Mr. Justice McLEAN
delivered the opinion of the court.
This case -was brought before us by a writ of error to the Circuit' Court for the Southern District of Mississippi.
An action of assumpsit was commenced by the plaintiff, on a note for four hundred and fifty-six dollars, and a large sum for the hire of slaves.
The declaration contained ten counts, to which the defendant pleaded non -assumpsit, the statute of limitations, and payment, on all o. which- issues were joined. ’ The jury “ found for the defendant upon the issues joined as to the within note of four hundred and' fifty-six dollars, and' the within account.” This finding, it is contended, is imperfect, irresponsive to the issues, and does -not dispose of the whole matter submitted by the pleadings.
A verdict is bad if it varies from the issue in a substantial matter, or if it finds only a part of that which is in issue; and, though the court may give form to a general finding, so as to make it' harmonize with the issue, yet if it appears that the finding is different' from the issue, or is confined to a part only 'of the. matter in issue, no judgment can be rendered upon the verdict. Patterson v. United States, 2 Wheat. 221. The verdict rendered .was informal, but there was sufficient to authorize the court td enter it in form. The matter in controversy was the note stated and the hire of the negroes, the amount claimed [247]*247for which, was stated in an account; and on both these the j ury found for the defendant, on the issues joined. We think this was sufficient.
Andrew Arnold, a copartner of the testator, was offered .as a witness, and being objected to on the ground of interest, a release was given in evidence, which, on its face,.appeared to be duly executed; on which the witness was sworn. Objection is made that the execution of the release was not .proved. The answer to this is, that there was no exception taken to the paper on that ground.
From the facts, it appears that Joseph T. Hicks, now represented by his executrix, was indebted to the plaintiff on thelOth January, 1839, on a settlement, nine thousand seven hundred and ninety-nine dollars and eighty nine cents, for the hire of negroes, which John R. Hicks, the friend of .D.owney, received in a certificate of deposit from the Mississippi Railroad Bank, situated at Natchez, payable on the 1st of November ensuing, for which he executed a receipt. He was not authorized to act as the agent of Downey, but he acted as his friend in the business. Being assured by his brother, Joseph' T. Hicks, and others, that the bank was good, (and as a reason for this opinion it was stated that wealthy men had an interest in the bank,) and as eight per cent, interest was paid for deposits, the certificate was preferred, believing, it would be satisfactory to the plaintiff! At the time of this transaction the bank was indebted to Joseph T. Hicks and Arnold, for labor on the railroad, a sum exceeding twenty thousand dollars. The mode of payment was by drawing a check on the bank for several claims, and then crediting on the books of the bank, as a. deposit, the sum due to each claimant.
In February ensuing, when- John R. Hicks returned to North Carolina, where he and the plaintiff resided, he handed over to Downey the cerdficate of deposit, who received it, saying he would have preferred the gold and silver; but said nothing further in repudiation or confirmation of the act of Hicks. In a letter dated the 3d of March, 1839, from J. T. Hicks and Arnold, to the bank, they say, “ We have ever entertained the kindest' feeling towards your institution, and every disposition of indulgence to the utmost of our ability. The time has now arrived when ruin awaits us, from a total inability to use. your post-notes to meet our engagements; ” and they proposed to take some money and negroes fox the money due them from the bank, or to take the whole in negroes, if the money could not be paid.
For a short time after the date of the certificate of deposit, the bank continued to pay small notes in specie, but evidence was-given conducing to show it was unable to meet its engage[248]*248ments, and that in a short time it failed. Suit was brought by Downey against the bank on the certificate of deposit, in the spring.of 1840; and also for other sums, due him from Hicks & Arnold, by arrangements with them. But nothing could' be .recovered from the bank.
Evidence was offered with the view of showing that Downey considered the certificate of deposit as good! and that he said he could not complain' of Hicks, in receiving the certificate, as he-had received a similar one on his own account.
Evidence was also given to show that on the eleventh of March, 1840, Joseph T. Hicks and Arnold, admitted the certifi-. cate of deposit was' -given "as collateral security, and that they considered themselves Bound to pay the debt due the plaintiff, including the certificate of deposit, and other demands. Evidence was also given to explain this conversation as referring exclusively to other demands, not including the certificate of deposit.
. The testimony being closed, the plaintiff prayed the court to instruct the jury, 1.- That the acceptance by the plaintiff of the certificate of deposit for a precedent debt due him by Hicks or Hicks & Arnold, was no payment or extinguishment of such debt, unless-there was an express agreement to accept it as such payment; and to take the risk,of the solvency of the bank.
2. That the certificate of a bank due at a future day, like the note of any third person, if given for a preexisting debt, is not payment and discharge thereof, unless specially agreed to be so. taken; and if- a receipt in full be given, it is still a question of fact for the jury to decide whether there was such an agreement or not; and that unless the certificate be, afterwards paid by the bank, it is primé facie no satisfaction of the preexisting debt.
3. That if the jury believe, from the evidence, that' Hicks & Arnold or Hicks, after the maturity of the certificate, admitted their liability,to make it good, such admission is evidence that the certificate was not taken as payment absolutely, but as conditional payment only, and that they had notice of all the facts necessary to hold them responsible.
.The court charged the jury that, “ an agent is bound to' act in accordance with his authority, to make his acts binding on his principal. If the agent exceeds his authority, his principal is not bound by his act, so exceedinghis authority, unless the principal afterwards ratify, his acts. If a principal, after he is informed what his agent -has done, ratify his acts, hd is bound by the acts of his agents, although the agent may not have had any authority to. do the act'so ratified-.at the time it was done. An act done as an agent by one,having no authority, it is obligatory on his principal; if, in a reasonable time after, he is fully [249]*249informed of what has been done, he does not object thereto, he is presumed to ratify the acts, and is bound thereby.”
.That, “ if Downey.received the certificate, conditioned' that' he would receive the money in discharge of the debt, if the 'bank should pay it, then Downey was bound to use reasonable diligence to collect the money due on the certificate.
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Mr. Justice McLEAN
delivered the opinion of the court.
This case -was brought before us by a writ of error to the Circuit' Court for the Southern District of Mississippi.
An action of assumpsit was commenced by the plaintiff, on a note for four hundred and fifty-six dollars, and a large sum for the hire of slaves.
The declaration contained ten counts, to which the defendant pleaded non -assumpsit, the statute of limitations, and payment, on all o. which- issues were joined. ’ The jury “ found for the defendant upon the issues joined as to the within note of four hundred and' fifty-six dollars, and' the within account.” This finding, it is contended, is imperfect, irresponsive to the issues, and does -not dispose of the whole matter submitted by the pleadings.
A verdict is bad if it varies from the issue in a substantial matter, or if it finds only a part of that which is in issue; and, though the court may give form to a general finding, so as to make it' harmonize with the issue, yet if it appears that the finding is different' from the issue, or is confined to a part only 'of the. matter in issue, no judgment can be rendered upon the verdict. Patterson v. United States, 2 Wheat. 221. The verdict rendered .was informal, but there was sufficient to authorize the court td enter it in form. The matter in controversy was the note stated and the hire of the negroes, the amount claimed [247]*247for which, was stated in an account; and on both these the j ury found for the defendant, on the issues joined. We think this was sufficient.
Andrew Arnold, a copartner of the testator, was offered .as a witness, and being objected to on the ground of interest, a release was given in evidence, which, on its face,.appeared to be duly executed; on which the witness was sworn. Objection is made that the execution of the release was not .proved. The answer to this is, that there was no exception taken to the paper on that ground.
From the facts, it appears that Joseph T. Hicks, now represented by his executrix, was indebted to the plaintiff on thelOth January, 1839, on a settlement, nine thousand seven hundred and ninety-nine dollars and eighty nine cents, for the hire of negroes, which John R. Hicks, the friend of .D.owney, received in a certificate of deposit from the Mississippi Railroad Bank, situated at Natchez, payable on the 1st of November ensuing, for which he executed a receipt. He was not authorized to act as the agent of Downey, but he acted as his friend in the business. Being assured by his brother, Joseph' T. Hicks, and others, that the bank was good, (and as a reason for this opinion it was stated that wealthy men had an interest in the bank,) and as eight per cent, interest was paid for deposits, the certificate was preferred, believing, it would be satisfactory to the plaintiff! At the time of this transaction the bank was indebted to Joseph T. Hicks and Arnold, for labor on the railroad, a sum exceeding twenty thousand dollars. The mode of payment was by drawing a check on the bank for several claims, and then crediting on the books of the bank, as a. deposit, the sum due to each claimant.
In February ensuing, when- John R. Hicks returned to North Carolina, where he and the plaintiff resided, he handed over to Downey the cerdficate of deposit, who received it, saying he would have preferred the gold and silver; but said nothing further in repudiation or confirmation of the act of Hicks. In a letter dated the 3d of March, 1839, from J. T. Hicks and Arnold, to the bank, they say, “ We have ever entertained the kindest' feeling towards your institution, and every disposition of indulgence to the utmost of our ability. The time has now arrived when ruin awaits us, from a total inability to use. your post-notes to meet our engagements; ” and they proposed to take some money and negroes fox the money due them from the bank, or to take the whole in negroes, if the money could not be paid.
For a short time after the date of the certificate of deposit, the bank continued to pay small notes in specie, but evidence was-given conducing to show it was unable to meet its engage[248]*248ments, and that in a short time it failed. Suit was brought by Downey against the bank on the certificate of deposit, in the spring.of 1840; and also for other sums, due him from Hicks & Arnold, by arrangements with them. But nothing could' be .recovered from the bank.
Evidence was offered with the view of showing that Downey considered the certificate of deposit as good! and that he said he could not complain' of Hicks, in receiving the certificate, as he-had received a similar one on his own account.
Evidence was also given to show that on the eleventh of March, 1840, Joseph T. Hicks and Arnold, admitted the certifi-. cate of deposit was' -given "as collateral security, and that they considered themselves Bound to pay the debt due the plaintiff, including the certificate of deposit, and other demands. Evidence was also given to explain this conversation as referring exclusively to other demands, not including the certificate of deposit.
. The testimony being closed, the plaintiff prayed the court to instruct the jury, 1.- That the acceptance by the plaintiff of the certificate of deposit for a precedent debt due him by Hicks or Hicks & Arnold, was no payment or extinguishment of such debt, unless-there was an express agreement to accept it as such payment; and to take the risk,of the solvency of the bank.
2. That the certificate of a bank due at a future day, like the note of any third person, if given for a preexisting debt, is not payment and discharge thereof, unless specially agreed to be so. taken; and if- a receipt in full be given, it is still a question of fact for the jury to decide whether there was such an agreement or not; and that unless the certificate be, afterwards paid by the bank, it is primé facie no satisfaction of the preexisting debt.
3. That if the jury believe, from the evidence, that' Hicks & Arnold or Hicks, after the maturity of the certificate, admitted their liability,to make it good, such admission is evidence that the certificate was not taken as payment absolutely, but as conditional payment only, and that they had notice of all the facts necessary to hold them responsible.
.The court charged the jury that, “ an agent is bound to' act in accordance with his authority, to make his acts binding on his principal. If the agent exceeds his authority, his principal is not bound by his act, so exceedinghis authority, unless the principal afterwards ratify, his acts. If a principal, after he is informed what his agent -has done, ratify his acts, hd is bound by the acts of his agents, although the agent may not have had any authority to. do the act'so ratified-.at the time it was done. An act done as an agent by one,having no authority, it is obligatory on his principal; if, in a reasonable time after, he is fully [249]*249informed of what has been done, he does not object thereto, he is presumed to ratify the acts, and is bound thereby.”
.That, “ if Downey.received the certificate, conditioned' that' he would receive the money in discharge of the debt, if the 'bank should pay it, then Downey was bound to use reasonable diligence to collect the money due on the certificate. Reasonable diligence consists in such exertions as a prudent man would use in his own ease in the collection of the certificate; and if Downey failed to use such diligence to collect the money, the defendants are not liable, and the jury should find for the defendant.”
In ordinary transactions, a check on a specie-paying bank, payable on demand, is payment. And, if the holder of the check; present it to the bank, and direct the amount to be placed to 'his credit as a deposit, and the bank should fail, the loss would be the depositor’s. The deposit was at his option and for his benefit. But the transaction of Downey and Hicks was not of this character. Doctor Hicks, who acted for Downey, was not authorized to make the arrangement; -he acted, in his own language, “ without authority, as the friend of the plaintiff;” There was no money, in fact, deposited in the bank. It was indebted to J. T. Hicks and Arnold, who were in partnership, in a large sum; and, to pay Downey, Hicks drew a check for the amount, which "was charged to his account in bank, and a certificate of deposit for the same amount was given to Downey. This arrangement was strongly recommended by the debtor, Hicks, to his broiher, the friend of Downey. Eight p'er cent, was allowed on the certificate of deposit, which was payable in ten months.
A note of the debtor himself, or of althird party, is never considered as a payment of a precedent debt, unless there be a special agreement to that-effect. Had Downey receiyed the certificate of deposit himself, it could not have been considered a payment unless it was so agreed. The transaction, in fact, was only a dealing with credits. No money was drawn from the bank, or deposited in it. By the certificate, the credit' of the bank was given in addition to the credit of the original debtor.Such a transaction, without a special agreement to receivé the certificate in payment, would make it a collateral security .only. A receipt for the amount, executed at the time, would not affect the question. ■ In this view, it was error in the court not to give the' first and second instructions asked by the plaintiff, unless the charge given substantially embraced the" points stated.
In the charge given it is nowhere slated that, tó make the certificate of deposit a payment, there must be ari agreement to that effect. The jury are informed that, where an agent exceeds [250]*250his authority, or 'acts without authority, the principal is not bound, unless he ratify such. acts. But the juiy are not informed what amounts- to a ratificátion. They are told, where acts are done, c" which the principal is informed if he does not in. a reasonable .time object thereto, he is presumed to ratify the acts, and is° bound thereby.
This, in all probability, misled the jury. Doctor Hicks, in receiving the certificate of deposit,, did not pretend that he was authorized to receive it — much less that he was authorized to receive it as payment. The receipt of the certificate, under such circumstances, by Downey, without any express agreement on the subject, could not operate as payment. In this respect, therefore, unless such an agreement was shown and connected with this part of the charge, it was erroneous.
The jury were instructed that, if the certificate was received on condition the deposit, if paid by the bank, should be appli- id as payment, Downey was bound to use reasonable diligence. But the jury were not informed what that kind of diligence was, except, “ that it consisted in such exertions as. a prudent man would use in his own ease in the collection of the certificate.” Where a. note is received as. collateral security, and this certificate of deposit is only the obligation of the bank, and does not; in principle, in this respect, differ from a note, the holder is not bound to active diligence. If the note have an indorser, and it matures • in his hands, he may be bound to take such steps as shall.charge the indorser as a bank is bound, where a note is sent to it for collection. But he is not bound to bring suit. He is only chargeable with a negligence, which shall operate to the injury of the owner of the paper;
As, in less than three months from the date of the certificate of deposit by the-' showing of the defendant, the post-notes of the "bank answered him no valuable purpose in satisfying the demands-against him, there is no ground to allege that the de-, fen tant suffered by any want of diligence in the plaintiff. The ba/ k was insolvent, if not when the certificate was given, before it became due. The above instruction was erroneous.
We think the court erred, also, in refusing to give the third instruction, as prayed by the plaintiff. If the evidence showed, after' the ■ maturity of the certificate, that Hicks & Arnold, or ■Hicks, admitted their liability to make it good, the- jury should have been told.by the court, that if they believed such an admission was made, it conduced to prove that the certificate was not taken in payment.
For the above reasons, the judgment of the Circuit Court is reversed, and the cause is remanded for further proceedings.
Mr. Jüstice DANIEL and Mr. Justice GRIER dissented.