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over to the bank. The president and cashier | trustee, with knowledge that the securities composed the discount committee of the belong to a trust, the bank is affected with the bank, and the president participated in dis- knowledge of its cashier, and is put upon incounting the note. It was held, that the quiry as to whether the trustee has authorbank took the note subject to all the equities ity to pledge the securities. In Bank v. by which the president as an individual was Blake (C. C.) 60 Fed. 78, it appeared that bound, the presumption being that his knowl- the defendant had executed his promissory edge was the knowledge of the bank.

note to C. and delivered it upon condition Of like import is Cattle Co. v.Foster (N. M.) that it was to be surrendered to him upon C.'s 41 Pac. Rep. 522. In Hardy et al. v. Bank, 56 failure to perform stipulated acts. C. imKan. 493, 43 Pac. 1125, it appeared that the mediately transferred the note by indorsepresident and cashier, respectively, of a bank, ment to a bank of which he was president were part owners of a note sued on by the and general manager. The circuit court of bank, which note was taken in the name of the United States held, that as C. himself was S. by the procurement of the president and the sole representative of the bank, in the cashier, who had full knowledge of the trans- transfer of the note to it, the bank is chargeaction in which it was given. It was held, able with his knowledge of the condition to that the indorsement of the note by S. with- which it was subject, and could not sue on out recourse did not operate to transfer it to the note until that condition is performed. the bank free from defenses existing between In Bank v. Loyd et al., 89 Mo. App. 262, it the original parties to it.

was held that where a bank cashier makes The same principle is maintained in Bank purchase of a certificate of stock as such v. Phillips, 22 Mo. 85, 64 Am. Dec. 254. In cashier, be acts within the scope of his auBank of New Milford v. The Town of New thority and the knowledge that he has of the Milford, 36 Conn. 93, it appears that C., who condition of the stock must be imputed to was at the same time treasurer of a town the bank. and cashier of a bank, took $3,000 from the In Baldwin et al. v. Davis et al. (Iowa) funds of the bank for his own use and ex- 91 N. W. 778, it is held that where an agent ecuted a note to the bank for the amount as of a bank has notice that notes and a morttreasurer of the town, the note being entered gage securing them were without consideraupon the books of the bank in the same man- tion and fraudulent, the bank cannot hold ner with other notes taken for money loaned. the notes as collateral, it being charged with C. was the principal financial manager of the knowledge of its agent. the bank and had been allowed and accus- See, also, Bank v. Smith, 110 Tenn. 337, tomed to make loans at his discretion, with- 75 S. W. 1065, where the same doctrine is out consulting the directors. He had al

approved ready, without their knowledge, embezzled Goshorn v. People's National Bank (Ind. the funds of the bank to a large amount. App.) 69 N. E. 185, is a case where a deposiThe town had been in the habit of borrow- tor, desiring to withdraw his bank deposit ing money at this bank and elsewhere, and and commit it to a trust company, received upon notes executed by the town treasurer, from the bank cashier a suggestion as to a and these loans had been reported to the particular trust company, and drawing a town in the annual reports of the treasurer check delivered it to the cashier, with inwhich reports had been accepted by the town. structions to deposit the amount named with Occasional votes of the town for 30 years the company suggested. Instead of doing so, bad authorized the treasurers to borrow mon- the cashier substituted the depositor's money ey for the use of the town. In the suit by for paid checks of his own on the bank which the bank against the town on the note men- he was carrying as cash. It was held that tioned, it was held: (1) That the votes of the

even on the theory that the cashier was the town and reports of the town treasurers, depositor's agent for the transmission of the were admissible in evidence upon the ques- fund, the bank was liable for its misaption of the authority of C. to borrow money propriation, and transaction amounting to for the town. (2) That C. was engaged in an

a payment of the depositor's check merely extensive fraud upon the bank and in view

with the evidences of the cashier's indebted. of all the facts, it was fairly presumable ness, and the bank being cognizant of the that he made the note in the form in which

fraud through its cashier. he did, as a false representation and cover See, also, Cutting v. Marlor, 78 N. Y. 454, by which to perpetrate a fraud on the bank, for similar holding. In that case one Bonnor and with no intention to bind the town. (3) was the president of the bank involved in But that if he intended to bind the town, one of his fraudulent transactions in conhis own fraud as treasurer was known to verting to his use certain securities delivered him agent of the bank, and was therefore to the bank as collateral for a loan. The the knowledge of the bank and it could not trustees of the bank left the entire managerecover.

ment of it to Bonnor and another who was In Loring et al. v. Brodie, 134 Mass. 453, styled "manager." The trustees took the It is held that if the cashier of a bank re- statement of Bonnor without question or exceives securities on a loan from the bank to a amination. The bank was chargeable with

knowledge of Bonnor's fraud. On page 460, the court say: "A corporation is represented by its trustees and managers; their acts are its acts, and their neglect its neglect. The employment of agents of good character does not discharge their whole duty. It is misconduct not to do this. The bank might not be liable for a single act of fraud or crime on the part of an officer or agent, while it would be for a continuous course of fraudulent practice, especially those so openly committed and easily detected as these are shown to have been. Here were no supervisions, no meetings, no examination, no inquiry. * *

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

lessly.so. Through them the bank knew it. 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. It 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 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 to be unnecessary. We believe there is no error in the judgment of the lower court, and it is affirmed. But, in rendering this judgment, we are not laying down general rules to be applied indiscriminately, but wish to limit our decision and its scope to the facts of this case, on which alone it is authority.

Judgment affirmed.

SHAUCK, C. J., and CREW, SUMMERS, and SPEAR, JJ., concur. DAVIS, J., dissents.

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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, anu 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." 1 Of like import is City of Philadelphia v. Aldrich (C. C.) 98 Fed. 487. 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

(192 Mass. 477) 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 CERTIFICATEBENEFICIARIES-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. 0. 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 herself and Georgianna in his lifetime in the was known to Wilber; and that on July 14, same degree of comfort in which they had 1897, Agnes married him; that before the lived prior to his marriage to Agnes, and marriage Agnes said to Wilber that she that Wilber had agreed in substance that would not marry and break up the home the family should not be broken up, and of herself and sisters, and that he said that that such loss as might be suffered from the if she would marry him, all the sisters fact that Agnes, in consequence of her marshould go with her and "always have a home riage, had become a nonproducer, should be as long as he lived.”

made up by his contribution to the comShe further testified that after the mar- mon fund. They might further have found riage the old home was broken up and they all that after the death of Agnes it was the aswent to live with Wilber; that the arrange- sistance so rendered by Wilber which enment was that Agnes should "run the house" abled Lucy and Georgianna to live in the and Georgianna would help her in the work, same degree of comfort as before, and that and she (the witness) should "give in what this assistance was given and received, not she could"; that in pursuance of that ar- as a gratuity, but under a mutual recognirangement Agnes and Georgianna kept the tion of a moral obligation on the part of house while Wilber and the witness worked Wilber to stand to his promise; and that out and supported the family, he contrib- under the pressing sense of such an obligauting from $12 to $15 a week and she $1 a tion Wilber made Lucy a beneficiary under week, and sometimes more; that these sums the policy. In other words, the jury might were turned over to Agnes, who bought the have found that the assistance was not food, paid the rent and "ran the house on trivial or casual or wholly charitable, but it," and Wilber and Agnes "had their clothes was substantial and material, and that the out of it." In a word, they were all mem- obligation to furnish it, although perhaps bers of the same household, each contributing not enforceable in law, nevertheless rested either by money or by work to the mainte- upon moral and equitable grounds, and that nance of the common home.

it was furnished not gratuitously, but in She further testified that, after the death recognition of that obligation. This was of Agnes, Wilber said that "we would go enough. McCarthy V. New England Order on keeping house just the same as we did be- of Protection, 155 Mass. 314, 26 N. E. 866, fore my sister died, giving in together and 11 L. R. A. 144, 25 Am. St. Rep. 637. keeping house," and also that "if we would Exceptions overruled. 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

(192 Mass. 308) of that arrangement the home was kept up WOODALL V. BOSTON ELEVATED RY. as before until Wilber's death, Georgianna

CO. acting as treasurer.

(Supreme Judicial Court of Massachusetts. There was also evidence that Wilber, after

Suffolk. June 20, 1906.) the death of Agnes, said to Lucy that he had 1. STREET RAILROADS-ELEVATED RAILROADS made her one of the beneficiaries because

-PEDESTRIAN ON STREET-OBLIGATION TO

EXERCISE CARE. his children (by a former marriage) all had

A pedestrian, on the surface of a street, is good homes, and that if anything happened not bound to wait until a train on the elevated to her she had her sister Georgianna to road over the street has passed, or until no look after and needed the money.

train is passing overhead, the surface of the

street being supposed to be safe for travel, notIn McCarthy v. New England Order of Pro

withstanding the structure and trains overhead. tection, 153 Mass. 314, 318, 26 N. E. 866,

2. SAME-PERSONAL INJURIES-CAUSE OF IN11 L. R. A. 144, 25 Am. St. Rep. 637, it was JURIES-QUESTION FOR JURY. said that in interpreting this statute "legal

Evidence in an action against an elevated dependency [is] not the test," and that the

railroad for injury to a pedestrian on the street,

in consequence of a piece of metal falling from statute should be liberally construed. Mor- the elevated road into the pedestrian's eye, exton, J., in giving the opinion, uses the follow- amined and held to warrant a finding that the ing language: “Trivial or casual, or perhaps

particle which entered the pedestrian's eye came

from the operation of the contact-shoe on the wholly charitable assistance, would not cre

elevated road. ate a relation of dependency within the mean

3. NEGLIGENCE-PROOF OF NEGLIGENCE-SUFing of the statute or by-laws. Something I'ICIENCY. more is undoubtedly required. The bene- One suing for a personal injury negligently

inflicted is not bound to exclude the possibility ficiary must be dependent upon the member

that the accident might have happened in some in a material degree for support, or main- other way than alleged, but is required only to tenance, or assistance, and the obligation on satisfy the jury by a fair preponderance of the

evidence that it occurred in the manner in the part of the member to furnish it must,

which he claimed it did. it would seem, rest upon some moral, or

[Ed. Note.-For cases in point, see vol. 37, legal or equitable grounds, and not upon Cent. Dig. Negligence, $ 274.] the purely voluntary or charitable impulses

4. STREET RAILROADS-INJURY TO PEDESTRIAN or disposition of the member."

ON STREET NEGLIGENCE - QUESTION FOR In the present case the jury might prop

JURY. erly have found that Lucy was dependent

Evidence in an action against an elevated

railroad for injury to pedestrian on the street, upon the assistance of Wilber to support

in consequence of a piece of metal falling from

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

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.] 7. STREET RAILROADS REGULATION STAT

UTES - CERTIFICATE OF RAILROAD COMMISSIONERS-EFFECT.

Rev. Laws, c. 112, 8 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 constructor 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.

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.

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