Williamsport National Bank v. Knapp. The original action was debt on section 5198 of the Revised Statutes, brought in the Circuit Court of the United States for the Western District of Pennsylvania, against a National banking association established within that district, to recover twice the amount of interest, at the rate of nine per cent, received by the defendant upon the discount of certain promissory notes. Section 5197 prohibits any such association from receiving upon such a discount a higher rate of interest than is allowed by the laws of the State in which the bank is established, except that where, by the laws of the State, "a different rate is limited for banks of issue organized under State laws," the rate so limited is allowed. The answer denied that the defendant owed the sums demanded, or had violated any provision of the National Banking Act. The record showed that at the trial certain oral testimony, therein stated, was offered by the plaintiff in support of their allegations, was objected to by the defendant, the objection was overruled, and the defendant took exceptions. The record also showed that the defendant, for the purpose of proving, that at the time of the discounts in question, there were banks of issue, organized under the laws of Pennsylvania, allowed to receive interest on discounts at as high a rate as that received by the defendant, offered in evidence charters from the Legislature of Pennsylvania of a number of banks (the titles of which were given), some of which were thereby expressly authorized to receive interest at such rates as might be agreed upon by the parties; and also offered in evidence a number of other bank charters, in connection with evidence that some of the banks issued notes of circulation, commonly called bank notes, without special authorization of law, in order "to show that incorporated banks and banking companies in Pennsylvania issued notes of circulation, commonly called bank notes, under their respective general corporate powers, and not by virtue of any special authorization of law to issue such notes; and to show that incorporated banks and banking companies in Pennsylvania, not specially prohibited from issuing such notes, are banks of issue within the meaning of the act of Congress, by virtue of their incorporation and organization as banks or banking companies, and without any special anthorization of law to issue such notes;" and the evidence so VOL. III—-24. Williamsport National Bank v. Knapp. offered by the defendant was objected to by the plaintiffs, and admitted subject to their exception. The record further showed that a verdict was returned for the plaintiffs, and that the circuit judge and the district judge signed a certificate that they were opposed in opinion upon the following questions arising at the trial: "First. Whether, under the evidence, the defendant was legally authorized to take, receive, reserve and charge on the loans or discounts made for the plaintiffs upon the notes, bills of exchange and other evidences of debt, offered and received in evidence on the part of the plaintiffs, at the rate of interest charged by the defendant and paid by the plaintiffs, as shown in evidence, to-wit: at the rate of nine per centum per annum. "Second. Whether, under the laws of the State of Pennsylvania, a rate of interest or discount was limited for banks of issue, organized under State laws, at a rate equal to or exceeding that charged by the defendant to the plaintiffs, and whether the defendant was, under the evidence and the acts of Congress, allowed to take, receive, reserve and charge the rate so limited for the discounts made for the plaintiffs, to-wit: at the rate of nine per centum per annum. "Third. Whether the decision of the Supreme Court of Pennsylvania, that there are no banks, nor have there been any such banks, in Pennsylvania, authorized to take and receive interest at a greater rate than six per cent,' is binding and conclusive upon the judgment of the courts of the United States in determining the construction and effect in Pennsylvania of the acts of Congress commonly called the 'Currency Acts,' and especially sections 5197 and 5198 of the Revised Statutes of the United States. "Fourth. Whether, upon the whole evidence, the plaintiff was entitled to recover." Judgment was rendered for the plaintiffs in the sum of $2,150.38, and the defendant sued out this writ of error. Wm. H. Armstrong and C. La Rue Munson, for plaintiff in error. H. C. McCormick and H. C. Parsons, for defendants in error. Williamsport National Bank v. Knapp. GRAY, J. Assuming, what does not appear in the record, that the evidence stated in the bills of exceptions was all the evidence introduced at the trial and referred to in the certificate of divieion, that certificate is clearly insufficient to support the jurisdiction of this court. Under the acts of Congress, authorizing questions arising on a trial or hearing before two judges in the Circuit Court, and upon which they are divided in opinion, to be certified to this court for decision, it has always been held that each question certified must be one of law, and not of fact, nor of mixed law and fact, and that it must be a distinct point or proposition, clearly stated, and not the whole case, nor the question, whether upon the evidence the judgment should be for one party or for the other. Saunders v. Gould, 4 Pet. 392; U. S. v. Weeth v. New England Mortg. Security Co., 106 U. S. 605; California Paving Co. v. Molitor, 113 id. 609 615-617; Waterville v. Van Slyke, 116 id. 699-704. Bailey, 9 id. 267; Tested by these rules, the first and second questions certified, each being whether "under the evidence" the defendant was authorized to receive interest at a certain rate, as well as the fourth question, "whether, upon the whole evidence, the plaintiff was entitled to recover," are not questions which this court is required of authorized to answer. The third question is equally irregular and insufficient. Instead of being clearly and distinctly stated, it is quite obscure and ambiguous; for it does not show whether the supposed decision of the Supreme Court of Pennsylvania, "that there are no banks, nor have there been any such banks, in Pennsylvania, authorized to take and receive interest at a greater rate than six per cent,' was based upon matter of law, or matter of fact, or both. The latest reported decision of that court, to which the learned counsel for the plaintiff in error referred to explain this question, affirmed a ruling of a lower court, that "in fact and in law, there is no bank of issue in Pennsylvania authorized to charge a rate of interest in excess of the legal rate;" and said nothing upon the question whether there ever had been any such banks. Lebanon Nat. Bank v. Karmany, 98 Penn. St. 65, 73, post-. Neither the amount of the judgment below, nor the certificate of division, being sufficient to give this court jurisdiction, it nec Wylie v. Northampton National Bank. essarily follows, as was held in Weeth v. New England Mortg. Security Co. and Waterville v. Van Slyke, above cited, that the writ of error must be dismissed. WYLIE V. NORTHAMPTON NAT. BANK.* (119 U. S. 361.) Deposits-special — loss by burglary — negligence. Where a National bank was broken into by burglars, and property belonging to it and to others was taken therefrom, the bank may take measures to recover its own; and it may lawfully undertake to act also for others thus jointly concerned with itself; and want of proper diligence, skill, and care in the performance of such an undertaking would reuder it liable to respond in damages for failure. The evidence examined, and held not sufficient to require its submission to the jury. N error to the Circuit Court of the United States for the Southprop erty taken by burglars. Judgment for defendant. pealed. George H. Adams, for plaintiff in error. W. G. Peckham, for defendant in error. Plaintiff ap MATTHEWS, J. This was an action at law originally commenced. by the plaintiff in error in the Superior Court of the city of New York, and removed by the defendant into the Circuit Court. The complaint alleged that on the 26th day of January, 1876, the plaintiff was the owner of eight first mortgage bonds of the Pacific Railroad Company of Missouri, for $1,000 each, with coupons attached, which at that time were in the custody of the defendant for safe-keeping under an agreement by which the defendant agreed to keep the same safely and deliver them to her upon demand; but that on that day the defendant's bank was broken into by *Affirming 15 Fed. Rep. 428. Wylie v. Northampton National Bank. burglars, and a large amount of property taken by them therefrom, amounting in value to over $1,600,000, consisting chiefly of bonds, stocks and other similar securities, with some money, the property in part of the bank and of others, and including the plaintiff's bonds and coupons; and it is averred that the said loss by robbery occurred in consequence of a want of due care on the part of the defendant. It is further alleged by the plaintiff that shortly after the said loss "the plaintiff was intending and was about to enter in good faith upon negotiations and to take measures for the recovery of her said bonds and coupons from whomsoever then possessed the same; that thereafter and about the time last mentioned, the defendant represented to the plaintiff that the defendant was about to take measures for the recovery of the property so taken, and expected to recover all of said property in bulk, or the greater part thereof, from the persons taking the same as aforesaid, by means of rewards and other measures, and was undertaking, or about to undertake, negotiations with said person or persons, to the plaintiff unknown, for accomplishing the same; and the defendant then further represented that it expected to receive such restoration if it was allowed to act therein in behalf of the plaintiff, and in behalf of other depositors and losers who were in the same position as the plaintiff; and the defendant further represented that it, the said defendant, was in a better position to negotiate for the restoration of said property as aforesaid, and could accomplish the same at less expense, than if the plaintiff and other individuals, owners, and losers of said property were to act in that respect independently; that thereupon, and at or about the time last stated, the defendant requested the plaintiff to permit and authorize the defendant to act for her and in her behalf in the respects mentioned, and in such negotiations, for the recovery of her said bonds and coupons, with the bonds, stocks, securities, and other property of the defendant and other owners and losers of property as aforesaid, and further requested the plaintiff not to undertake negotiations with, or offer rewards or other inducements to, the persons who had taken or were in possession of said bonds or other property, as aforesaid, for the return of the same; that thereupon, and relying upon such repre |