being effected, authorized it, or that it was intended for him, and he permitted to recover without this, by merely showing his subsequent adoption of it, the party effecting the policy and having an interest on board of the vessel which he intended to protect by it, after receiving what he had at stake, in safety, might sell and transfer his policy to others, whose goods on board of the same vessel had been lost by the perils of sea, without any policy having been effected for the purpose of covering them; and thus expose the underwriters to a risk that was never contemplated in making the assurance. The injustice arising from the operation of such a principle is manifest, and therefore ought not to be sanctioned. It tends to destroy or prevent the equal chance of gain or loss to the parties, which is regarded in some measure as requisite to sustain the validity of the contract. Besides, it is obvious that it would tend to promote gambling policies, which are deemed void by the law of this state: 3 Yeates, 461;' and to render them valid by subsequent events and the agreements of the party procuring them, with third persons, without, or even against the consent of the insurers. For a policy effected by a person who has no interest whatever to be insured, and who at the time does not intend it for the benefit of any one who has, is literally, as it would seem to me, a gambling policy; but if he can, by selling the policy to the owner of property on board, either before or after a loss of it shall have happened, thus render it valid, the policy of the law, which denounces gambling policies, will be at least partially defeated. It would seem not to be requisite, in order to render an insurance available, to a party by adoption, that he should adopt it before the loss shall have happened; for in Hagedorn v. Oliverson, 2 Mau. & Sel. 486, it was not adopted by the owner of the property until after the loss, and nearly two years after the date of the policy; which is expressly stated by the report of the case, to have been made, and at the time of doing so, was intended for his benefit. The maxim, quod primum est intentione ultimum est in operatione, may be regarded as being applicable in such cases.

The question then arises in the case before us, was there any evidence given whatever, from which the jury could fairly have inferred an authority from De Bollè to Flemming to effect the assurance? It is plain there was none; nor did I understand it to be insisted on by the counsel for the plaintiff on the argument for a new trial that there was; but it was earnestly con

1. Pritchet v. Ins. Co. of N. A.

tended that the assurance of such a box of jewelry by Flemming as De Bollè had given evidence of his having shipped by the same vessel, named in the policy, and it not appearing that Flemming himself had any such on board, it was sufficient to justify the jury in concluding thence, that the insurance was intended for De Bollè; and consequently it ought to have been left to the jury to be decided by them, as a question of fact. But in the entire absence of all evidence, showing the least intercourse between De Bollè and Flemming in regard to business of any kind; or that the latter had any concern with shipping the jewelry, or purchasing it as the agent of the former, or showing that either at the time of or before effecting the assurance, he intended to do so or was doing it for De Bollè, it would be a conclusion too far-fetched, and such as the law ought not to permit a jury to make. It was not proved to have been attended by any one or more circumstances which indicate with the slightest degree of certainty, that it was intended for the benefit of De Bollè. That this box of jewelry was intended to be insured is not even proved with any degree of certainty; but if it were, still I should doubt whether that would be sufficient to leave the question of fact, whether it was intended for De Bolle, to the decision of the jury; because for aught that appears to the contrary, Flemming may have had such a box of jewelry himself on board of the same vessel, or have intended an assurance upon it, without having any insurable interest in it. Everything remains in perfect obscurity as to this; and from all the evidence given, it is utterly impossible to come to any conclusion in regard to it, other than that of mere conjecture at best. It has been said, however, and argued that this case is similar to the case of Flemming for the use of Marcia v. The Marine Ins. Co. of Philadelphia, ante, 33, tried before myself at the late nisi prius, wherein it was left to the jury to be determined by them as a question of fact, whether the insurance there was intended for Marcia or not. Between the two cases, however, it is conceived there is this very material difference. In the case of Marcia it appeared from the evidence, that the goods alleged to have been insured, and so proved by the evidence given, were shipped by Flemming, and that Marcia had actually purchased them previously as his goods, and paid for them; from which it might be inferred that Flemming acted as the agent of Marcia in shipping the goods; and being the agent of Marcia for that purpose, he might reasonably be intended to have made the assurance for the benefit of Marcia, also as his agent. It was likewise claimed, that one witness,

produced on the part of the plaintiff, testified that Flemming acted, before the insurance, generally as the agent of Marcia in the city of Philadelphia. Under this state of the evidence, it was deemed proper to leave it to the jury to say, whether the assurance was intended by Flemming, when he made it, for Marcia; and if so, whether the latter, if the jury should think that it was made without any previous authority from him, subsequently approved and adopted it; and as it was for his benefit, such subsequent adoption might be presumed, the suit having been brought for his use and carried down to trial without any dissent on his part to it ever having been made or obtained.

The rule for a new trial is therefore discharged; and judgment rendered for the defendant upon the verdict.

Judgment for the defendant.

ACTION ON COVENANT UNDER SEAL must be in the name of the covenantees, though it may be for the use of others: Ardesco Oil Co. v. N. A. Mining and Oil Co., 66 Pa. St. 380, citing the principal case.

BELLEMIRE v. THE BANK OF THE UNITED STATES.

[4 WHARTON, 105.]

BANK INTRUSTED WITH THE APPARENT OWNERSHIP OF A NOTE FOR PURPOSES OF COLLECTION, stands on the ordinary footing of an agent, and is not liable to its principal if it acts in good faith, according to the regu lar and accustomed course of business, though not to the best advantage. BANK EXERCISES ORDINARY DILIGENCE, when it employs its own servant, with the usual instructions.

BANK IS NOT ANSWERABLE FOR THE NEGLECT OF A NOTARY employed by it, in the usual course of business, for the purpose of presentation and notice, of a note intrusted to it for collection.

AGENT ACTING GRATUITOUSLY, is liable for nothing less than gross negligence. NOTARY IS NOT BOUND TO KNOW THE PLACE OF RESIDENCE of parties on whom he is to call, and is not responsible for a mistake in leaving a notice at the wrong residence, when the mistake grows out of misinforma. tion with respect to the place of residence.

CASE against the Bank of the United States. Plaintiff being the holder of a note made by J. N. Goodrich, payable to and indorsed by Jacob Coats, handed it to Michael Gouiran and asked him to deposit it in the bank for collection. Mr. Gouiran accordingly deposited it with defendant. After bank hours, on the day of its maturity, it was handed in the usual manner to the bank notary. There had been a prior note made by and payable to the same party as the present note; and the former

note had taken the same course as the present one, except that Mr. Gouiran had deposited it with the Bank of Pennsylvania, and not with the defendant. The two banks employed the same notary. The clerk of this official, when he received the former note, presented it at the maker's store, and was unable to find him. He then called at Mr. Gouiran's store, where he found Mrs. Gouiran in attendance, He gave her the notice of non

payment, and inquired for the address of Mr. Coats. directed to a store which belonged to a Mr. Coats, who was the son of the party for whom the notice was intended. Mr. Gouiran, on returning, was informed by his wife of what had happened, and knew the address given by her was not correct. The first note was afterwards taken up, and the present note given instead. The notary's clerk, acting upon the information which he had before received, left the notice at the store of the son. The elder Coats avoided his liability as indorser on the ground that notice of dishonor was not given him; the maker proved insolvent; and Mr. Bellemire brought this action against the bank to recover damages accruing from its neglect to have notice of dishonor properly given. Judgment was given for the defendants. The plaintiff then sued out this writ of

error.

Mr. Gilpin and Mr. Sharswood, for the plaintiff.

Mr. Fisher and Mr. Cadwalader, for the defendant.

It

By Court, GIBSON, C. J. It has been ruled by this court, in conformity to precedents cited in The Mechanics' Bank v. Earp,' that a bank employed to transmit for collection, is bound to concern itself with the act of transmission alone; and that its correspondent becomes the agent for subsequent measures. is suggested, however, that a bank which has undertaken the whole business of collection, may be affected by other considerations; but though it be the holder by indorsement, there is nothing peculiar in its position. It is invested with the apparent ownership only to authorize it to present for payment; and standing, in all other respects on the ordinary footing of an agent, it is sufficient to exonerate it that it has acted in good faith and, though not to the best advantage, according to the regular and accustomed course of the business. Thus in Russel v. Hankey, 6 T. R. 12, a banker who had given up bills indorsed to him for collection, on receiving the acceptor's check, which was subsequently dishonored, was not charged with negligence because

1. 4 Rawle, 384.

the transaction was not an unusual one. The principle was carried out in circumstances less like the present, in Smith v. Cadogan,' 2 T. R. 188; Pitt v. Yalden, 2 Burr. 2061; and Moore v. Mourgue, Cowp. 480. Now a bank is compelled by the incorporeal nature of its essence, to act by the instrumentality of agents; and when it employs its own servant, with the usual instructions, it performs its implied promise to use ordinary diligence. I lay the servant's official character out of the case. The bank was bound to commit the business to a competent hand; and it is not alleged that the notary was not such. Had the plaintiff desired to have the services of a special agent, it would have been his business to furnish one. Omitting to do so, he consented to let the matter take its course; and the bank performed its duty by committing it to the person employed in its own concerns. Nor do I agree that a bank is answerable for the act of an instrument, which is not a part of its organic machinery, any more than a transmitting bank is answerable for the act of its correspondent. Though a hired agent is not only bound to a high degree of diligence in his own person, but, as was held in Lord North's case, 2 Dy. 161, responsible as a surety for those whom he chooses to employ; the agency in this instance, being purely gratuitous, is subject to a different rule. What the bank undertook to do, was to put the note into the ordinary channel of collection; and it performed its undertaking when, for the purposes of presentation and notice, it put it into the hands of its own notary.

Nor does there seem to have been any default even in him. Though the gratuitous acceptance of an agency is a consideration for an implied undertaking against misfeasance, it requires a valuable consideration to support an action for nonfeasance. It appears, however, from Elsey v. Gatewood, 5 T. R. 148,' that an omission to finish a business gratuitously begun, is a positive misfeasance: still, the responsibility of an unpaid agent is so far inferior in degree, that he is not bound for ordinary skill, nor liable for anything less than gross negligence. This is distinctly asserted in The Charitable Corporation v. Sutton, 2 Atk. 406, and Coggs v. Bernard, 2 Ld. Raym. 909, but more emphatically in Shiells v. Blackburne, 1 H. Bl. 161, where a merchant who had entered, for exportation, the goods of his correspondent together with his own, but both parcels by a wrong denomination, was not held liable for the seizure which ensued, because he had received no reward, and was not of a profession, as it was said,

1. Smith v. Cologan.

2. Elsee v. Gatward.