after stating the case: The issue tendered by the defendant did not embrace the whole matter of fact at issue — that submitted by the Court did, and was sufficient.
In the absence of special authority for such purpose, neither its president nor its cashier, nor these officers acting conjointly, had authority or right to appropriate and devote any part of the funds of the bank of which the plaintiff is receiver, to the payment of such president’s personal debt *471due to the defendant. Such authority, ordinarily, was beyond the scope of the purpose and duties of such officers. No doubt the directors — the governing authority of the bank — might allow them to exercise such power, or they might ratify such transaction, but it must in some way sufficiently appear that they did. Gt. on Bk., §143, et seq.; id., § 171, et seq.
The defendant had no deposit in the bank, nor did it owe him anything, nor was it in any way bound to recognize and pay his checks or orders on it for money. It did, however, pay them, to his use and benefit. He thus obtained money from it by the unauthorized and fraudulent acts of its officers. Cross had no right or authority to tell the defendant that the bank would pay his checks. This the defendant ought, to have known. It was his duty to himself and to the bank to see that such permission to draw upon it was authorized.
It was his misfortune that he dealt with and confided in its faithless officer, and not with and in it. The mere fact that he had drawn checks that had been paid before, under like circumstances, was no excuse or justification for drawing those in question, certainly in the absence of knowledge of such transactions on the part of the directors of the bank. If the latter connived at, or, by implication, or otherwise, sanctioned such payment of the checks of the defendant, he should have proven the fact.
The checks were not properly “overdrafts” — the defendant did not have any deposit or credit upon which to overdraw. He got and had benefit of the bank’s money in a way not authorized or intended by it, and very certainly it can recover that money, by proper action, as the present one is. Morse on Banking, §360; Bolles on Bk. and Dep., 358; Franklin Bank v. Byram, 39 Me., 489.
Affirmed.