have funds to their credit, such bills and notes, accepted or drawn by them, as are payable at the bank. The latter circumstance is deemed an order of the depositor for the payment of the bill or note out of his funds deposited. But it is only in respect of its dealers, persons keeping an account with the bank, that this course of business exists or can exist.

A person may, no doubt, become a dealer, by a deposit made on the day his note or draft falls due, though never before in the bank; but his deposit must be made with the proper officer of the institution, and with the requisite assent to his becoming such dealer.

In this instance, there is, in the first place, no pretense that the cashier, or any officer of the bank except the paying teller, ever assented in any manner to the plaintiff's making a deposit or becoming a dealer with the bank. The first step toward establishing a duty of the bank toward the plaintiff is therefore wanting. Let us suppose this difficulty obviated, the next step is to show a deposit properly made, that is, that the money was left with an agent of the bank authorized to receive it. The person who left the money knew that the agent who received it was the paying teller, and not the receiving teller of the bank, and it cannot be said he was ignorant of the fact that there were two such officers. Indeed, there was no such idea advanced at the trial. Now the very names of these two agents indicate to every one the proper and widely different functions of each. The one is to pay the money of the bank; the other is to receive moneys for the bank. Dealers always pay their money to the receiving teller. When they draw money from the bank, or their notes or bills are presented made payable at the bank, the paying teller pays the amount to them, or to the holders of such notes or bills.

But we are not left to the inference derived from the names of these agents. The answer states that the proper receiving officer of the bank is the receiving teller, and that it was not within the duties of the paying teller to receive the money left in this instance, or to assume to pay the plaintiff's bill with it, and that it is not in the usual course of business to deposit moneys with the paying teller. The reply does not traverse the allegation as to the receiving teller being the proper receiving officer of the bank, but it alleges that the receiving of money by the paying teller, in the bank, during bank hours, is within the ordinary scope of the business of the paying teller and of the bank, and that his receipt and promise in the instance before us, were within his duties, and bound the bank.

The proof entirely failed to make out these allegations. It was shown that, in several instances, these same parties had left funds with the paying teller in the same way that these were left, but there was no proof that it was his proper function to receive them, or that it was in the usual course of business for him to receive funds in behalf of the bank. On the contrary, both the cashier and paying teller clearly prove that it is no part of his duty or business to receive moneys for the bank; and the teller testifies that when he does receive money for parties who do not keep an account in the bank, in order to pay notes they have drawn payable there, it is as a favor to such parties; he sometimes refuses -sometimes, when pressed very hard, he takes it for them, and keeps it separate from the money of the bank.

It is true the cashier appears to have known in a few instances, that the paying teller thus received money to pay notes and bills, and did not forbid it; but we cannot infer from this an assent of the bank that he should, in their behalf, receive money for that purpose. His duties as their agent were clearly defined, and the cashier's knowledge that he occasionally, while at the bank, acted for others, does not show that the bank adopted those acts.

So far from the proof showing that in this transaction the paying teller was the agent of the bank, it clearly shows that he was the agent of the party who left the money. The bank had nothing to do with the affair, nor was it intended that it should have. The drawer, it seems, was in the habit of drawing bills payable at this bank, but he kept no account or money there, and his sole object in this operation appears to have been to give a sort of currency to his bills because payable at a New York bank. If he had offered an account with the

defendants' bank and kept funds there, the bank would have had the usual benefit of its dealings with depositors, and his bills would have been paid of course on presentment. The paying teller, and his substitute in his temporary absence, know as to those who keep accounts in the bank, and pay accordingly. But the drawer and acceptor chose to run the risk of meeting the bill at the proper moment, at the counter of this bank; and their transactions were simply for their agent to come to the bank on the day the bill fell due, and wait there in front of the paying teller's desk until the holder of the bill came in and presented it. The money would then be handed by their agent to the holder, and the latter would take it away. The bank derived and could derive no possible benefit from such a transaction; it was never intended that it should; and the bank was as ignorant of its occurrence as if it had been done outside of its building, instead of in its office. To avoid the trouble of waiting with the money at the bank counter for the bill to be brought in for payment, these parties resorted to the expedient of asking the paying teller to take the money they had brought, and when the bill came in, to hand it to the holder. He sometimes assented as a favor to them. There was no intention or expectation that the money should go into the hands of the bank, or be mingled with its funds. It was handed to the paying teller, because from his position in the bank, the bill would necessarily be presented to him for payment, and if he would take the money and retain it till the bill came in, it would save the time and attendance of the agent of the drawer, and acceptor. The same expedient has been adopted in reference to bills payable at another bank, as shown by the evidence, and it may be general in this city but it cannot alter the relation of the parties in the transaction. The paying teller, in such cases, becomes the agent of the parties who leave the money with him, and the bank is not responsible for his conduct in regard to it.

The case of the Manhattan Company vs. Lydig, 4 John. R. 377, was like this in principle. There the party, instead of delivering his money to the receiving teller of the bank, handed it, from time to time, to the bank's book-keeper to deposit it for him. The book-keeper kept part of the money; but, by false entries in the dealer's pass-book and in the books of the bank, concealed the abstraction from both. Sometimes in a pressure of business, this book-keeper assisted the receiving teller, and sometimes supplied his place in his absence, but none of the money in controversy was delivered to him on those occasions. The Supreme Court decided that the book-keeper in receiving these moneys was the agent of the party and not of the bank, and that the bank was not liable for that portion which did not come to the hands of the receiving teller or the person temporarily supplying his place in the bank, or which did not otherwise come into the coffers of the bank.

On the case made at the trial, the plaintiff was not entitled to recover. The formal judgment entered in his favor must be reversed, and a judgment rendered for the defendants.

COMMERCIAL CASES IN THE SUPREME COURT OF LOUISIANA.

The subjoined abstract of points in cases, decided in the Supreme Court of Louisiana, (Term 1851-52,) are derived from the carefully prepared reports of the Commercial Bulletin. They embrace points of great interest to mercantile and business men:

SPARKS ET AL. VS. STEAMER SALADIN AND OWNERS.-Slidell, J. Where a flatboat was tied to the bank at a place appropriated to that sort of craft, at a considerable distance from the landing assigned to steamboats, and a steamboat moving in a dense fog at night came in collision with and sunk the flatboat, and it appeared from the evidence that it was not usual at the place for flatboats thus moored to display a light and keep a man on the look-out, held, that there had been no want of conformity to custom, on the part of the flatboat, whereby a false confidence could have been given to an approaching vessel, and that the

collision was owing to a want of care and caution on the part of those who had the management of the steamboat.

BOND VS. S. W. FROST AND OWNERS OF STEAMER CONCORDIA. Slidell, J. —In an action against a vessel for damages alleged to have been sustained on a lot of cotton, the vessel's bill of lading acknowledging the cotton to have been in good order and condition when received by her, even if it be admitted to be open to explanation, most certainly throws the burden of proof upon the vessel, and the recital contained in the bill of lading cannot be overthrown or qualified, except by evidence of a very clear and convincing character-the policy of law, justified by a long experience, being to hold the carrier to a very strict accountability.

Per curiam: in the plaintiff's bill of damages there is an item (which the Court allowed) for loss of weight by picking, for which loss defendants are charged. The cotton picker testified that he kept the cotton picked, dried it, sold it, and got the money for it; that he charges so much a bale for picking, without reference to the damaged cotton, which he keeps, the damaged portion being considered part of the price for picking.

The defendants are charged $50 for picking the cotton, and if they are to pay the sound value of the portion damaged, it seems to us, as at present advised, unreasonable that its proceeds should not be allowed for. The amount in this case is not large, but it involves the justice and reasonableness of a practice, the propriety of which we have hitherto had occasion to question.

FOLEY VS. BELL AND STEBBINS. ROST, J.-Where, under a special agreement and for a consideration deemed sufficient by the defendants, they purchased on account of the plaintiff certain gunny bags and certain barrels of inspected mess pork, for which they gave their own notes, and agreed to store those articles in their warehouses and to hold them for a stipulated time-the sales to be ultimately effected, not by the defendants themselves, but by the plaintiff through the agency of his broker, and the proceeds to be paid over to the defendants, to meet their outstanding notes; but, before the expiration of the time agreed upon, the defendants sold the pork and gunny bags, without the knowledge of the plaintiff or his broker, and subsequently, when the plaintiff directed his broker to sell, the defendants offered him, in the place of the articles sold, gunny bags of the same size and number and other inspected mess pork, which were refused, held, that, after the sale of the goods by the defendants, their liability to the plaintiff, whether they be considered as agents or as depositaries, or as creditors selling the goods of their debtor, in violation of their agreement not to do so, is the same, and that, in the absence of any legal justification for selling without authority, they must account to him for any profits they may have made in selling and indemnifying him for any loss he has sustained by their failure to deliver the goods when demanded.

Where it was alleged to be the custom of trade in New Orleans, to deliver gunny bags and pork from the warehouses in which they are stored without regard to marks or ownership, held, that such a custom, if proved to exist, would be contrary to law and good morals, and could not be recognized by a court of justice.

CLUMAS VS. GALLAGHER.-Rost, J.-Where, by the death of one of the commercial partners, the firm was not dissolved but continued, held, that the authority of the agents of the firm given previous to the death, still subsisted after the death.

SOYE VS. MERCHANTS' INSURANCE Co.-Slidell, J.-There is no rule of law, nor usage, which would make it the duty of an assured to have his house, if untenanted, guarded by a keeper. Such a duty could only be imposed by a special clause in the policy of insurance.

MORTON VS. DAY.-Where the captain of the steamer of which the defendant was part owner had purchased of the plaintiff goods, representing that they were for the use of the boat, and the goods were accordingly charged to the boat and owners, but the account of the sales on its face plainly indicates, and it was satisfactorily shown by other evidence, that the goods could not have been

bought for the boat's consumption, but were probably purchases made to fill orders which had been entrusted to the captain-held, that the captain had no authority to bind his owner in that manner, and that the owner was not liable: per curiam, the master is not the general agent of the owner. He is clothed with various incidental powers, resulting from his official capacity; but these, in the main, are restricted to such as belong to the usual employment of the vessel. An extraordinary transaction, like the one under consideration, calls for a particular authority, either express or resulting clearly from an antecedent, similar and usual course of dealing, so adopted by the owner as to hold the captain out to the public as his agent for such purposes.

LIABILITY OF RAILROAD

CORPORATIONS FOR PERSONAL INJURIES SUSTAINED BY

PASSENGERS.

A Mr. Hood, on the 15th January last, took passage at New Haven for Collinsville, Conn., buying a ticket for that place at the railroad office. At Plainville the conductor gave him a check for the stage, which at that place connected with the cars, in exchange for his ticket. The stage was upset, and Mr. Hood's leg was broken. He sued the railroad company for damages, but they contended that in the first place that they were not authorized to carry passengers in stages, and if they had been they had no control over this accident. The Court and Jury ruled differently, however, and gave a verdict for the plaintiff, with $3,400 damages and costs.

RECENT DECISIONS OF THE CINCINNATI CHAMBER OF COMMERCE.-We are indebted to the Cincinnati Price Current for the subjoined decisions of the Committee of Arbitration of the Cincinnati Chamber of Commerce. The decisions of these Committees must, says the Price Current, be regarded of as much importance to merchants, as the decisions of Courts, the Committees being always composed of practical and intelligent business men. It is a fact worthy of remark in this connection, that a growing desire is manifested to resort to this method of settling matters of dispute. It is certainly the most agreeable, as it is the cheapest, and, we may add, the fairest way to settle such matters.

The views of the Price Current are in keeping with some remarks we made some month's since, in publishing in the pages of the Merchant's Magazine the memorial of the New York Chamber of Commerce, to the Legislature of New York, on the subject of establishing a Court of Commerce for the City of New York. We trust that the next Session of the Legislature will be induced to comply with the objects set forth in that memorial.

RICHARDSON, GARDNER AND STONE VS. J. M. MCCULLOUGH.-This case was brought to recover damages for a lot of gunny bags purchased of defendant on the 20th of September, 1851. It was alleged by plaintiffs that the bags were a good merchantable article; but upon examination about three weeks or a month after the bags were taken into store, it was found that a large number were not as represented by defendant. It is alleged by defendant that the sacks were examined before they were sold or delivered to plaintiffs, and that they were then good second-hand bags, as represented, and that they must have been damaged after they had been delivered by defendant.

The committee decided from the testimony given on both sides, that the bags were now in bad order, as represented, but having been in store some weeks before they were overhauled, and being exposed part of that time to rats, it was possible they might have been damaged. The Committee are of the opinion, however, that the practice of purchasing goods upon the representation of the seller, and keeping the same in possession a length of time before instituting an examination, is one that should not be encouraged, being calculated to cause much trouble and dissatisfaction in mercantile transactions. Decision for defendant. G. Y. Roots and Geo. Graham, Select Committee.

PROCTOR AND GAMBLE VS. R. A. HOLDEN.-This case is brought to recover damages for the difference between the guarantied and actual strength of a lot of soda-ash. In July, 1851, defendant sold to plaintiffs 25 casks soda-ash, repre

senting its strength to be 84° or 85°, and the bill was rendered accordingly. When a portion of the article had been used in the factory of plaintiffs, it was discovered that the strength was unusually weak, and a series of tests proved the average strength to be only 66°. Eleven casks were used, and the remaining fourteen casks were returned to defendant. A letter from Babcock and Fennell of New Orleans, was read, which represents the strength of the article to have been 84° or 85° when shipped from New Orleans; but it was also shown that the packages were in bad order when delivered in this city. The question, however, as to the actual strength of the article is not contested, defendant resting his objections to the claim of plaintiff upon the following points: -1st. The custom of this market has been to purchase soda-ash at the represented strength, there being no established system for testing. 2nd. When plaintiffs discovered that the article was not as represented, they were bound to return it; and not having done so, they are not entitled to any deduction on that portion of the article used.

The Committee decide that no custom has been shown to exist that can set aside the right of plaintiffs to recover for the difference between the guarantied and actual strength. Upon the second point, it is decided that when an article is purchased upon the guaranty or representation of the seller, the purchaser is not bound to return the goods, but may use the whole and recover damages for the difference between the guarantied and actual quality. Plaintiff's are entitled to the difference between 80°-the standard strength, and 66°, the actual strength. C. W. West, W. B. Cassilly, Wm. C. Noff, Geo. H. Hill, Joseph Rawson, Committee.

COMMERCIAL CHRONICLE AND REVIEW.

OPENING OF THE NEW YEAR-COMMERCIAL CHANGES IN THE PAST-UNEXPECTED SUPPLY OF GOLDEFFECT OF EXPORTS OF DOMESTIC COIN AS COMPARED WITH SHIPMENTS OF FOREIGN-TOTAL PRODUCTION OF DOMESTIC GOLD FROM 1793 TO THE CLOSE OF 1851-THE NATURAL COURSE OF TRADE SURE TO BE THE MOST PROSPEROUS-COMMERCE OF THE UNITED STATES FOR YEAR ENDING JUNE 30TH, 1851-IMPORTS AND EXPORTS COMPARED-INCREASED EXPORTS OF COTTON-COMPARATIVE EXPORTS OF COTTON AND BREADSTUFFS FOR SEVERAL YEARS-AVERAGE PRICE OF COTTON EXPORTED SINCE 1821-COURSE OF TRADE FOR THE CALENDAR YEAR JUST CLOSING-STATE OF THE MONEY-MARKET ON THE SEABOARD AND IN THE INTERIOR-DEPOSITS AND COINAGE FOR NOVEMBER AT THE PHILADELPHIA AND NEW ORLEANS MINTS-IMPORTS AT NEW YORK FOR NOVEMBER-IMPORTS AT NEW YORK FOR ELEVEN MONTHS-IMPORTS OF DRY GOODS AT NEW YORK FOR NOVEMBER-IMPORTS OF DRY GOODS FOR ELEVEN MONTHS-COMPARATIVE RECEIPTS FOR DUTIES FOR THE MONTH, AND FROM JANUARY 1ST-EXPORTS FROM NEW YORK FOR NOVEMBER-PARTICULARS OF PRINCIPAL ARTICLES EXPORTED EXPORTS FOR ELEVEN MONTHS OFFICIAL REPORT OF THE SECRETARY OF THE TREASURY, ETC., ETC.

:

If there is any vantage ground in time, it must be on the threshold of a New Year. Standing thus on this great landmark between the past and the future, we recount our experience, and map out the untrodden path before us. The vision, however, is not equal: running back far into the dim distance, we can see the track we have pursued, trace its windings, and mark the beacons we have erected as we turn forward, we can but fancy the shadowy outlines of the way where there is nothing as yet known or real. The past year has witnessed, upon this continent, many important commercial changes, but they have all been effected so quietly that we can scarcely realize their importance. The production of gold from our own soil since the 1st of January, 1851, is a little over $90,000,000, of which about $54,000,000 has been deposited for coinage at our mints.

This large supply of coin is far beyond any former precedent, and may