no right to claim such timber as his own, and to put it to his own uses.

This decision is based on Hoit v. Stratton Mills, 54 N. H. 109; S. C., 20 Am. Rep. 119. In that case the deed conveyed growing trees to be removed by the grantee, and it was held that as the terms of the grant, taken in their literal and usual sense, signified an absolute conveyance of the title of the trees, the grant was not made conditional by the implied stipulation that the grantee should remove the trees within a reasonable time. In Knott v. Hylinck, 12 Rich. 314, the court construed a deed that reserved all the growing timber, as leaving the title absolutely in the grantor; although in these cases there was no time mentioned within which the trees were to be removed, the court in the principal case said: "That circumstance can take but little from the force of the precedent, as undoubtedly, in the absence of an express limitation of a period for the disincumbering the land by the removal of the trees, the law would imply an undertaking to produce that result within a resonable term."

The court distinguished Holton v. Goodrich, 35 Vt. 19, as influenced by other stipulations, and dependent on the peculiar expression and provision of the deed; and Pease v. Gibson, infra, on the ground that the expressions on the point in question were mere dicta, and overthown by the criticism in Hoit v. Stratton Mills, supra. The court concluded: "I have endeavored to show that the exception is unconditional; and if this be so, by its own efficacy it kept the title to the timber in the plaintiff; but if, to the contrary, the property in the timber was not to remain in the plaintiff unless the trees were removed within such period, then, very clearly, the mere felling of the trees would not satisfy the requirement of such condition."

In Pease v. Gibson, 6 Me. 84, the grantee was to have two years to take off the timber. The court said: "To admit the construction given by the defendants' counsel, and consider such a permission as a sale of the trees, to be cut and carried away at the good pleasure of the purchaser, and without any reference to the limitation, in point of time, specified in the permit, would be highly injurious in its consequences. It would deprive the owner of the land of the privilege of cultivating it and rendering it productive, thus occasioning public inconvenience and injury; and in fact it would amount to an indefinite permission. The purchaser, on this principle, might, by gradually cutting the trees and clearing them away, make room for a succeeding growth, and before he would have removed the trees standing on the land at the time of receiving such a license or sale, others would grow to a sufficient size to be useful and valuable; and then the owner of the land would be completely deprived of all use of it. Principles leading to such consequences as we have mentioned cannot receive the sanction of this court." This was followed in Howard v. Lincoln, 13 Me. 122. Both cases seem to have directly involved the point.

In Holton v. Goodrich, 35 Vt. 19, there was a reservation of stone in a deed, with the privilege of taking it off "till" a certain day. The court said:

"If the property was removed by that time, it belonged to the plaintiffs; but if not removed by that time their right to it was gone. This seems to be the natural and obvious construction of the deed." Boisaubin v. Reed, 2 Keyes, 323; S. C., 1 Abb. Ct. Dec. 161, was not noticed in the principal case nor in the New Hampshire cases, and is quite opposed to them. It was a suit to enjoin an entry on land and the carrying away of timber. The deed granted all the growing timber on certain land, and the right of entry and occupancy "for and during the term of ten years for the purpose of cutting and taking and carrying away said timber and manufacturing timber on said land," etc. The Supreme Court, on the authority of the two Maine cases, and McIntyre v. Barnard, 1 Sandf. Ch. 52, and Warren v. Leland, 2 Barb. 622, had held that this was only a sale of such timber as was actually removed within the specified term, and granted the injunction. This holding was now affirmed in the Court of Appeals. The court said: "After the expiration of the term, every entry upon the land for the purpose of taking timber away was without the license of the deed. Had there been no term named, the vendee would be entitled to enter and carry away timber for a reasonable time, which would have depended for its limit upon the facts of the case; as to the amount of the timber; the extent of the land; the natural impediments to be overcome in removing it; and other attending circumstances. But to hold to the continuation of the right to remove the timber from the land, after the term for so doing has been agreed on by the parties, and has expired, is to disregard their agreement, or to make a new one. Every entry upon the land by the defendant, to carry away timber or logs, after the expiration of the term, was an entry without license, and a clear trespass, and if he or his servants carried away timber, the plaintiffs could be made good for the injury committed only by damages to the extent of the value of the timber removed. These facts indicate clearly, to my judgment, that it was the intention of the parties to the original agreement to limit the right to take and carry away timber to the term within which the vendee or his representatives might lawfully enter upon the land; and that the vendee has no title to the timber by cutting logs and leaving them upon the land; but to complete his title he must also remove the logs within the term."

CRIMINAL LIBELS ON NON-RESIDENTS.

The statute of our State is as follows: "In all cases where a libel has been or may hereafter be printed or published against any person not a resident of this State, the accused shall be indicted, and the trial thereof shall be had, in the county where the said libel was or may hereafter be printed or published. In all cases where such paper shall not upon its face purport to be or to have been printed or published in a particular county of this State, the accused shall be indicted and the trial thereof had in any one county where the said paper has been or may hereafter be circulated."

By the literal meaning of this statute the printer or publisher anywhere, within or without the State, of a libel against a non-resident, no matter where he may

reside, is liable to indictment, if his paper purport on its face to be printed and published in this State, or if it does not so purport but is circulated in this State. But as criminal actions are strictly local, and to subject an offender to punishment the crime must be committed within the limits of the sovereignty seeking to punish the offense, such literal rendering must be limited, and the statute applied only to those who print or publish, within this State, against non-residents. It is plain that a criminal ffense against a statute of this State cannot bo comatted outside of the State, and that our statutes have no force to create crime beyond the limits of the state. In some cases those who have committed crimes within the limits of other States or governments are delivered by our law to such other States or governments. Crime against the life, body, health or liberty of persons in Oregon cannot be committed in this State, for the rights of personal security in such cases do not exist in this State; to protect them by our statute would be absurd. Any crime against them must be committed in that State, and be punished there as crime against the laws of that State.

Crimes are committed at the place where they take effect upon the object injured. A person was accused of shooting from an American ship and killing a man on a foreign schooner. Justice Story said: "The act was, in law, done where the shot took effect; he would be liable to the foreign government." So, too, crime against personal reputation is committed in the State where the person injured lives; the object injured in cases of libel is the person, as in all other cases of injury to personal rights. Injury to personal reputation is a crime because it is an injury to the person, and not because it is an injury to reputation distinguished from the person injured; which would be a very discriminating distinction, making reputation a kind of personal property existing in every State and in every county of every State; no matter who the owner thereof is, or where in the wide world he may reside, and thus a criminal libel is possible in every place; that this is not the idea upon which this statute is founded, it may be noted that the statute itself provides that indictment shall be had in only one county, thus avoiding the idea that reputation exists separate from the person so as to be the object of a criminal trespass cognizable by the grand jury of every county. In the cases of an injury by libel to residents of the State, indictment is had in the county where the injured citizen resides; the notion that his reputation is a kind of personal property existing in every county of the State, separate from the person, which could be the object of a criminal trespass in any county other than where he lives, was never recognized by our law. An offense by shooting from one county and killing

entitled to the fullest protection our criminal law can give; an injury to such persons is as much a public offense as an injury to actual residents of our State; such persons really and practically are within this State, and our statute may legitimately treat the personal rights of such persons in every respect as existing within this State. Confiuing the application of our statute to such persons, that is, to non-residents within the State, would be giving to the statute a plain, reasonable and practical meaning, in accord with the meaning of other statutes concerning personal rights, and it would seem that this construction of the statute is more to be preferred than the other.

The National Constitution provides that the trial of all crimes must be held in the State where they are committed. But the party who has, within this State, libelled a non-resident of the State, may, under this statute, be indicted, even though he may have been indicted for the same offense in the State where such non-resident resides. The Constitutions, State and National, also provide that no person shall be subject to be twice put in jeopardy for the same offense; and this statute seems to infringe upon these constitutional provisions unless the construction alluded to may be adopted.

In England persons have been indicted for libelling in England members of other governments not resident in England, but this was under special statutes for that purpose. Was it the intention that our statute should include such persons? If the legal construction of a statute is doubtful upon a careful scrutiny, it should be construed in the sense most beneficial to the accused.

It is a humane principle of the law that a prisoner shall have the benefit not only of doubts upon the facts, but doubts also upon the law.

The following authorities may be consulted: People v. Adams, 3 Denio, 190; Adams v. People, 1 N. Y. 176; Whitford v. Panama Railroad Co., 23 id. 467; Birmingham Iron Co. v. Glen Cove Starch Manufacturing Co., 78 id. 32; 30 Barb. 99; id. 439.

JOHN MILLER.

LIABILITY OF NATIONAL BANK FOR SPECIAL DEPOSITS.

NEW YORK COURT OF APPEALS, FEBRUARY 24, 1880. PATTISON V. SYRACUSE NATIONAL BANK, Appellant.* A National bank is liable for a special deposit, received by its teller on behalf of the bank, in accordance with its usage, for gratuitous safe-keeping, and lost through its gross negligence.

Ireland, for publishing in London against a resident of London, was held for trial in London. This is so, because crimes are committed at the place where they take effect upon the object injured. Those persons who possibly never have been and never will be within this State, cannot be the subject of a crime within this State. Criminal trespass upon personal rights cannot be committed where those rights do not exist. We must arrive at the conclusion, then, that this statute creates for every person in the wide world, non-residents of this State, the personal right of reputation in every county of this State, and makes it the object of a criminal, that is indictable, trespass, or else we must give to the words "any person not a resident of this State" a more limited meaning. There are thousands whose property, business, life and reputation are almost wholly within this State, although they are not residents of this State. These persons live under, and recognize and render themselves amenable to our statutes; they help in supporting our government, and are

the plaintiff with defendant for safe-keeping and which were stolen. The opinion states the case. Samuel Hand, for appellant.

Geo. F. Comstock, for respondent.

RAPALLO, J. The leading point made by the appellant is that a bank organized under the National Banking Act (Laws of U. S., 1864, ch. 106) has no authority to receive special deposits of securities, etc., for safekeeping, and that consequently the defendant incurred no liability by the receipt by its teller of the package deposited by the plaintiffs, and cannot be held responsible for its loss, even though the teller in receiving the deposit assumed to act in behalf of the bank, in accordance with its practice, and did so with the knowledge of its managers, and the loss occurred through gross negligence on the part of the officers of the bank. The

*To same effect, First National Bank of Carlisle v. Graham, 21 Alb. L. J. 361; S. C., 100 U. S. 699; affirming S. C., 21 Am. Rep. 49.

respondent disputes both the premises and the conclusion.

In most of the cases in which the question of the liability of banks for special deposits has been considered, and which will be more particularly referred to hereafter, the corporate power of a bank to bind itself by such a transaction has been conceded, and the cases have turned upon questions relating to the authority of the officers receiving the deposits, and the degree of negligence by which the loss was occasioned. If it be assumed that the receiving of such deposits is a legitimate part of the business of banking, and that banks not organized under the act of Congress, which see fit to receive such deposits, may do so, there is nothing in the act of 1864 which especially restricts National banks in this respect. The act provides (section 5) that associations for carrying on the business of banking may be formed in a certain manner. Section 8 declares, that upon complying with the provisions of the act, such associations shall be corporations and may adopt a corporate name and may in that name make contracts; and further, that they may exercise under the act all such incidental powers as shall be necessary to carry on the business of banking, by discounting and negotiating promissory notes, drafts, bills of exchange and other evidences of debt; by receiving deposits, by buying and selling exchange, coin and bullion; by loaning money on personal security, by obtaining, issuing and circulating notes according to the provisions of the act. It cannot be contended that because the power to receive special deposits is not particularly mentioned, therefore it is intended to place banks organized under this act on a different footing in this respect from other banks. There are many contracts incident to the banking business, which although not enumerated in the act, are daily made by National banks without question as to their authority, such as receiving notes, checks, etc., for collection, etc. They are authorized to make any contracts, which legitimately appertain to the business of banking, and if receiving special as well as general deposits falls within the scope of that business, the power to receive deposits includes all kinds of deposits which are known and customary in the banking business.

That the enumeration of banking powers contained in the act of 1864 was not significant of an intention to place any special restriction upon National banks as distinguished from State banks, is apparent from the fact that it is a usual formula descriptive of the banking business contained in bank charters (charter of Commercial Bank of Albany, Laws of 1825, p. 198; Dutchess Co. Bank, id. p. 204), and is almost identical with that contained in the General Banking Law of 1838 (Laws of 1838, p. 249, § 18), which provides that "each association shall have power to carry on the business of banking by discounting bills, notes and other evidences of debt; by receiving deposits; by buying and selling gold and silver bullion, foreign coin and bills of exchange in the manner specified in this act, by loaning money on real and personal security, and by exercising such incidental powers as shall be necessary to carry on such business."

The meaning of the two provisions is the same, and their language is the same except in the order of arrangement. In both the business of banking is defined, that is, discounting paper, receiving deposits, etc., and all powers incident to these general powers are added. In the act of Congress the frame of the sentence is that National banks shall exercise all such incidental powers as shall be necessary to carry on the business of banking, and then follows a description of the banking business, while in the act of 1838 the banking business is first described, and the grant of incidental powers follows. The enumeration in the act of Congress is not of the incidental but of the principal powers, and to these are superadded all inci

dental powers. The question remains the same, therefore, as to a National as to a State bank, whether the power of receiving special deposits is incidental to the banking business, and no distinction can be made in determining this question between a State and a National bank.

In the leading case upon the subject (Foster v. Essex Bank, 17 Mass. 479, A. D. 1821), where a special deposit had been made with the defendant, of a cask containing gold coin, it was shown that it had been the practice of the bank to receive special deposits of money and other valuable things, but there was no regulation, or by-law, or provision of the charter upon the subject. The counsel for the plaintiff, as in the present case, claimed that it had been 'the practice of banks from the earliest periods to receive such deposits. That the Bank of England had no express power to do so, but it had become a part of their duty or business by usage, and belonged to the very nature of such institutions. On the other side it was denied that the bank had any such power, or that it was incidental to the business of a bank or banker; that the authority could not be inferred from usage, and the repetition of unauthorized acts by the officers could not give them validity, and the officers only, not the bank, wero bound. The point was thus distinctly presented. It was argued by the most eminent counsel of the period, and decided by a court of distinguished reputation.. The court held that the practice of the bank having been to receive such deposits, and its building and vaults having been allowed to be used for that purpose, and its officers employed in receiving into custody the things deposited, the corporation, and not the cashier or other officer through whose particular agency tho property may have been received into the bank, must be deemed the depositary.

The next case on the point is Lloyd v. West Branch Bank, 15 Penu. St. 172, decided in 1850. It was there held that the power to receive deposits conferred on the bank by the Pennsylvania Banking Law referred to deposits of current money received as such and not to special deposits. But the court, although indulging in some strong expressions indicative of an opinion that the statute did not intend to confer the power, states the question to be whether there was any such general custom or practice of the cashier of the bauk to act as a voluntary bailee without reward, as to make the bank liable for his acts, and the decision rests upon the want of evidence of any such practice. The court was undoubtedly correct in holding that it was not intended that banks should be turned into pawn-brokers' shops, or receive old clothes on deposit. But the case is not an authority for the proposition, that if a bank is in the habit of receiving on deposit coin or other valuables such as are usually the subject of special deposits in banks, it will not be bound by the act of its officers in receiving them.

But in later cases in the same State the doctrine of Foster v. Essex Bank is expressly recognized and applied to National banks. In Lancaster Co. Nat. Bank v. Smith, 62 Peun. St. 47, where a special deposit of the U. S. bonds had been made with the bank by delivering them to the teller, and the teller had subsequently delivered them to a third party supposed to be the depositor, but without ascertaining his identity, the bank was held liable. The case of Lloyd v. West Branch Bank was referred to, but the power of the bank to bind itself by receiving the deposit was not disputed, and it was held that it was a question for the jury whether the bank had been guilty of gross negligence. In Scott v. National Bank of Chester Valley, 72 Penn. St. 471; S. C., 13 Am. Rep. 711; Thomp. N. B. Cas. 864, the facts were almost identical with those in Foster v. Essex Bank. A special deposit of bonds for safe-keeping had been made with the defendant by one of its customers, and the bonds were stolen by the

teller of the bank, but no negligence on the part of the bank was established, and a verdict for the defendant on that ground was sustained. The receipt of the bonds was not claimed to be ultra vires.

In First National Bank of Carlisle v. Graham, 79 Penn. St. 106; S. C., 21 Am. Rep. 49; Thomp. N. B. Cas. 875, the plaintiff sued for the loss of U. S. bonds claimed to have been deposited by her with the bank, and relied upon a receipt for the bonds sigued by the cashier of the bank, in which he acknowledged that she had left the bonds in the bank for safe-keeping. It was admitted that government bonds were received by the bank for safe-keeping with the knowledge of the president, cashier and teller, and without compensation. A verdict and judgment having been rendered for the plaintiff, it was reversed on exceptions to rulings on questions of evidence or to some portions of the charge in submitting to the jury the question of negligence, but on the point of the liability of the bank the doctrine of Foster v. Essex Bank was emphatically reiterated, and it is stated that the rule as laid down in that case has been uniformly applied iu the Supreme Court of Pennsylvania in cases involving the rights and duties of National banks.

In Turner v. First National Bank of Keokuk, 26 Iowa, 562; Thomp. N. B. Cas. 454, the liability of a National bank for a special deposit of bonds was also recognized. Smith v. First National Bank of Westfield, 99 Mass. 605, was also a case of a special deposit of bonds with a National bank, and the bank was held to be bailee of the bonds liable only for want of ordinary

care.

To the same effect is Giblin v. McMullen, L. R., ., 2 P. C. 317.

In Chattahoochie National Bank v. Schley, 38 Ga. 369; Thomp. N. B. Cas. 379, the court after referring to some of the cases which have been cited, and also to the recent cases of First National Bank v. Ocean National Bank, 60 N. Y. 278; S. C., 19 Am. Rep. 181; Thomp. N. B. Cas. 728; Wiley v. First National Bank of Brattleboro, 47 Vt. 546; S. C., 19 Am, Rep. 122; Thomp. N. B. Cas. 905, summarizes its view of the existing law as follows: "By habitually receiving through its cashier special deposits to be kept gratuitously for mere accommodation, a National bank will incur liability for gross negligence in respect to any such deposits received in the usual way." This I adopt as a concise and accurate statement of the result of the decisions to which I have referred.

The only adjudications to be found in conflict with this doctrine are the cases of Wiley v. First Nat. Bank, 47 Vt. 546; S.C., 19 Am. Rep. 122; Thomp. N. B. Cas. 905, followed by the same court in 50 Vt. 389, Browne's N. B. Cas. 69, note, where it was held, in direct opposition to all the cases I have cited, that when a special deposit is received by a National bank, even in accordance with usage, and with the knowledge and acquiescence of the directors of the bank, the bank is not liable for its loss even by gross negligence; and this is put upon the ground that the bank has no corporate capacity to receive such deposits for safe-keeping, and consequently cannot empower any of its officers to incur liability in its behalf by so doing.

There are some cases in which the Vermont cases are referred to with approval by the judge writing the opinion (Third National Bank of Baltimore v. Boyd, 44 Md. 47; S. C., 22 Am. Rep. 35; Thomp. N. B. Cas. 45; First National Bank v. Ocean National Bank, 60 N. Y. 278; S. C., 19 Am. Rep. 181; Thomp. N. B. Cas. 728), but there is no other adjudication to the same effect. In the case in 60 N. Y. the opinion expressly states that it is unnecessary to consider the question of the power of the bank; that it is a question not free from difficulty, but can be more satisfactorily considered when it becomes necessary to a judgment. The opinion proceeds upon the ground

that the receiving of special deposits was not shown to be part of the ordinary business of the bank; that there was an entire absence of evidence that it was the habit or practice of the defendant to receive such deposits; that no authority to the cashier or assistant cashier to receive special deposits had been shown, and whatever might be the incidental powers of the corporation, the power of its officers to bind it can be presumed only to exist within the scope of its ordinary business and their ordinary duties.

It is upon this distinction between the facts in the case before the court, and those in Foster v. Essex Bank, that the opinion proceeds and not upon a rejection of the doctrine of that case. The opinion even in so far as it rests upon that distinction was not concurred in by the majority of the court, there being an exception upon another point which was sufficient ground for reversal of the judgment, and the majority concurred only in the result. What is said by the learned judges in respect to the Vermont case is merely incidental, and forms no part of the reasoning of the opinion and was not considered or passed upon by the court.

Appended to a report of the case in 47 Vermont, contained in 14 Am. Law Register (N. S.), 348, is a note by an eminent jurist, approving the decision, and criticising the proposition that any practice or usage of a bank in receiving special deposits can supply the want of corporate power, and respecting the same arguments which were urged by counsel in the case of Foster v. Essex Bank, 17 Mass. This want of corporate power is alleged on the ground that the power to receive deposits does not embrace receiving special deposits of valuables for safe-keeping, and that the receipt of deposits of that character is wholly outside of and foreign to the business of banking, and cannot be regarded as incidental to that business.

ness.

For the purpose of determining whether such is the case the counsel for the respondent have referred to the history of banking from its earliest period, and to the definitions by lexicographers of the banking busiThis would seem to be a proper way of ascertaining what is legitimately within the scope of the business of banking and what are the powers of corporations formed for the purpose of carrying on that business. When the attributes of a particular calling come in question they can only be ascertained by showing what has been the general usage and practice of persons engaged in that calling, and what business has been generally transacted by them and understood to appertain to such calling. Thus only can it be ascertained what transactions are within or without the scope of such calling. A reference to the history of banking discloses that the chief, and in some cases the only, deposits received by the early banks were special deposits of money, bullion, plate, etc., for safe-keeping, to be specifically returned to the depositor. That such was the character of the business done by the Bank of Venice (the earliest bank) and the old Bank of Amsterdam, and that the same business was done by the goldsmiths of London and the Bank of England, and we know of none of the earlier banks where it was not done. The definition of the business of banks of deposit in the Encyclopedias embraces the receiving of the money or valuables of others to keep until called for by the depositors; Encyclopedia Americana, fol. 1; id. 543; English Encyclopedia of Arts and Science, fol. 1, 833, 837, 841, and although in modern times the business of receiving general deposits has constituted the principal business of the banks, it cannot be said that the receiving of special deposits is so foreign to the banking business that corporations authorized to carry on that business are incapable of binding themselves by the receipt of such deposits. The numerous cases in the books relating to special deposits in banks disclose how extensively even in

modern times this business has been and is carried on, and the general understanding in respect to it. The very act of Congress under which the National banks are organized recognizes the practice, and provides for the return of special deposits by National banks, even when required to suspend their general business. Section 46 of the act of 1864 provides that in certain events the banks shall cease to prosecute business, "except to receive and safely keep money belonging to them, and to deliver special deposits." This provision assumes that such banks will receive special deposits, and impliedly recognizes and sanctions their so doing by making express provision enabling them to return them at a time when they are prohibited from paying out to depositors funds held on general deposit. The Vermont case referring to this provision says that it was not intended to extend the powers of the bank. Perhaps not; it rather indicates that the framer of the Bank Act assumed that banks have power to receive special deposits without any express authorization, and that it was an incident of the banking business, and would as such be exercised by the banks. It is further suggested that the term "special deposits" refers to securities held by the banks as collateral to loans. This interpretation is wholly inadmissible; such securities are in no sense deposits. The term "special deposits" has and always has had a well-known and defined meaning. In Marine Bank v. Fulton Bank, 2 Wall. 252, 256, Miller, J., says: "All deposits made with bankers may be divided into two classes, namely, those in which the bank becomes bailee of the depositor, the title to the thing deposited remaining with the latter; and that other kind of deposit of money, peculiar to banking business, in which the depositor for his own convenience parts with title to his money and loans it to the banker." This description marks the distinction between the general and special deposits. In Story on Bailments, § 88, the same distinction is recognized and also in Rawson v. Real Estate Bank, 5 Pike (Ark.), 297. In the Vermont case itself at page 554, the court defines general deposits and says that at the time of the passage of the act, deposits in banks had a well-known and understood meaning and that the delivery of money securities or other property to be specially kept and redelivered had been equally well-known as special deposits, and in Turner v. First National Bank of Keokuk, 26 Iowa, 562; Thomp. N. B. Cas. 454, the authority to return special deposits contained in section 46 is held to refer to deposits of securities for safe-keeping.

That it was understood at the time of the passage of the National Banking Act that the banks organized under it were authorized to receive special deposits is further evidenced by a contemporaneous circular addressed to the banks by the eminent Comptroller of the Currency, H. McCullough in 1864, in these words: "In order to encourage economy and the habit of saving among the poor of the country and more especially of the large cities, it is suggested that the National banks act as custodians without charge of United States bonds and other representatives of value which that class of persons desire to leave with them for safe-keeping. Bank officers that approve of this suggestion will please give such notice of their willingness so to act, as is necessary for the information of the parties who are to be benefited." The Banking Act was passed and this circular was issued in the light of the decision in the case of Foster v. Essex Bank, which declared the extent of liability incurred by banks in respect to such deposits, a case often cited and well known, especially among those concerned in the business of banking. It cannot be doubted that it was well known to the framers of the act and the banking department, and there is nothing in the act or in the contemporaneous history to indicate that it was the policy or intention to establish any rule in respect

to National banks different from that enumerated in that case.

On the question of corporate power, we are therefore of opinion that National banks have power to receive special deposits gratuitously or otherwise, and that when received gratuitously they are liable for their loss by gross negligence.

The next question in the case is as to the authority of the teller to act for the bank in receiving the deposit in question. The evidence bearing on this point was that the bank had been accustomed to receive packages supposed to contain securities from various persons for safe-keeping; that Orrin Ballard was cashier of the bank, and his son Leon Ballard was teller, but sometimes acted as cashier in the absence of his father; that Orrin Ballard had the management and control of the affairs of the bank. It did not appear that the president or directors took any part in its management or that the directors held any meetings. That some of the persons who left valuables in the bank for safe-keeping were directors. That at some time before the deposit in question a trust company was formed in Syracuse for the receipt of valuables for safe-keeping, and that after the formation of this company Mr. Ballard, the cashier, said to his son that they had better not take any more packages for safe-keeping, but the son says that this was not a positive instruction, but only an expression of opinion, and he afterward received packages. The son also testified that he told the plaintiff that his package would be at his own risk. This was contradicted by the plaintiff. The teller also testified that his father sometimes told persons depositing packages there that they would be at their own risk, but that on other occasions packages were received without such notice. The package of the plaintiff was left by him with the teller at the bank and remained there some two years before it was lost, being occasionally taken out by the plaintiff to cut off coupons, etc., and returned by him to the bank. The court submitted to the jury the question whether the teller had been authorized to receive such deposits, whether he did so in his individual capacity or in behalf of the bank, and whether he told the plaintiff that the package would be at his own risk, and whether the teller had been directed to discontinue receiving deposits of securities, and instructed the jury that if the deposit was with the teller as an individual the plaintiff could not recover. We think the evidence was sufficient to justify the submission to the jury of the questions of the authority of the teller, and whether the deposit was with the bank in this manner, and that their verdict establishes such authority, and that the deposit was with the bank and not with the teller in his individual capacity. The entire management and control of the affairs of the bank having been left with the cashier, his acts and the authority conferred by him upon the teller must be deemed binding on the corporation.

The verdict thus establishing that the plaintiff's securities were received on deposit by the bank, it was bound either to return them or show some sufficient ground for not doing so. It claims that they were stolen from the safe by some person other than the employees of the bank, and the remaining question in the case is whether the theft was suffered through gross negligence of the bank in the care of the bonds. This question was submitted to the jury, and we think the evidence was sufficient to authorize such submission. There was no burglary, and no direct explanation of the circumstance of the loss of the bonds, but there is evidence in the case tending to show that if stolen, the theft was committed in the day time while the bank was open. That the bonds were in a safe so situated as to be accessible to a person entering from the street; that the persons in the bank were so placed that at times the safe was not in their view, and that