ors; and, as such officer, he transacts most of the business of the bank.2 Whatever is done by him in that capacity, within the scope of his duties, is the act of the bank. His ordinary duties are to keep the funds, notes, bills, and other choses in action of the bank to be used as the exigencies of the bank may demand; 4 to receive all moneys and notes of the bank; to surrender notes and other securities when paid; to draw checks; to withdraw funds of the bank on deposit, and generally to transact the ordinary routine of business.5 He is the officer through whom the whole financial operations of the bank are conducted; and his acts, within the general usage, practice, and course of business conducted by the bank, will bind it in favor of third persons possessing no other knowledge." If there is any special restriction upon his general authority to act, the bank must show it.8 Prima facie he must be deemed to have authority to transfer and indorse negotiable securities held by the bank for its use; but he cannot transfer non-negotiable paper without authority from the bank; 10 and he cannot, without special authority, bind his bank by an official indorsement of his individual note; 11 nor release a surety upon a note held by the bank; 12 nor bind the bank to indemnify an officer for levying upon property on an execution in favor of the bank; 18 nor execute a mortgage on the real estate of the bank; 14 nor certify post-dated checks; 15 nor pledge the assets of the bank for the payment of an antecedent debt; 16 and it is not within the scope of the powers ordinarily conferred upon a cashier to appear and defend suits against the bank; 17 nor has he by virtue of his office any authority in another state to settle an account, taking private notes and drafts, and giving a receipt in full.18 He may, however, in virtue of his general employment, borrow money on behalf of the bank, 19 and bind it by a promissory note executed therefor.20 And he has authority to take such measures for the security and eventual collection of a debt as he deems prop

BOONE CORP.-27.

er; 21 and may act in reference to it, by way of compromise, according to the general usage, practice, and course of business.22 The cashier is the proper officer to make or superintend the transfer of shares; 23 to take charge of the correspondence of the bank; 24 to accept or refuse the account of those who wish to become depositors; 25 and the subordinates of the bank act under his direction.26 His admissions and declarations in relation to matters within the scope of his ordinary duties are binding upon the bank;27 and if the directors suffer him to pursue a particular line of conduct for a considerable period, without objection, the bank will be bound by his acts.28 If the cashier receive securities for safe-keeping, and the deposit is known to the directors and acquiesced in, the bank will be liable.29 If the cashier fails to exercise reasonable skill and ordinary care and diligence in the discharge of his duties, and the bank suffers damage thereby, he is liable; 80 and much more so, if he caused the damage by any illegal, fraudulent, or tortious act; 81 and specific statutory penalties are sometimes affixed to specific acts of wrong-doing.82

1 Minor v. Mechanics' etc. Bank, 1 Peters, 46; Bridenbecker. Lowell, 32 Barb. 9, 17; Bissell v. First Nat. Bank, 69 Pa. St. 415; Badger v. Bank of Cumberland, 26 Me. 428. Compare Brown v. Adams, 5 Biss. 181.

2 United States v. City Bank, 21 How. 356; Baldwin v. Bank of Newbury, 1 Wall. 234.

3 Bank of Ky. v. Schuylkill Bank, Pars. Sel. Cas. 180; State v. Com. mercial Bank, 6 Smedes & M. 218; Burnham v. Webster, 19 Me. 232. See Brown v. Adams, 5 Biss. 181

4 Frankland Bank v. Steward, 37 Me. 519; Wild v. Bank of Passa maquoddy, 3 Mas. (C. C.) 505; State Bank v. Wheeler, 21 Ind. 90.

5 United States v. City Bank, 21 How. 356; Kimball v. Cleveland, 4 Mich. 606; Sturges v. Bank of Circleville, 11 Ohio St. 153; Morse v. Mass. Nat. Bank, 1 Holmes, (C. C.) 209.

6 Merchants' Bank v. State Bank, 10 Wall. 604, 650; Wakefield Bank v. Truesdell, 55 Barb. 602; Caldwell v. Mohawk etc. Bank, 64 id. 333. 7 Lloyd v. West Branch Bank, 15 Pa. St. 172; Matthews v. Mass. Nat. Bank, 1 Holmes, 396; Commercial Bank v. Kortright, 22 Wend. 348.

8 State v. Commercial Bank, 6 Smedes & M. 218; and see Bank of Penn'a v. Reed, 1 Watts & S. 101; Baldwin v. Bank of Newbury, 1 Wall. 234.

9 Ryan v. Dunlap, 17 Ill. 40; Pratt v. Topeka Bank, 12 Kans. 570; Ridgway v. Fariners' Bank, 12 Serg. & R. 265; Fleckner v. Bank of U.

8.8 Wheat. 338; State Bank v. Wheeler, 21 Ind. 90; Robbv. Ross County Bank, 41 Barb. 586; and see Folger v. Chase, 18 Pick. 63; State Bank v. Fox, 3 Blatchf. 431; Haughton v. First Nat. Bank, 26 Wis. 663; Elwell v. Dodge, 33 Barb. 336; Bissell v. First Nat. Bank, 69 Pa. St. 415, as to forms of indorsement.

10 Holt v. Bacon, 25 Miss. 567; Barrick v. Austin, 21 Barb. 241.

11 West St. Louis Sav. Bank v. Shawnee County Bank, 3 Dill. 403.

12 Cocheco Nat. Bank v. Haskell, 51 N. H. 116; Merchants' Bank v. Rudolf, 5 Neb. 527; and see Hodge v. Nat. Bank, 22 Gratt. 51.

13 Watson v. Bennett, 12 Barb. 196.

14 Leggett v. N. J. etc. Banking Co. 1 N. J. Eq. 441.

15 Clarke Nat. Bank v. Bank of Albion, 52 Barb. 592.

16 Tennessee v. Davis, 50 How. Pr. 447.

17 Branch Bank v. Poe, 1 Ala. 396.

18 Sandy River Bank v. Merchants' etc. Bank, 1 Biss. 146.

19 Ballston Spa Bank v. Marine Bank, 16 Wis. 120; Sturges v. Bank of Circleville, if Ohio St. 153.

20 Barnes v. Ontario Bank, 19 N. Y. 152.

21 Eastman v. Coos Bank, 1 N. H. 23; Mitchell v. Cook, 29 Barb. 243; United States v. City Bank, 21 IIow. 356; Corser v. Paul, 41 N. H. 24; Hartford Bank v. Barry, 17 Mass. 94.

22 Bank of Penn'a v. Reed, 1 Watts & S. 101; Bridenbecker v. Lowell, 32 Barb. 9; and see Payne v. Commercial Bank, 6 Smedes & M. 24. 23 Commercial Bank v. Kortright, 22 Wend. 348; Smith v. Northampton Bank, 4 Cush. 1.

24 Brauch Bank v. Steele, 10 Ala. 915; New Hope etc. Bridge Co. v. Phoenix Bank, 3 N. Y. 156, 166.

25 Thatcher v. Bank of State, 5 Sand. 121.

26 Merchants' Bank v. State Bank, 10 Wall. 604.

27 Sturges v. Bank of Circleville, 11 Ohio St. 153; Merchants' Bank v. Marine Bank, 3 Gill, 96; Haughton_v. First Nat. Bank, 26 Wis. 663. Compare Salem Bank v. Gloucester Bank, 17 Mass. 1; Pendleton v. Bank of Ky. 1 Mon. 171.

28 City Bank v. Perkins, 4 Bosw. 420; Caldwell v. Mohawk etc. Bank, 64 Barb. 333.

29 First Nat. Bank v. Graham, 79 Pa. St. 106; 100 U. S. 699.

30 Austin v. Daniels, 4 Denio, 299; Commercial Bank v. Ten Eyck, 48 N. Y. 305.

31 Commercial Bank v. Ten Eyck, 48 N. Y. 305; Minor v. Mechanics' Bank, 1 Peters, 46; Bank of St. Mary's v. Calder, 3 Strob. 403.

32 See State v. Stimson, 4 Zab. 9.

§ 218. Tellers.-The office of a teller is to receive or pay out funds. There are usually two-a paying teller and a receiving teller; the general duty of the former being to pay the moneys of the bank, and of the latter to receive money paid to or deposited in the bank. And, as a general rule, neither can properly discharge the duty of the other. But where a debt due the bank was paid

to the paying teller, and there was proof of a usage in the bank when one officer was absent for another to act in his place, the bank was held to be bound by the payment. The receiving teller, in the discharge of his duty to receive money, has no right to receive anything but money, in the legal sense of the term.5 In order to render a bank liable for the negligence of a teller, there must be negligence such as enters into the cause of loss. 1 See Manhattan Co. v. Lydig, 4 Johns. 377; Terrell v. Branch Bank, 12 Ala. 502.

2 Farmers' etc. Bank v. Butchers' etc. Bank, 16 N. Y. 125; East River Nat. Bank v. Gove, 57 id. 597.

3 Thatcher v. Bank of State, 5 Sand. 121.

4 East River Nat. Bank v. Gove, 57 N. Y. 597.

5 Clark v. Metrop. Bank, 3 Duer, 241. See Wayne v. Com. Nat. Bank, 52 Pa. St. 343; Nat. Gold etc. Co. v. McDonald, 51 Cal. 64.

6 Scott v. Nat. Bank, 72 Pa. St. 471.

§ 219. Deposits.-Deposits made with bankers are either general or special.1 A deposit is deemed general, unless the depositor makes it special, or deposits it expressly in some particular capacity.2 In cases of general deposits, which are peculiar to banking business, the depositor parts with the title to his money, and loans it to the banker; and the latter, in consideration of the loan, and the right to use the money for his own profit, agrees to refund the same amount, or any part thereof, on demand. The relation of banker and customer, as it respects general deposits, is that of debtor and creditor,5 and not that of trustee and cestui que trust. The deposit creates a debt, and the payment of the checks of the customer discharges such debt pro tanto. But in case of a special deposit, the bank merely becomes the bailee of the depositor, the title to the thing deposited remaining with the latter. And where a bank receives a special deposit, without compensation, it is bound only for slight care, and is responsible only for gross negligence.9 When a deposit is made in bank, the cashier usually gives a certificate to that effect, and from this may be learned the

nature of the deposit, whether it be general or special; 10 that is, whether it be generally passed to the credit of the depositor, or specially lodged for safe-keeping merely.11 A bank is not bound to receive on deposit the money and funds of every person who offers, but may arbitrarily select its customers from among those that apply.12

1 See Marine Bank v. Fulton Bank, 2 Wall. 252.

2 Keene v. Collier, 1 Met. (Ky.) 415; Brahin v. Adkins, 77 Ill. 263; and see Bank of U. S. v. Macalester, 9 Pa. St. 475.

3 Bank of Republic v. Millard, 10 Wall. 152; Boyden v. Bank of Cape Fear, 65 No. Car. 13; Phelan v. Iron Mt. Bank, 16 Bank. Reg. 308. 4 Marine Bank v. Fulton Bank, 2 Wall. 252; and see Dawson v. Real Estate Bank. 5 Ark. 283; Coffin v. Anderson, 4 Blackf.395; Pott v. Clegg, 16 Mees. & W. 321.

5 Knecht v. U. S. Sav. Inst. 2 Mo. App. 563; Bank of Republic v. Millard, 10 Wall. 152; Graves v. Dudley, 20 N. Y. 76; Bank of Northern Liberties v. Jones, 42 Pa. St. 536; Allen v. Fourth Nat. Bank, 59) N. Y. 12; Etna Nat. Bank v. Fourth Nat. Bank, 46 id. 82; 7 Am. R. 314; Foley v. Hill, 2 H. L. Cas. 39.

6 Buchanan etc. Co. v. Woodman, 1 Hun, 639; 4 Thomp. & C. 193; Re Bank of Madison, 5 Biss. 515; Crosskill v. Bower, 32 Beav. 86; Watts v. Christie, 11 id. 546; Bishop v. Countess of Jersey, 2 Drew. 143.

7 Albany Com. Bank v. Hughes, 17 Wend. 94; Foster v. Essex Bank, 17 Mass. 479; Oddie v. Nat. City Bank, 45 N. Y. 735; 6 Am. R. 160; Boy. den v. Bank of Cape Fear, 65 Ño. Car. 13.

8 Bank of Ky. v. Wister, 2 Peters, 318; Marine Bank v. Fulton Bank, 2 Wall. 252; Master of Franklin Bank, 1 Paige, 249; 19 Am. Dec. 413.

9 Foster v. Essex Bank, 17 Mass. 479; Hale v. Rawallie, 8 Kan. 137. 10 Foster v. Essex Bank, 17 Mass. 479; and see White v. Franklin Bank, 22 Pick. 181; Cushman v. Ill. Starch Co. 79 Ill. 281.

11 See Marine Bank v. Fulton Bank, 2 Wall. 252; Lancaster County Nat. Bank v. Smith, 62 Pa. St. 67; Smith v. First Nat. Bank, 99 Mass. 605.

12 Thatcher v. Bank of State, 5 Sandf. 121.

§ 220. Repayment of deposits.-In the case of a general deposit, the money deposited is a debt due from the bank to the depositor, which raises an implied assumpsit for its repayment.1 No engagement under seal is necessary to bind the bank to repay.2 But a previous demand by the depositor, or by some person authorized by him by his order, is indispensable to the maintenance of an action for the deposit; 3 unless circumstances are affirmatively shown which amount to a legal excuse. The statute of limitations does not begin to run," nor, except by special contract, is a bank chargeable with interest on sums de