Wiley v. The First National Bank of Brattleboro. tract arising out of, such taking. And this conclusion cannot work any injustice or hardship to the plaintiff, for he dealt with the cashier because he chose to, not because he was obliged to; and if the cashier in the dealings assumed to have any power he did not have, the plaintiff trusted him in that respect, and has his responsibility to rely upon to vindicate the assumption. And if the cashier incurred any liability as for himself, the plaintiff likewise trusted him about that, and has the same responsibility of the cashier to look to for it. Judgment reversed and cause remanded. NOTE.-The doctrine of this case was approved by ALLEN, J.. who delivered the opinion of the Court of Appeals First Nat. Bank v. Ocean Nat. Bank, ante, 128, and by the Court of Appeals of Maryland in the two cases below cited, but in neither case was the question of the power of National banks to receive deposits for safe-keeping before the court. The Supreme Court of Pennsylvania does not, however, accept the opinion in the principal case. In Chattahoochee Nat. Bank v. Schley, ante, 379, the Supreme Court of Georgia remarked that a National bank which habitually receives special deposits for safe-keeping, as matter of accommodation, is bound by the act of the cashier in receiving such deposits and liable for a loss thereof occasioned by its gross negligence. The question was not, however, before the court. In First Nat. Bank v. Ocean Nat. Bank, ante, 728, the Court of Appeals of New York held that in the absence of special authority from the directors, or of usage so to do, the cashier of a National bank has no power to receive special deposits for safe-keeping; and the judge writing the opinion expressed his concurrence with the views of the foregoing case of Wiley v. First Nat. Bank, but only two judges "concurred" in the opinion, the others concurring in the result." The action was against the bank to recover bonds deposited with it for safe- keeping, and which were stolen by burglars. Judgment was rendered for the plaintiff, which was affirmed by the General Term of the Common Pleas. This judgment the Court of Appeals reversed, but as the majority concurred only in the result," it is impossible to say whether the reversal was because it was not shown that the defendants were grossly negligent, or because the cashier had no authority to take the deposit and bind the bank. Both the case of Wiley v. First National Bank, and First National Bank v. Ocean National Bank, were approved in Third National Bank v. Boyd, ante, 545, but the point was not in issue there. In that case the bank had taken bonds as collateral security for a debt and they were stolen while yet in the possession of the bank although after the debt was paid. The court held that the bank was not a gratuitous bailee and that it was liable if it had failed to exercise ordinary care. See, also, Weckler v. First National Bank, ante, p. 553; and Second National Bank v. Ocean National Bank, 11 Blatchf. 362. In Lancaster National Bank v. Smith, 62 Penn. St. 48; and Scott v. National Bank of Chester Valley, 72 Penn. St. 471 (ante, p. 864) the Supreme Court of Pennsylvania passed upon the liability of National banks for deposits for safe-keeping, but in neither case was the question raised as to the power of such banks to take such deposits. These cases turned on the question of negligence. In First National Bank v. Graham, 79 Peun. St. 106 (ante, p. 875) the same court held that while the mere voluntary act of the cashier of a National bank in receiving special deposits for safe-keeping would not subject the bank to liability, yet if the deposit was known to the directors and its retention acquiesced in by them, or if there was a custom for the bank to receive such deposits, the bank would be bound. This decision is in accordance with Foster v. Essex Bank, 17 Mass. 479, which is the leading case on the subject. In De Haven v. Kensington National Bank, 81 Penn. St.95 (ante,p. 882), it was held that whether or not National banks have the power to take special deposits for safe-keeping they are not liable for a loss of them unless they have been guilty of gross negligence. See, First National Bank of Montpelier v. Hubbard and others. also, Leach v. Hall, ante, p. 466; First National Bank v. Pierson, ante, p. 637. In Smith v. First National Bank, 99 Mass. 605, the action was to recover the value of a special deposit for safekeeping, but the question of the power of National banks to take such deposits was not raised. The court held the defendants liable only for want of ordinary care. This rule of liability is sustained by the decisions. Ray v. Bank of Kentucky, 10 Bush, 344; Dearborn v. Union National Bank, 58 Me. 273; S. C., 61 id. 369, and cases cited in Scott v. National Bank, ante; First National Bank v. Graham, ante. A bank is bound to take only ordinary care of bonds pledged with it, as collateral security. Jenkins v. National Village Bank, 58 Me. 275; Dearborn v. Union National Bank, 61 id. 369.— REP FIRST NATIONAL BANK OF MONTPELIER V. HUBBARD AND OTHERS. (49 Vermont, 1.) Jurisdiction of State courts of suits brought by National banks. State courts have jurisdiction of suits brought by National banks, it not having been taken away by section 57 of the National Banking Act.* A SSUMPSIT upon a promissory note. At the September Term, 1875, the defendant Hubbard moved to dismiss the action, for that National banks could not maintain actions in the State courts. and that the United States courts alone had jurisdiction of such actions. The other defendants were defaulted. Motion overruled and judgment for plaintiff. Exceptions by Hubbard. J. A. Wing, for defendant, cited Stats. U. S. 1863-4, No. 85, § 57; The Bank of Bethel v. The Pahquioque Bank, 14 Wall. 383; Kennedy v. Gibson et al., 8 id. 498. Gleason & Field, for plaintiff. ROYCE, J. In the County Court the defendant Hubbard moved the court to dismiss the action on the ground that National banks cannot maintain actions in the State courts, and that the United States courts alone have jurisdiction of such actions. The court *See Claflin v. Houseman, 93 U. S. 130, wherein the analogous question of the jurisdiction of State courts of actions by an assignee in bankruptcy is discussed at great length and with great learning. The court held that where the Federal courts are not expressly given exclusive jurisdiction, the State courts may be resorted to to enforce rights arising under Federal Statutes. See, also, Ordway v. Central National Bank, ante, p.559, and cases there referred to.-REP. First National Bank of Montpelier v. Hubbard and others. overruled the motion, and the only question presented is as to the correctness of that ruling. The plaintiff is a banking association, established under the act of Congress of 1864, entitled "An act to provide a National currency secured by a pledge of United States bonds, and to provide for the circulation and redemption thereof." The 8th section of that act declares that every banking association formed and organized pursuant to its provisions shall be a body corporate, with the usual powers of a corporation; may have a corporate name and seal; may make contracts, and sue and be sued, complain and defend, in any court of law and equity, as fully as natural persons. In the absence of any restrictive legislation upon the subject, a corporation established under that act would have the right to maintain a suit in its corporate name in any State court of appropriate jurisdiction; for it is well settled, that civil cases arising under the Constitution and laws of the United States may be tried and determined in the State courts, unless the National Constitution and laws have vested exclusive jurisdiction of them in the Federal courts, but that Congress may prohibit the State courts from entertaining jurisdiction of such cases. 1 Kent's Com. 396; Bank of the United States v. Devereaux, 5 Cranch, 85; Osborn v. United States Bank, 9 Wheat. 738; Teale v. Felton, 1 Comst. 537; Ward v. Jenkins, 10 Metc. 591; Cooke v. The State National Bank of Boston 52 N. Y. 96 (ante, p. 698). It is claimed that exclusive jurisdiction of all suits instituted by any such corporation is given to the district and circuit courts by section 59 of the act of Feb. 25, 1863, and the 57th section of the act of 1864. Section 59 of the act of 1863 provided that all suits, actions, and proceedings by or against any association under the act, may be had in any circuit, district, or territorial court of the United States held within the district in which such association may be established. The 57th section of the act of 1864 provides that suits, actions, and proceedings against any such association may be had in the same courts, or in any State, county, or municipal court in the county or city in which said association is located, having jurisdiction in similar cases. In Kennedy v. Gibson et als., 8 Wall. 498 (ante, p. 17) which went by appeal from the Circuit Court to the Supreme Court of the United States, and was heard on demurrer to the petition, one question that arose was, whether, in view of the omission in the 57th section of the First National Bank of Montpelier v. Hubbard and others. act of 1864 (literally read) of the word by, the bill could be sustained in the court where brought. In the opinion delivered by Justice SWAYNE, he says, "The 59th section of the act of Feb. 25, 1863, provides that all suits by or against such association may be brought in the proper courts of the United States. The 57th section of the act of 1864 relates to the same subject, and revives and enlarges the provisions of the 59th section of the preceding act. In the latter, the word by, in respect to such suits, is dropped. The omission was doubtless accidental. It is not to be supposed that Congress intended to exclude the association from suing in the courts where they can be sued. If this be not the proper construction, while there is provision for suits against the associations, there is none for suits by them in any court." This construction would give the plaintiff the right to sue in either of the courts designated in the 57th section of the act of 1864, not upon the ground that the right to sue in the State courts was given by the act of Congress, because it was held in Houston v. Moore, 5 Wheat. 1, that Congress cannot confer jurisdiction upon any courts but such as exist under the Constitution and laws of the United States, but upon the ground that State courts may exercise jurisdiction in cases authorized by the laws of the State, and not prohibited by the exclusive jurisdiction of the Federal courts. I think the proper construction to be put upon section 57 of the act of 1864, in regard to the power conferred of bringing actions in specified courts, is permissive and not mandatory. There are no words of exclusion in the act; and it is a general rule as to jurisdiction, that to confer it upon one court does not operate to oust other courts otherwise possessing it, for the reason that concurrent jurisdiction is not inconsistent. Delafield v. State of Illinois, 2 Hill, 160. At all events, the jurisdiction of State courts should not be taken away upon doubtful or ambiguous language. Judgment affirmed. First National Bank v. Merchants' National Bank. FIRST NATIONAL BANK V. MERCHANTS' NATIONAL BANK. (7 West Virginia, 544.) Acceptance of checks by National bank. The act of Congress of 3d March, 1869 (R. S., § 5208) making it unlawful for National banks to certify checks unless the drawer has at the time an amount of funds on deposit equal to the amount specified in the check, does not invalidate an oral acceptance of a check or promise to pay a check, there being at the time sufficient funds of the drawer in possession to meet it. A check drawn on a National bank was presented for acceptance, whereupon the bank promised to pay it as soon as it received information that a certain draft left with it for collection was paid. The draft was paid and the bank informed. Held, that the acceptance was good and binding on the bank. W RIT of error and supersedeas granted on the petition of the First National Bank of Wheeling to reverse a judgment of the Circuit Court of Ohio county, and award a new trial, in a suit therein pending, wherein the Merchants' National Bank of Wheeling was plaintiff, and said First National Bank of Wheeling defendant. So many of the facts as are deemed material appear in the opinion of the court. The Hon. JOHN BLAIR HOGE, judge of the Third Judicial Cirćuit, presided at the trial below. C. W. B. Allison, for appellant. Daniel Lamb, for appellees. PAULL, J. This was an action of assumpsit brought by the plaintiff, on a check of which the following is a copy: "First National Bank of Wheeling : Pay to S. Brady, Esq., Cas., or bearer, fifteen hundred dollars. $1500. "A. C. QUARRIER, Treas." There are two special counts in the declaration; the first setting |