We think the referee erred in deducting the proceeds of the Tate draft from the amount of the plaintiff’s recovery.
This draft was collected by the bank, not as agent of the plaintiff, but as agent of Spencer Gooding, the defendant’s attorney, and passed to his credit in account in the books of the bank and paid to him.
The plaintiff had nothing to do with it, and the said draft or the moneys collected on it at no time became the property of the plaintiff. The bank was simply intrusted by the plaintiff with the note of the defendant for collection, and had no power to bind the plaintiff by any contracts to receive any thing but money in pay-*458meat thereof, or to do with said note any thing else but to receive payment of it in cash.
The judgment must be reversed, and a new trial granted with costs to abide the event.
Judgment reversed.