
    Nathaniel Garland versus The President, Directors, and Company, of the Salem Bank.
    Where the endorser of a promissory note, ignorant that a demand had not been duly made on the maker of the note, nor due notice given to himself, paid the amount thereof to a banking company, with whom it had been left by the holder for collection, and the same had been passed to the credit of the holder in the books of the company ; and, within three days, the endorser, having discovered his mistake, and the money not having been paid over, reclaimed it from the company; it was holden that the endorser might recover the money from the company, although, after the reclamation, they had paid the amount to the aidez of the holder.
    
      Assumpsit for 1600 dollars, money had and received by the defendants to the use of the plaintiff.
    The action was tried upon the general issue, at the sittings in this place, after the last November term, before Sewall, J.
    The plaintiff proved the payment by himself, at the Salem Bank, to the cashier thereof, of the sum of 1507 dollars, the amount of a note deposited at the said bank by Amos Honey, to be collected for the account and use of Thomas Cross, of Portland ; which note the plaintiff then took up and received from the bank; and the sum so paid was placed to the credit of the said Cross, as money deposited by him, in an account then opened and commenced with him ; and the said Honey was on the same day informed that the said note had been paid.
    This payment was made on the 5th of March; and on the 8th of March, while the money paid remained with the bank not paid over, (unless the account opened with the said Cross, and the information to the said Honey, are to be considered as a payment over,) the plaintiff reclaimed the sum paid at the bank, forbade the paying of it over * to any person, gave notice that he had paid the money by mistake and in his own wrong, and offered to return the said note, and tendered the same at the bank, to the cashier and officers thereof. This note, dated October 22, 1810, was in the name of Stephen Low as promisor, made to the plaintiff or his order, payable in ninety days, endorsed by him in blank, and the deposit of it in the bank for collection was some time before the 20th of December, 1810, at which time the plaintiff was absent, employed in his usual business, on a coasting voyage to Baltimore and Alexandria, from which he returned, and arrived one or two days previous to the said payment at the bank.
    The plaintiff’s dwelling-place was at Danvers, near Salem, and there his wife and family usually resided. He had no store or place of business, nor any known or accredited agent, appointed for the transaction of his affairs generally in his absence; but a Mr. John Daland took up letters addressed to the plaintiff, found at the post-office, and occasionally answered small bills for him, such as he particularly requested to be attended to; and Mr. Moriarty, cashier of the said bank, had the plaintiff’s confidence for the renewal and collection of a note due him, which was paid during his absence, amounting to 4000 dollars, and was deposited to his account in the said bank.
    On the 23d of January, 1811, the said Low, the promisor in the note in question, gave collateral security in notes and receipts for adventures at sea, which he endorsed and assigned over to Howard 
      
      Sf Upton, upon certain demands they had against him, amounting to 1391 dollars, not then due; the security having been insisted on by them, and promised by Low, in consequence of their doubts of his circumstances. The collateral security assigned to them was estimated at about 1500 dollars. The said Low continued in business until the 30th of January¡ when attachments of his property were made by his creditors generally, and he became notoriously insolvent. On the 28th *of January, a notification and demand of the note in question, was sent from the bank, which was delivered at the store or place ot business of the said Low and on the same day, a like notification was sent to the dwelling-house of the plaintiff, which was found shut up, the plaintiff’s family then being absent on a visit at Rowley, where they continued until after the 31st day of January, and in consequence the notification was returned to the bank.
    On the 31st of January, the said Moriarty addressed a letter to the plaintiff, as at Alexandria or Baltimore, advising him of the said Low’s failure, and of the said note remaining due at the bank; adding, “ As you will have to pay it, best you might secure property of Loto,” or words to that effect. This letter was answered by the plaintiff, in a letter received by Moriarty on the 11th of February, in which he was requested to demand an indemnification from Low, and to attach his property, if necessary. And in consequence of the advice received by the plaintiff at Baltimore, he there instituted a process to attach the effects of Low, in the hands of one Felt and one Silver, adventures included in Low’s assignment to Howard &f Upton. The said Moriarty also caused an attachment to be made at the suit of the plaintiff, of certain real estate of Low.
    
    The plaintiff, upon his inquiry at the bank on the 4th of March, was informed that Low’s note had not been paid, and of the attachment made of his real estate ; and in the course of the same day, being at the bank in company with the said Daland, the plaintiff was preparing to pay the note, but deferred it on Baland’s suggestion that it was advisable to see Low first. On the next day, the plaintiff was again at the bank, and after some conversation with Moriarty, the cashier, respecting a claim of interest upon the note for the time it had been overdue, which the plaintiff promised to pay if it should be insisted on by the holder, the note was paid and taken up by the plaintiff’s check for that amount of his money deposited m the bank.
    There was no evidence that the plaintiff had, at that time, obtained any correct information of the neglect, which * had happened respecting the demand and notifications upon the said note, or had asked for such information, either at the bank or elsewhere; but on the 8th of March, before he reclaimed the sum paid by him, he required of the said cashier, and by a recurrence to the minutes thereof at the bank, received particular information of the time and manner of the demand from the bank upon Low, and of the notice to himself as endorser.
    On the next day, the 9th of March, a check for the sum paid and placed to Cross’s account, drawn by him, and dated on the 7th, at Portland, was presented at the bank. This check not having been paid, Cross came himself to enforce his demand, and on the 16th of March the sum paid by the plaintiff was paid over to the said Hovey’s order, in presence and with the consent of Cross.
    
    It was also proved, as well by the testimony of the said Moriarty as by the records of the bank, that the defendants receive no compensation for collecting money upon notes deposited for collection ; and by a by-law, established June 6, 1803, are declared not to be responsible for any irregularities respecting such notes.
    It was also in evidence that, since the commencement of this action, the plaintiff relinquished his attachment upon Low’s real estate, which was encumbered by previous attachments, and otherwise, to its full value and more ; and also his attachment at Baltimore upon Low’s effects there, claimed also by Howard Upton, they having paid the plaintiff 130 dollars thereon ; and that the plaintiff had demands upon Low for expenses incurred at Baltimore, and for a note of 1000 dollars, dated 13th of November, 1810.
    The jury were directed to consider the defendants liable in this action, if the sum of money demanded by the plaintiff had been paid in his own wrong, when he was not legally responsible, either upon his endorsement of the note, or the other circumstances in the case, notwithstanding the account opened with Cross, the notice given to * Hovey, and the payment to his order, after notice from the plaintiff of this demand that the neglect on the part of the defendants to demand paymen of the note, and their retaining it without any demand or notice, Until the 25th of January, amounted to a legal discharge of the plaintiff from all responsibility on his endorsement, notwithstanding the evidence in the case of the said Low’s continuing in business until the 30th of January ; and that the plaintiff’s payment upon his endorsement was to be considered a mistake on his part, and a payment in his own wrong; that the defendants were not entitled to retain the money paid, unless the payment had been made by the plaintiff voluntarily, with a knowledge of all the circumstances, and an intended waiver of his legal advantage and discharge, which might be presumed to be upon sufficient considerations known to himself, such as an indemnity obtained from Low; and that, if thpre was proof of an indemnity to the plaintiff", a waiver of his legal discharge was to be presumed, and the defendants were entitled to retain the money paid.
    The jury returned a verdict for the plaintiff", and assessed in dam ages the sum paid, with interest from the service of the writ. The defendants moved for a new trial.
    
      Putman, for the defendants,
    contended that the instruction of the judge to the jury was incorrect, viz., that the defendants were liable, if the plaintiff paid the money in his own wrong, and that the defendants were not entitled to retain it, unless the plaintiff had made the payment voluntarily, with a knowledge of all the circumstances, and with intent to waive his legal advantage and discharge. The plaintiff knew, or he had the means of knowing, all the facts ; and a mistake of the law under such circumstances cannot excuse. 
    
    The plaintiff, having had no place of business, nor any agent here in his absence, cannot complain of the want of notice.  He can have no title to recover back the money paid by him in this case, unless he has been prejudiced *by the conduct of the holder of the note. But he has suffered no such prejudice in this case.. For he was absent, and so could not have availed himself of existing circums1tances; and if he had been here, Low continued solvent, or at least his estate was not attached until several days after the notice. 
    
    The plaintiff’s conduct amounted to a waiver of his right to notice. He called at the bank on the 4th of March, and was advised not to pay the money without seeing Low; he probably saw him, and was fully informed of all the facts, and having made his arrangements, concluded to pay the money. It is not for him afterwards to retract, because the arrangements were not realized.
    Further, the payment by the plaintiff to the bank, and the trans fer to the credit of Cross, amounted to an effectual and irrevocable transfer of the property to him, according to the course of proceedings at the bank. The defendants had no interest in the transaction ; they received no commissions, and were not liable even for negligence. If the plaintiff is entitled to the money he demands, he is entitled' to receive it from Cross, and he ought to have brought his action against him, instead of the defendants.
    
      Story contra.
    The defendants were the agents of the holder of the note; and the law is well settled, that an action lies against an agent who has received money to which his principal had no right, if the agent had notice not to pay it over; and in some cases the action has been sustained, where no notice had been given, if the money had not been actually paid over,  although the agent may have passed the money over in account, if no new credit has been given or money advanced. 
    
    That money paid by mistake, or in one’s own wrong, is to be recovered back, is a doctrine well established by English decisions,  and has been repeatedly recognized by this Court.  A payment under a mistake of the facts is such a one as the party is not bound by.  And if the facts had been known, (which the verdict in * this case negatives,) the better opinion is, that a mistake of the law would not bind the party, who had made a payment under such circumstances. 
    
    It has been argued that a demand on the maker, on the day the note fell due, was not necessary to charge the endorser, unless he sustained an injury by the omission.
    But the law is, that the engagement of the endorser is conditional only, that he will pay, if due demand be made and due notice given.  And in the case at bar, the endorser was entitled to strict notice. 
    
    
      
      
        Chitty on Bills, 171, Chatfield vs. Paxton. — 2 East. 471, Bilbee vs. Lumley. Doug. 471, Lowry vs. Bourdieu. — 2 Johns. 165. Coleman vs. Wise & Al.
      
    
    
      
      
         Chitty, 155,173.
    
    
      
      
        2 H. Black. 337, De Berdt vs Atkinson. — Chitty, 162.
    
    
      
       4 Burr. 1986, Sadler vs. Evans. — 5 Burr. 2639, Burrongh vs. Skinner. — 7 Johns. 179, Hearsey vs. Pruyn.
      
    
    
      
      
        Cowp. 565, Buller vs. Harrison.
      
    
    
      
       1 D. & E. 285, Cripps vs. Reade.— Cowp. 565.
    
    
      
       4 Mass. Rep. 378. — 3 Mass. Rep. 74.
    
    
      
       5 Burr. 2672. — 1 D. E. 712.— 1 Bos. & Pul. 326. — Doug. 638.
    
    
      
       2 East. 471, in notis, Chatfield vs Paxton. — Chitty, 187. — 4 Mass. Rep. 341.
    
    
      
       1 Selw. N. P. 317, Lindo vs. Burgess. — Doug. 679, Rushton vs. Aspinwall. — 2 Burr. 476, Haylin vs. Adamson. — 2 Str. 1087. — 2 Caines, 343.
    
    
      
       4 Mass. Rep. 342. —4 Crunch, 146. —7 Mass. Rep. 449. —11 East, 114.
    
   By the Court.

Upon the facts in this case, it is our opinion that the plaintiff was under no legal obligation to pay the money which he did in discharge of the note, which he had endorsed; as there had been no regular demand upon the maker. He paid the money under a misapprehension of the facts, as well as a mistake of the law.

It is true that the defendants acted in the character of agent for Cross, the holder of the note ; but before they had done any thing more than pass the amount received to the credit of Cross, they were informed that the plaintiff claimed the money to be repaid to him.

Judgment on the verdict.  