Nat. Bank, 80 New York, 82; 36 Am. Rep. 582; First Nat. Bank v. Graham, 85 Penn. St. 91; 27 Am. Rep. 628, affirmed by the United States Supreme Court, 100 United States, 699. The Court in the last case observed:

66

Corporations are liable for every wrong they commit, and in such cases the doctrine of ultra vires has no application.

They are also liable for the acts of their servants while such servants are engaged in the business of their principal, in the same manner and to the same extent that individuals are liable under like circumstances. Merchant's Bank v. State Bank, 10 Wall. 645. An action may be maintained against a corporation for its malicious or negligent torts, however foreign they may be to the objects of its creation or beyond its granted powers. It may be sued for assault and battery, for fraud and deceit, for false imprisonment, for malicious prosecution, for nuisance and for libel. In certain cases it may be indicted for misfeasance or non-feasance touching duties imposed upon it in which the public are interested. Its offences may be such as will forfeit its existence. P. W. & B. R. Co. v. Quigley, 21 How. 209; 2 Wait Actions and Defences, 337, 338, 339; Angell & Ames on Corp., §§ 186, 385; Cooley on Torts, 119, 120.

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Recurring to the case in hand, it is now well settled that if a bank be accustomed to take such deposits as the one here in question, and this is known and acquiesced in by the directors, and the property deposited is lost by the gross carelessness of the bailee, a liability ensues in like manner as if the deposit had been authorized by the terms of the charter. Foster v. Essex Bank, 17 Mass. 479; Lancaster Co. Nat. Bank v. Smith, 62 Penn. St. 47; Scott v. National Bank of Chester Valley, 72 id. 471; s. c. 13 Am. Rep. 711; Thomp. N. B. Cas. 864; First Nat. Bank of Carlisle v. Graham, 79 Penn. St. 106; s. c. 21 Am. Rep. 49; Thomp. N. B. Cas. 875; Turner v. First Nat. Bank of Keokuk, 26 Iowa, 562; Thomp. N. B. Cas. 454; Smith v. First Nat. Bank of Westfield, 99 Mass. 605; Chattahooche Nat. Bank v. Schley, 58 Ga. 369; Thomp. N. B. Cas. 379. The only authorities in direct conflict with these adjudications, to which our attention has been called, are Wiley v. Nat. Bank of Vermont, 47 Vt. 546; s. c. 19 Am. Rep. 122; Thomp. N. B. Cas. 905; and Whitney v. Nat. Bank of Brattleboro, 50 Vt. 389; s c. 28 Am. Rep. 503.

"The case first cited (Foster v. Essex Bank) was argued exhaustively by the most eminent counsel of the time and decided by a court of great judicial learning and ability. Their opinion is marked by careful elaboration. The special deposit there was a cask containing gold coin. While it was maintained that the bank would have been liable for its loss by gross negligence, it was held that such negligence in that case had not been shown.

"Here gross negligence is conclusively established. The depositor kept an account in the bank. The cashier cut off and collected the coupons and placed the proceeds to her credit. The bonds therefore entered into the legitimate and proper business of the institution. But it is unnecessary to pursue this view of the subject further, because we think there is another ground free from doubt upon which our judgment may be rested.

"The 46th section of the Banking Act of 1864, re-enacted in the Revised Statutes of the United States, § 5228, declares that after the failure of a

National bank to pay its circulating notes, etc., 'it shall not be lawful for the association suffering the same to pay out any of its notes, discount any notes or bills, or otherwise prosecute the business of banking, except to receive and safely keep moneys belonging to it, and to deliver special deposits.' This implies clearly that a National bank, as a part of its legitimate business, may receive such special deposits,' and this implication is as effectual as an express declaration of the same thing would have been. United States v. Babbit, 1 Black, 61.

6

"The phrase special deposits,' thus used, embraces deposits such as that here in question. Pattison v. Syracuse Nat. Bank, Court of Appeals, New York (recently decided, and not yet reported). In that case it was said, '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 and to be specifically returned to the depositor; and such was the character of the business done by the Bank of Venice (the earliest bank) and the old Bank of Amsterdam, and 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.'

"It would undoubtedly be competent for a National bank to receive a special deposit of such securities as those here in question either on a contract of hiring or without reward, and it would be liable for a greater or less degree of negligence accordingly.

"We do not mean that it could convert itself into a pawnbroker's shop. That subject involves topics alien to the case before us, and which in this opinion it is unnecessary to consider."

To the same effect Bank v. Zent, 39 Ohio St. 105; 3 Browne's Nat. Bank Cas. 698; Wylie v. Northampton Nat. Bank, 119 United States, 361; 3 Browne's Nat. Bank Cas. 188.

Bankers are liable for the theft by their cashier of government bonds held by them as gratuitous bailees, to which such cashier had access, where they failed to look after such bonds, or to discharge him after being notified that he was speculating in stocks, he not being known to have any property other than his salary. Gray v. Merriam, Illinois Sup. Ct., 35 North Eastern Reporter, 810; affirming 46 Illinois Appeals, 337.

VOL. III.40

PROPERTY in a bank-note passes like that in cash, by delivery; and a person taking it bonâ fide and for value is entitled to the property, although the note has been stolen from a former owner.

The holder of a bank-note is prima facie entitled to prompt payment from the bank.

But where the bank had been informed that a £500 note of theirs had been fraudulently obtained, and on its being presented by the plaintiff three years later required him to give an account of it, and it appearing that the plaintiff was the agent of a principal abroad who only accounted for it by saying that he had received it from a man of whom he knew nothing in payment for goods; this was held evidence to go to the jury of the principal's privity to the original fraud.

Miller v. Race.

1 Burr. 452-459 (also 1 Smith's Leading Cases).

It was an action of trover against the defendant, upon [* 453] a bank note, for the payment of twenty-one * pounds ten shillings to one William Finney or bearer, on demand.

The cause came on to be tried before Lord MANSFIELD at the sittings in Trinity term last at Guildhall, London; and upon the trial it appeared that William Finney, being possessed of this banknote on the 11th of December, 1756, sent it by the general post, under cover, directed to one Bernard Odenharty, at Chipping Norton in Oxfordshire; that on the same night the mail was

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No. 4. Miller v. Race, 1 Burr. 453, 454.

robbed, and the bank-note in question (amongst other notes) taken and carried away by the robber; that this bank-note, on the 12th of the same December, came into the hands and possession of the plaintiff, for a full and valuable consideration, and in the usual course and way of his business, and without any notice or knowledge of this bank-note being taken out of the mail.

It was admitted and agreed, that, in the common and known course of trade, bank-notes are paid by and received of the holder or possessor of them, as cash; and that in the usual way of negotiating bank-notes, they pass from one person to another as cash, by delivery only and without any further inquiry or evidence of title, than what arises from the possession. It appeared that Mr. Finney, having notice of this robbery, on the 13th December, applied to the Bank of England, "to stop the payment of this note:" which was ordered accordingly, upon Mr. Finney's entering into proper security "to indemnify the bank."

Some little time after this, the plaintiff applied to the bank for the payment of this note; and for that purpose delivered the note to the defendant, who is a clerk in the bank; but the defendant refused either to pay the note, or to redeliver it to the plaintiff. Upon which this action was brought against the defendant.

The jury found a verdict for the plaintiff, and the sum of £21 10s. damages, subject nevertheless to the opinion of this Court upon this question "Whether under the circumstances of this case, the plaintiff had a sufficient property in this bank-note, to entitle him to recover in the present action?"

Mr. Williams was beginning on behalf of the plaintiff,

But LORD MANSFIELD said, “that as the objection came from the side of the defendant, it was rather more proper for the defendant's counsel to state and urge their objection."

Sir Richard Lloyd, for the defendant.

The present action is brought, not for the money due upon the note; but for the note itself, the paper, the evidence of the debt. So that the right to the money is not the [* 454] present question; the note is only an evidence of the money's being due to him as bearer.

The note must either come to the plaintiff by assignment, or must be considered as if the bank gave a fresh, separate, and distinct note to each bearer. Now the plaintiff can have no right by the assignment of a robber. And the bank cannot be consid

No. 4. Miller v. Race, 1 Burr. 454, 455.

ered as giving a new note to each bearer; though each bearer may be considered as having obtained from the bank a new promise.

I do not say whether the bank can, or cannot stop payment; that is another question. But the note is only an instrument of recovery.

Now this note, or these goods (as I may call it), was the property of Mr. Finney, who paid in the money; he is the real owner. It is like a medal which might entitle a man to payment of money, or to any other advantage. And it is by Mr. Finney's authority and request that Mr. Race detained it.

note.

It may be objected, that this note is to be considered as cash "in the usual course of trade." But still, the course of trade is not at all affected by the present question, about the right to the A different species of action must be brought for the note, from what must be brought against the bank for the money. And this man has elected to bring trover for the note itself, as owner of the note; and not to bring his action against the bank for the money. In which action of trover, property cannot be proved in the plaintiff; for a special proprietor can have no right against the true owner.

The cases that may affect the present are, 1 Salk. 126, M. 10 W. III., Anonymous, coram HOLT, C. J., at nisi prius at GuildhallThere Lord Chief Justice HOLT held, "that the right owner of a bank bill, who lost it, might have trover against a stranger who found it; but not against the person to whom the finder transferred it for a valuable consideration, by reason of the course of trade which creates a property in the assignee or bearer." 1 Ld. Raym. 738, S. C. In which case the note was paid away in the course of trade; but this remains in the man's hands, and is not come into the course of trade. H. 12 W. III., B. R. 1 Salk. 283, 284, Ford v. Hopkins, per HOLT, C. J., at nisi prius at Guildhall. "If bank notes, exchequer notes, or million lottery tickets, or the like are stolen or lost, the owner has such an interest or property in them, as to bring an action, into whatsoever hands they are come. Money or cash is not to be distinguished but these notes or bills are distinguishable, and cannot be reckoned as cash; and they have distinct marks and numbers on them." Therefore, [*455] the true owner may seize these notes wherever he finds them, if not passed away in the course of trade.

*

1 Strange, 505, H. 8 G. I. In Middlesex, coram PRATT, C. J.