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I. This is an action on the case, charging the defendant with negligence and want of care in keeping $1000 of U. S. bonds as a special deposit, and by which negligence said bonds were lost. The defendant executed and delivered to the plaintiff, on delivery of the bonds, the following contract or receipt:

"The National Bank of Brattleboro, Brattleboro, Vt., July 23d, 1866. Received of J. D. Whitney, four thousand dollars for safe keeping, as a special deposit. S. M. WAITE, C."

The written contract states the understanding of the parties, and by that the obligation and duties of the defendant must be determined. The words in the contract "for safe keeping," merely express the purpose of the deposit; and it would be implied if it had not been expressed. It was, as we think, a naked deposit, without reward. The possible conjectural benefit that might accrue to the defendant by purchasing the coupons, if the depositors should offer to sell them to the bank, when there was no obligation to do so, is too remote. The bank would be supposed to have provision for greater security for the safe keeping of money and valuable papers, than dwelling-houses and other ordinary buildings; and it would be implied that these bonds were to be kept in the vault of the bank, and with the same security as the bank afforded to valuables and papers of like character of its own; and a less degree of care and diligence would be required than if the bonds had been received by the defendant for hire and reward, or for some temporary use of its own.

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The exact measure or responsibility of a naked bailee, without reward,is stated in somewhat different language by text writers, and in the adjudged cases. Sir Wm. Jones states: "That a bailee of this sort is answerable only for fraud or for gross neglect, which is considered as evidence of it, and not for such ordinary inattentions as may be compatible with good faith. In this case the measure of diligence is that which the bailee uses in his own affairs." The nature of the property and purposes the parties had in view, as appears from the quality of the property and character of the act of deposit, are a part of the case. Banks are instituted, and their buildings constructed, for the delivery in, and safe-keeping of, money and money securities; and these bonds were deposited in the defendant's bank for the greater security of the bonds,-"for safe keeping." And it must be implied that the defendant undertook to use all the appliances for the security of its own property for "the safe keeping" of the plaintiff's bonds, and in good faith. But it would not be liable for the robbery or larceny of the bonds, unless there was complicity or bad faith. The defendant requested the court to charge the jury that upon the evidence the bailment was gratuitous. The court declined so to charge, but did charge that the bonds were delivered at the solicitation of the defendant. The plaintiff testified that the cashier passed the bonds in an envelope

to the plaintiff on the counter of the bank, and remarked: "You can leave these bonds, if you would like to, for safe keeping." Plaintiff inquired, "if they would be safe to leave them there?" The cashier replied, "they will be as safe as our own property." There was in this no solicitation for the custody of the bonds, or suggestion of expected benefit, but merely a suggestion that he might leave them if he chose to, and they would be safe as their own property. The bank obtained no right to sell or use the bonds, but a naked custody. If the plaintiff left the bonds, after the interview as detailed by himself, it was of his own free will and choice. The court charged the jury that there was evidence of a special agreement to keep the bonds safely. But, as has been intimated, the leaving the bonds for "safe keeping," or accepting them for that avowed purpose, is not a covenant or warranty that the defendant will protect the bonds absolutely from all danger, or indemnify the plaintiff against loss, but is rather a declaration of the purpose of the parties placing them in the defendant's safe, and giving the protection and immunity which the means of safety in the bank afforded like securities of the defendant.

The court further charged that there was evidence in the case tending to show that "the bank received benefit from the special deposit by the purchase and sale of the gold coupons; and perhaps in some other way, perhaps in the purchase and sale of the bonds themselves."

It is to be noticed that the contract gave the defendant a naked custody of the bonds, without any right to sell or use the bonds or coupons. If plaintiff should thereafter elect to sell the coupons to the defendant, it was a matter of choice, and we see nothing in the case evidencing that in the sale of coupons to the defendant there was other benefit than an accommodation to the plaintiff.

We think the court erred in allowing the jury to go into speculation and conjecture to conceive a possible benefit to the defendant from the deposit in order to find a different rule of liability than that imposed by the contract. It was error to instruct the jury that there might be benefit to the defendant "perhaps in the sale of the bonds," when by the contract it had no right to do so; and "perhaps in some other way," a way not disclosed by the evidence or known to the court. This being a naked bailment, without reward, the legal rights and duties of the parties arise from the character of the property and relation of the parties. And when "the winds are let loose," and the imagination has no rein, arising from the loss of property, by the alleged robbery of a public money institution, affecting the rights of many persons, it is the more incumbent upon the courts to keep the case "well anchored" in the law, and keep out of the case all evidence, especially combustible matter, that does not legally affect the rights and duties of the parties. The rule of law affecting this class of bailments (unless there be special facts which qualify the duties which this

case does not disclose), would require this defendant, considering the nature of the property, to have kept the bonds, in good faith, within its safe, under all the safeguards afforded to like property of its own. This is the concurrent rule of the civil and common law. Jones on Bailm., pp. 122-123, p. 46, note 18; Lord Holt, in Coggs v. Bernard, 2 Lord Raym. 915; 2 Kent Com. 562; Foster v. Essex Bank, 17 Mass. 479; First Nat. Bank of Carlyle v. Graham, 100 U. S. 644.

The plaintiff claims that there was evidence of negligence of the defendant, in this, that there was a passage way from the rear of the banking room, behind the counter, not protected by a gate; that the safe was left open, during business hours, for convenient access of the bank officers in the transaction of business; that a short time, about noon, each day, the bank was left in charge of one person, while his associate was absent to dinner. Negligence was a fact to be proved by the plaintiff to the jury. But there would seem nothing so unusual in these facts, if proved, that they could be accounted negligence, much less gross negligence, such as would charge the defendant. A gate was proved to be in use in some banks, and would be in a measure,doubtless, a barrier against intrusion, but slight in its character New appliances for the safety of property are suggested by experience, and applied from time to time if found useful, but none have been found that subtle villainy can not surmount or evade. All banks have not the same protection against fire, robbery and violence, and none are absolutely safe. Men have been gagged and robbed in the banks and on the streets. Yet men continue to travel the streets with money and valuable papers in their pockets, and cashiers continue during business hours to manage banks alone in the country villages of this State, and it is deemed safe. Robbery at midday in a country village, like lightning or the whirlwind, is not kept in mind as a present danger. When a loss occurs, the mind becomes quickened, and conceives that this or that precaution would have averted it. There are manifold inventions for the security of property, fire-proof and burglar locks and safes, and more appliances in the cities where the amount and exposure is greater, but all are not the same. But where a deposit is made in a country bank or country store for safe keeping, the law implies a duty to employ the means of security, and keep it as he does his own.

II. To prove the loss of the bonds by the defendant's negligence, the plaintiff introduced the depositors of bonds, of different character, at various times with the defendant for safe-keeping; and they were allowed against defendant's exceptions to state their several interviews with Waite, the cashier of defendant's bank. In one case the depositor had lost his receipt for the bonds, and the cashier declined to account for the bonds until the receipt was produced; and when he found the receipt he intimated to the cashier that he would have lost the bonds if he had not

found the receipt, whereupon the cashier requested him to leave the bank. If Waite was in the wrong in that alte: cation, it is not easy to see how it should prejudice the defendant in this case. No property was lost, but the witness intimates that Waite showed an improper disposition. It should be noticed that this evidence was offered, on the opening of the case, to prove the averments in the declaration, that plaintiff's bonds were lost by the negligence and want of care of the defendant. Most of this evidence does not tend to show a want of care but rather with the want of good faith in purpose and intentions. Many of the contracts of the depositors were unlike this; and in one case the cashier was specially authorized to cut off the coupons, as they became due, and give credit for them on the bank books, and the using of the coupons did not tend to show a wrongful appropriation. It would not do to prove that other depositors and customers of the bank had suffered insolence or wrong at the hands of Waite, and therefore infer this plaintiff may have suffered in some manner by the misconduct of Waite. Most of the detailed interviews between other depositors and Waite are matters inter alios and not a part of the res gestæ in issue in this case, and therefore not legal evidence in this case. If it had been offered to rebut that part of the defense, that the bonds in question were lost by robbery of the bank, some part of the testimony of the other depositors might perhaps be properly admissible, so far as any of the testimony might tend to show the bonds deposited for safe keeping, or other property in the bank, had been wrongfully abstracted or embezzled by an officer of the bank; but no recovery could probably be had on that ground under this declaration, as it has been stated to us in argument. The fact that the defendant received on deposit bonds other than the plaintiff's was, of course, properly admissible.

III. In regard to the charge of the court and the many exceptions to it, as the case must be sent back to the county court for another trial, we omit to say more than we have already said, except that on this matter of the defendant's liability, we think he was entitled to have his eleventh, twelfth, thirteenth and fourteenth requests complied with. We think, also the charge of the court that the non-production of books of the bank by the defendant might be considered by the jury to its prejudice was error. No notice had been given to the defendant to produce the books; no request for their production during the trial; no evidence in the case that there was an entry on the books touching these bonds, and the books were then in the hands of the receiver. If the plaintiff wished the books of the bank in evidence he should have called for them in some propor way, or otherwise "held his peace." And we see no ground of presumption that there were entries on said books that would have been of benefit to either party.

Judgment reversed and cause remanded.

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Where A made a proposition to erect a schoolhouse in the county which should contribute a certain sum, and B contributed to that sum: Held, the contract was one which could be enforced. The question as to whether B was released by a failure of A to complete the building in a proper time, is one for the determination of the jury. Williams v. Rogan, S. C. Tex., May 18, 1883; 2 Tex. L. Rev., 84.

2. EMINENT DOMAIN-MORTGAGED LAND- FORECLOSURE.

1. A railroad company by a warranty deed from a mortgagor of lands for railroad purposes, takes only the right and title of the mortgagor, the mortgagee being ignorant of the transaction; and in a foreclosure proceeding the company can make only the same defense that the mortgagor could. 2. And this is so although the railroad could have taken the land under the exercise of the right of eminent domain. 3. And, although the mortgagor paid the consideration received for the deeds to the mortgagee. Wade v. Hennessey, S. C. Vt., Reporter's Advance Sheets.

3. ESTOPPEL-TO DENY FORGERY.

A person can not be estopped from declaring his signature to a note a forgery merely because after plaintiff had taken the note he did not notify her that it was a forgery as soon as he knew that his name purported to be signed to it. Zell's Appeal, S. C. Pa., May 7, 1883; 40 Leg. Int., 350. FIXTURES REAL OR PERSONAL PROPERTYBUILDING ON ANOTHER'S LAND. Whether a building, erected by one person on the land of another, with the latter's permission, is real or personal property, s a question of fact depending on the actual ori mputed intention of the parties. Pope v. Skinkle, S. C. N. J.; 16 Rep., 308.

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F, G and J planned to inveigle L into purchasing eertain land. They knew he could not get a good title to it. They had been informed that he would not purchase unless that could be done. They misrepresented material facts, as to which he, being at a distance, had not equal means of information, and for a true statement whereof he had a right to rely on them. On a bill by L against F, G and J, for rescission of the contract and deed whereby F conveyed the land to L, and for repayment of $3,500, cash paid, and for surrender of his bond for $1,500, deferred payment, on the ground of fraudulent representation or false representation as to validity of title and freedom from encumbrance of the widow's dower. Held, 1. A false representation of a material fact constituting an inducement to the contract, on which the pur

chaser had a right to rely, is a ground for the rescission of the contract by a court of equity, although the party making the misrepresentation was ignorant as to whether it was true or false; and the real inquiry is not whether the vendor knew the representation to be false, but whether the purchaser believed it to be true and was misled by it into the contract. In such case, whether the false representation was innocently or wilfully made, the effect is the same on the purchaser. 2. To entitle the person making the misrepresentation to defend on the ground that the purchase was not induced by it, he must demonstrate that it was not relied on by the purchaser. 3. This is a case of actual fraud, which entitles L to relief in equity by rescission of the contract and return of the money and bond given for the land. Linhart v. Foreman, S. C. App. Va., May 3, 1888; 7 Va. L. J., 541.

6. LANDLORD AND TENANT-REMOVAL OF BUILDINGS-CONSTRUCTION OF LEASE.

A tenant whose lease in terms gives the right to remove, at the expiration of his term, buildings which he may have erected, may exercise that right within a reasonable time after his term expires. If the removal is not affected within a reasonable time, the right of removal ceases. About five months after the expiration of the prescribed term of a tenancy, judgment of restitution was awarded in summary proceedings against the tenant. The judgment not being enforced by writ, the tenant remained in possession a month longer, and then commenced the removal of a small frame dwelling-house erected by him during his term, an instruction to the jury which in effect declared that the right of removal had not been forfeited, Held, to be erroneous. One who has taken from a tenant a chattel mortgage upon a building erected upon leased land, acquires no better right than the tenant had, and cannot remove the property after the tenant's rights of removal have expired. Smith v. Park, S. C. Minn., July 25, 1883; 16 N. W. Rep. 490.

7. NEGLIGENCE-EVIDENCE-BURDEN OF PROOF

REMOTE DAMAGE.

The fact, unexplained, that a very unusual volume of sparks was thrown from a railroad engine, whereby fire was set to adjacent property, held to be evidence of negligence; it appearing also that the management of an engine has much to do with the throwing of sparks. A presumption of negligence arising under the statute, and the burden being upon the defendant to show carefulness in the management of the engine, the testimony alone of the engineer that he handled the engine very carefully," but not any differently from what I (he) generally did,'' held, not such proof of carefulness, under the circumstances, as to compel a conclusion by the jury that there was no negligence. The fire was first set to the property of one Niskern, thence to a neighboring barn, and thence to the property of plaintiff, about 60 feet from the point where the fire was first set. Held, that the injury was not remote, as a matter of law. Held, also, that the negligence of Niskern, in leaving combustible matter exposed to the danger of fire from the railroad, was not an intervening cause interrupting the legal relation of cause and effect, as between the negligence of the defendant and the burning of plaintiff's property, but rather that Niskern's negligence was concurrent with that of the defendant, either one of the wrong-doers being answerable for the conse

quences. Refusal of court to grant a continuance, and rulings upon the reception of evidence, sustained. Rule applied, that irrelevant evidence, which could not have afleeted the result, furnishes no ground for a new trial, Johnson v. Chicago etc. R. Co., S. C. Minn., July 18, 1883; 16 N. W. Rep. 488.

8. NEGOTIABLE

PAPER INDEFINITE EXTENSION

DOES NOT DISCHARGE INDORSER. A, a banking-house, held a note indorsed by B, upon which it had obtained judgment against the maker, C. A agreed with C to extend the time of payment of said note, if C would pay ten per cent. interest thereon, and continue his banking business with A. In a suit on the note by A against B: Held, that this extension of the time of payment was indefinite and did not discharge B. Subsequent to the entry of said judgment against C, and in pursuance of said agreement, C had sufficient sums of money on deposit with A to pay said note. Held, that A was under no legal obligation to apply said sums in liquidation of the note, and his omission to do so did not discharge B. Semble, that if A had had sums of money of C on deposit at the time of bringing suit against B, B could have availed himself of C's right of set-off against the bank. People's Bank v. Le Grand, S. C. Pa., May 25, 1883; 15 Lane. Bar. 57.

9. PRACTICE-JURY TRIAL-DIRECTING A VERDICT -JUDICIAL DISCRETION.

The verdict of a jury or the findings of a court upon a question of fact should not be disturbed, the evidence being conflicting, unless great injustice seems to have been done, or there is an entire want of evidence to sustain it. When the judge is clear of doubt that a verdict ought to be rendered, either for the plaintiff or the defendant, and that it would be his duty to set a contrary one aside, he ought to instruct the jury so to find. On the other hand, such a direction cannot be properly given to the jury unless the evidence is such as to leave no room for doubt that it is the duty of the judge to find accordingly. Where, conceding to all the evidence offered the greatest probative force which, according to the law of evidence, it is fairly entitled to, it is not suflicient to justify a verdict, it is the duty of the court after a verdict to set it aside and grant a new trial. There being a want of evidence to support the verdict, and no conflict thereof so far as it relates to the grievance complained of in this case, the judgment below is reversed and a new trial ordered. Finney v. N. Pac. R. Co., S. C. Dak., June 30, 1883; 16 N. W. Rep. 500.

10. REAL PROPERTY-PAYMENT OF TAXES ON LAND OF ANOTHER-ADOPTION-LIMITATIONS. Where a person pays taxes on land under the impression that he is the legal owner thereof, and the true owner adopts such payments and claims the benefit thereof, in an action by the county in which the land lies to recover such taxes, the party making such payments is entitled to be re-imbursed thereto by the owner. As, in this case, the owner's liability arose by reason of his adoption of the payments, in the defense set up by him in the action brought by the county, the statute of limitations would run from that time, and not from the date of the payment by the supposed owner of the land, and would not bar his action to recover the amount so paid. Goodnow v. Stryker, S. C. Iowa, June 12, 1883; 16 N. W. Rep. 486.

11. SUNDAY LAW-RUNNING STREET CARS-ORDINARY LABOR.

1. A horse car which is run on Sunday for the pur. pose of accommodating the public generally and earning money from whoever may see fit tɔ travel upon it, is run in violation of the Lord's Day Act, although some of the passengers are lawfully traveling. 2. A conductor of a horse car, who is performing the ordinary duties of his employment on Sunday, is both laboring and traveling in violation of the Lord's Day Act; and if, while standing on the outside step-rail of the car and leaning into the car for the purpose of collecting fares, he is injured by being struck by the car of another corporation passing on a parallel track, his illegal acts necessarily contribute to cause his injury, and preclude him from maintaining an action therefor. Day v. Highland St. Ry. Co., S. J. C. Mass., May, 1883; 16 Rep., 335.

NOTES

—“And now, Mrs. Smith," said the counsel, "will you be kind enough to tell the jury whether your husband was in the habit of striking you with impunity?" "With what, sir?" "With impunity." "He was, sir, now and then; but he struck me oftener with his fist."

-A legal gentleman met a brother lawyer on Court street one day last week, and the following conversation took place: "Well, judge, how is business?" "Dull, dull; I am living on faith and hope." "Very good; but I have got past you, for I'm living on charity."

-The Pall Mall Gazette thinks that a lady whose mode of life recently occupied the common pleas division at Dublin, deserves no little credit. She had devoted her more mature years to the study of law, and more particularly to the law of breach of promise. The novelty of her case consisted in the number of actions which she managed to run at the same time. In her last case the unsusceptible jury awarded her only $50; but on her cross-examination in that case, she confessed to having just sued another gentleman, whom she "really loved," in spite of his seventy winters, and from whom she had obtained $500 damages. In a third case she is believed to have been more successful still, having induced the defendant to compromise it by a payment of $3,000. It is perhaps in view of the enterprise of this lady and of others who are carrying on a like lucrative industry, that an English judge remarked in court the other day, that he was not at all surprised that many people advocated the abolition of actions for breach of promise.

The Central Law Journal.

ST. LOUIS, SEPTEMBER 28, 1883

CURRENT TOPICS

Lord Chief Justice Coleridge is to be in this city this week. We are informed that the matter of his entertainment while here will be in the hands of certain eminent members of the St. Louis Bar, and that nothing will be left undone to make his visit a pleas ant one. We infer that the party of the Lord Chief Justice must have found their welcome in the United States even a warmer one than they had anticipated, from the fact that it has become necessary for them to forego that part of their intended tour that lay in the Canadas. This fact seems to have caused no

little disappointment among our northern neighbors. Says the Canadian Law Times, in a recent issue: "Would you be surprised to learn that the Lord Chief Justice of England is not coming to Canada at all, notwithstanding his acceptance of our invitation? The cause is, too many engagements made by his Lordship's American hosts. There is nothing left to be done now but to put on the best face and pay the bills. The only men who can really look back on their committeelabor without regret, are the wine committee, the members of which met with regularity, frequency and hilarity, and seemed to have great difficulty in making their selections." While the Canadian Law Times says, with an infusion of bitterness in its regrets: "We join our regrets at the course things have taken, as it deprives our bar of the opportunity of showing our respect in the way intended to one who occupies so eminent a position as that of Lord Chief justice of England. The thanks of the profession are due to the committees who took so much trouble to perfect the necessary arrangement for the visit which his lordship fixed for the 12th instant. We trust that when next a Chief Justice of England comes to this Continent he will not allow any thing to stand in the way of his visiting one of the most important and not the least loyal portions of Her Majesty's Dominions." It seems to us that our Canadian brethren ought to remember, in justice to themselves as well as to his Lordship, that Vol. 17-No. 13.

his Lordship's trip to this country was announced to be one of recreation and pleasure merely, and not undertaken for the purpose of receiving vicariously the homage of Her Majesty's subjects in Canada or anywhere else, and that if he finds much in the United States that is novel and interesting, he ought to be at liberty to devote his short holiday to the enjoyment of it. While he is here the bar of this country, in deference to the fact that he is an eminent member of the judicial system of the parent country, will spare no pains and omit no courtesy to make his stay a pleasant one.

STIPULATION IN A NOTE TO PAY ATTORNEY'S FEE-CONTROL OF COURT OVER.

Suit was brought to foreclose a mortgage which contained a stipulation that in case of foreclosure, there should be taxed against the mortgagor, as part of the costs in the case, an attorney's fee of ten per cent. on the amount due on the mortgage debt. The court held the stipulation valid.1 The same court had previously held that a like stipulation in a promissory note was valid. 2

It is not the purpose of this paper to discuss the question of the validity of such contracts, but to call attention to a singular quality ascribed to them by the courts which maintain their validity. In the principal case, the court, after holding the stipulation to pay an attorney's fee of ten per cent. valid, was confronted with the fact that the fee was ex· cessive. The court thereupon proceeded to reduce the fee from $2,700, or ten per cent., the amount due by the terms of the contract, to $500, or less than two per cent., the amount which the court thought was reasonable. Fraud, accident or mistake in the contract was not claimed. The grounds of its judgment are thus stated by the court: "But the validity of the contract being admitted, counsel for the plaintiff contend that the amount of the fee has been fixed by the contract of the parties, and can not be reduced

1 Burns v. Scoggins, 17 Cent. L. J. 28; 15 Ch. Leg. N. 351; 16 Fed. Rep. 734.

2 Wilson S, M. Co, v. Moreno, 6 Saw, 35; Bank of British N. A. v. Ellis, Ib. 104,

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