fwrrrmzs v. sowL1=:s. 9
records of the bank in his hands, as stated from the affidavit of Albert
Sowles. ~ Albert P. Cross is also so named. It is shown, however, that he
has no knowledge on this'-subject except what has been acquired since his
employment as counsel. f
There remain Albert Sowles, and the defendant Burton, whose further
examination is desired; Therelis nothing set forth from them which
can inany sense be considered asnewly discovered, except that a bond
was required and had by the outgoing directors to indemnify them
against liability ; and that $22,800 of the loan was taken from the bank `
before they retired; and that the loan was not shown on the books of the A
bank until October lst after. The only apparent importance in the ex— ·
istenoe'oi€ such za bond is that the taking of it would show thatthose who
tooktit had, orthought they had, incurred some liability against which A
they wanted indemnity. If assenting to this loani was thatliability, it
twouldhave some tendency to show that they were theones who assented
`to it. “ That‘fact,l’hotvever, is' already shown in the case, and has appeared
ever since Albert Sowles testified; and appeared again in the testimony
of Edwardj A. Sowlesn “Tha_tfthe·· money wasttaken before theylretired
would not show that thisidefendant did not assent to· the loan before it
was taken, and assent to it as a director. He claimied’·to be a director
from his election by the stockholders at the beginning of the year, as ap-
rpearshyihis testimony, and it is understood ~that he took the oath of
office-,1 and—·>entered uponhis duties as direotor,·so faras he was per-
mitted, from that timeiforward. That others claimed to be, and were
recognized?-by still others, who undoubtedly were directors, as the direct-
ors-, would not relieve him from what he did and claimed todo as a di-
_ rector that was prohibited by express law. The form of theloanrand
the manner of its entry on the books of the bank are wholly immaterial. `
There ¤is»no question but that Edward A. Sowles. became indebted to
the bank to the amount of about $36,000 as a borrower, and that is what
the statute prohibited; and the assent to the violation of that prohibi-
tion `is, what creates the liability. _ Of course there is nothing in the de-
fendantsown testimonywhich he desires to givethat is newly discov- A
ered, although new1y—discovered facts might makepit material when it
did not appear to be so before. There is, however, no such fact shown
now, not known to him when he testified, as to make it newly material.
Apparently, he now merely wishes to deny what he did not deny before,
but which Acalled for denial then as much as now. It is not understood
fromtheanidavitrof Albert Sowles that he intends to say that what he
got alittle mixed about included the assent of ~·all the directors of . both
boards to this loan. Hesays he had not examined into the details when
he testified before as hehas now, and gives that as a reason forj getting
mixed. But when he testified about the assent, he did not go into the
details at all, but testified to that as a distinct fact. He does notsay
that he testified then to anything which he did not recollect, nor .that.any-
thing was taken down by the examiner as testified to by him that he did
, not testify to. » What is desired to be asked of him now was proper mat-
ter of cross·examination then, or of examination in chief when thezde-
·~fendant took his testimony, if deemed desirable, and- there has been