Bowman v. Cecil Bank

The opinion .of the court was delivered by Lowrie, C. J. The very form of this bill is prima facie evidence that the defendants below are accommodation indorsers for Hanna, for he drew the bill payable to his own ordér, and yet he does not indorse it except under the other indorsers. The actual proof that the agents of the bank discounted the bill for the benefit of Hanna, adds force to this prima facie evidence. But either is sufficient to throw upon the bank the burden of proving that Mabie indorsed the name of the firm with the consent of the co-partners, for the law does not presume that one partner is agent for his co-partners to indorse as surety for others, or outside the sphere of ordinary mercantile partnerships. Is the evidence sufficient to go to the jury that Tomb & McCurdy discounted the bill, as agents of the bank? We think that the facts stated by Thomas McCurdy, relative to their dealing with the bank, is evidence of this. The fact of agency hardly seems to be material for charging the bank with notice that the indorsements were for the accommodation of Hanna, and since the form of the bill shows this. But it becomes material in the consideration of another line of defence taken in the case. The defendants insist that such agencies of the banks of [37] other States, in this State, are forbidden by our law; and that therefore they acquire no title to bills and notes by means of such agencies. We think that this consequence follows if the prohibition exists. 1 Binn. 117; 6 id. 329; 4. Sergt. & R. 159; 7 W. &. S. 234; Cowp. 34; 3 Term B. 454; 5 id. 242, 529; 3 Mees. & W. 259. Are such agencies prohibited. The 50th section of-Bank Law of 1850, prohibits the banks of this or any other State from establishing such agencies elsewhere than is allowed by their charter; and the penalty is forfeiture of their charter— that is, from the transgressing the law of their creation — and the penalty is forfeiture of their charter, and quadruple taxation for so long as they may have transgressed. Very evidently our legislature can make no such law for the banks of other States, and the words applying it to them have been thrown into the section by an after thought, without observing that no part of the section can be referred to them without torturing the sense. These words being inoperative, this section does not answer our question. The act of 28th March, 1808, prohibits the banks of other States from establishing here “ my banking house or office of discount and deposit, under penalty of $2000, against every person concerned in the act.” There is evidence that Tomb & McCurdy received money from the Cecil Bank, Maryland, used it for discounting purposes, sent the paper' thus obtained to the bank, regularly rendered accounts to it, and received from the bank a compensation for their services. This, we think, is sufficient evidence to entitle the jury to find that they keep a banking house for the plaintiff, though McCurdy does say that they have no agency for the bank; of course, a full exposition of the relation existing between the bank and Tomb and McCurdy, may show • that this is not the case. But if the jury find that Tomb & McCurdy kept a banking-house for the plaintiff in this State, and by that means the plaintiff became possessed .of this bill, their title is vicious and they cannot recover. Judgment reversed and record remitted. Note. — This case seems in conflict with, if it does not overrule, the case of Thornton v. The Western Reserve Insurance Company, 1st Grant’s, Cases, 472. In each case an act was done, for the doing of which the legislature imposed a penalty. In neither did the law, in words, make the act done, void. In both cases notes had been given by citizens of this State, in consideration of acts done, for the doing of which a penalty had been imposed. In each oase a suit had been brought for the collection of the note. In one the court held that the note was good, and that the plaintiff was entitled to recover, and in the other that the plaintiff could not recover.