
    SEARLE VS. THE FIRST NATIONAL BANK OF MONTROSE.
    National Banks have not the power to buy and sell stocks for their customers.
    If, however, the bank directors knew that the cashier was buying and selling stocks in the name of the bank, the bank was liable for stocks received by the cashier and embezzled by him.
    Whether the entries in the books of the bank are sufficient to charge the officers with notice is a question for the jury.
    Where the plaintiff is dead, a stockholder who has transferred his stock bona fide, may testify.
    Error to the Common Pleas of Susquehanna County. No. 44 Jan. Term, 1885.
    This was an action of assumpsit by D. D. Searle, executor of Leonard Searle, deceased, against the First National Bank of Montrose to recover the value of 200 shares of the capital stock of The Bel., Lackawanna and Western R. R. Co., the certificates of which were deposited with the cashier of the bank. The cashier afterwards embezzled the money of the bank and disposed of the stock; Searle claiming that the bank was liable for the acts of the cashier. The charge of the Court was as follows:
    Gentlemen of the Jury : — This action is brought by the executors of the last will and testament of Leonard Searle, deceased, against the First National Bank of Montrose, to recover upon an alleged liability assumed by the bank • to dispose of certain shares of B., L. & W. R. R. stock for the benefit of the plaintiff, or to return the stock to him, as received by them. Sometime in the year 1875, 200. shares of the B., L. & W. R. R. stock were deposited by Leonard Searle with Mr. Lenheim, cashier of this hank.
    At a subsequent time a new arrangement was entered into between Mr. Searle and Mr. Lenheim, by which these shares of stock were to be placed upon the market and converted into money for the benefit of Mr. Searle. The serious question in this case is “was the act of Mr. Lenheim in receiving the plaintiff’s certificates of stock, under the circumstances which have been detailed here, such that it should be treated as an act of the bank of which he was cashier ?” As the cashier of this bank, he was charged with the general management of its business, and all of his acts performed at the banking house of the defendant, and within the scope of the ordinary business of the bank, are presumably performed in his official capacity, as cashier, .and binding upon the bank.
    But this rule applies only to such acts as are within the usual course of business of the bank. If an act or course of proceeding be extraordinary in its character, and especially if it be outside of the legitimate functions of the bank, evidence must presented to satisfy the jury that the cashier had been especially authorized, or that the officers of the bank were in some way so affected with knowledge as to justify the inference or presumption of their special authority or approval. It is alleged by the defendant that the receipt of certificates of stock for sale, for the account of another person, is not within the power of a National Bank, or, as we use the term, is ultra vires.
    If this be true, then we do not presume that the act of the cashier in receiving certificates of stock for those parties was official, and binding upon the corporation. The plaintiff, on the contrary, asserts, that the sale of stocks for customers is within the incidental powers of a National Bank. Every corporation possesses such powers as are directly conferred upon it by the act under which it is organized, and also such powers as are necessarily incidental to those expressly granted, the exercise of which is necessary to enable the corporation to accomplish the purposes for which it is created.
    Section 5136 of the revised statutes of the United States, under which the National Banks are organized, defines, among the powers of the National Banks, that they may exercise by their board of directors or duly authorized officers or agents, subject to law, all such incidental powers as shall be necessary to carry on the business of banking, by discounting and negotiating promissory notes, drafts, bills of exchange, and other evidences of debt. By receiving deposits, by buying, selling and exchanging coin and bullion, by loaning money on personal security, and by obtaining, issuing and circulating notes.
    Now what are these incidental powers necessary to carry on the business of banking? Ilow shall we ascertain? We think we may inquire of experts. Of men of experience in this particular branch of business. And Ave may learn from them what is the usual and ordinary business of banking, and what are the incidents necessary to enable that business to be conducted. And só Ave haA^e in this case received the evidence of witnesses to inform us upon that point.
    It is said in this case that the powers of the National Bank must be derived from its charter. That the Court must construe the law, and that powers cannot be conferred upon them by the testimony of witnesses. This is true, generally, but when the law speaks of incidental powers connected with a branch of business, we think that the Courts may inquire through men familiar with this branch of business what powers are incidental, and what powers are necessary in order that this business may be successfully conducted.
    But when we have received such evidence, we think it is for the Court to scrutinize it, and see Avhether, accepting the facts as testified to, they show a case of powers which are incidental and necessary to the banking business, or such powers, as, outside of the business of banking, either serve the convenience of customers, or help to obtain and retain them for the benefit of the legitimate business of the bank.
    [We are compelled to say to you that Ave do not think the evidence presented here comes up to the point of showing powers necessarily incident to a banking business. And that this question may be fairly reviewed hereafter, we take the responsibility of withdrawing the evidence upon that subject from your consideration, and saying that the power of selling for customers, stocks upon commission, is not within the powers of a National Bank. The Supreme Court of this State has ruled upon this question, and has held that such business is not within the scope of the powers of a National Bank, and we do not discover in this evidence sufficient grounds for permitting you to find otherwise.] "We are not to deal with the dangers of buying and selling upon a margin, or with the conveniences which might accrue from conducting this business. Other branches of business might be convenient for the purposes of a National Bank. [The question with us is, “does the fundamental law upon which these banks are organized, confer this power upon them ?” And we instruct you that it does not.]
    The defendant introduced in evidence here the by-laws of this corporation, and asserts that this plaintiff, the decedent, as a stockholder of the bank, was bound by the by-laws of the bank, and thus, that he knew that this business was prohibited, and so could not legitimately enter upon such a contract with the cashier. We are asked to say to you that as a stockholder, he is presumed to know, and he is held to the articles and by-laws of the bank, and we so say to you. Leonard Searle, being a stockholder of the bank, was bound by the by-laws adopted by the "board of directors of this National Bank.
    But does the by-law which has been put in evidence prohibit this kind of a transaction ? Is it so clear in its prohibition that ■one would naturally understand that buying and selling stocks was included in the meaning of this by-law? Let us see its terms. “No officer, agent, or employee of this bank shall have any power to create or incur any debt or liability on any account whatsoever, against the bank, without express authority in such, 'instance from the board of directors. ■ This 'shall not apply to the ordinary indorsement of checks or making of drafts in the .regular business of the bank.” What is meant by this by-law? What is meant by the incurring of a debt or liability ? Does it preclude the possibility of a transaction of all business except such as is specifically excepted from its operation?
    Then the cashier was not at liberty to take your note, or mine, duo at another point, and transmit it for collection, if no powers •can be exercised except upon express authority given to him, or '.if the only powers which can be exercised except upon express authority given to him were the indorsement of checks, and the making of drafts in the ordinary and regular business. We do not think that kind of liability which would be assumed by taking certificates of stock and forwarding them for conversion into money in the market, is such a liability as is intended to be prohibited in this by-law.
    We now come to another branch of this case. We have said that if the contract alleged in this case is beyond the permitted functions of this bank, that then the officer of the bank cannot be presumed to be acting in his official capacity, but must be presumed to be acting as an individual in entering into such a contract. Something more is required. [It becomes the duty of the plaintiff to satisfy you by the weight of evidence, that such a course of conduct has been pursued in such a way that the officers of this bank are charged with knowledge that the cashier, in the name of the bank, was engaged in the business of buying or selling stocks for customers.] The officers of the bank are supposed to know the contents of their books. If, spread upon the records of this bank, upon the books which were in their possession, were such accounts and statements as should inform them that such a business was being carried on, they were bound to take knowledge of that fact, and we may presume their approval or authorization of such a course.
    [Now, this question we propose 'to submit to you. Evidence has been presented to you from the books of the bank, of certain transactions. We may not have the full statement of those entries, and caution you against judging absolutely from the statement as we have it upon our notes. You will remember the evidence more fully and carefully for yourselves. On page 800 of their general ledger we find, under date of June 1st, 1875, an item entered in the account of the First National Bank of New York, “Erie sold, $5,287.50.” We find the same item carried through the various books, and finally the balance credited to L. Searle upon the book to correspond. What does “Erie sold” mean ? What would the officers of the bank understand’ by the'words “Erie sold ?” Does it convey the information that this cashier at that time sold for Leonard Searle, shares of the capital stock of the Erie Eailroad Company? On the 8th of October, 1875, we find another series of entries running through the books. In the account of D. D. Searle, D., L. & W. E. E. stock, $12,137.40. Upon another book in the account with the First National Bank of New York, we find the item, 200 shares D., L. & W. $12,137.50. And in the deposit ledger we find in-the account of D. D. Searle, an item to correspond — “200 shares D., L. & W., $12,137.50,” running through these different books of account. What docs it mean ? Does it convey the idea and information to these‘business men that their cashier was buying or. selling stocks for their customers ? On page 573 of the journal, August 25th, 1876, again we find in the account of the First National Bank of New York, 100 1)., L. & W. at 88$, less $, $4,412.50, and on the general ledger, and running 'through the other books, an account to correspond.]
    Something has been said in the argument about what is necessary to establish a' custom. The simple question as we leave it to you, to which this evidence refers, is, was this cashier engaged in a course of business buying or selling stocks for customers of the bank or otherwise with the knowledge of the officers of the bank ? If, under the evidence, you find that he was, then we say to you that you may find that this transaction was authorized and approved by them, and that the contract entered into by this cashier with Leonard Searle was a contract made with the bank — ultra vires it may be — but if, under such a contract, the bank received the shares of stock belonging to Leonard Searle, the bank cannot set up its own want of power to make this contract, but must return the shares of stock or pay their money value. Bid the bank receive the proceeds of this stock ? The question has been raised. If you find in the evidence anything to satisfy you that the bank did receive the proceeds from the sale of this stock, then the bank ought to respond for those proceeds in this case. [But it was incumbent upon the plaintiff to show you by the weight of evidence that the bank did receive these proceeds, and unless the evidence is here to show you that fact you have no right to infer it.]
    Now you will say, after going so far in this case, whether a contract existed or not, (as you may look upon the evidence,) which would hold the bank responsible to return the shares of stock, or the money value of the shares, or, if they were sold, the proceeds. Was this contract made between Leonard Searle and N. L. Lenheim ? Was the agreement, that he should receive the shares of stock for the bank, and that the bank through its correspondent should sell them and credit the account of Leonard Searle ? Leonard Searle, in his deposition, says it was. Myron Wright tells you that Leonard Searle declared to him that he knew that Mr. Lenheim was dealing on his own account in stocks, and that Mr. Lenheim had stocks of his at that time in his hands if he had not sold them and taken the money. And you have the testimony of Mr. Lenheim himself, which has just been read to you, and is fresh in your recollection. Take the evidence of all these witnesses, and all the other facts and circumstances in this case bearing upon this question, and if you find such a state of facts as establishes a contract, under the instructions which we have given you, then find from this evidence whether it was the intent of the parties at the time to make the contract with the bank or to make the contract with the cashier as an individual, and he to send these shares to his correspondent in New York, and to be responsible for the return of the-money.
    If you find the latter to be true, that is an end of this case. But if the contract was made with the cashier as an officer of the bank, under such circumstances as would render the bank liable for his agreement, then we say to you that the plaintiff may recover in this case.
    Something has been said about this deposit book, and about the balancing of the account, and about the lack of‘complaint made by Leonard Searle, and the extraordinary fact that after this quantity of bonds had been left in the hands of the cashier, with the understanding that the proceeds should be credited to his account, that he made no complaint of these proceeds not being credited. You have the deposition of Mr. Lenheim, and of Mr. Searle, himself, so far as they bear upon this subject, if they throw any light upon the question of whether he did complain or not. And then you have the testimony of Mr. Wright, who was at the time the teller in the bank.
    Now you will take that testimony for what it is worth.- — Consider whether it was likely, or not likely, that Mr. Searle would go to the teller of the bank with complaints upon such a subject. Because all the force of this evidence comes from the fact that a man might reasonably be expected, if he did not receive credit for a large amount of money, which he was entitled to be credited with, — that he might be expected to call some person’s attention to the failure to credit him with this money. But to whom would he make complaint ? Where should he go with his complaints ? If you find from the evidence, that he has not made complaint under such circumstances as a man would ordinarily be expected to complain, give that circumstance such weight as you thiuk it is entitled to, in guiding you to the conclusion as to what was the transaction between Lenheim and Mr. Searle, in this matter.
    Now you will observe that there are some differences in the statements of these witnesses. They are not altogether in harmony. It is our duty to say to you that if the statements of these witnesses can be recociled upon any reasonable hypothesis, then it is your duty to reconcile them. But if you find that impossible, then it is for you to say who shall be credited in this case. You have seen the witnesses who have been upon the stand, and you have heard the depositions of the absent witnesses read. Yo have been able to judge somewhat of the fairness with which these witnesses testify. The willingness or the unwillingness with which they have narrated the facts, the interest, or the want of interest which they manifest in the result of this case, and the actual interest which they may have in the result of this case, the means of information which thfey possess, the correctness of their memory, as far as it may have been tested, the reasonableness of the story as detailed by the witnesses, and the corroborations or contradictions of the matters testified to by the witnesses, by the-other facts or evidence in the case. Taking all these things together, if you find the evidence inconsistent and contradictory, determine who of the witnesses shall be believed in the case.
    Certain written points have been submitted to us, which it is our duty to answer. The counsel for the plaintiff have requested us to charge you as follows :
    
      [First: That if the j ury find from the evidence that the business of selling stocks for customers is a necessary incident of banking business, then the cashier had the right to make the contract as claimed by the plaintiff, and for any such contract the defendant would be liable.
    Answer: This point is refused for the reason that we have withdrawn from you the evidence bearing upon the question of the selling of stocks being a necessary incident to. the banking business.]
    
      
      \Second: That it the jury find from the evidence that the Business of selling stocks for customers is a necessary incident of the banking business, and that N. L. Lenheim, cashier of the -defendant, agreed with the plaintiff that the bank would receive and sell the stock in question for him, for a consideration, and would deposit the proceeds of the sale to his credit in the bank, "then the bank would be liable for the value of the stock, whenever the same was converted, even if the bank never received the proceeds.
    Answer: This point has the same difficulty. It involves the ■question which we have withdrawn from your consideration as to whether the evidence shows that the business of selling stocks for customers is a necessary incident of the banking business. Tf you find that the directors were so charged with knowledge •of the course of selling stocks that their approval may be presumed, so that a contract might be entered into with Lenheim that would bind the bank, then we think that this point is correctly stated, that if he agreed with the plaintiff that the bank ■would receive and sell the stock in question for him, for a consideration, and would deposit the proceeds of the ' sale to his •credit in the bank, then the bank would be liable for the value •of the stock whenever the same was converted, even if the bank never had the proceeds.]
    
      \lhird-. That the cashier is the general executive officer of .the Bank, and entitled to undertake and perform all legitimate business for the bank, and for his acts in such capacity, the bank is liable, unless express notice is brought home to the persons to be affected by it that his authority has been in some way restricted By the board of directors.
    Answer: "We have already said that this is true, so far as if relates to the general practice and course of business in the bank. "We think it is not correct as to “extraordinary” acts, and courses of business unless the evidence satisfies you that such extraordinary business is done with the knowledge and presumed consent of the directors.] , .
    
      Fourth: That a by-law restricting the general powers of the cashier, and entered upon the minute book of the board of directors, is not, of itself, notice of such restriction, either to a stockholder of, a National Bank, or any one outside of such board-
    Answer: "We refuse this point.
    
      [Fifth: That the open and clear entries of the sale of stocks-for customers in their accounts and on the journal and ledger of the bank is notice to the officers of the bank of such transactions,, and if -there was no special authority given the cashier to make-such transactions, yet, the acquiescence of the officers in the-same amounts to a ratification and the bank is estopped from, denying the authority of the cashier, when the bank has any' corporate authority to perform the act.
    Answer: So far as the particular business mentioned here, the-selling of stocks for customers, is concerned, we have submitted to you whether the entries in the books are sufficient so to charge-the directors with notice as to sustain the inference that they ■ authorized or approved the selling of such stocks. They are presumed to know the entries upon their own books.]
    
      [Sixth: That if the jury find from the evidence that the contract to sell the shares of stock for the plaintiff was made by defendant, that such contract was a necessary incident of banking-business, and that the cashier of the bank received the-shares under such contract, then the bank is liable for the value-of the shares so received by them, and with interest from the-time the same were parted with by the bank, and converted,, even if the proceeds of such sale were by direction of the cashier,, placed to his private account, and never came into the funds of the bank.
    Answei: Leaving out that part of this point which requires; ' that you should find that such contract was a necessary incident-of the banking business, we affirm it, with this understanding,, that if the jury find from the evidence that the contract to sell the shares of stock for the plaintiff was made by the defendant— calling your attention to the distinction between a contract made by the defendant, and a contract made by Lenheim in his individual capacity — and whatever is necessary in the way of notice-to the officers of the defendant to charge them with the responsibility of Lenheim’s contract, then we affirm this point. If ithere was such a contract as bound the defendant, then the «defendant is liable, even though the moneys might go to the ^private account of N. L. Lenheim.]
    Counsel for the defendant have requested us to charge you as ■follows:
    
      First: That the plaintiff cannot recover in this suit upon a •contract entered into between Leonard Searle and N. L. LenTieim, as cashier of the defendant, to sell 200 shares of D., L. & W. R. R. stock, on a commission, without showing that the First National Bank of Montrose had the proceed or avails ■of said stock, as the contract set up was ultra vires.
    Answer: We refuse this point. We think they might be .liable- under other circumstances than those stated in the point.
    
      Second: Leonard Searle being a stockholder at the time he • entered into this transaction, the plaintiff' cannot recover in this -action, if N. L. Lenheim had the proceeds for his own use and benefit, and not the First National Bank of Montrose, as the ■contract was ultra vires, under the National Bank act, and he cannot claim under his own contract in violation of that law, as .it places him in pari delicto.
    Answer: This point we refuse, because circumstances, different from those stated in the point, might permit a recovery.
    
      Third: Leonard Searle, being a stockholder, cannot recover •upon- this contract in violation of the by-laws of the First National Bank of Montrose, he being not only presumed to have notice of its provisions, but the by-laws were a binding contract .“between him and the other stockholders of the bank.
    Answer :■ We affirm this point, that he could not recover in •violation of the by-laws. But if the point requires us to rule that this contract was in violation of the by-laws, so far, we ■ cannot sustain it. We do not think the by-law in evidence . affects the contract in question in this case.
    
      Fourth: The contract upon which the plaintiff seeks to recover was ultra vires the bank, and he cannot recover upon it, in .•affirmance of that contract, and under the declaration in the case.
    Answer: We refuse this point. It involves two questions/ ‘The recovery upon the contract, and the recovery under the declaration. We think that under the declaration in this case a-recovery might he had.
    
      Fifth: There being no proof that the bank has had the proceeds of the sale of the stocks, there can be no recovery in this, case.
    Answer: We refuse this point.
    
      Sixth: The plaintiff cannot recover upon the contract which*, he alleges he made with N. L. Lenheim, as it was ultra vireswith any power on the part of Lenheim to hind the bank.
    Answer: This point requires us to take this case from your consideration, and we decline so to do.
    
      Seventh: That the provisions in the by-laws of the First: National Bank of- Montrose, Article 14, that “no officer, agent, or employee of the bank shall have any power to create or incur any debt or liability on any account whatever, against it, without express authority in such instance from the board of directors,, this shall not apply to the ordinary indorsement of checks, or making of drafts in the regular business of the bank” was-binding upon Leonard Searle who was a stockholder in the bank, and prevents the plaintiff' from setting up an arrangement between Leonard Searle and N. L. Lenheim to sell the 200 shares of IX, L. & W. R. R. stock on commission, for the purpose of creating a liability against the bank, and your verdict must be; for the defendant.'
    Answer: We decline to affirm this point.
    Now you have this case. The damages claimed by the plaintiff, if, under the evidence, and the law as we have given it to-you, you find that the plaintiff should recover, are the amount for which these stocks were sold, if the evidence shows that they were sold, or their market value at the time they were converted' by the defendant. As we remember the evidence, the stocks-were sold for 89 78-100 on the 24th of August, 1876. You must ascertain from the evidence in the case the sum for which these-stocks were sold, or their fair market value at the time of their conversion, if you think that the plaintiff can recover, with interest from about August 24th, 1876.
    
      Some things have been said ábout the parties to this ease.. [Remarks have been made with reference to corporate bodies, and with reference to the stockholders upon • the one side and upon the other. We desire to say to you that this is a matter of no concern in this case, and should not enter into your consideration.
    You sit here under your solemn oaths, sworn to determine the issues presented here on the evidence. Not from any feeling of prejudice against, or favor for one party or the other. But upon this evidence as it has been presented to you, and under the law as we have laid it down to you, you are to determine the issues in this case. .
    If we are in error as to our rulings upon the law, the responsibility is ours, and our errors can be corrected. We ask you to give to this case that careful consideration which the amount involved requires, and to ascertain, with all fairness and honesty of purpose, the exact facts upon which this verdict should rest, and as you shall find, without fear or favor, so render your verdict in this case.
    The Court admitted the testimony of Myron Wright, who at the time of the defalcation, was a stockholder and director, and liable to an assessment, but who subsequently transferred his stock. Plaintiffs objected to his pompetency on the ground of an interest, after the death of Leonard Searle. The Court also admitted evidence to show that buying and selling stocks for customers was a necessary incident to the banking business, and then withdrew from the j ury this evidence. On Feb. 2d, 1884, the jury rendered a verdict in favor of the defendants. Searle then took a writ of error, complaining of the portions of the charge, and answers to the points in brackets, and of the admission of Myrom Wright’s testimony.
    
      W. H. McCartney and H. H. Jessup, Esqs., for plaintiff in error,
    argued that the Court was in error in withdrawing from the jury, that buying and selling stocks for customers is a necessary incident of banking business. The cases of Allentown Bank vs. Hoch, 89 Penna. 324, Fowler vs. Scully, 72 Penna. 462, are different from the present one. Dealing in stocks is not expressly prohibited, and there may be circumstances under which the bank may be authorized to take stocks, as in compromising a debt; First National Bank of Charlotte vs. Exchange Bank, 2 Otto 122. The case of Fowler vs. Scully was overruled; Winton vs. Little, 94 Penna. 64. The banks are authorized to make any contracts which legitimately appertain to the business of banking, and if receiving special as well as general deposits falls within the scope of that business; the power to receive deposits includes all kinds of deposits, which are known and customary to the banking business. Pattison vs. Syracuse Bank, 80 N. Y. 89; Yerkes vs. National Bank, 69 N. Y. 386. A. bank can properly engage in the business of dealing in and exchanging government securities ; Van Leuven vs. First National Bank, 54 N. Y. 671; Williamson vs. Mason, 12 Hun. 97. But if the acts were ultra vires the bank cannot take advantage of the illegality of its own contract; National Bank vs. Mathews, 98 U. S. 621; Gold Mining Co. vs. National Bank, 96 U. S. 640. The Court ought to have told the jury that the entries in the books of the bank were notice that the cashier was buying and selling stocks for customers. A stockholder and director cannot escape from his liability to.creditors, for debts or liabilities already incurred by a transfer ; National Bank vs. Case, 99 U. S. 628; Bowden vs. Santos, 1 Hughes 158; Curran vs. State of Arkansas, 15 Howard 304; Hawthorne vs. Calef, 2 Wallace 10. As he was liable, he was an incompetent witness under the act of ’69, the plaintiff being dead.
    
      Messrs. Blakeslee and Davies, Esqs., contra,
    argued that the selling of stocks as a broker is not an incident of banking business ; Weckler vs. First National Bank of Hagerstown, 42 Md. 581; Thompson’s National Bank Cases, 533; Allentown vs. Hoch, 89 Penna. 324; Bank of Charlotte vs. National Exchange Bank of Baltimore, 92 U. S. 122. Searle was a stockholder in the bank, and was bound by the Act of Congress, prohibiting the bank from dealing in stocks. The by-laws also forbid it. As to the • competency of Wright section 5136 of the revised statutes provided, that the stockholder may transfer his stock, .and that other' person, becoming a shareholder by such transfer, shall, in proportion to his shares, succeed to all the rights and liabilities of the prior holder of said shares; National Bank vs. Case, 99 U. S. 628. It is only where the transfer is fraudulent that it is void; aud hence Myron Wright was not interested, after the transfer of his shares. '
   The Supreme Court affirmed the judgment of the Common Pleas, on 30th March, 1885, in the following opinion:

Per Curiam.

We have examined all the specifications of error, and given this case a careful consideration. It would have been clear error, if the Court had permitted the jury to find that the business of selling stocks for .customers was a necessary incident of the banking business. It did charge substantially that á recovery could be had, if the weight of the evidence satisfied them the • officers of the bank knew the cashier in the name of the bank was so engaged in the business of buying or selling them. This is all the plaintiff had a right to demand ; Bank of Allentown vs. Hoch, 8 Norris 324. In the present case the evidence shows that the cashier did not assume to act in behalf of the bank, in making sales of the stocks in question, but acted in his individual capacity, and the bank never received the proceeds of the sale. The plaintiffs testator was a director of the bank and must be assumed to have known, what the jury has found as a fact, that the cashier was not authorized by the bank to sell stock. Having trusted to his individual responsibility the plaintiff cannot make the bank liable for the misconduct of his agent.

Judgment affirmed.  