cases can be readily rectified, if the true test -the intention of the voters-be clearly borne in mind by the officers of election in counting the votes.

Neither will the misspelling of the candidate's name affect the ballot. In People v. Mayworm,31 there were cast for the office of sheriff: For John Burns, 369 votes; for Michael Finegan, 271; for Michael Finnegan, 175. The candidate's name was Michael Finnegan. "Finnegan" was considered idem sonans with "Finegan;" and the votes cast for the same name spelled in different ways, were counted by the court together. In this case it is worth noting, a majority of those who intended to vote for the candidate misspelled his name. In Wisconsin, ballots written "George B. Ela" were held properly counted for George B. Ely;2 and in Michigan it was said that votes cast for "Ed. Sekut" would be taken to be intended for Edward V. Cicott.33

As the addition of "junior" to a name is a mere matter of description, and forms no part of the name,34 it may be omitted on a ballot or, if added erroneously, should be treated as surplusage. 35

It is conceded, without question, that the abbreviation of the Christian name can not possibly affect the ballot, provided it be the proper or a commonly received abbreviation; as, for example, "Geo." for "George," "Hen." for "Henry,"36"Wm." and and "Willm." for "William, "37 "Jas." for "James,"38 "Geo." for "George," "Thos." for "Thomas;' 39 and even though the abbreviation might also represent a

31 5 Mich. 146.

or

32 Carpenter v. Ely, 4 Wis. 420. In Alabama a ballot for Pence," where the candidate's name was "Spence," was rejected by the judges of election, the voter stating that he did not intend to vote for the office in question at all, and had taken that method to make his vote of no account. State v. Judge, 13 Ala. 805.

33 People v. Cicott, 16 Mich. 283 (1868).

34 Fleet v. Young, 11 Wend. 524; Blake v. Tucker, 12 Vt. 45; Kincaid v. Howe, 10 Mass. 203; Leprot v. Brown, 1 Salk. 7; Cobb v. Lucas, 15 Pick. 9; Padgett v. Laurence, 10 Paige, 177.

35 People v. Cook, 14 Barb. 259; 8 N. Y. 67; Turner v. Bayliss, Cont. El. Cas. 235; People v. Cicott, 16 Mich. 283 (1868).

26 People v. Ferguson, 8 Cow. 102 (1829).
37 Queen v. Bradley, 3 El. & El. 634 (1861).

38 People v. Tisdale, 1 Doug. 59 (1843).
39 People v. Tisdale, supra.

different name, as “Ed.” for “Edward,” when it might also stand for "Edmund" or "Edwin" or "Edgar."40 Where a statute required the election of aldermen of boroughs to be by vote of the councilmen, who should each personally deliver to the chairman of the meeting at which such election was held, a voting paper containing the "Christian name and the surname" of the persons for whom he voted, it was ruled in the Court of Queen's Bench that the contraction of the Christian name, or even a misspelling of it, would not render it void; and voting papers inscribed, "Wm. Bradley" and "Willm. Bradley," were admitted as votes for William Bradley. All of the judges agreed that a well-known contraction of a name which can not be misunderstood is tantamount to the name in full.41

In Michigan, the Supreme Court as early as 1843, laid down a rule which it has subsequently adhered to with regret. In People v. Tisdale,42 it was held that unless a ballot showed upon its face for whom it was intended, it could not be counted, and that, therefore, extrinsic evidence was not admissible to show that ballots cast for "J. A. Dyer" were intended for "James A. Dyer." The question was again presented eleven years later, when the court ruled that no evidence could be allowed to prove that votes cast for "II. T. Higgins" were intended for "Henry T. Higgins."43 In People v. Cicott,44 the court followed People v. Tisdale, because the rule had become the established law of the State. "I am compelled to say," said Christianey, J., "that but for that decision I should have been disposed to hold that, upon principle, extrinsic evidence might be given tending to show for whom the vote was intended, as that the candidates were in the habit of thus writing their names; that they were as well known respectively by the name of E. V. Cicott and G. O. Williams, as by Edward V. and Guerdon O.; that they were opposing candidates at the election for the same office, and that no other person of the same surname and the same initials was known

40 People v. Cicott, 16 Mich. 283 (1868).

41 Queen v. Bradley, 3 El. & El. 634 (1861).

42 1 Doug. 59 (1843); see also Opinion of the Judges, 38 Me. 597 (1855).

43 People v. Higgins, 3 Mich. 233 (1854).

to be running for the office. This is in strict accordance with the rule which prevails in the construction of all other written instruments which are to be read in the light of the surrounding circumstances. But the rule in People v. Tisdale45 was recognized in People v. Higgins, 46 and has now been the settled law of this State for a quarter of a century." Cooley, C. J., in an elaborate and unanswerable opinion, was in favor of departing from the rule of People v. Tisdale: "I regret,' said he, "that my brethren are disposed to still follow the case of People v. Tisdale, notwithstanding the majority are of opinion that it is unsound in principle. The case has no support, as I think, either in the authorities or in the analogies of the law, and no court outside the State has ever followed it.

The chief argument in favor of the rule of People v. Tisdale is that ballots cast for parties by their initials only, are so uncertain that they can not be applied without extrinsic and doubtful evidence to ascertain the voter's intention, and, therefore, should be rejected. But nothing can be more fallacious. It frequently happens that a man is better known by the initials of his baptismal name than by the name fully expressed; simply because he is not in the habit of writing his name in full, or being thus addressed in business transactions. I think it highly probable that that is the case with each of the parties before us. In political conventions or legislative bodies no one deems it important to write the full name of a candidate for whom he is voting, and no one ever thinks of challenging the vote for uncertainty. Under the application of this rule to the present case the curious spectacle will be exhibited of votes cast for E. V. Cicott and G. O. Williams being rejected because the courts can not determine for whom they were intended, while not a single person in the County of Wayne has the slightest doubt that they were cast for Edward V. Cicott and Guerdon O. Williams, the opposing candidates at this election. Thus the courts are required to close their eyes to what every body else can see distinctly. The fallacy of the rule consists in its assuming that a certain form of ballot clearly expresses

44 16 Mich. 283. 45 Supra. 46 Supra.

the voter's intention, while another form is so uncertain that it is dangerous to attempt to arrive at the meaning by evidence. But in fact no ballot can identify with positive certainty the persons for whom it is cast; and notice must be taken of extrinsic circumstances in order to apply it. It is always possible that other persons may reside in the election district having the same names with some of the candidates, but neither the canvassers nor the courts ever assume that there is any difficulty in these cases, but they count the votes for the persons who have been put forward for the respective offices. And in some cases where an element of uncertainty is introduced into the ballot unnecessarily, as by the addition of an erroneous designation, the courts resolve the difficulty by rejecting the erroneous addition and counting the ballot for the person for whom it was evidently designed. If the rule were one which the canvassers could apply in every case, and which left nothing open for controversy in the courts afterwards, it would be less open to objection, but it is not of that character. No one doubts that if votes had been cast in this case for Edward Cicott or Edward B. Cicott, or Edward Cicott, junior, or Edward Cicott with any other mistaken addition, they must have been counted for the respondent on the facts appearing in this case.47 Such ballots would be allowed because the error of the voter is not so great, when the facts surrounding the election are considered, as to leave his intent in real doubt; yet no one can fail to see that in every one of these cases the room for doubt is greater than in the case of ballots for E. V. Cicott, and that whatever doubt exists is referred to courts and juries for solution in the one case as it would be in the other. The rule therefore rejects a certain class of ballots on reasons which apply with at least equal force to others which are admitted. And its indefensible character is stili more apparent when we consider that abbreviated ballots are received as well as those which are misspelled, so that a vote for Ed. Sekut would be counted though the Ed. is an abbreviation for several other names besides Edward, and no one would suppose that by this name the person intended was as distinctly

47 People v. Cook, 14 Barb. 259; 8 N. Y. 67; Milk v. Christie, 1 Hill 102; Bratton v. Seymour, 4 Watts, 329

pointed out as if the name had been written as it commonly is in business transactions.''48

CHARGING A TRUSTEE OR EXECUTOR WITH INTEREST.-II.

We referred last week to the rule which has been laid down that where it can be shown to be necessary to meet the exigencies of the testator's affairs that moneys belonging to his estate should be kept uninvested, executors will not be charged with interest on them. What will be considered as an exigency justifying the executor in keeping money uninvested is, to some extent, indicated in the judgment in Tebbs v. Carpenter, 1 Mad. 299. In that case it appeared that the executors had in their hands, at the end of the first year after the testator's death, a sum of £790, and they alleged that it was necessary to keep this balance in hand to meet the exigencies of the next year. Sir T. Plumer, M. R., said that this argument would have had weight "if, in fact, it was necessary to keep the balance in hand, and there were pressing demands which required it, but the current receipts were greatly more than sufficient to answer the current payments;" hence he charged the executors with interest. It is to be observed that in this case there was an express direction to the executors in the will to invest portions of the estate not required; but it would seem that, in order to avoid payment of interest, the executor must show that he had reasonable ground for believing that the money kept in hand would be needed to meet pressing demands which subsequent expected current receipts would not suffice to meet. He must consider, at the end of the first year after the testator's death, whether the balance he has in hand is greater than will be required to meet the payments he will have tɔ make within the next year, and he must not suppose that he will be justified in keeping a sum uninvested because he happens to find it so at the testator's death. It has been laid down that if an executor finds a large sum of money at the testator's bankers, and does not invest it for the benefit of the estate, he will be charged with interest. Williams v. Powell, 15 Beav. 467.

Before, however, the court will charge executors with interest on balances, it requires clear and distinct evidence that there was a balance in their hands. It will not act upon a mere probability or inference. Davenport v. Stafford, 14 Beav. 319, 333. In the last-mentioned case it appeared that a testatrix, who was herself an executrix, had in that capacity received a sum of £12,510 assets. Her executors having admitted assets to pay all her debts, the court was asked to infer that this sum had come to their hands; but the Master of the Rolls held that, in the absence of any further proof, the executors were not liable for interest. "It is probable," the court said, "as they admitted assets, that they had assets (of

-48 And see Crawford v. Molitor, 23 Mich. 341 (1871).

their testatrix) in their hands applicable to the payment of this sum; yet it is exceedingly probable that the whole of these assets might have been outstanding at the time, although when got in they might have been amply sufficient for the payment of everything which should be found due from the estate. There is nothing whatever to show that they might have been since recovered from year to year; and there is no evidence whatever that any cash actually came to their hands upon the death of the testatrix, though, to charge them, it is absolutely essential to have that fact established." 14 Beav. 333.

Moreover, it appears that in order to give a claim for interest against executors, there must be a clear case of improper retention of balances to a considerable or substantial amount. Jones v. Morrell, 2 Sim. N. S., 252. In this case the total balance retained, arising out of the personal estate, amounted to less than £96, and the total share of the rents of the leasehold estate to about £SS, and the court refused to charge the executors with interest. See also Davenport v. Stafford, 14 Beav. 330, where the principle upon which the court acts was stated by Romilly, M. R., as being that, if a trustee improperly retains in his hands a large balance, he will be charged with interest on the balance; and Longmore v. Broom, 7 Ves. 124, where executors were charged with interest on balances since 1793, "no considerable balance appearing to have been in their hands before that period." The question of what is to be deemed a balance of substantial amount improperly retained must, it is apprehended, be decided by a consideration of the total value of the estate. In Melland v. Gray, 2 Coll. 295, Knight Bruce, V.C., held that the sum of £356 8s. 4d. was not an unreasonable sum to be retained by an executor nearly two years after the testator's death, and declined to charge him with interest on that sum; see p. 301. But in this case the executor had received over £27,000 on account of the testator's personal estate.

It has often been laid down that a trustee or executor who keeps trust money in his hands uninvested shall be charged with the same rate of interest as he has actually made or may fairly be presumed to have made by it. Burdick v. Garrick, 18 W. R. 387, L. R. 5 Ch. 243; Lee v. Lee, 2 Vern. 547; Rocke v. Hart, 11 Ves. 60; AttorneyGeneral v. Alford, 4 De G. M. & G. 851. The rule which is acted upon, however, seems to be that the court will charge the executor or trustee with simple interest at four per cent. per annum. Rocke v. Hart, 11 Ves. 61; Forbes v. Ross, 2 Cox, 116; Attorney-General v. Alford, 4 DeG. M. & G. 843, 851; In re Hilliard, 1 Ves. jun., 89; Jones v. Foxall, 15 Beav. 392; Knott v. Cottee, 16 Beav. 80; Robinson v. Robinson, 1 DeG. M. & G. 255; Johnson v. Prendergast, 28 Beav. 480; Saltmarsh v. Barrett (No. 2) 31 Beav. 350; unless a special case is made out (Treves v. Townshend, 1 Bro. C. C. 386; Hall v. Hallet, 1 Cox 138; Tebbs v. Carpenter, 1 Mad. 306; Woodhead v. Marriott, C. P. Cooper, 62), showing that the trustee or executor either has or ought to have made interest on the

than its income. Its depositors numbered $1,000, representing $70,000, and its assets consisted of $13,000 in cash and a number of mortgages on real estate. Shortly afterwards the directors, in order to inspire confidence and attract depositors, resolved to erect a new banking house, and for this purpose purchased a lot for $29,250, and bound themselves to erect thereon a building costing $27,000. To pay for this building most of the money was taken and some of the mortgages sold, In consequence thereof the bank became unable to continue, and was placed in the hands of a receiver. Held, that the jury was justified in finding the directors guilty of a want of that skill and prudence which the law requires.

EARL, J., delivered the opinion of the court: This action was brought by the receiver of the Central Park Savings Bank of the City of New York against the defendants, who were trustees of the bank, to recover damages which, it is alleged, they caused the bank by their misconduct as such trustees.

The first question to be considered is the measure of fidelity, care and diligence, which such trustees owe to a bank and its depositors. The relation existing between the corporation and its trustees is mainly that of principal and agent; and the relation between the trustees and the depositors is similar to that of trustee and cestui que trust,

It

The trustees are bound to observe the limits placed upon their powers in the charter, and if they transcend such limits, and cause damage, they incur liability. If they act fraudulently or do a wilful wrong, it is not doubted that they may be held for all the damage they cause to the bank or its depositors. But if they act in good faith within the limits of powers conferred, using proper prudence and diligence, they are not responsible for mere mistakes or errors of judgment. That the trustees of such corporations are bound to use some diligence in the discharge of their duties, can not be disputed. All the authorities hold so. What degree of care and diligence are they bound to exercise? Not the highest degree; not such as a very vigilant or extremely careful person would exercise. If such were required, it would be difficult to find trustees who would incur the responsibility of such trust positions. would not be proper to answer the question by saying the lowest degree. Few persons would be willing to deposit money in savings banks or to take stock in corporations, with the understanding that the trustees or directors were bound only to exercise slight care, such as nattentive persons would give to their own business, in the management of the large and important interests committed to their hands. When one deposits money in a savings bank, or takes stock in a corporation, thus divesting himself of the immediate control of his property, he expects, and has the right to expect, that the trustees or directors who are chosen to take his place in the management and control of his property, will exercise ordinary care and prudence in the trusts committed to them -the same degree of care and prudence that men prompted by self interest generally exercise in their own affairs. When one voluntarily takes the position of trustee or director of a corporation, good faith, exact justice and public policy

unite in requiring of him such degree of care and prudence, and it is a gross breach of duty, crassa negligentia, not to bestow them.

It is impossible to give the measure of culpable negligence for all cases, as the degree of care required depends upon the subjects to which it is to be applied. First Nat. Bank v. Ocean Nat. Bank, 60 N. Y. 278. What would be slight neglect in the care of a quantity of iron, might be gross neglect in the care of a jewel. What would be slight neglect in the care exercised in the affairs of a turnpike corporation, or even of a manufacturing corporation, might be gross neglect in the care exercised in the management of a savings bank entrusted with savings of a multitude of poor people, depending for its life upon credit and liable to be wrecked by the breath of suspicion. There is a classification of negligence to be found in the books not always of practical value, and yet sometimes serviceable into slight negligence, gross negligence, and that degree of negligence intermediate between the two, attributed to the absence of ordinary care; and the claim on behalf of these trustees is that they can only be held responsible in this action in consequence of gross negligence, according to this classification. If gross negligence be taken according to its ordinary meaning, as something nearly approaching fraud or bad faith, I can not yield to this claim; and if there are any authorities upholding the claim, I emphatically dissent from them.

It seems to me that it would be a monstrous proposition to hold that trustees entrusted with the management of the property, interests and business of other people, who divest themselves of the management and confide in them, are bound to give only slight care to the duties of their trust, and are liable only in case of gross inattention and negligence; and I have found no authority fully upholding such a proposition. It is true that authorities are found which hold that trustees are liable for crassa negligentia, which literally means gross negligence; but that axiom has been defined to mean the absence of ordinary care and diligence adequate to the particular case. In Scott v. De Peyster, 1 Ed. Ch. 513, 543, a case much cited, the learned vice chancellor said: "I think the question in all such cases should and must necessarily be, whether they [directors] have omitted that care which men of common prudence take of their own concerns? To require more would be adopting too rigid a rule and rendering them liable for slight neglect; while to require less would be relaxing too much the obligation which binds them to vigilance and attention in regard to the interests of those confided to their care, and expose them to liability for gross neglect only, which is very little short of fraud itself." In Spering's Appeal, 71 Pa. St. 11, Sharswood, J., said: "They [directors] can only be regarded as mandataries-persons who have gratuitously undertaken to perform certain duties, and who are therefore bound to apply ordinary skill and diligence, but no more." In Hodges v. New England Screw Co., 1 R. I. 312, Jenckes, J.,