
    13174.
    Green et al., executors, v. Fairburn Banking Co.
    Decided July 24, 1922.
   Stephens, J.

1. An action in trover can not be maintained upon proof that the property was lost by negligence of the defendant, where it does not appear that the defendant converted the same to his own use. Southern Express Co. v. Sinclair, 130 Ga. 372 (60 S. E. 849); 26 R. C. L. 1112. Tt follows, therefore, that in a suit in trover against a bank, to recover for the conversion of certain bonds alleged to have been deposited with the bank as a bailee, to be held by it for safekeeping, it is not prejudicial to the rights of the plaintiff for the court to fail to instruct the jury fully as to the degree of diligence required of the bank to safeguard the property against theft or loss.

2. A party introducing a witness is not bound by his testimony and is not estopped from contending before the jury that the truth is otherwise than as testified by the witness. A charge to this effect was not error.

3. The excerpts from the charge of the court, excepted to in the amendment to- the motion for a new trial, are not subject to the exception that they were argumentative or otherwise prejudicial to the plaintiff in error.

4. The evidence authorized the verdict -for' the defendant.

Judgment affirmed.

JenMns, P. J., eoneurs.

Trover; from Campbell superior court — Judge Hutcheson. November 28, 1921.

George-Westmoreland, H. A. Allen, L. S. Gamp, for plaintiffs.

B. B. Arnold, Troutman & Freeman, for defendant.  