The only question presented by this case is whether the evidence upon the trial was sufficient to authorize the court to submit it to a jury. The plaintiff declared against the defendant for converting several checks and certificates of deposite, and it was incumbent upon him to prove the allegations in his declaration. The instruments alledged to have been wrongfully converted belonged to a class of mercantile paper. *Page 168 They had not been dishonored when they came into defendant's possession, and were, therefore, subject to all the rules applicable to ordinary negotiable paper, and the bank was entitled to all the privileges of the holders of such paper. They had been indorsed by the plaintiff to How the agent, and by him they were indorsed to the bank without any knowledge on the part of the bank that How was not the absolute owner of them, or that they had been designed or negotiated for any use other than that to which they were applied. On a careful examination of the testimony in the case, I am not able to find any facts which should affect their validity in the hands of the bank, or which should render its title to them invalid. In order to place the case in a position in which the relation of the parties to each other, and the legal rights resulting therefrom, may be more readily appreciated, suppose the bank had brought its action against the plaintiff as indorser, after having taken all the steps requisite to charge him as such. Would the facts proved in this case constitute any defence to such action? Clearly not, and yet it will scarcely be claimed that any less evidence would be requisite to sustain this action of trover for converting the instruments, than would be required to sustain such defence.
First. There is nothing in the testimony which shows that How, in negotiating the paper to the bank, was not acting strictly within the scope of his agency; that this was not a legitimate method of raising the funds with which to purchase eastern money, and thus transact the business intrusted to him as agent. The fact that he afterwards misappropriated the proceeds of this paper, cannot affect the validity of the transaction with the bank. Until, therefore, the plaintiff had shown that some fraud had been committed upon him by his agent, in negotiating the paper, the bank was not called upon to show that it had received the paper bona fide and for a valuable consideration. The presumption in such cases always arises out of the negotiation of that kind of paper that it was so received unless the contrary be shown. (6 Wend. 615.) Secondly. The evidence in this case shows affirmatively that a full consideration *Page 169 was in fact paid by the bank for the checks and certificates at the time of their negotiation. How received in return certified checks on the bank to the full amount, which he negotiated, and which the bank for any thing that appears in the case, had paid, or were liable to pay.
I think, therefore, that the motion for a nonsuit should have been granted, and the exception is well taken.
Judgment reversed, and venire de novo.