In Error to the Circuit Court of the United States for the Southern Division of the. District of Washington.

The nature of this action, the general character of the evidence introduced, and the principles 'of law involved therein, are set forth in the charge of the court to the jury, as follows:

“Tiie plaintiff in this case, Mr. Richard T. Cox, sues, as receiver of the First National Bank of Arlington, Oregon, to recover from the defendant, J. L. Robinson, the amount of a judgment which the bank obtained against a man named N. Cecil. The action is brought against Robinson for the reason that Robinson became surety for the amount that the bank should recover in the action against Cecil, in consideration of discharging- a writ of attachment which liad been levied on the property of Cecil. The fact that the judgment was recovered by the bank against Cecil is not denied. The fact that Robinson entered into an obligation to pay whatever amount should be recovered in the action is not denied. The suit is resisted on the ground that the bank, which Cox represents as receiver, is nor the owner of the judgment; that the judgment has been transferred by an assignment from the bank to the defendant, Mr. Robinson, for good consideration. There has been introduced in evidence a paper which is a certified copy of a purported assignment and transfer of this judgment on the record of the court in which the judgment was entered. This assignment and transfer purport to have been made by the First National Bank of Arlington, Oregon, by .T. B. Friclc, vice president. The whole case turns upon the question whether or not Mr. Frick had authority to transfer this judgment to Mr. Robinson. That he was vice president of the bank is not disputed, but it is disputed that he had any authority to transfer this judgment. And it is also disputed that the bank received any consideration for the transfer of the judgment The plaintiff claims that it was illegal on these two grounds: That Frick was not authorized to do that kind of business, and that the bank received no consideration for the transfer of the judgment. On the question as to the consideration for the transfer. I instruct you: First, to constitute a sufficient consideration to give validity to the contract, it is necessary that the bank should have received consideration, or that Robinson should have parted with something that would constitute a consideration. There must have been either something moving to the bank, or something moving from Robinson, to constitute a good consideration to make the transfer- legal. And it is immaterial whether it was one or the other. It must be one; but, if Robinson parted with something of value in consideration of tills transfer, it lias the same effect, in law, whether the bank received it or not, that it would if the bank received something. But further, on that point, the evidence shows that that which Robinson gave as consideration was the assignment of a judgment in his favor against Hoy & Butler. That transfer was made to Frick. Now, if Frick received a valid assignment of the judgment in favor of Robinson, and consideration for that moved from the Fipt National Bank of Arlington to Mr. Robinson. — if the value which Robinson received came from tbe bank, and not from Mr. Frick, — it would still be a valid consideration moving from Robinson to the bank, because there would be a resulting trust in favor of the bank. And whatever Frick received, when acting for the bank, in consideration of the assets or property of the bank that he transferred, would not be his, although it appeared on the record to be in his name. He would take in trust for the bank, and it would be the1 property of the bank, in fact and in law. Now. as to the authority which Frick, as vice president of this bank, actually had to do this business: The law providing for creation of national banks does not provide for any such officer, by name, as ‘general manager.’ It does provide for a president and vice president. Tbe duties and powers of the president and vice president are not defined in the law. In general, the vice president acts in place of the president, — lias the power and authority which bidongs to the president, — in the absence of the president; bnt; the law has not defined the powers of either president or vice president. The powers of the corporation are vested in a board of trustees. They possess tlie power to do the business' of the bank; but in the transaction of ordinary business of the bank the depositors and creditors, and all who deal witli tlie bank, seldom deal directly with the board of trustees. But Hie business of a bank is continuous, and its floors must be open to transact business with the public during business hours, and tlie business transactions of a bank necessarily have to be performed by agents; and whoever acts for the bank as an agent, with tlie knowledge and consent of filie board of trustees, is to be deemed authorized by the board of trustees to perforin the powers which the law vests in tlie board of trustees. The power of any officer may be limited, or it may be extended. lie may have general powers. General powers may be conferred- upon him by the by-laws, by resolution of the board of directors, or by the assumption of those powers with tlie knowledge and acquiescence of the board of trustees. -Now, an officer of the bank, acting for it, — transacting its business, — is presumed in the law to have the powers which he assumes publicly witli the knowledge and acquiescence of the board of trus-. tees, whether evidence of his powers is contained in the records of the corporation, or in a written instrum'ent or resolution, or whether it simply rests in the fact that the powers are continuously and publicly exercised, and not disaffirmed by (he action of the hoard of trustees. The board of trustees are presumed by the law to see what is made apparent before the eyes of tlie public in the actions of their agents or officers. They are presumed to see what tlie public see in the actions of an agent or an official. 2iow, you have heard the evidence in this case, and it is not pretended that there was a resolution or written instrument giving to Frick whatever powers lie had of a general or special character. They are to be determined by (ho manner in which the business of the bank was done. Such powers as he continually, during the existence of tlie bank, exercised publicly, must lie presumed to have been exercised with the knowledge of the board of trustees; and unless they have disaffirmed or denied, by some public declaration, ills right to exercise those powers, tiiey are deemed to have acquiesced and assented that he might continue to exercise those powers, and they are bound by his acts in behalf of the bank. This, being- a civil action, is one which the rules of evidence require tlie jury to decide according to the fair preponderance of the evidence. You should endeavor to harmonize the testimony of the different witnesses as far as it can Tie. Where there is a conflict in the testimony that is irreconcilable, yon must weigli the evidence on one side against that opposed, and decide according to a fair preponderance of the evidence. The defendant comes here asserting the validity of this transfer of the judgment. He has the affirmative, and tlie burden of proof is upon him to establish that there was a valid transfer of the judgment to him, and'he must make it out by at least a fair preponderance of the evidence. If the evidence preponderates against him, or is balanced evenly, so you cannot determine on which side there is a fair preponderance of the evidence, you must decide against the defendant, and in that case the plaintiff would lie entitled to a verdict for the amount sued for. If you do find, however, by a fair preponderance of the evidence, facts wlfich, when applied to the case under tlie mies I have given you, determine that Frick was authorized by the board of trustees to act in a matter of this kind, — to transfer a judgment in behalf of the bank, — and that he did make the transfer— I say, if those facts are established by a fair preponderance of the evidence, then your verdict must be for the defendant. An officer of a national bank, either vice president or other officer, or person who is acting as general manager therefor, has no authority to assign or transfer any claim for money due, in any event, unless expressly authorized to do so. without payment of the amount due on sucli claim.” 70 Fed. 760. •