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But it was not incumbent upon the defendant to inquire into it. There was notice given by the defendant to the plaintiff, of a bill drawn upon him, and he sends his servant to pay it, and take it up. The other bill he actually accepts, after which, the defendant, innocently and bona fide, discounts it. The plaintiff lies by for a considerable time after he has paid these bills, and then found out that they were forged. He made no objection to them at the time of paying them. Whatever neglect there was, was on his side. The defendant had actual encouragement from the plaintiff for negotiating the second bill, from the plaintiff's having, without any scruple or hesitation, paid the first; and he paid the whole value bona fide. It is a misfortune which has happened without the defendant's fault or neglect. If there was no neglect in the plaintiff, yet there is no reason to throw off the loss from one innocent man upon another innocent man. But, in this case, if there was any fault or negligence in any one, it certainly was in the plaintiff, and not in the defendant." The whole reasoning of this ease applies with full force to that now before the Court. In regard to the first bill, there was no new credit given by any acceptance, and the holder was in possession of it before the time it was paid or acknowledged. So that there is no pretence to allege, that there is any legal distinction between the case of a holder before or after the acceptance. Both were treated in this judgment as being in the same predicament, and entitled to the same equities. The case of Neal v.

1825.

U. S. Bank

V.

Bank of

Georgia.

U. S. Bank

V.

Bank of Georgia.

1825. Price has never since been departed from; and, in all the subsequent decisions in which it has been cited, it has had the uniform support of the Court, and has been deemed a satisfactory authority. The case of Smith v. Mercer, (6 Taunt. Rep. 76.) was a stronger application of the principle. There, the acceptance was a forgery, and it purported to be payable at the plaintiff's, who was a banker, and paid it, at maturity, to the agent of the defendant, who paid it in account with the defendant. A week afterwards the forgery was discovered, and due notice given to the defendant. But the Court (Mr. Justice Chambre dissenting) decided, that the plaintiff was not entitled to recover. Two of the Judges proceeded upon the ground, that the banker was bound to know the handwriting of his customers; and that there was a want of caution and negligence on the part of the plaintiff. The Chief Justice, without dissenting from this ground, put it upon the narrower ground, that during the whole week the bill must be considered as paid, and if the defendant were now compelled to pay the money back, he could not recover against the prior endorsers; so that he would sustain the whole loss from the negligence of the plaintiff. The very case occurred in the Gloucester Bank v. The Salem Bank, (17 Mass. Rep. 33.) where forged notes of the latter had been paid to the former, and, upon a subsequent discovery, the amount was sought to be recovered back. The authorities were there elaborately reviewed, both by the counsel and the Court, and the conclusion to

U. S. Bank

V.

Bank of

Georgia.

which the latter arrived was, that the plaintiffs 1825. were not entitled to recover, upon the ground, that by receiving and paying the notes, the plaintiffs adopted them as their own, that they were bound to examine them when offered for payment, and if they neglected to do it within a reasonable time, they could not afterwards recover from the defendants a loss occasioned by their own negligence. In that case, no notice was given of the doubtful character of the notes until fifteen days after the receipt, and no actual averments of forgery until about fifty days. The notes were in a bundle when received, which had not been examined by the cashier until after a considerable time had elapsed. Much of the language of the Court as to negligence, is to be referred to this circumstance. The Court said, "the true rule is, that the party receiving such notes must examine them as soon as he has opportunity, and return them immediately. If he does not, he is negligent, and negligence will defeat his right of action. This principle will apply in all cases where forged notes have been received, but certainly with more strength, when the party receiving them is the one purporting to be bound to pay. For he knows better than any other whether they are his notes or not; and if he pays them, or receives them in payment, and continues silent after he has had sufficient opportunity to examine them, he should be considered as having adopted them as his own."

Against the pressure of these authorities there is not a single opposing case; and we must,

U.S. Bank

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Bank of
Georgia.

at rest.

1825. therefore, conclude, that both in England and America, the question has been supposed to be The case of Jones v. Ryde, (5 Taunt. Rep. 488.) is clearly distinguishable, as it ranged itself within the class of cases, where forged sethe forged se- curities of third persons had been received in third persons payment. Bruce v. Bruce, (5 Taunt. Rep. 495.) have been re is very shortly and obscurely reported; but from ment, distin- what is there mentioned, as well as from the no

Cases where

curities

of

ceived in pay

guishable. tice taken of it by Lord Chief Justice Gibbs, in

Smith v. Mercer, (6 Taunt. Rep. 77.) it must have turned on the same distinction as Jones v. Ryde, and was not governed by Price v. Neal.

But if the present case is to be considered, as the defendants' counsel is most solicitous to con-sider it, not as a case where the notes have been paid, but as a case of credit, as cash, upon the receipt of them, it will not help the argument. In that point of view, the notes must be deemed: to have been accepted by the defendants, as genuine notes, and payment to have been promised accordingly. Credit was given for them, as cash, by the defendants, for nineteen days, and, during all this period, no right could exist in the plaintiffs to recover the amount against any other person, from whom they were received. By such delay, according to the doctrine of Lord Chief Justice Gibbs, in Smith v. Mercer, (6. Taunt. Rep. 76.) the prior holders would be discharged; and the case of the Gloucester Bank v. The Salem Bank, (17 Mass. Rep. 33.) adopts the same principle; so that there would be a loss produced by the negligence of the defendants.

1825.

U. S. Bank

V.

Georgia.

but, waiving this narrower view, we think the case may be justly placed upon the broad ground, that there was an acceptance of the notes as genuine, and that it falls directly within Bank of the authorities which govern the cases of acceptances of forged drafts. If there be any difference between them, the principle is stronger here than there; for there, the acceptor is presumed to know the drawer's signature. Here, a fortiori, the maker must be presumed, and is bound to know his own notes. He cannot be heard to aver his ignorance; and when he receives notes, purporting to be his own, without objection, it is an adoption of them as his own.

ceptances,

the

the drawer has

The general question, as to the effect of ac- Effect of acceptances, has repeatedly come under the consi- where deration of the Courts of common law. In the handwriting of early case of Wilkinson v. Luteridge, (1 Str. been forged. 648.) the Lord Chief Justice considered, that the acceptance of the bill was, in an action against the acceptor, a sufficient proof of the handwriting of the drawer; but it was not conclusive. In the subsequent case of Jenys v. Faucler, (2 Str. 946.) the Lord Chief Justice would not suffer the acceptor to give the evidence of witnesses, that they did not believe it the drawer's handwriting, from the danger to negotiable notes; and he strongly inclined to think, that actual forgery would be no defence, because the acceptance had given the bill a credit to the indorsee. Subsequent to this was the case of Price v. Neal, already commented on, in which it was thought that the acceptor ought to be conclusively bound

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