Platt v. Beebe. evidence a certificate of the Comptroller of the Currency approved and concurred in by the Secretary of the Treasury reciting the existence of the facts necessary to authorize him to appoint a receiver of the said bank, and appointing the plaintiff such receiver. Judgment for the plaintiff was affirmed by the Supreme Court at General Term, and defendant appealed. Erastus Cooke, for appellant. A. M. Cunningham, for respondent. GRAY, C. The plaintiff's appointment to the receivership of the bank is conceded; the validity of the appointment is questioned; and is involved in the motion made by the defendant at the close of the plaintiff's evidence for the dismissal of his complaint, upon the ground stated, viz., that there was no evidence of the facts authorizing his appointment. The evidence of the facts consisted of a statement contained in a certificate made by the Comptroller of the Currency, under an act of Congress to provide a National currency and for its security and redemption, approved June 3d, 1864. 13 U. S. Stat. at Large, 99, § 50. By which it is simply required of the Comptroller that he be satisfied of the existence of the facts authorizing him to make such appointment; to proceed as he did in this case, and with the concurrence of the Secretary of the Treasury, and make it. No objection was made to receiving the certificate in evidence, or that it was not evidence that the Comptroller was satisfied of the existence of the facts stated in it, but rather upon the ground that the facts alleged in it were not established by competent legal evidence on the trial, as in other ex parte proceedings, in which an officer, upon proof of a special state of facts, is given authority to act. These banks are located in different parts of the United States, most of them at a great distance from the city of Washington and from each other, and all under the supervision of officers residing in that city; and among them, to a great extent, the Comptroller of the Currency, who for the purpose of protecting the public, and among them those who, confiding on the solvency of the banks, have business with them, is under the necessity of taking from such of them as fail to comply with the law, their management, and confiding them to the care of a receiver; and sometimes, and per Platt v. Beebe. haps often, under an emergency, when, owing to the distant location of the bank from the city of Washington, and where to a moral certainty he is satisfied that the causes exist for placing them in the custody of a receiver, when strictly legal evidence of the fact is not attainable in time to save those interested from sudden misfortune. The act, in its peculiarity of expression, is framed to meet such an emergency, and authorizes the Comptroller, when satisfied of the existence of a given state of facts, to make the appointment. Such words, as upon proof or evidence, indicating it to be the design of the framers of the law that it should be upon legal proof or evidence of the facts, are carefully omitted; and the Comptroller is left to be satisfied as best he can be, under the peculiar circumstances of each case, of the existence of the facts and the necessity of his action. The question whether Crawford notified the bank that the note was for the drawer's benefit, is put at rest by the finding of the referee that he did not. It is claimed that the bank, of whose assets the plaintiff was receiver, held the note as collateral security for the payment of the sum drawn by Crawford. I do not so understand the transaction. The amount paid to him upon his drafts was on account of and against this note, left for discount, and was so much paid by the bank for the note. It was a discount of the note to the amount paid on Crawford's drafts against it. But if it was otherwise, and the note left as it was, and drawn against, was a mere pledge for the sum paid upon the drafts, the note, being commercial paper, the bank was not subject to the rule regulating the rights and liabilities of a pledgee, but is regarded as a holder for value. Bank of New York v. Vanderhorst, 32 N. Y. 553, 559, 560. The judgment should be affirmed. All concur. Judgment affirmed. First National Bank of Lyons v. Ocean National Bank. FIRST NATIONAL BANK OF LYONS V. OCEAN NATIONAL BANK, appellant. (60 New York, 278.) National bank - Liability for deposits for safe-keeping – Ultra vires. The cashier or other executive officer of a National bank has not, in the absence of special authority from the directors or of a usage or practice so to do, power to receive, on behalf of the bank, property for safe-keeping. Quere as to the power of a National bank to become a bailee of property either gratuitously or for hire.* A gratuitous bailee is only liable for gross negligence; he is not bound to any special or extraordinary measures to protect the property, and the negli gence with which he can be charged, or which is the proper subject of evidence, is only that which is connected with and directly contributes to the loss. In an action against a bank for the loss of property which it had received as gratuitous bailee, held, that the declaration and admissions of the president, tending to show negligence on his part, made after the transaction, and when not acting within the limit of his authority, were not binding upon the bank. A CTION to recover the value of United States bonds delivered by plaintiff to defendant for safe-keeping, and alleged to have been lost through the defendant's negligence. Both the plaintiff and the defendant were banking corporations, organized under the act of Congress of 1864 (13 U. S. Stat. at Large, 99), the plaintiff being located in Lyons, Iowa, and the defendant in the city of New York. The plaintiff's evidence tended to show that it became a depos itor with defendant in consequence of a circular signed by the defendant's cashier, soliciting the accounts of the banks to which it was sent, offering to allow four per cent interest on daily balances, to pass cash items to the credit of the correspondent on day of receipt, without charge, and to buy and sell government bonds, gold and stocks, without charge. The bonds in question were received and receipted for, part by defendant's cashier and part by its assistant cashier, as held subject to plaintiff's order. A portion of them were purchased by defendant for plaintiff. Letters from defendant's cashier showed that on three occasions the coupons were, by plaintiff's directions, cut from the bonds and the proceeds * See Wiley v. First National Bank, post, and note. First National Bank of Lyons v. Ocean National Bank, credited to plaintiff's account. No charge was made against plaintiff for purchasing the bonds or collecting the coupons. Defendant's banking-house and vault was broken open by burglars, and the bonds, with a large amount of other securities and money belonging to defendant, stolen. The further facts appear sufficiently in the opinion. Judgment was entered on a verdict in favor of the plaintiff, which was affirmed at General Term in the Common Pleas of New York city. Defendant appealed.. F. N. Bangs, for appellant. Lucien Birdseye, for respondent. ALLEN, J. The point was distinctly made at the close of the plaintiff's evidence, and renewed at the close of the trial, that there was no evidence that the corporation defendant had made any contract of bailment with the plaintiff, or assumed any obligation as bailee of the plaintiff's property, and that there was no evidence that the officers of the corporation had power or authority to make, in behalf of the corporation, any contract of bailment, or assume any liability as a custodian and bailee of the securities of the plaintiff under the circumstances. This is entirely distinct from the very serious question back of it, and to be met, if this position of the counsel for the defendant is not well taken, that the defendant had not, power or authority to assume the duties and obligations of a naked bailee of property, whether gratuitously or for hire, and that the contract of bailment, if one was made by or in behalf of the corporation, was ultra vires, and imposed no legal obligation upon the corporation as such. Or, if the power to become the bailees or depositaries of property for safe-keeping be conceded, a question may arise as to the contract implied, and the extent of the obligation assumed by the mere receipt of, and placing the property in the vaults of the bank in the absence of a special contract, in view of the special purposes for which the corporation was created, and the limited powers expressly conferred. The bonds in question were the absolute property of the plaintiff. The defendant had no special property in them. It had no lien upon them, and they were not deposited or held as a security for or in connection with the business of the defendant as a banking corporation, or its transactions with the plaintiff, either present First National Bank of Lyons v. Ocean National Bank. or prospective. If a bailment to the defendant, it was a simple deposit without interest in, or compensation to, the depositary. It was a naked bailment of property to be kept for the bailor without recompense, and to be returned when the bailor should require it. This is the legal definition of a deposit of this character. Story on Bailments, § 4. The relation of bailor and bailee imports a trust, and a contract, express or implied, to re-deliver the property when the purposes of the trust shall be accomplished, and the contract is supported, in the case of a naked bailment and simple deposit, by the yielding up of the present possession or custody by the bailor, upon the faith of the engagement of the bailee to re-deliver. Story on Bailment, § 2 and note 4, and cases cited. The duties and obligations of a bailee cannot be thrust upon one against his consent, but must be voluntarily assumed by the party himself, or some authorized agent, as in every obligation founded upon contract, express or implied. Α corporation can only act by agents, and it follows that it cannot be subjected to the responsibilities and liabilities of a bailee, except by the acts and contracts of its agents duly authorized, or by agents acting within the scope of their general powers and apparent authority under circumstances which would estop the corporation from denying that their real was not co-extensive with their apparent authority, or that they were not authorized to exercise the powers usually delegated to like officers and agents in other corporations of the same character. There is an entire absence of evidence that it was the habit and practice of the defendant to receive special deposits and valuable property or securities for safe-keeping, or that they had done it for any other person or corporation, except in the case of O'Kell, a tenant, occupying a part of the same building, as its lessee. It would seem that he had been in the habit of depositing a small trunk, used in his daily business, in the vault of the defendant for safe-keeping over night. It was not proved that the directors, or any one of them, had ever sanctioned the receipt of special deposits of any kind for safe-keeping, or that they had any knowledge of the deposit of these securities, or of any other like deposit. If it be assumed that the circular issued by the officers of the defendant, inviting the correspondence of other banks, was known to or authorized by the directors, it presented no evidence of a consent to become a general bailee and depositary for their correspondents. A proffer to buy and sell securities comes far short |