Evans and others, the stockholders or partners in an uncnartered company formed in 1815, at Morgantown in Monongalia, called the Monongalia Farmers Company, exhibited their bill in the superiour court of chancery of Clarksburg, against Berkshire, who had been the clerk of the company and intrusted with the care of its funds, charging that he had appropriated part of the funds to his own use, and praying an account of his agency', and a decree for'the balance that should be found due thereon. Berkshire, in his answer, denied the defalcation laid to his charge; and, alleging, that the company was associated to carry on business, and had in fact carried on business, as a bank, and only as a bank, .without authority of law, and in violation or evasion of the statutes prohibiting the circulation of private bank notes, and was therefore an illegal association, and that he, though called the clerk of the company, was in truth its cashier, —he insisted, that this suit of the plaintiffs could not be entertained against him to enforce the performance of his contract with this illegal company, as its cashier.

It appeared, by the articles of association, by the bond given by the clerk for the faithful discharge of his duties, and by the accounts filed as exhibits in the cause, and indeed it was impliedly admitted in the bill, that this was a private company, associated to carry on business as a bank, and none other, and which, in fact, traded only as a bank; and that Berkshire was the cashier t that this was one of those unchartered banks, of which so many were formed *about the same time, for the purpose of trading as banks, and circulating private bank notes, in violation or evasion of the statutes of 1792 and 1804, 2 Rev. Code, ch. 207, and which were suppressed by the statute of 1816, Id. ch. 208.

The chancellor ordered Berkshire to render an account of his transactions as clerk of the company; and by the account taken and reported accordingly, it appeared, that Berkshire was indebted to the company, 364 dollars; upon which the chancellor decreed, that he should pay the plaintiffs that sum with interest. And, on an appeal taken by Berkshire to this court, the decree was affirmed.