Opinion of the Court. remains only to ascertain whether the proof sustained the court in leaving to the jury the ascertainment of the facts. contemplated in the charge, that is to say, whether the court rightly refused the peremptory request, made by the defendant, to direct a verdict in his favor. There can be no doubt that the president of a national bank, virtute officii, has not necessarily the power to draw checks against the account kept with another bank by the bank of which he is president. Indeed, the statutes expressly provide that the powers of the president of a national bank may be defined by the board of directors. Rev. Stat. § 5136. True it is, that by a course of dealing with a particular person, the power of an officer to perform a particular act may be implied when such power is not inconsistent with law. Merchants' Bank v. State Bank, 10 Wall. 604. Now, here there was an entire absence of all proof as to a course of business implying authority on behalf of the president to draw checks in the name of the bank. In view of the fact that the power to draw the check did not inhere in the functions of the president, and in consequence of the absence of proof as to a course of business implying the power, as also in consideration of the fact that the January checks were not drawn at the banking establishment, but in another city, we think the proof was adequate to justify the court in refusing to take the case from the jury, and in leaving it to them to determine whether there was such infirmity in the checks as made a subsequent ratification, obtained in New Hampshire by the fraudulent representation of the defendant, one of the efficient causes for the absorption of the credit resulting from the debit of the checks. Apart from this view, which was covered by the charge of the court, there were other considerations which rendered it equally improper to take the case from the jury. It cannot be denied that if when the January checks were called to the attention. of the bank at Exeter, the authority of the president to draw them had been repudiated, and if such denial had been communicated to the Boston bank the ability of the president of the Exeter bank to have obtained payment of the subsequent checks would not have existed. As the failure of the Exeter Opinion of the Court. bank to repudiate the January checks, and in so doing give notice to the Boston bank, may have been consequent upon the fraudulent misrepresentation as to the purpose for which the January checks were drawn, it was competent for the jury to consider the relation which this fact bore to the drawing of the subsequent checks. In other words, the condition of evidence was such that the misrepresentation made in New Hampshire as to the reason for the drawing of the January checks, in connection with all the other evidence, was competent to go to the jury as tending to show not only the completion in New Hampshire of the wrongful obtaining of the credit, commenced by the drawing and debiting, in Boston, of the January checks, but also the initiation in New Hampshire of the wrongful obtaining of the credit completed subsequently in Massachusetts by the drawing of the April and May checks, if the jury thought from all the evidence that when the misstatements were made as to the January checks the purpose was to further defraud by drawing the subsequent checks. The foregoing considerations dispose of all the questions presented, and the conclusion which results from them is, that there is error in the conviction as to the second count, and none as to that under the seventh count. The sentence imposed in consequence of the verdict of guilty on both counts was distinct and separate as to each count, and was made only concurrent. It follows, therefore, that if the verdict and sentence, as to the second count, be set aside, nevertheless the entire amount of punishment imposed will be undergone. Under these circumstances, it is doubtful whether the error committed, as to the second count, should be treated as prejudicial, since the only effect of reversing and ordering a new trial, as to this count, will be to leave the full term of the existing sentence in force and to submit the accused to another trial on the second count, from which trial, if convicted, an additional sentence may result. Considering this situation, we deem that The ends of justice will best be subserved by affirming the judgment and sentence under the seventh count, and by Dissenting Opinion: Fuller, C. J., Brewer, Brown, JJ. reversing the judgment as to the second count, and remanding the case to the court below for such proceedings with reference to that count as may be in conformity to law, and it is so ordered. The CHIEF JUSTICE dissenting: MR. JUSTICE Brewer, Mr. JUSTICE BROWN and myself think the conviction on the second count ought to stand. In our opinion the discretion of the Circuit Court was properly exercised in allowing leading questions to be put to the witness Dorr, and they amounted to nothing more than enabling him to overcome temporary forgetfulness by reference to what he had said on a prior examination. 1. Central Pacific Railroad Co. v. California, 162 U. S. 91, affirmed and 2. Bryan v. Brasius, 162 U. S. 415, followed. Byran v. Pinney, 419. CENTRAL PACIFIC RAILROAD COMPANY. 1. The Central Pacific Railroad Company, being required by the laws |