me go get a man to give him an estimate on | stone planer and safely carry and convey it."

and released the planer and let it go down on the crane and moved the side which the it then undertook to carry the bed of the plaintiff at the location agreed upon; that traveler runs over on up onto the track and planer by means of the crane along the tracks then lifted the planer up again and then to the east end of the building where the pulled it on out, and just as we got out to truck on which it was intended to load the the end of the building two men were stand-planer had been placed, and when, a very ing under the traveler, one pulling the chain

thing in trust for some special object or purpose, and upon a contract, express or implied, to conform to the object or purpose of the trust. Story, Bailm. § 2.

One who delivers personalty to another for the purpose of a bailment such as we have defined is called a bailor, and the person to whom such personalty is so delivered is a bailee.

A bailor may maintain an action for damages where the subject-matter of the bailment has been misused by the bailee, or where a loss or injury to the property has occurred from the latter's neglect. 5 Cyc. 213. Where goods or chattels come into the possession of another under a bailment, it becomes and is the duty of the bailee to exercise due and reasonable care with respect to such property under the terms of the bailment.

as inside the building, and if under all the circumstances such care was exercised by the defendant, then the plaintiff cannot recover for damages to the crane or to the planer, and your verdict should be for the defendant.

If, on the other hand, you are satisfied from the evidence that the plaintiff did not assume any responsibility for the crane outside of the building, or that the defendant in the exercise of reasonable care, prudence and caution under all the circumstances knew or ought to have known that the crane could not safely be used outside of the building, then your verdict should be for the plaintiff.

[4] If your verdict should be for the plaintiff the measure of damages is the difference between the value of the property before the injury to it and the value after the injury, not exceeding, however, the sum of $471.76, with lawful interest thereon from the time of the injury to the property, to wit, the 12th day of December, A. D. 1911. Verdict for plaintiff.

v. RHOADES.

(5 Boyce, 65)

(Superior Court of Delaware. New Castle. May 21, 1913.)

1. EVIDENCE (§ 354*)-Books or ACCOUNTSTATUTORY PROVISIONS.

[1, 2] The degree of care required to be exercised is such as is reasonably necessary to prevent loss or injury to the property. If loss or damage happens to the property as the result of a failure to exercise due and reasonable care with respect thereto, that is from the want of that degree of care such as PEOPLE'S NAT. BANK OF MIDDLETOWN an ordinarily prudent man would have exercised under like circumstances, it constitutes a neglect of the duty imposed by the contract of bailment and renders the bailee liable for whatever loss or injury the bailor may have sustained by reason of such failure of duty. Ordinarily failure of duty will not be presumed. It must be proved by the plaintiff. But where property under a contract of bailment is damaged or injured while in the exclusive custody of a bailee, his servant or agent, it is incumbent upon the bailee to satisfy the jury that the injury was not occasioned by the default or neglect of himself or his servant or agent. Pusey v. Webb, 2 Pennewill, 490, 47 Atl. 701.

[3] If the removal of the planer and the use of the crane were under the exclusive control and management of the defendant, its servant, or agent, the defendant in the absence of any assumption of responsibility on the part of the plaintiff is liable for any loss or injury incident thereto; but if the plaintiff guaranteed the sufficiency of the crane including the tracks and its other equipment for the purpose of lifting and removing the planer from the building to and upon the truck of the defendant, and if this guaranty extended to the entire tracks both inside and outside of the building then the plaintiff assumed the risk and the defendant is thereby relieved from liability.

Under Rev. Code 1852, amended to 1893, p. 799, c. 107, § 11, making a book of account admissible to charge the defendant for goods sold and delivered and other matters properly chargeable in an account, but providing that cash items are not so chargeable, the books of a bank are admissible to charge the depositor with the items therein shown; the last clause of the statute not applying to such books, since the business of the bank consists almost entirely of such dealings.

[Ed. Note. For other cases, see Evidence, Cent. Dig. §§ 1432-1483; Dec. Dig. § 354.*] 2. BANKS AND BANKING (§ 150*)—ACTIONS— ADMISSIBILITY OF EVIDENCE-STATEMENT OF CONDITION.

In an action by a national bank upon an overdraft, the statement made by the bank to the comptroller, subsequent to the time the defendant was notified of the overdraft, which due the bank, had some probative force, and was statement showed the amount of the overdrafts therefore relevant and admissible.

[Ed. Note.-For other cases, see Banks and Banking, Cent. Dig. §§ 455-464%; Dec. Dig. § 150.*]

3. EVIDENCE (8 174*) - DOCUMENTARY EVIDENCE-PUBLISHED REPORTS.

The contents of the statement of the condition of a bank, which is required by law to be published in a newspaper, may be proved by the introduction of a paper containing the report, since every such paper is itself an original, and

not a copy.

[Ed. Note. For other cases, see Evidence, Cent. Dig. §§ 561-564, 566–569; Dec. Dig. { 174.*]

In other words, if the crane was guaranteed to lift and carry the planer both inside and outside the building, or if the defendant was induced by the plaintiff to believe and did believe that the crane would, in the exercise of reasonable care, prudence and cauA depositor, when he deposits money in a tion, safely carry the planer outside as well bank, becomes the creditor of the bank, and the

4. BANKS AND BANKING (§ 138*)—DEPOSITSRELATION BETWEEN BANKER AND DEPOSITOR.

1

While there can be no doubt, and it has often been decided by the court, that in a merchandise business cash items are not such items as are properly chargeable in a book account, yet we think when the business is It is the duty of the jury to consider all one of banking, where the commodity dealt the evidence in the case, whether it be oral, pub-in between the depositor and the bank virtulished, or documentary.

ally is cash, then it does constitute an item properly chargeable in a book account. comes within the provision of that part of the statute which permits "other matters In an action to recover the amount of an properly chargeable in an account" to be adoverdraft at a bank, the jury should find a ver-mitted in evidence, and it does not fall withdict for the party on whose side the evidence preponderates; and by the "preponderance of testimony" is meant the greater weight of the evidence, and not necessarily the greater number of witnesses.

At the trial the checks and notes drawn by fice.

copy of the said newspaper, which was of a date subsequent to the time when the defendant was notified of his overdraft, containing a publication of the report referred to, and asked the following question:

Q. Is that a correct publication of the report sent you by the People's National Bank of Middletown, Del.?

(Objected to by Mr. Sanborn, of counsel for defendant, on the ground that if the publication referred to was a report of anything to be offered in evidence, it ought to be the original report, and not a copy of it; that the original was the best evidence, and that under the well-settled practice the original should be produced, and that a copy could only be introduced when the absence of the original was accounted for by being lost or destroyed.)

"It is contended, however, that the publication was not admissible because it was merely a copy. But it is only a summary of the report made to the treasurer which is by section 12 of article 11 of the Code required to be published in some newspaper published in the county where the bank is located, and it is not necessarily a copy of the report made to the treasurer. Such publications are intended for the benefit of the public, as Dr. Atkinson well said, and it would be difficult to prove the authenticity of a statement so published in a more definite way than was done in this case-being proven by the president, who had attested it. It cannot be said that such a publication is a copy in the sense that there is an original which must be produced instead of the copy, for in such cases every publication shown to be authentic and

RICE, J. Does not the law require that authorized is an original. We are of the this statement shall be published? opinion, therefore, that there was no error," etc.

Mr. Sanborn: I think it does; but the published statement may not be a true and correct copy of the original, and the best evidence is the original certificate which is on file in the Comptroller's office of the United States, and could easily be produced.

The requirement of the law in this respect is twofold: First, it requires a copy of the original to be sent to the department at Washington; and second, it requires the bank to perform a duty to the public. That duty is the publication, not perhaps of a full copy of the report, but at least a summary of the report, in a newspaper in the county where the bank is located. They use the newspaper as their agent to apprise the public of the standing of the bank, as made in the report to the authorities at Washington. And therefore we think that every authorized and authentic newspaper publication of that report so published by the bank to apprise the public is, itself, an original copy. overrule the objection.

We

But there is a broader ground that I wish to urge against the introduction of evidence of this character. Whether the report of the condition of the bank is true or not in respect to the overdraft, it has no relevancy or bearing upon the issue in this case, which is, whether or not there has been an overdraft in this bank by this defendant. The unimpeached evidence introduced thus far of the books and the records in the case, and the checks of the defendant, shows that there was an overdraft and that these books are correct. Therefore, whether the bank officer failed in his duty or not in making a correct RICE, J. (charging the jury). Gentlemen statement of the overdrafts at the period of the jury: The dispute in this case arises mentioned in the report, has no bearing upon over the alleged overdrawing by the defendthe question at issue involved in this case; ant of his account in the People's National furthermore, there has been no proof that Bank of Middletown, Del., a corporation exthis is a true and correct copy of the orig-isting under the Laws of the United States, inal required by the law to be filed at Washington.

Mr. Handy contended that every publication in a newspaper of such a nature was for the information of the public and was an original, and admissible in evidence as such, citing Marine Bank v. Stirling, 115 Md. 99, 80 Atl. 736.

RICE, J. (delivering the opinion of the court). [2] There are two objections to this question, first, on the ground of irrelevancy, that the matter to be disclosed by the question is not material.

We think this matter has some probative force, and that it is a proper matter for consideration by the jury, who may give it the probative force they believe it is entitled to. [3] On the second point raised, we find in 115 Maryland, in the case of Marine Bank v. Stirling, on page 100, 80 Atl. 739, in the opinion of the court, the following:

1

the plaintiff. The action is in assumpsit and the plaintiff filed its declaration covering the common counts of goods sold and delivered, work and labor done, money loaned and expended for the use of the defendant, money had and received, and money due and owing upon an account. There has also been filed by the plaintiff a bill of particulars setting forth checks and notes paid by the plaintiff for the defendant and charged to his account, covering a period of time from November 28, 1906, to March 29, 1912, inclusive, and likewise setting forth deposits, during the same time, made by the defendant in the National Bank of Middletown and credited to his account. It is claimed by the plaintiff that the amount of the payments made by the bank on the defendant's account, upon his orders, exceeds the amount of the deposits, made by him, in the sum of $1,457.43. It is this amount of $1,457.43 that the plaintiff claims

the defendant is now indebted to it and for the recovery of which this suit is brought.

To the declaration of the plaintiff the defendant filed pleas of non assumpsit, payment, set-off and statute of limitations, and against the plaintiff's claim he contends that not only has he not overdrawn his account in the bank, but that he has in the plaintiff bank a balance in his favor in the sum of $500.

September, 1911, that one of his checks, to the amount of $177.54, had been presented to it for payment and the plaintiff had not at that time any funds of the defendant in its hands to pay said check, and the defendant promised the officers of the plaintiff that if they paid the check he would reimburse the bank, if the plaintiff pursuant to said promise paid said check and the defendant did not have funds in the hands of plaintiff to pay the same, then it is entitled to recover the amount so paid.

[7] When the plaintiff bank paid the checks of the defendant drawn upon the said bank, the presumption of law is that the defendant

[4] The relation of banker and depositor is the relation of debtor and creditor. The depositor when he deposits money in a bank becomes the creditor of that bank and the bank becomes his debtor for the amount of money deposited. The depositor is entitl-had funds in the bank to meet checks drawn ed to draw orders by checks, drafts or notes, for the payment of money, upon the bank and the bank, if indebted to the drawer of the order in an amount equal or in excess of that appearing upon the order, must pay it upon presentation for payment, and for any balance due the depositor the bank is the debtor for that balance.

[5] When the depositor draws upon the bank in excess of the amount the bank is indebted to him, and the bank honors the order and pays it, such payment by the bank is a loan made to the depositor, and if the loan is not made good the bank may then sue for the repayment of the loan, upon the implied promise on the part of person to whom the loan was made, to repay the same.

On the other hand, when the bank is indebted to the depositor in an amount exceeding that appearing upon his order presented, the bank must pay it if the order is regular in all respects.

In the present case the question for you to consider and determine is whether or not on the 29th day of March, 1912, the defendant, George B. W. Rhoades, was overdrawn in his account in the People's National Bank of Middletown, Del., the plaintiff in this case, and if overdrawn at that time, then you must determine in what amount, and if you should determine that he was not at that time overdrawn in his said account, then there is nothing further for your determination.

by him which the said bank is shown to have paid. Such presumption is not conclusive, but it is open to the plaintiff to rebut the presumption of funds in hand by the production of evidence satisfactory to the jury. In considering all the evidence in this case the jury should take into consideration this presumption and also the evidence to rebut it.

[8, 9] It is not only proper that you should, but it is your duty to, consider all the evidence in the case, whether it be oral, published or documentary, and after considering all the evidence you should find a verdict for the party on whose side the evidence preponderates. By preponderance of testimony is meant the greater weight of the evidence and not necessarily the greater number of wit

nesses.

If after considering the evidence in connection with the law as the court has stated it to you, you find that the defendant was overdrawn, as before stated, in his account. in the plaintiff bank your verdict should be for the plaintiff and for such amount as you may find he was overdrawn on March 29, 1912, and now remains unpaid, and if you find that the defendant was not overdrawn as aforesaid then your verdict should be for the defendant.

(Further charge in reply to question by jury as to what they are called upon to de termine:)

The first question for you to determine is If you believe from the evidence that the whether or not the defendant is indebted defendant overdrew his account in the Peo-to the bank in any amount, and if so then ple's National Bank, and that the checks and notes overdrawing his account were paid by said bank to his use, the plaintiff is entitled to recover in this action the amount of such overdraft remaining due and unpaid by the defendant.

And if you believe from the evidence that the plaintiff paid checks of the defendant, and paid discounted notes for the defendant to an amount exceeding the total amount of his deposits, the plaintiff is entitled to recover the amount paid by it, for the use and benefit of the defendant, in excess of his total de posits and which remains unpaid by him.

[6] If, gentlemen of the jury, you believe from the evidence that the plaintiff notified

for what amount, and if you find him indebted, then your verdict should be for the plaintiff for the amount of that indebtedness. If you find that he is not indebted to the bank at all, then your verdict should simply be for

the defendant.

(Exception by both parties.)
The jury disagreed.

After the jury had retired they sent in to the court the following note:

"To the Honorable Court: Are we at liberty to accept the amount, $1,457.43, as agreed upon by the opposing attorneys, as correct and final? J. F. Halloran, Foreman.

"This is to save us the time and trouble of