gress has authority to pass the necessary laws to carry into effect the judicial power of the United States. 3. That this judicial power extends to "all cases in law and equity," whether civil or criminal, "arising under the Constitution, the laws of the United States, and treaties made or which shall be made under their authority." 4. That such cases arise whenever a correct decision in regard to them depends upon the construction of the Constitution or a law or treaty of the United States. 5. That Congress, by a series of acts, commencing with the Judiciary Act of 1789, and providing for the removal of cases from State to Federal courts, has expressed its legislative sense on this subject. 6. That the Supreme Court of the United States has, in several instances, affirmed the power of Congress to authorize such removals. 7. That these removals constitute no invasion of State rights, as they exist under our dual system of government; but on the contrary, that a denial of the right of the National Government to remove, to take charge of and try any case 'arising under the Constitution or laws of the United States" would be "a denial of the conceded sovereignty of that government over a subject expressly committed to it."

66

As to the question "whether, if the case be removable from the State court, there is any mode and manner of proceeding prescribed by the act of Congress," | Mr. Justice Strong said that there was no difficulty. "The Circuit Courts of the United States have all the appliances which are needed for the trial of any criminal case. They adopt and apply the laws of the State in civil cases, and there is no more difficulty in administering the State's criminal law. They are not foreign courts."

8. The case of Strauder v. West Virginia, 303, camo before the court by a writ of error. Strauder, who is a colored person, was indicted, convicted, and sentenced for murder, in a State court of West Virginia, and the judgment was confirmed by the Supreme Court of that State. He applied, before trial, to have his case removed to the proper Federal court, because the law of that State excluded colored persons from serving as jurors, claiming the right to removal under section 641 of the Revised Statutes of the United States. His petition was denied by the State court, and the cause was forced to trial.

The questions to be determined in this case were whether "every citizen of the United States has a right to a trial of an indictment against him by a jury selected and impanelled without discrimination against his race or color, because of race or color," and whether, "if he has such a right, and is denied its enjoyment by the State in which he is indicted," he may 66 cause the case to be removed into the Circuit Court of the United States." Both of these questions were answered in the affirmative; the first, mainly in the light of that clause of the Fourteenth Amendment which forbids a State to "deny to any person within its jurisdiction the equal protection of the laws," and which was held to be inconsistent with the jury law of West Virginia; the second, in view of section 641 of the Revised Statutes of the United States, providing for the removal of cases when this right is denied by any State, and also in view of sections 1977 and 1978 of the same Statutes, enumerating somo of the rights and immunities guaranteed by the Constitution, among which is "the full and equal benefit of all laws and proceedings for the security of person and property as is enjoyed by white citizens."

The jury law of West Virginia, in its exclusion of colored persons from juries, because of their color, was held to be unconstitutional, and this, of course, vitiated and rendered illegal the whole proceeding against Strauder.

9. The case of Virginia v. Rives, 313, was a petition

for a mandamus to compel Judge Rives, a United States judge in Virginia, who had ordered the removal of the cases of two colored men to a Federal court, and had, by writ of habeas corpus cum causa, placed them in the custody of the United States marshal, to rescind the order and restore the prisoners to the proper State authority. The grand jury that indicted the prisoners, as also the jury summoned to try them, was composed entirely of the white race. After the trial had been entered upon, they petitioned the court for a mixed jury, composed in part of persons of their own race. This petition was rejected. They afterward applied to Judge Rives to have their cases removed to the Circuit Court of the United States for trial; and he granted the application, assuming to act under the authority of section 641 of the Revised Statutes of the United States. There was nothing in the Constitution or laws of Virginia excluding colored men from serving as jurors.

Such being tho material facts, the question before the Supreme Court was whether, upon the showing of the petition for removal in these cases, Judge Rives had, under section 641 of the Revised Statutes, authority to order such removal. This question was answered in the negative, and a mandamus was granted for the restoration of the prisoners to the State authority.

The controlling reason for this answer, 3 stated by Mr. Justice Strong, is the fact that to such a case — that is, a judicial infraction of the constitutional inhibitions, after trial or final hearing has commencedsection 641 has no applicability." The section "was not intended to reach such cases. It left them to the revisory power of the higher courts of the State, and ultimately to the review of this court." There bing nothing in the Constitution or laws of Virginia to exclude colored persons, because of their color, from serving on juries, tho proper remedy, in tho event of such judicial infraction in the process of trial, which could exist and be known only after the trial was in actual progress, is not a removal of the case to a Federal court, for which section 641 gives no authority, but an appeal to the higher courts of the State, and if the infraction be not thus corrected, then a review of the judgment by the Supreme Court or the United States by a writ of error.

Moreover, the right secured by the Fourteenth Amendment is "that, in the selection of jurors to pass upon tho life, liberty or property" of a colored man, "there shall be no exclusion of his race, and no discrimination against them because of their color." This does not necessarily imply that the jury must in every such case bo composed of colored persons, or that a part of the jury should be of this class. **A mixed jury in a particular casc," said Mr. Justice Strong, "is not essential to the equal protection of the laws, and the right to it is not given by any law of Virginia, or by any Federal Statute. It is not, therefore, guaranteed by the Fourteenth Amendment, or within the purview of section 641" of the Revised Statutes of the United States. "The petition for a removal stated no facts that brought the case within the provisions of this section [641], and, consequently, no jurisdiction of the case was acquired by the Circuit Court of the United States."

10. The case of Ex parte Virginia, 339, was that of a petition from J. D. Coles, a judge of a county court of Virginia, who had been indicted in a United States District Court, and was under arrest, asking for a writ of habeas corpus and a writ of certiorari to bring up the record of the District Court, and of a similar petition from the State of Virginia, both of which petitions were regarded as presenting one case. offense set forth in the indictment against Judge Coles was that, being charged by law with the duty of select

The

ing grand and petit jurors, he had excluded or failed to select any colored citizens as such jurors, and that the ground thereof was their race or color.

The Supreme Court, after affirming its own jurisdiction in the premises, proceeded to consider the merits of the case. Mr. Justice Strong, in stating the opinion of the court, remarked that the indictment and bench-warrant rest upon the Act of Congress of March 1st, 1875, the fourth section of which declares: "That no citizen possessing all other qualifications which are or may be prescribed by law shall be disqualified for service as grand or petit juror in any court of the United States, or of any State, on account of race, color, or previous condition of servitude; and any officer or other person charged with any duty in the selection or summoning of jurors who shall exclude or fail to summon any citizen for the cause aforesaid shall, on conviction thereof, be deemed guilty of a misdemeanor, and shall be fined not more than five thousand dollars." 18 U. S. Stat. at Large, 335. The validity of this statute rests upon the Fourteenth Amendment, which declares that no State shall "deny to any person within its jurisdiction the equal protection of the laws," and that "Congress shall have power to enforce by appropriate legislation the provisions of this article." The purpose of the amendment was to put the colored race, as to civil rights, on a "perfect equality with all other persons within the jurisdiction of the States," and this includes "an impartial jury trial by jurors indifferently selected or chosen without discrimination against such jurors because of their color." Congress has power, by appropriate legislation, to make this purpose effective."

"Such legislation," said Mr. Justice Strong, "must act upon persons, not upon the abstract thing denominated a State, but upon the persons who are the agents of the State in the denial of the rights which are intended to be secured. Such is the Act of March 1st, 1875, and we think it was fully authorized by the Constitution." The fact that the person upon whom the law acts holds an office under a State, and claims to act for the State, does not relieve him "from obligation to obey the Constitution of the United States, or

flicts of opinion which have existed in regard to them. The country now knows what the highest judicial tribunal of the land thinks in respect to these questions. Its exposition of law is alike final and conclusive.

DEGREE OF CARE REQUIRED FROM TRUSTEES OF SAVINGS BANKS.

NEW YORK COURT OF APPEALS, SEPTEMBER 21, 1880.

HUN, Receiver, v. CARY.

The trustees of a savings bank are bound to exercise, in the management of the affairs of the bank, ordinary care and prudence; the same degree of care and prudence that men prompted by self-interest generally exercise in their own affairs, and it is a breach of duty in trustees not to bestow such care and prudence. The trustees cannot set up as a defense for neglect, that they did not possess ordinary skill and judgment, as they by accepting the position of trustees undertake that they possess such a degree of skill and judgment.

A savings bank was incorporated in 1867, and up to 1875, when a receiver was appointed, did business in leased premises. The deposits in the bank at no time exceeded about $70,000, and during each year but one the expenses of the bank, including interest to depositors, exceeded its income. At a time when the bank was substantially insolvent, the trustees purchased a lot costing $29,000, on which a building for the use of the bank, costing $27,000, was erected. In 1875 a receiver was appointed, and this building and lot, subject to a mortgage, and other assets, producing only about $1,000, constituted the whole property of the bank and the lot and building were afterward swept away by the mortgage. In an action by the receiver against the trustees for the loss, held, that a jury were justified in finding that the trustees failed in exercising the prudence which the law requires and were liable for the loss sustained. Held, also, that the receiver of the bank might maintain the action, and that the same was triable at the Circuit before a jury.

Held, also, that all the trustees need not be joined. Held, also, that a trustee was not relieved from liability by a discharge in bankruptcy.

dience." Moreover, the act of Judge Coles, in selecting jurors, was not a judicial act, but "merely a ministerial act," and even if the act were judicial, he would be entitled to no immunity on this ground, since, as alleged in the indictment, "he acted outside of his authority, and in direct violation of the spirit of the State statute," which statute gave him no authority for the exclusion, in selecting jurors, of "all colored men merely because they were colored."

Mr. Justice Strong said in conclusion: "Upon the whole, as we are of opinion that the act of Congress, upon which the indictment against the petitioner was founded, is constitutional, and that he is correctly held to answer it, and as, therefore, no object would be secured by issuing a writ of habeas corpus, the petitions are denied."

These ten cases, especially the last six, present a body of very important decisions in the construction and application of the Constitution of the United States. Seldom has the Supreme Court had occasion in a single term to pass upon so many questions of this elementary character. Its uniform practice is to express opinions on constitutional points only as they arise in pending cases, and even then, so far only as may be necessary in determining these cases. The validity of the Federal election laws, the right of the National Government to protect its own officers and agents against State action, the interpretation of the Fourteenth Amendment in its guaranty of civil rights, and the power of Congress legislatively to enforce this guaranty form a cluster of questions, not only significant in themselves, but also significant by reason of the con

tral Park Savings Bank, against John G. Cary and others, to recover damages for the loss alleged to be caused to the bank by the misconduct of defendants, who were its trustees. The opinion states the case. From a judgment in favor of plaintiff as to certain of the defendants, such defendants appealed. From an order of the General Term, granting a new trial as to Smith, one of the defendants, plaintiff appealed.

F. C. Barlow, for plaintiff.

E. Ellery Anderson, for defendants.
A. Wakeman, for defendant Smith.

EARL, J. This action was brought by the receiver of the Central Park Savings Bank of the city of New York against the defendants, who were trustees of the bank, to recover damages which, it is alleged, they caused the bank by their misconduct as such trustees.

The first question to be considered is the measure of fidelity, care and diligence, which such trustees owe to such a bank and its depositors. The relation existing between the corporation and its trustees is mainly that of principal and agent; and the relation between the trustees and the depositors is similar to that of trustee and cestui que trust. The trustees are bound to observe the limits placed upon their powers in the charter, and if they transcend such limits and cause damage, they incur liability. If they act fraudulently or do a willful wrong, it is not doubted that they may be held for all the damage they cause to the bank or its depositors. But if they act in good faith within the limits of powers conferred, using proper prudence and diligence, they are not responsible for mere mistakes or

errors of judgment. That the trustees of such corporations are bound to use some diligence in the discharge of their duties cannot be disputed. All the authorities hold so. What degree of care and diligence are they bound to exercise? Not the highest degree; not such as a very vigilant or extremely careful person would exercise. If such were required, it would be difficult to find trustees who would incur the responsibility of such trust positions. It would not be proper to answer the question by saying the lowest degree. Few persons would be willing to deposit money in savings banks or to take stock in corporations, with the understanding that the trustees or directors were bound only to exercise slight care, such as inattentive persons would give to their own business, in the management of the large and important interests committed to their hands. When one deposits money in a savings bank, or takes stock in a corporation, thus divesting himself of the immediate control of his property, he expects, and has the right to expect, that the trustees or directors who are chosen to take his place in the management and control of his property will exercise ordinary care and prudence in the trusts committed to them the same degree of care and prudence that men prompted by self-interest generally exercise in their own affairs. When one voluntarily takes the position of trustee or director of a corporation, good faith, exact justice and public policy unite in requiring of him such degree of care and prudence, and it is a gross breach of duty, crassa negligentia, not to bestow them.

It is impossible to give the measure of culpable negligence for all cases, as the degree of care required depends upon the subjects to which it is to be applied. First Nat. Bank v. Ocean Nat. Bank, 60 N. Y. 278. What would be slight neglect in the care of a quantity of iron might be gross neglect in the care of a jewel. What would be slight neglect in the care exercised in the affairs of a turnpike corporation, or even of a manufacturing corporation, might be gross neglect in the care exercised in the management of a savings bank intrusted with savings of a multitude of poor people, depending for its life upon credit, and liable to be wrecked by the breath of suspicion. There is a classification of negligence to be found in the booksnot always of practical value, and yet sometimes serviceable-into slight negligence, gross negligence, and that degree of negligence intermediate the two, attributed to the absence of ordinary care; and the claim on behalf of these trustees is that they can only be held responsible in this action in consequence of gross negligence, according to this classification. negligence be taken according to its ordinary meaning, as something nearly approaching fraud or bad faith, I cannot yield to this claim; and if there are any authorities upholding the claim, I emphatically dissent from them.

www

If gross

It seems to me that it would be a monstrous proposition to hold that trustees intrusted with the management of the property, interests and business of other people, who divest themselves of the management and control of them, are bound to give only slight care to the duties of their trust, and are liable only in case of gross inattention and negligence; and I have found no authority fully upholding such a proposition. It is true that authorities are found which hold that trustees are liable only for crassa negligentia, which literally means gross negligence; but that axiom has been defined to mean the absence of ordinary care and diligence adequate to the particular case.

In Scott v. Depeyster, 1 Ed. Ch. 513, 543, a case much cited, the learned vice-chancellor said: "I think the question in all such cases should and must necessarily be, whether they (directors) have omitted that care which men of common prudence take of their own concerns. To require more would be adopting too

rigid a rule and rendering them liable for slight neglect; while to require less would be relaxing too much the obligation which binds them to vigilance and attention in regard to the interests of those confided to their care, and expose them to liability for gross neglect only, which is very little short of fraud itself."

In Spering's Appeal, 71 Penn. St. 11, Judge Sharswood said: "They (directors) can only be regarded as mandataries-persons who have gratuitously undertaken to perform certain duties, and who are therefore bound to apply ordinary skill and diligence, but no more."

In Hodges v. New England Screw Co., 1 R. I. 312, Jencks, J., said: "The sole question is whether the directors have or have not bestowed proper diligence. They are liable only for ordinary care — such care as prudent men take in their own affairs." And in the same case, Ames J., said: "They should not, therefore, be liable for innocent mistakes, unintentional negligence, honest errors of judgment, but only for willful fraud or neglect, and want of ordinary knowledge and care." The same case came again under consideration in 3 R. I. 9, and Green, C. J., said: "We think a board of directors, acting in good faith and with reasonable care and diligence, who nevertheless fall into a mistake, either as to law or fact, are not liable for the consequences of such mistake."

In the case of Liquidators of the Western Bank v. Douglas, 11 Session Cas. (3d series) 112, Scotch, it is said: "Whatever the duties (of directors) are, they must be discharged with fidelity and conscience, and with ordinary and reasonable care. It is not necessary that I should attempt to define where excusable remissness ends and gross negligence begins. That must depend to a large extent on the circumstances. It is enough to say that gross negligence in the performance of such a duty, the want of reasonable and ordinary fidelity and care, will impose liability for loss thereby occasioned."

In Charitable Corporation v. Sutton, 2 Atk. 405, Lord Chancellor Hardwicke said that a person who acccepted the office of director of a corporation "is obliged to execute it with fidelity and reasonable diligence," although he acts without compensation.

In Litchfield v. White, 3 Sandf. 545, Saudford, J., said: "In general, a trustee is bound to manage and employ the trust property for the benefit of the cestui que trust with the care and diligence of a provident owner. Consequently he is liable for every loss sustained by reason of his negligence, want of caution or mistake, as well as positive misconduct."

In Spering's Appeal, supra, Judge Sharswood said that directors "are not liable for mistakes of judgment, even though they may be so gross as to appear to us absurd and ridiculous, provided they were honest, and provided they are fairly within the scope of the powers and discretion confided to the managing body."

As I understand this language, I cannot assent to it as properly defining to any extent the nature of a director's responsibility. Like a mandatary, to whom he has been likened, he is bound not only to exercise proper care and diligence, but ordinary skill and judgment. As he is bound to exercise ordinary skill and judgment, he cannot set up that he did not possess them. When damage is caused by his want of judgment, he cannot excuse himself by alleging his gross ignorance. One who voluntarily takes the position of director, and invites confidence in that relation, undertakes like a mandatary, with those whom he represents or for whom he acts, that he possesses at least ordinary knowledge and skill, and that he will bring them to bear in the discharge of his duties. Story on Bailments, § 182. Such is the rule applicable to public officers, to professional men and to mechanics, and such is the rule which must be applicable to every per

son who undertakes to act for another in a situation or employment requiring skill and knowledge; and it matters not that the service is to be rendered gratuitously.

These defendants voluntarily took the position of trustees of the bank. They invited depositors to confide to them their savings, and to intrust the safekeeping and management of them to their skill and prudence. They undertook not only that they would discharge their duties with proper care, but that they would exercise the ordinary skill and judgment requisite for the discharge of their delicate trust.

Enough has now been said to show what measure of diligence, skill and prudence the law exacts from managers and directors of corporations, and we are now prepared to examine the facts of this case for the purpose of seeing if these trustees fell short of this measure in the matters alleged in the complaint.

This bank was incorporated by the act chapter 467 of the Laws of 1867, and it commenced business in the spring of that year in a hired building on the east side of third avenue in the city of New York. It remained there for several years, and then removed to the west side of the avenue between Forty-fifth and Forty-sixth streets, where it occupied hired rooms until near the time of its failure in the fall of 1875. During the whole time the deposits averaged only about $70,000. In 1867 the income of the bank was $942.12, and the expenses, including amounts paid for safe, fixtures, charter, current expenses and interest to depositors, were $5,571.34. In 1868 the income was $5,471.43, and the expenses, including interest to the depositors, $5,719.43. In 1869, the income was $3,918.27, and the expenses and interest paid $5,346.05. In 1870, the income was $5,784.09, and expenses and interest $7,040.22. In 1871 the income was $13,551.14, which included a bonus of $4,000 or $6,000 obtained upon the purchase of a mortgage of $40,000, which mortgage was again sold in 1874 at a discount of $2,000, and the expenses, including interest paid, wero $9,124.05. 1n 1872 the income was $5,100.51, and the expenses, including interest paid, were $7,212.49. Down to the first day of January, 1873, therefore, the total expenses, including interest paid, were $5,046 more than the income. To this sum should be added $2,000, deducted on the sale of the large mortgage in 1874, which was purchased at the large discount in 1871, as above mentioned, and yet entered in the assets at its face. From this apparent deficiency should be deducted the value of the safe and furniture of the bank, from which the receiver subsequently realized $500. At the same date the amount due to over one thousand depositors was about $70,000, and the assets of the bank consisted of about $13,000 in cash and the balance mostly of mortgages upon real estate.

than $25,000. This contract was reported by the committee to the trustees at a meeting held April 7. On the first day of May, 1873, the real estate was conveyed and the cash payment was made, and four separate mortgages were executed to secure the balance, one upon each lot. The mortgage upon the lot upon which the bank building was afterward erected was for $30,500. At the same time the bank became obligated to build upon that lot a building covering its whole front, 25 feet, and 60 feet deep, and not less than five stories high, and have the same inclosed by the first day of November then next. Upon that lot the bank proceeded, in the spring of 1875, to erect a building covering the whole front and 76 feet deep and five stories high, at an expense of about $27,000, and the building was nearly completed when the receiver of the bank was appointed in November of that year. The three lots not needed for the building were disposed of, as we may assume, without any loss, leaving the corner lot used for the building to cost the bank $29,250; and we may assume that that was then the fair value of the lot. This case may then be treated as if these trustees had purchased the corner lot at $29,250, and bound themselves to erect thereon a building costing $27,000. When the receiver was appointed, that lot and building, and other assets which produced less than $1,000, constituted the whole property of the bank; and subsequently the lot and building were swept away by a mortgage foreclosure, and this action was brought to recover the damages caused to the bank by the alleged improper investment of its funds, as above stated, in the lot upon which the building was erected. At the time of the purchase of the lot, the bank was substantially insolvent. If it had gone into liquidation, its assets would have fallen several thousand dollars short of discharging its liabilities, and this state of things was known to the trustees. It had been in existence about six years, doing a losing business. The amount of its deposits, which its managers had not been able to increase, shows that the euterprise was an abortion from the beginning; either because it lacked public confidence, or was not needed in the place where it was located. It had changed its location once without any benefit. It had on hand but about $13,000 in cash, of which $10,000 were taken to make the first payments. The balance of its assets was mostly in mortgages not readily convertible. One was a mortgage for $40,000, which had been purchased at a large discount, and we may infer that it was not very salable, as the trustees resolved to sell it as early as May, 1873, and in August, 1873, authorized it to be sold at a discount of not more than $2,500, and yet it was not sold until 1874. In this condition of things, the trustees made the purchase complained of, under an obligation to place on the lot an expensive bankinghouse. Whether, under the circumstances, the purchase was such as the trustees, in the exercise of

whether the act of purchase was reckless, rash, extravagant, showing a want of ordinary prudence, skill and care, were questions for the jury. It is not disputed that under the charter of this bank, as amended in 1868 (chapter 294), it had the power to purchase a lot for a banking-house, "requisite for the transaction of its business." That was a power, like every other possessed by the bank, to be exercised with prudence and care. Situated as this moribund institution was, was it a prudent and reasonable thing to do, to invest nearly half of all the trust funds in this expensive lot, with an obligation to take most of the balance to erect thereon an extravagant building? The trustees were urged on by no real necessity. They had hired rooms where they could have remained; or if these rooms were not adequate for their small business, we may assume that others could have been hired. They put forward the claim upon the trial that the rooms they

then occupied were not safe. That may have been a good reason for making them more secure, or for getting other rooms, but not for the extravagance in which they indulged. It is inferable, however, that the principal motive which influenced the trustees to make the change of location was to improve the financial condition of the bank by increasing its deposits. Their project was to buy this corner lot and erect thereon an imposing edifice, to inspire confidence, attract attention and thus draw deposits.

It was intended as a sort of advertisement of the bank; a very expensive one; indeed, savings banks are not organized as business enterprises. They have no stockholders, and are not to engage in speculation or money-making in a business sense. They are simply to take the deposits, usually small, which are offered, aggregate them and keep and invest them safely, paying such interest to the depositors as is thus made, after deducting expenses, and paying the principal upon demand. It is not legitimate for the trustees of such a bank to seek deposits at tho expense of present depositors. It is their business to take deposits when offered. It is not proper for these trustees, or at least the jury may have found that it was not, to take the money then on deposit and invest it in a bankinghouse merely for the purpose of drawing other deposits. In making this investment, the interests of the depositors, whose money was taken, can scarcely be said to have been consulted.

It matters not that the trustees purchased this lot for no more than a fair value, and that the loss was occasioned by the subsequent general decline in the value of real estate. They had no right to expose their bank to the hazards of such a decline. If the purchase was an improper one when made, it matters not that the loss came from the unavoidable fall in the value of the real estate purchased. The jury may have found that it was grossly careless for the trustees to lock up the funds in their charge in such an investment, where they could not be reached in any emergency which was likely to arise in the affairs of the crippled bank. We conclude, therefore, that the evidence justified a finding by the jury that this was not a case of mere error or mistake of judgment on the part of the trustees, but that it was a case of improvidence, of reckless, unreasonable extravagance, in which the trustees failed in that measure of reasonable prudence, care and skill which the law requires.

The

This case was moved for trial at a Circuit Court, and before the jury was impaneled the defendants claimed that the case was improperly in the Circuit, and that it should be tried at the Special Term, and the court ordered that the trial proceed; and at the close of the evidence the defendants moved that the complaint be dismissed, on the ground that the action was not a proper one to be tried before a jury and should be tried before the equity branch of the court. motion was denied, and these rulings are now alleged for error. The receiver in this case represents the bank and may maintain any action the bank could have maintained. The trustees may be treated as agents of the bank (In re German Mining Co., 27 Eug. Law & Eq. 158; Belknap v. Davis, 19 Me. 455; Bedford R. R. Co. v. Bowser, 48 Penn. St. 29; Butts v. Woods, 38 Barb. 181; Austin v. Daniels, 4 Den. 299; Ohio & M. R. R. Co. v. McPherson, 35 Mo. 13), and for any misfeasance or nonfeasance causing damage to the bank they were responsible to it, upon the same principle that any agent is for like cause responsible to his principal. It has never been doubted that a principal may sue his agent in an action at law for any damages caused by culpable misfeasance or nonfeasance in the business of the agency. The only relief claimed in this complaint was a money judgment, and we think it was properly tried as an action at law. No equitable rights were to

be adjusted, and there was no occasion to appeal to an equity forum.

Treating this therefore as an action at law, it follows also that the objection taken, that the other trustees should have been joined as defendants, cannot prevail. In actions ex delictu the plaintiff may sue one, some or all of the wrong-doers. Liquidators of Western Bank v. Douglas, 22 Sess. Cas. (3d series) 475, Scotch; Barbour on Parties, 203.

The defendants Hoffman aud Gearty filed petitions for their discharge in bankruptcy after the commencement of this action, and were discharged before judgment, and they alleged such discharge as a defense to the action. The trial judge and General Term held that the discharge furnished no defense, and we are of the same opinion. This claim was purely for unliquidated damages occasioned by a tort. Such a claim is not provable in bankruptcy, and therefore was not discharged. U. S. R. S. (2d ed.), §§ 5115, 5119, 5067 to 5071; Zimmon v. Ritterman, 2 Abb. (N. S.) 261; Kellogg v. Schuyler, 2 Den. 73; Crouch v. Gridley, 6 Hill, 250; In re Wiggers, 2 Biss. 71; In re Clough, 2 Ben. 508; In re Lidle, 2 Bank. Reg. 77.

I conclude, therefore, that the judgment appealed from should be affirmed.

The appeal by the plaintiff from the order of the General Term, granting a new trial as to defendant Smith, must, for reasons stated on the argument, be dismissed, with costs.

All concur.

ESCAPED CRIMINAL MAY NOT MAINTAIN APPEAL FROM CONVICTION.

CALIFORNIA SUPREME COURT, JULY 20, 1880.

PEOPLE OF CALIFORNIA V. REDINGER. When one convicted of a crime has escaped from custody he has, while he remains at large, no right to appear by counsel and prosecute an appeal from the judgment of conviction.

APPEAL from the Superior Court of Colusa County.

The opinion states the case.

A. L. Hart attorney-general, for the people.
John C. Dewel, for appellant.

THORNTON, J. The defendant was indicted for the murder of one James King; was tried in the District Court of Colusa county under this indictment, and on the 16th of December, 1870, convicted of murder in the first degree. The defendant moved for a new trial, which was denied. The court in due course pronounced sentence of death by hanging. The defendant prosecuted an appeal to this court, notice of the samo having been served on the 9th of February, 18830, and the cause was here for argument at the session of May, 1880, held at the city of Sacramento.

When the cause was called for argument, the attorney-general moved the court for an order dismissing the appeal on the ground that since the appeal was taken the defendant had escaped from jail, and was no longer in custody to abide the sentence of the court. This fact is certified to the court by the affidavit of the sheriff of the county aforesaid, in whose custody the prisoner had been since the conviction and sentence above mentioned, who deposes under oath that the defendant, by stratagem and force, on the 5th day of April last, escaped from the jail aforesaid, and was then at large. The affidavit bears date the 19th day of May, 1880. Of the escape there is no denial.

The question is one of interest and importance; is new in this State, no case decided by any of its courts having been produced to us. Several cases were called to our attention on the argument of this motion, and