Opinion of the Court, per FOLGER, J.

of law therein; the answer to be served within twenty days after notice of the filing in the court below of the remittitur from this court.

All concur.

Judgment accordingly.

"Seventh. The passage of the aforesaid section 8 (1 R. S., 772, § 8) in nowise interferes with the then existing remedies at law for attacking, or defending against an usurious contract, or a security tainted with usury, nor with the parties who were entitled to use such remedies; nor did it interfere with the then existing equitable jurisdiction and remedies for attacking or defending against such a contract or security, nor with the parties who were entitled to use such remedies, save as laid down in the next rule. (Compare Post v. Utica Bank, 7 Hill R., 391; Rexford v. Widger, 2 Coms. R., 131; Schermerhorn v. Talman, 4 Kern. R., 127; Livingston v. Harris, 11 Wend. R., 330, with the cases cited under rule first.)

"Eighth. The said eighth section restrains the previously exercised equitable jurisdiction of compelling all persons who come into a court of equity for relief against a contract or a security tainted with usury, or to obtain a discovery of usury in aid of the prosecution, or defence, of an action at law, to pay the sum actually loaned and the legal interest thereon, and to offer so to do in the bill of complaint as a condition of granting the relief sought, to those cases where the parties thus coming are not the borrowers themselves, their heirs, devisees, or personal representatives, leaving the exercise of equitable jurisdiction as to those persons who are not the borrowers themselves, their heirs, etc., precisely as it was before the passage of the section. (See cases cited under rule seven.)

"Ninth. A borrower can make no agreement with his grantee or assignee whereby such grantee or assignee can prosecute in a court of equity an action in the name of the borrower for the cancelment of usurious securities given by the borrower, and the court will not give effect to any such agreement if made. (Boughton et al. v. Smith et al., 26 Barb. R., 635.) "The present case falls within the first and second rules.

The defendant, however, insists, as a second ground of demurrer, that there can be no affirmative relief against an usurious contract, or a security tainted with usury, except by bill in equity, under the said section 8. From this premise, if correct, the conclusion would flow that the demurrer is well taken; for then the case would fall within the eighth rule, and the plaintiff, not being the borrower, or his heir, devisee, or personal representative, would be obliged to offer in his complaint to pay the principal sum loaned, and lawful interest thereon, and his complaint would be bad for not containing such offer.

"The premise, however, is incorrect; for that section, as above shown, does not interfere with existing legal remedies, such as trover, replevin, ejectment."

Statement of case.

JOHN M. JAYCOx et al., Respondents, v. RODERICK W. CAMERON, Appellant.

When a judgment is rendered by the General Term, upon a verdict taken subject to the opinion of that court, and a statement of facts, with the questions or conclusions of law thereon, is prepared, as required by section 333 (sub. 2) of the Code, and is made part of the record, the facts presented in the statement are the only ones which can be considered upon appeal. If the statement is defective in any respect, it must be sent back to the Supreme Court for correction. Defendant and S. were engaged in stock speculations through T., a broker. The arrangement with T. was made, and the account was kept, in the name of defendant alone, S. acting ostensibly as agent. Plaintiff's made an agreement with S. that they might purchase stock in the name of defendant, and under his arrangement with T. Defendant did not know of this agreement at the time, but was advised of it soon after, and did not object; he also knew that the stocks purchased for plaintiffs in his name were charged in his general account, and the moneys advanced by plaintiffs as margins were credited to him. Subsequently, by agreement between defendant and S., the latter assumed the stock transactions on joint account, but defendant's name, with his knowledge, was still used, and the account kept as before; he also notified T. that the account was under the management and subject to the direction of S. Under plaintiffs' orders, given through S., their stock was sold, and the balance coming to them thereon was credited by T. in defendant's account. The stocks purchased by defendant and S. had greatly depreciated, and this balance was retained by T. as security thereon. Defendant having refused to pay over the balance upon demand,-Held, that plaintiffs were entitled to recover the amount thereof in an action for money had and received.

(Argued June 5, 1872; decided June 11, 1872.)

APPEAL from judgment of the General Term of the Supreme Court in the fourth judicial department in favor of plaintiffs, entered upon a verdict in favor of plaintiffs, taken subject to the opinion of the court at General Term.

The action was brought to recover an alleged balance in the hands of the defendant, the avails of the sale of certain stocks belonging to plaintiffs.

A statement of facts was made as prescribed by subdivision 2, section 333 of the Code, in substance as follows: During the year 1867-8, the defendant, Cameron, was a

Statement of case.

shipping and commission merchant in New York, having in his employ, as his principal and confidential clerk, one George R. Sampson. Cameron had made an arrangement with one Travers, a stock broker, in New York, for the purchase and holding in Cameron's name, and for purposes of speculation in the market, of the stock of the Merchants' Union Express Company.

Sampson was in fact, by agreement between him and Cameron, jointly interested in this speculation, but without the knowledge of Travers. The plaintiffs, residing at Syracuse, being desirous of speculating in the same stock, but not wishing their names to appear in the operation, made application to Sampson, who stated to them the terms on which Travers had agreed to purchase and hold for Cameron, and assumed to, and did make an agreement with them in Cameron's name, that they might purchase stock in Cameron's name and nominally upon his account through Travers, and under the agreement between Travers and Cameron. And, in pursuance of that agreement, 1,000 shares of the stock were purchased for plaintiff's, which was done the plaintiff's advancing the requisite margin; the amount of the purchase-money being charged to Cameron in account by Travers, and the amount of margin credited to him.

Sampson was not authorized by Cameron to make this arrangement, but he (Cameron) was informed of it by Sampson within forty-eight hours and did not dissent from it; and was also informed by Travers, by the rendering of accounts of purchase, of the fact that the 1,000 shares had been purchased for his (Cameron's) account.

Travers understood from Cameron that parties in Syracuse were interested in the purchase of the 1,000 shares, and were to protect him (Cameron) in the matter. There was but one account kept by Travers with and in the name of Cameron. Cameron knew how the account was kept.

On one occasion Cameron drew $4,000 out of this account. On one occasion the 1,000 shares were sold by Travers and a like amount immediately repurchased. This was by the desire

Statement of case.

of the plaintiffs communicated to Sampson, who directed Travers as to the sale and repurchase. This sale and repurchase was without the personal knowledge of Cameron at the time. The account was continued, as aforesaid, down to and in May, 1868, when the plaintiffs, having in the meantime made further advances of margin, also paid over by Sampson to Travers, for the account of Cameron, and credited to him in the account, ordered a final sale of the 1,000 shares. Cameron informed Travers that the account was under Sampson's management, and ordered him to obey Sampson's directions concerning it. During the time of the running of this account the stock greatly depreciated, and in the end there was a large loss on the stock held by Travers in the name of Cameron. When the plaintiffs' stock was all sold, there was a balance due the plaintiffs on the account of the 1,000 shares of over $5,000. The amounts received on the sale were credited to Cameron by Travers in the account. After the sale an account was rendered by Travers to Cameron of all the stock up to that date. Cameron had possession of this account for nearly a month before this suit was brought, without objection. It showed a balance in favor of Travers of $9,178.79, against which Travers held 350 shares of the stock yet unsold. After Cameron had the final account on the 15th of June, 1868, and while the account remained in the same position, the plaintiffs demanded of Cameron the payment of the balance due them as shown by the account.

The said General Term, upon the facts, held the following conclusions of law:

1. That this is an action for money had and received by the defendant to the use of the plaintiffs.

2. That the defendant, Cameron, was bound by his assent to the original contract made in his name by Sampson with the plaintiffs.

3. That by virtue of and under that contract and arrangement he became a voluntary trustee for the plaintiffs as to the stock purchased on their account, and the proceeds thereof, and liable to account to them for the same.

Statement of case.

4. That the net balance due to the plaintiffs on account of sales of the said 1,000 shares received by Travers, and with the consent of Cameron, credited to him, Cameron, was money had and received by Cameron for the use and benefit of the plaintiffs.

5. That the plaintiffs were entitled to recover said balance in this action, and a verdict for that amount in favor of the plaintiffs against the defendant, with interest from the time of the refusal to pay the same, was proper.

It appeared in the evidence that by arrangement between Cameron and Sampson in 1867, the latter assumed all the stock transactions upon joint account, and that the former had thereafter no interest therein, yet the accounts were still kept and the dealings had in his name as before, with his knowledge, and that Travers had no knowledge of Sampson's interest.

Francis C. Barlow for the appellant. The statement of facts under section 333 is not a finding of facts like that of a referee. (Purchase v. Matteson, 25 N. Y., 211; and see Brown v. Orser, 2 Bos., 367; Chambers v. Grantyon, 7 id., 417; Gilbert v. Beach, 16 N. Y., 606.) This is simply an action for money had and received. (Walter v. Bennett, 16 N. Y., 251.) By silence a man only ratifies such acts as he knows his assumed agent has done in his name. (Roach v. Coe., 1 E. D. Smith, 175.) The burden is upon the party claiming satisfaction to show this knowledge. (Nixon v. Palmer, 8 N. Y., 398.) The consent of defendant to a deposit in his name, he having no control over it, only to draw it out when required, does not make him liable for its safe keeping. (Dustin v. Hogden, 38 Ill., 352.) Plaintiff cannot recover simply because his money has gone to pay defendant's debt, without the prior request or subsequent promise of the latter. (Windsor v. Savage, 9 Metcalf, 346, 348; Richardson v. Williams, 49 Maine, 558; Beach v. Vanderburg, 10 Johns., 360; Rens. Glass Co. v. Reid, 5 Cow., 603; Bevan v. Thompson, 25 Indiana, 255; 1 Parsons' Contracts, 5th ed., 471, 472.)