The opinion of the court was delivered by
Kellogg, J.At the trial of this c'ase in the county court several exceptions were taken by the defendants’ counsel to the rulings and decisions of that court, which have been elaborately argued in this court and are now to be considered.
1. It is objected, that Martin A. Seymour was an incompetent witness. He was a teller in the plaintiffs’ bank and had given bonds for the faithful performance of his duty. This did not render him incompetent. It was no part of his official duty to deliver the package of bills in question, and if it were, ,it would not make him an incompetent witness. In the delivery of the package to the captain of the steam boat he acted as the agent, or servant, of the cashier, or of the Bank, and in either case he was a competent witness. 1 Phil. Ev. 94. 2 Johns. 189. 13 Mass. 381. The'objection, if it has any weight, goes only to his credibility, and not to his competency, and consequently cannot prevail.
2. It is farther urged, that the court below errred in admitting the testimony of Charles F. Warner, upon the ground that he was cashier of the bank, had given bonds for the faithful execution of his office, and was a stockholder in the bank. It appears from the bill of exceptions, that the plaintiffs, prior to the admission of Warner as a witness, delivered to him a release, executed in due form, thereby discharging him from all liability to them for any loss, or damage, arising out of the loss of the money in question; and that Warner had sold and transferred his stock to the bank. So far, then, as his interest arose from his official relation to the bank, as cashier, it would seem to have been fully removed by the release. His official bond did not increase, or diminish, his interest. His personal liability to the bank would be the same without the bond, as with it.
But it has been urged in argument, that his interest as a stockholder remained, notwithstanding his sale and transfer to the bank, upon the ground that the bank was incapable of taking the stock by purchase. This objection is founded upon the eleventh section of *139the act incorporating the bank, which prohibits the corporation from dealing, or trading, directly, or indirectly, in buying, or selling, any goods, wares, or merchandise, or commodities whatsoever. The power to purchase and hold property is one of the ordinary incidents of a corporation. This power existed at common law, as incident to every corporation, unless they were specially restrained by their charters, or by statute. Co. Lit. 44. This power is expressly given to the plaintiffs by the first section of their act of incorporation ; and the prohibition contained in the eleventh section, being in derogation of the common and ordinary powers of the corporation, should be construed strictly. We do not think .that the eleventh .section applies to a case like the one under consideration. But it is not necessary for the court to inquire, or decide, in fche present case, whether the bank, in the purchase of the stock in question, transcended the limits of their charter. It is sufficient, for the purpose of deciding the point under consideration, that, in the judgment of the court, the bank was capable of taking the stock by purchase, and consequently, that a bona fide sale and transfer of the stock, by Warner, divested him of all interest as a stockholder in the bank. There was, therefore, no error in the decision of the county court in admitting him as a witness.
The remaining questions in the case arise upon the instructions given by the court to the jury. The defendants were common carriers by steam boats upon Lake Champlain, and as such received the package of money, for the loss of which this suit is brought. The case involves an inquiry as to the extent of the duty and liability of common carriers. And it has been urged in the argument, that the defendants, having received the package, directed to the cashier of the Clinton County Bank at Plattsburgh, were bound to deliver it to the consignee, or at least to deliver it at a "proper place and give notice thereof to the consignee; and that the usage and custom of the defendants, to deliver packages of money to the wharfinger, upon the wharf, in order to be available to the defendants by way of defence, must have been known to the plaintiff; and the court below, in their instructions to the jury, seem to have so considered the law. This, we think, was an incorrect view of the law, as applicable to the case.
In the absence of any special contract between the parties, in relation to the subject, the duty and liability of the defendants must *140be determined by the law applicable to carriers of this description. This liability may be modified by contract, by the general usage of the business, or by the defendants’ particular usage. This was evidently the opinion of this court, when the case at bar was before them upon a former occasion. 16 Vt. 52. Indeed, the case was then opened, upon the ground that the evidence of custom and usage, offered by the defendants, should have been received. It is true, that, upon that occasion, the defendants offered to prove, that the custom and usage, upon which they relied, were known to the plaintiffs ; but it is very obvious, that the learned judge, who then delivered the opinion of the court, did not consider it material, that the usage and custom should be known to the plaintiffs. He says, “ The court, however, are not called upon to decide, whether this knowledge is of any importance. If the evidence had been admitted, and it had fallen short of establishing the fact of personal knowledge in the plaintiffs, I am not prepared to say that the defendants would be liable.”
But, whatever may have heretofore been the views of the court upon this point, a majority are now of opinion, that it is not necessary to prove, that the plaintiff had personal knowledge of the usage, in order to make it available to the defendants. The case of Van Santwoord v. St. John et al., 6 Hill 157, has a direct bearing upon the case at bar. The doctrine of that case is in substance this, — that, where goods are delivered to a carrier, marked for a particular place, without any directions as to their transportation and delivery, except such as may be inferred from the marks themselves, the carrier is only bound to transport and deliver them according to the established usage of the business, in which he is engaged, whether the consignor knew of such usage, or not. With the reasoning and authority of that case we are well satisfied. It is founded in good sense and is sustainable upon principle.
The case at bar was put to the jury by the county court, upon the supposition, that, in order to enable the defendants to avail themselves of the usage, upon which they relied, as a defence, the jury must find that the plaintiffs had knowledge of such usage. This, we think, was clearly erroneous, and for this error the judgment of the county court is reversed.
Bennett, J., dissenting.