GORDON, J. The appellant was, for four years prior to January, 1895, the qualified and acting treasurer of Pierce county, and the respondent Hedges succeeded him as such treasurer. The respondents Holmes, Rogers, and Bartholomew constitute the board of commissioners, and the respondent Gloyd is county auditor of said county. From the record it appears that, during his terms of office as such treasurer, the appellant deposited sums of money coming into his hands as such treasurer in various banks, some of which banks thereafter failed, and this proceeding was instituted by the appellant to compel the respondents to accept, in settlement of appellant's account as treasurer, certain receivers' certificates of insolvent banks. The petition asserts that the deposits were made with the knowledge of the respondents, and in accordance with his business custom; that neither the county of Pierce nor the board of county commissioners of said county provided him with any safe place for keeping the funds; that the safest and surest manner of keeping them was to make a deposit of them in reliable banks of good standing in the community; that the several banks selected by him as places of deposit were of high standing and repute, etc. The lower court sustained respondents' motion to quash the affidavit upon which the application for a writ of mandate was based, and, the relator electing to stand thereon, judgment of dismissal was rendered, from which he appeals. For a better understanding of the nature of the controversy, we quote the following from the opening statement contained in appellant's brief, viz.: "The question at issue in this action is narrowed, by agreement of parties, to the consideration of the one question, to wit: 'Is the county treasurer of Pierce county, Wash., liable personally or upon his bond for money deposited in a bank which afterwards becomes insolvent, in a case where there is no charge of negligence or want of care in any degree against the treasurer, and where it is further admitted that the county has not provided a suitable and safe place in which to deposit the amount of money which may come into the treasurer's hands?'"

Appellant's contentions are: (1) That the treasurer is not the debtor or insurer of the money that comes into his hands, but only the bailee for hire, or trustee of an express trust, who was only responsible for the exercise of good faith and reasonable skill and diligence in the discharge of his trust; and (2) that there is no statutory or constitutional inhibition against depositing such funds in the banks for safe-keeping; that, under the circumstances, it was his duty to so deposit said funds; and that he would be liable for negligence only in selecting such depositories. Section 5, art. 11, of the constitution of the state requires that "the legislature shall provide for the strict accountability of the said officers [referring to the county officers] for

the fees which may be collected, and for all public moneys which may be paid to them or officially come into their possession." The statute makes it the duty of the county treasurer to receive all moneys due and accruing to the county, and disburse the same in the manner provided by law, and requires him, before entering upon the duties of his office, to give a bond to the county, conditioned, among other things, that "all moneys received by him for the use of the county shall be paid as the commissioners shall from time to time direct, except where special provision is made by law for the payment of such moneys, by order of any court, or otherwise, and for the faithful discharge of his duties." 1 Hill's Code, § 211. An examination of all the authorities has satisfied us that, while such officers are bailees, "they are special bailees, subject to special obligations," and that "it is evident that the ordinary law of bailment cannot be invoked to determine the degree of their responsibility." U. S. v. Thomas, 15 Wall. 337. "His liability is to be measured by his bond, and that binds him to pay the money." Boyden v. U. S., 13 Wall. 17.

On this branch of the case, this court, in Marx v. Parker, 9 Wash. 473, 37 Pac. 675, after reviewing the authorities bearing upon the proposition, said: "It seems to us that every one of the earlier cases cited, where the expression was used that such and such an officer was not a bailee, or a mere bailee, or was a debtor, must be regarded from the standpoint of the court and the particular case. They were, one and all, cases where suit had been brought upon the bond of the officer, and he was attempting to excuse his default because he had lost the money by robbery, or from some other cause over which he claimed to have no control. But in every such case it was held that his liability was absolute, and the true reason, under U. S. v. Thomas, supra, must be, not that he was any the less a bailee, but that the statute imposed upon him a measure of duty larger than that found in the common law." We take it that it is fundamental in the law of bailments that the amount of care which the bailee is required to take of the goods or property intrusted to him may be expressly fixed by the contract, and that it is only in the absence of an express agreement that the law presumes it to have been the intention of the parties that a bailee for hire (other than common carriers and the like) is required to exercise only ordinary care, prudence, and caution in the custody and control of the property with which he is intrusted. In the well-considered case of Board v. Jewell, 44 Minn. 427, 46 N. W. 914, the court say: "There is some conflict in the decisions as to the responsibility of public officers and their sureties for the loss of public moneys without negligence or fault on the part of the officers. While in some cases the rule of responsibility of bailees for hire has been applied, exonerating officers who have been found guiltless of negligence,

this measure of responsibility is not generally accepted. The great weight of authority in this country wil sustain the general propositions, with respect to the liability of such officers and their sureties for the loss of public moneys, that where the statute, in direct terms or from its general tenor, imposes the duty to pay over public moneys received and held as such, and no condition limiting that obligation is discoverable in the statute, the obligation thus imposed upon and assumed by the officer will be deemed to be absolute, and the plea that the money has been stolen or lost without his fault does not constitute a defense to an action for its recovery; that the rule of the responsibility of bailees for hire is not applicable in such cases; that, where the condition of a bond is that the officer will faithfully discharge the duties of the office, and where the statute, as before stated, imposes the duty of payment or accountability for the money, without condition, the obligors in the bond are subject to the same high degree of responsibility; and that the reasons upon which these propositions 'rest are to be found both in the unqualified terms of the contract and in considerations of public policy." In Wilson v. Wichita Co. (Tex. Sup.) 4 S. W. 68, the court say: "It is too well settled to require discussion that an officer who is custodian of public money does not occupy the relation of a mere bailee for hire, who is responsible only for such care of the money as a prudent man would take of his own. He is bound to account for and pay over the public money." In Rose v. Douglass Tp. (Kan. Sup.) 34 Pac. 1046, the court say: "By accepting the office of township treasurer, McNabb assumed the duty of receiving and safely keeping the money of the township, and paying it out according to law. He or his sureties are bound to make good any deficiency which might occur in the funds which came under his charge, whether they were lost in the bank or otherwise." In Griffin v. Board (Miss.) 15 South. 107, it is said: "The idea that the tax collector may make a general deposit of public money in bank, and thereby absolve himself from liability to pay over as he is by law required to do, is so utterly unreasonable as to need no combating. Like all others depositing funds in bank, the tax collector took the risks involved in so doing. The state looks to its officer, and the officer must look to his unreliable or unfaithful banker." In Nason v. Directors, etc. (Pa, Sup.) 17 Atl. 616, the court, speaking through Chief Justice Paxson, say: "The failure of the bank in which the defendant deposited the money is no defense. A receiver of public money, who has given bond for its safe-keeping, is not discharged from liability therefor by the failure of his banker." In Ward v. School Dist., 10 Neb. 293, 4 N. W. 1001, the court say: "It was Ward's duty, under the law, to keep the money securely.

The money was within his control, placed there by force of the statute; and if he saw

fit to intrust it to the care of another, he did so at his peril." In District Tp. v. Morton, 37 Iowa, 550, the defendant, as township treasurer, had given a bond conditioned (pursuant to the statute) that, "if the said M., as treasurer, shall faithfully and impartially discharge the duties of said office as required by law, then this obligation shall be null," etc. It was held that the defendant was absolutely liable for all moneys coming into his hands, and that he could not plead, as a defense, that the money was, without his fault or negligence, stolen from him, the court saying: "These rules are applicable to all contracts, and the public interests demand that, at this day, when public funds in such vast amounts are committed to the custody of such an immense number of officers, they should not be relaxed when applied to official bonds. A de

nial of their application in such cases would serve as an invitation to delinquencies which are already so frequent as to cause alarm." In Com. v. Comly, 3 Pa. St. 372, Mr. Chief Justice Gibson says: "The keepers of the public moneys, or their sponsors, are to be held strictly to the contract; for, if they were to be let off on shallow pretenses, delinquencies, which are fearfully frequent already, would be incessant." In addition to the foregoing, the following cases are to the same effect: Halbert v. State, 22 Ind. 125; State v. Moore, 74 Mo. 413; State v. Harper, 6 Ohio St. 607; Inhabitants of New Providence v. McEachron, 33 N. J. Law, 339; State v. Clarke, 73 N. C. 255; Com'rs v. Lineberger, 3 Mont. 231; Thompson v. Board, 30 Ill. 99; McKinney v. Robinson (Tex. Sup.) 19 S. W. 699; Tillinghast v. Merrill (Sup.) 28 N. Y. Supp. 1089; Baily v. Com. (Pa. Sup.) 10 Atl. 764.

We think that, by the great weight of authority upon the question, an officer, such as a county treasurer, under our law, is held to the rule of strict accountability. As is said in Thompson v. Board,' supra, "They know well, on assuming their positions, the hazards to which they are exposed, and they voluntarily assume the risks, and are paid for so doing." And if "it appears to be a harsh measure of justice to hold that the treasurer and his sureties are liable, on his official bond, for the money deposited under the circumstances disclosed in the affidavit of defense, and subsequently lost without his fault or negligence, it is impossible to reach any other conclusion without ignoring the authority of well-considered cases." Baily v. Com., supra. We have examined all the cases cited in the able brief of the appellant bearing upon this proposition, but are unable to perceive that they are in conflict with the doctrine above laid down. A single case need only be referred to,-In re Law's Estate (Pa. Sup.) 22 Atl. 831. It was there held that the guardian, who deposited the moneys of his ward in a bank believed by him to be solvent, was not liable for the funds so deposited upon the failure of the bank. We think that the dis

tinction is very clear between the liability and duty of one receiving moneys as a guardian, for the benefit of a private individual, and the liability imposed by statute and by express undertaking upon a public officer as in the case at bar. As to the former, "he is merely the trustee or agent of the private parties interested in the money, and no greater or higher responsibility should be imposed upon him than would be imposed upon any agent or trustee.' People v. Faulkner, 107 N. Y. 488, 14 N. E. 415. The loss in this case was not occasioned by the act of God or a public enemy, and we are not called upon to decide whether, under the circumstances attending such a loss, the officer would be exempt from liability. This conclusion necessarily leads to an affirmance of the judgment entered below, and renders it unnecessary to decide whether a county treasurer may lawfully deposit the funds of his county in a bank or banks. Affirmed.

ANDERS, SCOTT, and DUNBAR, JJ., con

ur.

HOYT, C. J. I am unable to agree with the conclusions of the majority, stated in the foregoing opinion. I think that money coming into the bands of a county treasurer, as such, belongs to the county, and not to the treasurer; that the relation of debtor and creditor is not created. He holds it as trustee for the county, and is only responsible for the exercise of such care in its safe-keeping as is required of a trustee for hire. Under the statute and the obligation which he gives, he is bound to properly discharge the duties of the office, one of which is to exercise due care in safely keeping the funds of the county. But it is a strained construction of such statute and obligation which makes him the guarantor of such safe-keeping. If it is a part of his duty to produce the money regardless of contingencies, he should be allowed to do what he pleases with it until called upon to so produce it. It is unfair and illogical to say that he is personally responsible for the safe-keeping of the money, and at the same time must make only such disposition of it as may be prescribed by the one for whom he holds it. The cases which have held public officers to be guarantors of the safety of funds coming into their hands are mostly from federal courts, and have been largely induced by the peculiar language of the federal statutes. To hold that the officer cannot make such disposition of the funds as he thinks proper, and yet must be responsible for its safe-keeping, is so illogical and fraught with such hardship upon the officer that I am not willing to follow the cases which have so held. If the relation of debtor and creditor was created by the receipt of the money by the officer, so that he could dispose of it as he pleased, there would be reason in holding him responsible for its safe-keeping; but this would be against public policy. In my opinion all that

our statute requires of a county treasurer is either that he should produce the money coming into his hands when required by law, or that he should show that he had exercised the care required of a trustee for hire and that it had been lost without fault on his part. Such has been the holding of the courts under statutes of the same substance as ours, where the bond required was to the same effect. See Inhabitants of Cumberland Co. v. Pennell, 69 Me. 357; Supervisors v. Dorr, 25 Wend. 440; York Co. v. Watson, 40 Am. Rep. 675; Wilson v. People (Colo. Sup.) 34 Pac. 944; State v. McFetridge (Wis.) 54 N. W. 1; State v. Houston, 56 Am. Rep. 59. These cases are directly in point, and many others could be cited; also, a large number which, though not deciding the exact question here involved, in principle sustain the contentions of appellant. See U. S. v. Thomas, 15 Wall. 337; People v. Faulkner (N. Y. App.) 14 N. E. 415; McClure v. Board (Colo. Sup.) 34 Pac. 763; Bridges v. Perry, 14 Vt. 262; Association v. James, 63 Cal. 598. See, also, Story, Bailm. 620, and Perry, Trusts, § 441.

Did the appellant exercise such care when he deposited the funds in question, in due course of business, in a bank which, after diligent inquiry, he had reason to believe, and did believe, to be solvent? If what we have said as to the degree of care required of him is the proper measure of his liability, he was discharging his duty as to the fund when he was making such disposition of it as a prudent man would of his own; and, since it is a fact, of which we must take judicial notice, that the most prudent men keep their funds on deposit in such banks, it must follow that, when appellant did this with the funds of the county, he was exercising due care in reference thereto, unless he was prohibited by the statute from thus disposing of them. It may be fairly deduced from the statute that the county treasurer is prohibited from loaning the funds of the county; and if the depositing of the same in a bank is a loaning, within the meaning of these statutes, the appellant had no right so to deposit the funds in question. That the depositing of money in bank is, for certain purposes, a loaning of it to the bank, so that the relation of debtor and creditor exists in regard thereto, is beyond question; but, in my opinion, to so deposit money is not to loan it, within the meaning of the statute as to the disposition of public funds. The loaning of money in the ordinary sense is a transaction by which, at the instance of the borrower, one parts with his funds for a consideration. A deposit in bank is of a different nature. Money is placed there primarily for other purposes than to secure interest thereon. The primary object is to secure its safe-keeping and availability whenever required, and for that reason it is not a loaning, within the ordinary acceptation of the term, and hence not within the provisions of the statutes. And so the courts have held. See State v. McFetridge,

supra, and the other cases cited. In my opinion, the appellant was justified in depositing the money of the county in a bank; and, if, in the selection of such bank, he used such care as a prudent person would in dealing with his own funds, and only so deposited it in banks which he had reason to believe, and did believe, to be solvent and safe, he should not be held responsible for loss occurring on account of such deposit. In my opinion, the judgment should be reversed.

1. Where the record fails to show that notice of appeal was given, the appeal will be dismissed.

2. Where appellant's notice of filing the statement of facts fails to name the place at which he will ask its settlement, as required by Code Proc. § 1422, a motion to strike the statement on appeal will be sustained.

Appeal from superior court, Snohomish county; John C. Denney, Judge.

Action by the Merchants' National Bank of Seattle against J. B. Ault & Co. on a note. From a judgment for defendants, plaintiff appeals. Dismissed.

Appellant's notice of filing of the statement of facts failed to state the place at which the settlement thereof would be asked, which Code Proc. § 1422, makes an essential requirement of the notice.

Bronson & Clark, for appellant. F. M. Headlee and Ault & Munns, for respondents.

PER CURIAM. Upon the argument it was suggested by counsel for respondents that no notice of appeal from the judgment rendered below had been given, and none appears in the transcript on file in this court. It follows that we are without jurisdiction to entertain the cause upon the merits. We may add, however, that, were we to retain the case, respondents' motion to strike the statement of facts would have to be granted, for the reasons given in Asphalt Co. v. Gribble, 8 Wash. 255, 35 Pac. 1098. The appeal

must be dismissed.

(14 Wash. 152)

WORTMAN v. VORHIES et al. (Supreme Court of Washington. Feb. 29, 1896.) EQUITY-PENALTIES-COMMUNITY ESTATE-MORTGAGE BY SURVIVOR-HARMLESS ERROR.

1. Provisions in a note bearing 9 per cent. interest, that the interest coupons shall bear 2 per cent. per month interest after maturity, and the note 12 per cent. interest after maturity, are valid and enforceable, since 1 Hill's Code, § 2796, which was in force at the execution of the note, provided that any rate of interest contracted for in writing should be valid.

2. Under 1 Hill's Code, § 1481, providing v.44P.no.1-9

that, on the death of the husband or wife, one half of the community realty shall descend to the survivor, and the other half to their children, a mortgage by the survivor purporting to embrace the whole estate is valid as to his undivided one half interest.

3. A mortgagor cannot complain that the interest of a junior mortgagee was not adjudicated in the decree foreclosing the senior mortgage.

Appeal from superior court, Chehalis coun

ty; Mason Irwin, Judge.

Action by Denis Wortman against Nathan Vorhies and others. From a decree for complainant, defendant Vorhies and certain others appeal. Affirmed.

T. D. Scofield, for appellants. Wickersham, Reid & Meade and Ben Sheeks, for respondent.

GORDON, J. This was an action to foreclose a mortgage given by Nathan Vorhies upon real estate acquired by the community composed of himself and Eless Vorhies, his wife. The mortgage was given in May, 1887. Eless Vorhies died intestate in September, 1882, leaving, as surviving heirs, her husband, the said Nathan Vorhies, and John D., Mary E., Phebe E., Aaron H., and David L. Vorhies, children. This appeal is from a decree of foreclosure. The first contention of appellants is that the court erred in allowing interest upon the principal sum secured by said mortgage at the rate of 1 per cent. per month after the date of maturity, and also allowing interest at the rate of 2 per cent. per month from the date of maturity, of an interest coupon note for the sum of $180, instead of simply allowing interest on the whole sum at the rate of 9 per cent. per annum. The principal note of $2,000 contained a provision for interest at the rate of 9 per cent. per annum, and the interest thus reserved was represented by coupon notes attached thereto, each of which coupon notes contained this provision: "This note bears interest at two (2) per cent. per month after maturity." Said principal note contained this stipulation: "This note shall bear interest at the rate of one per cent. per month after maturity." We think the court did not err in allowing interest in accordance with the express At the time of provisions of these notes.

the making of the contract, and for many years prior thereto, as well as at the time of rendering the decree, section 2796, 1 Hill's Code, was in force, viz.: "Any rate of interest agreed upon by parties to a contract, specifying the same in writing, shall be valid and legal." And the authorities cited by counsel for appellants are, in view of this statutory provision, wholly inapplicable.

2. The next question is as to the power of the surviving husband to execute a mortgage upon real estate which was acquired by the community. The court expressly found "that, at the time of the death of the said Eless Vorhies, there were no debts against said community property, nor were there any