Minor v. The Mechanics' Bank of Alexandria. 1 P.

tors. The question then comes to this, whether any act or vote of the board of directors, in violation of their own duties and in fraud of the rights and interest of the stockholders of the bank, could amount to a justification of the cashier, who was a particeps criminis.

We are of opinion that it could not. However broad and general the powers of the direction may be for the government and management of the concerns of the bank, by the general language of the charter and by-laws, those powers are not unlimited, but must receive a rational exposition. It cannot be pretended that the board could, by a vote, authorize the cashier to plunder the funds of the bank, or to cheat the stockholders of their interest therein. No vote could authorize the directors to divide among themselves the capital stock, or justify the officers of the bank in an avowed embezzlement of its funds. The cases put are strong, but they demonstrate the principle only in a more forcible manner. Every act of fraud, every known departure from duty, by the board, in connivance with the cashier, for the plain purpose of sacrificing the interest of the stockholders, though less reprehensible in morals or less pernicious in its effects than the cases supposed, would still be an excess of power, from its illegality, and, as such, void as an authority to protect the cashier in his wrongful compliance. Now, the very form of these pleas sets up the wrong and connivance of the board as a justification; and such wrong and connivance cannot for a moment be admitted as an excuse for the misapplication of the funds of the bank by the cashier.

The instruction prayed for proceeds upon the same principles

as the pleas. It supposes that the usage and practice of [72] *the cashier, under the sanction of the board, would justify a known misapplication of the funds of the bank. What is that usage and practice, as put in the case? It is a usage to allow customers to overdraw, and to have their checks and notes charged up, without present funds in the bank. Stripped of all technical disguise, the usage and practice thus attempted to be sanctioned is a usage and practice to misapply the funds of the bank, and to connive at the withdrawal of the same, without any security, in favor of certain privileged persons. Such a usage and practice is surely a manifest departure from the duty both of the directors and the cashier, as cannot receive any countenance in a court of justice. It could not be supported by any vote of the directors, however formal; and, therefore, whenever done by the cashier, is at his own peril, and upon the responsibility of himself and his sureties. It is any thing but "well and truly executing his duties as cashier." This view of the matter disposes of this embarrassing point, and also of the second

Minor v. The Mechanics' Bank of Alexandria. 1 P.

instruction prayed for by the defendants, which substantially turns upon the like considerations.

The third instruction prayed for, in effect, was that the court would instruct the jury that the defendants are not chargeable in this action for the conduct of Minor in the duties distinctly appertaining to the office of teller, whilst he was cashier in the bank, although those duties were duly assigned to him; because it constituted a distinct office, and the accounts and proceedings of the teller were at all times kept distinct, and in separate books from those of the cashier. In our judgment, this instruction was properly refused. By the fifth article of the second section of the by-laws of the bank, the duties of the cashier are generally pointed out; and among other things it is provided that he shall "do and perform all other duties that may from time be required of him by the president or board of directors relative to the affairs of the institution." On the appointment of Minor as cashier, who had previously acted as teller, the directors passed a vote "that the present officers of the bank do the whole duties of the bank." From the other circumstances of the case, the inference is irresistible that the duties of teller were, under this vote, assigned to the cashier. If so, then the performance of these duties constituted thenceforth a part of the duties of the cashier, as such; and as much so as if they had been originally affixed to the office of cashier. There is nothing in the nature of the duties of teller incompatible with those of cashier. On the contrary, as is well known, cashiers often perform the functions of both. The circumstance that the office of teller and distinct accounts and

books were still kept up does not vary the legal result. It [73] was a matter of mere convenience and regularity for the government of the bank, in its own business, and probably had no higher or other origin than to preserve the same forms and series of accounts which the bank had adopted at its first institution. The office of teller had a nominal but not a real existence; and, from the time of the union of the duties in the cashier, as such, there was a legal extinguishment of the separate official character. If the cashier had originally had the duties of book-keeper and accountant assigned to him, and, in consequence thereof, had kept distinct account-books in the bank, no one would have imagined, because he kept separate account-books as cashier, for his own convenience, or according to the ordinary usage of banks, that he would not, under his bond, have been responsible for malconduct in keeping the general account-books of the bank to its loss or injury. The bond of the cashier must be construed to cover all defaults in duty which are annexed to the office from time to time, by those who are authorized 39

VOL. VII.

Minor v. The Mechanics' Bank of Alexandria. 1 P.

to control the affairs of the bank; and sureties are presumed to enter into the contract with reference to the rights and authorities of the president and directors under the charter and by-laws.

all or one.

The remaining inquiry is as to the effect of the nolle prosequi, which the plaintiffs entered against Minor after he had pleaded, and after judgment was given against the sureties in favor of the plaintiffs, upon all the pleadings interposed by the sureties. The pleas of Minor were, mutatis mutandis, the same as the third, fourth, fifth, seventh, and ninth pleas, put in by the sureties; and the question arises whether, under such circumstances, (no objection to the judgment appearing to have been made by the sureties,) this proceeding is an error, for which that judgment ought to be reversed. It is material to state that the bond on which the suit is brought is a joint and several bond. Under such circumstances, the plaintiff might have commenced suit against each of the obligors severally, or a joint suit against them all. But in strictness of law, he has no right to commence a suit against any intermediate number. He must sue The objection, however, is not fatal to the merits, but is pleadable in abatement only; and if not so pleaded, it is waived by pleading to the merits. The reason is that the obligation is still the deed of all the obligors who are sued, though not solely their deed; and, therefore, there is no variance in point of law, between the deed declared on and that proved. It is still the joint deed of the parties sued, although others have joined in it. This doctrine is laid down, and very clearly illustrated, in Mr. Sergeant Williams's note [74] to the case of Cabell v. Vaughan, 1 Saund. *291, note 2, where all the leading authorities are collected. If, therefore, the present suit had been brought against the four sureties only, and they had omitted to take the exception by a plea in abatement, the judgment in this case would have been unimpeachable. Is the legal predicament of the plaintiffs changed by having sued all the parties, and subsequently entered a nolle prosequi against one of the obligors? If not in general, then is there any legal difference, where the party in whose favor the nolle prosequi is entered is not a surety, but a principal in the bond? not indeed, so named in the bond, but the suretyship resulting as a necessary inference from the nature and terms of the condition.

These questions must be decided by authority, if any such exist; if none can be found, then they must be decided by analogy and principle. It may be proper in this view again to notice the fact that this suit is on a joint and several bond; that the defendants severed in their pleas from the principal; that the trial of the issues, (which undoubtedly ought to have been, by the regular course of

Minor v. The Mechanics' Bank of Alexandria. 1 P.

practice, deferred until the cause was at issue as to all the parties, or the steps of the law taken to bring them into default,) does not appear upon the record to have been opposed, and that no motion was made in arrest of judgment, or for a postponement, until a trial of the issues upon the pleas of the principal might have been had. What would have been the proper proceedings under such circumstances, whether to try all the issues by the same jury, and have damages assessed at the same time against all the defendants; or whether there might have been several trials and several assessments of damages; and whether, if such several assessments had been made, and differed in amount, any, and what judgment, ought to have been entered, are points upon which the court does not think it necessary to give any opinion.

The nature and effect of a nolle prosequi was not well defined or understood in early times; and the older authorities involve contradictory conclusions. In some cases it was considered in the nature of a retraxit, operating as a full release and discharge of the action, and, of course, as a bar to any future suit. In other cases it was held not to amount to a retraxit, but simply to an agreement not to proceed further in that suit, as to the particular person or cause of action to which it was applied. And this latter doctrine has been constantly adhered to in modern times, and constitutes the received law. In cases of tort against several defendants, though they all join in the same plea, and are found jointly guilty, yet the plaintiff' may, after verdict, enter a nolle prosequi as to some of them, and take judgment against the rest. The reason is said to be, that the action is in its nature joint and several; and, as the [75] plaintiff might originally have commenced his suit against one only, and proceeded to judgment and execution against him alone, so he might, after verdict against several, elect to take his damages against either of them. A fortiori, the same doctrine applies where the defendants sever in their pleas. Indeed, in tort, as we shall hereafter see, it does not seem to have been denied that cases might exist, in which, if the defendants severed in their pleas, the plaintiff' might, after judgment against one, have entered a nolle prosequi as to the others. The doubt was, whether he could do so before judgment, which was finally settled in favor of the right; and in such cases, where several damages were assessed against the different defendants, the difficulty was afterwards cured, by entering a nolle prosequi as to all but one defendant. And in the same manner, a misjoinder of improper parties is sometimes aided. The authorities on this subject will be found summed up with great accuracy in a note of Mr. Sergeant Williams, to the case of Salmons v. Smith,

Minor v. The Mechanics' Bank of Alexandria. 1 P.

1 Saund. 207, note 2. In the same note, the learned editor adds: “if an action is brought upon any contract against several defendants, who join in their pleas, and a verdict is found against them, it is apprehended the plaintiff cannot enter a nolle prosequi against any of them; because the contract being joint, the plaintiff is compellable to bring his action against all the parties thereto; and he shall not, by entering a nolle prosequi, prevent the defendants against whom the recovery has been had, from calling upon the other defendants for a ratable contribution."

So far as this reason goes, it is inapplicable to the present case; for the defendants are entitled not only to a ratable, but a full contribution over for the entire sum against the party in whose favor the nolle prosequi has been entered; and consequently the nolle prosequi does not touch their rights. It is observable, also, that the language is qualified by the words "who join in their pleas;" which are printed in italics, and may, therefore, fairly be presumed to have been inserted by the learned editor ex industria, with a view to point out an implied distinction between cases where there is a severance, and where there is a joinder in the pleas. If there be any such distinction it is favorable to the present case; for the plaintiffs severed in their pleas from their principal. The learned editor proceeds to state that, “if in such actions the defendants sever in their pleas, as where one pleads some plea which goes to his personal discharge, such as bankruptcy ne unques executor, and the like, not to the action of the writ, the plaintiff may enter a nolle prosequi as to him, and proceed against

the others; for with respect to the bankruptcy, the statute [ * 76 ] of 10 Ann, c. 5, makes the *other defendant, who is not a bankrupt, liable for the whole debt; and, therefore, in that particular instance, the case is exactly the same as where an action is joint and several. So the plea of ne unques executor does not deny the cause of action; but only that he is one of the representatives of the testator. When the defendants sever in their pleas, with this limitation as to the extent of the pleas in action upon contracts, it is immaterial what is the form of the action; for the plaintiff may enter a nolle prosequi against any of them before verdict, and proceed against the rest."

The learned editor is fully borne out in the general position here stated, by the case of Noke et al. v. Ingham, Wilson, 89, to which he refers. The only question is, whether there is any such qualification upon it as that the plea should be one going exclusively in personal discharge and not to the merits. That is the point of real difficulty. The case in 1 Wilson, 89, was upon several promises made by the defendants as partners. One of them pleaded a former judgment;