stairs at either end of the station leading from the platform to the street. The stairs at the north end of the station were open at the top, as if they might be used. These stairs and a platform at the bottom of them about four feet from the ground were constructed by an express company for its sole use, but they were on defendant's premises. Plaintiff in attempting to pass down these stairs in the dark from the upper platform to the street, without fault on her part, fell from the lower platform to the ground, striking beyond the limit of defendant's premises and was injured. The court held defendant liable for damages from such injury. The decision is an application of the general rule that railway companies are bound to keep in a safe condition, all portions of their platforms and approaches thereto, to which the public do, or would naturally resort, and all portions of their station grounds reasonably near to the platforms where passengers or those who have purchased tickets with a view to take passage in the cars would naturally or ordinarily be likely to go. See McDonald v. Chi. & N. W. Ry. Co., 26 Iowa, 124; Shepperd v. Midland Ry. Co., 20 W. R. 705; Barnes v. Ware, 2 Car. & K. 661; Mersey Docks & H. Board v. Penhallow, L. R., 1 H. L. 93; Metcalfe v. Hetherington, 5 H. & N.719. Also Tobin v. Portland S. & P. R. R. Co., 59 Me. 183; 8 Am. Rep. 415, where a railroad company was held liable for injury to a hackman who was carrying a passenger to its depot. caused by a cavity in its platform into which the hackman without fault on his part stepped. See further, a note to last-named case, 8 Am. Rep. 417; Caswell v. Bost. & Worcester R. R. Co., 98 Mass. 99.

The question as to the jurisdiction of State courts over offenses by officers of National banks, is an important one, and one also on which the text writers-notably Bishop- are unusually obscure. See 2 Bishop's Crim. L. (6th ed.) 382; 1 Whart. Crim. L. 182. Mr. Bishop, after citing one case from Connecticut and two from Massachusetts, says: "It is not proposed to inquire here how far the doctrines of this section are sound," and then after his manner- he refers to some other parts of his work where there is nothing or next to nothing on the subject. The first case in which the question was considered was State v. Tuller, 34 Conn. 280, wherein it was held that while a State court had no jurisdiction of the offense of embezzlement by an officer of a National bank of the property of a bank, it has jurisdiction of the larceny or purloining by such officer of the property of others left with the bank for safekeeping. This conclusion was based upon the argument that the exclusive Federal jurisdiction was

limited to offenses arising out of the internal working of such banks-to offenses arising out of the relation between the officers, clerks and agents of the bank, and the bank itself; but that as to the offenses arising out of the business relations between the bank or its officers and agents and its customers, the State court had jurisdiction. Thus the court said: "It is theft by our law to steal from a National bank; it is burglary to break into one for the purpose of stealing; and it is cheating to obtain money from one by false pretenses. As a corporate being, located in the State, its property and interests and business are protected by State laws and subject to State legislation, and so it is competent for the legislature to protect its customers, the citizens of the State, in their business dealings with it, whatever they may be, whether constituting the relation of borrower and lender or special or general depositor and bailee; and they may be controlled and protected by penal enactments, without interference with the laws of Congress." In Commonwealth v. Tenney, 97 Mass. 50, the Supreme Judicial Court of Massachusetts held that a State court had jurisdiction of an indictment against an officer of a National bank for fraudulently converting to his own use the property of an individual deposited in the bank, under a State statute making such fraudulent conversion "larceny." This was on the ground that the offense charged had not been made punishable by act of Congress, as the 55th section of the National Banking Act only applied to embezzlement of the property of National banks. Again, in Commonwealth v. Felton, 101 Mass. 204, the same court held that a State court had no jurisdiction of the crime of embezzlement by an officer of a National bank of the funds of the bank, since such offense is exactly covered by the act of Congress, and also that as Congress had made such offense a misdemeanor, only, an accessory could not be punished under a State statute making the offense a felony. In Commonwealth v. Barry, 116 Mass. 1, it was held in accordance with these decisions, that while a State court has not jurisdiction of the offense of embezzlement of the property of the bank by an officer thereof, it has jurisdiction of the offense of larceny of the property of the bank by such officer. The case turned on the distinction between "embezzlement " and "larceny." Had the teller appropriated to his own use the property of the bank while it was intrusted to him during the day, the offense would have been embezzlement, and not punishable in the State courts; but having purloined such property after it had been withdrawn from his possession and custody, and placed beyond his lawful reach, his offense was larceny.

tiffs consented. A applied to the defendant to become surety, and represented that his stock would otherwise be sacrificed, but did not communicate the fact that the former surety was to be released. The defendant testified, that if he had known that, he would not have become surety, but, on crossexamination, admitted that he relied on the solvency of Sir T. Branche,' the principal. In the course of a desultory running argument between the court and counsel, the judges criticised the decision in Railton v. Matthews, as going too far, and say that the point decided by Lords Campbell and Cottenham in that case was, in effect, that it was not necessary to render a concealment fraudulent, that it should be made with a view to the advantage of the person concealing. The court hold that the non-disclosure of the change of security would not vitiate the guaranty, unless fraudulently kept back, and that there was no ground in this case to impute fraud; that the former surety might well wish to be released for other reasons than doubt of Sir T. Branche's solvency.

"In the Franklin Bank v. Cooper, 36 Me. 179, the directors knew of the cashier's default, and took bond from him to account for all property heretofore intrusted to him, etc. Held, that the surety had a right to presume that the transaction was in the ordinary course of business; that the bank was bound to communicate facts increasing the risks, and which would have an important influence on the decision of the surety.

"In the case of Bank of the United States v. Etting, 11 Wheat. 59, the United States Supreme Court, being equally divided in opinion, the ques

tion was not decided.

"We think that it is going too far to say that the creditor is, in all cases, and without being inquired of, bound to communicate every thing that it is important for the surety to know, and that would increase his risk. Under such a rule no one would ever know when he could rely on a bond, and it would lead to a good deal of litigation. "We think the safe rule is that, to avoid the bond, there must be, on the part of the creditor, a fraudulent concealment, or withholding of something material for the surety to know. Would the fact which the defendant offered to prove, if proved, have amounted to a fraudulent concealment or withholding? It is not alleged here that the directors withheld any information inquired for, or said or did any thing | which could have a tendency to mislead the surety, or made any, the least effort to induce the defendant to become surety. If there had been an actual default, and an attempt by the directors to cover it up, or reimburse themselves at the expense of the surety, the case would be different.

"Moreover, the cases which we have referred to are cases in which the information withheld or not disclosed related in some way to the business which

was the subject of the suretyship. In this case, the undisclosed information related, not to the business which was the subject of the suretyship, and not to the conduct of the cashier, as cashier, but to his general character. It did not follow that because he gambled he would fail in his duty as cashier, and the exceptions do not show that his actual delinquency had any connection with his gambling. The directors may have deemed it advisable to demand an increase of his bond because of his gambling; and so they might have deemed if they had learned he was keeping a fast horse, or speculating in the stocks. But would it have been their duty, unless inquired of, to impart their knowledge to the sureties? We think not, in the absence of a more confidential relation than that which is implied in the mere giving and accepting of the surety-bond. If, when there is no such confidential relation, the sureties wish to have the obligees affected with a duty to give such information, they should inquire for it. Otherwise, it may be supposed that they are content with what they themselves know, or with inquiries which they have made elsewhere."

In Owen v. Homan, 8 Mac. & G. 378, the creditor or obligee was held to be bound to make a full, fair and honest communication to the surety of all circumstances connected with the transaction to which the suretyship is to be applied, which are calculated to influence the discretion of the surety in entering into the required obligation. See that case on appeal, 4 H. L. Cas. 997. Matters unconnected with the transaction of the suretyship need not be disclosed to the surety unless he inquire concerning them. Wythes v. Labenchere, 3 DeG. & J. 593.

Mere negligence of a bank in detecting dishonest practices of a cashier will not discharge his sureties. There must be such negligence as in law amounts to a fraud on the sureties to accomplish that result. The distinction between mere negligence and fraud on the part of obligees as to the liability of sureties was clearly stated in United States v. Kirkpatrick, 9 Wheat. 720. That was an action on an official bond taken by the government. The defense was neglect on the part of the collecting officer of the government to sue within the time prescribed by law. The court, Story, J., delivering the opinion, said: "It is admitted that mere laches, unaccompanied with fraud, forms no discharge of a contract of this nature between private individuals; such is the clear result of the authorities." The same distinction was applied to cashier's bonds in State Bank v. Chetwood, 3 Halst. 1, and in Taylor v. Bank of Kentucky, 2 J. J. Marsh. 565; Morris Canal Co. v. Van Voorst, 1 Zabr. 100.

So, in Minor v. Bank of Alexandria, 1 Pet. 61, it was held that a usage of the board of directors to permit the cashier to misapply the funds of the bank would not exonerate his sureties. Story, J.,

who delivered the opinion of the court, said: "The question then comes to this, whether any act or vote of the board of directors, in violation of their own duties and in fraud of the rights and interests of the stockholders of the bank, could amount to a justification of the cashier, who was a particeps criminis. We are of opinion that it could not. However broad and general the powers of the direction may be for the government and management of the concerns of the bank, by the general language of the charter and by-laws, those powers are not unlimited, but must receive a rational exposition. It cannot be pretended that the board could, by a vote, authorize the cashier to plunder the funds of the bank, or to cheat the stockholders of their interest therein. No vote could authorize the directors to divide among themselves the capital stock, or justify the officers of the bank in an avowed embezzlement of its funds. The cases put are strong, but they demonstrate the principle only in a more forcible manner. Every act of fraud, every known departure from duty by the board in connivance with the cashier, for the plain purpose of sacrificing the interests of the stockholders, though less responsible in morals or less pernicious in its effects than the cases supposed, would still be an excess of power, from its illegality, and, as such, void as an authority to protect the cashier in his wrongful compliance. Now, the very form of these pleas sets up the wrong, and connivance cannot for a moment be admitted as an excuse for the misapplication of the funds of the bank by the cashier." The same rule was held in Amherst Bank v. Root, 2 Metc. 522; Taylor v. Bank of Kentucky, 2 J. J. Marsh. 565, and in Sparks v. Farmers' Bank, 9 Am. Law Reg. 365. So in Atlantic and Pacific Tele- | graph Co. v. Barnes, 64 N. Y. 385; S. C., 21 Am. Rep. 621, in an action upon a bond given by an employee to his employer conditioned that the former would faithfully account for all moneys and property coming to his hands, it was held that the sureties were not discharged from subsequent liability by an omission of the employer to notify them of a default by the employee which was known to the employer and a continuance of the employment after such default where it did not appear that such default arose through the fraud or dishonesty of the employee. The court expressed the opinion that had the default arisen through the dishonesty of the servant, a withholding of the fact from the sureties and the continuance of him in the service would have discharged the sureties.

This was held in Phillips v. Foxall, L. R., 7 Q. B. 666, where on a continuing guaranty of the honesty of a servant it was held if the master discovered

that the servant has been guilty of dishonesty in the course of the service, and instead of dismissing the servant he chooses to continue him in his employ without the knowledge and consent of the sureties,

he cannot afterward have recourse to the surety to make good any loss arising from the dishonesty of the servant during the subsequent service. The same principle was held in Sanderson v. Aston, L. R., 8 Exch. 73, and in Burgess v. Eve, L. R., 13 Eq. 450.

In Black v. Ottoman Bank, 15 Moore's P. C. 472; S. C., 8 Jur. (N. S.) 801, the surety on the bond of a bank cashier was held not to be discharged by a failure of the bank to use diligence in guarding against the cashier's dishonesty — that mere negligence would not absolve the surety; and in Dawson v. Lawes, Kay, 280; S. C., 23 L. J. Chan. 434, it was held that to discharge a surety for the due performance of duties, there must be on the part of the obligee an act of connivance or gross negligence, amounting to willful shutting of the eyes to fraud or something approximating it. There must be something amounting to fraud to enable a surety to say that he is released from his contract on account of misrepresentations or concealments. Pledge v. Buss, Johns. (Eng.) 663.

A concealment by a creditor that at the time of the contract the principal debtor was already indebted to the creditor in a considerable sum, of which fact the surety was ignorant, has been held evidence to go to the jury of such fraud on the surety as would discharge him. Lee v. Jones, 14 C. B. (N. S.) 386. See, also, Hamilton v. Watson, 12 C. & F. 258; Smith v. Bank of Scotland, 1 Dow. 272; Padcock v. Bishop, 3 B. & C. 605; Peel v. Tatlock, 1 Bos. & P. 419; Squire v. Whitten, 1 H. L. Cas. 333; and the same rule would apply to sureties on cashiers' bonds as to concealments by the bank.

In Lee v. Jones, supra, affd. on appeal, 17 C. B. (N. S.) 482, P. had been employed by the plaintiffs in the sale of coal for them on commission, for which he at the end of each month gave them his acceptance, and by the terms of his agreement, he was to hand over to them within six days all moneys he received from customers. P. having fallen in arrear to the extent of 1,272l., the plaintiffs required him to find security to the amount of 8007., and at his request the defendant consented to guarantee 1007. The agreement of guaranty recited the terms of dealing between the plaintiffs and P.; but the fact that P. was already indebted to the plaintiffs in the large sum above mentioned was concealed from the sureties. In an action against the defendant upon the agreement, he pleaded that he was induced to make it by the fraudulent concealment by the plaintiffs of a material fact: Held, that the noncommunication by the plaintiffs to the defendant of the fact that P. was at the time indebted to them was evidence for the jury in support of the plea.

Farmington v. Stanley, 60 Me. 472, cited in the principal case, held that the failure of selectmen to examine the accounts of a town treasurer as by statute directed, or to detect an error in his accounts,