sidering the allegation of malice as a material part of the declaration, and necessary to be proved, and so charging the jury, we advise that a new trial be granted.

In this opinion ELLSWORTH, J., concurred.
STORRS, C. J., dissented.

New trial advised.

ACTION LIES FOR INJURY CAUSED BY WANT OF DUE CAUTION withous any regard to the intent with which the injury was done: See Morgan v. Cox, 66 Am. Dec. 623, note 627; Miller v. Morgan, 57 Id. 242. Proof of wrongful intent is not necessary in order to constitute trespass: Stanley v. Gaylor, 48 Id. 643; Newsom v. Anderson, 37 Id. 406, note 407, where other cases are collected. The intent with which an act is done is no test of a person's liability in trespass: Hobart v. Haggett, 28 Id. 159.

EAVES v. PEOPLE'S SAVINGS BANK.

(27 CONNECTICUT, 229.]

MONEY DEPOSITED IN SAVINGS BANK CAN BE LEGALLY DEMANDED AND RECEIVED THEREFROM only by the depositor or his attorney, or in case of his death, by his executor or administrator.

SAVINGS BANKS TAKE MONEY DEPOSITED WITH THEM AND USE IT AS THEIR OWN, to be restored at all events when called for. "They possess the usual powers and duties of banks, except that they are not banks of issue and circulation, and their capital is liable to be withdrawn upon notice.

Payment by Savings Bank, MADE TO PERSON PRESENTING FORGED OR.

DER AND BANK-BOOK of the depositor, is no defense to an action brought by the depositor to recover from the bank the amount so paid by it. MERE PRESENTATION OF PASS-BOOK OF SAVINGS BANK IS NOT AUTHORITY for the payment of money, in the absence of any agreement to that effect.

AGREED case submitted upon the following statement of facts: Elam Eaves deposited with the People's Savings Bank of Hartford the sum of one hundred and eighteen dollars and twentynine cents, and took a depositor's bank-book in the usual form, containing an entry of that amount to his credit. He stated,

at the time of making the deposit, that he was going to Australia, and directed the treasurer to pay out the money to his wife as she might apply for it. Mrs. Eaves subsequently drew out forty dollars on one occasion, and thirty dollars on another. On the twenty-fifth of July, 1857, a young woman called at the bank with the bank-book and a written order purporting to be from Mrs. Eaves, requesting the treasurer to pay her forty-two

dollars and seventy cents. The treasurer paid her the money and entered it on the book. The order proved to have been forged by the young woman, who was a boarder in Mrs. Eaves's family, and had got possession of the bank-book by stealing it from a bureau drawer where it was kept by Mrs. Eaves, who did not discover the loss until after the money was drawn. On the cover of the bank-book the following paragraph was printed prominently by itself: "Caution to Depositors. This book should be preserved with great care. If it should be lost, give immediate information to this office." The book also contained a copy of the by-laws, one of which was as follows: "Payment on deposits shall be made only to the depositor or to his or her order, or to the depositor's legal representatives, on the presentation of the depositor's book." Owing to the difficulty stated in the opinion, the bank has from the first adopted the rule of paying to a person who brings the bankbook, regarding the possession of it, in the absence of circumstances exciting suspicion, as reasonable evidence of the genuineness of an order, if an order is brought, or of the claimant being in fact the depositor, if he claims to be so. The same rule has long prevailed in the other savings institutions of the city of Hartford, and is of general notoriety, but there is no evidence that it was brought to the knowledge of Mr. Eaves otherwise than by the notices contained in the bank-book given to him. Eaves now demands the forty-two dollars and seventy cents paid out on the forged order, and the parties submit to the court the question whether the savings bank is liable to pay the same. The case was reserved by the superior court for the advice of this court.

Sill, for the plaintiff.

Hooker and Nichols, for the defendants.

By Court, ELLSWORTH, J. We discover no question of diffi culty in this case. The plaintiff having deposited with the defendants the money demanded, it would seem too clear to need a judicial decision that he or his duly constituted attorney can alone obtain its repayment. We have looked into the charter and by-laws of the bank to see if there be anything to prevent the application of the principle of the common law to the case, but we find nothing-certainly nothing that approximates to a legal authority for the payment of the money by the bank on the forged order that was presented.

The charter declares that "all deposits of money received by

said corporation shall be used and improved to the best advantage," etc., "and that the principal of such deposit or deposits may be withdrawn by the owner or owners thereof, or by any person or persons duly authorized for said purpose, on giving notice of such intention in writing, and lodging the same with the secretary of the corporation at least four months previous to withdrawing such deposit or deposits.”

This previous notice, we infer, was waived in this case, as it certainly could be by the bank, it being a condition solely for its benefit. Clearly the money could be legally demanded and received of the defendants only by the depositor or his attor ney, or in case of his death, by his executor or administrator. And were it important, we might add that this is the very language of the by-law. It is said that the defendants are mere bailees of the money, and as such are responsible only for ordinary care. Suppose this were so-which, however, we do not admit it would not help the defendants; for it would be no excuse for paying the money to an unauthorized person-and one with a forged authority is no better. We think that the defendants are not bailees, but a banking corporation with the usual powers and duties of banks, except that they are not a bank of issue and circulation, and the capital is liable to be withdrawn upon notice. They do not take money to be used and held in trust, as is intimated, nor to be specifically restored, more than in any case of a loan of money or a deposit in a bank, but, on the contrary, they take it and use it as their own, to be re stored at all events when called for.

But it appears that the defendants paid this money to a person who came with the bank-book of the depositor and a forged authority.

But a forged power of attorney is no power of attorney at all and the presentation of the bank-book alone is of no greater effect; for the book is not negotiable; it may have been stolen, and presented by the thief, as was the fact here. The rights of depositors require more security than this. Besides, the book itself denies the legality of the payment, for the by-law of the bank as well as the printed caution to depositors, which appear in the book, point out how and by whom the money shall be drawn. Had the book contained this further notice, that the presentation of the book shall be taken to be full authority for paying the money, the defendants would have had a good defense; for it might be reasonably held in that case that the bank insisted upon this as a condition of receiving the deposit. Prob

ably the insertion of such a condition would, however, defeat itself, for few people would be willing to deposit money with a bank on such terms. Such a book ought not to be clothed with the character of a bank power of attorney. It is wholly unnecessary to give it this effect, and we think it would be improper to do go.

It is said there is great difficulty in conducting this kind of business, if more than the book is required as an authority for the payment of the money; that many of the depositors cannot write, nor sign a receipt even, so as to identify themselves by their handwriting, and that as to knowing them personally, or learning their places of residence, when they are shifting them from month o month, is a thing quite impracticable. This may be true, but without some agreement to that effect these inconveniences cannot annul the universally acknowledged and indispensable principle of the common law mentioned above.

It is again said that a general practice of this kind has prevailed among the savings banks of this city, and that this furnishes authority enough to justify the defendants. If this be the general practice, it cannot avail here, because this book declares that the money is payable to the depositor or his order, or to his legal representatives, on the presentation of the book; and further, such a practice cannot of itself alter the general law. Iet the rule be inserted in the book and assented to by the depositor, and then it will be a sufficient authority for such a payment,

We advise judgment for the plaintiff.

In this opinion the other judges concurred.
Judgment for plaintiff advised.

DEPOSITS IN SAVINGS BANK: See Makin v. Savings Institution at Portland, 41 Am. Dec. 349, note 357; Makin v. Institution for Savings, 36 Id. 740; note to In the Matter of the Franklin Bank, 21 Id. 424, where this subject is discussed at length.

BANKERS ARE PRESUMED TO KNOW SIGNATURES OF THEIR DEPOSITORS, and are reponsible for paying forged checks purporting to be signed by them: Weisser v. Denison, 61 Am. Dec. 731, note 739.

PAYMENT OF FORGED CHECK, EFFECT OF, ON RIGHTS OF PARTY DEFRAUDED: See Laborde v. Consolidated Association, 39 Id. 517, note 519, where this sub. jeat is discussed at length.

CORBIN v. AMERICAN MILLS.

[27 CONNECTICUT, 274.]

TO SHOW THAT RELATION OF MASTER AND SERVANT EXISTS, so as to render applicable the rule of law that the employer must protect and indemnify the agent he employs, it must appear that the servant is acting at the time for and in the place of his master, in accordance with and representing his master's will and not his own, and that the business which he is doing is strictly that of his employer and not in any respect his own. PAYMENT OF EMPLOYER BY DAY IS NOT CRITERION by which to determine whether or not the relation of master and servant exists between him and his employer, although it is a circumstance entitled to weight in a case of doubt.

SPECIAL assumpsit. The facts are stated in the opinion.

Loomis and Hyde, for the plaintiff.

T. C. Perkins and Brockway, for the defendants.

By Court, ELLlsworth, J. Several questions have been dis cussed in this case which we think it not necessary to decide, for there is one which lies at the foundation, about which we entertain no doubt. We are satisfied that the plaintiff cannot be regarded as the hired servant and agent of the defendants at the time when the act was done which has subjected the plaintiff to the loss for which he seeks to recover an indemnity from the defendants.

Before we proceed to consider the case, we would remark that the form in which the question is presented is objectionable. The superior court, instead of finding the evidence of the fact of agency, should have found the fact itself, and not have left this court to decide upon the weight of evidence and to draw conclusions of fact. We allude to it here because this practice is be coming quite too common, and if persisted in, we shall be coinpelled to refuse to try cases so irregularly brought before us. Had the judge undertaken to find whether the plaintiff and his servants were the hired servants and agents of the defendants, as alleged in the declaration, we think it quite possible the case would not have come here. But we pass the objection for this time, since the parties have been permitted to argue their case upon its merits, and we will proceed to make a final disposition of the matter in litigation.

In considering the true relation of the parties at the time to each other, it is essential to notice with discrimination the particular circumstances attending the transaction; for it is not easy always to determine whether the relation between the per son employing another to do a job of work and the person em