ecuted contract. There are the requisite parties, the requisite consideration, and the requisite concurrence and assent of the minds of those concerned." Bank v. Burkhardt, 100 U. S. 686.

To permit a bank which has paid a note or check of a customer to rescind the transaction because it discovers that it was mistaken in the state of the customer's account, would, as is pointed out by Judge Cooley in Bank v. Burkham, supra, reverse the rule of commercial law, and transfer from the acceptor to the payee the responsibility which the former assumes by the acceptance and the loss, which should be left where it fell. He said:

"We think it would be an exceedingly unsafe doctrine in commercial law that one who has discounted a bill in good faith, and received notice of payment, the strongest possible assurance that it was drawn with proper authority should afterwards hold the moneys subject to such a showing as the drawee might be able to make as to the influences operating upon his mind to induce him to make payment. The beauty and value of the rules governing commercial paper consists in their perfect certainty and reliability. They would be worse than useless if the ultimate responsibility for such paper, as between payee and drawee, both acting in good faith, could be made to depend on the motives which influenced the latter to honor the paper."

The facts of this case illustrate the truth of these observations. The defendant, relying upon a certification by the plaintiff, took no steps to charge the indorser upon the note; and, if this action. could be maintained, in order to regain the situation in which it was placed by the act of the plaintiff, would be obliged to resort to the uncertain chances of a litigation with the indorser. Treating the case as one in which the money was paid by the plaintiff over its counter to the defendant, the language of the court in Aiken v. Short is apposite:

"The plaintiffs, having voluntarily parted with their money to purchase that which the defendant had to sell, though no doubt it turned out different to and of less value than what they expected, cannot maintain the action."

* *

The trial judge properly directed a verdict for the defendant, and the judgment should be affirmed. 1

'Accord, Chambers v. Miller, 13 C. B. N. S. 124 (1862). But in Massachusetts recovery is allowed, unless there has been an alteration of defendant's position. Merchants' Bank v. Bank of the Commonwealth, 139 Mass. 513 (1885).

DEBT for money lent, and on an account stated. Plea nunquam indebitatus.

The defendant, who resides at Liverpool, was the holder of 100 shares in a company established for the working of a mine called the Trewolvas Mine, in the parish of St. Columb Major, Cornwall. The mine was managed by an agent, appointed by the directors of the company for that purpose. In March, 1839, in consequence of the shareholders not having paid up the calls regularly, the concern fell into difficulties, and the agent, from want of funds, became unable to pay the laborers; a considerable number of whom, their wages being in arrear applied to the magistrates, and obtained warrants of distress upon the materials belonging to the mine. The agent, finding that these warrants were about to be put into execution, applied in the name of the company, but in fact upon his own responsibility, and without the knowledge of the shareholders, to the St. Columb branch of the Western District Banking Company for a loan of £400 for three months, which was advanced accordingly and placed by the bank to the credit of the company, and out of it the arrears of wages were discharged. To recover the balance of that sum the present action was brought. There was some evidence of a conversation between the defendant and the agent, in which the former had asked whether they could not get money from the bank to keep the concern going; but this evidence was not left to the jury. The learned judge, in summing up, stated to the jury, that although under ordinary circumstances an agent could not, without express authority, borrow money in the name of his principal so as to bind him, yet, if it became absolutely necessary to raise money in order to preserve the property of the principal, the law would imply an authority in the agent to do so, to the extent of that necessity; and he left it to the jury to say whether the pressure on the concern was such as to render the advance of this money a case of such necessity. The jury found for the plaintiff.

PARKE, B.-This is an action brought by the plaintiffs, who are bankers, to recover from the defendant, as one of the proprietors of the Trewolvas Mine, a mine carried on in the ordinary way, the balance of a sum of £400, advanced by them to the agent appointed by the company of proprietors for the management of the mine. Now the extent of the authority conferred upon the agent by his appointment was this only-that he should conduct and carry on the affairs of the mine in the usual manner; there is no proof of express authority to borrow money from bankers for that purpose, or that it was necessary in the ordinary course of the undertaking; and

certainly no such authority could be assumed. There are two grounds on which it is said the defendant may be made responsible; first, on that of a special authority given to the agent to borrow money; and secondly, on the assumed principle, that every owner who appoints an agent for the management of his property must be taken to have given him authority to borrow money in cases of absolute necessity. There certainly was, in the present case, some evidence from which a jury might have inferred that a power to borrow money, for the purposes of the mine, had been expressly given to the agent; but that evidence does not appear to have been left to the jury, and therefore the verdict cannot be supported on the first ground. Then as to the second ground, it appears that the learned judge told the jury that they might infer an authority in the agent, not only to conduct the general business of the mine, but also, in cases of necessity, to raise money for that purpose. I am not aware that any authority is to be found in our law to support this proposition. No such power exists, except in the cases alluded to in the argument, of the master of a ship, and of the acceptor of a bill of exchange for the honor of the drawer. The latter derives its existence from the law of merchants; and in the former case the law, which generaliy provides for ordinary events, and not for cases which are of rare occurrence, considers how likely and frequent are accidents at sea, when it may be necessary, in order to have the vessel repaired, or to provide the means of continuing the voyage, to pledge the credit of her owners; and therefore it is that the law invests the master with power to raise money, and, by an instrument of hypothecation, to pledge the ship itself if necessary. that case be analogous to this, it follows that the agent had power not only to borrow money, but, in the event of security being required, to mortgage the mine itself. The authority of the master of a ship rests upon the peculiar character of his office, and affords no analogy to the case of an ordinary agent. I am therefore of opinion, that the agent of this mine had not the authority contended for. Whether he had or had not was a question for the jury; but, on the general principles of law, it seems to me that the ruling of the learned judge cannot be supported, and therefore that the rule for a new trial must be made absolute. [ALDERSON, B., concurs in an opinion; ROLFE, B., concurs.]1

KELLEY v. LINDSEY.

7 GRAY (MASS.) 287.-1856.

ACTION of contract on a check payable to the plaintiff and signed "Benjamin Lindsey, by George G. Coffin." There were also counts for money lent and money had and received. The evidence tended to 1 But see Reid v. Rigby & Co., post, p. 403.

show that Coffin was at the time the check was drawn, the financial agent and confidential clerk of defendant.

*

DEWEY, J.-* * If Coffin had no authority to borrow money on account of the defendant, to expend in his business and to pay his debts, the money advanced for that purpose, though so applied, created no debt against the defendant. No one can thus make himself a creditor of another by the unsolicited payment of his debts; and it is not enough to create a liability, that the defendant had the benefit of the money, by reason of its being expended in his business. or in the payment of his debts. There must have been shown some authority to make such advance or payment of money, proceeding from the defendant, in addition to the mere fact of its being applied for his benefit, in order to charge him with the same in a suit at law. For this reason, the court are of opinion that the verdict must be set aside and a New trial had.1

SPOONER v. THOMPSON AND WIFE.

48 VT. 259-1876.

REDFIELD, J.-The plaintiff claims to recover for money loaned to the defendant, Lois Thompson, while sole and unmarried.

It is not denied that J. P. Cutting was the agent of said Lois, in buying and selling goods at her store in Richford, and that said Cutting, acting as such agent, borrowed money of the plaintiff. The plaintiff claims in argument that the written articles of agreement authorize Cutting to borrow on the credit of said Lois. The written stipulations provide that "she will furnish capital, or authorize him (Cutting) to employ or obtain credit on her name and responsibility, for the purchase of goods to supply said store and business as aforesaid, to an amount not exceeding $4,000." That "the entire purchases, including purchases for cash down, and credit, shall not exceed four thousand dollars." "That while acting within the limits herein before mentioned, as agent, and to the extent of capital employed in the purchases aforesaid, and the legal and proper transaction of said business, and to no other or further extent, the acts of her agent shall be binding on her." The agency of Cutting was express and limited, and, we think, conferred no authority to borrow money on her credit.

II. It was claimed that a portion of the money loaned by the plaintiff was paid by Cutting to Holmes & Ross, for purchases, made of said firm to supply said store, and that defendants thus had the benefit of it. This was denied by the defendants. It seems that Cutting settled the account with Holmes & Ross, and that said Lois gave her note for the balance found due, and afterwards paid it. The plaintiff requested the court to charge the jury, "that if Mrs. Post (now Lois Thompson) settled the claim of Holmes & Ross,

That there might be subrogation in equity, see Newell v. Hadley, 206 Mass. 335, 342-343 (1910); Keener, Quasi-Contracts 331.

on which the $100 borrowed of the plaintiff was credited, to that extent, at least, she is bound." The court refused so to charge, and did charge, that if the money went into her business, and she had the benefit of it, "she would be holden to pay it, provided the jury find that she afterwards promised to pay it." The defendant's evidence tended to show that Mrs. Post had no knowledge that any money borrowed of the plaintiff went to pay Holmes & Ross; or that any such money appeared on the books of said store; and denied that any such money went for her benefit, or into the business of said store. If Cutting borrowed money of the plaintiff on the credit of Mrs. Post, without her authority, and paid a part of it to Holmes & Ross without her knowledge, it could give the plaintiff no right of action against her. She could not be made the debtor of the plaintiff without her consent. If Cutting borrowed money in her name, without authority, and she, having knowledge of the fact. and that the money went into her business, and she had the benefit of it, she thereby adopts the transaction, and makes it her own. The request to charge the jury, by the plaintiff, was, therefore, properly refused, and the charge of the court, so far as it is stated, is sound law. * * * Judgment affirmed.1

1Accord, Baldwin v. Burrows, 47 N. Y. 199 (1872), (but see Evans v. Garlock, 37 Hun 588 (N. Y. Supreme Ct. 1885)); Bohart v. Oberne, 36 Kans. 284 (1887). In Wall v. Chelsea Club, 88 S. C. 61 (1911), recovery was allowed by an erroneous application of estoppel against the principal. See 9 Mich. L. Rev. 736, note.

In Fay v. Slaughter et al., 194 Ill. 157 (1902), plaintiff in error, Fay, gave to his clerk a power of attorney "to be my true and lawful attorney, for me and in my name to draw checks, bills of exchange, and drafts, and make orders and overdrafts upon the Northern Trust Company of Chicago, and in my name to indorse checks, drafts, bills of exchange, notes, and orders for deposit in said Northern Trust Company, hereby confirming all that my said attorney shall do under above authority." The clerk abstracted stock certificates belonging to Fay and, forging Fay's name to the assignment, transferred them to innocent purchasers, Slaughter & Co., the defendants in error. In payment, the latter sent to the clerk, checks payable to the order of Fay. The clerk endorsed them with Fay's name, deposited them with the Northern Trust Company and they were credited to Fay. The clerk, in Fay's name, afterwards drew checks upon the trust company and appropriated the proceeds. After the facts were discovered, Slaughter & Co. made restitution of the stock to Fay and then sued Fay in this action for money had and received. The court said (p. 170): "We are unable to concur in the view that the mere passing of this money through the bank account of plaintiff in error without authority given by him, and in the absence of evidence showing it went to his benefit or was used by or for him, can be held to be such receiving of the money of defendants in error by him as in equity and good conscience renders him liable for money had and received for the use of defendants in error. In this record there is no evidence showing, or tending to show, that plaintiff in error got the real benefit of any of this money, either by checking it out for his own use or by its being checked and applied to his business.'