We are unable to see any distinction between this case and that of the Atlantic Bank v. Merchants’ Bank, 10 Gray, 532, which can withdraw it from the operation of the principles on which that case was decided.
The grounds of that decision were substantially these : That the money of the Atlantic Bank was obtained from it without consideration, by means of a gross fraud and conspiracy between Hooper, a defaulting teller of the Merchants’ Bank, Ward, a teller of the Atlantic Bank, and a broker named Peabody; that it was paid into the Merchants’ Bank without any consideration, to enable Hooper to conceal a deficiency of cash which he had previously embezzled; that the Merchants’ Bank, receiving it through their officer and agent, Hooper, who was fully cognizant of the fraud and a participator in it, took it with full notice, and acquired no property in it against the true owner; that passing it from one officer to another in the Merchants’ Bank, after it had been received, did not change the property; and that the rule that a payment of a debt in current money to one who receives it in good faith is a valid payment, and cannot be avoided, although the person paying the money procured it fraudulently, had no application, because the money was never received in payment of any debt from Hooper, but was counted and treated as the property of the bank, the other officers of the bank having no knowledge or belief that Hooper was indebted to it.
All these facts find a parallel in the case at the bar. The evidence seems to establish clearly a fraudulent conspiracy between Davis, the plaintiff’s clerk, and Hooper and Ward, to obtain the money of the plaintiff to use for the purpose of concealing Hooper’s embezzlement. Davis was merely a clerk of the plaintiff, upon a salary of $100 a month; and without apparent means to make such a loan. He had told Hooper that the amount was more than he could arrange. The firm to which he had belonged had failed, and he does not appear to have been doing any business on his own account. He drew checks in *295the name and on account of the plaintiff, to be used in his business. Hooper told him to draw his check, and arrange it with Ward. Ward was obviously the agent of Hooper in the execution of the fraudulent plan, and when Hooper sent Davis to him to perfect the arrangement, the" knowledge of Ward must be considered the knowledge of Hooper ; and Ward certainly knew the precise instrumentalities used to obtain the money. But if Hooper had supposed that Davis was to use his own check, and obtain bills of the Atlantic Bank upon it from Ward, the result would be the same. In that case, Hooper would have thought that the money which was dishonestly obtained for him was the money of the Atlantic Bank, and would not have known the specific fraud practised on the plaintiff. But he would have known just as well that it was not Davis’s money, because he knew and had been told that Davis had not the means to procure it; and he expected that Davis would get it, through Ward, by means of a fraud on somebody. It was then money belonging to the plaintiff, fraudulently taken by his clerk, and paid into the Merchants’ Bank under Hooper’s direction, not as a loan from Davis to Hooper, but as money fraudulently procured by Davis, to be shown to the defendants by a deceit and imposition as their money, and then to be returned to Davis, and secretly restored by him to its owner, as on a former occasion.
The circumstances of the reception of the money being therefore substantially alike in the two cases, and it being received by the defendants without consideration through their officer, who knew all the material facts, we are next to consider whether there was anything done afterward which would change the property, and vest it in the defendants.
It appears that at the close of business in the forenoon, all the money of the defendants under the control of Hooper was passed by him to the receiving teller, who entered it to the credit of Hooper, as paying teller, upon the books of the bank ; that it was handed by the receiving teller to the directors when they came to count Hooper’s cash in the afternoon, and, after it was counted, was returned to Hooper by them.
We think this was no more a payment by Hooper than his *296handing it directly to the committee of the directors would have been. He had it in his custody as the property of the bank, and not as his own property. He could give the bank no property in it, and he did not intend to give them any. The receiving teller received and entered it, not as a payment by Hooper of a debt due by him to the bank, but as a statement of the bank’s money in Hooper’s custody, for the mere purpose of seeing that the amount was correct, and of thus enabling the bank to take account of all its possessions. The money was no more in the possession of the bank when the receiving teller took it, than it was before when Hooper had it. This case merely discloses two countings where the other case disclosed one.
The ground of the former decision of the court is therefore equally applicable here; that money obtained by fraud and conspiracy, received by the bank through Hooper, a partaker in the fraud, without consideration, did not become the. property of the bank; and that no transfer from one officer to another in the bank, for the purpose of counting and ascertaining what money the bank had, could change the property, the bank counting it as their own money, and being induced by imposition to think it their own, when it was not; and never having received it from Hooper as the payment of a debt ascertained and admitted to be due from him on account of a discovered embezzlement. When the defendants, therefore, subsequently appropriated it as their own, they applied the money of the plaintiff to their own use ; and though this was done under a misapprehension, they are responsible for the amount.
The majority of the court are therefore of opinion that the aulhority of the previous decision is conclusive, and that under the agreement of the parties there should be
Judgment for the plaintiff.