
    Joseph H. Ingraham versus the President, Directors, and Company of the Maine Bank.
    One became surety for the good conduct of a cashier of a banking company, upon his reappointment to that office. Before such reappointment, he had been guilty of frauds on the company; and afterwards, previous to an examination by the directors of the company into the state of their cash, he borrowed moneys as such cashier, which he placed in the bank, and thus concealed his prior defalcations; and after such examination, he took out the said moneys, and repaid to those of whom he had borrowed them. This was holden to be a fraud within the condition of the bond given upon his reappointment.
    Assumpsit for money had and received, tried at the last October ■ term, in this county, before Wilde, J. The plaintiff proved, that, on the first of June, 1807, one D. Hale was reappointed cashier of the said Maine Bank, and that the plaintiff, with two other persons, on the same day executed a bond with Hale, as his sureties, in the penal sum of $ 15,000, conditioned, that the said Hale should ever thereafter, during his continuance in said office, well and truly perform, observe, do, and discharge all' the duties of his *said office, according to law, and the custom and usages of banks.
    In October, 1807, the said Hale having been previously removed from office, upon the representation of the defendants, that he had appropriated'large sums of their money to his own use, for which his said sureties were liable, the plaintiff paid to the defendants one third part of the penalty of the said bond, and one of the other sureties the remaining two thirds ; the directors at the same time promising the plaintiff, that, if, on examination, it should be found that he was not liable for so large an amount, they would refund the overplus.
    It was also in evidence, that, between the said 1st of June and the time of his dismissal from office, the said Hale had appropriated to his own use divers sums of money, but to an amount less than $ 15,000, and that his other defalcations took place before the said 1st day of June.. But, after the said day, and before the 6th of July following, on which day an examination of the property and concerns of the bank was had by the directors, the said Hale, with a view to conceal his delinquencies before and after the said 1st of June, borrowed of the cashiers of certain other banks, by means of checks drawn by him as cashier of the Maine Bank, large sums of money, without the knowledge of the directors, and placed the same in the vaults of the bank, whereby, on the said examination, his accounts appeared to be nearly balanced. The sums so borrowed by him he afterwards repaid ; and on his dismissal from office he was found delinquent in about the sum of $ 30,666.
    Upon this evidence the defendants contended, that the money procured by Hale to conceal his delinquencies in July became the property of the defendants on being placed in their vaults ; that he had no authority to procure the same on the credit of the bank, and that his paying the amount afterwards to take up his checks was a breach of the condition of his bond given in June as aforesaid ; or, if * not, that the whole transaction was a gross fraud on the bank, for which his sureties were by law responsible.
    In order to bring these questions before the whole Court, the judge directed the jury not to consider any part of the transaction in July as increasing in any way the liability of the plaintiff and his co-sureties ; but to confine their inquiries, in assessing damages, to the other delinquencies of Hale; and they returned a verdict for the plaintiff in pursuance of this direction.
    
      Whitman and Emery, for the defendants.
    The procurement of the money by Hale from his friends, and placing it in the vaults of the bank, was a payment of the money he had before taken out for his own purposes. It thus became the property of the defendants; and, in taking it out to repay his loans, he was guilty of a fraud on them, for which the plaintiff and his co-sureties were liable.
    
      Mellen and Longfellow, for the plaintiff.
    Most of the defalcations took place before the plaintiff became responsible for the conduct of Hale. For those the sureties in the bond were not answerable, and the money paid by the plaintiff was paid under a mistake he was led nitu by the misinformation of. the directors as to a matter of fact.
    The borrowing and repaying of the money by Hale was merely an artifice to cover the previous embezzlement ; and the bank sustained no injury by the contrivance. If he procured the money in the name of the bank, which may be said from his borrowing it as cashier, the bank was liable for its repayment, and there was in that no breach of the condition. If he procured it in his own name, and merely to cover his misdoings, it was still his own money, and he had a right to take it away ; or, if he had no such right, still the defendants were not injured by his taking it out. They were as well situated as when the plaintiff gave the bond, and, in a suit upon that bond, the defendants, upon these facts, could have claimed no more than nominal damages.
   * Parker, C. J.

The money demanded in this action cannot be recovered, if, by means of the misconduct of Hale, for whose faithful conduct the plaintiff and his co-sureties were responsible, happening after the execution of their bond, the defendants have been damnified to the extent of the sum explained. Now, although a deficit existed, equal to this sum, before the execution of this bond, and which may have been covered by an antecedent bond; yet, the fact proved, that Hale took money from the vaults, without the knowledge of the directors, and repaid it to those of whom he had borrowed it, was a breach of the condition of his bond. For the money, when placed in the vaults, became the property of the defendants ; and the transaction cannot be distinguished from an actual payment from his own funds to supply the defalcation, and a removal afterwards of the funds of the bank without the consent of the defendants.

Plaintiff nonsuit.  