BENJAMIN FOSTER and another, executors, &c., vs. THE PRESIDENT, DIRECTORS AND COMPANY OF THE ESSEX BANK

This action, which was assumpsit for 50,000 dollars had and received by the defendants, to the use of Israel Foster, the plaintiffs' testator, [Note p479] was tried upon the general issue, April term, 1820, at Ipswich, and a special verdict was returned by the jury to the following effect: -- That the deceased sent to the Essex bank, by his agent, Bond, a chest containing a quantity of gold, specified in the following memorandum, then delivered to said Bond:--

"Minute of gold left at Essex bank by Mr. Bond, on account of Capt. Israel Foster, July 8th, 1812.

The above was weighed in my presence,

Wm. Orne.

Left at Essex bank for safe keeping,

W. Shepard Gray, Cashier."

On the back of the memorandum is the following entry:--

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"Essex bank, Sept. 10, 1814.--The within-mentioned bags of gold were this day removed from the chest which contained them, into new bags, and packed in a keg, which was directed to be sent, with the property of the bank, to Haverhill, at the expense and risk of Mr. Israel Foster.

W. Shepard Gray."

William Orne was then president of the bank, and was present when the gold was weighed. The chest was locked, and said Bond took the key. The bank was not authorized to use this money, or to treat it otherwise than other special deposits. This deposit was kept in the vault of the bank until September, 1814. The bank, then apprehending danger from the enemy, removed their own specie to Haverhill; and the persons having special deposits, requested the bank, in writing, to remove their specie, with the property of the bank, at the risk and expense of the depositors. The said Bond procured a cask to repack the gold in, and superintended the repacking of it, and accompanied the officers of the bank on the removal to Haverhill, where it was deposited in a vault, and remained until after the peace. Mr. Foster's gold was then brought back by the bank, and was returned to their vault with other deposits, and with the specie of the bank, Mr. Foster paying his part of the expense of the removals.

Bond was in the practice of coming, as agent of Foster, to see that his deposit was safe; but it is not known that he ever examined the cask, or counted the money. Foster was an aged and infirm man, residing in Marblehead, and never came to the bank himself while his deposit was there. On the 28th of August, 1817, he gave an order to the cashier to deliver 220 doubloons of the gold "deposited in the Essex bank, for safe-keeping, on said Foster's account." He afterwards gave several similar orders.

The cask was opened by the cashier or chief clerk, to deliver the doubloons pursuant to the said orders. This was done without the knowledge of any of the directors; unless this knowledge is to be presumed from

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their general knowledge of the transactions of the bank. No account was taken of them in the books of the bank.

After this deposit was brought back from Haverhill to the bank, there were fraudulently and secretly taken from the cask, by the cashier, or by the chief clerk, doubloons to the amount of 32,000 dollars, which they converted to their own use. This was done without the knowledge of any of the directors, or members of the corporation. The cashier and clerk have since absconded, after having, also, defrauded the bank of the greater part of its capital. Neither of them was at any time a stockholder.

The said Foster's deposit was kept in the vault in the same manner, and with the same care, as other special deposits, and as the specie of the bank. The cashier and clerk sustained fair reputations, until the time of their absconding; and no other special deposits were fraudulently taken away.

It has always been the practice of the bank to receive special deposits of money, and other valuable things; but there was no by-law or regulation upon this subject; unless it is to be inferred from the practice aforesaid. No statement of special deposits was ever made to the directors by the cashier; but the practice of receiving such deposits was known to the directors. They had no knowledge of this deposit, unless it is to be presumed from the agency of the president and cashier when it was made, and of the cashier in paying the orders above mentioned.

It is not the practice, in this or any other bank, for the directors to inspect or examine special deposits; and it is considered as improper for any officer to do so, without the consent of the depositors.

After the testator's decease, the cashier gave the plaintiffs the following memorandum:--"Amount of gold received at Essex bank of Mr. Foster:--

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Wm. Shepard Gray, Cashier."

Afterwards, one of the plaintiffs, in his own name, drew a check for 1000 dollars, which was paid; and he had no other funds in the bank than the said gold. This was done without the knowledge of any of the directors; and no entry was made of it, except the sum, in figures, in the waste-book, without any name. A few days after the cashier and clerk absconded, the same plaintiff paid the amount of the said check, and took away the residue of the deposit.

The testator was a stockholder in the bank from 1795 until his death in 1818.

There was in the bank a book called "Special deposits Essex Bank," in which memoranda were entered of the several special deposits sent to Haverhill, and a few others made since. There was no book of the kind before the money was sent to Haverhill.

The books of the bank were not regularly posted for two years and a half previous to the absconding of the cashier and clerk; but, during that period, there were stated in the leger false balances of the cash account, of the amount of notes discounted, and of several other accounts; so as to correspond with the statements regularly made to the directors. The accounts of the general deposits were also falsely posted for a part of this period. The books of the bank, from which the amount of stock and debts might be ascertained, consisted of a waste-book, cash-blotter, cash-book and balance-book. This last showed the balances due to the general depositors, and was usually referred to, in order to ascertain what was due to each individual; and it appeared to contain

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the same information which might have been obtained from the leger, if it had been regularly posted. The balance-book did not exhibit a fair statement of the deposits.

The cashier gave a bond in the penal sum of ten thousand dollars, for the faithful discharge of his office; which his sureties have since paid.

The cause was argued, upon this verdict, at the last October term, by Pickering and Webster, for the plaintiffs, and by Prescott and Saltonstall, for the defendants.

Argument for the plaintiffs. The question, in this case, is, whether the defendants, who constitute a banking corporation, duly established by the laws of this state, are liable for the property of the plaintiffs' testator, which was fraudulently taken by their own officers.

It being found by the verdict that the gold was delivered to the bank, an obligation was created that it should be accounted for. That an obligation may be thus contracted by the mere delivery and without any writing, is a well-settled principle both of the civil and common law. [Note 1] The being trusted with another man's goods, says Lord Holt, must be taken to be a sufficient consideration [Note 2] An obligation was therefore contracted, either with the defendants as a corporation, or with their servants who took charge of the gold. We contend that it was contracted with the corporation and was a bailment of some description; and we shall consider the plaintiffs' claim under the following propositions:--1 The bank was competent to receive a bailment. 2. There was a bailment made in this case. 3. The bank violated its duty as a bailee.

1. By their act of incorporation [Note 3] they are made a bank. What, then, is a bank? The third section of their act, it is true, says that bills signed by the president shall be binding; and this is almost the whole liability imposed upon them. But they must by implication, have various other powers, and be subject to other duties. If it were

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not so, they would be unable to transact their business. They must, then be understood to have all the general powers of the banks established in this country; and it is left to our laws and usages to determine what those powers are; and the public, who deal with them, can judge of their powers and duties only by the course of business actually transacted by them.

No express power is given them, generally, to receive deposits of any kind, or money; but the practice of receiving money in deposit, and for safe-keeping, is constantly recognized in bank charters. The charter of the first bank of the United States, which has served as a model for others, provides that the debts shall never exceed a certain sum "over and above the moneys actually deposited for safe-keeping [Note 4]. So in the charter of the Union bank [Note 5] , and others of our own state, including that of the defendants; which also authorizes them to issue bills on moneys deposited for safe-keeping. The legislature could not, in these cases, intend only general deposits, as they are called; for these are no deposits at all; they become the property of the bailee or receiver; they are loans for use, as the specific things loaned are not to be returned, which is the case with general deposits. [Note 6]

A bank is defined, in popular language, a society or community, who take upon themselves the charge of money of private persons, to improve it, or keep it secure. The bank of England was the first that circulated paper; the banks of Venice, Genoa, &c. were for receiving deposits, agreeably to the original design of those institutions. [The counsel here went into a brief history of the business of banking.] Our banks have taken the provisions of their charter from that of the bank of England, which is to be found in the Stat. 5 & 6 W. & M., c. 20, laying duties upon the tonnage of ships, and vessels, beer, ale, &c. That bank has no express power to receive deposits, but it has become a part of their duty or business by usage, and it now belongs to the very nature of such institutions. [Note 7]

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Our own banks receive deposits of foreign bills, as they are called: they collect notes and bills of exchange, and are answerable for neglect in notifying parties to them, &c. Yet all this is not expressly made a part of their business. Nor is it material that the bank had no by-laws respecting deposits; if they had, the public would be bound by nothing but the open, notorious usage of the bank.

Although, therefore, the bank had no express power, by charter, to receive deposits of any kind, yet, as the verdict finds it has ever been their practice to receive them, this must be presumed to have been done with the sanction of the government that incorporated them. There is, then, no reason why a corporation, like an individual, should not be held liable for the breach of an implied duty; and this has been the law, at least, since the case of The King vs. The Bank of England. [Note 8]

The benefit which the bank derives from deposits is, that it brings money to their vaults, and brings customers to do business with them; it gives them a chance of bargaining in money and bills of exchange, and other money operations; they can issue their bills as they did to the plaintiffs; and if the plaintiffs had wanted lawful money, the bank could have furnished it in exchange for their bullion. But, besides this indirect benefit, the bank had a direct compensation or reward for their implied engagements to their customers; and that was the bond given by their cashier for the faithful discharge of his duty, which has been since paid by his sureties. Nor is it any answer, that the penalty was insufficient; for that, again, was the fault of the bank.--Under these circumstances, then, the bank must be considered as competent to receive a bailment.

2. That there was a bailment of some kind, is equally clear from the facts already adverted to, and others stated at large in the verdict.

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3. The remaining question, then, is, whether the bank has violated its duty as a bailee, so as to become responsible to the plaintiffs for the loss sustained. We contend that the bank is so liable on various grounds, even if there had been no written agreement between the parties.

The general rule, undoubtedly, is, that depositaries (technically speaking) are answerable for gross neglect only, or a violation of good faith. But this rule is subject to various exceptions, as stated in the books. [Note 9] The defendants have been guilty of a degree of negligence of the grossest kind, and which is unjustifiable, even in a simple depositary. The verdict finds that the bank books had not been posted for two years and a half; a fact which is believed to be unexampled in the history of banking and commercial institutions. It also finds that, during that time, there were stated in the leger false balances of the cash account, of the account of notes discounted, &c.; and that the accounts of the general deposits were also falsely posted; all which faults might have been detected by only a reasonable degree of diligence on the part of the corporation.

The negligence of the defendants is not to be measured by the standard of a common individual, who does not make it his business to take charge of money, and similar valuable articles; for what would be only slight neglect in one, would be gross and highly reprehensible in the other. The defendants are bankers by profession; they provide themselves with secure vaults, and thus give the public an assurance of the great care which will be taken of the property deposited. An extraordinary degree of care is also expected, by the public, from banks, because they are, in some sort, invested with a trust of a public nature, and under the sanction of government; their exclusive privileges are for the convenience of the public, as well as for their own emolument; they are, in some degree, public agents, and even exercise one of the rights of sovereignty, that of regulating, to a certain extent, the currency of the state.

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The public, in return for these extraordinary privileges, expect of the banks extraordinary care in the exercise of them. For this reason, the government guards the privileges of banks, by imposing such extraordinary penalties for the forging of their notes, and for having in possession bank paper, and other implements for committing frauds, as are not known in the case of private persons.

Considerations of public policy, therefore, demand that banks should be held to a degree of responsibility, little or nothing short of that which belongs to the class of bailees, under which common carriers, innkeepers, and others are ranked; especially when it happens, as here, that the property intrusted to them has been lost by the fault of their own servants.

It may be observed, too, that the defendants themselves seem to have intended to assume a special responsibility in respect to deposits of the kind in question; for they kept a book in which special deposits were entered, when the property of their depositors was removed from town, during the late war. And it cannot be said that any change was made in the bailment after the removal of the property. It remained as at first, according to the receipt given, without any other alteration than taking it from a chest, and repacking it in a keg; and it is certainly singular, to say the least, that while it was in the chest, of which the depositor had the key, the gold was safe; but after it was put into the keg, which the officers of the bank could open, it was embezzled. But, in both cases, the bank knew the contents of the package, and that is sufficient for the plaintiffs.

Further, the defendants have made themselves responsible by their written memorandum or contract, which states that the gold was "left at Essex bank for safe-keeping," and which was signed with the names of their president and cashier; the latter of whom added to his name his official title, although the president did not.

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This last circumstance, however, can make no difference, because the cashier was the proper receiving officer, and it was, therefore, immaterial whether any other person signed the receipt. But if the president had been the receiving officer, it would not have been at all necessary for him to affix his title to his name, he being notoriously the head of the corporation, and transacting this business at the usual place of business of the bank. And the same thing may be said in respect to the cashier, agreeably to the decision of the Supreme Court of the United States in the case of The Mechanics Bank vs. The Bank of Columbia. [Note 10] The receipt or memorandum, therefore, was the official act of the president and cashier. This paper states that the money was left "at the bank." It was, also, put into their vault, under their lock and key; and not left with the individual officers. The special deposit-book also contains an entry of this, in the same manner as of other deposits.

Some other circumstances attending this transaction deserve attention. The package was not received without being opened by the bank, nor without a knowledge of the contents, as would have been the case if the parties had intended it for a mere simple deposit, where the bailee is to be answerable for the unbroken package, and not for the contents. [Note 11] On the contrary, it was opened, and the gold in it was weighed when received; which shows that the bank intended to bestow that extraordinary care which property so valuable required. Again, whenever any part of the gold was taken out, by virtue of the orders before mentioned, the keg was opened by the officers of the bank; and receipts were given for the sums thus taken out. The bank in the only instance when a check was drawn by the plaintiffs, paid the amount. In the year 1818, a new memorandum was given by the cashier of the gold which then remained "on hand." Under all these circumstances, the bailment must be considered as made to the bank or corporation itself; and if the corporation had appropriated the gold to their own use, neither the

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cashier nor president, who merely received it for the bank, could have been individually answerable.

If, then, there was a bailment, which would have made an individual liable, it remains only to be considered whether there is any distinction between the case of an individual and a corporation; and how far the corporation shall be bound by the acts of their officers or servants. By the civil law (to which the writers on the common law refer for the principles that relate to corporations) it is well settled that these bodies are subject to the same law with individuals, and they are even liable ex delicto, as well as ex conventione. [Note 12] This Court, also, has considered the granting of an incorporation merely a mode of enabling an association of persons to conduct their business as an individual, constituting such association a legal person, or subject of the state, that would, of course remain liable to all the general duties of other subjects; [Note 13] as was more fully considered in the hearing of the former questions in this cause. Corporations have, accordingly, been held liable for breaches of duty, as an individual, in various instances here, as well as in England. [Note 14]

In respect to the liability of the bank for the acts of their servants, the general principle is well settled, that whatever a servant is permitted to do in the usual course of his employment, is equivalent to a general command; and that the master must answer, not only for the contracts, but for the negligence and unskilfulness of his servant. This rule, however severe it may occasionally seem, is founded upon the soundest principles of public policy; and, on the other hand, the servant or agent is not held liable, personally, for his acts in such cases; but those acts are considered as the acts of the master or principal, who will be responsible, even if the servant exceed his authority. [Note 15]

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The only further circumstance necessary to be noticed, is, that the plaintiffs' testator was a stockholder in the bank, and, therefore, it may be said he has no right to complain.--But this reasoning would prove too much; for it would go to debar individuals of the common rights of contracting parties in their contracts with corporations to which they happen to belong. But this Court has already decided that there is no legal objection to such contracts, any more than to those made between a town, for example, and one of its inhabitants. [Note 16] And if the principle should be applied in its full extent, it is difficult to imagine how any officers of a corporation, whether cashier, clerk, or directors themselves, can be held answerable, or make their corporations answerable, for violating the rights of a person who happens to be a stockholder with them.

Upon the whole view of the case, then, it appears that the bank has violated its duty towards the plaintiffs; and if the bank is answerable for a fraud, it is of no importance what the precise nature of the bailment was. It is now settled that corporations shall be answerable for torts. Now, the bank received the money by the hands of its officers, the only way in which a corporation could receive it; the cashier, therefore, is the bank, and his acts are the acts of the bank. The cashier and clerk took the gold fraudulently; and the bank is answerable for the frauds of its officers. It is settled in law, and in equity, that the principal is civilly responsible for his agent. [Note 17] In Crookford vs. Winter, [Note 18] the agent had even committed a felony.

But it is said that the defendants took as good care of this deposit as of their own property. This is no answer to the plaintiffs' demand; for here was a fraud, which may be considered as the fraud of the bank; because the cashier was the bank, and a bailee of any description is answerable for fraud.

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Argument for the defendants. The corporation had not power to enter into the supposed contract. Corporations are mere creatures of the law, and have no power but what is given by the statute. The powers, duties, and liabilities of the bank are detailed in the act of incorporation; and they can have no powers by implication, but such as are necessary to effect the purposes of the institution. It is an enabling statute. Individuals may make any contract, from which they are not restrained by law; corporations only such as they are empowered by their charters to make. [Note 19] [Here the counsel considered the provisions of the act of incorporation; and contended that they did not authorize the officers to receive special deposits, so as to charge the corporation.]

The power is not incidental to a banking institution. In every definition of a bank or banker, [Note 20] it is implied that they shall have the use of the money deposited; and it is believed that no bank in Europe receives deposits, to be kept and returned specifically. It is no more incidental to a bank, than to any other corporation, to keep a room for the purpose of receiving property, without compensation, at the responsibility of the corporation.

But if competent, still the corporation have not made such a contract. It must have been either an express or implied under taking. It is not pretended that it was express. There was never any vote, or corporate act, concerning this or any other special deposit.

The directors had no such power. They could only bind the corporation in the way authorized by the charter, or by the by-laws. No such power is contained in the charter; and the verdict finds that there was no by-law or regulation upon the subject. The authority cannot be inferred from the usage. The repetition of unauthorized acts by the officers cannot give them validity. No practice can sanction acts not within the legal purposes of the incorporation. The most that can be inferred from the usage is the knowledge of the stockholders, not the assent of the

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corporation, as such. But a corporation cannot act by its members individually. [Note 21]

The directors have never attempted to subject the bank to this responsibility. They were willing that members and others should enjoy the convenience of the vault; but did not intend to assume any risk, where there was no compensation.

If, then, the bank be chargeable, it must be on an implied undertaking. Since the cases of Yarborough vs. The Bank of England, [Note 22] Hayden vs. The Middlesex Turnpike, [Note 23] and The Bank of Columbia vs. Patterson's Adm'r., [Note 24] it is not to be questioned that a promise by a corporation may be implied. But the corporation must be acting within the scope of the legitimate purposes of its institution. It must be a duty imposed on them by law, or a benefit conferred at their request. It is no where made the duty of the bank to receive goods or money, to store for safe-keeping; they might lawfully refuse to take them. The bank never requested this or any other special deposit; and it was not a benefit to them; there was, therefore, no implied promise.

But if the bank was a party to the contract, we contend that it was a mere naked bailment, a simple deposit, without reward. The verdict finds that the gold was left as a special deposit; that the bank was not authorized to use it, or treat it differently from other special deposits; that the depositor kept the key; that it was removed at his request, at his expense and risk, and under the superintendence of his agent; who was also in the habit of going to the bank, to see if it was safe; that special deposits are made and taken away, without the knowledge of the directors; and that it would be improper for them to examine such deposits.

The bank had no compensation for keeping it. "Deposits for safe-keeping," mentioned in the act of incorporation, are general deposits; money which is entered in the books of the bank, creating a debt to the depositor. It is

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absurd to suppose that the bank could discount upon gold deposited in a chest which the directors had no right to open or examine, and the key of which was kept by the owner.

But it is contended that the certificate given was a special undertaking to keep safely. The answer is

1. The officers had no authority to make such a contract. This appears from the whole course of business. The officers could not bind the corporation to take any other or better care of this, than of other special deposits. Their authority, being derived wholly from the usage, must be confined to that; and they could not increase the obligation of the bank, by contracting in an unusual mode. [Note 25]

2. The paper is not a special undertaking; it contains no promise. Mr. Foster was aged and infirm, and it was given merely to satisfy him that the gold was left at the bank by his agent. That this was his understanding, is evident from his drawing orders for his doubloons, instead of common checks. The cashier delivered them, taking receipts. This was no part of his duty. He acted as the agent of Foster.

But if any thing further was intended by the certificate, it was performed by the delivery of the gold to Bond, when it was repacked by him and carried to Haverhill; and on its return, it became a special deposit in the common form.

There was, therefore, no special undertaking; and this deposit is to be considered as a naked bailment. The inquiry then is, What are the duties and liabilities of such a bailee?

He is answerable only for gross neglect, which amounts to fraud or a want of good faith. [Note 26] Southcote's case [Note 27] has been thought to support a different doctrine; but in that case there was a special agreement; and Sir William Jones says, the case does not warrant Coke's deduction from it. [Note 28] If his inference be correct, the case may be considered

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as overruled. [Note 29] All writers and all judicial authorities declare a naked bailee to be answerable for gross neglect only.

A simple rule has been established, to determine the application of this principle. The measure of diligence required is that which the bailee uses in his own affairs. If he be careless, and his own goods, with those of the bailor, are lost by his negligence, he is not liable. Taking the same care as of his own, rebuts all presumption of want of good faith; and on the contrary, it is gross negligence, a violation of good faith, for a depositary to take less care of another's property intrusted to him than of his own. [Note 30] The law on this subject is derived from the civil law. [Note 31]

It may be permitted us to cite the same simple regulations from the ancient laws of India. "If a thing deposited be lost, together with the goods of the bailee, though not by the act of God or the King, it is lost to the bailor". [Note 32] The rule appears to be established in every civilized country, that whatever may be the negligence, if the bailee keeps the property as he keeps his own, he is not liable.

There was not gross negligence, nor indeed any, in the custody of this property. The bailee took the same care of it as of his own. The jury have found that "it was kept in the vault in the same manner and with the same care, as other special deposits, and as the specie of the bank."

But it is said that the property was taken by the defendant's servants, and therefore they are liable. A depositary is no more answerable for the fraud or felony of his servant, than of a stranger. [Note 33] It will not be pretended, that there was any want of good faith in the employment of these officers. The verdict finds that they "maintained fair reputations until the time of their absconding." Had it been otherwise, or had the bank employed other

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officers to take care of their own property, this might have shown a want of good faith.

A distinction is attempted, between corporations and individuals; that corporations can act only by their agents, and the act of the agent is therefore the act of the corporation. But the same rule must apply in both cases; that masters are liable for the negligence or misconduct of their servants, only while acting within the scope of their employment. This is more easily determined in the case of corporations than in the case of individuals; because the authority is generally derived from their offices, the duties of which are expressly prescribed. Masters are never responsible for injuries illegally committed by servants. These are not done by authority, either express or implied. When they are in the usual course of their employment, they are considered as acting under the command of the master; but when they are committing a fraud or a trespass, they are acting of their own will. [Note 34]

From all the authorities cited, it will not appear that the bank are responsible for the frauds of their officers, upon any other principles which can be applied to this case. Masters are responsible for injuries done by the negligence of their servants, while in the line of their employment; but never for injuries willfully committed, where they have other purposes than executing their masters' orders; unless the masters were guilty of negligence in appointing the servants, or in the particular act. Here the cashier and clerk were not in the execution of their employment, which was only to permit the chest to be placed in the vault. They had no trust or authority from the bank to examine or touch the deposit. In opening the cask, and taking out the gold, the cashier had acted as agent of Foster before, and this was probably the cause of the loss. To open it without his consent was trespass. Indeed it was theft. By the verdict, they were fraudulently and secretly taken and converted to their own use; the very definition of larceny. For a clerk to take money

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from the till of the chest; for a carrier to break the package and take part of the goods, is theft. [Note 35] Domat (Lib. 1, Tit. 7) calls it theft, to take the thing deposited.

It is said the corporation are guilty of gross negligence in not sooner detecting the frauds of their officers. With respect to this deposit, the defendants had no care of it. If there was any negligence, it was in the testator, or his agent. And the defendants made no engagement with the testator as to the manner in which they should keep or examine their own books. Even if there were negligence as to the concerns of the bank, it could not affect this deposit, as special deposits were not entered in the books. Had the leger been kept posted, it would have been made to conform to the balance and cash books.

Further, this party cannot charge the defendants with negligence; because Mr. Foster was a member of the corporation. He had a right to examine the books, &c. At the annual meeting, it is the duty of the stockholders to examine. These frauds were committed for years. The stockholders every year inspected the accounts, approved of them, and reelected the officers. The negligence was not in the corporate, immaterial body, but in the members or officers. If in the members, then Mr. Foster was as culpable as any of them, and cannot now charge them for the fraud of their joint servants; if the officers only, then they were as much his servants, as any others'.

The bank was made a corporation aggregate for their convenience. They acted as copartners for several years. If they had continued so, there could have been no color for maintaining this action. It must have been against the servant, or the parties to the fraud only. The incorporation cannot enlarge the rights of the plaintiffs.

The action stood continued for advisement until this term, and now the opinion of the Court was delivered by

PARKER, C. J. This is assumpsit, to recover of the defendants the value of certain gold, deposited by the plaintiffs' testator in the bank of which the defendants are

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the proprietors; and the facts, upon which the action is founded, are established by a special verdict, found by the jury who tried the issue.

Those facts are multifarious, and present several important questions of law, which have been investigated by the counsel with all the research and ability, which novelty in their application to a subject of so general concern as banks seemed to demand. No case has, however, been produced on either side, so apposite as to relieve the Court from an inquiry into the general principles, on which the action is founded; and after all the pains, which other public engagements have allowed us to bestow on this particular case, no authorities have been discovered, having an essential bearing upon it, which had escaped the diligence of the counsel employed in the argument.

The public importance of the questions has induced us to delay forming a conclusive opinion, while there was any room to suppose we might be mistaken; and doubts, which have, until a late period, prevailed with one or other of us, owing to want of time for examination, rather than to any intrinsic difficulty in the case, have occasioned repeated revisions of the arguments of counsel, and frequent recurrence to the authorities cited. Our minds are now definitively settled; and we hope to be able to show that the result we have come to is supported by the best approved principles of the common law, and conformable to decisions, ancient and modern, in analogous cases. In attempting to do this, we shall consider,

1st. Whether the bank made any contract with the plaintiffs' testator.

2dly. What is the nature of that contract.

3dly. Whether it has been violated.

1. On the first point we have had little difficulty. For, notwithstanding the act of incorporation gives no particular authority or power to receive special deposits; and although the verdict finds that there was no regulation or by-law relative to such deposits, or any account of them

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required to be kept and laid before the directors or the company, or any practice of examining them; yet as it is found that the bank, from the time of its incorporation, has received money and other valuable things in this way; and as the practice was known to the directors, and we think must be presumed to have been known to the company, as far as a corporation can be affected with knowledge; and as the building and vaults of the company were allowed to be used for this purpose, and their officers employed in receiving into custody the things deposited; the corporation must be considered the depositary, and not the cashier or other officer, through whose particular agency commodities may have been received into the bank.

No authorities are necessary to support this position. It rests upon common and familiar principles. The master and owner of a house or warehouse, allowing his servants or clerks to receive for custody the goods of another, and especially if the practice be general and unlimited, as is the case with banks in relation to special deposits, will be considered the bailee of the goods so received, and will incur the duties and liabilities belonging to that relation. Not so, if the servant, secretly and without the knowledge, express or implied, of the master, he not having authorized or submitted to the practice, receives the goods for such purpose; for no man can be made the bailee of another's property, without his consent; and there must be a contract, express or implied, to induce a liability. The knowledge and permission, expressly found or legally to be presumed in this case, establishes a contract between the parties. And this brings us to the consideration of the second point, viz.,

2dly. The nature and legal qualities of this contract. It will not be disputed, that, if it amounts only to a naked bailment, without reward, and without any special undertaking, which, in the civil and common law, is called depositum, the bailee will be answerable only for gross negligence, which is considered equivalent to a breach of faith;

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as every one, who receives the goods of another in deposit, impliedly stipulates that he will take some degree of care of it. The degree of care, which is necessary to avoid the imputation of bad faith, is measured by the carefulness which the depositary uses towards his own property of a similar kind. For although that may be so slight, as to amount even to carelessness in another; yet the depositor has no reason to expect a change of character, in favor of his particular interest; and it is his own folly to trust one, who is not able, or willing, to superintend with diligence his own concerns.

This principle, although denied by Lord Coke, as in 1 Inst. 89, b., has been received as the law regulating gratuitous bailment, as it is sometimes called, or mere deposit, where there is no advantage but to the depositor, from the luminous opinion of Lord Holt in the celebrated case of Coggs vs. Bernard, down to the profound and brilliant treatise of Sir William Jones, in which, with a wonderful mixture of learned research and classical illustration, he has analyzed the complicated contract of bailment; and applied the principles of moral philosophy, the doctrines of the civil law, and the usages of all nations, ancient and modern, to the different branches of this diversified subject, so as to leave little room for speculation, except as to the application of his rules to particular cases, as they arise.

The dictum of Lord Coke, that the bare acceptance of goods to keep implies a promise to keep them safely, so that the depositary will be liable for loss by stealth or accident, is entirely exploded; and Sir W. Jones insists that such a harsh principle cannot be inferred from Southcote's case, [Note 36] on which Lord Coke relied; the judgment in that case, as the modern civilian thinks, being founded upon the particular state of the pleadings, from which it might be inferred, either that there was a special contract to keep safely, or gross negligence in the depositary. But as the judges Gawdy and Clench, who alone decided

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that cause, said that the plaintiff ought to recover, because it was not a special bailment, by which the defendant accepted to keep them as his own proper goods, and not otherwise; [Note 37] the inference which Lord Coke drew from the decision, that a promise to keep implied a promise to keep safely, even at the peril of thieves, was by no means unwarranted. But the decision, as well as the dictum of Lord Coke in his Commentary, were fully and explicitly overruled by all the judges, in the case of Coggs vs. Bernard, and upon the most sound principles. It is so considered in Hargrave and Butler's note to Co. Lit. n. 78, and all the cases since have adopted the principle, that 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, as is every where observed, bears so near a resemblance to fraud, as to be equivalent to it in its effect upon contracts.

Indeed the old doctrine, as stated in Southcote's case, and by Lord Coke, has been so entirely reversed by the more modern decisions, that, instead of a presumption arising from a mere bailment, that the party undertook to keep safely; and was therefore chargeable, unless he proved a special agreement to keep only as he would his own; the bailor, if he would recover, must, in addition to the mere bailment alleged and proved, prove a special undertaking to keep the goods safely; [Note 38] and even then, according to Sir William Jones, the depositary is liable only in case of ordinary neglect, which is such as would not be suffered by men of common prudence and discretion; so that if goods deposited with one who engaged to keep them safely were stolen, without the fault of the bailee, he having taken all reasonable precautions to render them safe, the loss would fall upon the owner, and not the bailee. And Sir William Blackstone, in his Commentary, recognizes the same principle; for he says, "If a friend delivers any thing to his friend to be kept for him, the receiver is bound to restore it on demand; and it was formerly

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held that in the mean time he was answerable for any damage or loss it might sustain, whether by accident or otherwise; unless he expressly undertook to keep them only with the same care as his own goods, and then he should not be answerable for theft or other accidents. But now the law seems to be settled, that such a general bailment will not charge the bailee with any loss, unless it happens by gross neglect, which is construed to be an evidence of fraud. But if he undertake specially to keep the goods safely and securely, he is bound to answer all perils and damages, that may befall them for want of the same care, with which a prudent man would keep his own." 2 Comm. 453. And this certainly is the more reasonable doctrine; for the common understanding of a promise to keep safely would be, that the party would use due diligence and care to prevent loss or accident; and there is no breach of faith or trust, if, notwithstanding such care, the goods should be spoiled or purloined. Any thing more than this would amount to an insurance of the goods; which cannot be presumed to be intended, unless there be an express agreement, and an adequate consideration therefor.

The doctrine, as thus settled by reason and authority, is applicable to the case of a simple deposit, in which there is an accommodation to the bailor, and the advantage is to him alone. He shall be the loser, unless the person in whom he confided has shown bad faith, in exposing the goods to hazards to which he would not expose his own. This would be crassa negligentia, and for this alone is such a depositary liable.

If we proceed one step further in the gradation of liabilities, we shall discover every legal principle, which can by possibility affect this cause, considered as founded on a contract of bailment. It was urged by the plaintiff's counsel, that this is not a naked bailment, but is accompanied with an advantage from the use of the property, or the credit derived from the custody of it; and that this

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ought to be viewed in the light of a reward, so that the case will be brought within the principle of bailment for hire or reward. If it be so, the principle applicable to this species of bailment goes no further than to make the bailee liable in case of ordinary neglect; so that if he shows that he used due care, and nevertheless the goods were stolen, he would be excused. This is the doctrine of Sir William Jones, and was the opinion of Lord Kenyon, in the case of Finnucane vs. Small, cited in the argument; which, though a nisi prius decision, is satisfactory evidence of the law, as two very eminent sergeants acquiesced in his opinion.

And this is also reasonable, for one who takes goods into his warehouse, to keep for a stipulated price, does not intend to insure them against fire or thieves. His compensation is only in the nature of rent; or if any thing beyond that, only for the vigilance of a man of common prudence. If he locks and fastens the warehouse, as other prudent people do, and thieves break through and steal, he ought not to be accountable; if he leave the door or windows open, he ought to be. The common sense of mankind must acquiesce in these reasonable provisions of the law; and without doubt the common dealings of men are governed by them, as principles of natural justice, without a knowledge of the positive law.

Having thus settled satisfactorily to ourselves the principles, by which our judgment in this action is to be guided, we proceed to a consideration of the facts, in order to ascertain under what species of bailment the plaintiffs' property was committed to the keeping of the defendants. It has been before observed that, as it was received into their building and placed in their vaults by their servants, according to a practice allowed of by them, they must be responsible in some degree; and are bound to restore it, or the value, unless it has been lost by some accident, for which they are not liable by the nature of their contract. We think there is no doubt that on such a deposit an

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action of trover would lie against the corporation, if they should refuse to deliver the property on demand; and assumpsit might also be maintained, it being settled, by the later authorities, that either action may be maintained against an incorporated company, as well as against a natural person; although the doings, on which the action is founded, are not verified by the seal of the corporation. Vide the opinion of Mr. Justice Story, in the case of The Bank of Columbia vs. Patterson's Adm'r., 7 Cranch 299, in which all the learning upon the subject of corporate liabilities is exhausted.

Looking into the special verdict, we find the money of the plaintiffs' testator, contained in a chest which was locked, and the key kept by his agent was received into the bank by W. S. Gray, the cashier, in the presence of W. Orne, who was president of the bank at the time. The money, being gold, was weighed in the presence of the president and cashier, and a memorandum of the different pieces in separate bags taken by the cashier and given to Mr. Bond , the testator's agent, with this writing signed by Mr. Gray as cashier, viz., "Left at Essex Bank for safe keeping." The verdict finds that the chest, containing the gold, was left at the bank as a special deposit; that the bank was not authorized to use the money, or treat it otherwise than as a special deposit; that it was kept in the vault of the bank, until it was removed to Haverhill for better security in time of was, with the consent and at the expense of the owner; that after the danger was over, it was brought back and replaced in the vaults of the bank, with the specie belonging to the bank, and there remained until it was pilfered, as afterwards stated in the verdict. Mr. Bond, the agent of the owner, was in the practice of coming to the bank, to look into the vault to see that the money was safe; but it did not appear that he opened the cask or counted the money. Some of the doubloons were delivered to the agent, on the order of the testator, by the cashier, in August, 1817; and at other

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times other doubloons were delivered in the same manner on similar orders. At each of these times the cask was opened by the cashier or chief clerk, to deliver the doubloons, pursuant to orders. This was done without the knowledge of any of the directors. They knew nothing of the delivery of the doubloons, nor was any account taken of them in the books of the bank. It is found that no return or statement of special deposits was ever made to the directors by the cashier; and that such deposits are made and taken away without the particular knowledge of the directors, although they know it is the practice so to receive and take them. The directors knew nothing of the nature or amount of this or any other special deposit, unless such knowledge may be presumed from the agency of the president and cashier in receiving this deposit, or of the cashier when he delivered the doubloons pursuant to orders. And it is found not to be the practice of this or any other bank, for the directors to inspect or examine special deposits; and it is considered improper for any officer to do so, without the consent of the depositor.

Upon this state of facts, we think it most manifest that, as far as the bank was concerned, this was a mere naked bailment, for the accommodation of the depositor, and without any advantage to the bank, which can tend to increase its liability beyond the effect of such a contract. No control whatever of the chest, or of the gold contained in it, was left with the bank or its officers. It would have been a breach of trust to have opened the chest, or to inspect its contents. The owner could at any time have withdrawn it, there being no lien for any price of its custody; and it was not thought that the bank had authority to remove it to a place of greater safety, without the orders of the owner. If it be possible to constitute a gratuitous bailment, or a simple deposit, this was one; unless the memorandum given by the cashier altered its character, or unless the nature of such a deposit

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is such as to have given the bank a right to derive profit from it; both of which points have been contended for by the counsel for the plaintiffs.

As to the first of these points, supposing the bank to be answerable for any special undertaking of the cashier, we perceive no evidence of such an undertaking in this case. The writing signed by the cashier is merely a memorandum, signifying that the chest and its contents were left in the bank for safe-keeping. It contains no promise, and assumes no risk, other than would be derived from the mere delivery without any writing. Nor does it receive any additional force from the presence of Mr. Orne, and his certificate of the gold having been weighed in his presence. For in this he did not act or sign officially; and if he had assumed to do so, it not being within the scope of his authority, as president, to charge the bank with any special liability, his act could not have bound the corporation, who, according to the practice as found by the jury, take no notice of special deposits. And the same may be said of the memorandum signed by the cashier. For if he had undertaken to make the bank specially answerable for a deposit, contrary to its usage and to the nature of the contract implied by accepting such a deposit, such an undertaking, without previous authority or subsequent assent, would have failed to implicate the bank.

We think, also, that there is nothing in the nature of such a deposit, or in the usages of banks, or in the act incorporating the bank, from which any qualities can be attached to this bailment, which do not belong to that class of contracts generally, where the advantage is wholly on the side of the depositor.

It was contended that the bank might discount on this property. But if the true nature of a special deposit is understood by us,--and we think its character is properly described in the special verdict,--we are of opinion this could not be done. For although the bank, by implication, are allowed, in

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the act of incorporation, to have credit upon the simple amount of all the moneys deposited for safe-keeping, we are satisfied that the legislature had reference to general deposits only in this provision. It does not appear that this or any other bank ever issued notes upon the credit of special deposits; indeed they could not, as the amount of such deposits, or the value of them, is generally wholly unknown to the directors and the company. The eighth section of the incorporating act, we think, clearly shows that the deposits referred to in the third section are general deposits. For in the eighth section an annual account of the moneys deposited is required to be made to the governor and council, in order that it may be ascertained whether there has been an excessive issue of notes. Now, of special deposits no such account can be rendered, because none is kept; and we have never heard that any bank has been complained of, as violating its charter, for not rendering an account of such deposits.

We see, then, no profit to the bank, arising from special deposits, unless it be, as was suggested, that they acquire an increased credit with the community on their account. But any credit founded upon such deposits would be fallacious, since they cannot be meddled with by any officer of the bank, although authorized by a vote of the corporation, without a breach of trust which would subject them to an action. As to the idea suggested, that the business of a bank may be facilitated and increased by the accommodation given to special depositors, the advantage, if any, is too minute and remote to affect their liability.

Such deposits are indeed simply gratuitous on the part of the bank, and the practice of receiving them must have originated in a willingness to accommodate members of the corporation with a place for their treasures, more secure from fire and thieves than their dwelling-houses or stores; and this is rendered more probable from the well-known fact, that not only money or bullion, but documents, obligations, certificates of public stocks, wills, and other

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valuable papers, are frequently, and in some banks as frequently as money, deposited for safe-keeping.

This is wholly different from the deposits contemplated in the act on which notes may be issued; for they enter into the capital stock, become the property of the bank as much as their other moneys, and the bank become debtors to the depositors, for the amount.

3dly. The contract in the present case being then only a general bailment, the third question to be discussed is, whether the contract has been executed by the bank. I use the word bank for the corporation, consisting of the president, directors, and company, for the sake of brevity.

The rule to be applied to this species of bailment is, as has been stated, that the depositary is answerable, in case of loss, for gross negligence only, or fraud which will make a bailee of any character answerable. Gross negligence certainly cannot be inferred from any thing found by the verdict; for the same care was taken of this as of other deposits, and of the property belonging to the bank itself. The want of books, showing the number and amount of deposits, is not a culpable negligence; for the acceptance of the deposit being voluntary, the bank was not obliged to incur any labor or expense in this respect; and besides, the agent of the depositor required nothing but a memorandum from the cashier; and this was more than he could have insisted on as a right.

As to the supposed neglect and carelessness of the directors, in not inspecting the cashier's accounts more strictly, so as to have detected his fraudulent management of the books to cover his peculation, this concerned the property of the company, not that of special depositors; and the reputation of the cashier, and general confidence in him, found by the verdict, is a sufficient answer to any charge of negligence in his original appointment or continuance in office.

We have thus prepared the way for the discussion of the great question in the case, and we believe the only

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one on which doubts could be entertained. The loss was occasioned by the fraud or felony of two officers of the bank, the cashier and chief clerk. We shall not consider whether the act of taking the money was felonious or only fraudulent; as the distinction is not important in this case; the question being whether there was gross negligence; and that fact may appear by suffering goods to be stolen, as well as if they were taken away by fraud. Fraud on property deposited, committed by the depositary, or his servants acting under his authority, express or implied, relative to the subject matter of the fraud, is equivalent to gross negligence, and renders the depositary liable. No fraud is directly imputed to the bank; it being found that the directors, who represent the company, were wholly ignorant of the transactions of the cashier and chief clerk in this respect.

The point, then, is narrowed to this consideration, whether the corporation, as bailee, is answerable in law for the depredations committed on the testator's property by two of its officers; and here, it being thought there was some discrepancy in the authorities, we have felt ourselves obliged to examine minutely all which have been cited, and all others having a bearing on the question.

It was contended by one of the counsel for the plaintiffs, as a proposition universally true, that the principal is civilly answerable for all frauds done by his agents; and he is supported in the use of this language by a doctrine of Lord Kenyon in the case of Doe vs. Martin, and also by Lord Ellenborough in 1 Camp. 127. And yet it must strike the mind of every man of sense, that this universal proposition will admit of, and, indeed, upon principles of common justice, actually requires, considerable qualifications. No one will suppose, if my servant commits a fraud, relative to a subject that does not concern his duty towards me, that I shall be civilly answerable for such fraud. If I send him to market, and he steps into a shop and steals, or upon false pretences cheats the shop-keeper of his

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goods, I think all mankind would agree that I am not answerable for the goods he may thus unlawfully acquire; and yet the proposition, as stated, will embrace a case of this kind. The proposition can be true only when the agent or servant is, while committing the fraud, acting in the business of his principal or master; and this was the state of things in both the cases which are cited to support the proposition; and they go upon the principle of an implied authority to do the act.

The rule of law is correctly laid down by Sir William Blackstone [1 Comm. 429.], viz., "that the master is answerable for the act of his servant, if done by his command, either expressly given or implied." And in another place, "If a servant by his negligence does any damage to a stranger, the master shall answer for his neglect; but the damage must be done while he is actually employed in his master's service; otherwise the servant shall answer for his own misbehavior." [Ibid. 431.] The same rule will apply more strongly to frauds practised by the servant. Christian, in a note to this passage, approves this doctrine, and illustrates it with some observations of his own.

The Supreme Court of the United States recognize the same doctrine in the case of The Mechanics' Bank vs. The Bank of Columbia, 5 Wheat. 326, in which it is said that the liability of the principal depends upon the facts, 1. That the act was done in the exercise, and, 2. Within the limits, of the powers delegated. Any act, they say, within the scope of the power or confidence reposed in the agent, such as money credited in the books of the teller of a bank, or proved to have been deposited with him although he omits to credit it. And in the case of Ellis vs. Turner & Al., 8 D. & E. 533, Lord Kenyon says, "The defendants are responsible for the acts of their servant, in those things that respect his duty under them, though they are not answerable for his misconduct in those things that do not respect his duty to them; as if he, being

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master of the defendants' vessel, were to commit an assault upon a third person in the course of his voyage." And upon the same principle it has been holden, that if a servant wilfully drive his master's carriage against the carriage of another, the master is not liable for the damages. [1 East, 106.] And the reason is the same; for in such case there is no authority from the master, express or implied; the servant in that act not being in the employment of his master. In the case here referred to, the master was not in the carriage at the time: the law would have been the same, if he had been present, and had endeavored to prevent the act; the presence of the master being only presumptive evidence of authority.

I think it may be inferred from all this, as a general rule, that to make the master liable for any act of fraud or negligence done by his servant, the act must be done in the course of his employment; and that if he steps out of it to do a wrong, either fraudulently or feloniously, towards another, the master is no more answerable than any stranger. The cases of innholders, common carriers, and perhaps ship-masters or seamen, when goods are embezzled, are exceptions to the general rule, founded on public policy. [Note 39]

We are then to inquire whether, in this case, when the gold was taken from the cask by the cashier and clerk, they were in the course of their official employment. Their master, the bank, had no right to meddle with the cask or open it; and so could not lawfully communicate any authority; and that they did not in fact give any, is found by the verdict. Nor did they in any manner assent to, or have any knowledge of it. There are no circumstances, then, from which such authority can be implied. The chest or cask, when once placed in the vault, was to remain there until taken away by the owner, or ordered away by the bank; either party having a right to discontinue the bailment. It was never opened but by order of the owner, until it was opened

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by the officers for a fraudulent or felonious purpose. It was no more within the duty of the cashier, than of any other officer or person, to know the contents, or to take any account of them. If the cashier had any official duty to perform relating to the subject, it was merely to close the doors of the vault, when banking hours were over; that this, together with other property there, should be secure from theft. He cannot therefore be considered, in any view, as acting within the scope of his employment, when he committed the villany; and the bank is no more answerable for this act of his, than they would be, if he had stolen the pocket-book of any person, who might have laid it upon the desk, while he was transacting some business at the bank.

If it be asked, for what acts, then, of a cashier or clerk, the bank would be answerable; I should answer, for any which pertain to their official duty; for correct entries in their books, and for a proper account of general deposits; so that, if by any mistake, or by fraud, in these particulars, any person be injured, he would have a remedy. If they should rob the vaults of the property of the bank, the company would necessarily lose; as must have happened in this case to a great amount; and if the bank have become debtors to those who have deposited otherwise than specially, their debts will not be diminished by the fraud; so that in this form they are answerable to depositors; and for the correct conduct of all their servants, in their proper sphere of duty, they are answerable. They may also possibly be answerable for notices to endorsers upon bills and notes left with them for collection, if there should be a failure, by the neglect of any of their servants; because they have undertaken to give the proper notices. But even in that case it may admit of a question, whether they would be liable any further than attorneys, who undertake the collection of debts, would be.

But they are not answerable for special deposits, stolen by one of their officers, any more than if

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stolen by a stranger; or any more than the owner of a warehouse would be, who permitted his friend to deposit a bale of goods there for safe-keeping, and the goods should be stolen by one of his clerks or servants.

The undertaking of banking corporations, with respect to their officers, is that they shall be skilful and faithful in their employments; they do not warrant their general honesty and uprightness.

And it is the same with individuals. If a friend commit to my care valuable property to keep for him, and it be stolen by my servants. I shall not be answerable for the loss; as was stated by Lord Kenyon in the case of Finnucane vs. Small. This case, before referred to for another purpose, deserves special notice upon this point; for if it be law, it goes the whole length of the case before us, and even beyond it; for the bailee there received a reward for his custody of the goods, which were stolen. The plaintiff was an officer in the army, and being about to leave London, sent his trunk to the defendant's house for safe custody, and was to pay one shilling per week for house-room. When he returned he received the trunk, but the contents had been stolen. Lord Kenyon held the defendant not liable, it appearing that he had taken as much care of the trunk, as he had of his own goods; and that if the goods were stolen by the defendant's servants, as was stated to have been the fact by the plaintiff's counsel, it would make no difference. His lordship no doubt considered the hire agreed to be paid, as mere compensation for house-room, not as a reward for diligence and care; and therefore did not require of the defendant more care than he used about his own goods, considering it as a simple deposit only. Whether he was right or not in this, there is no doubt of the correctness of his opinion with respect to the agency of the servants in the theft; for they were not in the course of their duty, when pilfering the trunk of its contents. Garrow and Shepherd, eminent sergeants, and since judges, acquiesced in the opinion.

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This case is, in all respects, like the one before us, except that the goods were to be kept for hire; and the difference is altogether in favor of the defendants in the present case.

In answer to this case it was observed by the counsel for the plaintiffs, that the cashier of the bank was trusted, and, therefore, the doctrine of Lord Kenyon did not apply. But if we are right in the principles before stated, he was not trusted in this business; neither he nor his principal, the bank, having any thing to do with the chest or cask, but to give it a place in the vault, and to lock it up, when the hours of business were over; and so the cashier must be considered like the servant in the case cited.

Some stress was laid, in the argument, upon the security taken by the bank of the cashier, for the faithful discharge of his duty. But we think it obvious, that nothing was contemplated in the security, but the official neglects of the cashier. The act of incorporation authorizes the bank to require bonds, in a sum not less than ten thousand dollars; and a bond was taken in that sum only. Now, considering this as one of the oldest banking companies, in one of the most wealthy towns in the commonwealth; without doubt special deposits of a vast amount were from time to time received into the bank for safe-keeping, and a bond for ten thousand dollars could never have been taken, to indemnify against a possible loss of these.

Upon a view, therefore, of all the points in the case, and after a careful attention to the arguments and authorities, we are satisfied that, upon the special verdict, judgment must be entered for the defendants.

We have to regret that two of our brethren have been so situated, as to be unable to afford us any assistance; one being slightly interested when the action was commenced, [Note p513-a] and the other having become interested by the death of a relative, since the argument, and before any consultation was had upon the cause. [Note p513-b] It is a consolation,

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however, that the rest of us, having examined the cause with great care separately and together, all concur in the opinion which has been given.

This has been said to be a hard case on the part of the plaintiffs, whose testator confided a large amount of property to a place, as he thought, of perfect security, under the management of at least common prudence and skill; and, indeed, it is a hard case, as all cases are, where property is lost by violence or fraud. But it is not less hard upon many of the members of the corporation, who have, by the same wicked conduct, been deprived of their earnings and savings. All that can be done by the Court is to lament the common misfortune, and take care not to add injustice to hardship, by relieving one sufferer at the expense of others, unless the principles of law demand such interposition.

Costs for the defendants.