over to the bank. The president and cashier composed the discount committee of the bank, and the president participated in discounting the note. It was held, that the bank took the note subject to all the equities by which the president as an individual was bound, the presumption being that his knowledge was the knowledge of the bank.

Of like import is Cattle Co. v.Foster (N. M.) 41 Pac. Rep. 522. In Hardy et al. v. Bank, 56 Kan. 493, 43 Pac. 1125, it appeared that the president and cashier, respectively, of a bank, were part owners of a note sued on by the bank, which note was taken in the name of S. by the procurement of the president and cashier, who had full knowledge of the transaction in which it was given. It was held, that the indorsement of the note by S. without recourse did not operate to transfer it to the bank free from defenses existing between the original parties to it.

The same principle is maintained in Bank v. Phillips, 22 Mo. 85, 64 Am. Dec. 254. In Bank of New Milford v. The Town of New Milford, 36 Conn. 93, it appears that C., who was at the same time treasurer of a town and cashier of a bank, took $3,000 from the funds of the bank for his own use and executed a note to the bank for the amount as treasurer of the town, the note being entered upon the books of the bank in the same manner with other notes taken for money loaned. C. was the principal financial manager of the bank and had been allowed and accustomed to make loans at his discretion, without consulting the directors. He had already, without their knowledge, embezzled the funds of the bank to a large amount. The town had been in the habit of borrowing money at this bank and elsewhere, and upon notes executed by the town treasurer, and these loans had been reported to the town in the annual reports of the treasurer which reports had been accepted by the town. Occasional votes of the town for 30 years had authorized the treasurers to borrow money for the use of the town. In the suit by the bank against the town on the note mentioned, it was held: (1) That the votes of the town and reports of the town treasurers, were admissible in evidence upon the question of the authority of C. to borrow money for the town. (2) That C. was engaged in an extensive fraud upon the bank and in view of all the facts, it was fairly presumable that he made the note in the form in which he did, as a false representation and cover by which to perpetrate a fraud on the bank, and with no intention to bind the town. (3) But that if he intended to bind the town, his own fraud as treasurer was known to him as agent of the bank, and was therefore the knowledge of the bank and it could not

recover.

In Loring et al. v. Brodie, 134 Mass. 453, it is held that if the cashier of a bank receives securities on a loan from the bank to a

trustee, with knowledge that the securities belong to a trust, the bank is affected with the knowledge of its cashier, and is put upon inquiry as to whether the trustee has authority to pledge the securities. In Bank v. Blake (C. C.) 60 Fed. 78, it appeared that the defendant had executed his promissory note to C. and delivered it upon condition that it was to be surrendered to him upon C.'s failure to perform stipulated acts. C. immediately transferred the note by indorsement to a bank of which he was president and general manager. The circuit court of the United States held, that as C. himself was the sole representative of the bank, in the transfer of the note to it, the bank is chargeable with his knowledge of the condition to which it was subject, and could not sue on the note until that condition is performed.

In Bank v. Loyd et al., 89 Mo. App. 262, it was held that where a bank cashier makes purchase of a certificate of stock as such cashier, he acts within the scope of his authority and the knowledge that he has of the condition of the stock must be imputed to the bank.

In Baldwin et al. v. Davis et al. (Iowa) 91 N. W. 778, it is held that where an agent of a bank has notice that notes and a mortgage securing them were without consideration and fraudulent, the bank cannot hold the notes as collateral, it being charged with the knowledge of its agent.

See, also, Bank v. Smith, 110 Tenn. 337, 75 S. W. 1065, where the same doctrine is approved.

Goshorn v. People's National Bank (Ind. App.) 69 N. E. 185, is a case where a depositor, desiring to withdraw his bank deposit and commit it to a trust company, received from the bank cashier a suggestion as to a particular trust company, and drawing a check delivered it to the cashier, with instructions to deposit the amount named with the company suggested. Instead of doing so, the cashier substituted the depositor's money for paid checks of his own on the bank which he was carrying as cash. It was held that even on the theory that the cashier was the depositor's agent for the transmission of the fund, the bank was liable for its misappropriation, and transaction amounting to a payment of the depositor's check merely with the evidences of the cashier's indebtedness, and the bank being cognizant of the fraud through its cashier.

See, also, Cutting v. Marlor, 78 N. Y. 454, for similar holding. In that case one Bonnor was the president of the bank involved in one of his fraudulent transactions in converting to his use certain securities delivered to the bank as collateral for a loan. The trustees of the bank left the entire management of it to Bonnor and another who was styled "manager." The trustees took the statement of Bonnor without question or examination. The bank was chargeable with

*

See, also, Bank v. Bank, 10 Gray (Mass.) 532; Savings Institution v. Bostwick, 19 Hun (N. Y.) 354; Holden v. Bank, 72 N. Y. 286. In Martin v. Webb, 110 U. S. 7-15, 3 Sup. Ct. 428, 28 L. Ed. 49, it was held that knowledge of the president of a bank is its knowledge. In Cragie v. Hadley, 99 N. Y. 131, 1 N. E. 537, 52 Am. Rep. 9, the court held that the acceptance of a deposit by a bank irretrievably insolvent, constituted such a fraud as entitled a depositor to reclaim his drafts or their proceeds. Indeed there are peculiar and urgent reasons for a more stringent enforcement of the rule against corporations than against individual principals, from the fact that the only way of communicating actual notice to a corporation is through its agents. Bank v. New York, etc., Canal Co., 4 Paige's Ch. (N. Y.) 127: "A corporation cannot see or know anything except by the eyes and intelligence of its officers."

There are many other cases in the same channel, but we have cited enough for the present purpose. It is quite true that cases can be found that seem to hold to a doctrine contrary to the foregoing, but they rest on a different character of facts, and usually treat of a single transaction wherein the fraudulent act of the officer or agent of the bank did not bind it. But as before stated, the conduct and acts of Barber and Patterson were of a series, running doubtless through many months; obtaining bank funds on their own worthless notes and on overdrafts from time to time so that the bank became "hopelessly and irretrievably insolvent" and this condition existed for a long time prior to the making of the deposit in question. What then, is the application of the law as we understand it to the facts of this case? The officers named, of course knew the bank was insolvent, and under the circumstances surrounding them, their knowledge was the knowledge of the bank. The board of directors created the cashier and vested in him the broad powers described in the above agreed statement. Not only so, but they seem to have abandoned all supervision and control during the last year of its active existence-abandoned it to whatever fate might overtake it in charge of such officers. The bank did not become insolvent after Barber and Patterson absconded on the night of June 11th, for it had been insolvent a long time prior thereto, and hope

The board of directors is chargeable with such knowledge of its condition as would have been ascertained by the exercise of ordinary care. Nevertheless its doors were again opened on Monday, June 13th, which fact was an invitation to make a deposit when none should have been received. was a palpable fraud on any innocent depositor to receive his money on that day—such fraud as should vitiate the transaction as a deposit and prevent title from vesting in the bank. In our judgment, no title did pass to the bank in this instance.

It

It seems useless to say that Barber and Patterson having absconded on the previous Saturday night, did not represent the bank on the 13th. True, they left it, but they left it as a mere shell. Scott who acted as assistant cashier and bookkeeper, and Keyes as bookkeeper were in charge on the 13th. They knew the bank was short of funds so that with what was taken in on that day, there was but little over $3,000 in its coffers. They were the only persons on duty there, and they knew that if the departing officers did not return with ample means by Monday night, the bank could not open again. It was hopelessly and irretrievably insolvent and had been for a long time. They did not return and as soon as the depositor learned that the bank was closed, he demanded of the receivers, the return of his deposit. We think he had a right of rescission and that the receivers held his deposit impressed with a trust to return it.

However, it is urged that the money deposited was indistinguishably mingled with the other funds of the bank, and that before a trust can attach, the depositor must be able to trace and identify his particular deposit. As a general rule this is true, but not always so. In this case there is not much difficulty in applying the rule, for it is agreed that, although the cash deposited was placed and commingled with other cash on hand the evening of the deposit, it was not credited to Barber on the books of the bank until after the appointment of the receiver, and it was done under his direction. As to the checks on other banks which were part of the deposit, they were not collected by the bank but by the receiver and several days after the appointment. While there were no "earmarks" on the money, the exact amount so deposited was known, and we regard the identification sufficient under the rules adopted by the courts to govern in such circumstances.

In Richardson v. New Orleans Debenture Co., 102 Fed. 780, 42 C. C. A. 619, 52 L. R. A. 67, the Circuit Court of Appeals, held: (1) "That when a bank receives a deposit after hopelessly insolvent, the fraud avoids the implied contract between the parties by which the relation of debtor and creditor would ordinarily arise, and prevents the money deposited from becoming the property

of the bank, and a trust is the equitable result. (2) Where a bank receives a deposit on the day of its suspension when it is known by its officers to be insolvent, and mingles the money with its own funds which, to an amount larger than the deposit pass into the hands of a receiver, it is not essential to the right of the depositor to recover his deposit from the receiver, that he should be able to trace the identical money deposited into the receiver's hands, but it is sufficient that the amount which went into his hands was increased by the amount of the deposit." In Massey et al. v. Fisher (C. C.) 62 Fed. 958, the Circuit Court for the Eastern District of Pennsylvania laid down the following rule: "The fact that the money was not marked and by a commingling with other funds of the bank, lost its identity, does not affect the right to recover in full, if it can be traced to the vaults of the bank, and it appears that a sum equivalent to it remained continuously therein until removed by the receiver." That court, in the opinion cites many supporting

cases.

In Wasson v. Hawkins (C. C.) 59 Fed. 233, the Circuit Court held that "where money and checks are unsuspectingly deposited in a bank, which is known by its managing officer to be hopelessly insolvent, a few minutes before the closing hour on the last day on which it does business, and the checks are subsequently collected by the bank's clerk, the whole of the deposit is charged with a trust, and an equal amount may be recovered from the receiver, who retains the specific money among the general mass of the bank's funds."

In Beal, Receiver, v. City of Somerville, 50 Fed. 647, 1 C. C. A. 598, 17 L. R. A. 291, the Circuit Court of Appeals, First Circuit, laid down the following proposition: "A city treasurer deposited checks in a bank, indorsed by him 'for deposit,' and the checks were immediately credited to him on his bank book, though not in pursuance of any agreement to that effect. He had been a depositor in the bank for some years, but had no agreement that his checks should be treated as cash, or that he should draw against them before collection. The bank became insolvent before the checks were collected, and their proceeds passed into the hands of a receiver. Held, that no title passed to the bank except as a bailee, and that the depositor was entitled to the proceeds."

Of like import is City of Philadelphia v. Aldrich (C. C.) 98 Fed. 487. The foregoing The foregoing decisions on this subject are quite within the case of St. Louis, etc., Railway Co. v. Johnston, 133 U. S. 566, 10 Sup. Ct. 390, 33 L. Ed. 638, where it is decided, that "when a bank has become hopelessly insolvent, and its president knows it is so, it is a fraud to receive deposits of checks from innocent depositors, ignorant of its condition, and he can reclaim them or their proceeds." Further discussion and citation of authorities seem

WILBER et al. v. SUPREME LODGE OF NEW ENGLAND ORDER OF PROTECTION et al.

(Supreme Judicial Court of Massachusetts. Suffolk. June 21, 1906.) INSURANCE - MUTUAL BENEFIT CERTIFICATE— BENEFICIARIES-DEPENdents.

Claimant and her two sisters lived together, and, prior to the marriage of one of them to deceased, it was arranged that after the marriage the four should continue to "run the house," whereupon the wife and one sister, who was in ill health, kept the house, and claimant continued to work for wages, which she contributed to the common fund. After the death of the wife, the home was continued as before, whereupon deceased took out a benefit certificate, naming claimant as beneficiary, in order to assist her to support herself and her invallid sister after his death. Held sufficient to show that claimant was "dependent" on deceased, within Rev. Laws, c. 119, § 6, limiting beneficiaries in such societies to dependents on the member.

Exceptions from Superior Court, Suffolk County; Robt. O. Harris, Judge.

Action by George A. Wilber and others against the Supreme Lodge of the New England Order of Protection and Lucy Cooper, claimant, on a certificate of insurance issued by defendant on the life of George T. Wilber. At the close of the evidence plaintiffs requested the court to direct a verdict for them, and to rule that there was no evidence that claimant was a dependent or relative of Wilber under the statute, and was therefore not entitled to the proceeds of the certificate. The court refused to so rule. and plaintiffs bring exceptions. Overruled.

Jas. F. Sweeney and Howard A. Wilson, for plaintiffs. Alfd. S. Hayes and Alvah G. Sleeper, for claimant.

HAMMOND, J. The question is whether the evidence warranted a finding that Lucy Cooper was "dependent" upon George T. Wilber within the meaning of that word as used in St. 1882, p. 149, c. 195, § 2 (now Rev. Laws, c. 119, § 6).

She testified that prior to July 14, 1897, she and her two sisters Agnes and Georgianna were all keeping house together in Cambridge; that she and her sister Agnes worked out and earned the money necessary to maintain the home; that Georgianna, who was not

strong, did the housework; that all this was known to Wilber; and that on July 14, 1897, Agnes married him; that before the marriage Agnes said to Wilber that she would not marry and break up the home of herself and sisters, and that he said that if she would marry him, all the sisters should go with her and "always have a home as long as he lived."

She further testified that after the marriage the old home was broken up and they all went to live with Wilber; that the arrangement was that Agnes should "run the house" and Georgianna would help her in the work, and she (the witness) should "give in what she could"; that in pursuance of that arrangement Agnes and Georgianna kept the house while Wilber and the witness worked out and supported the family, he contributing from $12 to $15 a week and she $4 a week, and sometimes more; that these sums were turned over to Agnes, who bought the food, paid the rent and "ran the house on it," and Wilber and Agnes "had their clothes out of it." In a word, they were all members of the same household, each contributing either by money or by work to the maintenance of the common home.

She further testified that, after the death of Agnes, Wilber said that "we would go on keeping house just the same as we did before my sister died, giving in together and keeping house," and also that "if we would keep on keeping house for him, we might go on and live the same way we had been living." She also testified that in pursuance of that arrangement the home was kept up as before until Wilber's death, Georgianna acting as treasurer.

There was also evidence that Wilber, after the death of Agnes, said to Lucy that he had made her one of the beneficiaries because his children (by a former marriage) all had good homes, and that if anything happened to her she had her sister Georgianna to look after and needed the money.

In McCarthy v. New England Order of Protection, 153 Mass. 314, 318, 26 N. E. 866, 11 L. R. A. 144, 25 Am. St. Rep. 637, it was said that in interpreting this statute "legal dependency [is] not the test," and that the statute should be liberally construed. Morton, J., in giving the opinion, uses the following language: "Trivial or casual, or perhaps wholly charitable assistance, would not create a relation of dependency within the meaning of the statute or by-laws. Something more is undoubtedly required. The beneficiary must be dependent upon the member in a material degree for support, or maintenance, or assistance, and the obligation on the part of the member to furnish it must, it would seem, rest upon some moral, or legal or equitable grounds, and not upon the purely voluntary or charitable impulses or disposition of the member."

In the present case the jury might properly have found that Lucy was dependent upon the assistance of Wilber to support

herself and Georgianna in his lifetime in the same degree of comfort in which they had lived prior to his marriage to Agnes, and that Wilber had agreed in substance that the family should not be broken up, and that such loss as might be suffered from the fact that Agnes, in consequence of her marriage, had become a nonproducer, should be made up by his contribution to the common fund. They might further have found that after the death of Agnes it was the assistance so rendered by Wilber which enabled Lucy and Georgianna to live in the same degree of comfort as before, and that this assistance was given and received, not as a gratuity, but under a mutual recognition of a moral obligation on the part of Wilber to stand to his promise; and that under the pressing sense of such an obligation Wilber made Lucy a beneficiary under the policy. In other words, the jury might have found that the assistance was not trivial or casual or wholly charitable, but was substantial and material, and that the obligation to furnish it, although perhaps not enforceable in law, nevertheless rested upon moral and equitable grounds, and that it was furnished not gratuitously. but in recognition of that obligation. This was enough. McCarthy v. New England Order of Protection, 155 Mass. 314, 26 N. E. 866, 11 L. R. A. 144, 25 Am. St. Rep. 637. Exceptions overruled.

(192 Mass. 308)

WOODALL v. BOSTON ELEVATED RY. CO.

(Supreme Judicial Court of Massachusetts. Suffolk. June 20, 1906.)

1. STREET RAILROADS-ELEVATED RAILROADS -PEDESTRIAN ON STREET-OBLIGATION TO EXERCISE CARE.

A pedestrian, on the surface of a street, is not bound to wait until a train on the elevated road over the street has passed, or until no train is passing overhead, the surface of the street being supposed to be safe for travel, notwithstanding the structure and trains overhead. 2. SAME-PERSONAL INJURIES-CAUSE OF INJURIES-QUESTION FOR JURY.

Evidence in an action against an elevated railroad for injury to a pedestrian on the street, in consequence of a piece of metal falling from the elevated road into the pedestrian's eye, examined and held to warrant a finding that the particle which entered the pedestrian's eye came from the operation of the contact-shoe on the elevated road.

3. NEGLIGENCE-PROOF OF NEGLIGENCE-SUF

the elevated railroad into the eye of the pedestrian, examined, and held to warrant a finding of actionable negligence on the part of the railroad in failing to provide protection for pedestrians having occasion to use the street. 5. SAME-FINDINGS-EFFECT.

In an action against an elevated railroad for injury to a pedestrian on the street, in consequence of a piece of metal falling from the elevated railroad into the eye of the pedestrian, the jury, in response to the question, "Was the negligence of the defendant in the failure to use a different contact-shoe, or in failure to apply to the railroad commissioners for approval of the pan, or both?" found that the negligence was in the failure to apply to the railroad commissioners for approval of pan. Held, that the finding was a finding that a pan was needed for the proper protection of pedestrians using the street, for otherwise there would have been no occasion for the railroad to apply to the commissioners.

6. STATUTES-AMENDMENT-CONSTRUCTION.

Where a statute in an amendment of and in addition to a prior statute, both statutes must be considered together.

[Ed. Note. For cases in point, see vol. 44, Cent. Dig. Statutes, §§ 303, 304.]

Rev. Laws, c. 112, § 44, makes a street railroad liable for injury sustained in the management and use of the tracks, etc. St. 1894, p. 767, c. 548, § 18, requires the railroad commissioners, on it appearing that an elevated railroad is in a safe condition for operation, to give a certificate to that effect and the company shall then be authorized to operate it. St. 1897, pp. 499, 502, c. 500, § 2, provides that the company may construct lines of elevated railway according to the plans approved by the railroad commissioners. Section 21 provides that the company shall be subject to the liabilities imposed on street railroads. Held, that the railroad commissioners are required to approve the plans of an elevated railroad before the railroad can be constructed and operated, and their approval is conclusive on the right of the company to construct and operate the road; but it is bound to exercise reasonable care in the construction and operation of the road. 8. SAME.

The certificate of the railroad commissioners is not within Rev. Laws, c. 111, § 20, which provides that no advice of the commissioners shall impair the obligations of railroad corporations or relieve them from the consequence of negligence, but is in the nature of a condition precedent, without which an elevated railroad company cannot proceed to construct or operate its railroad, and for want of which it could be restrained from proceeding with the construction or operation of the road as authorized by St. 1894, p. 768, c. 548, § 20. 9. SAME-NEGLIGENCE.

Where a pan, to prevent the falling of sparks from an elevated railroad on persons in the street, was reasonably necessary, it was the duty of the elevated railroad either to apply to the railroad commissioners for their approval of a pan, or to proceed to put up one without approval.

10. SAME-CARE REQUIRED.

Where there was an appliance which, in the reasonable operation of an elevated railroad, could be used to prevent them from falling to the street and injuring pedestrians there, it was the duty of the railroad to avail itself thereof, and it was not enough for it to do all that could be reasonably required to prevent sparks, but it was bound to do all that it reasonably could, if it was impossible to prevent sparking, to see that no one was injured by the sparks.

11. SAME NEGLIGENCE - EVIDENCE-SUFFICIENCY.

In an action against an elevated railroad for injuries to a pedestrian on the street in consequence of a piece of metal falling from the elevated railroad into the eye of the pedestrian, the evidence showed that it was feasible to construct a pan which would prevent the falling of sparks on persons in the street, and that it was known that there was a good deal of trouble from sparking after the road began operation. in June, 1901, and that nothing was done to remedy it prior to the accident, January, 1902. Held, to warrant a finding of negligence on the part of the railroad.

12. APPEAL-EXCEPTIONS-WAIVER.

Errors not argued will be treated as waived. Exceptions from Superior Court, Suffolk County.

Action by John S. Woodall against the Boston Elevated Railway Company. There was a judgment for plaintiff, and defendant brings exceptions. Overruled.

H. E. Bolles, Olcott O. Partridge, and Henry M. Channing, for plaintiff. Endicott P. Saltonstall and Sanford H. E. Freund, for defendant.

MORTON, J. Something which the jury found to be a piece of metal from the operation of the contact-shoe on the defendant's elevated railway got into the plaintiff's eye while he was crossing Atlantic avenue between 1 and 2 p. m. on January 23, 1902, and this is an action of tort to recover damages for the injury caused thereby. There was a verdict for the plaintiff and the case is here on exceptions by the defendant to the refusal of the court to rule that on all the evidence the plaintiff was not entitled to recover. The court submitted two questions to the jury to be answered by them if they found for the plaintiff: "(1) Did the piece of metal in the plaintiff's eye come from the operation of the brake-shoe or the contact-shoe, or neither?" to which the jury answered "The operation of the contact-shoe," and "(2) Was the negligence of the defendant in the failure to use a different contactshoe, or in failure to apply to the railroad commissioners for approval of the pan, or both?" to which the jury answered "In failure to apply to the railroad commissioners for approval of pan." Other questions not now material were submitted to them to be answered in case they found for the defendant.

The defendant does not now contend that the plaintiff was not in the exercise of due care and we therefore treat that question as no longer in issue. It is plain that in crossing Atlantic avenue as the evidence tends to show that he did, no lack of ordinary care could be imputed to the plaintiff. He was not bound to wait until there was no train passing over head, or until the train that was passing had gone along. The surface of the street was and is supposed to be safe for travel notwithstanding the structure and trains overhead.