* 103 common law looks upon an injury which * accrues from mere nonfeasance as too remote to lay the foundation for an action of tort; for this purpose it requires that the injury should be the direct and immediate consequence of the conduct complained of. (f)

Bankers are so far mandataries, that they receive notes for collection, and render similar services, without specific pay; but they certainly do this for the sake of the general and indirect benefit they derive from the business, and are undoubtedly liable for negligence in the discharge of the duties they undertake. (g) But a further question has arisen in relation to banks of deposit and collection. It is this: If a notary, another bank, or other agent employed by a bank for collection is negligent or mistaken as to demand or notice, and, by this or any other negligence or error, prevents or retards the collection of the money, is the bank responsible to the holder, and how far? Some courts have held that the bank is only an agent to employ a sub-agent to do what it cannot do itself, and therefore its responsibility should be only for due care and skill in selecting and employing the subagent, (h) while others hold that * the bank is an agent in tort. On the other hand, in cases of mere gratuitous agency, where no property is intrusted, the only remedy which the principal can have against the agent is by an action ex delicto. And if the agent has committed no act which amounts to an actionable tort, the principal is without remedy. It should be observed, how-ever, that the delivery of a letter to be carried from place to place, or the delivery of a promissory note or bill of exchange for the purpose of collection would probably be held to be proper mandates, and the bailee in such cases would be held liable ex contractu. Robinson v. Threadgill, 13 Ired. L. 41.

(f) See Salem Bank v. Gloucester Bank, 17 Mass. 1. The leading case on this point in this country is Thorne v. Deas, 4 Johns. 84, already referred to. In that case A and B being joint owners of a vessel, A voluntarily undertook to get the vessel insured, but neglected to do so, and the vessel was afterwards lost. The court held, that no action would lie against A for the non-performance of this promise, though B sustained a damage thereby. See also Balfe v. West, 22 E. L. & E. 506; s. c. 13 C. B. 466.

(g) Smedes v. Bank of Utica, 20 Johns. 372; s. c. 3 Cowen, 662; Bank of for collection, and is itself responsible for due care and skill in all the acts and measures necessary for collection, whether they are performed through the officers of the bank, or through other agents employed by the bank. (i) The authorities on this subject cannot be reconciled. We suppose a different doctrine will be held in different States, according to the decisions of each State. These authorities are gathered in the three preceding notes.

Utica v. McKinster, 11 Wend. 473; Mechanics Bank v. Merchants Bank, 6 Met. 13. Chancellor Kent says: "Receiving a letter to deliver, or money to pay, or a note by a bank to collect, and by negligence omitting to perform the trust, the mandatary, though acting gratuitously, becomes responsible for damages resulting from his negligence. The delivery and receipt of the letter, money, or note, creates a sufficient consideration to support the contract, and is a part execution of it." See 2 Kent, Com. 671, n. (a).

(h) It seems to be held, in the following cases, that where bills or notes are deposited with a bank for collection, the bank is an agent to collect, and not merely to transmit for collection, and is liable for the neglect of any of its agents, however proper the selection may have been. Allen v. Merchants Bank, 22 Wend. 216, overruling s. c. in 16 Wend. 482. Bank of Orleans v. Smith, 3 Hill (N. Y.), 660; Montgomery Co. Bank v. Albany City Bank, 3 Seld. 460; Van Wart v. Wooley, 3 B. & C. 439; Thomson v. Bank of South Carolina, 3 Hill (S. C), 77; Mechanics Bank v. Earp, 4 Rawle, 384; Taber v. Penett, 2 Gallison, 565. See also, as to the general principle, ante, vol. i. p. *84.

A cashier of a bank is its agent for many important purposes; and the United States Supreme Court have held (two justices dissenting) that he has, by virtue of his office, the power to certify a check and bind the bank by his certificate. (ii) 1

A bank has also a lien on its deposits for the general balance it has against the depositor, (j) 2 unless the deposit is made by an agent for a principal who is the only owner of the property. But if so made, and the bank knows this agency; or if not knowing it, and supposing the agent to be owner, the bank has made no advance to the agent as depositor on the security of the deposit, the bank has no lien. (k) 3

(i) That the bank is responsible only for due care and diligence in selecting its agents, and in transmitting or submitting the papers to them, may be gathered from Fabens v. Mercantile Bank, 23 Pick. 890; Dorchester and Milton Bank v. New England Bank, 1 Cush. 177; Warren Bank v. Suffolk Bank, 10 Cush. 683; East Haddam Bank v. Scovil, 12 Conn. SOS; Jackson v. Union Bank, 6 Har. & J. 146; Baldwin v. Bank of Louisiana, 1 La. An. 16; Bellemire v. Bank of U. S. 4 Whart l05. That banks which receive bills for transmission only, are responsible only for due care and diligence in transmitting, is the doctrine of Mechanics Bank v. Earp, 4 Rawle, 884, and Bank of

Washington v. Neale & Triplett, 1 Pet. 26. It may be inferred, perhaps, from C. J. Marshall's language in this last case, that the Supreme Court of the United States would extend the responsibility of a bank for collection, over the conduct of all its agents.

(ii) Merchants Bank v. State Bank, 10 Wallace, 604. See also Pope v. Bank of Albion, 60 Barb. 226.

(j) Brandao v. Barnett, 3 C. B. 531; 12 CI. & F. 787; 3 M. G. & S. 630; Jones v. Starkey, 11 E. L. & E. 236.

(k) Bank of Metropolis v. N. E. Bank, 6 How. 212. But see, as perhaps contra, Lawrence v. Stonington Bank. 6 Conn. 621.