It appeared that on the 15th of May, 1882, an ox of the defendant was being driven from a live-stock market in Broad street, Stamford, along a public street called Ironmonger street, to the defendant's premises. Ironmonger street has a paved carriage road with a foot pavement on either side, and the plaintiff was the occupier of an ironmonger's shop in the street. The ox, after having gone for some distance down the paved carriage road of Ironmonger street, driven by the defendant's men, went for a short distance upon the foot pavement on the near or left hand side, and was driven therefrom by one of the drovers in charge on to the carriage road, and after continuing for a farther distance upon such carriage road, turned again on the pavement about twelve yards from the plaintiff's shop and continued upon the pavement until it came opposite the plaintiff's shop, when it passed through the open doorway into the shop, and did damage to goods therein to the amount claimed. The ox was as soon as possible after such entry and damage, driven by the defendant's men from the shop to the carriage road and to defendant's premises in another street, but they did not succeed in getting it out until about three-quarters of an hour from the time when it entered. No special act of negligence was proved on the part of the persons in charge of the ox, and there was no evidence that it was of a vicious or unruly nature, or that the defendant had any notice that there was any thing exceptional in its temper or character, or that it would be unsafe to drive it through the public streets in the ordinary and usual way. was proved that at the time the ox left the carriage way the second time, one of the two men of the defendant in charge of the animal was walking by its side, having his hand upon it, and that the other man was walking about three yards in the rear of it. The two men in charge proved that they drove it unaccom. panied by other cattle from the market, and they both declared that they did all they could under the circumstances to prevent it going on to the foot pavement and entering the open doorway of the plaintiff's shop, and they stated that the movement of the ox from the carriage-way on to the foot pavement was sudden and could not by any reasonable or available means have been prevented. It was alleged by the defcudant's witnesses, and not contradicted, that it was a usual thing for several oxen to be driven from the Stamford market in charge of two meu and sometimes one man. It was admitted that it is not customary to drive oxen with halters and that they would probably not go quietly if led by halters.

It

The County Court judge gave a verdict for the amount claimed, giving the defendant leave to appeal.

The question for the opinion of the court was whether, upon the facts, the plaintiff was entitled to the verdict.

LORD COLERIDGE, C. J. In this action the County Court judge has found as a fact that there was no negligence on the part of the drivers of the ox, or at all events he has not found that there was negligence, and as it lies on the plaintiff to make out his case, the charge of negligence, so far as it has any bearing on the matter, must be taken to have failed.

Now it is clear as a general rule, that the owner of cattle and sheep is bound to keep them from trespassing on his neighbor's land, and if they so trespass an action for damages may be brought against him, irrespective of whether the trespass was or was not the result of his negligence. It is also tolerably clear that where both parties are upon the highway, where each of them has a right to be, and one of them is injured by the trespass of an animal belonging to the other, he must, in order to maintain his action show that the trespass was owing to the negligence of the other or of his

servant. It is also clear that where a man is injured by a fierce or vicious animal belonging to another, that prima facie no action can be brought without proof that the owner of the animal knew of its mischievous tendencies.

In the present case the trespass, if there was any, was committed off the highway upon the plaintiff's close which immediately adjoined the highway, by an animal belonging to the defendant, which was being driven on the highway. No negligence is proved, and it would seem to follow from the law which I have previously stated, that the defendant is not respousible. We find it established as an exception upon the general law of trespass, that where cattle trespass upon unfenced land immediately adjoining a highway the owner of the land must bear the loss. This is shown by the judgment of Bramwell, B., in Goodwyn v. Cheveley, 28 L. J. (Ex.) 298. That learned judge goes into the question whether a reasonable time had or had not elapsed for the removal of cattle who had trespassed under similar circumstances, and this question would not have arisen if a mere momentary trespass bad been by itself actionable. There is also the statement of Blackburn, J., in Fletcher v. Rylands, Law Rep. (1 Ex.) 265, that persons who have property adjacent to a highway may be taken to hold it subject to the risk of injury from inevitable risk. I could not therefore, if I were disposed, question law laid down by such eminent authorities, but I quite concur in their view, and I see no distinction for this purpose between a field in the country and a street in a market town. The accident to the plaintiff was one of the necessary and inevitable risks which arise from driving cattle in the streets in or out of town. No cause of action is shown, and the judgment of the County Court judge must be reversed.

STEPHEN, J. I am of the same opinion. As I understand the law, when a man has placed his cattle in a field it is his duty to keep them from trespassing on the land of his neighbors, but while he is driving them upon a highway he is not responsible, without proof of negligence on his part, for any injury they may do upon the highway, for they cannot then be said to be trespassing. The case of Goodwyn v. Cheveley, 28 L. J. (Ex.) 298, seems to me to establish a further exception that the owner of the cattle is not responsible without negligence when the injury is done to property adjoining the highway, an exception which is absolutely necessary for the conduct of the common affairs of life. We have been invited to limit this exception to the case of high roads adjoining fields in the country, but I am very unwilling to multiply exceptions, and I can see no solid distinction between the case of an animal straying into a field which is unfenced or into an open shop in a town. I think the rule to be gathered from Goodwyn v. Cheveley, 28 L. J. (Ex.) 298, a very reasonable one, for otherwise I cannot see how we could limit the liability of the owner of cattle for any sort of injury which could be traced to them.

Judgment for the defendant.

MIS-DELIVERY OF GOODS BY CARRIER.

U.S. DISTRICT COURT, S. D. N. Y., MARCH 20, 1883.

THE DREW.

A person representing himself as J. K., doing business in Albany, purchased goods, which he directed to be shipped to him at Albany, from a merchant in New York who supposed that he was dealing with a merchant of repute in Albany bearing the name given. The goods were shipped by carrier to Albany directed to "J. K., Albany,' but no street number was given. The carrier tendered the goods

to the merchant of repute in Albany, but he refused to receive them, saying they were not for him. The purchaser of the goods who had shortly before opened a store in Albany demanded the goods, showing a bill for them from the shipper, and the carrier delivered them to him. Held, that the carrier was not liable to the shipper of the goods for a mis-delivery even though the person to whom they were delivered was a swindler.

LIBEL in admiralty to recover value of goods al

leged to have been mis-delivered.

states the case.

Kurzman & Yeaman, for libellants.

W. P. Prentice, for claimant.

The opinion

BROWN, J. The libel in this case was filed to recover $179, the value of certain goods sold by the libellants to J. Kastendike, Albany, and shipped to his address by the steamboat Drew, May 3, 1880, on the ground that they were delivered in Albany to the wrong per

son.

A few days previous to the shipment a man calling himself J. Kastendike, of Albany, called at the libellants' store in New York, desiring to purchase goods. He selected what he wanted, and left his references with the libellants. Inquiry was made of one of the mercantile agencies, and the report being satisfactory, the goods were shipped in two boxes marked "J. Kastendike," or "Jos. Kastendike, Albany." There was a tradesman by the name of John Kastendike in Pearl street, Albany, who was well known there, and of good repute, and responsible, though not known to the libellants, and the replies to the libellants referred to that tradesman. The evidence also shows that there was another man who had a store in Central avenue, Albany, with the sign "J. Kastendike," where one of the witnesses for the libellants testified that for two or three weeks previous he had at various times delivered goods forwarded by the American Express company.

On the arrival of the Drew at Albany, on the morning of May 4, the goods were sent from the steamer to the Pearl street merchant, who had left the day before for New York. His wife and son, knowing, as they testify, that the goods could not be for them, refused to receive the boxes, and they were taken back to the steamer. On the same day a truckman employed by the Central avenue man applied to the boat, exhibited a bill for them, received the goods, receipted for them, and took them to the store at Central avenue, and delivered them there, with the bill, to the same man from whom he received the bill. The libellants claim that this was a delivery to the wrong person, for which the carrier is responsible.

One of the libellants testified that the two boxes were addressed" J. Kastendike, Pearl St., Albany;" but his testimony, as I understand it, is based upon his presumption from their usual course of business, and not from observing the direction on the boxes themselves. The shipping clerk who put up the goods and directed them was not produced as a witness, though without any fault of the libellants. The only other evidence that the goods were addressed to Pearl street is a receipt for them, signed by the proper agent of the Drew, dated May 3. This receipt now contains the words "Pearl St," as a part of the address. About two weeks after shipment, when the libellants first apprehended any trouble in regard to the payment for the goods, it was presented to the freight agent of the Drew, and two witnesses who then saw it testify that the words "Pearl st." in the receipt were in different colored ink, and presented a fresh appearance, as though the ink was scarcely dry, so as to excite remark at the time. The face of the receipt itself suggests strong suspicion that it was not written at the time the rest of the address was written. The words

"J. Kastendike, Albany, N. Y.," are written underneath each other, in a free, easy hand, on three equidistant lines. The words "Pearl st." are crowded in between the first two lines, and between the ends of the words "Kastendike" and "Albany," and they are written in a constrained, cramped hand, where the paper is roughened and the letters somewhat blurred.

Opposed to this evidence that the goods were addressed to Pearl street, there is the positive evidence of the carman who delivered them at the Central' avenue store, and the wife of the Pearl street merchant who rejected the boxes, both of whom testify that the address, "Pearl st.," was not on the boxes. Two witnesses from the steamer testify to the same thing; and their evidence is somewhat corroborated by the entry in the steamer's manifest of May 3, and the delivery-book of May 4, in which the direction is entered without any street address. The weight of evidence, notwithstanding the receipt, which cannot stand as an unimpeached voucher, is in my opinion, altogether to the effect that the goods were addressed to Albany only, without the designation of any

street.

I am not entirely satisfied even that the purchaser gave the libellant his address as at Pearl street, although that fact is testified to by one of the libellants, near the close of his testimony. On the direct examination he stated that the references of whom he inquired "located" him in Pearl street. There is no doubt therefore but that the libellants, when they shipped the goods, supposed the purchaser was the Pearl street man; but no card or memorandum from the purchaser, no entry by the libellants made at the time, is produced, showing that the address of Pearl street was given. The bill of the goods forwarded by them does not contain it; and the reply of the mercantile agency, which is in writing and produced, does not so state, as the libellants were understood at first to testify. The envelope containing the bill returned from the Pearl street man is not produced; its return from the Pearl street store is no evidence that it was specifically addressed there, since it would naturally have gone to him, as an old and well-known merchant, without such specific address.

But I do not find it necessary to pass upon this question, since the other undisputed facts in the case, coupled with the conclusion of fact that I have stated above, namely, that the goods were addressed only to J. Kastendike, Albany, without the designation of the street,are sufficient to exempt the steamer from liability. That the purchaser of the goods was a swindler may be assumed; but there is no evidence, and it cannot be taken for granted, that his name was not J. Kastendike. He evidently was dealing in Albany under that name, and there being no evidence to the contrary, it must be assumed that such was his name. The case is therefore one of delivery by the carrier to the very man who had bought the goods in person; a delivery at the purchaser's store in the city where the boxes were addressed, without any intimation by the shipper of any intention that they should be delivered to any different person or at any different place. This would seem to be a perfect fulfillment of a carrier's obligation.

Counsel for the libellants contend that several authorities in this country show that the consignee must "identify himself as the real man of that name, and as the person entitled to the goods." If this doctrine were applied in the sense claimed, it would make carriers insurers not only against frauds upon themselves, but insurers against frauds upon the consignor, of which they had no knowledge or grounds of suspicion. There is no question that the carrier must deliver to the person addressed, and must answer for the consequences of any mistakes, fraud or forgeries practiced

upon himself. Hutch. Carr., §§ 344, 350. But the person addressed in this case was the man to whom in fact the delivery was made, although the seller erroneously supposed him to be the Pearl street man There are several cases where the purchaser has per sonated some fictitious person or firm to whom the goods were addressed, in which the carrier has been held liable for delivering them to a person other than the person or firm addressed, or at a wholly different place from that designated. Price v. Oswego R. Co., 50 N. Y. 213; Winslow v. Vermont, etc., R. Co., 42 Vt. 700; American Exp. Co. v. Fletcher, 25 Ind. 492; American Exp. Co. v. Stack, 29 id. 27; Stephenson v. Hart, 4 Bing. 476; Duff v. Budd, 3 Brod. & B. 177. An examination of these cases shows that in every one of them the court held the carrier liable only on account of some negligence on his part. See also Zinn v. New Jersey S. Co., 49 N. Y. 442.

Where the name of a consignee is a fictitious name, there is negligence in delivering the goods, because proof of identity should be required before delivery, and the requirement of that proof would disclose the fraud and prevent the delivery of the goods. In the Indiana cases the want of ordinary diligence in ascertaining the party intended is the ground of decision; and in the two English cases cited it is the same. But in the present case there is no fictitious name, nor any question about the identity of the person to whom delivery was made as to the very person who had bought the goods and who answered to all that was designated in the address on the boxes; and the mere fact that the seller supposed the purchaser was the Pearl street man, when the address in no way indicated him rather than the other, cannot charge the carrier with negligence in making delivery to the real purchaser after the other man had refused them. I fail to find any case in which a carrier has been held liable in respect to a fraud practiced upon the consignor, except where there was plain dereliction of duty in the carrier, or such suspicious circumstances brought to his knowledge as charge him with negligence in making the delivery.

This subject was carefully considered in the case of McKean v. McIvor, L. R., 6 Exch. 36. The court there say:

"If the carrier deliver at the place indicated, or does what is equivalent to delivery, then he does all he is bound to do. He obeys the sender's directions, and is guilty of no wrong. To make him liable there must be some fault, and when he has carried out the directions of

the sender, the mere fact that he has delivered the goods to some person to whom the sender did not intend the delivery to be made is not sufficient to support he allegation that he has converted them."

There was nothing upon this shipment to indicate to the carrier that the goods were designed for the Pearl street merchant rather than the one who had his store in Central avenue. In the case of The Huntress, 2 Ware, 89, Ware, J., says:

"It is certain also that the goods ought to be plainly and legibly marked, so that the owner or consignee may be easily known; and if in consequence of omitting to do it, without any fault on the part of the carrier, the owner sustains a loss, or any inconvenience, he must impute this to his own fault." Robinson v. Chittenden, 69 N. Y. 525; Roberts v. Chittenden, 88 id. 33.

In like manner, where there are two persons in busi

ness of the same name in the same city, and the sender of the goods does not distinguish which is intended by the street number, and where the goods on tender

have been rejected by the one, no fault can be imputed to the carrier in making delivery to the other, who on presentment of a bill for them appears to be the vendee. The fault is in the shipper in not making the

directions specific. Conceding that the purchaser of these goods was a swindler, the carrier had no knowledge of it, and there was nothing to charge him with knowledge or suspicion of it. Carriers by water are

not bound to seek the consignee on land, nor to institute inquiries at his store, or of the public, concerning his circumstances or previous history or probable credit. Zinn v. New Jersey S. Co., 49 N. Y. 442; Witbeck v. Holland, 45 id. 13.

The mere fact that the purchaser had occupied his store only some two or three weeks, so far as the evidonce shows, although it may have been longer, even if it had been known to the carrier, was not in any way incompatible with his being the bona fide purchaser of the goods, and the person to whom delivery was intended by the vendor to be made. The goods having been shipped without any bills of lading, no documentary evidence of title was required. It does not appear whether the bill for the goods presented was genuine or forged. Had the goods been addressed to Pearl street it would have been negligence and a violation of the sender's orders to deliver them to any different person elsewhere. As they were not so addressed, when they were rejected there, the carriers were warranted in the inference that they were intended for the Central avenue man of the same name, who was the purchaser in fact. So far as I can perceive, the carrier is not chargeable with knowledge of any suspicious circumstances, and must therefore be absolved from liability.

Judgment for the claimants, with costs.

OBLIGATION PAYABLE AT BANK NOT DIS-
CHARGED BY DEPOSIT IN BANK
FOR PAYMENT.

NEW JERSEY COURT OF ERRORS AND APPEALS. NOVEMBER TERM 1882.*

ADAMS V. HACKENSACK IMPROVEMENT COMMISSION.* Bonds issued by a municipal corporation were made payable at a bank named therein and the corporation deposited money with the bank to pay the bonds. When the bonds became due the bank holding the money deposited for payment was solvent. Before the bonds were presented for payment it became insolvent. Held, that the bank was in no sense the agent of the bondholder and that the corporation was still llable on the bonds.

THE plaintiff in error brought suit on three bonds issued by the defendant in error, the obligation reading thus: "Know all men by these presents, that "The Hackensack Improvement Commission "acknowledges itself indebted for value received to Charlotte Ann Adams or assigns, in the sum of five hundred dollars, lawful money of the United States of America, to be paid to the said Charlotte Ann Adams or assigns, at the Bank of Bergen County, at Hackensack, N. J., in five years from the date thereof, with interest thereon at the rate of seven per cent per annum, payable semi-annually on presentation and surrender of the coupons hereto annexed. This bond is issued under and by virtue of an act of the legislature of the State of New Jersey," etc.

The case was tried on the following statement of facts:

It is admitted that said bonds were regularly and legally issued, and were valid obligations of the de

fendaut.

Previous to the 1st day of November, 1880, the deCounty a sum of money sufficient to pay these bonds, fendant placed on deposit in the said Bank of Bergen

as well as other bonds of the defendant maturing ou *Appearing in 15 Vroom's (44 N. J. Law), Reports.

upon whether I am obliged to call there." This case I consider in point, for it was decided before the decision of the House of Lords, in Rowe v. Young; and the King's Bench always held that an acceptance payable at a particular place bound the acceptor to pay generally and universally, and that there was no occasion to make a demand at the particular place in order to found a right of action on the acceptance. Fenton v. Goundry, 13 East 459, 469. Turner v. Hayden was decided in 1825, and after 1 and 2 Geo. IV, ch. 78, was passed. It was an action against the acceptors of two bills of exchange which were accepted, payable at Marsh & Co.'s, Berners street, and becoming due, respectively, on the 21st and 31st of August. Marsh & Co. stopped payment on the 13th of September. The bills were never presented at their banking-house. At the time the bills became due, and thenceforth until the failure of the bankers, the acceptors had a balance in the hands of the bankers, exceeding the amount of the bills. The acceptors contended that they were not liable, as they had sustained a loss exceeding the amount of the bills in consequence of the laches of the plaintiff in not presenting them within a reasonable time after they became due. The Lord Chief Justice Abbott overruled the defense and directed a verdict for the plaintiff, and his ruling was sustained in banc, on the ground that the holder was not bound to present the bills at the place where they were payable, and therefore was not guilty of laches in omitting to do so.

The cases in the American courts in which funds deposited by the acceptor or maker with the banker at whose place the paper was payable, to meet it at maturity, have been lost by the failure of the banker-the bill or note not having been presented for paymentare few, though the dicta on that subject are quite numerous. In Lazier v. Horan, 55 Iowa, 75, it was held that where the maker of a note payable at a bank, before the note became due left with the bank the money to pay it, and the bank, sometime after the maturity of the note, failed-the note not having been presented for payment-the deposit was a complete defense to the note. This case was decided entirely on the authority of the passage from Story on Promissory Notes, 229, above referred to. No cases were cited in support of the proposition announced, nor was the attention of the court called to Sebag v. Abitbol, or Turner v. Hayden. Indeed, the learned judge who prepared the opinion conceded that no authority was cited to sustain the views expressed by Mr. Justice Story, and he added that no case announcing the opposite view had been cited.

In Wood v. Merchants' Saving Co., 44 Ill. 267, the action was against the maker of a note payable at the banking-house of J. G. Conrad, Chicago. The note became due on the 29th of September, 1864, and at that time the maker of the note had on deposit with the banker funds sufficient to pay the note. The note was presented on the day it was due, and marked good by the teller, and takeu from the bank without the money. On the 30th of September the banker failed, the money standing to the maker's credit not having been withdrawn. The court held the maker liable on the note. On the point for which this case is referred to, the court held that the making of a note payable at a bank did not amount to an agreement that the maker might deposit the amount of the note in the bank, and thus discharge his obligation and cast the risk upon the holder.

Ward v. Smith, 9 Wall. 447, is very much in point. The suit was on three bonds, dated August 22, 1860, payable in six, twelve and eighteen months, at the Farmers' Bank of Virginia. The obligee deposited with the bank one bond for collection, and retained the others in his possession. The obligor made a deposit with the bank to the credit of the obligee, in

notes of different banks in Virginia, the nominal amount of which exceeded the balance due on the bond left with the bank. The court held that with respect to the two bonds that were not in the bank, the bank was not the agent of the obligee; that in receiving the money the bank was agent of the obligor; that the obligor, by depositing the money to the credit of the obligee, could not make the bank the agent of the latter, and that the loss arising from the subsequent depreciation of the notes must be adjusted between the bank and the depositor, and could not fall upon the holder of the bonds.

Williamsport Gas Co. v. Pinkerton, 95 Penn. St. 62, is a case directly in poitit. There the action was upon a coupon for interest on a bond given by a corporation, and payable at the banking-house of Kirk, McVeigh & Co., West Chester, who were subsequently incorporated under the name of the Bank of Brandywine. The coupon was for interest due on the 1st of December, 1875. On the 29th of November, 1875, the gas company remitted to the banking-house the funds necessary to pay the interest coming due on the 1st of December, which were credited ou the books of the bank in the

name of " Interest, Williamsport Gas Loan." The bank paid all coupons presented up to December 22, 1875, and on that day suspended payment, with a balance of the money so deposited still in hand, more than sufficient to pay the plaintiff's coupon. The plaintiff's coupon was never presented at the bank. The court held that there was no obligation on the holder of the coupon to present the same and demand payment of it within a reasonable time; that the bankers at whose place it was made payable were the agents of the obligors, and that the holder of the coupon was not responsible for the loss, and judgment was given in his favor.

I think those cases which affirm the continuing liability of the maker, acceptor or obligor on paper made payable at a banker's where the debtor had provided funds for payment at maturity, which the holder might have received if he had demanded payment when due, and which were lost by the subsequent failure of the banker, were correctly decided. Emancipated from the doctrine of Rowe v. Young, that the contract to pay at a particular place is a conditional contract, the question becomes simply one of agency. As the custodian of the money wherewith to pay, whose agent is the banker?

The contract of the maker, acceptor or obligor is to pay the holder of the paper, and the place for payment is designated simply for the convenience of both parties. Making a bill or note payable at a banker's, is authority to the banker to apply the funds of the acceptor or maker on deposit to the payment of the paper. 1 Daniel Neg. Inst. 326 a. If maturing paper be left with the banker for collection, he becomes the agent of the holder to receive payment; but unless the banker is made the holder's agent by a deposit of the paper with him for collection, he has no authority to act for the holder. The naming of a bank iu a promissory note as the place of payment does not make the banking association an agent for the collection of the note or the receipt of the money. No power, authority or duty is thereby conferred upon the banker in reference to the note; and the debtor cannot make the banker the agent of the holder by simply depositing with him the funds to pay it with. Unless the banker has been made the agent of the holder by the indorsement of the paper or the deposit of it for collection, any money which the banker receives to apply in payment of it will be deemed to have been taken by him as the agent of the payor. 1 Daniel Neg. Inst. 326; Hills v. Place, 48 N. Y. 520. Such a deposit, without some act of appropriation by the banker, does not create any privity of contract as between the banker