v. State, 22 Ind. 125; Inhabitants of Hancock v. Hazzard, 12 Cush. 112; Ward v. School-Dist., 10 Neb. 293; Lowery v. Polk Co., 51 Iowa, 50. In these cases, it was held that various public officers, appointed or elected to receive, disburse, and keep public moneys, were absolutely responsible for them as debtors, although they were stolen or lost, or taken away from them by irresistible force, and without their fault. In some of the cases, the liability of the officers was based upon statutes defining their duties and responsibilities, and in other cases upon the terms of their official bonds; and the construction of the statutes and of the bonds was much influenced by views entertained by judges as to the public policy to be enforced in such cases. In the case of U. S. v. Prescott, Mr. Justice McLean said that "every depositary of public money should be held to a strict accountability; not only that he should exercise the highest degree of vigilance, but that he should keep safely the moneys which come to his hands. Any relaxation of this condition would open a door to frauds which might be practiced with impunity. A depositary would have nothing more to do than to lay his plans, and arrange his proofs, so as to establish his loss, without laches on his part. Let such a principle be applied to our postmasters, collectors of the customs, receivers of public moneys, and others who receive more or less of the public funds, and what losses might not be anticipated by the public." At the time when that decision was made, in January, 1845, when there were no telegraph lines, and but few railroads in the country, public policy may have required from public officers the rigid responsibility thereby imposed. Most of the custodians and receivers of the public moneys lived at distant points from the central government, where it was difficult to supervise their acts, or control their conduct, or check and uncover their frauds. Yet that rigid rule of responsibility was greatly relaxed by acts of Congress relieving public officers who, without their fault, had lost public moneys intrusted to them; and finally by the congressional act of May 9, 1866 (14 U. S. Stat. at Large, 44), a general act was passed conferring upon the Court of Claims jurisdiction to hear and determine the claims of any paymaster, quartermaster, commissary of subsistence, or other disbursing officer of the United States, or of his administrators or executors, for relief from responsibility on account of losses by capture or otherwise, while in the line of his duty, of government funds; and it was provided that whenever the court should ascertain the fact of any such loss, and that it occurred without the fault or negligence of the officer, it should make a decree setting forth the amount thereof, and the officer should be allowed the same as a credit on settlement of his accounts. Thus as to all the officers named in the act, the policy previously declared, and which largely induced the earlier decisions of the courts, was changed. And in U. S. v. Thomas, supra, it was held that a collector or receiver of public moneys, under a bond to keep it safely, and pay it when required, was excused from rendering the same when prevented by the act of God or the public enemy, without any neglect or fault on his part, and that it was a sufficient discharge of his bondsmen from their obligations in reference to such money that the same was forcibly seized by the rebel authorities, against the will of the collector, and without his fault or negligence. Now in the changed condition of our country, with newspapers, telegraphs and railroads everywhere, in view of this latter decision, and the Federal statute referred to, it can scarcely be said, that as to Federal officers, public policy now requires the enforcement of the rigid rule of responsibility imposed by the earlier decisions. But whatever the rule may now be in the Federal courts, and in many of the

other States, it is not the settled law of this State that public officers who have given bonds for the faithful discharge of their official duties become debtors for the public moneys which come into their hands in their official capacity, and are absolutely liable for such moneys, although lost without their fault or negligence. In Supervisors v. Dorr, 25 Wend. 440, the action was upon the bond of a county treasurer, conditioned that he would faithfully execute the duties of his office, and pay over according to law all moneys which should come to his hands as such treasurer, and render a just and true account thereof to the board of supervisors of his county. The defense was that the money claimed was feloniously stolen from his office without any negligence or fault on his part; and it was unanimously held by the court that the facts stated constituted a defense; and the general rule was laid down that a public officer, intrusted with the receipt and disbursement of public funds, is not responsible for moneys stolen from his office without negligenc or fault on his part, and is liable only for moneys lost through his misfeasance or neglect. The opinion in that case was written by Chief Justice Nelson, and concurred in by Justices Bronson and Cowen. The case was carried to the Court of Errors, where the judgment was affirmed by an equally divided court. 7 Hill, 583. The doctrine of that case has been erroneously supposed to have been overruled by the decision in Muzzy v. Shattuck, 1 Denio, 233. In the latter case the action was upon the official bond of a town collector, and the defense was that the money was stolen from him. It was held that the defense was not good, the Supreme Court then being composed of Bronson, C. J., and Justices Beardsley and Jewett, and Bronson, who concurred in the prior decision, also concurred in this, without any indication that he had changed his views. The prior decision was referred to in the opinion of the court, but not criticised nor disapproved. This decision was based not upon the common law, and not upon the force and effect of the official bond given by the collector, but upon the statutes defining the duties and liabilities of the collector; and the court held that by these statutes he was made an absolute debtor for the money collected by him, and that the fact that the money was stolen therefore constituted no defense. That case was afterward carried to the Court of Errors and unanimously affirmed. The opinions of that court however, if any were written, have not been reported. It is clear that the decision in Muzzy v. Shattuck was in no way in conflict with the decision in the case of Supervisors v. Dorr, and did not expressly or by implication, overrule that decision. The decision in Muzzy v. Shattuck has always been understood as being based upon the statutes which made the collector an absolute debtor for the moneys which he was ordered by his warrant to collect. Looney v. Hughes, 30 Barb. 605, affirmed, 26 N. Y. 514; Fake v. Whipple, 39 Barb, 339, affirmed. 39 N. Y. 394. While the case of Supervisors v. Dorr was affirmed by an equal division of the Court of Errors, that affirmance does not add to it as an authority, and it remains simply the unanimous decision of the Supreme Court. In view of the decisions of the Federal and State courts above cited, and the fact that that decision has been much questioned, and has by some been supposed to have been overruled by the decision in Muzzy v. Shattuck, it should probably not be regarded as binding authority in this State, and the question therein decided may yet be regarded as an open one. When a case arises against an officer for not paying over and accounting for public moneys intrusted to him in his official capacity, it will be necessary to determine whether his liability, in the absence of statutes specially defining it, shall be governed by the common law, or whether the broader and more

rigid rule of responsibility laid down in the cases above referred to shall be enforced in this State. It is not necessary to decide that question in this case, because the money here received by the surrogate was not public money, but the money of a private estate or of private individuals. It does not follow, because public policy requires that public officers who receive public money should be held to rigid responsibility, that the same rule should be applied to public officers who receive the money of individuals who are stimulated by private interests to some watchfulness over the conduct of the officials, and to some scrutiny as to the custody of their funds. The surrogate was not a public officer appointed to receive or disburse public monoy, and it was not even his main duty to receive, keep, or disburse the money of individuals. His principal duties were judicial in their nature, and any duties which he had in reference to moneys which came into his hands were merely incidental to his judicial duties. The statutes required that the surplus money arising from the foreclosure sale should be paid over to the surrogate, and he was to hold the same for distribution among the creditors of the deceased, upon proof by them of their claim as provided by the statute. 2 Rev. Stat. (6th ed.), 118. The proceeds of the sale of the real estate made by the administrators of Finley were required to be brought into the office of the surrogate, to be retained by him for distribution among the creditors, in accordance with the provisions of the statute. 3 Rev. Stat. (6th ed.), 115. This money therefore came lawfully into the possession of the surrogate, and there is nothing in the statute which makes him an absolute debtor for it. He was to keep it, and when the time came for its distribution, was to distribute it among the creditors of the diseased. It might remain in his custody for a long time, until the claims of the creditors had been established, and all litigation in reference to them and the money finally ended. The law did not provide the surrogate with a safe or other place of deposit, but left it to his own good sense and judgment to determine how he should keep and safely | care for the money. There is nothing in the policy of the law which requires that he should be absolutely responsible for such money. If this money had been paid under an order of any court to its clerk or to a receiver, or any other officer, there would not have been the absolute responsibility which is claimed by the plaintiff in this case.

Such clerk or other officer would have been responsible only for good faith and reasonable diligence in the care of the money. Story Bailm., § 620. Why should a greater responsibility rest upon the surrogate than upon such clerk or officer? There is no clerk or officer of the Surrogate's Court to whom the money can be paid, and hence the surrogate is required to receive and distribute it himself. He is merely the trustee or agent of the private parties interested in the money, and no greater or higher responsibility should be imposed upon him than would be imposed upon any agent or trustee. If he had been a trustee, and had deposited this money in good faith, without any negligence on his part, in this bank, its loss by the failure of the banker would have been a good defense. 1 Perry Trusts (3d ed.), § 443. Why should his responsibility be greater than that of the administrator from whom he received the money? The statutes and the official bonds of executors and administrators imposed upon them as broad an obligation as is imposed upon the surrogate by the statutes and by his official bond; and yet it is conceded that if the administrators had deposited the money of their estate in this bank in good faith, and without negligence, they would not have been responsible for its loss. 2 Williams Ex'rs, (5th Am. ed.), 164; 3 Redf. Wills, 394. There is nothing in the phraseology of the bond given by the surrogate which enlarges his statutory liability. It is a

bond simply for the faithful performance of his duties, and the faithful application and payment of all moneys that may come into his hands. It imposed upon the surrogate no broader responsibility or liability than the statute. It was simply designed to enforce and secure the faithful discharge of his duties; and any defense which he would have had when called to account for the money which came to his hands is available to his sureties when sued upon the bond. We have therefore reached the conclusion that in this State there is no statute, applicable to surrogates, which imposes upon them the broad liability claimed by the plaintiff; that there is no public policy which requires that the rule of responsibility should be thus rigorous, and that there is nothing in the terms or letter of the bond which imposes the absolute liability claimed. This deposit in Cone's bank was not a loan to him, an unauthorized investment, which would be condemned by the law. It was the same as a deposit in an incorporated banking institution. It was probably not as safe or judicious, but that circumstance only had legal bearing upon the question of good faith and proper care and diligence, and that has been found in favor of the defendants. The fact that the deposit was payable with interest makes no difference, as it was still a deposit payable upon demand, and the requirement of interest was a provident arrangement for the benefit of the persons interested in the fund. Dec. 6, 1887. People ex rel. Nash, Surrogate, v. Faulkner. Opinion by Earl, J.

ABSTRACTS OF VARIOUS RECENT DECISIONS.

LANDLORD AND TENANT-NEGLIGENCE-DANGEROUS PREMISES.-In suit by a tenant against her landlord for damages resulting from falling into a cesspool in the yard, covered by rotten planks, which were concealed by earth on which grass and weeds were growing, there was evidence that the same had never been pointed out to her by the defendant, and that she was ignorant of its position and dangerous character, and that defendant had directed the cover to be repaired with old boards some time previous, and was present when such repairs were made. Held, that it should have been left to the jury to say whether defendant knew of the defective covering, and the danger there from, and had neglected to inform plaintiff of it; and also whether plaintiff had been injured in consequence of her failure to make a proper examination of the premises. It is a general rule, well established by the decisions of this court, that the lessee takes an estate in the premises hired, and takes the risk of the quality of the premises, in the absence of an express or implied warranty by the lessor or of deceit. If therefore he is injured by reason of the unsafe condition of the premises hired, he cannot ordinarily maintain an action in the absence of such warranty or of misrepresentation. The rule of caveat emptor applies, and it is for the lessee to make the examination necessary to determine whether the premises he leases are safe, and adapted to the purposes for which they are hired. There is an exception to this genera! rule, arising from the duty which the lessor owes the lessee. This duty does not originate directly from the contract, but from the relation of the parties, and is imposed by law. Where there are concealed defects attended with danger to an occupant, and which a careful examination would not discover, known to the lessor, the latter is bound to reveal them, in order that the lessee may guard against them. While the failure to reveal such facts may not be actual fraud or misrepresentation, it is such negligence as may lay

the foundation of an action against the lessor, if injury occurs. The principle that one who delivers an article, which he knows to be dangerous, to another, ignorant of its qualities, without notice of its nature or qualities, is liable for any injury reasonably likely to result, and which does result, has been applied to the letting of tenements. It has thus been held that where one lets premises infected with the small-pox, and injury occurred thereby, he was liable, if knowing this danger, he omitted to inform the lessee; this upon the ground of his negligent failure to perform a duty which he owed the lessee. It was not deemed important whether the omission to give the information was intentional or otherwise. Bowe v. Hunking, 135 Mass. 380, and cases cited; Tuttle v. Manufacturing Co., 145 id. 169. Obviously there may be many concealed defects and dangers about a house, which careful examination will not discover. If these are known to the lessor, it is for him to reveal them. Traps or contrivances may exist by means of which the most careful occupant might be injured. "Such traps or contrivances," says Mr. Justice Field, "are not merely a want of repair; they are in a sense active agencies of mischief, which no tenant would expect to find, even in a decayed and ruinous tenement." Bowe v. Hunking, ubi supra. In Reichenbacher v. Pahmeyer, 8 Bradw. 217, the defect alleged was in the manner of hanging a chandelier. The chandelier was hung unsafely, and the lessor knew it, and did not disclose this fact to the lessee. It was not apparent to an observer. It was held that the lessor was liable to a servant of the lessee who was injured by its fall. See also Scott v. Simons, 54 N. H. 126; Godley v. Hagerty, 20 Penn. St. 397. In Bowe v. Hunking, ubi supra, it was held that the case then at bar was not within the exception of the general rule by which a lessor is rendered liable for negligence of this character. There was no evidence that the defective step by which the injury in that case occurred was known to the lessor or her agent to be unsafe, and further, this defect itself was obvious, and whatever danger existed was readily seen by examination. Mass. Sup. Jud. Ct., Nov. 23, 1887. Cowen v. Sunderland. Opinion by Devens, J.

MASTER AND SERVANT-SCOPE OF EMPLOYMENTARREST OF PASSENGER FOR GIVING BAD COIN IN PAYMENT OF FARE.-On the 30th of November, 1886, the plaintiff was a passenger in one of the defendant's tramcars. When the conductor of the car applied to her for her fare she gave him half a crown, and received from him 2s. 4d., the fare being 2d. When she was about to leave the car the conductor stopped her, and told her that she could not leave, as she had given him a bad half-crown. She was then taken on in the car past her destination until the car arrived near a police station. She was then taken out by the conductor, and taken by him to the police station, and was there charged before an inspector of police with giving a bad half-crown in payment of her fare. The half-crown was tested by the police inspector, and found to be good, and the plaintiff was thereupon discharged. She brought the present action against the tramways company for trespass and false imprisonment, and the case was tried before Stephen, J., and a special jury, when a verdict and judgment were entered for the plaintiff for £100 damages, the learned judge holding, that not withstanding the rules of the company, the conductor had an ostensible authority to do what he did, to detain the plaintiff and give her into custody. The defendants now moved for a new trial, or that judgment should be entered for them on the ground that there was no evidence to go to the jury of the defendants' liability for the acts of their conductor, and that the judge ought to have directed

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the jury that the conductor was not acting within the scope of his employment, and that the defendants were not liable, as the conductor had acted in contravention of the defendants' express orders and to protect his own interests. Section 51 of the Tramways Act, 1870, provides that every person defrauding the company in the payment of the fare shall be liable to a penalty not exceeding forty shillings; and section 52 provides that it shall be lawful for any officer or servant of the promoters or lessees of any tramway to seize and detain any person discovered either in or after committing or attempting to commit any such offense as in the next preceding section is mentioned, and whose name or residence is unknown to such officer or servant, until such person can be conveniently taken before a justice, or otherwise discharged by due course of law. In a book of rules and regulations for the officers and servants of the company, relating to the conductor, are the following rules: Rule 11. "Passengers offering bad money in payment of fare. Coin must be kept quite apart from other money, and in presence of passenger tested. If bad, and passenger refuses good coin, having other money in his possession, he may be charged under the authority of an inspector or timekeeper." Rule 16. ་་ 'Except in cases of assault, conductors are not to give passengers into custody without the authority of an inspector or timekeeper." Also the following rule: "A conductor shall be responsible for (3) all counterfeit and foreign coin received." Held, that taking into consideration the rules supplied to the conductor, it was not within the scope of his authority to give any person into custody, except for assault, without the authority of an inspector or timekeeper; and in so giving the plaintiff into custody he was acting ultra vires, and that the defendants were not liable Q. B. Div., Dec. 12, 1887. Charleston v. London Tramways Co., Limited. Opinions by Mathew and Charles, JJ.

IT

REPORT OF THE SECRETARY OF THE STATE BAR ASSOCIATION.

is with much gratification that I feel myself fully warranted, in conformity with my official duty, to report that the New York State Bar Association enters upon the eleventh year of its existence under exceedingly prosperous circumstances, and with promising assurances of continued and increasing prosperity and usefulness.

A distinguished lawyer and member of the associa tion, highly esteemed throughout the State for his learning, ability and candor, in a recent letter to a high judicial officer of this State, said: "The prospects of the State Bar Association are beyond a question gratifying. They justify the faith of those who, from the beginning, contended that a State Bar Association was a practicable thing, and that it could be made a permanent institution, representing very fairly and reputably, the lawyers of the State of New York. It can now be said by us with substantial truth, and without offense to gentlemen of the bar, who, for reasons sufficient to themselves, have not joined us, that our association embodies, and is the genuine representation of very much that is distinguished, elevated, refined and excellent in the bar of the State."

But while thus congratulating ourselves, and while possessing those genuine grounds for complacency, we cannot forget the limitations, the imperfections and deficiencies under which we still labor. Without enumerating these matters, it is sufficient for me to say, that strong and largely successful efforts have