The opinion of the Court was drawn up by

This suit is upon a promissory note, made by

the defendant on November 25, 1834, and payable to the female plaintiff, then a feme sole, or her order, in four years from date, with interest semi-annually from the second day of October preceding. When it was produced at the trial, there *64appeared to be several indorsements made upon it by Henry Tallman, of sums received for interest and in part payment of the principal. The plaintiffs contended, that those indorsements had been made without authority, and that they should not be allowed to dimmish the amount, which they would otherwise be entitled to recover.

To establish this position, they introduced testimony, showing that the female plaintiff, as the guardian of her children by a former husband, obtained license, sold and conveyed certain real estate to the defendant for their benefit. And that she received the note now in suit, and payable to herself, and secured by a mortgage of the same estate in payment. The whole business was done by Mr. Tallman, acting as her attorney ; and the note and mortgage, as he states, were left by her in his possession as a deposit; where they remained till May, 1846. The payments indorsed were made to him, while they thus remained in his possession, and without any other authority from her. She was married to her present husband on September 8, 1835.

The jury were authorized by the instructions, to find that the payments so made and indorsed, were binding upon the plaintiffs. The counsel for the plaintiffs contend, that the instructions were erroneous; and they insist: —

1. That the note and mortgage were left with Mr. Tallman, as a depositary, without authority to receive payment.

The rights of these parties cannot be determined by the arrangement made by the promisee and her attorney; but they must depend upon the evidence of authority presented to the defendant, authorizing him to make payments to the attorney. Lord Chancellor Cowper, in the case of Whitlock v. Waltham, 1 Salk. 157, held, that a scrivener, who put out money and was entrusted with the custody of the bond, might receive payment, “ for being entrusted with the security itself, it shall be presumed, he is entrusted with a power over it, and with a power to receive the principal and interest.” This doctrine is approved and restated in the modern treatises on agency. Story says, in section 104, “ So if an agent takes a bond for *65his principal and is allowed to retain possession of it, it is presumed, that he possesses an incidental authority to receive the money, which is due on it. And generally the possession of a negotiable instrument is deemed sufficient prima facie evidence of the title of the possessor to receive payment of it.” The presumption of a.ur,hority would be much strengthened in this case, because the note and mortgage were allowed to remain in the possession of the attorney for a very long time ; and because it was a part of his known business to collect debts for others.

2. That any authority, which the attorney had before, ceased when she ceased to be the guardian of her children, by the provisions of the statute, c. 51, § 54, by the marriage to her present husband.

The note having been made payable to herself, a.nd not in her capacity as guardian, did not become their property. She would continue to be the legal owner of the note and to have the power to control and collect it, after she ceased to be their guardian. As her own power over it would not be diminished, that of her attorney could not thereby be affected.

G. That the authority of her attorney was revoked by her intermarriage with her present husband. Such would be the effect, if there were not other facts authorizing the inference, that it was continued with the assent of the husband.

He doubtless knew, that his wife had minor children by a former husband : and he might reasonably be expected to know something respecting the means, by which they were to be supported. Although Mr. Tallman testifies, that there was no conversation between the husband and himself respecting the note, he states, that he received a yoke of oxen of the defendant in part payment of it, which were received by Sirs. Patten, and that he credited to her on his book the money received of the defendant on the notes, and paid some of it to her, and charged it to her on his book. If the husband could be supposed to be ignorant, that Mr. Tallman had such a note in his possession, and that his wife had received of him money paid upon it, it cannot be believed that he could be ignorant, *66that his wife had received a yoke of oxen from that source. As his wife would be accountable to her children for the amount of the note, his interest would not be promoted by the collection of it, and he could have no motive to interfere and prevent its being retained and collected by her attorney. This may account for his permitting it to remain in his hands for more than ten years after the marriage. Indeed, he does not even now appear to have interested himself in the matter further than to permit this suit to be brought at the suggestion of the present husband of one, and the guardians of the other children of his wife. Under such circumstances, can he be permitted to deny, that the oxen received by his wife constituted a good payment on that note; and to dispute the authority of the attorney, who received, them for her, and to call upon the defendant to pay their value again, when they became his property as soon, as they were received by his wife ? If this be not possible, what is the position of the defendant with respect to the other payments made to the same person ? The interest payable on his note before the principal became payable was paid to the person, with whom he had transacted all the business, and in whose possession it continued to remain. No' one had disputed that person’s authority to receive it, or had called upon him for it. He had delivered him a yoke of oxen in part payment of the principal, and they had been received by the owner or promisee of the note. Would he not under such circumstances be fully authorized to conclude, that he might safely make other payments to the same person so long as he continued to retain the note ? And if the cash or other payments towards the principal were made before the oxen were delivered, would not the reception of them by the principal confirm and justify all prior payments made to the same agent? After a lapse of time, from five to ten years, without any objection being made to the validity of the payments, and under such circumstances, a legal presumption arises, that the former attorney of the wife continued to act as such, respecting that note and mortgage, by the consent of the husband. And there is nothing in the case tending to rebut such a presumption.

*674. With respect to the payments made, it is contended, that the defendant would be liable to repay those made before said note became due, said payments having been made immalurely and illegally, and therefore in the defendant’s own wrong.”

The authorities cited to establish this position show, that if a bill or note be paid before maturity, without being delivered up or canceled, and it be negotiated before maturity; orbe' paid to an agent, whose authority is revoked before maturity,, such payments will not be good, and the person making them may be required to pay them again. Although such payments: are not binding upon other parties, yet, as “between the real1 and bona fide holder and the maker, the payment, whenever made and however made, will be a conclusive discharge of the note.” Story on Notes, <§> 384. Payment made before maturity to the duly authorized agent of the holder, has the same effect as if made to the holder.

5. Henry Tallman testified “ that a portion of what he received from Fullerton was paid in lumber, boards, and timber, for his own use.” What, portion, or when such payment was made, does not appear, the amount thus paid and indorsed upon the note, it, is insisted, would not be a good payment and binding upon the principal, if received by a duly authorized agent for the collector of the note. This as a general position is doubtless correct. The authorities, however, do not show, that such a payment would not under any circumstances be binding upon the principal, or that it would not under the circumstances presented in this case. The principal within a reasonable time might repudiate such a payment, and require payment to be made again in money. If such payment may be supposed to have been the last payment made in this case, nearly five years would have elapsed, before the defendant could have been informed of any objection made to it. And at that time the plainfifl's making the objection, are presented in this position. They had admitted a former payment made by the defendant to the same attorney in specific articles, to be a good payment, by receiving the property to their own use.. To another payment subsequently made to the attorney in spe-*68ciñe articles, after so long a time, they make this objection, and insist, that the defendant shall pay the amount again in money. If the lumber was first delivered, and the oxen at a subsequent time, they would be presented as making such a call upon the defendant, after he had been authorized by the lapse of a longer time, and by a subsequent reception of specific articles in payment, to conclude, that the former one, made in like manner, was satisfactory.

It does not appear, that the defendant was informed that the lumber, any more than the oxen, was received by the attorney to be appropriated to his own use. If he had received money he might have appropriated it in the same way. If any person were to bear a loss occasioned by his inability to pay, reason and authority under such circumstances would both decide, that those, who had sanctioned a payment made in specific articles in one instance, and who had also been guilty of such laches in calling upon their agent as well as debtor, should bear it. Happily for all, no such loss is anticipated in this case.

Exceptions overruled.