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Opinion of the Court.

That the contract entered into by the bank was not a mere gratuitous bailment.. . . Third. That the original contract of bailment being valid and binding, the obligation of the bank for the safe custody of the deposit did not cease when the plaintiff's debt had been paid. Fourth. That the defendant was responsible if the bonds were stolen in consequence of its failure to exercise such care and diligence in their custody and keeping as, at the time, banks of common prudence in like situation and business usually bestowed in the custody and keeping of similar property belonging to themselves; that the care and diligence ought to have been such as was properly adapted to the preservation and protection of the property, and should have been proportioned to the consequence likely to arise from any improvidence on the part of the defendant. Fifth. That the proper measure of damages was the market value of the bonds at the time they were stolen. Whether due care and diligence have been exercised by a bank in the custody of bonds deposited with it as collateral security, is a question of fact exclusively within the province of the jury to decide."

In the case from New York, Cutting v. Marlor, 78 N. Y. 454, it appeared that the defendant, as collateral security for a loan made to him by a bank, delivered to it certain securities, which were taken and converted by the president to his own use. In an action by the receiver of the bank to recover the amount loaned it was found that the trustees of the bank left the entire management of its business with the president and an assistant, styled manager; that they received the statements of the president without question or examination; that they had no meetings pursuant to the by-laws, and made no examination of the securities, and exercised no care or diligence in regard to them; also, that the president had been in the habit of abstracting securities and using them in his private business, most of them being returned when called for; and that the manager, who had knowledge of this habit, did not take any means to prevent it, nor did he notify the trustees. It was held that the bank was chargeable with negligence, and that the defendant was entitled to counter

Syllabus.

claim the value of the securities; that the bailment was for the mutual benefit of the parties; that the bailee was bound, for the protection of the property, to exercise ordinary care, and was liable for negligence affecting the safety of the collaterals, distinguishing the case from the liability of a gratuitous bailee, which arises only where there has been gross negligence on his part.

It follows, therefore, that whether we regard the defendants as gratuitous bailees in the first instance, or as afterwards. becoming bailees for the mutual benefit of both parties, they were liable for the loss of the bonds deposited with them. And the measure of the recovery was the value of the bonds at the time they were stolen.

Judgment affirmed.

GREEN v. ELBERT.

ERROR TO THE CIRCUIT COURT OF THE
DISTRICT OF COLORADO.

UNITED STATES FOR THE

No. 1099. Submitted December 15, 1890.- Decided January 5, 1891.

The transcript of the record of the court below may be filed at any day during the term succeeding the taking the appeal or bringing the writ of error, if the appellee or defendant in error has not in the meantime had the cause docketed and dismissed; but this cannot be done after the expiration of that term, except on application to the court, where a remedy may be found if the applicant was prevented from obtaining the transcript by fraud or contumacy, and is not guilty of laches.

When a return is made and the transcript deposited seasonably in the clerk's office, jurisdiction is not lost by not docketing the case before the lapse of the term; but it may still be docketed if in the judgment of the court it is a case to justify it in exercising its discretion to that effect.

The judgment in the court below in this case was entered July 27, 1887. The writ of error was dated October 3, 1887. It was filed that day in the court below, and was returnable here to October term, 1887, which closed May 14, 1888. The transcript reached the clerk May 10, 1888, but the fee required by the rules was not paid to the clerk. On January 13, 1890, the fee being paid, the transcript was filed and the cause was docketed, and the appearance of the plaintiff in error, who was a member of the bar of this court, was entered. On the 17th of November, 1890, the

Statement of the Case.

defendant in error moved to dismiss the writ of error on the ground of failure to file the transcript or docket the cause within the prescribed period, and notified the plaintiff in error that it would be submitted December 15. Held,

(1) That the defendant in error was not bound to have the case docketed and dismissed if he did not choose to do so;

(2) That the motion to dismiss for this cause could be made at any time before hearing, or the court could avail itself of the objection sua sponte;

(3) That, as the plaintiff in error was a member of this bar, and notified the clerk in transmitting the transcript that the case was one of his own, the appearance was properly entered;

(4) That the plaintiff in error, being such a member, was bound to know the rules of this court with regard to giving security or making

a deposit with the clerk as a condition precedent te the ling of the record and docketing of the case;

(5) That the laches of the plaintiff in error were too gross to be passed over, and that the writ of error must be dismissed.

It is the duty of this court to keep its records clean and free from scandal; and in accordance therewith the court orders the brief of the plaintiff in error to be stricken from the files.

On the 20th day of January, 1887, Thomas A. Green brought his action at law in the Circuit Court of the United States for the District of Colorado against Samuel H. Elbert, William E. Beck, Joseph C. Helm, Merrick A. Rogers, Lucius P. Marsh and J. Jay Joslin, claiming damages in the sum of $50,000. April 18th, 1887, he filed his amended complaint in said cause, alleging a conspiracy on the part of defendants Rogers, Marsh and Joslin to bring about a disbarment of plaintiff for filing a bill in equity, in the discharge of his duties as solicitor of one Mrs. Newton and her husband, against Joslin, making certain charges against defendants Rogers and Marsh; and that the defendants Elbert, Beck and Helm, who were at the time judges of the Supreme Court of Colorado, confederated and conspired with defendants Rogers, Marsh and Joslin, to carry out and consummate the original conspiracy, and entered judgment disbarring the plaintiff accordingly.

The complaint purported to be brought and was claimed to be sustainable under sections 1979, 1980 and 1981 of the Revised Statutes, in connection with section 5407, (Rev. Stat. 2d ed., pp. 347, 348, 1047).

Statement of the Case.

Demurrers were filed on behalf of defendants Elbert, Beck and Helm, and, also, of defendants Rogers, Marsh and Joslin, which, upon argument, were sustained by the court, and judgment entered for the defendants, July 27, 1887.

On the third of October, 1887, plaintiff filed his bond, which was duly approved, and a writ of error was allowed and issued, and on the same day he filed a stipulation that the record might be filed in this court, and the cause be docketed at any time during the October term, 1887, of the court. Citation, returnable to October term, 1887, was taken out and served. On the 20th of April, 1888, the plaintiff filed in the Circuit Court in said cause his præcipe for transcript of record, which was accordingly made out, as directed, and certified by the clerk of that court May 5, 1888. On that day plaintiff wrote to the clerk of this court, as follows: "I herewith send you a record in a case of my own. Will send you a docket fee and a stipulation to submit under Rule 20 in a few days. Please send me two blanks for entering the appearance of attorneys for both parties." This letter and the transcript reached the clerk May 10, 1888, and he replied: "Yours of the 5th inst., also transcript of record in case of Green v. Elbert et al., duly received. I enclose two blank orders for appearance as requested. I notice what you say as to furnishing deposit on account of costs and sending stipulation to submit case under the 20th Rule." Nothing further appears to have been done in the premises until, on January 7, 1890, plaintiff in error wrote the clerk as follows: "I find on looking over my books at New Year's that I had forgotten to send you a docket fee in the case of Thomas A. Green v. Samuel Elbert, William E. Beck, Joseph C. Helm, Merrick A. Rogers, Lucius P. Marsh and J. Jay Joslin. This record was sent up from the U. S. Circuit Court for the District of Colorado, a year or more ago, on writ of error. If you have not docketed the case please do so at once, and inform me by return mail. I herewith send you draft on New York for $25." Upon the receipt of this letter, January 13, 1890, the transcript of record was filed, and the clerk wrote on the 15th: "Yours of the 7th inst., enclosing draft on N. Y. for $25, on account of deposit in case of Green

Statement of the Case.

v. Elbert et al., duly received, and I have docketed the case No. 1541 for Oct. term, 1889, entering your appearance of counsel for pl'ff in error." To this plaintiff in error replied January 20: "Yours of the 15th inst. at hand. I have signed and herewith return my appearance in the case of Thomas A. Green v. Samuel E. Elbert et al., No. 1541."

November 17, 1890, defendants in error filed a motion to dismiss, with which was united a motion to affirm, and a brief in support thereof, and gave notice to plaintiff in error that such motion would be submitted on the 15th day of December. On the 13th of December a lengthy affidavit of plaintiff in error was filed in the cause, stating that plaintiff "is now and has been for many years past a member of the bar of the United States Circuit Court for the District of Colorado, and also a member of the bar of the Supreme Court of the United States;" that he had been attending to this suit in the Circuit Court and in the Supreme Court in person; that on or about the 5th day of May, 1887, [1888] he caused the transcript of the record, the writ of error, citation and bond, duly certified, to be forwarded to the clerk of the Supreme Court in accordance with a stipulation that the record and writs might be returned at any time during the October term, 1887, of the Supreme Court; and, "as he now remembers and believes, that he requested the clerk of the Supreme Court, at the city of Washington, to file said record as soon as the same should reach him; and affiant further states that he has not now any remembrance or recollection of having neglected anything at all on his part which was necessary for him to do in order to have said record filed in the clerk's office of the Supreme Court of the United States as soon as the same reached the said clerk in the city of Washington;" that he resides more than two thousand miles from the capital, and never has been and is not now familiar with the rules and customs of the clerk and with the manner in which business is transacted by him in his office, and that if he did not comply with all the requirements of the clerk with regard to the filing of the record, it was because he did not understand the same; and that he never has at any time knowingly and intentionally neglected anything

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