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pictures, but that these passed under the gift of the ated, and I cannot consider that by such words he furniture, statuary, and effects in the said leasehold intended to pass a valuable collection of pictures messuage. Lord Londesborough was a nobleman such as he had; and I am therefore of opinion that of very large fortune, a man of great taste, a patron Lady Londesborough did not take them absolutely, and lover of the arts, and lived in a very large house but that she is entitled to the enjoyment during her in Carlton House-terrace. Besides the articles above life, under the next clause, of all the articles which mentioned, he had a collection of armor and auto- were in the house at the time of the death. It was graphs, which are settled and made heirlooms. The said that it was very improbable that he could have pictures were all by English artists, except a head intended the portrait of his daughter to be sold. I by Carlo Dolce, and included the “Monarch of the agree that it is very improbable, but he may have Glen,” a well-known picture by Landseer; a child, forgotten that, or he may have thought the family said to be a portrait of the testator's daughter; and were sure to buy it; probably it is not very valuable. pictures by D. Roberts, Stanfield, Hollings, Ans- I cannot think that that circumstance sufficiently dell, and Cook. The court said: “It is clear, and controls the construction of the will to make those was decided in Sir George Kelly v. Povolett, 2 Amb. words have the operation which they otherwise 605, by the then Master of the Rolls, that where would not have.” there is nothing to show the contrary, pictures pass as part of the furniture of the house.” “I must The matter of “catching bargains” comes up alsay that it seems to me very improbable that a man most simultaneously in this country and in England. possessed of a collection of very valuable pictures, In Nevill v. Snelling, English High Court, Ch. Div., if he intended to give them absolutely, would omit 43 L. T. (N. S.) 244, a money lender induced a the word pictures. If a man, knowing perfectly younger son of a nobleman of high rank and great well that he had these pictures by the first painters, estate, while still under age, to borrow money of intended to give them, I cannot understand upon him on extravagantly usurious conditions, and to what principle the word 'pictures' was omitted. continue to do so after he had attained his majority, Mr. Bristowe argued that pictures were objects of and made no inquiry into the position of the borvertu and taste, and that a virtuoso is a man who rower, but relied for repayment, not on any inite loves pictures as well as other works of art. Pic-expectations of the latter, but on the probability tures are most undoubtedly articles of taste. We that if he should be unable to pay, his father or commonly say that a man has a very great taste in friends would pay to avert bankruptcy and expospictures, but I suppose this is the very first will that ure, or that he would himself pay if he should by has occurred in which pictures are to pass, if they any means come into any of the family property, do pass, by the words objects of vertu and taste.' and unconscientiously received and afterward inThere is a rule of construction which has always sisted upon the continuance of payments originally been acted upon, and which was acted upon in the made to him by the borrower under a mistake, and case cited of Rawlings V. Jennings (ubi sup.), where without any obligation to do so. Held, that the words are used which would pass the whole property money lender was only entitled to obtain repayment of the testator. In that case the words were 'all of the sums actually advanced, with interest at five other goods, but Sir Wm. Grant, acting on the rule, per cent from the dates of the several advances. said they meant things ejusdem generis, not all the And in Bogle's Estate, Orphan's Court of Dauphin man's property, but things of the same nature as county, Penn., March, 1880, 9 W. N. C. 256, the those which he had been disposing of. Mr. Bris- court said: “We find Bogle, a young man between towe says the pictures are of the same nature as the twenty-three and twenty-four years of age, having things he has been disposing of; a picture is an ob- been engaged in the grocery business for two or ject of vertu and taste. So it is, I agree. I do not three years, to all appearances pretty closely pressed say by any means that the words are insufficient to for money, borrowing from Mr. Sticker, or his wife, pass pictures, but whether they do so or not depends some $2,000, at a rate of interest of 18 per cent per upon the particular circumstances of the case, and annum, and applying to the same person for a new therefore inasmuch as it would have been so very loan at like rate, this on the security of his patrieasy for the testator to have removed all difficulty mony - in the hands of his guardian and not due on the subject by using the word pictures, I think for a little over a year. We find him afterward sellthat mentioning as he does 'gold and silver plate, ing the claim at a discount of at least $1,000, reornamental or other china,' and then all objects of ceiving in payment the discharge of two small vertu and taste,' he means things ejusdem generis, judgments amounting in all to $135, the balance due such as painted snuff-boxes and small statuettes, and on a former mortgage, $200, some $357 in money, any thing of that kind about the house. I can some small expenses paid, and notes at 6 and 12 hardly think that if he had meant those pictures to months, $576.63 each, some $250 of a discount on pass he would not have used the proper word 'pic- the $500, and at least one of the notes, if not both, tures' instead of those doubtful and ambiguous words shaved at a discount of about 18 per cent. Mr. Bogle 'objects of vertu and taste.'” "On the whole, swears that he was to have the money when wanted. therefore, I come to the conclusion that he consid- Is this such an oppressive and fraudulent advantage ered those words 'vertu and taste' as comprehend- taken of Bogle under the circumstances as will ening every thing else of the same sort, or, as we law- title him to relief in equity? We must premise yers say, ejusdem generis with those before enumer- that his guardian, who had looked after his affairs


for many years, and who stood in loco parentis, is exercise without showing or having any reasonable not made acquainted with the intended sale." “Bo- ground, and that exercise will not be enjoined. gle makes a sale in advance of a legacy, not due for 'The weight of authority is in favor of the right over a year, at a very heavy discount, and all paid of the mortgagor to take and sell the property within notes, which it is said could be better sold at a out any obligation to prove that the facts and cirdiscount than could a legacy. Is not this catch- cumstances surrounding the parties justified him in ing a bargain from one having an estate in expect-deeming himself insecure. Huggans v. Fryer, 1 ancy? Does it not amount to a fraud in law ?” “The Lans. 276; Chadwick v. Lamb, 29 Barb. 518; Rich case presents these principles in brief. A father, de- v. Milk, 20 id. 616; Hall v. Sampson, 19 How. Pr. sirous of securing an adequate maintenance for his 481; Farrell v. Hildreth, 38 Barb. 178. Tyler v. minor son, places his patrimony in the hands of a Ames, 6 Lans. 280." testamentary guardian, fixing the amount to be applied to his support annually, until he should attain

RESERVATION OF TIMBER IN DEED. the age of twenty-five years, thereby pretty clearly showing that until he attained that age he would not be capable of managing his own affairs with

N Irons v. Webb, 12 Vroom, 203; 8. C., 32 Am. judgment. About eighteen months before reaching the grantee stipulating that the grantor should have

Rep. 193, a deed of lands reserved the timber, that age a business man of mature years bargains two years to remove it. Held, that it might be rewith him for the purchase of the whole balance at a discount in all of over 33 per cent, after learning moved after that time. The action was trover by from the guardian the precise amount which would

the grantor for the timber devised him by the be coming. This we consider is taking advantage

grantee. The Supreme Court, by Beasley, C. J.,

said: of the situation of a necessitous young man in buy

“Upon looking at the frame of this instruing his expectancy, and is what the law will not

ment, it will be found that the timber in question tolerate. It defeats the object of the father in

is plainly excepted out of the operation of the contying up the estate of his son, in the hands of the

veyance, and that the right to take it away within guardian, to prevent it being squandered. It is

a specified time is in the shape of an agreement on therefore ordered that out of the money paid into

the part of the defendant. Such a stipulation on the Orphans' Court there be first applied the expense

the side of the grantee of the deed cannot convert

The of the audit and other costs, and that there be next

an absolute exception into a conditional one. paid the amount paid by Sticker to Bogle with legal legal effect of an exception is to sever from that interest thereon from the time of payment until the

which is granted that which is excepted, so that the same was deposited in the Orphans' Court, and

latter does not pass by the grant (Shep. Touch. 77), that the case be referred back to the auditor to fix

and when, consequently, any thing is thus set apart

and declared to be outside of the grant, it should the amount due, and the residue of the fund we adjudge to Charles E. Bogle.”

be plain words only that should bring it within the force of the grant. The excepting clause says, in

effect, that the grantor withdraws from the grant a In Roy v. Goings, 96 Jl. 361, it is held that under certain portion of the premises, and such act is so a clause in a chattel mortgage, that if the mort-positive and emphatic that it cannot be controlled gagee shall, at any time before the debt becomes or affected by subsequent expressions or stipulations due, “ feel himself unsafe or insecure,” he shall have of dubious meaning or uncertain effect.” “Lookthe right to take possession of the mortgaged prop-ing at the terms of the present agreement and its erty, the mortgagee has the right to judge of the subject matter, I can see no mark, certainly no decrisis for himself, subject only to the limitation that cisive mark, signifying that it was the intention of his judgment of insecurity must be exercised in these parties that by the plaintiff's neglect to regood faith, upon reasonable grounds or probable move the timber it should be forfeited to the defend

That there need not be actual danger, or ant. Such a purpose, it is certain, is not contained reasonable ground to decide that there was actual in any part of the language of the instrument, for danger, but it will be sufficient if, at the trial, it it nowhere says, that in any event, the title to the appears that at the time of the taking of possession timber is to pass to the grantee. As a consequence, there was apparent danger, such that a reasonable as it is not in the words, such a right must be deman might, in good faith, act upon, or in other rived by inference from the nature of the transacwords, there should be reasonable grounds to be- tion itself. But then what feature of the business lieve there was danger, or that the mortgagee did is to bave such an effect? The only particular renot act without probable cause. Scott and Shel- lied on is the circumstance that if the timber was don, JJ., dissenting, said: “We think it enough permitted to remain on the premises until the time that the mortgagee felt himself insecure, and that of removal had expired, it became unlawful to enter it is not necessary, that in addition thereto, there for the purpose of taking it away. But the effect should have been probable cause for feeling himself of such an incident is not in law to work a forfeitinsecure." The doctrine of this dissent is the doc- ure of title." "The vendor could have called the trine of Cline y, Libby, 46 Wis. 123; S. C., 32 Am. vendee to account for leaving it on the land beyond Rep. 700, which holds that the mortgagee, under the stipulated time, and for all damages to his land such a clause, has an arbitrary right, which he may done by its removal after such period, but he bad no right to claim such timber as his own, and to “If the property was removed by that time, it beput it to his own uses."


longed to the plaintiffs; but if not removed by that This decision is based on Hoit v. Stratton Mills, 54 time their right to it was gone. This seems to be N. H. 109; S. C., 20 Am. Rep. 119. In that case the natural and obvious construction of the deed." the deed conveyed growing trees to be removed by Boisaubin v. Reed, 2 Keyes, 323; S. C., 1 Abb. the grantee, and it was held that as the terms of Ct. Dec. 161, was not noticed in the principal case the grant, taken in their literal and usual sense, sig- nor in the New Hampshire cases, and is quite opnified an absolute conveyance of the title of the posed to them. It was a suit to enjoin an entry on trees, the grant was not made conditional by the land and the carrying away of timber. The deed implied stipulation that the grantee should remove granted all the growing timber on certain land, and the trees within a reasonable time. In Knott v. Hy- | the right of entry and occupancy “for and during linck, 12 Rich. 314, the court construed a deed that the term of ten years for the purpose of cutting and reserved all the growing timber, as leaving the title taking and carrying away said timber and manuabsolutely in the grantor; although in these cases facturing timber on said land,” etc. The Supreme there was no time mentioned within which the trees Court, on the authority of the two Maine cases, and were to be removed, the court in the principal case McIntyre v. Barnard, 1 Sandf. Ch. 52, and Warren said: “That circumstance can take but little from v. Leland, 2 Barb. 622, had held that this was only the force of the precedent, as undoubtedly, in the a sale of such timber as was actually removed within absence of an express limitation of a period for the the specified term, and granted the injunction. This disincumbering the land by the removal of the trees, holding was now affirmed in the Court of Appeals. the law would imply an undertaking to produce that The court said: “After the expiration of the term, result within a resonable term."

every entry upon the land for the purpose of taking The court distinguished Holton v. Goodrich, 35 Vt. timber away was without the license of the deed. 19, as influenced by other stipulations, and depend-Had there been no term named, the vendee would ent on the peculiar expression and provision of the be entitled to enter and carry away timber for a readeed; and Pease v. Gibson, infra, on the ground that sonable time, which would have depended for its the expressions on the point in question were mere limit upon the facts of the case; as to the amount of dicta, and overthown by the criticism in Hoit v. the timber; the extent of the land; the natural impedStratton Mills, supra. The court concluded: “Iiments to be overcome in removing it; and other athave endeavored to show that the exception is un- tending circumstances. But to bold to the continuaconditional; and if this be so, by its own efficacy tion of the right to remove the timber from the land, it kept the title to the timber in the plaintiff; but after the term for so doing has been agreed on by the if, to the contrary, the property in the timber was parties, and has expired, is to disregard their agreenot to remain in the plaintiff unless the trees were ment, or to make a new one. Every entry upon the removed within such period, then, very clearly, the land by the defendant, to carry away timber or logs, mere felling of the trees would not satisfy the re- after the expiration of the term, was an entry withquirement of such condition."

out license, and a clear trespass, and if he or his In Pease v. Gibson, 6 Me. 84, the grantee was to servants carried away timber, the plaintiffs could be have two years to take off the timber. The court made good for the injury committed only by damsaid: “To admit the construction given by the de- ages to the extent of the value of the timber refendants' counsel, and consider such a permission as

moved. These facts indicate clearly, to my judg& sale of the trees, to be cut and carried away at the ment, that it was the intention of the parties to the good pleasure of the purchaser, and without any refer- original agreement to limit the right to take and ence to the limitation, in point of time, specified in carry away timber to the term within which the the permit, would be highly injurious in its conse- vendee or his representatives might lawfully enter quences. It would deprive the owner of the land of upon the land; and that the vendee has no title to the privilege of cultivating it and rendering it pro- the timber by cutting logs and leaving them upon ductive, thus occasioning public inconvenience and the land; but to complete his title he must also injury; and in fact it would amount to an indefinite remove the logs within the term." permission. The purchaser, on this principle, might, by gradually cutting the trees and clearing them

CRIMINAL LIBELS ON NON-RESIDENTS. away, make room for a succeeding growth, and before he would have removed the trees standing on The statute of our State is as follows: "In all cases the land at the time of receiving such a license or where a libel has been or may hereafter be printed or sale, others would grow to a sufficient size to be published against any person not a resident of this useful and valuable; and then the owner of the State, the accused shall be indicted, and the trial

thereof shall be had, in the county where the said libel land would be completely deprived of all use of it.

was or may hereafter be printed or published. In all Principles leading to such consequences as we have

cases where such paper shall not upon its face purport mentioned cannot receive the sanction of this court." to be or to have been printed or published in a particuThis was followed in Howard v. Lincoln, 13 Me. 122. lar county of this State, the accused shall be indicted Both cases seem to have directly involved the point. and the trial thereof had in any one county wbere the In Holton v. Goodrich, 35 Vt. 19, there was

said paper has been or may hereafter be circulated."

By the literal meaning of this statute the printer or reservation of stone in a deed, with the privilege of publisher anywhere, within or without the State, of a taking it off“ till ” a certain day. The court said: 1 libel against a non-resident, no matter where he may


reside, is liable to indictment, if his paper purport on entitled to the fullest protection our criminal law can its face to be printed and published in this State, or if give; an injury to such persons is as much a public it does not so purport but is circulated in this State. offense as an injury to actual residents of our State; But as criminal actions are strictly local, and to sub- such persons really and practically are within this ject an offender to punishment the crime must be State, and our statute may legitimately treat the percommitted within the limits of the sovereignty seek- sonal rights of such persons in every respect as existing to punish the offense, such literal rendering must ing within this State. Confiuing the application of our be limited, and the statuto applied only to those who statute to such persons, that is, to non-residents print or publish, within this State, against uon-resi- within the State, would be giving to the statute a dents. It is plain that a criminal iffeuse against a plain, reasonable and practical meaning, in accord with statute of this state cannot bo comuutted outside of the meaning of other statutes concerning personal the State, and that our statutes have no force to create rights, and it would seem that this construction of the crime beyond the limits of the state. In some cases statute is more to be preferred than the other. those who have committed crimes within the limits of The National Constitution provides that the trial of other States or governments are delivered by our law all crimes must be held in the State where they are to such other States or governments. Crime against committed. But the party who has, within this State, the life, body, health or liberty of persons in Oregon libelled a non-resident of the State, may, under this cannot be committed in this State, for the rights of statute, be indicted, even though he may have been personal security in such cases do not exist in this indicted for the same offense in the State where such State; to protect them by our statute would be absurd. nou-resident resides. The Constitutions, State and Any crime against them must be committed in that National, also provide that no person shall be subject State, and be punished there as crime against the laws to be twice put in jeopardy for the same offense; and of that State.

this statute seems to infringe upon these constitutional Crimes are committed at the place where they take provisions unless the construction alluded to may be effect upon the object injured. A person was accused adopted. of shooting from an American ship and killing a man In England persons have been indicted for libelling on a foreign schooner. Justice Story said: “The act in England members of other governments not resiwas, in law, done where the shot took effect; he would dent in England, but this was under special statutes be liable to the foreign government." So, too, crime for that purpose. Was it the intention that our statagainst personal reputation is committed in the State ute should include such persons? If the legal conwhere the person injured lives; the object injured in struction of a statute is doubtful upon a careful scrucases of libel is the person, as in all other cases of in- tiny, it should be construed in the sense most beneficial jury to personal rights. Injury to personal reputation to the accused. is a crime because it is an injury to the person, and not It is a humane principle of the law that a prisoner because it is an injury to reputation distinguished shall have the benefit not only of doubts upon the from the person injured; which would be a very dis- facts, but doubts also upon the law. criminating distinction, making reputation a kind of The following authorities may be consulted: People personal property existing in every State and in every V. Adams, 3 Denio, 190; Adams v. People, 1 N. Y. 176; county of every State; no matter who the owner Whitford v. Panama Railroad Co., 23 id. 467; Birthereof is, or where in the wide world he may reside, mingham Iron Co. v. Glen Cove Starch Manufacturing and thus a criminal libel is possible in every place; Co., 78 id. 32; 30 Barb. 99; id. 439. that this is not the idea upon which this statute is

JOHN MILLER founded, it may be noted that the statute itself provides that indictment shall be had in only one county,

LIABILITY OF NATIONAL BANK FOR thus avoiding the idea that reputation exists separate

SPECIAL DEPOSITS. from the person so as to be the object of a criminal trespass cognizable by the grand jury of every county. In the cases of an injury by libel to residents of the

NEW YORK COURT OF APPEALS, FEBRUARY 24, 1880 State, indictment is had in the county where the injured citizen resides; the notion that his reputation is

PATTISON V. SYRACUSE NATIONAL BANK, Appellant.* a kind of personal property existing in every county

A National bank is liable for a special deposit, received by of the State, separate from the person, which could be

its teller on behalf of the bank, in accordance with its the object of a criminal trespass in any county other

usage, for gratuitous safe-koeping, and lost through its than where he lives, was never recognized by our law. gross negligence.

An offense by shooting from one county and killing in another must be tried in the latter. A resident of ACTION to recover the value of bonds deposited by Ireland, for publishing in London against a resident

the plaintiff with defendant for safe-keeping and of London, was held for trial in London. This is so,

which were stolen. The opiniou states the case. because crimes are committed at the place where they Samuel Hand, for appellant. take effect upon the object injured. Those persons Geo. F. Comstock, for respondent. who possibly never have been and never will be within this State, cannot be the subject of a crime within this

RAPALLO, J. The leadivg point made by the appel

lant is that a bank organized under the National BankState. Criminal trespass upon personal rights cannot be committed where those rights do not exist. We

ing Act (Laws of U. 8., 1864, ch. 106) has no authority must arrive at the conclusion, then, that this statute

to receive special deposits of securities, eto., for safecreates for every person in the wide world, non-resi

keeping, and that consequently the defendant incurred dents of this State, the personal right of reputation in

no pliability by the receipt by its teller of the package every county of this State, and makes it the object of

deposited by the plaintiffs, and cannot be held respona criminal, that is indictable, trespass, or else we must

sible for its loss, even though the teller in receiving the

deposit assumed to act in behalf of the bank, in accordgive to the words “any person not a resident of this State" a more limited meaning. There are thousands

anoe with its practice, and did so with the knowledge whose property, business, life and reputation are

of its managers, and the loss occurred through grose almost wholly within this State, although they are not

negligence on the part of the officers of the bank. The residents of this state. These persons live under, and

* To samo effect, First National Bank of Carlisle v. Graham. recoguize and render themselves amenable to our stat- 21 Alb. L. J. 361 ; S. C., 100 U.S. 699; affirming S. C., A1 Am. utes; they help in supporting our government, and are Rep. 49.

respondent disputes both the premises and the con- dental powers. The question remains the same, thereclusion.

fore, as to a National as to a State bank, whether tho In most of the cases in which the question of the power of receiving special deposits is incidental to the liability of banks for special deposits has been consid- banking business, and no distinction can be made in ered, and which will be more particularly referred to determining this question between a State and a Nahereafter, the corporate power of a bank to bind itself tional bank, by such a transaction has been conceded, and the cases In the leading case upon the subject (Foster v. Essex bave turned upon questions relating to the authority Bank, 17 Mass. 479, A. D. 1821), where a special deposit of the officers receiving the deposits, and the degree of had been made with the defendant, of a cask containnegligence by which the loss was occasioned. If it being gold coin, it was shown that it had been the pracassumed that the receiving of such deposits is a legiti- tice of the bank to receive special deposits of money mate part of the business of banking, and that banks and other valuable things, but there was no regulation, not organized under the act of Congress, which see fit or by-law, or provision of the charter upon the subject. to receive such deposits, may do so, there is nothing in The counsel for the plaintiff, as in the present case, the act of 1864 which especially restricts National claimed that it had been 'the practice of banks from banks in this respect. The act provides (section 5) that the earliest periods to receive such deposits. Tbat the associations for carrying on the business of banking Bank of England had no express power to do so, but may be formed in a certain manner. Section 8 de- it had become a part of their duty or business by clares, that upon complying with the provisions of the usage, and belonged to the very nature of such instituact, such associations shall be corporations and may tions. On the other side it was denied that the bank adopt a corporate name and may in that name make had any such power, or that it was incidental to the contracts; and further, that they may exercise under business of a bank or banker; that the authority could the act all such incidental powers as shall be necessary not be inferred from usage, and the repetition of unauto carry on the business of banking, by discounting thorized acts by the officers could not give them and negotiating promissory notes, drafts, bills of ex- validity, and the officers only, not the bank, wero change and other evidences of debt; by receiving de- bound. The point was thus distinctly presented. It posits, by buying and selling exchange, coin and was argued by the most eminent counsel of the period, bullion; by loaning money on personal security, by and decided by a court of distinguished reputation. obtaining, issuing and circulating notes according to The court held that the practice of the bank having the provisions of the act. It cannot be contended that been to receive such deposits, and its building and because the power sto receive special deposits is not vaults having been allowed to be used for that purpose, particularly mentioned, therefore it is intended to and its officers employed in receiving into custody the place banks organized under this act on a different things deposited, the corporation, and not the casbier footing in this respect from other banks. There are or other officer through whose particular agency tho many contracts incident to the banking business, which property may have been received into the bank, must although not enumerated in the act, are daily made by be deemed the depositary. National banks without question as to their authority, The next case on the point is Lloyd v. West Branch such as receiving notes, checks, etc., for collection, Bank, 15 Penn. St. 172, decided in 1850. It was there eto. They are authorized to make any contracts, held that the power to receivo deposits conferred on which legitimately appertain to the business of bank- the bank by the Pennsylvania Banking Law referred ing, and if receiving special as well as general deposits to deposits of current money received as such aud not falls within the scope of that business, the power to to special deposits. But the court, although indulging receive deposits includes all kinds of deposits which in some strong expressions indicative of an opinion are known and customary in the banking business. that the statute did not intend to confer the power,

That the enumeration of banking powers contained states the question to be whether there was any such in the act of 1864 was not significant of an intention general custom or practice of the cashier of the bauk to place any special restriction upon National banks as to act as a voluntary bailee without reward, as to make distinguished from State banks, is apparent from the the bank liable for his acts, and the decisiou rests upon fact that it is a usual formula descriptive of the bank- the want of evidence of any such practice. The court ing business contained in bank charters (charter of was undoubtedly correct in holding that it was not inCommercial Bank of Albany, 'Laws of 1825, p. 198; tended that banks should be turned into pawu-brokDutchess Co. Bank, id. p. 204), and is almost identical ers' shops, or receive old clothes on deposit. But the with that contained in the General Banking Law of case is not an authority for the proposition, that if a 1838 (Laws of 1838, p. 249, § 18), which provides that bank is in the habit of receiving on deposit coin or • each association shall have power to carry on the other valuables such as are usually the subject of business of banking by discounting bills, notes and special deposits in banks, it will not be bound by the other evidences of debt; by receiving deposits; by act of its officers in receiving them. buying and selling gold and silver bullion, foreign coin But in later cases in the same State the doctrine of and bills of exchange in the manner specified in this Foster v. Essex Bank is expressly recognized and apact, by loaning money on real and personal security, plied to National banks. In Lancaster Co. Nat. Bank and by exercising such incidental powers as shall be v. Smith, 62 Penn. St. 47, where a special deposit of the necessary to carry on such business."

U.S. bonds had been made with the bank by deliverThe meaning of the two provisions is the same, and ing them to the teller, and the teller had subsequently their language is the same except in the order of delivered them to a third party supposed to be the dearrangement. In both the business of banking is de- positor, but without ascertaining his identity, the bank fined, that is, discounting paper, receiving deposits, was held liable. The case of Lloyd v. West Branch etc., and all powers incident to these general powers Bank was referred to, but the power of the bank to are added. In the act of Congress the frame of the bind itself by receiving the deposit was not disputed, sentence is that National banks shall exercise all such and it was held that it was a question for the jury incidental powers as shall be necessary to carry on the whether the bank had been guilty of gross negligence. business of banking, and then follows a description of In Scott v. National Bank of Chester Valley, 72 Penn. the banking business, while in the act of 1838 the St. 471; S. C., 13 Am. Rep. 711; Thomp. N. B. Cas. bauking business is first described, and the grant of 864, the facts were almost identical with those in Fosincidental powers follows. The enumeration in the ter v. Essex Bank. A special deposit of bonds for act of Congress is not of the incidental but of the safe-keeping had been made with the defendant by principal powers, and to these are superadded all inci- one of its customers, and the bonds were stolen by the

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