dissenting. — On August 24, 1859, B. D. Pede, then Treasurer of the State, having in his individual and official capacity opened an account with the plaintiffs, in which his private and public funds were credited to him as Treasurer, procured the accommodation note now in suit and transferred the same to the bank by whom the proceeds were thus credited.
The note was made payable to Pede or his order, and indorsed by him, both in his individual and official capacity, the latter, although at the request of the plaintiffs, was without official authority.
When the note became payable it was duly protested for non-payment; at which time the Treasurer had a credit in the bank over and above his liabilities of $1168,70, and, at the special instance and request of the bank, drew his official check for $1100, which was received, charged to him and indorsed on the note. Prior to this time, however, the bank had become aware of Peck’s official defalcation, and, with full knowledge of that fact, obtained the cheek in part payment of the note and made the indorsement thereon.
Subsequently, the Legislature, who had granted, and still retained the power to nullify the charter of the bank,—
'' Ordered, — That the Treasurer of the State be directed *557to demand of the Mechanics’ Bank, Portland, the sum of eleven hundred dollars, being the amount of the money of the State paid to said, bank, on the twenty-ninth of December, A. D. 1859, by JB. D. Peck, late State Treasurer, without authority of law; and the payment thereof to be made on or before Wednesday next.”
On that day the demand was made, to wit, on March 10, 1860, and the amount claimed was paid to the then State Treasurer by the bank, who, without the knowledge or consent of the defendants, erased their previous indorsement, and in this suit claim to recover the note with the indorsement thus erased.
Whether, or not, the Legislature acted wisely in their peremptory demand, or the bank in its ready compliance, we are not now called upon judicially to determine. It has, however, been suggested that the resolve was in terrorem. But, Tantaene animis coelestibus irae!
It may be very questionable whether that part of the resolve, which embraces an ex parte adjudication, that the payment was made "without authority of law” is correct. It has been otherwise decided in New York, in the case of Swartwout v. Mechanics’ Bank, 5 Denio, 555, where the Court held that "a mere deposit by a collector in his own name, with his official addition, is no accounting for the money received by him in his official capacity. A county treasurer, sheriff, surrogate, or other officer, opens an account with a bank with his addition, and keeps a separate account in such capacity; most clearly he can collect such deposit in his own name, and the bank would not be permitted to show that the money belonged to the county.”
But in the same State, in a subsequent decision, in the case of Scranton, Ex’r, v. The Farmers’ and Mechanics’ Bank of Rochester, 10 Smith, 424, a contrary opinion was pronounced by a majority of the Court, (two members thereof dissenting.) In that case it was held that an insolvent executor by depositing funds derived exclusively from the proceeds of his testator’s estate, in his official capacity, thereby *558transferred them to the testato’rs heirs, and beyond the reach of his own private creditors. The law, therefore, upon this point, seems to be unsettled. It may, perhaps, be contended with a degree of plausibility, that the Court, in the first, and the dissenting Judges in the second opinion, advanced the sounder reason and the better logic. In the case at bar, however, the funds deposited never belonged to the State.
Our statute, c. 2, § 80, provides that, — "No greater amount of money of the State than twenty thousand dollars shall be on deposit in any bank, unless it is necessary for the purpose of paying bonds of the Slate and interest, becoming payable at such bank.” . It is, therefore, urged that money so deposited is ipso facto a transfer to the State. But, under that section, the Treasurer is not obliged to deposit in any particular place. He may-keep the money in his actual possession. What safety to the State would it be against a fraudulent Treasurer to have the money so deposited ? His official checks would soon restore it to himself or disseminate it in various ways. But money so deposited may be an excuse for the Treasurer m case of the subsequent insolvency of the bank. Practically, that section can produce no other result. The security of the State, then, is principally the official bond, the moral worth and integrity of the incumbent, stimulated to duty by the executive officers, and the threatenings contained in § 28.
But, whether the foregoing views be correct or otherwise, it may not be very material in this case. I base my opinion principally upon other and distinct grounds. There may be instances when the depositor, acting in bad faith, may suffer the funds to be misappropriated, for which he may become accountable to the true owner. There is another class of cases where it is said, "that ignorance of the law, with the full knowledge of the facts, furnishes no ground to rescind agreements, or to set aside solemn acts of the parties.” Jones v. Mathews, 31 Maine, 318, and authorities there, cited. Had the plaintiffs, under the former, become ac*559countable to the State; still, under the latter contingency, they may be wholly without remedy.
At the time of the disclosure of Peck’s insolvency three parties were interested in the legal appropriation of his bank assets; viz., his sureties on his official bond, the bank and the signers of accommodation paper. It was known to the bank that the note in suit was payable to Peck in his individual capacity, but was discounted solely on the strength of his official indorsement, and so credited to him in his account current, at a time when the balance was largely in his favor. The attorney for the bank now admits that the official indorsement was without authority, or, in other words, that it was perfected by parties ignorant of the law, which ignorance caused the negotiation that otherwise would not have been accomplished. Thus far there was no ignorance of any material facts. . How was it in relation to subsequent proceedings? This is disclosed in an extract from the agreed statement. " When said note fell due, namely, Dec. 28, 1859, not being paid, it was protested. About this time it was ascertained that Peck was a defaulter to the State. Dec. 29, Dow, one of Peck’s bondsmen to the State, called on the president of the bank and requested him, as Peck was in trouble, not to honor any more of Peck’s checks against said account. In the evening of the same day with this interview with Dow, said president, with the cashier, called on Peck with the note and urged payment. There was then a balance to said account of $1,168,70. Peck gave them a check against said account, signed B. D. Peck, State Treasurer, for eleven hundred dollars, which was duly cancelled at the bank, as is usual with checks when paid, and the amount indorsed as a partial payment on said note in suit.”
That indorsement, by well settled rules of law, cannot be cancelled except on proof of an ignorance of facts. None such is pretended, but, bn the contrary, it was made with full knowledge of the antecedent and subsequent history of the note and of Peck’s individual and official relations.
*560The plaintiffs may recover the amount for which the defendants offered to be defaulted and costs up to that time, and the defendants their costs since the offer.