If the deposit of paper for collection in a bank is a bailment, it follows necessarily that the default of the notary to which the bank confides the performance of some duty concerning the paper for the bank is the default of the bank, and so some cases hold;' but the great weight of authority is otherwise, and it is held that if the bank shows due care and diligence in the selection of a notary it has discharged its whole duty.2 Log the owner to protect it are not a waiver of the bank's negligent failure.5

31 AEtna Ins. Co. v. Alton City Bank, 25 111. 243; Bank of Louisville v. Bank of Knoxville, 8 Baxt. 101; Stacy v. Dane Co. Bank, 12 Wis. 629, and a number of the cases cited in the preceding note recognize this distinction. If the correspondent resides in the same place, he is a servant of the bank; but if he resides in another place, he is an agent of the holder. There is no reason in the distinction. The courts see the wrong of the rule when applied to a home collection, but are unable to see it when applied to a collection to be made at a distance.

32To the first bank: Merchants' Bank v. Stafford Nat. Bank, 44

Conn. 565; Locke v. Merchants' Nat Bank, 66 Ind. 353: First Nat. Bank v. Mansfield Sav. Bank, 3 Ohio Dec. 141. Yet, if the first bank is bailee, it may sue and recover for the negligence up to the whole loss, even in those states which say that the correspondent bank is the agent of the holder. So the first case in this note holds.

1 Ayrault v. Pacific Bank, 47 N. Y. 570; Davey v. Jones, 42 N. J. Law, 28.

2 Britton v. Nicholls, 104 U. S. 757 (but see this case explained, 112 U. S. 284); Tiernan v. Commercial Bank, 7 How. (Miss.) 648; Agric. Bank v. Comm. Bank, 15 Miss. 592 (this case contains some admirable dicta for drinking men); Bellmire ically those courts which hold a bank responsible for the defaults of its correspondent bank ought to hold .a bank liable for the acts of its notary,3 unless the fact that the notary is a public officer is entitled to a controlling consideration; but even then the exemption ought to be allowed only as to those duties which a notary must perform, and which are not merely ministerial. It is said in one court that if the bank makes use of its own notary it is not liable,4 but other cases assert that this is a good reason for making it liable.5