1 Cook v. State Bank, 52 N. Y. 96; but an assistant-cashier cannot so certify in the absence of usage. Pope v. Albion Bank, 57 N. T. 126. So a cashier, by signing a transfer in blank upon the back of a certificate of stock fraudulently altered, will estop the bank from denying its genuineness, Morse v. Massachusetts Bank, 1 Holmes, 209 ; and a cashier's refusal to transfer stock held by it as collateral, binds the bank, Case v. Bank, 100 U. S.446. As to the farther ability of a cashier to bind the bank, see Cocheco Bank v. Haskell, 51 N. H. 116; West Bank v. Shawnee Bank, 95 U. S. 557; Dorsey v. Abrams, 85 Penn. St 299; Ziegler v. Bank, 93 Penn. St. 393. So a teller's fraudulent statement, that a certificate of deposit signed by a firm, the members of which were the bank's president and cashier, is the same as the bank's certificate, binds the bank, Steckel v. Bank, 93 Penn. St 376; and where a bank officer induced one to sign a note, fraudulently representing it as a receipt, the bank cannot recover, Resh v. Bank, 97 Penn. St 397.

2 Australia Bank p. White, 4 App. Cas. 413.

3 Where an insurance agent, as such, deposited premiums collected with a bank, with the latter's knowledge, against which to draw checks for transmission, it was held, in an action brought by the insurance company to recover the balance of such fund, that a lien

A mandatary, as we have already intimated, is generally bound to exercise only slight diligence, and is responsible only for gross neglect. (l) The parties may, however, vary the

(l) The Roman law seems to have been different in this respect. By that law every mandatary seems to have been bound to bestow on the matter with which he was charged all the diligence and skill which the proper execution of it required. See Story on Bailm. § 173. Sir William Jones professed to follow the Roman law in this respect, but attempted to make a distinction between a mandate to carry and a mandate to perform a work, holding that the rule did not apply to the former, and that mandataries of that class were, like depositaries, liable only for gross negligence. Essay on Bailm. 62, 62. Mr. Justice Story is of opinion that there is no foundation for this distinction in the Roman law, and there certainly is none in our law. On the other hand, the rule is perfectly established with us that the same degree of diligence is required in cases of mandate, whether it be to carry or to perform work, as in cases of deposit. This was very authoritatively declared in the case of Shiells v. Blackburne, 1 H. Bl. 168, the facts of which are stated ante, p. *09, note (d). Lord Loughborough there observed: "I agree with Sir William Jones, that where a bailee undertakes to perform a gratuitous act, from which the bailor alone is to receive benefit, there the bailee is only liable for gross negligence; but if a man gratuitously undertakes to do a thing to the best of his skill, where his situation or profession is such as to imply skill, an omission of that skill is imputable to him as gross negligence. If in this case a ship-broker, or clerk in the custom-house, had undertaken to enter the goods, a wrong entry would in them be gross negligence, because their situation and employment necessarily imply a competent degree of knowledge in making such entries. But when an application, under the circumstances of this case, is made to a general merchant to make an entry at the custom-house, such a mistake as this is not to be imputed to him as gross negligence." See also, to the same point, Stanton v. Bell, 2 Hawks, 146; Beardslee v. Richardson, 11 Wend. 26. No definite rule can be laid down as to what will constitute gross negligence in each particular case. For this purpose, the nature and circumstances of the case, and the terms of the contract, must be carefully attended to. In the case of Fellowes v. Gordon, 8 B. Mon. 416, the plaintiff, being indebted to the defendant, and holding a note against the owners of a certain steamer, delivered the note which he so held to the defendant to be collected through a certain house at New Orleans, with which the defendant, who had a house at Louisville, was connected, the proceeds to be applied to the payment of the defendant's demand. When the note was delivered, the plaintiff informed the defendant that the solvency of the boat and owners was doubtful, and that the only probable means of saving the claim was, to attach the boat at New Orleans on her first arrival there after the note became due, unless the note should be paid. The note was sent by the defendant to the house at New Orleans, by which it was presented and payment demanded, on the first arrival of the boat at that city, but on payment of $100 (one-sixth only of the debt), the boat was permitted to depart, and on her arrival at Nashville a short time afterwards, she was attached for other debts and sold, before the note was returned to the plaintiffs, for an amount not sufficient to pay the attaching creditors. The court held this to be a breach of duty for which the defendant was liable. And Marshall, C. J., said: "Regarding the houses at Louisville and New Orleans as merely gratuitous bailees, still, having undertaken the commission, and proceeded in its execution, each was bound to proceed with reasonable care and diligence, according to the terms of the mandate. And a failure in the performance of this obligation was a breach of duty, for which, on well-established principles, the delinquent party is liable in case of loss pro-duced by his neglect. A bailee, receiving property under particular directions as to its disposition, impliedly undertakes to dispose of it according to those directions, and may be made liable for the loss consequent upon his failure or neglect to do so, and especially if he actually proceed with the business committed to him." On the other hand, in the case of Whitney v. Lee, 8 Met. 91, where a promdid not exist on such fund in the bank's favor, because of an obligation due from the agent, although the fund included the agent's commissions. National Bank v. Insurance Co. 104 U. S. 54.