
    ELIZABETH KIMBRO, ADMINISTRATRIX OF SAMUEL KIMBRO, DECEASED, vs. THE FIRST NATIONAL BANK OF WASHINGTON, D. C.
    At Law.
    No. 9069.
    I. Where a draft was issued from the United States Treasury upon the First National Bank of Washington, which was a depository and financial agent of the Government, payable to the order of Kimbro, who was a married woman then living in Tennessee with her husband, and the draft was delivered by the Government to the agents of the payee, who hadbeen employed to prosecute the claim against the United States, and the draft was cashed by a bank in Nashville, on a forged indorsement of the payee’s name, and by it sent for collection to a bank in New York, by -whom it was forwarded to the drawee in Washington, who paid it: Held, that such drawee was liable to the payee, although payment had not been demanded on her behalf until after said drawee had paid it, relying upon the indorsement as genuine. Held, also, that the liability of the drawee was not released by the circumstance that, on paying the draft, it was transmitted to the Treasurer of the United States, who acted upon the indorsement as genuine, and gave full credit for the amount of such draft in the account of the bank. Held, further, that the action would lie, notwithstanding the fact that the payee never had possession of the draft, and that it was on file in the Treasury Department when the demand of payment was made on behalf of said payee, and notwithstanding the fact that defendant, in paying said draft, upon such payee’s indorsement, acted as the agent of the United States Government.
    EC. Where evidence is introduced impeaching the genuineness of the supposed indorsement, it is competent to submit the paper to the jury to show that it had been issued by the Treasury Department, and to determine if the indorsement was a forgery.
    IH. The acknowledgment of a power of attorney before the clerk of a county court, with the seal of the court affixed, does not raise a presumption of law that the instrument was executed by the person mentioned in the certificate of said clerk. Where there is evidence tend" ing to prove and disprove a valid execution, the question must be submitted to the jury upon all the facts.
    IV. If there is a valid execution of a power of attorney, it is a sufficient authority to the attorney to place the name of the payee on the back of the draft, and to receive the money thereon. Or, if the power of attorney was left in the hands of the attorney, to be used by him and he filled the blanks therein, and by that means placed the indorsement on the draft, it would be a good and valid utterance of the draft as against the payee, or those claiming under her.
    V. If the husband, during his life-time, never reduced the draft to his possession, then, upon his death, it became absolutely the wife’s property by survivorship; and if she has not waived her right thereto, the representative of the husband’s estate has no interest iu the cause , of action.
    VI. Where several instructions are refused, but the same points are fully given in other prayers that are allowed, there is no ground for exceptions.
    STATEMENT OF THE CASE.
    From the bill of exceptions it appears that this cause was brought to recover the amount of the following United States Treasury draft:
    “Draft No. 9243, on War-Warrant No. 915, W. P.”
    $3,414.] “Treasury oe the United States,
    Washington, March 9, 1867.
    Pay to the order of Mrs. E. S. Kimbro, three thousand four hundred fourteen dollars.
    Issued on requisition No.-.
    F. E. SPINNEE,
    
      Treasurer of the United States.”
    “No. 9243. Registered March 9, 1867.
    S. B. COLBY,
    
      Register of the Treasury.”
    “ The First National Bank of Washington, D. C. — W. EL EL”'
    (Indorsements:) “Mrs. E. Y. Kimbro, (erased,) Mrs. E. S. Kimbro, W. A. Lord.
    Pay Thos. Eakin, esq., broker, 33 Nassau street, or order, for collection.
    W. J. THOMAS, Cash”
    
    “Pay W. S. Huntington, cashier, or order.
    THOMAS EÁKIN, Cashier .”
    “W. S. Huntington.”
    
      The draft was given in settlement of a claim against the Goverument for property taken duriug the war, and the payee was then living with her husband in the State of Tennessee. This draft was delivered by the Government into the hands of Tompkins & Go., claim-agents at Nashville, Tenn., with whom Mrs. Kimbro had intrusted the prosecution of the claim. It was cashed by the Second National Bank of Tennessee upon the forged indorsement of Mrs. Kimbro’s name. It was afterward forwarded to the Fourth National Bank .of New York for collection, and thence to the First National Bank of "Washington, where it was paid. The plaintiff gave evidence to prove that the husband of Mrs. Kimbro was non compos mentis at the time said draft was issued, and continued so until the time of his death; and that she was appointed administratrix of his estate, and in that capacity brought this action. Evidence was also introduced to prove that the draft had been regularly issued by the Government; that the defendant (the drawee) was a depository and financial agent of the'United States, and that the funds of the United States, against which said draft was-drawn, were then in the hands of said defendant ; that no power of attorney accompanied the draft, and that the Government treated the name on the back of said draft as the genuine signature of Mrs. Kimbro; that said draft was returned to the Treasury Department by the defendant, and that the same was entered to the full credit of the bank in its account with the Treasurer on April 30,1807. The plaintiff then offered to read said draft in evidence; the defendant objected. The-objection was overruled, and the first exception taken.
    Evidence was then given to prove that, in the spring of 1809, payment of the draft had been demanded of the bank and refused; and it further appeared that the draft had never come to the possession of either Mrs. Kimbro or her husband, and that at the time of said demand the draft was on file in the Treasury Department of the United States.
    The plaintiff here rested, and defendant demurred to the evidence, and asked the court to direct the jury to bring in a verdict for the defendant, which prayer the court refused; and this refusal constitutes the second bill of exceptions.
    The counsel for defendant read various depositions, among them one of Iiees W. Porter, who was one of the partners of the said firm of EL Tompkins & Co., to which the following power of attorney was made an exhibit:
    “POWER OR ATTORNEY.
    “ Know all men by these presents that I, Elizabeth Y. Kim-bro, of the county of Davidson, and State of Tennessee, have made, constituted, and appointed EL Tompkins & Co., Nashville, Tennessee, my true and lawful attorneys, for me and in my name, place, and stead, to demand, collect, and receive from the proper disbursing-officer of the Government the sum of three thousand four hundred and fourteen dollars, due me on the following-described draft, to wit, draft No. 9243, on warrant No. 915, dated Washington, D. C., March 9th, 1867, payable to the order of Elizabeth Y. Kimbro, for thirty-four hundred and fourteen dollars, drawn on the Treasury of the United States, and payable at the First National Bank of Washington, D. G., hereby empowering and authorizing my said attorneys to sign my name upon the back-side of said draft, as an indorsement for the purpose of receiving the moneys due me on same, as my attorneys in fact.
    Giving and granting unto said attorneys full power to-, and to do and perform any and all other acts touching these premises; hereby confirming and ratifying the same as fully as if I were personally present and did the same.
    Witness my hand and seal this 15th day of April, 1867.
    [SEAL.] ELIZABETH Y. KIMBRO.”
    “ Signed and sealed in our presence :
    H. E. Smith.
    Wm. O. Nicol.”
    “State of Tennessee,
    
      County of Davidson:
    
    On this 15th day of April, A. D. 1867, before me personally came Mrs. Elizabeth Y. Kimbro, and acknowledged the signing and sealing of the above power of attorney to be her act and deed, for the uses and purposes therein set forth.
    Witness my hand and seal.
    [seal.] R. S. NICOL,
    
      Cleric Davidson County Court.”
    
    
      f 50-eent internal-revenue stamp. )
    
      { E. V. K., Eel). 26, 1867. $
    
      The defendant farther offered evidence tending to prove that said power of attorney was duly executed and acknowledged before E. S. Nichol, clerk of the court of Davidson County, Tennessee, and the evidence of the cashier of the Second National Bank of Nashville, that William A. Lord, one of the said firm of H. Tompkins & Co., brought the said draft and said power of attorney to said bank, and, exhibiting said power of attorney as his authority so to do, indorsed the name of the payee of said draft on the back thereof, aud that, relying on said power of attorney, his bank paid the amount of said draft to said William A. Lord. The defendant further offered evidence tending to prove that the said firm of H. Tompkins & Co. had paid to the said E. Y. Kimbro, on account of said draft, $920, and that the compensation first agreed on between Mrs. Kimbro and H. Tompkins & Co., for the services of the latter in regard to said claim, was ten per cent., but that afterward, and before the allowance of said claim, the rate of compensation was, by consent of both parties, raised to 33£ per cent.
    In the winter of 1869, Mrs. Kimbro brought suit in her own name against the bank, in which she recovered a judgment, but the general term on appeal set it aside, for the reason that the .plaintiff being a married woman, and the draft coming to her during coverture, is vested in her husband, and therefore the action could not be maintained in her name alone. He died, as already stated, before the commencement of the present action, pending which Mrs. Kimbro herself has departed this life, and the present plaintiff was appointed administrator de bonis non. The defendant offered the record of the case just mentioned' in evidence for the purpose of showing that she had not waived her right to the survivorship of the chose in action in this litigation on the death of her husband. The plaintiff objected to the admission of this record, and the court refused to allow the same to be read; to which ruling the defendant excepted, and there rested the defense.
    Several depositions were read by the plaintiff tending to prove irregularities in the office of the clerk of Davidson County, Tennessee.
    
      The testimony being closed, the defendant asked for the following prayers:
    1. From the evidence in the case, in regard to the prosecution in her own name of the claim, which was the consideration of the draft in question, issued as it was to her in her own right, the jury are at liberty to presume that Mrs. Kim-bro had authority to attend to all matters connected with said claim, and, therefore, to execute the power of attorney in evidence as “Exhibit A” of Bees W. Porter’s deposition. Granted.
    2. The presumption of law is that the power of attorney in evidence, being duly attested by the clerk and seal of the court of Davidson County, Tennessee, is a good and valid power of attorney, and the burden of proof is on the plaintiff to show that it is invalid. Befused.
    3. If Mrs. K. had authority to execute the power of attorney, “ Exhibit A” to Porter’s deposition, said power of attorney was a sufficient authority for the firm of H. Tompkins & Co. to place her name on the back of the draft in question, an'd receive the money thereon, and, if they did so, the plaintiff cannot recover in this suit. Granted.
    4. If the jury find the facts to be that the said power of attorney was executed and acknowledged, with blanks to be filled in with description of the draft, and the same was left in the hands of H. Tompkins & Go. to be used by them, and that they subsequently filled the blanks, and by that means placed the name of the plaintiff on the back of the draft, and thereby induced the defendant, or the party from whom the draft came to the defendant, to cash the same without notice of the facts that said blanks had been so filled up, the plaintiff cannot recover in this suit. Granted.
    5. If the jury find that the power of attorney was. executed and acknowledged with blanks for the description of the draft, and that the power so executed was left with H. Tompkins & Go. for use; then, as between this plaintiff and defendant, that power of attorney was sufficient authority for them to fill up said blanks with such description, and to use the same in uttering said draft, and that if they did so fill up and so use said power, the plaintiff cannot recover in this suit. Granted.
    
      6. That if, under all the evidence and instructions of the court, the jury find, for the plaintiff, the amount of the verdict will he the amount of the draft, less the amount to be paid for prosecuting said claim and rhe amount paid the plaintiff to apply on the same. Granted.
    7. That if the jury believe that the credit given to the defendant by the United States Treasury was given on the faith of the genuineness of the signature of Mrs. K., then the plaintiff must look to the United States for her remedy, aud cannot recover in this action. Eefused.
    8. In the absence of other proof than that a note or draft is issued payable to the order of a married woman, it must be presumed that the meritorious consideration therefor sprung from herself and not from her husband, and if the husband dies without having reduced the note or draft to his possession, the absolute ownership thereof vests eo instanti in the wife, xmyee named in the note, and when the ownership of a chose in action has vested in one person, action thereon cannot be maintained in the name of another person, nor in the name of his representative, without proof of an actual assignment. Eefused.
    9. Unless the jury find from the evidence that the draft in question was presented to the First National Bank, and accepted by said bank, in favor of the plaintiff’s decedent, they must render a verdict for the defendant. Eefused.
    10. The defendant, in payment of the draft in evidence, acted as the agents of the United States Government, and particularly of the United States Treasurer, and are not liable in this action. Eefused.
    11. If the jury, from all the evidence, find that in paying the draft in question the defendants acted as the agents of the Treasurer of the United States, then the defendants are not liable in this action. Eefused.
    12. If the jury believe, from all the evidence, that the draft in question was issued to Elizabeth Kimbro, upon a claim of hers against the United States, and that her husband, during his life-time, never reduced the said draft to his -possession, then, upon his death, prior to the commencement of this .action, the cause of action thereon became hers absolutely, and did not belong to the estate of the said husband, and if the jury are further satisfied that the said Elizabeth Kimbro has never intended to waive her rights of property therein, then the representative of her husband’s estate has no interest in the subject-matter of this action, and the jury must-render a verdict for the defendant. Granted.
    13. If the jury find, from all the proofs in the case, that the draft in evidence was issued to Elizabeth Kimbro during coverture, and that prior to the commencement of this action her husband died without having at any time reduced said draft to his possession, then the action cannot be maintained by the representative of the estate of her deceased husband,, and the jury must return a verdict for the defendant, unless, they further find that, intermediate her husband’s death and the commencement of this action, she transferred the cause-of action herein to the estate of her husband. Eefused.
    14. Unless the jury find that Samuel Kimbro, at the time the draft in evidence was issued, was not of sufficiently sound mind to be capable of making a valid contract or - attending to his business, the right of action in this case is barred by the statute of limitations, and verdict must go for the defendant. Eefused.
    15. If the jury find that, at the date of said draft, said Samuel Kimbro was of unsound mind, and if they further find that Mrs. Kimbro had right or authority to prosecute in her own name the claim in payment of which said draft was issued 5 then, without further evidence, it is competent for the jury to find that she had full right or authority to execute the power of attorney given in proof on the part of the defendants. And should they find she had not right or authority, and that she did execute and acknowledge the said power of attorney, whether the same was in blank or not, and delivered it to the firm of H. Tompkins & Oo., and that one of the said firm wrote her name on the back of the draft, and that, relying upon such indorsem'ent, the defendants paid the draft, the jury should find for the defendant. Eefused.
    The court granted the first, third, fourth, fifth, sixth, and twelfth prayers, and refused to grant all the others. Whereupon the defendant excepted to such refusal, after which the jury retired, and ou returning rendered a verdict in favor of the plaintiff for $3,414, with interest. The case is now here upon the foregoing exceptions.
    
      J. Daniels and M. Thompson, for plaintiff, argued the exceptions as follows:
    The first exception taken by the defendant is, that the court erred in permitting the draft to be read in evidence for the reason that said draft having been given to Mrs. Kimbro during coverture,-and never having been reduced to possession by her husband, the right of action survived to her, and therefore she could not maintain the action for the benefit of the husband’s estate.
    The second exception, that the court erred in refusing to instruct the jury to bring in a verdict for the defendant, is based upon the same grounds as the first.
    To these exceptions we reply, first, that the draft having been made to her, it was proper evidence to establish the claim. Second, that the choses in action of the wife, coming to her during coverture, vest absolutely eo instanti in the husband, without any act on his part to reduce them to possession. (See the opinion of this court in the case of Kimbro vs. First National Bank, above referred to in the history of this case, decided December, 1870; see, also, 1st East., 432; 6 Johnson R., 112, Mass., 229; Lighthouse vs. Penniman, 2 Conn., 564; Lightborne vs. Halladay, 2d Eq. Ca. Ab., 1.
    Second. That even if it were not so, the objection would fail in this case, as the husband was insane, or non compos mentis, at the time the draft issued, and remained so until death, and his estate could not be prejudiced by his not doing an act of which he, was totally incapable.
    Third. Even if the right of action had survived to her, she had a right to waive it in favor of the estate of her husband and her bringing suit in her official capacity as administratrix of her husband’s estate is a fair legal presumption that she so intended.
    Exceptions to the refusal of the court to grant the eighth and thirteenth prayers stand on the same ground as the first and second exceptions.
    
      The third exception is to the ruling of the court in refusing to allow the defendant to submit the printed record in the case of Kimbro vs. The First National Bank (that is, the record of the former trial) to the jury as evidence.
    There can be nothing in this exception, for the reason that the object for which this species of evidence was sought to be introduced, as stated by counsel in their brief, was to show that the former action, in which this record was made, was brought by Mrs. Kimbro in her own right. This fact appears in the pleadings in this case, and is a part oí the declaration, or in an affidavit appended to it, which is equally conclusive of the fact, but it would not have shown that two actions were pending in this court by the same parties, for the same cause, and at the same time; if it would, it was certainly properly excluded, for such was not the fact, as is shown by the records of this court. This court said that the former action was commenced by the wrong party, plaintiff, and remanded the case to the court below, “to be proceeded in according to law,” and nothing further was ever done in that suit, but a new action commenced, as the only legal way in which plaintiff could proceed. This was strictly in accordance with the order of this court remanding the case $ and beyond this, the record, containing, as it does, statements ot counsel, prayers to the court, exceptions to the rulings, &c., was not a proper document to be submitted to the jury as evidence in this case.
    Fourth exception, that the court erred in refusing second prayer.
    This power of attorney was executed by a married woman during coverture, without the consent or concurrence of her husband, in a State where the wife is incapable of making a contract, even as to her own property, without the concurrence of her husband; and much less could she dispose of her husband’s estate without his consent, unless he had been declared insane, or of unsound mind, by a tribunal established by law, and there is no pretext here that such was the case. She could not have transferred this draft to a stranger by her own indorsement, and of course could not authorize another, by her written authority or otherwise, to do what she herself could not do. (See Code of Tennessee, section 2486.) This power of attorney is a part of the record in this court, and it will be seen by inspection that the marks of fraud and irregularity are borne upon its face, and therefore it does not come within the rule stated by counsel; and the prayer was properly refused.
    SEVENTH PRATER.
    The doctrine is well settled that, while the acceptor or drawee of a bill is not bound to pay it if the indorsement under which the holder claims is forged, and may compel the holder to prove the genuineness of the signature of the payee, yet if he does pay it, the real owner is still entitled to recover the amount as well from the holder as from the acceptor. (See Story on Bills of Exchange, sec. 451; Canal Bank vs. Bank of Albany, 1st Hill N. Y. Rep., 287; Goddard vs. Merchants’ Bank, 2d Sanford Sup. Ct. N. Y. Rep., 247.) So in this case the First National Bank, defendant, might have compelled the Fourth National Bank, who presented the bill for payment, to prove the genuineness of the signature of the plaintiff and payee before payment; but as they did not take that precaution, they paid it .at their peril, and must respond to the payee if her signature is forged or placed on the bill without her authority.
    The payment of a draft or bill on a forged indorsement is equivalent to an acceptance. (See Canal Bank vs. Bank of Albany, 1st Hill N. Y. Rep., cited above.)
    The defendant paid this draft on the strength of the indorsement of the Fourth National Bank of New York, and may recover the amount from the bank, and their duty was, when they found that they had paid the draft upon a forged indorsement, to have paid the plaintiff and made reclamation upon the Fourth National Bank of New York.
    NINTH PRATER.
    The payment of a draft upon a forged indorsement, or without proper authority, is equivalent to an acceptance in favor of the rightful owner. (See authorities above cited.)
    The relations of this defendant to the Government, so far as its deposits were concerned, were the same as existed between the defendant and any other depositor. The law gives the Government the right to designate certain banks as national depositories, and in banks so designated the Treasurer and other disbursing officers may make deposits from time to time for the convenience of business, and the case stands the same, so far as these parties are concerned, as though a paymaster in the Army or Navy or any other disbursing officer of the Government had drawn this draft. (See currency act, June 3, 1864, 13 Statutes at Large, 113.)
    This is in the nature of an equitable action, and lies to recover money in the hands of the defendant, which he in good conscience ought not to retain. No stronger case could be presented to a court than this. It is admitted by the defendant that the plaintiff is not at fault. She has not received the money due her from the drawee of this draft. The defendant has got it and has not paid it to any person authorized to receive it; if he has paid it through his own carelessness to the wrong party, he alone must suffer.
    The power of attorney could not aid them even though it had been properly executed, and obtained fairly in the ordinary course of business, (which is not the case,) because it is in evidence and admitted that no power of attorney accompanied the draft when it was paid, and the defendant did not know of its existence.
    The defendant has received the money from the drawer of the bill and should pay it to the plaintiff. Byles on Bills, p. 45 and 32-43; Stackpole vs. Arnold, 11 Mass., pp. 27, 29; 16 Pick., pp. 347, 350; 12 Mass., pp. 173, 175; 22 Pick., pp. 158-161; 7 Wend., p. 68; 10 Wend., pp. 87, 271; Story on Agency, p.. 147 and note 4; Collyer on Part., p. 365 and note 1; Story on Agency, 149 and note 2; Story on Agency, p. 154; Com. Dig. Attorney, 6, 11, 14, 15; Story, p. 155 and 42, 157, 160, and p. 204-5; Story, pp. 165, 170, 172, 199, 209, 166, 126, note 4, 133, and note 2, 430, 437.
    
      A. G. Riddle and Francis Miller for defendants:
    FIRST AND SECOND EXCEPTIONS.
    The court erred in permitting the draft to be read in evidence, for the reason that said draft having been given to Mrs. Kimbro during coverture, and never having been reduced to possession by her husband, survived to her, and the action in the right of her husband cannot be maintained.
    For the same reason the court erred in refusing to instruct the jury to bring in a verdict for the defendant, for the evidence of the plaintiff proved that if there was any cause of action against this defendant it was not in Whitman, but in the personal representatives of Mrs. Kimbro. “ The right of the wife to dioses in action coming to her during coverture survives to her, unless the husband reduces them to possession.” 2 Kent’s Com., *135; 1 Parsons on N. and B., 87; Gallego vs. Gallego, 2 Brockenbrough, 285; Hayward vs. Hayward, 20 Pick., 518; Draper vs. Jackson, 16 Mass., 480; Poor vs. Hazelton, 15 N. H., 564; Fisk vs. Cushman, 6 Cush., 20.
    These authorities also show that the court should have granted the 8th and 13th instructions asked for by the defendant. Laws of Md.; Ch. 101, Sub-ch. 5, Sec. 8; 18 U. S. Stat., 484; 18 U. S. Stat., 515.
    THIRD EXCEPTION.
    The court erred in refusing to submit in evidence the record of E. V. Kimbro vs. The First National Bank of Washington.
    
    As appears by the affidavit of Mrs. Kimbro, accompanying the declaration in this cause, this was an action instituted by her in her own right, to recover the same money sued for in this case. The said action is still upon the docket of this court, undismissed and undisposed of in any way. The record was proof tending to show that Mrs. Kimbro had never, during her life-time, assigned her right of action to her husband or any one else, and should therefore have been submitted to the jury.
    It was in proof that there were two actions now pending in this court against the same defendant, for the same cause of action, and as the one on trial could only be sustained on the hypothesis that Mrs. Kimbro’s right of survivorship in the chose in action, which is the subject-matter of this suit, had passed in some way to the personal representatives of her husband, it was evidence proper to be submitted to the jury y if, indeed, it was not conclusive evidence that no such transfer had been made.
    
      FOURTH EXCEPTION.
    
      (a.) The court erred iu refusing” the defendant’s second prayer. The signature of the clerk of Davidson County court and the seal of said court were proved by uncontradicted testimony.
    (b.) The court erred in refusing to grant defendant’s seventh prayer. This draft was made payable to Mrs. Kimbro by the Treasurer of the United States. She was an entire stranger to the bank, and had no right of action against the bank till the draft was presented and accepted by the bank. 2 Parson on N. & B., pp. 59-61, and notes. Till such presentation and acceptance, therefore, the transaction was solely between the bank and the United States. The obligation of the bank was to pay the money deposited with it in such manner as should be satisfactory to the Government. If it had been ordered to return the money to the Treasury, or to decline to pay the draft when presented, it would have been bound to obey. When, therefore, the draft was presented and paid, and transmitted to the Treasurer, and he recognized the fact that the bank had discharged its fall duty to the Government, all responsibility on its part ceased, whether to the Government or to the payee of the draft. The payee being a stranger to the bank, the bank was under no obligation to know her signature, while the Treasurer was bound to do so. “The acceptor looks only at the handwriting of the drawer.” 2 Parsons on N. & B., p. 590, and notes; 1 Parsons on N. & B., p. 321, and notes; Smith vs. Mercer, 6 Taunton, 76; Price vs. Seale, 3 Burrows, 1354.
    The United States was bound to know the signature of their payee, and when the officers of the Treasury received the draft on the faith of her signature, and gave the defendant credit for it, they placed the Government in the position of a bank receiving counterfeits of its own notes, the loss of which falls on the bank, (Bank of United States vs. Bank of Georgia, 10 Wh., 333,) or, more nearly, of a bank which receives from a depositor a forged check of one of its own customers, and gives him credit in his bank-book. In such cases the depositor can sue the bank for the amount so passed to his credit, and recover. Levy vs. Bank of United States, 1 Binney, 30; same case, 4 Dallas, 234.
    (c.) The court erred in refusing- to give the defendant’s ninth instruction. If the draft was paid by the defendant to a person actiug without the authority of the plaintiff, then the draft was never duly presented, for “presentment must be made by the lawful owner, or his agent.” 1 Parsons on N. & B., 339. Moreover, “a check payable on presentment cannot in the usual course of business be presented for acceptance.” 2 Pars, on N. & B., 71. The drawee owes no duty to the holder until the check is presented and accepted. Chisman vs. White, 2 Selden, 412.
    
      (d.) The court erred in refusing to give the defendant’s ninth and tenth instructions. The 45th section of the act of June 3, 1804, (13 Stat., 113,) authorizes the Secretary of the Treasury to designate certain of the banks as national depositories and financial agents of the Government. As depositories, they were to receive any moneys of the United States that the officers of the United States were authorized or required to deposit with them. As financial agents, they were to transact such business as the Government might charge them with. Thus the First National Bank was the agent of the United States to pay Mrs. Kimbro. It did pay out the money on the draft in her favor, as such agent, and the ratification of the act of the agent by the principal made that payment the payment of the principal. According to the testimony of Mr. Tayler, the First Comptroller, the Treasurer might have drawn the draft in question either .upon himself, or any assistant treasurer, or any United States depository, and in either case the mode of payment and of accounting, as between the Treasurer and his subordinates, and as between the Treasurer and the Government, was the same. Now, this could only be so on the hypothesis that the bank was acting as the agent of the Government, and that its act was the act of the Government; and if this is the fact, there can be no liability on the part of the bank to this plaintiff.
    (e.) The court erred in refusing to give the defendant’s fourteenth instruction. It appears from the record that the defendant pleaded the statute of limitations, to which the plaintiff replied that “the money was obtained by the defendant by means of fraud, and that said fraud was not discovered three years before this suit.” To this replication the defendant demurred, and the demurrer was sustained. The plaintiff then replied that “Samuel Kimbro, the deceased, was at the time, and long before said cause of action accrued, non compos mentis, and so continued till his death; ” upon which replication issue was joined. This issue, if found against the plaintiff, was decisive of the case, and the j ury should have been so instructed.
    (/.) The court erred in refusing to give the defendant’s fifteenth instruction. It is evident that if Mrs. Kimbro had power to prosecute the claim in her own name, she had a right to execute the power of attorney in evidence, and the court so held in granting the defendant’s first instruction. If the jury found that she did execute and acknowledge that power in full, as it now stands, and her name was indorsed on the draft by one of the firm to whom it was given, and the draft was paid by reason of that indorsement, the payment was valid.
   Mr. Justice Humphreys

delivered the opinion of the court:

In March, 18C7, a draft was issued from the Treasury of the United States on the First National Bank of Washington, D. C., payable to Mrs. B. S. Kimbro, for the sum of three thousand four hundred and fourteen dollars, issued on a war-warrant, which warrant was issued on requisition of the Secretary of War, March, 1867.

Mrs. Kimbro was the wife of Samuel Kimbro, and they resided at the time in Davidson County, Tennessee.

The First National Bank of Washington, District of Columbia, paid the amount of the draft after it had passed through a national bank in Nashville, Tennessee, and one in New York. The first indorsements bear the names of Mrs. B. Y. Kimbro, which was erased, and Mrs, B. S. Kimbro. The plaintiff alleges that Mrs. Kimbro never indorsed or authorized any one to indorse the said draft, nor did Samuel Kimbro, the husband, indorse or authorize any one to indorse the same, nor did either of them sell or dispose of the same, or authorize any one to collect the amount of said draft. Suit was brought by the administratrix of Samuel Kirnbro, after his death, to recover the amount from the defendant, and the suit revived in the name of the administrator de bonis non.

There was evidence tending to show that the name of Kirnbro on the back of the draft was not the signature of either Mrs. Kirnbro or Samuel Kirnbro, and that the same was not authorized by either of them, and that neither of them had ever parted with the property in said draft, nor authorized any one to collect the same. The evidence further tended to show that the fact that the warrant and draft had been issued was not communicated to Mrs. Kirnbro or to her husband until some time in 1869, but that the same had been concealed from both wife and husband by those who originally had acted as their agents in Nashville to present the claim to the War Department. After evidence had been introduced to prove that the draft had been issued regularly from the Treasury, and that the same had been paid by defendant, plaintiff was allowed by the court at the circuit to read the draft to the jury, to which defendant objected and excepted. We think the reading of the paper was competent and proper to show that such had been issued, and to determine if the indorsement was genuine, for that was directly in issue.

The defendant submitted fifteen prayers, six of which were given in charge to the jury at the circuit, and the remainder declined, and defendant excepted to the refusals. The second charge asked for was as follows:

“The presumption of law is that the power of attorney in evidence, being duly attested by the clerk and seal of the court of Davidson County, Tenn., is a good and valid power of attorney, and the burden of proof is on the plaintiff to show that it is invalid.”

A paper purporting to be- a power of attorney, executed by Mrs. Kirnbro on the 15th of April, 1S67, was exhibited along with the deposition of one Porter, and evidence was introduced tending on the respective sides to sustain and contradict the genuineness of the execution of the same by Mrs. Kirnbro. We do not see how the instruction asked could be proper. The execution of the paper was in issue, and there was no law requiring such an instrument to be recorded or giving force to such a certificate. No more weight was to be given to this than any other proof, and the jury must determine all the facts together, and give their verdict as they found the weight of evidence. Besides this, defendant had all benefit of every fact which the jury might find in the 3d and 4th prayers, which were given in charge. We do not think there was error in refusing to give the charge contained in the seventh prayer, nor in the eighth, ninth, tenth, nor eleventh. The twelfth prayer, which was given in charge, was full, and included all that was asked by the 13th, which it was proper to give to the jury. The fourteenth and fifteenth prayers were properly refused. The conclusion to which we come is that the motion for a new trial on the exceptions is overruled, and the judgment-of the circuit court'is affirmed.  