Mr. Justice Terry concurred.

In this case, the conclusion of law drawn from the facts is incorrect. The plaintiff declares for a sum due on the 20th December, 1854, and the defendant pleads, by way of offset, a payment in June, 1855.

It appears that the defendant paid the sum of one hundred and sixty dollars, upon his account, to the witness, Hanford, who was authorized to receive money for the firm of which he was a clerk, and that the amount was not credited upon the books, but by a ticket, which was the usual way, when such sums were paid by "persons who were not regular depositors or customers; that said Hanford, though authorized to receive, had no control over the money or banking business of the firm.

This sum having been received in the usual way of business, and having gone into the drawer, was in law a legal payment; the possession was changed, and the defendant lost all control over it.

The agreement to lend the amount to the witness, Hanford, was not obligatory upon the firm, as they might have refused to allow him to draw the money, and the subsequent reply of the defendant, when interrogated, as to the fact of the loan, “ that he would make it all right with the witness," does not change the character of the transaction. As to the ultimate liability of the defendant for the amount advanced to Hanford, we express no opinion; but we are clear upon the point that the plaintiff should have declared for the hundred and thirty dollars, contracted December, 1854, and also for the amount advanced to Hanford at the instance of the defendant.

It is contended that there is no statement in the record. The order *285 of the Court helow overruling the motion for a new trial, purports to have been made upon the statement on file, which contains the above facts.

Judgment reversed.