Supreme Court of United States.
*152 March 8th. Swann and Lee, for the plaintiffs in error.
*154 March 13th, 1820. JOHNSON, Justice, delivered the opinion of the court.
The merits of this case lie within a very limited compass. The *335] question is, whether a certain *act, done by the cashier of a bank, was done in his official or individual capacity? Had the draft, signed by Paton, borne no marks of an official character on the face of it, the case would have presented more difficulty. But if marks of an official character not only exist on the face, but predominate, the case is really a very familiar one. Evidence to fix its true character becomes indispensable.
It has been contended, but the argument was not pressed with much confidence, that this defendant could not be bound, otherwise than in conformity with the 17th section of the charter; by which it is enacted, "that all bills, bonds, notes, and every other contract or engagement, on behalf of the corporation, shall be signed by the president, and countersigned by the cashier; and the funds of the corporation shall in no case be liable for any contract or engagement, unless the same shall be signed and countersigned as aforesaid." It is to be hoped, this argument was not intended to reach the case of a deposit of money; and yet if it proves anything, it proves that no contract in law could be imputed to this bank. The truth is, that a check is properly neither a bond, bill or note, with regard to the bank drawn upon, but an acquittance. And the contract arising out of a payment upon it, is a contract for money advanced, and must be so declared upon. It is true, that checks are generally made payable to bearer, and this was made payable to order; but it is in evidence, that it was drawn as a check, and paid as a check, and the declaration contains only the common money counts.
Of the six exceptions in the transcript of the *record, the 1st, 2d, *336] 4th and 5th, are taken on behalf of the Mechanics' Bank of Alexandria. Upon comparing these exceptions with the evidence, it does not appear, that they affirm any other proposition growing out of that evidence, but that the check, on the face of it, purported to be the private check of Paton, and no extrinsic evidence could be received, to prove the contrary. The only ground on which it can be contended, that this check was a private check, is, that it had not below the name the letters Cas. or Ca. But the fallacy of the proposition will at once appear, from the consideration, that the consequence would be, that all Paton's checks must have been adjudged private. For no definite meaning could be attached to the addition of those letters, without the aid of parol testimony.
*155 But the fact that this appeared on its face to be a private check, is by no means to be conceded. On the contrary, the appearance of the corporate name of the institution on the face of the paper, at once leads to the belief, that it is a corporate, and not an individual transaction: to which must be added the circumstances, that the cashier is the drawer, and the teller, the payee; and the form of ordinary checks deviated from, by the substitution of to order, for to bearer. The evidence, therefore, on the face of the bill, predominates in favor of its being a bank transaction. Applying, then, the plaintiff's own principle to the case, and the restriction as to the production of parol or extrinsic evidence could have been only applicable to himself. But it is enough for the purposes of the defendant, to establish, that there existed, *on the face of the paper, circumstances from which it [*337 might reasonably be inferred, that it was either one or the other. In that case, it became indispensable to resort to extrinsic evidence, to remove the doubt. The evidence resorted to for this purpose was the most obvious and reasonable possible, viz., that this was the appropriate form of an official check; that it was, in fact, cut out of the official check-book of the bank, and noted on the margin; that the money was drawn in behalf of, and applied to the use of the Mechanics' Bank; and by all the banks, and all the officers of the banks through which it passed, recognised as an official transaction. It is true, it was in evidence, that this check was credited to Paton's own account, on the books of his bank. But it was done by his own order, and with the evidence before their eyes, that it was officially drawn. This would never have been sanctioned by the directors, unless for reasons which they best understood, and on account of debits which they only could explain.
It is by no means true, as was contended in argument, that the acts of agents derive their validity from professing, on the face of them, to have been done in the exercise of their agency. In the more solemn exercise of derivative powers, as applied to the execution of instruments known to the common law, rules of form have been prescribed. But in the diversified exercise of the duties of a general agent, the liability of the principal depends upon the facts, 1. That the act was done in the exercise, and 2. Within the limits of the powers delegated. These *facts are necessarily [*338 inquirable into by a court and jury; and this inquiry is not confined to written instruments (to which alone the principle contended for could apply), but to any act, with or without writing, within the scope of the power or confidence reposed in the agent; as, for instance, in the case of money credited in the books of a teller, or proved to have been deposited with him, though he omits to credit it.
Judgment affirmed.
