee, Executor, Administrator, Guardian, Attorney at Law, President, Cashier, or as the case may be. They sign simply A B.

But if the latter of the two aforesaid effects was the object, then there was a use for the addition of the word cashier; for-without that word or something equivalent, there would have been nothing to show that to have been the effect meant.

And not only would there be a use for the word to produce-this effect, but the word used in this way would be well adapted to produce the effect. An indorsement by a bank, in this form — “ A B, Cashier,” is much more simple and convenient than in this — “ The Bank of-, by A B, its Cashier”. More so than in this even — “A B, as Cashier”.

And therefore it is, probably, that business — real work — -almost universally selects this form. All banks draw and' indorse in this form. They never, in practice, sign their corporation name to their contracts. They sign the name of their President, or the name of him and that of their Cashier; and when they have done this, they think they have bound themselves, and not that their President, or their President and Cashier, have bound themselves.

If, in this case, the word “ as” had been put in — if the indorsement had been, “John Peabody, as Cashier”, it is hardly to be supposed that a doubt could be entertained, that the indorsement would have been intended to be that of the bank, and not that of the man Peabody, who happened to be tho bank’s Cashier. But usage, at this day, does not require the employment of the word as, to convey such a meaning, if," indeed, usage ever did. A B, Judge, Justice of the Peace, Sheriff, &c. &c. is a form of expression, which by all, is understood to mean the officer and not the man, as unmistakably as is .the expression — A B, as Judge, &c. And the latter form is hardly ever used — the former constantly.

Of the two effects, therefore, the latter, viz: that which would make the word cashier designate the bank, and not the bank’s cashier, as an individual is, it is to be pi esumed, the -effect intended.

And if this was the intention, there is law to carry it into effect. The law is to be found referred to m Story on Agency, §154. The other evidence was such as to authorize the Jury to say what particular bank it was that was meant. It showed-that Peabody, when he indorsed the- draft, was the acting Cashier of the Insurance Bank of Columbus.

The Court, therefore, instead of charging as it did, should-have charged, that the fact that the word cashier was added to« the name Peabody, in the indorsement; and the other fact, that Peabody was, at the time of the indorsement, the Cashier of the Insurance Bank of Columbus, were sufficient to require them to presume the indorsement to be that of the bank, and not that of Peabody individually.

To come to any other conclusion, would be fraught with, 'there is no telling how much of evil. All the bank notes that 'are issued, are signed .“A B, President”, and countersigned, M C D, Cashier”. To hold that the import of such signing and counter-signing, is that A B and C D only, and not the bank, are bound, would produce mischiefs that cannot be foretold.

Doubtless evidence would be admissible to rebut this presumption, as to intention.

No question was made, in this ease, as to whether a bill of exchange, of this bank, could be indorsed by the Cashier, alone, • so as to bind the bank — whether the signature of the Presi■Sent was not also necessary, and none such is decided.

There ought to be a new trial.