certainty that she is the wife of the defendant, and it would seem that she should produce the best evidence in her power." To same effect Ellis v. Ellis, 11 Mass. 92. The reason that underlies the doctrine of the presumption of marriage from a cohabitation apparently matrimonial, is that the law will presume morality and innocence rather than immorality and guilt. Where therefore the effect of raising a presumption of marriage from cohabitation and repute would, although it would exonerate the parties from the charge of immorality in the particular case, be to involve one of them in an immoral relation with another or render him or her guilty of a crime, the cohabitation creates uo presumption, and is therefore no evidence of marriage when standing alone. If it can be shown that during the continuance, or prior, or subsequent to the cohabitation between the parties, one of them cohabited with onother person, the law will not presume that the cohabitation in question was matrimonial, for that would necessarily render the other cohabitation meretricious, unless a legal dissolution of the former cohabitation by death or divorce, can be shown before the inception of the latter. As the law cannot in such cases presume innocence in one case without rendering one of the parties guilty morally or criminally in another case, it will not presume a marriage from either cohabitation. The authorities on this point are uniform. Breakey v. Breakey, 2 U. C. Q. B. 349, 358; George v. Thomas, 10 id. 604; Chamberlain v. Chamberlain, 71 N. Y. 423.

In George v. Thomas the court decided that the presumption of marriage from cohabitation is rebutted by the woman's having lived with another man in such a manner as to create the same presumption of a marriage with him.

In Chamberlain v. Chamberlain the court held that the inference of a marriage from an apparently matrimonial cohabitation was overcome by the subsequent actual marriage of the alleged husband with another woman during the life-time of the woman with whom he had so lived. Precisely the same doctrine was enunciated in Clayton v. Wardell, 5 Barb. 214; S. C., 4 N. Y. 230; Taylor v. Taylor, 1 Lee, 571; S. C., 2 Eng. Eq. 290; Wheeler v. McWilliams, 2 U. C. Q. B. 77; S. C., 3 id. 165.

The principle that lies at the foundation of this last doctrine is that the presumption of innocence in the one case would render the party guilty of bigamy, and thus the courts would in effect presume a greater guilt than that which they would raise the presumption to obviate. The authorities are numerous to the effect, that in all cases where the consequence of presuming innocence in the particular case is that another guilt, moral or legal of an equal or greater degree is fastened upon one of the parties, the ordinary rule of the presumption of a marriage will not obtain, but that direct evidence of the alleged marriage must be adduced. Jones v. Jones, 45 Md. 144; 48 id. 391; Poultney v. Fairhaven, Brayton (Vt.), 185; Houpt v. Houpt. 5 Ohio, 539; Foster v. Hawley, 8 Huu, 68; see also 1 Bish. on Mar. & Div., §§ 444 to 447; Blanchard v. Lambert, 43 Iowa, 228; Harrison v. Lincoln, 48 Me. 205; Stevens v. Joyal, 48 Vt. 291; Hill v. State, 41 Ga. 484; Williams v. State, 44 Ala. 24.

itself to establish the marriage; but it was argued that as the performance of the religious ceremony without a previous valid marriage by a civil magistrate would render all concerned guilty of crime, such marriage must be presumed to have been duly entered into before the performance of the religious ceremony, for the reason that the law would presume that those connected with the performance of the marriage were innocent of such crime. But the court refused to be governed by this consideration, and based its decision on this point on the immovable foundation that the law will not presume innocence in one instance where the effect of such a presumption is to involve one of the parties litigant in some moral delinquency or render him or her guilty of a crime. The court said: "Perhaps under the justly liberal rule in respect to proof of foreign marriages in civil suits, it" (the presumption of the innocence of those participating in the religious ceremony) "would be allowed to prevail. But to give that effect in a criminal prosecution would be to overcome the presumption of the prisoner's innocence by the no stronger presumption of the innocence of a stranger, and that in a proceeding in which such stranger was not on trial."

It is not however a rule of universal application that the presumption of innocence will not be raised in every case in which it comes in conflict with another presumption. The doctrine has obtained for a long time, and is sauctioned by all the adjudications on the point, that the presumption of innocence will counterbalance and preponderate against the presumption of the continuance of life of the former wife or husband of one of the parties. Under the familiar rule of the common law the presumption of life continues till the expiration of seven years from the time a person was last heard from. But where one of the parties to a marriage contract has been absent and unheard from for a reasonable time short of seven years, a second marriage by the remaining partner may be sustained by indulging the presumption that the absent party was dead at the time of the second marriage, and the court is bound to instruct the jury that the presumption of innocence may overthrow the presumption of the continuance of life. Senser v. Bower, 1 Penn. 450; Reg. v. Cross, I Fost. & F. 510; Spears v. Burton, 31 Miss. 547; Murray v. Murray, 6 Oreg. 17; Reg. v. Lumley, Law Rep., 1 C. C. 196; Rex. v. Twyning, 2 B. & Ald. 386; Greensborough v. Underhill, 12 Vt. 604; Northfield v. Plymouth, 20 id. 582; Yates v. Houston, 3 Tex. 433; Chapman v. Cooper, 5 Rich. 452; Canaday v. George, 6 Rich. Eq. 103; Hull v. Rawls, 27 Miss. 471.

The question where the presumption of innocence is to prevail is generally a question of fact. Murray v. Murray, 6 Oreg. 17; Reg. v. Lumley, Law Rep., 1 C. C. 196. In Rex v. Twyning the court sustained the verdict of the jury which upheld a marriage entered into by a woman within a year after the departure of her first husband from the country, and in Rex v. Har borne, 2 A. & E. 540, the court sustained a verdict which found against the validity of a marriage celebrated only twenty-five days after the absent partner of the former marriage was known to be alive.

In Greensborough v. Underhill the court set aside the verdict of the jury which declared void a second marriage entered into two years after the husband of the former marriage was last heard from. But in North

in question the soundness of the former decision, because it seemed to have made the question one of law rather than of fact. However the court was clearly right in ordering a new trial in the first case, for the jury were manifestly misled by the charge of the court, and probably would have sustained the second

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

Where there has 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 cohabitatious 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 until the contrary is clearly established. Badger v. Badger, 88 N. Y. 546; Brinkley v. Brinkley, 50 id. 198; Cunningham v. Cunningham, 2 Dow. 483; Barnum v. Barnum, 42 Md. 251; Post v. Post, 70 Ill. 484; Floyd v. Calvert, 53 Miss. 37; Yardley's Estate, 75 Penn. St. 207; Lapsly v. Grierson, 1 H. L. Cas. 498; Caujolle v. Ferrie, 23 N. Y. 106; Clayton v. Wardell, 4 id. 230; State V. Worthingham, 23 Minn. 528.

What will suffice to overcome this presumption depends largely upon the animus with which the parties formed their illicit connectiou. 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 have 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. 345; Rose v. Clark, 8 Paige, 574; Caujolle v. Ferrie, 23 N. Y. 90; Betsinger v. Chapman, 88 id. 487-499; Hynes v. McDermott, 91 id. 451; Holabird v. Atlantic Ins. Co., 12 Am. Law Reg. (N. S.) 566; North v. North, 1 Barb. Ch. 241; Starr v. Peck, 1 Hill, 270; Donnelly v. Donnelly, 8 B. Mon. 113; Blanchard v. Lambert, 43 Iowa, 228; State v. Worthingham, 23 Minn. 528; Dickerson v. Brown, 49 Miss. 357; Floyd v. Calvert, 53 id. 37-46; Jones v. Jones 45 Md. 155; Yates v. Houston, 3 Tex. 433-450; Campbelj v. Campbell, Law Rep., 1 H. L. Sc. 182, 201, 204, 212, 215; Breadalbane's case, L. R., 1 Scotch Divorce Appeals, 182; De Thoren v. Attorney-General, L.R., 1 App. Cas. 686; In re Taylor, 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. Reed, Rose v. Clark, Campbell v. Campbell, De Thoren v. Attorney-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 evidence on which to predicate a finding of marriage, that the discussion of this question would be very incomplete without a brief review of them.

In Fenton v. Reed, 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 foreign countries, and did not return until 1794; and previous to his return, and before the marriage of his

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. GUY C. H. CORLISS.

A bank in Pittsburgh sent to a bank in New York for collection eleven unaccepted 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 Conger 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 drafts had matured. At that time the drawers and an indorser had become insolvent, the drawers having been in good credit when the Pittsburgh bank discounted the drafts. Held, 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 the Circuit Court of the United States for the District of New Jersey. The opinion states the

case.

John R. Emery and Thomus N. McCarter, for plaintiff in error.

A. Q. Keasbey, for defendant in error.

BLATCHFORD, J. The Exchange National Bank of Pittsburgh, Pennsylvania, brought this suit against the Third National Bank of the city of New York, in the Circuit Court of the United States for the District of New Jersey, to recover damages for the alleged negligence of the defendant in regard to eleven drafts or bills of exchange indorsed by the plaintiff to the defendant 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 er

ror.

The facts found are these, in substance: The drafts were drawn by Rogers & Burchfield, at Pittsburgh, to the order of J. D. Baldwin, and by him indorsed, on "Walter M.Conger, Sec'y Newark Tea Tray Co., Newark, N. J.," and were discounted before acceptance by *S. C., 5 Sup. Ct. Rep. 141, reversing 4 Fed. Rep. 20.

"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. Conger, 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 instance, 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 plaintiff the form of the acceptance, and for the plaintiff thereafter to give further instructions as to the form of acceptance. The Newark bauk 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 the Newark Tea Tray Company," drawn against shipments of iron by Rogers & Burchfield to that company, and were discounted as such by the plaintiff. He 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, 1874, 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. Conger individually, without notice to the plaintiff; and Conger, during the time drafts sent by the plaintiff to the defendaut, addressed to the "Newark Tea Tray Co." and to "Walter M. Conger, Sec'y Newark Tea Tray Co., Newark, N. J.," were in the hands of the Newark bank to procure 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 the 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 Conger 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 had; and that the plaintiff knew who was the intended drawee, as understood between it and the drawers, and ought to have advised the defendant, 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 having been used in selecting that bank. Such would be the result of the rule establised in Massachusetts (Fabens 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 Conn. 521; East Haddam Bank v. Scovil, 12 id. 303); in Missouri (Daley v. Butchers & Drovers' Bank, 56 Mo. 94); in Illinois (Etna Ins. Co. v. Alton City Bank, 25 Ill. 243); in Tennessee (Banh of Louisville v. First Nat. Bank, 8 Baxt. 101; S. C., 35 Am. Rep. 691); in Iowa (Guelich v. National State Bank. 56 Iowa, 434; S. C., 41 Am.Rep. 110), and in Wiscousin (Stacy v. Dane 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 ordinary 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 agreement for compensation, is not a sufficient 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. Merchants' Bank, 22 Weud. 215; Bank of Orleans v. Smith, 3 Hill, 560; Montgomery County Bank v. Albany City Bank, 7 N. Y. 459; Commercial Bank v. Union Bank, 11 id. 203, 212; Ayrault v. Pacific Bank, 47 id. 570; S. C., 7 Am. Rep. 489); in New Jersey (Titus v. Mechanics' Nat. Bank, 6 Vroom, 588); in Pennsylvania (Wingate v. Mechanics' Bank, 10 Penn. St. 104); in Ohio (Reeves v. State Bank, 8 Ohio St. 465); and in Indiana (Tyson v. State Bank, 6 Blackf. 225).

It has been so held in the Second Circuit, in Kent v Dawson Bank, 13 Blatchf. C. C. 237, and the same view is supported by Taber v. Perrot, 2 Gall. 565, and by the English cases of Van Wart v. Woolley, Barn. & C. 439, and Mackersy v. Ramsays, 9 Clark & F. 818. In

the latter case bankers in Edinburgh were employed to obtain payment of a bill drawn on Calcutta. They transmitted it to their correspondent in London, who forwarded it to a house in Calcutta, to whom it was paid; but that house having failed, the bankers in Edinburgh, being sued, were by the House of Lords held liable for the money, on the ground that they being agents to obtain payment of the bill, aud payment having been made, their principal could not be called on to suffer any loss occasioned by the conduct of their sub-agents, between whom and himself no privity existed.

The question under consideration was not presented in Bank of Washington v. Triplett, 1 Pet. 25; for although the defendant bank in that case was held to have contracted directly with the holder of the bill to collect it, the negligence alleged was the negligence of its own officers in the place where the bank was situated.

In Hoover v. Wise, 91 U. S. 308, a claim against a debtor in Nebraska was placed by the creditor in the hands of a collecting agency in New York, with instructions to collect the debt, and with no other instructions. The agency transmitted the claim to an attorney at law in Nebraska. The attorney received the amount of the debt from the debtor in Nebraska, in fraud of the bankrupt law, and paid it over to the agency, but the money did not reach the hands of the creditor. The assignee in bankruptcy having sued the creditor to recover the money, this court (three jus tices dissenting) held that the attorney in Nebraska was not the agent of the creditor, in such a sense that his knowledge that a fraud on the bankrupt law was being committed was chargeable to the creditor, on the ground that the collecting agency having undertaken the collection of the debt, and employed an attorney to do so, the attorney employed by it, and not by the creditor, was its agent, and not the agent of the creditor; and the creditor was held not to be liable to the assignee in bankruptcy for the money. In the opinion of the court it is said that the case falls within the decisions in the above mentioned cases of Reeves v. State Bank, 8 Ohio St. 465; Mackersy v. Ramsays, 9 Clark & F. 818; Montgomery County Bank v. Albang City Bank, 7 N. Y. 459; Commercial Bank v. Union Bank, 11 id. 203; and Allen v. Merchants' Bank, 22 Wend. 215; and it is said that those cases, the first three of which are stated at length, show that where a bank as a collection agency receives a note for the purposes of collection, its position is that of an independent contractor, and the instruments employed by such bank in the business contemplated are its agents, and not the sub-agents of the owner of the note." The court proceeds to say that those authorities go far toward establishing the position that the collecting agency was an independent contractor, and that the attorney it employed was its agent only, and not in such wise the agent of the defendaut, as to make the defendant responsible for the knowledge of the attorney in Nebraska. The court then cites as a case in point Bradstreet v. Everson, 72 Penn. St. 124; S. C., 13 Am. Rep. 665, as holding that where a commercial agency at Pittsburgh received drafts to be collected at Memphis, and sent them to its agent at Memphis, who collected the money and failed to remit it, the agency at Pittsburgh was to be regarded as undertaking to collect, and not merely receiving the drafts for transmission to another for collection, and as being liable for the negligence of its agent at Memphis. It also cites as to the same purport Lewis v. Peck, 10 Ala. 142, and Cobb v. Becke, 6 Adol. & E. 930. It then says that these authorities fix the rule, before stated, on which the decision is rested. So far from there being any thing in that case which goes to exonerate the defendant in the case at bar, its reasoning tends strongly to

affirm the principle on which the defendant must be held liable. Indeed its language supports the view that the Newark bank in this case would not be liable directly to the plaintiff. If that be so, and the defendant is not liable, the plaintiff is without remedy.

The case of Britton v. Niccolls, 104 U. S. 757, is cited to show that the defendant is not liable. In that case the defendants, baukers in Natchez, Miss., received from the plaintiff, a resident of Illinois, for collection, two promissory notes, dated at Natchez, but not stating any place of payment. They were sent to the defendants, through a banking house in Bloomington, Ill., with instructions to collect them, if paid, and if not, to protest them and give notice to the indorsers. The defendants placed the notes in the hands of a reputable notary in Natchez, to make demand of payment and give notice to the indorsers. It was held that the defendants were not liable for negligence on the part of the notary, whereby the liability of a responsible indorser was released. The negligence consisted in not presenting the notes to the maker at maturity and demanding payment. The maker resided twelve or fifteen miles from Natchez, and had no domicile or place of business in Natchez. No information as to his residence was given to the defendants with the notes, and the plaintiff was ignorant of it. All the instructions which the defendants gave to the notary were given on the several days the notes matured, when they handed the notes to the notary, with instructions to demand payment, and if they were not paid to protest them, and send notice of non-payment to the indorsers. The notary knew where the maker resided, and that he had no place of business in Natchez; but he inquired for him at three public places in Natchez, and not finding him, protested the notes for non-payment, and gave notice to the indorsers. The defendants had inquired at Natchez as to the residence of the maker, but had not learned it, and had sent notices to him, through the post-office there, of the amount and date of maturity of the notes a reasonable length of time in advance. On these facts it is apparent that the only question raised was as to the liability of bankers in Natchez in respect to a note sent to them for collection, dated at Natchez, and not payable at any specified place there or elsewhere, for the negligence of a public notary there. The suit was as not against the banking house in Bloomington, which was only the agent to transmit the notes to the defendants for collection. The opinion of the court states the question to be as to the liability of the collecting bankers for the manner in which the notary to whom the notes are delivered for presentment and protest discharges his duty." The court says: "The notes being dated at Natchez, the presumption of law, in the absence of other evidence on the subject, is that that was the place of residence of the maker, and that he contemplated making payment there. The duty of the bankers as collecting agents was therefore to make inquiry for his residence or place of business in that city, and if he had either, to make there the presentment of the notes; but if he had neither, to use reasonable diligence to find him for that purpose.' The court then refers to the case of Allen v. Merchants' Bank, 22 Wend. 215, in the Court of Errors of New York as declaring the doctrine that a bank receiving paper for collection is responsible "for all subsequent agents employed in the collection of the paper," and states that though that decision has been followed in New York, and its doctrine has been adopted in Ohio, it has been generally rejected in the courts of other States. The case of Dorchester Bank v. New England Bank 1 Cush. 177, is then cited as holding that if a bank acts in good faith in selecting a suitable subagent at the place where the bill is payable, it is not liable for his neglect; and the opinion states that this

doctrine has been followed in the Supreme Courts of Connecticut, Maryland, Illinois, Wisconsin -and Mississippi.

The court however does not adopt either of these views, or rest the decision of the case before it on the latter view; for it proceeds to say: "In the New York case, in the Court of Errors, it was conceded that the general liability of the collecting bank might be varied and limited by express agreement of the parties, or by implication arising from general usage, and in some of the cases in other States, proof of such general usage of bankers in the employment of notaries was permitted, and a release thereby asserted from liability of the bank for any neglect by them." The court then states that there was in the case no proof of any general usage of bankers at Natchez as to the employment of notaries public in the presentment and protest of notes left with them for collection. But as there was a statute of Mississippi, passed in 1833, authorizing notaries to protest promissory notes, and requiring them to keep a record of their notarial acts in such cases, and making the record admissible in evidence in the courts as if the notary were a witness, and as the courts of that State had held (Tiernan v. Commercial Bank, 7 How. [Miss.] 648; Agricultural Bank v. Commercial Bank, 7 Smedes & M. 592; Bowling v. Arthur, 34 Miss. 41), under that statute, that it was a part of the duty of the uotary, when protesting paper, to give all notices of dishonor required to charge the parties to it, and that a bank receiving commercial paper, as an agent for collection, properly discharged its duty, in case of non-payment, by placing the paper in the hands of such notary, to be proceeded with in such manner as to charge the parties to it, and that the bank was not liable in such cases for the failure of the notary to perform his duty, the court says, that "judged by the law of Mississippi," the defendants discharged their duty to the plaintiff when they delivered the notes received by them for collection to the notary public," and adds, "what more could they have done, as intelligent and honest collecting agents, desirous of performing all that was required of them by the law, ignorant as they were of the residence or place of business of the maker of the notes, and having unsuccessfully made diligent inquiry for them?" It further says: "The notary was not, in this matter, the agent of the bankers. He was a public officer, whose duties were prescribed by law, and when the notes were placed in his hands, in order that such steps should be taken by him as would bind the indorsers if the notes were not paid, he became the agent of the holder of the notes. For any failure on his part to perform his whole duty, he alone was liable." On these grounds the court held that the defendants were not guilty of negligence, and were not liable for the negligence of the notary. The decision was not placed on any general rule of commercial law, but rested on the fact that the notary was a public officer, with duties prescribed by statute, and has no application to the case at bar. No reference was made to the case of Hoover v. Wise, nor any suggestion that the views stated in the opinion in that case were doubted or dissented from. There is in the case at bar no negligence of a notary, or of a public officer, or of any person whose duties or functions are prescribed by statute; and the question of the liability of the defendant is to be determined on principles not involved in the actual decision in Britton v. Niccolls.

46

The question involves a rule of law of general application. Whatever be the proper rule, it is one of commercial law. It concers trade between different and distant places, and in the absence of statutory regulations, or special contract, or usage having the

force of law, it is not to be determined according to the views or interests of any particular individuals, classes, or localities, but according to those principles which will best promote the general welfare of the commercial community. Especially is this so when the question is presented to this tribunal, whose decisions are controlling in all cases in the Federal courts. The agreement of the defendant in this case was to collect the drafts, not merely to transmit them to the Newark bank for collection. This distinction is manifest; and the question presented is whether the Newark bank, first receiving these drafts for collection, is responsible for the loss or damage resulting from the default of its Newark agent. There is no statute or usage or special contract in this case, to qualify or vary the obligation resulting from the deposit of the drafts with the New York bank for collection. On its receipt of the drafts, under these circumstances, an implied undertaking by it arose to take all necessary measures to make the demands of acceptance necessary to protect the rights of the holder against previous parties to the paper. From the facts found, it is to be inferred that the New York bank took the drafts from the plaintiff, as a customer, in the usual course of business. There are eleven drafts in the case, running through a period of over three months, and the defendant had previously received from the plaintiff two other drafts, acceptances of which it had procured from Conger, at Newark, through the Newark bank. The taking by a bank, from a customer, in the usual course of business, of paper for collection, is sufficient evidence of a valuable consideration for the service. The general profits of the receiving bank from the business between the parties, and the accommodation to the customer, must all be considered together, and form a consideration, in the absence of any controlling facts to the contrary, so that the collection of the paper cannot be regarded as a gratuitous favor. Smedes v. Bank of Utica, 20 Johns. 372, and 3 Cow. 662; McKinster v. Bank of Utica, 9 Wend. 46, and 11 id. 473. The contract then becomes one to perform certain duties necessary for the collection of the paper and the protection of the holder. The bank is not merely appointed an attorney, authorized to select other agents to collect the paper. Its undertaking is to do the thing, and not merely to procure it to be done. In such case the bank is held to agree to answer for any default in the performance of its contract; and whether the paper is to be collected in the place where the bank is situated, or at a distance, the contract is to use the proper means to collect the paper, and the bank, by employing subagents to perform a part of what it has contracted to do, becomes responsible to its customer. This general principle applies to all who contract to perform a service. It is illustrated by the decision of the Court of King's Bench in Ellis v. Turner, 8 Term R. 531, where the owners of a vessel carried goods to be delivered at a certain place, but the vessel passed it by without delivering the goods, and the vessel was sunk and the goods were lost. In a suit against the owners for the value of the goods, based on the contract, it was contended for the defendants that they were not liable for the misconduct of the master of the vessel in carrying the goods beyond the place. But the plaintiff had judgment, Lord Kenyon saying that the defendants were answerable on their contract, although the misconduct was that of their servant, and adding: "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."

The distinction between the liability of one who