rears after attaining her majority, and without any agreement that sbe was to receive compensation, is fraudulent. Harl v. Flinn, 86 Iowa, 866. As to the decision in the principal case upon the first two points stated in the head-note, there can be no question as to its entire correctness, and the case affords an interesting and iustl'uctiv.a application of well-settled principles. '
M. D. EWELL.
Ohicago, March 2, 1888.
WYLIB t1. NORTHAMPTON NAT. BAKK.-
(Oircuil f.Jourl, 8.D. NIW York." 1888.)
L NATIONAL BANX-STOLE!J FOR RECOVERY Oll'. A national b,ankcannot enter into a valid contract to underLake the,bualn_ of the recovery 'of the stolen property of special depositors. ' 2. S.HIE-LIABILITY OF ])mECTORS. The directors might be liable individually.
SAME-BONDS LEFT AS' GRATIS
To recOillt against a bank for bonds ;lelt with the bank' as a gratia bailment, IlOmeth'ing'iilore is needed than therriere fact that 'they were stolen from the bank. I ' ,
ESSEN'rrAL1'O SUPPORT ACTION.
A complaint claiming that the bank recovered .1.500,000 back from the thieves, on an agreement" that· in consideration of such recovery the bank ai10'Wed to retain the property of plaintiff and other special depositors, 'states 8> valid cause of action j but here there is no proof sufficient to go to the jUrY as to this branch of this cause ,of action. I. SAME-PROOF QlI' NEGLIGENCE ,ALUG;rm. In such a,naction the plaintiff will' be held to proof of the alIegatioJ;lll made, and will' not be allowed .to rest on of ,other negligence.
The Northampton National Ba:ilkwfts robbed of the property of it· .elf and of v.arious depqsitor&, including the plaintiff, to the amount of a,bop.t $1,600,000. Five years later, all but $130,000 of the property was recovered from the thieves. Among the ·property not l'eco\'eredwere bonds to the value of $10',180 belonging to the plaintiff. The other facts 'in the statements of counsel and theopinicll1 of the court. ., '. 'w. G. Peckh(J<m and E. W; for the defendant, moved the at theciose of tQe plaintiff's evidence, to direot a verdiot for the defendant. . As to the <first cause of aotion-negligence in tbe keeping of a gNti8 mere fact that the' goods were stolen does not es· tablish negligence the American decisions, (Comp. v. Oarlisl,
· Affirmed. Seo 7 Sup. Ct. Rep. 268.
WYLIE V.' NORTHAMPTON NAT. BANK.
FOlter v. Essex Bank, 17 Mass. 479,) and proof of gross negligence was required, even in Nat. Bank v. Graham, 100 U. S. 699. Furthermore, plaintiff ma.y not plead a tort that
Bank, 94 Pa. 409;
amounts to a crime, and attempt to recover on proof ofatrifling negligence, not set out in the complaint, viz, the not sending of notices of the robbery to Frankfort-on-the.Main, or the attempted proof that a director wrongfully recovered his own special deposit. Dudley v. Scranton, 57 'N. Y.424; Parker v. Renns. S. R. 00. 16 Barb. 316; Ross v. Mather, 51N. Y. 108; Delevan v. Simonson, 35 Super. Ct. 243. ,The directors and officers, all of them, acting as indio viduals, cannot bind the bank to such an undertaking as that in the complaint. They must, fLt least, have acted as a board in an official corporate capacity. Alleghlr,ny 00. Work-house v. Morse, 95 Po.. 408; East A.nglian R. Co. v. Eastern Co. 21 Law J. S.) /23; Chem.'Nat. Bank v. Kolmer, 8 Daly, 532. Even.iuthe 100 U. S. case the court says: "We do not mean, however, to say it [the bank] could convert itself into a pawnbroker's shop.", Such an undertaking as this, a national-bank bas no charter or power to undertake. Judge WHEET,ER; in Wylie v. Nat. Bank of Brattleboro, 47 Vt.550, and Whitney v. Same, 50 Vt.389. George H. Adams and Artemas H. Holl/Les, for the plaintiff, oppose the motion, on the ground that in'New York practice the proof of the negligenM as to notice sent abroad, and as to acts of the direotor H. are admissible and sufficient, and that pi'oof of dolus is not essential in an action for negligence; citing Whart. Neg.; Nat. Bank'V. Grabam, 100 U. S. 699; and Abbott, (N. Y.) Forms of Pleading. The'director H. and the vice-president promised, to underta.ke the recovery of the plaintiff's property. Their action was approved by the other officers. The bank madesimilill agreements with the other special depositors, and in fact with all the depositors, at a meeting. WHEELER, J" (orally.) The constitution gives the righttq trial by jury, not trial by the Murt in the presence 'of the jury, but trial by jury in fact. At the same time it is the duty of the court to decide whether there is any evidence to go to the jury tending to pro"e the faot. If there is not, why; then, the court is not in duty bound arid has no right to submit to the jUly what the facts may be, in ordedo make out a case. It requires proof, and proof of facts, and proof of facts ten,dingto establish the ground of recovery. The complaint goes for this: negligence about keeping the bonds ·in'the first place. Then it goes on and alleges an'llgreement by the bank to act for the plaintiff in recovering her bonds from the thieves
orperSOIlS who hadthem,l1nd for a breach of thatagreement,-that is, neglect mnot recDvering the bonds for her,-and specifies as a ground of recovery in the complaint that in recovering their own property :they traded away he,rs; ,that they agreed with the robbers thutif they would let the bank have what they did return, they might keep' plaintiff's bonds. Of course, if the plaintiff could make that out, shewbuld have a good case; but the evidenoe not only does not show that' the :batik made that agreement with the robbers, but it shows they did not. The direct evidence upon the point of what the arrangement was, by which the bonds were finally recovered, shows that the to that. The witness on that point so testifies. bank did not The evidence shows that that was not a part of the agreement, so that part of thecaso is not made out. Now, then, as to the agreement ·to act for her. In the first place, 1 do not think that the stockholders of lL national bank could be bound:b:r an agreement by their president or cashier or directors, or all of them together, to. undertake the job of hunting up any stolen baink. It is no-part of the purpose for which a bank is bonds, ohartered; it is no part of thebusinass .of the bank. I do not think the bank would be bound by any suoh agteement. .But suppose they Now,this complaint says that they agr.eed ,to aot for her in negotiating for the reoovery of thes.e bonds. That would mean that they were bound to do the best they could in making those negotiations. The matter of advertising the bonds had all gone by when the agreement was made. Now, I think there is evidence sufficient to go to the jnry that the plaintiff was fairly given to understand, by the officers of the bank, that they would aot for her. They had lost, their own securities, and lost the securities of: a great many other depositol'S, and they were trying to get them all back. I think they gave her to understand that in trying to get theirs they would try to, gether't, or would do the best they could. Now, if th'ey were bound by that agreement, and, did do as well ,as they could reasonably, they would not be liable. So we shall, have to look at this evidence and see if it shows tmy act-anything-whioh we could see they did that .they 'ought not to have done, or did not do which they ought to have done.. Now, I am not'able to see, after looking it all over, anything ;that tl16y could do that they did not do. Now, here was Mr. Hinckley, a depositor who had $25,000,.I believe, of bonds of a particular which he owned, which he got track of, which he negotiated fOr, and part ,ofwhi"Ch he got back. Now, they say the- bank ought not to have let him get back his without gettin.g back hers, They
NORTHAMPTON' NA'l'. BANK.
could nothihdet'hiinainy niore' iban they could lier.' 'The most they could do would be to act on any' information ,that ,they got ,through him that the bonds were here-here in New York. They were'all the while seeking information about thu.t. There is nothing to'show that they had anything dennitethat they 'could act upon, or that they didn't do as well as they could. When they came to a. ftnai negotiation by which they got $1,500,000, her bonds were not here; they were not with those they got. They did not agree that theirs should be given up and hers should be lost. Her bonds were on the other side of the water. They were not here at all. They were not dealing with those who them. , '' Now, I could not say to the that here is anything that I submit to you as proof of neglect on the part of this bank as a bank. If I were to say that we would hear the defense, and go along with a large number of witnesses, no matt,er' what they should testify to, it would cQme to this in eJ?d. The plaintiff, for a. gpod case. If she could prove her complaint she would have anexcellEmt case. If she could prove that this bank, having got track of these bonds, made an' agreement ",ith the robbers and thieves that: they n'iight keep hers if they giye, up' theirs, that would. be a, good case anywhere. That is not proved; it is disproved. They didn't do any such thing. They didn't trade lier;'out; they didn't 'throw her stock overboard to get theirs; and notwithstanding the plaiintiff's Jnlsfortune,-which all of ,us,: con'rse, regret, ...;.1 don't think, as,'to that part of the case, that there ,is enough of W that tends to prove' ltnything done or ,not done which ought £0 go to the jury; and r thittk, at the bottom of all of it, that, the bank as a bank, to bind the stOckholders so as to take a largesulliolit of their assets, could not undertake such a job; it· is:no part of its business; 'I Should hold that such a bargain as that· made with tho directors was an. :indiVid· nalthing, and bound them personally, if at alt, and: not the bank. I should say that, so far as· thi-s case rests on a.n 'ttgteement to thing and failure to do it, the bank was not oompetent in laiwtO make such an agreement; and, so far as doing anything about the bonds, I here is no proof that they ever' could have got her bonda, ever had, 11 chance to them, or acted about them in a way that they 'Could be charged with fieglect. ' Now,about: 'the first part of the cRse,for the negligent keeping:""'" Mtual keeping"-Of the bonds ,in the bank. :The ,proof: that:stand14' here is that the Northampton National Bauk received:theile bOnds: to keep; Bhesigiling; as sue said she supposed shadid, a:certain p'aper
envelope in which the bonds were placed. We have no proof here except that the bonds were left there by her; that she called for them and didn't get them. They were gone; they were stolen. The pleadings say that, and I believe the witness says that the directors said that. I am inclined to rule on that, also, in favor of the bank. So you may take a verdict for the defendant. The jury accordingly rendered a verdict for the defendant.
HILL 'V. NATIONAL BANK OF BARBE. .
( Oi'l'cwit Oourt. D. Vermont.· February Term, 1883.)
Section 5198, Re",. St., makes the receiving or charging II a rate of interest greater than is allowed" "a. forfeiture of the entire interest." In case a greater rate of interest has been paid, the debtor may recover back" twice the amount of interest thus paid."
OF PENALTY-NOO' LIMITED TO THE EXCESS.
'fhe amount of penalty recoverable in an action against banks under section 519B, Rev. St., is twice the whole amount of the interest paid, and Dot merely twice the amount paid in exCeSS of the legal rate.
W. Porter, for plaintiff. E. W. Bisbee, for defendant. WHEELER, J. This action is brought upon the second clause of section 5198 of the Revised Statutes of the United States, to recover back twice the amount of illegal interest paid. The lawful rate here is 6 per cent. and the plaintiff paid 8. The only question made is whether the plaintiff is entitled to recover the whole amount of this interest so paid, or only twice the amount in excess of the legal rate paid. The whole section must be read together to ascertain the meaning of this clause. The first clause provides that the taking, receiving, reserving, or charging a rate of interest greater than is allowed by law, shall be deemed a forfeiture of the entire interest. Here there is no distinction of the excess of the legal rate over the rest. Then the clause in question proceeds to provide that in case the greater rate of interest has been paid, the person by whom it has been paid may recover back twice the amount of the interest thus paid. The continuing the exaction till it had accomplished the payment of the amount exacted is a greater offense than the mere stipulating for the payment, and would be treated with the greater severity. The first clause seems b be intended for the punishment of