that then it was her duty to use ordinary and reasonable care to prevent said water pipes from freezing, bursting and discharging water on the goods of the plaintiff, and the mere fact that the tenant, Dr. Robertson, may have called attention to needed repairs to the pipes in his closet, and requested the defendant to enter and make such repairs, does not shift the responsibility or duty which she may have owed to other tenants in her building to him."

These instructions were misleading, without evidence to support them, and were well calculated to impose upon the defendant, as landlord, responsibility for duties she was under no obligation to perform. There is no evidence tending to show that it was the duty of the defendant to look after and care for the pipes in Dr. Robertson's office with a view to keeping them from freezing and bursting. On the contrary the evidence shows that Dr. Robertson had been placed in the exclusive possession and control of the water closet, to which no one, not even the landlord, had access except by procuring from him the only key that opened the door to the closet; that the only duty devolving upon the landlord in connection with the closet was to repair it or put it in order whenever notified that it was out of order, which she had always done promptly. The evidence on this point is uncontradicted and conclusive, and shows that the defendant's sole duty with respect to this closet was exactly the same that she assumed under her written lease with the plaintiff, which provides, as her obligation in this matter, "that she will unstop all waste pipes that may become choked by negligence or inattention on the part of those using them, and will repair all water pipes that may burst from freezing because of failure to turn the water off."

The instructions erroneously told the jury that the duty of the landlord to repair the pipes when out of order imposed upon her the duty of preventing them from getting out of order; in other words, that it was her duty to inspéct and care for the pipes in Dr. Robertson's closet so as to prevent the water in them from freezing and the pipes from bursting. There is no evidence in support of this proposition. The instructions ignored the difference between the duty of the landlord in the matter of repairing and keeping pipes in order and the duty of the tenant, in his use of the premises, to avail himself of the precautions

provided to prevent the escape of water in the event of the pipes freezing and bursting.

The defendant asked for fourteen instructions, ten of which were given, and objection is taken to the action of the court in refusing to give the remaining four. In this there was no error. The ten instructions given for the defendant fully submitted her case to the jury. The four rejected instructions were either fully covered by the ten which were given, or contained an abstract proposition of law which was immaterial.

For the error pointed out in the two instructions given for the plaintiff, the judgment complained of must be reversed, the verdict of the jury set aside, and the case remanded for a new trial to be had not in conflict with the views expressed in this opinion.

Reversed.

GREENSBURG NATIONAL BANK v. SYER & COMPANY ET AL.

(Richmond, January 18, 1912.)

1. INSTRUCTIONS-Pleading and Practice-Exception.-An instruction to which there is no exception by either party is the law of the case in which it is given, even though it does not correctly state the law.

2. BANKS AND BANKING-Ownership of Deposited Draft-EvidenceVerdict. Where the evidence showed that a draft deposited with a bank by a depositor of many years standing was deposited as paper and not as cash, that it was not discounted, but the whole amount placed to the depositor's credit; that it was the custom among banks to permit a customer to deposit a draft for collertion and to check upon the amount so credited, the understanding being in such case that the draft may be charged back to the customer's account at any time if not paid; that the draft was treated and dealt with by the depositor and his attorneys as his property, and that protest was waived: Held, that a verdict of the jury that the draft remained the property of the depositor, rendered upon proper instructions and approved by the trial court, cannot be said to be without evidence to sustain it.

Error to the Court of Law and Chancery of the city of Norfolk.

Affirmed.

Loyall, Taylor & White, for the plaintiff in error. Jeffries, Wolcott, Wolcott & Lankford, for the defendants in error.

KEITH, J.:

Syer & Co., of Norfolk, purchased of J. M. Hornung, of Greensburg, Ind., a carload of flour. When the flour was shipped, Hornung attached the bill of lading to a draft on Syer & Co. for $1,062, and deposited the draft in the Greensburg National Bank of Greensburg, Ind. Upon arrival of the flour at Norfolk, Syer & Co. claimed that it was of inferior quality, and refused to pay the draft which had been presented to them by the Citizens' Bank of Norfolk, through which the draft had come from the Greensburg National Bank. Syer & Co. notified Hornung of their dissatisfaction with the flour, and thereupon Hornung wired Syer & Co. to draw on him for the amount of the depreciation in the value of the flour. Syer & Co. did not take up the draft, but drew on Hornung for the depreciation, which draft Hornung refused to pay, and upon his refusal Syer & Co. went to the Citizens' Bank of Norfolk, took up the draft for $1,062, and immediately brought suit against Hornung for the amount of the depreciation in the flour and attached the money in the hands of the Citizens' Bank of Norfolk as the property of Hornung.

The Greensburg National Bank was allowed to intervene as claimant of the fund held by the Citizens' Bank, and thereupon moved to quash the attachment on the ground that the fund was not the property of Hornung, but belonged to the Greensburg National Bank, and that the attachment was issued upon false suggestion. The matter was submitted to a jury, who found that the money in the bank was the property of Hornung, and subject to the attachment of Syer & Co.; a judgment was entered in favor of Syer & Co. against Hornung for $420, the amount of the depreciation in the flour, which was directed to be paid by the Citizens' Bank out of the fund which had been attached in its hands; and thereupon the Greensburg National Bank obtained a writ of error from this court.

Defendants in error urge several formal objections to the course of procedure in the trial court, which, in the view we take of the case, need not be here considered.

The draft deposited by Hornung in the Greensburg National Bank was listed on the following deposit slip:

Certain entries in Hornung's pass-book were introduced in evidence consisting of several items of cash during the month of August, 1909, then an entry on the 14th "Syer & Co. $1,062.00," followed by several entries of cash during the same month.

The plaintiff proved by a witness, the vice-president of the Seaboard Bank of Norfolk, that he had been engaged in the banking business for a number of years, and was acquainted with the customs and usages among bankers throughout the country as to the manner of handling drafts for their customers; that it was the general usage and custom to permit a customer to deposit a draft with the bank for collection, and pass the amount thereof to the credit of the customer and to permit the customer to check upon the amount so credited; the recognized understanding being that when the draft is received by the bank for collection it may be charged back to the customer's account at any time if not paid; that this is recognized merely as a favor from the bank to the customer, at the option of the bank, dependent largely upon the confidence the bank has in the customer, and the extent of his dealings with the bank. On cross-examination this witness testified, further, that it was the custom of banks to purchase drafts as well as to take them for collection; that from an inspection of the draft in this case, the deposit slip and bank book, it was evident that the draft was discounted by the bank, and that J. M. Hornung received cash for the same; that the draft shows on its face that it was deposited in the Greensburg National Bank as cash and not for collection; that the

endorsements on the back of the draft show it was handled by the banks whose stamps appear thereon for collection; and that the bank book shows that the bank had not been reimbursed by J. M. Hornung, or by the collection of the draft.

It further appears in the evidence on behalf of the Greensburg National Bank, that it received from Hornung a draft with bill of lading, on Syer & Co. for $1,062 for credit to Hornung; that the draft was presented with the pass-book of John M. Hornung, and the sum of $1,062 was credited on Hornung's pass-book, and the account of Hornung on the general ledger was credited with a like amount; that in saying that Hornung was credited with that amount the witness meant that for that amount the Greensburg National Bank became the debtor of Hornung, and that he became the creditor; that the draft was forwarded by the Greensburg National Bank with instructions to collect and place the proceeds to its credit; and that the amount of the draft was charged on its general ledger to an account as "Due from other banks"; that it was the custom of banks when drafts were received from strangers or when presented by customers for collection only, to forward the drafts to the proper point for collection, and the proceeds when received were credited to the proper party, and in that case the draft would not become the property of the bank, but it would be acting as agent for the payee of the draft; that in such case in its endorsement on the draft there would appear the words, "For Collection"; that the credit which was given Hornung for the draft in dispute had never been cancelled or charged off on his account; that at the time the draft in question was received by the Greensburg Bank, Hornung's account was overdrawn $98.68; that after the deposit of that draft there was a balance to his credit of $970.32; that Hornung had no authority or right from the Greensburg National Bank to instruct the Citizens' National Bank at Norfolk, or C. Syer & Co., or anyone, to reduce the amount of the draft in question in the payment thereof; that when the draft was received by the Greensburg National Bank it was the intention of the bank to purchase the draft for the sum stated therein and credit the account of John M. Hornung the same as if it had been that amount of actual money. The testimony of another witness introduced by the bank is substantially to the same effect.