12. In an action on the case, the declara-[on the part of the bailee, and without compention alleged the bailment of the plaintiff's mare sation offered, asked or expected for keeping to the defendant to be kept through the winter, the money, constitutes a simple depositum or and that the defendant, without consent of the naked deposit. In a bailment of this nature, plaintiff, rode, drove and used the mare, and the bailee is bound to exercise only slight diliby such use the mare was greatly injured and gence, and is responsible only for gross neglect. miscarried her foal; but did not set up any Spooner v. Mattoon, 40 Vt. 300.

contract or breach of contract as to the use of 18. In such case, the county court, on a the mare;-Held, that the plaintiff had by his trial by the court, found that the defendant, the declaration tied himself up to a recovery upon bailee, 66 was not only lacking in the exercise of

the ground of an injury to the mare by the use ordinary care, but was chargeable with actual of her, and that, without proof of such injury, negligence," but without finding it to have been he could not recover. Graves v. Severens, 40 gross negligence; and having, on such finding, Vt. 636. rendered judgment against the defendant;

13. Joint conversion. The wrongful sale Held erroneous, and the judgment was reversof property by a bailee is a conversion in both ed. (Different degrees of care and of neglithe seller and the purchaser-a joint conversion gence, as legal rules, recognized.) Ib. -for which the bailor may maintain trover 19. On a review of facts and evidence reagainst both jointly. Buckmaster v. Mower, ported;-Held, that the loss of money held by 21 Vt. 204. Grant v. King, 14 Vt. 367.

a bailee as a naked deposit, and lost through a brief forgetfulness in the keeping of the money on his way to return it, is not necessarily gross negligence, since this is consistent with an honest intention and effort to return the money. Ib.

20. A mere depositary of money is not liable to an action for the money, unless his relation has been changed to that of a debtor, by a refusal to pay over the money upon proper request, or by a wrongful appropriation of it. Jackman v. Partridge, 21 Vt. 558.

14. The owner of cattle leased them, with a a farm, for four years, under an agreement that at the expiration of the four years the lessee might return the cattle, or pay a stipulated price [an under price] for them. Before the expiration of the term the lessee sold the cattle from the farm, and the lessor, within the term, brought trover therefor against both the lessee and the purchaser. At the end of the term, the lessee tendered the stipulated price. Held, that by such sale the right of possession was restored 21. Pledge. The general property in a to the plaintiff, and that the lessee forfeited his chattel pledged remains in the pledgeor, and own accruing rights under the contract; and only a special property passes to the pledgee. that the plaintiff was entitled to recover, as It is essential to the validity of a pledge, that against both defendants, the value of the cattle at the time of the sale, and interest thereon. Grant v. King.

it be accompanied by delivery of possession; and if allowed to go back into the possession of the pledgeor, the special property created by the bailment is determined and gone. Fletcher v.

II. PARTICULAR BAILMENTS, AND NEGLIGENCE Howard, 2 Aik. 115.

THEREIN.

22. By the mortgage of a chattel the general property passes, whereas by a pledge only a 15. Measure of diligence-In general. special property passes. Possession by the The true measure of liability in all cases of pledgee is essential to a pledge, whereas, in bailment [as, of an officer in case of property case of a mortgage, the mortgagor may, as beattached] is, that the bailee is bound to that tween the parties, retain possession. The same degree of diligence which the manner and the terms which create a pledge, if possession nature of his employment make it reasonable to passes, will generally be held to create a mortexpect of him, as a prudent and careful man. gage, if possession is retained. Connor v. CarRedfield, C. J., in Briggs v. Taylor, 28 Vt. 180;penter, 28 Vt. 237, and see Wood v. Dudley, 8 and see Folsom v. Underhill, 36 Vt. 591. Vt. 430. Atwater v. Mower, 10 Vt. 75. Coty

16. Mutual benefit. Where the defendant v. Barnes, 20 Vt. 78. Blodgett v. Blodgett, 48 injured the plaintiff's sulky while driving it Vt. 32.

for the mutual gratification and pleasure of 23. A pledgee may convey such title as he both parties, as a means of recreation and has in the pledge. Bullard v. Billings, 2 Vt. amusement ;-Held, that the defendant's lia-309.

bility was to be measured by the rule of com- 24. A pledgeor has the right of redeeming mon or ordinary care-common prudence--and the pledge at any time before a foreclosure or he was liable for ordinary neglects Carpenter sale; and he is not a trespasser by peaceably v. Branch, 13 Vt. 161. taking possession of the pledge after a tender

17. Deposit. Money deposited with an- of the amount due, although after the day fixed other for safe keeping, and for the sole benefit for payment. Taggart v. Packard, 39 Vt. 628. of the bailor, without any special undertaking 25. The holder of a promissory note, right

fully holding the same as collateral security, is|pute the title of his bailor, yet if the bailor entitled to retain the note until payment of, or claims the goods by an illegal title, and they offer to pay, the full amount for which it is are taken out of the custody and care of such held as security. Benoir v. Paquin, 40 Vt. 199. hailee by authority of law, the latter may show 26. A, the owner of a mowing-machine, by this in excuse for not delivering them. Burhis writing certified that he "pledged, pawned ton v. Wilkinson, 18 Vt. 186.

and delivered" the same to B as security for 31. Wharfinger. A delivery of goods on the payment of his note to B. The writing a wharf is not necessarily a delivery to the contained a stipulation, that A "has the right wharfinger. Blin v. Mayo, 10 Vt. 56. to sell said machine at any time, by paying B the said note and interest." A, without paying the note, and against the prohibition of B, sold the machine. Held, that A had the right of selling the machine only by paying the debt secured by the pledge, and that he was liable 1. Directors. If a particular line of proto B in trover for such sale. Prescott v. Pres-cedure has been resolved upon, or is necessarily cott, 41 Vt. 131. incident to the business of a bank, it is not es

BANK.

27. Where W turned out or pledged goods sential that every expenditure of money, or ento B, with the understanding that they should gagement of service, or other item within the be sold through a named factor, and that Bline so marked out, should receive the considershould credit W the proceeds of the sale de-ation of all the directors outside a meeting, or ducting the factor's commissions, and B com- that a meeting of the board should act upon it; mitted the goods to the factor to be sold, taking nor does all the executive business pertaining a receipt therefor to himself;-Held, in a suit to a bank come solely within the province of by B against W, that it was not a sufficient ac- the cashier. So held, where the contract for counting for B to credit W the proceeds of the service to a bank having five directors was consale as reported by the factor, where the cluded by two directors and subsequently apamount so reported was much less than the proved by a third, but without formal vote or market price of the goods; that, the factor be- conference with the other two directors, and ing liable to that extent, B was the proper without their knowledge or that of the cashier, party to call him to a just accounting, in case but not designedly concealed. Bradstreet v. W should not assume to do so himself, and Bank of Royalton, 42 Vt. 128. where B had not, on reasonable notice to W, 2. Cashier. Held, that a bank was bound abandoned in his behalf any further claim on by the representations of its cashier, made in the factor. Bigelow v. Walker, 24 Vt. 149. the ordinary course of business, as to the pay28. Where one is liable to account for prop-ment of a note in the bank, upon the faith of erty rightfully taken and disposed of, he is lia- which the maker of the note acted. Manufacble only for the amount actually realized, where turers' Bank v. Scofield, 39 Vt. 590.

he has acted with good faith and common pru- 3. The defendant signed a writing addressed dence and due diligence; and where he re-to the person, by name only, who was cashier ceives, as collateral security, the property in of the plaintiff bank, saying: "I wish you such an unfinished state that chancery would to discount a note," &c., and guaranteeing its have ordered it finished by a receiver, and he goodness and payment. The bank, on the finishes it with his own means, he is entitled in credit of the guaranty, discounted the note. equity to have such expenses allowed him in Held, that an action on the guaranty lay in the accounting for the property; and the right of name of the bank, counting upon a promise to an attaching creditor of the general owner is the bank. Woodstock Bank v. Downer, 27 Vt. subordinate to such equity. Rowan v. State 482. Bank, 45 Vt. 160.

4. Notice to the attorney of a bank, or to 29. Livery stable keeper. Livery stable the cashier, while acting in the matter of atkeepers, and others who let horses and carriages taching land for the benefit of the bank, of an for hire, are answerable to the hirer for an in- equitable right in a third person-as, by a dejury which happens by reason of a defect in fective deed on record,-is notice to the bank. the carriage, which might have been discovered 't. Mining Co. v. Windham Co. Bank, 44 Vt. by the most careful and thorough examination; 489.

but not for an injury which happens by reason 5. The forfeiture of $500, imposed by Stat. of a hidden defect, which could not, upon such 1865, No. 6, s. 5, upon cashiers of banks for an examination, have been discovered. Hadley failing to transmit to town clerks a list of sharev. Cross, 34 Vt. 586. holders, seems to be a fixed compensation to

30. Warehouseman. Although a wharf- the town for the wrong done, and an exclusive inger or warehouseman receiving goods to keep, remedy. Newman v. Waite, 43 Vt. 587. So cannot, ordinarily, in a suit against him, dis-held--- Brattleboro v. Wait, 44 Vt. 459.

6. An action by the town to recover such recorded in a book to be kept by the bank for forfeiture is remedial, not penal, and is not that purpose, and unless the person making the barred by the two years' limitation of G. S. c. transfer should have previously discharged all 62, s. 5. Ib. See Burnett v. Ward, 42 Vt. 80. his debts to the bank. A, a stockholder, with7. Certifying checks. The business of out consideration and for the purpose of inadvancing certified or accommodation checks by creasing the vote upon his stock at elections, banks to brokers beyond their deposits, to be transferred upon the book certain shares to B, made good during the day, is one in which the but A afterwards, for years, wholly controlled strictest and utmost confidence and good faith the shares and took the dividends, and then B are understood and expected, and scrupulous purchased the shares of A. Before such purfidelity and punctuality are required; and it is chase, A became indebted to the bank, upon a fraud in the drawer to procure his check to the faith that he was the owner of the shares, be certified after he has become to his knowl- and after such purchase, but without knowledge edge insolvent, and unable to make his check thereof by the bank, the bank attached and good, as agreed. Bank of Republic v. Baxter, sold the shares upon the debt of A. Held, that 31 Vt. 101. B, under the circumstances, was bound to make 8. S, being insolvent, fraudulently procured inquiries as to the state of the title before he the certification of his check on Bank A, which purchased, and that as between him and the he deposited in Bank B to the credit of Bank bank his title did not accrue until he had given C for the use of H, to whom he was indebted notice of his purchase, whereby he had become in the same sum. H had previously directed the beneficial owner; and that the title of the S to deposit that sum for him in bank, but had bank must prevail. Sabin v. Bank of Woodstock had no communication with Bank B on the 21 Vt. 353.

subject. On receiving the deposit, Bank B ad- 12. The bona fide purchaser of bank stock dressed a letter to Bank C, informing them of of one in whose name the shares stand on the such deposit and credit, but, before receipt of books of the bank acquires good title against the letter, notified them by telegraph, by pro- the world. The mode of transfer pointed out curement of Bank A, not to make payment in the charter is the only mode which the pubupon this credit as there was something wrong. lic are bound to regard as conveying the title; H was also informed by telegraph from S that and all persons, unaffected with notice to the payment of the check had been stopped, and contrary, are at liberty to act upon the faith of these telegrams were received as early, at least, the title being where it appears on the books of as H received notice of the deposit, and before the corporation to be. Redfield, J. Ib. he had in any way acted upon it. Bank A, be- 13. Law regulating interest. A bank fore becoming fully informed of the fraud, had incorporated in this State cannot recover more paid the money on the check to Bank B. On a than six per cent. interest for its loans, nor bill in chancery brought by Bank A;-Held upon securities taken therefor, though the loans (Bennett, J., dissenting), that Bank B was not may be made and the securities executed in the agent of H, so that the reception of the another State where a higher rate of interest is money by that Bank was in law a payment to allowed by law. Farmer's Bank v. Burchard, him, and that Bank A was entitled to reclaim 33 Vt. 346. the money. Ib. 9. Bank stock. The return of payments the contracting by an incorporated bank for made on subscriptions for bank stock, such re-interest upon loans or discounts exceeding turn being made in the form of loans to the sub- the rate prescribed by the laws of the State, scribers upon private security, was held a viola- whether this be treated as aviolation of its tion of a bank charter; but, on information for charter and the laws governing its existence this cause, the court in their discretion refused and acts, or as ultra vires, as the term is to vacate the charter. State v. Essex Bank, 8 technically used, has no other effect upon Vt. 489. the contract than to render it void as to such

14. In this State, since the statute of 1836,

10. Where the banking law prohibited the excess. Ib. Bank of Middlebury v. Bingham, votes, either personally or by proxy, of stock- 33 Vt. 621.

holders residing out of this State;-Held, that 15. Law restricting loans. Where the such stock could not be voted upon by residents statute prohibited banks from loaning more of this State to whom it had been regularly than ten per cent. of their capital to one person transferred upon the books of the bank, but and subjected the directors consenting thereto only for the purpose of enabling them to vote to a penalty, and to an action for damages upon it, and who held it only in trust for the therefor;-Held, that neither the party who non-resident real owner. State v. Hunton, 28 had obtained such loan, nor his surety, could set up in defense such violation of the statute. Farmers' Bank v. Burchard.

Vt. 594.

11. There was a provision in a bank charter. that no transfer of stock should be valid unless

16. "Bank fund." Under the safety fund

bank act of 1831 (C. S. c. 84),-Held, that not elsewhere," is not in conflict with the such part of the safety fund as had been con- statute requiring such shares to be set in the tributed by a particular bank could not be with- list of the town where the owner resides, being held from appropriation for payment of the other than that where the bank is located ;— debts of an insolvent bank, although such bank that this proviso merely requires that the tax, became insolvent before the other came into to be valid, shall be imposed under the State existence. Elwood v. State. Treasurer, 23 Vt. authority existing at the place where the bank 701. is thus located, and does not limit the place of 17. To a bill by the receiver of an insolvent assessment. Clapp v. Burlington, 42 Vt. 579. bank brought to charge the "bank fund," the 23. The cashier of a National Bank is subState Treasurer is a proper party defendant. ject to the penalty imposed by act of 1865, No. Danby Bank v. State Treasurer, 37 Vt. 541. 6, for neglect to return to town clerks the 18. The Danby Bank was in business several names of the stockholders residing in such years without contributing to the "bank fund," town. Newman v. Wait, 46 Vt. 689. the directors giving bonds instead. In 1856 no 24. The taking of special deposits to keep, bonds were given, and for 1856 and 1857 the merely for the accommodation of the depositor, bank contributed to the "bank fund," and be- is not within the authorized business of banks came insolvent. Held, that the liability of the organized under the National Banking Act of "bank fund” for payment to the bill holders 1864; and their cashiers have no power to bind attached at once upon the failure to give the them to any liability on any express contract bonds. Ib. accompanying, or any implied contract arising 19. Under the Bank Act (C. S. c. 84);-out of, such taking. Wiley v. National Bank Held, that the giving of bonds for redemption, of Brattleboro, 47 Vt. 546. according to s. 87, did not authorize a bank to 25. Savings bank. A deposit in a savwithdraw, or the State treasurer to pay to it, ings bank stated in the depositor's "deposit any part of the fund previously deposited, ex-book," not made payable to order or bearer, cept upon the expiration of its charter. Held, cannot be assigned so as to enable the assignee also, that the "bank fund" was the property of to maintain an action therefor against the bank. the banks contributing to it, and was not Howard v. Savings Bank, 40 Vt. 597. absorbed by the State as part of its general as-1 sets, but was to be kept separate and be managed by the treasurer; and hence, though reduced by the wrongful act of the treasurer in paying it back to other banks not entitled to it, the order by mandamus should not require him, as treasurer, to pay to the receiver of an insolvent bank, which had contributed to the fund, any money of the State as distinguished from the "bank fund." Miner v. State Treasurer, 39| Vt. 92.

20. Payment in bills of the bank. In an action to recover a debt to an insolvent bank brought in the name of the bank by an equitable assignee, where the defendant had notice of such interest before suit brought ;-Held, that, under the charter, the debt could be paid in the bills of the bank, but not the costs of the suit. Bank of Bennington v. Booth, 16 Vt. 360.

BANKRUPTCY.

I. U. S. BANKRUPT ACT OF 1841.
II. U. S. BANKRUPT ACT OF 1867.

I. ACT OF 1841.

1. Act of bankruptcy. A conveyance or assignment by a trader in embarrassed circumstances, of all his property to a particular creditor, whether made voluntarily or under pressure of legal process, or whether made with the intention of taking the benefit of the bankrupt act or not, is an act of bankruptcy under the Act of 1841. Gassett v. Morse (U. S. D. C.), 21 Vt. 627.

21. Negotiable paper, not made payable 2. Preference. To constitute a preferupon its face or by direct indorsement to a bank, ence, the prevailing doctrine seems to be, was held not subject to C. S. c. 84, s. 82, after that a payment, where it consists of an approthe bank had ceased to be the owner of it;-priation of a part only of the debtor's property, the act providing, that the bills of a bank shall must be made in contemplation of bankruptcy, be received by the bank in payment of all de- and must be voluntary. Both must conmands "made payable to, or the property of, the cur. bank." Bruce v. Hawley, 31 Vt. 643.

Something more must appear than mere insolvency; and to be voluntary, the payment must originate with the debtor, the first step being taken by him and not by the creditor. Ib.

22. National banks. Held, that the proviso to Sec. 41 of the national banking act of June 3, 1864, allowing the assessment and taxa- In re Rowell (U. S. D. C.), 21 Vt. 620. tion of shares in a national bank against the 631.

owner "imposed by or under State authority 3. A man may be insolvent, and yet go on at the place where such bank is located, and with his business and with the bona fide inten

tion and expectation of saving himself from discharge, pursue such remedies against the breaking or failing, and of being able to pay bankrupt as were afforded by the State laws; his debts; and a payment or transfer under and the U. S. District Court in bankruptcy such circumstances, though voluntary, would refused, before such discharge, and in such case, not be a preference withip the meaning of the to discharge the bankrupt from imprisonment Bankrupt Act. In re Pearce (U. S. D. C.), under State process. In re Comstock (U. S. 21 Vt. 611. D. C.), 22 Vt. 642. 4. Lien. Held, that where property was 11. Injunction. Held, that the District attached before the alleged act of bankruptcy Court could grant an injunction in behalf of the was committed, and judgment was obtained assignee of a bankrupt, where the proceedings and the property seized in execution before the in bankruptcy were instituted and the estate filing of the petition, though after the act of was being administered in another District. bankruptcy, this created a lien, in the absence Moore v. Jones (U. S. D. C.), 23 Vt. 739. of fraud or collusion, which was protected by 12. Debts provable. A judgment in an the Act; yet where the creditor had notice of action of tort is a debt provable against the the act of bankruptcy before his attachment, or estate of the bankrupt, and, although not provof the debtor's intention to take the benefit of ed, is barred by the final discharge, although the act, the attachment was a fraud upon the the cause of action arose from the wilful and act and did not create a lien; and that the pen- malicious act of the defendant, and was so addency of the petition was itself notice such as judged and certified. Comstock v. Grout, 17 to defeat the attachment. Downer v. Brackett Vt. 512. Howes v. Spaulding 642.

In re Comstock (U. S. D. C.), 22 Vt.

(U. S. D. C.), 21 Vt. 599. (U. S. C. C.), 21 Vt. 610. 13. Held, that debts of the bankrupt, orig5. Under the Bankrupt Act, where a cred-inating between the filing of the petition and itor has acquired a lien by an attachment which the decree of bankruptcy, were provable under is protected, he is entitled to have judgment in the commission, and, although not proved, his suit, and to take execution against the pro- were barred by the certificate of discharge. perty attached. In re Rowell (U. S. D. C.), Spalding v. Dixon, 21 Vt. 45. 21 Vt. 620.

14. Discharge. Held, that a judgment 6. The term lien, in common acceptation, is obtained pending the bankruptcy proceedings, understood and used to denote a legal claim or for a provable debt, was barred by such certificharge on property, either real or personal, for cate, not only as to the debt, but the costs also. the payment of any debt or duty, although the Harrington v. Me Naughton, 20 Vt. 293. Dowproperty be not in the possession of him to ner v. Rowell, 26 Vt. 397.

whom the debt or duty is due. Thus an at- 15. Discharge refused, by reason of a frautachment is denominated a lien in the statutes dulent preference, upon the facts stated. In of this State, and the term is used in this sense re Chase (U. S. D. C.), 22 Vt. 649. in the U. S. Bankrupt Act of 1841. Downer v. Brackett (U. S. D. C.), 21 Vt. 599.

7. Such lien by attachment is protected under that Act. Ib. In re Rowell, 21 Vt. 620. In re Reed, 21 Vt. 635.

16. The objection to a bankrupt's discharge, on the ground of concealment of his property, involves not only a charge of gross fraud, but also the crime of false swearing, and therefore ought to be substantiated, either by direct tes8. Claim assigned. Where one, prior to timony, or by such facts as afford unequivocal his petition in bankruptcy, absolutely assigns a circumstantial evidence of it. In re Pearce chose in action, an action thereon may, after (U. S. D. C.), 21 Vt. 611. such petition, and after his discharge, be main- 17. Where all the property of a bankrupt tained either in his own name for the benefit of the assignee of the demand, or in the name of the assignee in bankruptcy. Stedman v. Gassett, 18 Vt. 346. Hayden v. Rice, 18 Vt. 553, and

note.

was under an attachment when he filed his petition ;-Held, that it was no objection to his discharge, that he had consented to the sale of his personal property on the attachment under the statute of this State, nor that he had con9. The plaintiff before his bankruptcy made, fessed judgment in the suit-it appearing that for good consideration, an equitable assignment the debt was bona fide and due-nor that he of a chose in action [a book account]. Held, had executed to the creditor a quitclaim deed that this claim did not pass to his assignee under of all his interest in the real estate-it being the Bankrupt Act; and that having purchased previously incumbered by mortgage to nearly it back after his certificate of discharge, he its full value. In re Reed (U. S. D. C.), 21 could sustain an action in his own name to Vt. 635. recover it. Blin v. Pierce, 20 Vt. 25.

18. Impeachment of discharge. A dis10. Remedy under State laws. Held, charge in bankruptcy cannot be impeached for that a creditor who had not proved his debt any instances of fraud which were urged in the might, before the bankrupt had procured his U. S. District Court in objection to the dis