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certainty that she is the wife of the defendant, and it itself to establish the marriage; but it was argued that would seem that she shoulil produce the best evidence in as the performance of the religious ceremony without her power.To same effect Ellis v. Ellis, 11 Mass. 92. a previous valid marriage by a civil magistrate would The reason that underlies the doctrine of the pre render all concerned guilty of crime, such marriage sumption of marriage from a cohabitation apparently must be presiimed to have been duly entered into bematrimonial, is that the law will presume morality fore the performance of the religious ceremony, for and innocence rather than immorality and guilt. the reason that the law would presume that those conWhere therefore the effect of raising a presumption of nected with the performance of the marriage were inmarriage from cohabitation and repute would, nocent of such crime. But the court refused to be although it would exonerate the parties from the governed by this consideration, and based its decision charge of immorality in the particular case, be to in on this point on the immovable foundation that the volve one of them in an immoral relatiou with another law will not presume innocence in one instance where or render him or her guilty of a crime, the cohabita the effect of such a presumption is to involve one of tion creates uo presumption, and is thereforo no evi the parties litigant in some moral delinquency or rendence of marriage when standing alone. If it can be der him or her guilty of a crime. The court said: shown that during the continuance, or prior, or subse- “Perhaps under the justly liberal rule in respect to quent to the cohabitation between the parties, one of proof of foreign marriages in civil suits, it” (the prethem cohabited with onother person, the law will not sumption of the innocence of those participating in presume that the cohabitation in question was matri the religious ceremony) “would be allowed to prevail. monial, for that would necessarily reuder the other But to give that effect in a criminal prosecution would cobabitation meretricious, unless a legal dissolution of be to overcome the presumption of the prisoner's inthe former cohabitation by death or divorce, can be nocence by the no stronger presumptiou of the innoshown before the inception of the latter. As the law cence of a stranger, and that in a proceeding in which cannot in such cases presume innocence in one case such stranger was not on trial.”' without rendering one of the parties guilty morally or It is not however a rulo of universal application that criminally in another case, it will not presumo a mar the presumption of innocence will not be raised in riage from either cohabitation. The authorities on every case in which it comes in conflict with another this point are uniform. Breukey v. Breakey, 2 V'. C. presumption. The doctrine has obtained for a long Q. B. 349, 358; George v. Thomas, 10 id. 604; Chamber- time, and is sanctioned by all the adjudications on the lain v. Chamberlain, 71 N. Y. 4:23.

point, that the presumption of innocence will counterIn George v. Thomas the court decided that the pre balance and preponderate against the presumption of sumption of marriage from cohabitation is rebutted the continuance of life of the former wife or husband by the woman's having lived with another man in of one of the parties. Under the familiar rule of the such a manner as to create the samo presumption of it common law the presumption of life continues till the marriage with him.

expiration of seven years from the time a person was In Chamberlain v Chamberlain the court held that last heard from. But where one of the parties to a tbe inference of a marriage from an apparently miat marriage contract has been absent and unheard from rimonial cohabitation was overcome by the subse- for a reasonable time short of seven years, a second quent actual marriage of the alleged husband with marriage by the remaining partner may be sustained another woman during the life-time of the woman by indulging the presumption that the absent party with whom he had so lived. Precisely the same doc

was dead at the time of the second marriage, and the trine was enunciated in Clayton v. Wurdell, 5 Barb.

court is bound to instruct the jury that the presump214; S. C., 4 N. Y. 230; Taylor v. Taylor, 1 Lee, 571; S.

tion of innocence may overthrow the presumption of C., 2 Eng. Eq 290; Wheeler v. DicWilliams, 2V. C. Q. the continuance of life. Senser v. Bower, i Penn. B. 77; S. C., 3 id. 165.

450; Reg. v. ('ross, I Fost. & F. 510; Spears v. Burton, The principle that lies at the foundation of this lagt 31 Miss. 547; Jlurruy v. Murray, 6 Oreg. 17; Reg. v. doctrine is that the presumption of innocence in the Lumley, Law Rep., 1 ('

. C. 196; Rex. F. Tuyning, :: one case would render the party guilty of bigamy, and

B. & Ald. 386; Greensborough v. Underhill, 12 Vt. 604; thus the courts would in effect presume a greater Northfield v. Plymouth, 20 id. 582; Yates v. Houston, guilt than that which they would raise the presump 3 Tex. 433; Chupman v. ('ooper, 5 Rich. 452; Canaday tion to obriate. The authorities are numerous to the

v. George, 6 Rich. Eq. 103; Hull v. Ruwls, 27 Miss. effect, that in all cases where the consequence of pre

471. suming innocence in the particular case is that

Tbo question where the presumption of innocence is another guilt, moral or legal of an equal greater de to prevail is generally a question of fact. Murray v. gree is fastened upon ono of the parties, the ordinary Alurray, 6 Oreg. 17; Rey. v. Lumley, Law Rep., 1 C. C. rule of the presumption of a marriage will not obtain,

196. In Rex v. Tryning the court sustained the verbut that direct evidence of the alleged marriage dict of the jury which upheld a marriage entered into must be adduced. jones v. Jones, 45 Md. 141; by a woman within a year after the departure of her 48 id. 391; Poultney v. Fairhaven, Braytou (Vt.), first husband from the country, and in Rex v. Har185; Houpt v. IIoupt. 5 Ohio, 539; Foster v. Harley, 8 borne, 2 A. & E. 540, the court sustained a verdict Hun, 68; see also 1 Bish. on Mar. & Div., SS 444 to 417;

which found against the validity of a marriage celeBlanchard v. Lambert, 43 Iowa, 228; Harrison v. Lin

brated only twenty-five days after the absent partner coln, 48 Me. 205; Sterens v. Joyul, 48 Vt. 291; IIill v.

of the former marriage was known to be alive. State, 41 Ga. 481; Williams v. Slute, 44 Ala. 24.

In Greensborough v. Underhill the court set aside the In Weinberg v. State, 25 Wis. 370, the defendant was

verdict of the jury which declared void a second marindicted for bigamy. To sustain the charge it was

riage entered into two years after the husband of the necessary to prove a marriage in Prussia. By the law former marriage was last heard from. But in Vorthof that country a marriago to be valid must be en- field v. Plymouth the same court appears to have called tered into as a civil contract before a civil magistrate in question tho soundness of the former decision, beA religious solemnization of a marriage is forbidden

cause it seemed to have made the question one of law under severe penalties until the contract has been rather than of fact. However the court was clearly duly made before a civil magistrate. The only evi- right in ordering a new trial in the first case, for the dence of the Prussian marriage was the religious jury were manifestly misled by the charge of the solemnization. This of courso was not sufficient of court, and probably would have sustained the second

wife to Reed, it was generally reported and believed that he (Guest) was dead. Plaintiff married Reed in 1792. From the time of his return in 1794 until the time of his death in 1800 Guest continued to reside in the State. Plaintiff, after the death of Guest, cohabited with Reed down to his death in 1806. No solemnization of marriage was shown to have been performed between the plaintiff and Reed subsequent to the death of Guest. The court below decided however that as a matter of fact a marriage had taken place between them after Guest's death .in 1800. On appeal this decision was affirmed, the court saying: “There existed strong circumstances from which a marriage subsequent to the death of Guest might be presumed.” The parties cohabited together as husband and wife, and under the reputation that they were such from 1800 to 1806, when Reed died, and the wife during that time sustained a good character in society.





NOVEMBER 24, 1881.

marriage had they not labored under a misapprehension as to the law of the case.

Where there bas been sufficient to create a presumption it is not rebutted by the fact that the parties were subsequently married. Starr v. Peck, 1 Hill, :270; Betsinger v. Chapman, 88 N. Y. 499. The branch of this subject which is involved in the greatest uncertainty is that which relates to cohabitations which are meretricious in their inception. When we are compelled to start with the conceded fact that the commencement of the intercourse was illicit, it is an exceedingly difficult question to determine from the authorities what facts and circumstances, short of proof of an actual marriage, will warrant a court or jury in deciding that the meretricious union no longer exists, but that the parties have in fact become husband and wife. The familiar principle of the presumption of continuance is frequently applied in such cases, and the courts have almost uniformly and universally adjudged that a cohabitation shown to have been illicit in its inception will be presumed to continue illicit antil the contrary is clearly established. Badger v. Badger, 88 N. Y. 546; Brinkley v. Brinkley, 50 id. 198; Cunningham v. Cunningham, 2 Dow. 483; Burnum v. Barnum, 42 Md. 251; Post v. Post, 70 Ill. 181; Floyd v. Culvert, 53 Miss. 37'; Yardley's Estale, 75 Pem. St. 207'; Lapsly v. Grierson, 1 H. L. C'as. 498; ('aujolle v. Iers rie, 23 N. Y. 106; Clayton v. Mardeli, 1 id. 230; Stute v. Worthingham, 23 Minn. 528.

What will suffice to overcome this presumption depends largely upon the animus with which the parties formed their illicit connection. Where they have manifested a desire to live in a matrimonial union, and not in a state of concubinage, and during their cohabitation there has been a time when they might lawfully hare married, a jury will be justified in finding a marriage from the mere fact of continued cohabitation apparently matrimonial, although it was for some reason meretricious in its inception. The following authorities fully sustain this proposition: Fenton v. Reed, 4 Johns. 52; Van Buskirk v. Claw, 18 id. 315; Rose v. Clark, 8 Paige, 574; Caujolle v. Ferrie, 23 N. Y. 90; Betsinger v. Chapman, 88 id. 487-199; llyncs v. JcDermott, 91 id. 151; IIolabird v. Atlantic Ins. Co., 1:2 Am. Law Reg. (N. S.) 566; Vorth v. North, 1 Barb. ('h. 241; Starr v. Peck, 1 Hill, 270; Donnelly v. Donnelly, 8 B. Jon. 113; Blanchard v. Lambert, 4:3 Iowa, 228; Sluto v. Worthingham, 23 Minn. 5:28; Dickerson v. Broun, 49 Miss. 357; Floyd v. Calvert, 53 id. 37-46; Joncs v. Jones 45 Md. 153; Yates v. Hlouston, 3 Tex. 133-150; ('rumpbeli v. Campbell, Law Rep., 1 H. L. Sc. 18, 201, 201, 212, 215; Breadulbane's case, L. R., 1 Scotch Divorce Appeals, 182; De Thoren v. vlorney-General, L.R., 1.1pp. C'as. 686; In re l'aylor, 9 Paige, 611.

Indeed some of the authorities have gone so far as to presume a subsequent marriage against all the probabilities of the case. Among those are Fenton v. hved, Rose v. Clark, Campbell v. C'umubell, Le Thoren v. illtorney-General, Breadalbane case, and Donnelly v. Donnelly. The question is so important, and these cases are so unanimous in support of the true doctrine that where the evidence discloses the fact that the parties desired a matrimonial instead of a meretricious connection, the slightest circumstance should be held to afford sufficient eridence on which to predicate al finding of marriage, that the discussion of this ques. tion would be very incomplete without a brief review of them.

In Fenton v. kecd, decided in 1809,the question of marriage was presented under the following circumstances: The plaintiff claimed to be the widow of one Reed. In the year 1785 she was the wife of one John Guest. Sometime during that year Guest left the State for foreigu countries, and did not return util 1791; and prerious to his return, and before the marriage of his


NAT. BANK OF THE CITY OF NEW YORK.* A bank in Pittsburgh sent to a bank in New York for collec

tion cleven unaccepteel drafts, dated at various times through a period of over three months, and payable four months after date. They were drawn on Walter M. Conger, Secretary Newark Tea Tray Co., Newark, N. J., and were sent to the New York bank as drafts on the tea tray company.

The New York bank sent them for collection to a bank in Newark, and in its letters of transmission recognized them as drafts on the company. The Newark bank took acceptances from Couger individually, on his refusal to accept as secretary, but no notice of that fact was given to the Pittsburgh bank until after the first one of the draits had matured. At that time the drawers and an indorser hail become insolvent, the drawers having been in good credit when the Pittsburgh bank discounted the drafts. Ibild, that the New York bank was liable to the Pittsburgh bank for such damages as it had sustained by the negligence of the Newark bank. N error to tho ('ircuit ('ourt of the l'nited States for

the District of New Jersey. The opinion states the


John R. Emery and Thomas V. JcCarter, for plaintiff in error.

11. Q. K'easbey, for defendant in error.

BLATCHFORI), J. The Exchange National Bank of Pittsburgh, Pennsylvania, brought this suit against the Third Nasional Bank of the city of New York, in the ('ircuit ('ourt of the l’nited States for the District of New Jersey, to recorer damages for the alleged negligence of the defendant in regard to eleven drafts or bills of exchange indorsed by the plaintiff to the de fendant for collection. The suit was tried before a court without a jury. It made a special finding of facts, and rendered a judgment for the defendant, to review which the plaintiff

' has brought this writ of error'.

The facts found are these, in substance: The drafts were drawn by Rogers & Burchtielii, at l'ittsburgh, to the order of J. 1). Baldwin, and by him indorsed, on " Walter V.('onger, Sec'y Newark Tea Tray ('o., Newark, V. J.," and were discounted before acceptance by

* S.C., 5 Sup. Ct. Rep. 111, reversing 1 Fed. Rep. 20.

the plaintiff at Pittsburgh for the drawers. They bore
different dates, from June 8, 1875, to September 20,
1875, and were in all other respects similar except as
to the sums payable, and in the following form:

PITTSBURGII, June 8, 1875.
· Four months after date pay to the order of J. D.
Baldwin ten hundred and forty-two 75-100 dollars, for
account rendered, value received, and charge to ac-
count of

ROGERS & BURCHFIELD. “ To Walter M. Conger, Sec'y Newark Tea Tray Co., Newark, N. J."

They were transmitted for collection at different times before maturity by the plaintiff to the defendant in letters describing them by their numbers and amounts, and by the words “Newark Tea Tray Co.” They were sent by the defendant to its correspondent, the First National Bank of Newark, inclosed in letters describing them generally in the same way, except that in two of the letters they were described as drawn on “W. M. (onger, Sec'y.” The drafts were received by the defendant in New York within a day or two of the time of discounting them. They were presented by the First National Bank of Newark to Conger for acceptance, who, except in one instsnce, accepted them by writing on the face these words: "Accepted, payable at the Newark National Banking Co. Walter M. Conger.” When the acceptances were taken the time of payment was so far distant that there was sufficient time to communicate to the plaiutiff the form of the acceptance, and for the plaintiff thereafter to give further instructions as to the form of acceptance. The Newark bank held the drafts for payment, but the plaintiff was not advised of the form of acceptance, until on the 13th and 19th of October, two of them were returned to it by the defendant. At that time the drawers and indorsers were insolvent, but the drawers were in good credit when the drafts were discounted by the plaintiff. The drafts were duly protested for non-payment, but none of them were paid. The Newark Tea Tray Company is a New Jersey corporation, doing business in that State, and Walter M. Conger is its secretary. The drafts were represented to the plaintiff by Burchfield, one of the drawers, who offered them for discount, to be “the paper of tho Newark Tea Tray ('ompany,” drawn against shipments of iron by Rogers & Burchfield to that company, and wero discounted as such by the plaintité. Ile also represented that Walter M. Conger was the person who examined the shipments of iron and "accepted the drafts,” and that they were drawn in this form for the convenieuce and accommodation of the company.

On drafts of Rogers & Burchfield on the Newark Tea Tray Co.,” dated May 4, 1874, May 20, 1874, and June 30, 1871, discounted by the plaintiff, and transmitted for acceptance to the defendant, and by it sent to the same Newark bank, that bank took acceptances from Walter M. (onger individually, without notice to the plaintilf; and (longer, during the time drafts sent by the plaintiff to the defendaut, addressed to the “Newark Tea Tray (0.” and to“ Walter M. l'onger, Sec'y Newark Tea Tray ('o., Newark, N. J.,” were in the hands of the Newark bauk to procuro acceptance, informed the cashier of the Newark bank that he would not accept these drafts in his official capacity as secretary.

The negligence alleged consists in not obtaining acceptance of ile drafts by the Tea Tray Company, or having them protested for non-acceptance by that company, or giving notice to the plaintiff of such nonacceptance, and in failing to give notice to the plaintiff that the company would not accept the drafts, or that ('onger would not accept them in his official capacity. The decision of the Circuit Court proceeded on the

ground that at most the defendant erred in judgment as to the import of the address on the drafts; that it had no information to qualify or explain such import; that for it to regard the drafts as addressed to Conger in his individual capacity was not a culpable error, because it followed decisions to that effect made by courts of the highest standing in New Jersey and New York and elsewhere; that it exercised intelligent and cautious judgment on the information it bad; and that the plaintiff knew who was the intended drawee, as understood between it and the drawers, and ought to have advised the defeudant, but failed to do so. 4 Fed. Rep. 20.

The only question presented by the record is that of the sufficiency of the facts found to support the judg. ment. It is contended by the defendant that its liability, in taking at New York for collection these drafts on a drawee at Newark, extended merely to the exercise of due care in the selection of a competent agent at Newark, and to the transmission of the drafts to such agent, with proper instructions, and that the Newark bank was not its agent, but the agent of the plaintiff, so that the defendant is not liable for the default of the Newark bank, due care baving been used in selecting that bank. Such would be the result of the rule establised in Massachusetts (Fubens v. Mercantile Bank, 23 Pick. 330; Dorchester Bank v. New England Bank, 1 Cush. 177); in Maryland (Jackson v. Union Bank, 6 Harr. & J. 146); in Connecticut (Lawrence v. Stonington Bank, 6 Comu, 521; East Haddam Bank v. Scovil, 12 id. 303); in Missouri (Daley y. Butchers & Drovers' Bank, 56 Mo. 94!; in Illinois (Etna Ins. Co. v. Alton City Bank, 25 Ill. 243); in Tennessee (Bank of Louisville v. First Nat. Bank, 8 Baxt. 101; S. ('., 35 Am. Rep. 691); in Iowa (Guelich v. National State Bunk. 56 Iowa, 434; S. (., 41 Am. Rep. 110), and iu Wisconsin (Stacy v. Drine County Bank, 12 Wis. 629). The authorities which support this rule rest on the proposition that since what is to be done by a bank employed to collect a draft payable at another place cannot be done by any of its ordivary officers or servants, but must be intrusted to a sub-agent, the risk of the neglect of the sub-agent is upon the party employing the bank, on the view that he has impliedly authorized the employment of the sub-agent, and that the incidental benefit which the bank may receive from collecting the draft, in the absence of an express or implied agreament for compensation, is not a suflicient consideration from which to legally infer a contract to warrant against loss from the negligence of the sub-agent.

The contrary doctrine that a bank, receiving a draft or bill of exchange in one State for collection in an other State from a drawee residing there, is liable for neglect of duty occurring in its collection, whether arising from the default of its own officers, or from that of its correspondent in the other State, or an agent employed by such correspondent, in the absence of any express or implied contract varying such liability, is established by decisions in New York (Allen v. MerchantsBunk, 22 Wend. 215; Bank of Orleans v. Smith, 3 Ilill, 560; Montgomery County Bank v. Albany City Bank, ñ N. Y. 459; ('ommercial Bank v. Union Bank, 11 id. 203, 212; vyrault v. Pacific Bank, 47 id. 570; S. C., 7 Am. Rep. 489); in New Jersey (Titus v. Mechanics' Vat. Ban 6 Vroom, 588); in Pennsylvania ( Wingale v. liechanics' Bank, 10 Pem. St. 104); in Obio (Reeles v. State Bunki, 8 Ohio St. 465); and in Indiana (Tyson v. State Bank, 6 Blackf. 225).

It has been so held in the Second ('ircuit, in Kent v Dawson Bank, 13 Blatchf. C. ('. 237, and the same view is supported by Tuber v. Perrot, 2 Gall. 565, and by the English cases of l'un IV«'t v. Woolley, 3 Barn. & C. 1:39, and juckersy v. Ramsays, 9 Clark & F. 818. In

the latter case bankers in Edinburgh were employed affirm the principle on which the defendant must be to obtain payment of a bill drawn on Calcutta. They held liable. Indeed its language supports the view transmitted it to their correspondent in London, who that the Newark bank in this case would not be liable forwarded it to a house in ('alcutta, to whom it was directly to the plaintiff. If that be so), and the defendpaid; but that house having failed, the bankers in Ed ant is not liable, the plaintiff is without remedy. inburgh, being sued, were by the House of Lords hell The case of Brition v. Niccolls, 104 U. S. 757, is cited liable for the money, on the ground that they being to show that the defendant is not liable. In that caso agents to obtain payment of the bill, and payment the defendants, bankers in Natchez, Miss., received having been made, their principal could not be called from the plaintiff, a resident of Illinois, for collection, on to suffer any loss occasioned by the conduct of two promissory notes, dated at Natchez, but not stattheir sub-agents, between whom and himself no priv ing any place of payment. They were sent to the deity existed.

fendants, through a banking house in Bloomington, The question under consideration was not presented Ill., with instructions to collect them, if paid, and if in Bank of Washington v. Triplett, 1 Pet. 25); for al not, to protest them and give notice to the indorsers. though the defendant bank in that case was held to The defendants placed the notes in the hands of a have contracted directly with the hoider of the bill to reputable notary in Natchez, to make demand of paycollect it, the negligence alleged was the negligence of ment and give notice to the indorsers. It was held its own officers in the place where the bank was situ that the defendants were not liable for negligence on ated.

the part of the notary, whereby the liability of a reIn Hoover v. Wise, 91 U. S. 308, a claim against a sponsible indorser was released. The negligence condebtor in Nebraska was placed by the creditor in the sisted in not presenting the notes to the maker at mahands of a collecting agency in New York, with in turity and demanding payment. The maker resided structions to collect the debt, and with no other in- | twelve or fifteen miles from Natchez, and had no domstructions. The agency transmitted the claim to an icile or place of business in Natchez. Vo information attorney at law in Nebraska. The attorney received as to his residence was given to the defendants with the amount of the debt from the debtor in Nebraska, the notes, and the plaintiff' wis ignorant of it. All the in fraud of the bankrupt law, and paid it over to the instructions which the defendants gare to the notary agency, but the money did not reach'the hands of the were giver on the several days the notes matured, creditor. The assignee in bankruptcy having sued the when they handed the notes to the notary, with increditor to recover the money, this court (three jus-structions to demand payment, and if they were not tices dissenting) held that the attorney in Nebraska paid to protest them, and send notice of non-payment was not the agent of the creditor, in such a sense that to the indorsers. The hotary knew where the maker his knowledge that a fraud on the bankrupt law was resided, and that he had no place of business in being committed was chargeable to the creditor, on Natchez; but he inquired for him at three public the ground that the collecting agency having under places in Natchez, and not finding him, protested the taken the collection of the debt, and employed an at notes for non-payment, and give notice to the intorney to do so, the attorney employed by it, and not corsers. The defendants had inquired at Natchez as by the creditor, was its agent, and not the agent of to the residence of the maker, but bad not learned it, the creditor; and the creditor was held not to be lia and hail sent notices to him, through the post-offico ble to the assignee in bankruptcy for the money. In there, of the amount and date of maturity of the notes the opinion of the court it is said that the case falls a reasonable length of time in advance. On these facts within the decisions in the above mentioned cases of it is apparent that the only question raised was as to Reeves v. State Bank, 8 Ohio St. 465; Vackersy v. Ruma the liability of bankers in Natchez in respect to a noto says, 9 Clark & F. 818; llontgomery County Bunli v. sent to them for collection, (lateil at Natchez, and not Albang City Bank, 7 N. Y. 159; Commercial Bank v. payable at any specified place there or elsewhere, for Union Bank, 11 id. 203; and Allen v. Jerchants' the negligence of a public notary there. The suit was as Bank, 22 Wend. 215; and it is said that those cases, the not against the banking house in Bloomington, which first three of which are stated at length, show that was only the agent to transmit the notes to the dewhere a bank as a collection agency receives a note for fendants for collection. The opinion of the court the purposes of collection, its position is that of an in states the question to be as to "the liability of the coldependent contractor, and the instruments employed lecting bankers for the manner in which the notary to by such bank in the business contemplated are its whom the notes are delivered for presentment and agents, and not the sub-agents of the owner of the protest discharges his duty." The court says: “The note.” The court proceeds to say that those authori notes being dated at Natchez, the presumption of law, ties go far toward establishing the position that the in the absence of other evidence on the subject, is that collecting agency was an independent contractor, and that was the placo of residence of the maker, and that that the attorney it employed was its agent only, and he contemplated making payment there. The duty of not in such wise the agent of the defendant, as to make the bankers as collecting agents was therefore to make the defendant responsible for the kuowledge of theat inquiry for his residence or place of business in that torney in Nebraska. The court then cites as a case in city, and if he had either, to make there the presentpoint Bradstreet v. Everson, 7: Penn. St. 124 ; S. ('., 13 ment of the notes; but if he hal neither, to use reaAm. Rep. 665, as holding that where a commercial sonable diligence to find him for that purpose." Tho agency at Pittsburgh received drafts to be collected at court then refers to the case of illen r. Jerchants' Memphis, and sent them to its agent at Memphis, who Bank, 22 Wend. 215, in the ('ourt of Errors of New collected the money and failed to remit it, the agency York as declaring the doctrine that a bank receiving at Pittsburgh was to be regarded as undertaking to paper for collection is responsiblen " for all subsequent collect, and not merely receiving the drafts for trans agents emploved in the collection of the paper," and mission to another for collection, and as being liable states that though that decision has been followed in for the negligence of its agent at Memphis. It also New York, and its doctrine has been adopted in Ohio, cites as to the same purport Louis v. Peck, 10 Ala. 142, it has been generally rejected in the courts of other and Cobb v. Becke, 6 Adol. & E. 9:30. It then says that States. The case of l'orchester Bunk v. Vence England these authorities fix the rule, before stated, on which Bank 1 ('ush. 177, is then cited as holding that is a the decision is rested. So far from there being any bank acts in good faith in selecting a suitable subthing in that case which goes to exonerate the defend agent at the place where the bill is payable, it is not ant in the case at bar, its reasoning tends strongly to liable for his neglect; and the opinion states that this

doctrine has been followed in the Supreme Courts of force of law, it is not to be determined according to Connecticut, Maryland, Illinois, Wisconsin -and Mis the views or interests of any particular individuals, sissippi.

classes, or localities, but according to those principles The court however does not adopt either of these which will best promote the general welfare of the views, or rest the decision of the case before it on the commercial community. Especially is this so when latter view; for it proceeds to say: “In the New the question is presented to this tribunal, whose deYork case, in the Court of Errors, it was conceded that cisions are controlling in all cases in the Federal the general liability of the collecting bank might be courts. The agreement of the defendant in this case varied and limited by express agreement of the par was to collect the drafts, not merely to transmit ties, or by implication arising from general usage, and them to the Newark bank for collection. This disin some of the cases in other States, proof of such

tinction is manifest; and the question presented is general usage of bankers in the employment of nota whether the Newark bank, first receiving these drafts ries was permitted, and a release thereby asserted from for collection, is responsible for the loss or damage reliability of the bank for any neglect by them.” Tho sulting from the default of its Newark agent. There court then states that there was in the case no proof is no statute or usage or special contract in this case, of any general usage of bankers at Natchez as to the to qualify or vary the obligation resulting from the employment of notaries public in the presentment and deposit of the drafts with the New York bank for colprotest of notes left with them for collection. But as lection. Onits receipt of the drafts, under these cirthere was a statute of Mississippi, passed in 18:53, au cumstances, an implied undertaking by it arose to thorizing notaries to protest promissory notes, and take all necessary measures to make the demands of requiring them to keep a record of their notarial acts acceptance necessary to protect the rights of the in such cases, and making the record admissible in holder against previous parties to the paper. From evidence in the courts as if the notary were a witness, the facts found, it is to be inferred that the New York and as the courts of that Stato had held (Tiernan v. bank took the drafts from the plaintiff, as a customer, Commercial Bank, 7 Hlow. [Miss.] 618; ilgricultural in the usual course of business. There are eleren Bank v. Commercial Bank, ņ Smedes & M. 592; Bow drafts in the case, running through a period of over ling v. Irthur, 31 Miss. 41), under that statute, that it three months, and the defendant had previously rewas a part of the duty of the notary, when protesting ceived from the plaintiff two other drafts, acceptances paper, to give all notices of dishonor required to charge of which it had procured from Conger, at Newark, the parties to it, and that a bank receiving commer through the Newark bank. The taking by a bank, cial paper, as an agent for collection, properly dis- from a customer, in the usual course of business, of charged its duty, in case of non-payment, by placing paper for collection, is sufficient evidence of a valuable the paper in the hands of such notary, to be proceeded consideration for the service. The general profits of with in such manner as to charge the parties to it, and the receiving bank from the business between the that the bank was not liable in such cases for the fail parties, and the accommodation to the customer, must ure of the notary to perform his duty, the court says, all be considered together, and form a consideration, that “judged by the law of Mississippi,” tho defend in the absence of any controlling facts to the contrary, ants “ discharged their duty to the plaintiff' when they so that the collection of the paper cannot be regarded delivered the notes received by them for collection to as a gratuitous favor. Smedes v. Bunk of Uticu, 20 the notary public,” and adds, “what more could they Jolins. 372, and 3 ('ow. 66:2; Jok'inster v. Bunk of bave done, as intelligent and honest collecting agents, lica, 9 Wend. 16, and 11 id. 473. The contract desirous of performing all that was required of them then becomes one to perform certain duties necessary by the law, ignorant as they were of the residence or for the collection of the paper and the protection of place of business of the maker of the notes, and har the holder. The bank is not merely appointed an ating unsuccessfully made diligent inquiry for them?" torney, authorized to select other agents to collect the It further says: The potary was not, in this mat paper. Its undertaking is to do the thing, and not ter, the agent of the bankers. He was a public officer, merely to procure it to be done. In such case the whose duties were prescribed by law, and when the bank is held to agree to answer for any default in the notes were placed in his hands, in order that such performance of its contract; and whether the paper is steps should be taken by him as would bind the in to be collected in the place where the bank is situated, dorsers if the notes were not paid, he became the or at a distance, the contract is to use the proper agent of the holder of the notes. For any failure on means to collect the paper, and tho bank, by employhis part to perform his whole duty, he alone was ing subagents to perform a part of what it has conliable." On these grounds the court held that the de tracted to do, becomes responsible to its customer. fendants were not guilty of negligence, and were not This general principle applies to all who contract to liable for the negligence of the notary. The clecision perform a service. It is illus: rated by the decision of was not placed on any general rule of commercial law, the ('ourt of King's Bench in Ellis v. Turner, 8 Term but rested on the fact that the notary was a public R. 531, where the owners of a vessel carried goods to officer, with duties prescribed by statute, and has no be delivered at a certain place, but the vessel passed it application to the case at bar. No reference was made by without delivering the goods, and the vessel was to the case of IIoover v. Il'ist, nor any suggestion that sunk and the goods were lost. In a suit against the the views stated in the opinion in that case were owners for the ralue of the goods, based on the condoubted or dissenied from. There is in the case at tract, it was contended for the defendants that they bar no negligence of a notary, or of a public officer, were not liablo for the misconduct of the master of or of any person whose duties or functions are pre the vessel in carrying the goods beyond the place. scribed by statute; and the question of the liability of But the plaintiff had judgment, Lord Kenyon saying the defendant is to be determined on principles not that the defendants were answerable on their contract, involved in the actual decision in Brition. v. Vic. although the misconduct was that of their serrant, colls.

and adding: “The defendants are responsible for the The question involves a rule of law of general ap acts of their servant in those things that respect his plication. Whatever be the proper rule, it is one of duty under them, though they are not answerable for commercial law. It concers trade between different his misconduct in those things that do not respect bis and distant places, and in the absence of statutory duty to them." regulations, or special contract, or usage having the The distinction between the liability of one who

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