President & Directors of the Union Bank v. Clossey

Per Curiam. When this case was before the court, on a former occasion, wé gave a construction to the condition of the bond. It was considered as a security for the honesty of Clossey, in his trust, and not for his competency; and that, consequently, a mistake in over paying a check, could not be alleged as a breach of trust. (10 Johns. Rep. 273.) The second breach assigned in the replication alleges a deceit and fraud by Clossey, in keeping and making false entries in the plaintiffs’ books, by [184] stating that balances remained in his hands, when, in truth, there were no suc^ balances, but smaller ones, contrary to his duty, by reason whereof the plaintiffs lost 1,639 dollars and 95 cents. The third breach alleges that Clossey, fraudulently concealed, contrary to his duty, the deficiency of a like sum in which he was in arrear, for money had and received, and paid and laid out on the plaintiffs’ account, between certain periods, when he was first teller, by means whereof the aforesaid sum was lost to the plaintiffs. The rejoinders to these breaches state, that the false entries, if made, and the arrearages, if any, took place and accrued, by reason of over payments made by Clossey, by mistake, and not otherwise. To these rejoinders the plaintiffs have demurred, and the defendants have joined in demurrer. It is very clear that the rejoinders do not take issue on the points tendered in the replications. The plaintiffs allege a loss by the deceit and fraudulent entries made in their books of account ; and also a loss by a fraudulent concealment of a deficiency in the moneys received by Clossey. If these losses arose from mistakes, in the first instance innocent, and the fraudulent concealment produced a damage, the acts made use of to conceal the mistake, in the one case, was a suggestio falsi, and the concealment itself, was a supprcssio veri; both acts are unfaithful, and are alleged to have produced losses. That such losses have been produced, is .matter of fact to be shown on the trial. Admitting them to have arisen from acts of fraud and concealment, in regard to a transaction originally innocent, the court have no doubt but Clossey and his sureties are answerable; and for not taking issue on the fraud, and the loss consequent thereon, the rejoinders demurred to are bad. Judgment for the plaintiffs, with leave to the defendants to amend on payment of costs.