The plaintiff received the order as collateral security merely, both in fact and in law. This being so, the material question at the trial was, whether he had been guilty of laches in respect of it so as to make himself chargeable therewith. To make him thus liable, it was necessary to show negligence on his part and consequent injury to the defendant; for the settled rule is, that a party receiving collateral securities is not, in the absence of payment, chargeable with their amount, unless he has so improperly conducted with them that their value has been lost or impaired to the party of whom he received them. Kenniston v. Avery, 16 N.H. 117, 120, and cases cited; Lawrence v. McCalmont, 2 How. 426; Robinson v. Hawksford, 9 Ad. E. 52; Sto. Pr. Notes, s. 284.
Whether the plaintiff so conducted with the order in question, and, if so, whether the defendant was thereby injured, the referee improperly neglected to find; and it being no part of the duty of the court, at the law term, to decide questions of fact (Lefavor v. Smith, 58 N.H. 125), the report was for this reason recommitted. The referee now reports that the plaintiff was guilty of negligence in not collecting the order, but whether the defendant sustained any loss therefrom is not definitely stated. We infer, however, that the referee intends to find that the defendant's negligence was the proximate cause of the loss resulting to him from the failure to collect the order. If this construction is right, the ruling at the trial term was correct. If it is not right, the defendant can apply to the referee for a more specific finding, and if one is obtained, judgment will be rendered at the trial term accordingly; but in either case no questions of law are raised by the report, and the entry is,
Exceptions overruled.
All concurred. *Page 93