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of a juryman or of the judge. But there is, presumably, no necessity for the final adjournment of the court before the fixed limit of the term is reached. If such an adjournment is had pending the trial of a criininal cause, the necessity must exist and should appear, in order to rebut the presumption of jeopardy arising from the fact of the trial. If this were otherwise, the court might be adjourned immediately after the jury had retired from the box, and before an agreement was possible. The right which the constitution intends to assure to the accused when put upon trial — to either have a verdict rendered in his case, or go free — would be made to depend upon the arbitrary discretion of the judge.

Mr. Bishop, in his work upon criminal law, after an exhaustive review of the authorities, and a discussion of the whole subject, arrives at these conclusions: “ Whenever, after a trial has commenced, whether for misdemeanor or felony, the judge discovers any imperfection which will render a verdict against the defendant either void or voidable by him, he may stop the trial, and what has been done will be no impediment in the way of future proceedings. Whenever, also, anything appears showing plainly that a verdict cannot be reached within the time assigned by law for the holding of the court, he may adjudge this fact to exist, and on making the adjudication matter of record, stop the trial, with the like result as before. But without the adjudication, the stopping of the trial operates to discharge the prisoner. In other words, when the record shows the defendant to have been in actual jeopardy, he is protected thereby from further peril for the same alleged offence. But when it shows also, in addition to this, something which disproves the peril, it does not show the peril, whatever else it shows, and therefore it does not protect him.” 1 Bish. Cr. Law, section 873.

These views are fully justified by the authorities cited in their support, and the conclusions cannot well be avoided. We are of the opinion that the discharge of the jury at the first trial of this cause was equivalent to a verdict of acquittal, and it only remains to determine in what manner the defendant should be permitted to avail himself of the right.

By section 1016 of the Penal Code, three kinds of pleas to an indictment are provided for: First, guilty ; second, not guilty ; third, a former judgment of acquittal or conviction of the offence charged. The defence, that the defendant has been before in jeopardy, if it be, as we hold, sufficient, must be taken advantage of under one or the other of these pleas. It would seem that the more convenient method of interposing a defence of this nature would be by a plea analogous to a plea of former acquittal, of which it is said to be the equivalent. But we find no authority in the statute for a plea of this kind. The case falls rather within the purview of section 1020 of the Penal Code, which declares that “all matters of fact tending to establish a defence, other than that specified in the third subdivision of section 1016, may be given in evidence under the plea of not guilty.” We hold that under the plea of not guilty the evidence of the facts attending the first trial, as disclosed by the record, should have been received. For the error of the court in rejecting this evidence, the judgment must be reversed and the cause remanded for a new trial, and it is so ordered.

February 6.

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Chief Justice WALLACE, dissenting. The former trial of this cause took place in June, 1872, and the case was given to the jury on the 30th of July, and on the same day they returned into court for further instructions, which, being given, they again retired to deliberate upon their verdict, but on the same day reappeared in court and stated their inability to agree upon a verdict, but the court then declined to discharge them. Their deliberations continued during the 31st of July and until the first day of August, on which day they again appeared in court and announced to the court that they could not agree upon a verdict and that they saw no chance for an agreement. The court offered to repeat to them the instructions already given, but they, not desiring to again hear the instructions, were again sent out for further deliberation. On August 2d, it having been reported to the court that one of the jurors was too ill to serve further, the jury were again brought into court, when, it appearing that the indisposition of the juror was not of a serious character, the jury were again sent out for further deliberation. At 7.30 P. M. of the same day, the jury not having returned a verdict, the court sent the sheriff to inquire of them if they had yet agreed upon a verdict, and that officer reported to the court that the jury " had not and could not agree on a verdict.” Upon receipt of this information the court was adjourned for the term, which adjournment, of course, operated a discharge of the jury. Undoubtedly it would have been better practice to have called the jury into open court, and there discharged them in the due and usual form of law, and had that been done, and had the court entered it of record that they were discharged, because of their inability to agree upon a verdict, I do not understand that, in the view of my associates, such a discharge would have operated as a bar to further proceedings on the indictment by the empanelling of another trial jury, for the jury had deliberated of the verdict from the 30th of July to the 2d of August, inclusive — some four days in all. Their discharge under such circumstances, if regularly made and entered of record, could not have been rightfully complained of by the prisoner, nor would it have operated to free him from further pros ecution before another jury thereafter.

If, then, upon these facts equally transpiring at the first trial, and which were then entered and now appear of record, the district court would have been justified in discharging the jury by an order entered in due form, I think that the prisoner cannot allege jeopardy merely because of the irregular manner in which the discharge of the jury was effected in this case. The substance of the whole proceeding is, in short, that it distinctly appeared to the district court that the jury had not agreed after some four days' actual deliberation, and it further appeared that at the time of the discharge of the jury there was no probability of their agreeing, and I am of opinion that an order made under these circumstances, which operated their discharge, must be considered to have been made (even though not 50 expressed in form) because of their ascertained inability to agree upon a verdict, and that, upon settled principles of law, a discharge of the jury under such circumstances should not operate an acquittal of the prisoner.

I must, therefore, dissent from the opinion of my associates upon this point.

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The plaintiffs deposited bonds with the defendants for safe keeping, for the benefit

of the plaintiffs and without compensation. The bonds were stolen by the defendants' teller. "Held, that the defendants were not liable except for gross negligence; and that the fact that the teller had been abstracting the funds of the bank for two years and to the amount of $26,000, and had kept false accounts, and was supposed to remain in his employment after it was known that he had dealt in stock, did not constitute such negligence as to render the defendants liable.

ERROR to the court of common pleas of Chester County.

AGNEW, C. J. As early as the case of Tompkins v. Saltmarsh, 14 S. & R. 275, it was decided that a delivery of a package of money to a gratuitous bailee, to be carried to a distant place and delivered to another for the benefit of the bailor, imposes no liability upon the bailee for its safe keeping, except for gross negligence. In that case, the package was stolen from the valise of the bailee, at an inn in the course of his journey, after it had been carried to his room, in the usual custom of inns in that day (1822). The same rule is laid down by Justice Coulter, arguendo, in Lloyd v. West Branch Bank. He says, a mere depositary, without any special undertaking, and without reward, is answerable for the loss of the goods only in case of gross negligence, which, in its effects on con tracts, is equivalent to fraud. He further remarks, that the accommodation here was to the bailor, and to him alone, and he ought to be the loser, unless he in whom he confided, the bank or cashier, had been guilty of bad faith in exposing the goods to hazards to which they would not expose

their own. These rules he derives from Cogg: v. Bernard, 2 Lord Raymond, 909 (1 Smith's Lead. Cas. part I. 369, ed. 1872); and Foster v. Essex Bank, 17 Mass. 501. In the latter case, the law of bailment was exhaustively discussed by Parker, C. J., and the conclusions were as above stated. It was further held that the degree of care which is necessary to avoid the imputation of bad faith, is measured by the carefulness which the bailee uses towards his own property of a similar kind. When such care is exercised, the bailee is not answerable for a larceny of the goods, by the theft even of an officer of the bank. It is further said, that from such special bailments, even of money in packages, for safe keeping, no consideration can be implied. The bank cannot use the deposits in its business ; and no such profit or credit from the holding of the money can arise as will convert the bank into a bailee for hire or reward of any kind. The bailment in such case is purely gratuitous, and for the benefit of the bailor, and no loss can be cast upon the bank for a larceny, unless there has been gross negligence in taking care of the deposit. These appear to

. be just conclusions, drawn from the nature of the bailment. The rule in

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this State is stated by Thompson, C. J., in Lancaster Bank v. Smith, 12 P. F. Smith, 54. He says : The case on hand was a voluntary bailment, or, more accurately speaking, a bailment without compensation, in which the rule of liability for loss is usually stated to arise on proof of gross negligence.” That case went to the jury on the question of ordinary care, and hence the observation of the chief justice, that the same idea was sufficiently expressed by the judge below in using the words, want of ordinary care. It may be proper, however, to say, that want of ordinary care is applicable to bailees with reward, when the loss arises from causes not within the duty imposed by the contract of safe keeping, as from fire, theft, &c., and hence is not the measure in such a case as that before us, which we have seen is gross negligence.

That case was one where the teller of the bank delivered the deposited bonds to a stranger, calling himself by the name of the bailor, without taking sufficient care to be certain that he was delivering the package to the right person, and the bank was held responsible for his negligence. There the teller, in giving out the deposit, was acting in his official capacity, and hence the liability of the bank. The case before us now is different, the bonds being stolen by the teller, who absconded. This teller was both clerk and teller ; but the taking of the bonds was not an act pertaining to his business, as either clerk or teller. The bonds were left at the risk of the plaintiff, and never entered into the business of the bank. Being a bailment merely for safe keeping, for the benefit of the bailor, and without compensation, it is evident the dishonest act of the teller was in no way connected with his employment. Under these circumstances, the only ground of liability must arise in a knowledge of the bank that the teller was an unfit person to be appointed, or to be retained in its employment. So long as the bank was ignorant of the dishonesty of the teller, and trusted him with its own funds, confiding in his character for integrity, it would be a harsh rule that would hold it liable for an act not in the course of the business of the bank, or of the employment of the officer. There was no undertaking to the bailor that the officers would not steal. Of course there was a confidence that they would not, but not a promise that they should not. The case does not rest on a warranty or undertaking, but of gross negligence in care taking. Nothing short of a knowledge of the true character of the teller, or of reasonable grounds to suspect his integrity, followed by a neglect to remove him, can

, be said to be gross negligence, without raising a contract for care higher than a gratuitous bailment can create. The question of the bank's knowledge of the character of the teller was fairly submitted to the jury.

But it turned out that after the teller absconded his accounts were found to be false, and that he had been abstracting the funds of the bank for about two years, to an amount of about $26,000.

It was contended that the want of discovery of the state of his accounts for such a length of time, especially as he had charge of the individual ledger, was such evidence of negligence as made the bank liable.

The court negatived this position, and held that the bank was not bound to search his accounts for the benefit of a gratuitous bailor, whose loss arose not from the account as kept by him, but from a larceny, a transaction outside of his employment.

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We perceive no error in this. The negligence constituting the ground of liability must be such as enters into the cause of loss. But the false entries in the books, and the want of their discovery, was not the cause of the bailor's loss, and not connected with it.

True the same person was guilty of both offences, but the acts were unconnected and independent.

True the bank did not discover in time the injury he did to it; but the very fact that it did not discover his false entries and his peculations repels the knowledge of his dishonesty. The neglect was culpable, and might have led to responsibility to those with whom they had dealings, if they suffered from that neglect. But this neglect to examine into his accounts was not the cause of the bailor's loss. His loss was owing to the immediate act of dishonesty of the teller, and not to his purloining the funds or falsifying the accounts of the bank. The argument of the plaintiff simply results in this, – that mistaken confidence is a ground of liability. But if this were the case, business would stand still ; for without a common degree of confidence in agents and officers, much of the business of the world must cease. The facts were fairly left to the jury, with the proper instructions.

Another complaint is, that the teller was suffered to remain in employment after it was known that he had dealt once or twice in stock. Undoubtedly the purchase or sale of stocks is not ipso facto the evidence of dishonesty ; but as the judge well said, had he been found at the gaming table, or engaged in some fraudulent or dishonest practice, he should not be continued in a place of trust. So if the president of the bank, when he called on the brokers who acted for the teller in the purchase of stock, has discovered that he was engaged in stock gambling, or in buying and selling beyond his evident means, a different course would have been called for. No officer in a bank, engaged in stock gambling, can be safely trusted; and the evidence of this is found in the numerous defaulters, whose speculations have been discovered to be directly traceable to this species of gambling. A cashier, treasurer, or other officer, having the custody of funds, thinks he sees a desirable speculation, and takes the funds of his institution, hoping to return them instantly, but he fails in his venture, or success tempts him on, and he ventures again to retrieve his loss or increase his gain, and again and again he ventures. Thus the first step, often taken without a criminal intent, is the fatal step which ends in ruin to himself and to those whose confidence he has betrayed. Hence, any evidence of stock gambling, or dangerous outside operations, should be visited with immediate dismissal. In this case, the operations of the teller in stocks, as a gambler in them, was unknown to the officers of the bank until after he had absconded. Upon the whole, the case appears to have been properly tried, and finding no error in the record, the judgment is affirmed.

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