8 First Nat. Bank v. Christopher, 40 N. J. Law, 435; Farmers' Bank v. Payne, 25 Conn. 444; Shaw v. Clark, 49 Mich. 384; Mercer v. Ca-nonge, 8 La. Ann. 37.

9 Bank of U. S. v. Davis, 2 Hill, 452; National Security Bank v.

Cushman, 121 Mass. 490; Clerk's Sav. Bank v. Thomas, 2 Mo. App. 367. These cases are wrong if they mean to hold that the presumption of notice is absolute. As we will see later on in this section the presumption of the communication of an officer's private knowledge may be rebutted by proof. See Fairfield Sav. Bank v. Chase, 72 Me. 226. Some cases deny this presumption.

10 Gibson v. National Park Bank, 98 N. Y. 87.

11 Merchants' Bank v. Seton, 1 Pet. 299.

the fact as to whether or not the agent, if he did not act in regard to the particular matter, has communicated his knowledge to the principal.12 Judges have confused the two things. If they are not kept distinct, a person dealing through an agent is either in a better or a worse position than if he dealt in the matter himself. The failure to observe this very plain distinction between a fact acquired by the agent in the line of his duty as agent, and the effect of the agent's private knowledge, has caused some exceedingly unjust decisions, as will appear in the next section. It is to be noticed further that officers of a bank performing a continuous course of service for the bank are within this rule considered as being engaged in one transaction. If the knowledge of such an officer of a fact has been acquired during the course of his authorized dealings for the bank, his knowledge is treated as if it were a part of each particular transaction of the bank.13 This rule certainly applies to all the general executive officers of the bank as well as to those agents whose duties require them to be engaged in a continuous line of service for the bank. It follows that the bank will not be heard to dispute its knowledge received in this way.14 But there are cases which have lost sight of this distinction and cannot be considered as properly decided.15 If the bank has once acquired knowledge through an agent competent to receive it, who receives it officially, the notice is always binding upon it. Yet it has been held that if the particular officer with the knowledge did not know of the transaction, or was not present in the bank at the time, and did not act in the transaction, his knowledge received in the course of his duties will not be imputable to the bank.16 These cases cannot be sound, and are not in accordance with authority,17 for notice once given to the bank, or received by it, is thereafter not dependent upon the continuous presence of the officer through Avhom the notice was derived. It follows also, in regard to such notice, that it is perfectly immaterial that the officer through whom the notice came to the bank had an interest adverse to the bank in the particular transaction wherein notice was acquired. He was identical with the bank, where he acquired the knowledge, and the question of communication is not involved, and the bank, by adopting the transaction, adopts his act. "While, perhaps, no case holds this exact language, it is the necessary result of the principle and the decisions.18 Turning now to the case where an officer has acquired knowledge in his own private affairs, whether or not such knowledge will .be imputed to the bank depends upon circumstances. His private knowledge will never be imputed to the bank unless he communicated it, or unless he acted in the particular transaction wherein it is sought to impute knowledge to the bank.19 If he did not act in the transaction, the fact of his communication of his knowledge must be proven as a fact.20 The burden of proof is on the person claiming the communication.21 It may be inferred from the fact that the agent had such private knowledge;22 but that seems an extreme rule. If the officer having the knowledge acquired outside of his duties as agent acted in the particular transaction, the bank will not be bound unless it appears that such knowledge was present in the mind of the officer when he acted.23 This may be inferred from circumstances and his recent acquisition of the knowledge.24 It makes no difference, in case the officer acted, how he acquired his knowledge, whether in a transaction adverse to the interest of the bank or not,25 because the bank's knowledge does not depend upon the fact of communication, but on the fact of an officer acting as to a transaction with the knowledge upon it, which gives the bank notice.26 A limitation is put upon this rule by some courts to the effect that the agent with the knowledge must alone have acted for the bank;27 but there is no reason for such a rule, and it is not sound.28

12 Some cases put the case of knowledge received during the course of the agent's business for the bank upon this ground also. See Pierce v. Red Bluff Hotel Co., 31 Cal. 160,166. But this is wrong. If it were a mere question of communication, the presumption would be open to dispute, or the communication would need to be proven. This conclusion is escaped by calling it a conclusive presumption. But the calling of it a conclusive presumption only amounts to saying that the identity exists. Why does it exist ? is the question. The only answer we can make is that originally in the English law it does not exist Pollock & Mait-land, Hist. Eng. Law, 529 et seq. But it did exist in the Roman law, and the experience of the ages has decided that the Roman law was correct. "Eadem est persona domini et procuratoris. Eadem, inquam, non rei veritate, sedfictione" quoted 7 Am. Law Rev. 63.

13Holden v. New York & Erie Bank, 72 N. Y. 286; Craigie v. Had-ley, 99 N. Y. 131; First Nat. Bank v. Peisert, 2 Penny. 277.

14 Strauss v. Tradesmen's Bank, 122 N. Y. 379; First Nat. Bank v. Peisert, 2 Penny. 277, and Winslow v. Harrimon Iron Co., 42 S. W. R 698.

15 See cases in note 16.

16 Memphis Nat. Bank v. Sneed. 97 Tenn. 120; Fulton Bank v. New York Canal Co., 4 Paige, 127. These cases can be considered correct only on the theory that the court held that the officer had not received the knowledge officially.

17 Bank of America v. McNeil, 10 Bush, 54; Central Nat. Bank v. Levin, 6 Mo. App. 543; First Nat. Bank v. Peisert, 2 Penny. 277; Strauss v. Tradesmen's Bank, 122 N. Y. 379. Holm v. Atlas Bank, 84 Fed. R 119, correctly decides that the knowledge received by an officer not officially, and where he did not act for the bank, is not imputable to the bank.

18 Twenty-Sixth Ward Bank v. Stearns, 148 N. Y. 515; Nesbit v. Macon Bank, 12 Fed. R 686; Hol-den v. New York & Erie Bank, 72 N. Y. 286; Stebbins v. Lardner, 2 S. D. 127. The analogy of a private principal is the same. Stock-dale v. Keyes, 79 Pa. 251. See Huffcutt on Agency, sees. 144, 145, and First Nat. Bank v. Allen, 100 Ala. 476. But Louisville Trust Co. v. Louisville R. R, 75 Fed. R 433, overlooks this distinction and is wrong.

19 If it is communicated, of course, the bank has knowledge. Bank of Pittsburgh v. Whitehead, 10 Watts, 397. The principle is laid down in Fairfield Sav. Bank v. Chase, 73 Me. 226; Atlantic State Bank v. Savery, 82 N. Y. 291.

20 See cases cited in note 8.

21 Constant v. University,lll N. Y. 604. But some courts say there is a presumption of communication if the officer in the transaction wherein notice is sought to be imputed had no adverse interest or no duty or reason to conceal the knowledge.

22 Continental Nat. Bank v. Mc-Geoch, 92 Wis. 286. Compare Custer v. Tompkins Co Bank,9 Barr, 27.

23 The Distilled Spirits, 11 Wall. 356; Campbell v. First Nat. Bank, 22 Colo. 177.

24 Brothers v. Bank, 84 Wis. 381. But see note 9 to Sec. 111, ante, as to a presumption.

25 Union Bank v. Wando Mfg. Co., 17 S. C. 339; Hughes v. Settle, 86 S. W. R. 577. The rule presupposes that the agent acquired his knowledge in his own private affairs.

26 Union Bank v. Campbell, 4 Humph, 392.