Wennerhold

I dissent.

In my opinion the judgment should have been for the defendants. None of the moneys received and misappropriated by Hartmann were received by him as secretary, nor were they in any way covered by the terms of the bond of the defendants. To hold them liable for any part of these moneys is to render the defendants liable beyond the plain terms of their contract.

Beatty, O. J.—I concur in the above.

Rehearing denied.

In April, 1870, one Adolph Hartmann was appointed secretary of the plaintiff, an incorporated savings bank. This corporation was formed for the purpose of aggregating the funds and savings of the members thereof and others, and the preservation and safe investment of ‘the same for the common benefit of all. It received money on deposit, and lent such money at interest.

Hartmann’s appointment was made by the board of directors by virtue of the by-laws of the corporation.

The duties of the secretary were prescribed by the bylaws. These duties were as follows:—

Although under the by-laws the board of directors was empowered to prescribe the term of office of the secretary, no term was ever fixed.

Hartmann held the position of secretary from his appointment above mentioned until September 18, 1883, when he was dismissed.

During this period, from April, 1870, until September 18, 1883, Hartmann received and paid out the money of the bank.

There was no one acting as teller by that name, and. no one acting as cashier by the name of cashier.

On the second day of January, 1880, Hartmann was required by the board of directors to give a bond for the faithful performance of his duties…