U. S. Bank V. Bank of 1825. by his acceptance. The correctness of this doctrine was recognised by Mr. Justice Buller, in Smith v. Chester; (1 D. & E. 655.) by Lord Georgia. Kenyon, in Barber v. Gingell, (3 Esp. Rep. 60.) where he extended it to an implied acceptance; and by Mr. Justice Dampier, in Bass v. Cline, (4 M. & Selw. 15.) and it was acted upon by necessary implication by the Court, in Smith v. Mercer, (6 Taunt. Rep. 76.) In Levy v. The Bank of the United States, (1 Binn. 27.) already referred to, where a forged check, drawn upon the bank, had been accepted by the latter, and carried to the credit of the plaintiff, and on the refusal of the bank afterwards to pay the amount, the suit was brought, the Court expressly held the plaintiff entitled to recover, upon the ground that the acceptance concluded the defendant. The case was very strong, for the fraud was discovered a few hours only after the receipt of the check, and immediate notice given. But this was not thought in the slightest degree to vary the legal result. "Some of the cases," said the Court, "decide that the acceptor is bound, because the acceptance gives a credit to the bill, &c. But the modern cases certainly notice another reason for his liability, which we think has much good sense in it, namely, that the acceptor is presumed to know the drawer's handwriting, and by his acceptance to take this knowledge upon himself." After some research, we have not been able to find a single case, in which the general doctrine, thus asserted, has been U. S. Bank V. Bank of Georgia. shaken, or even doubted; and the diligence of the 1825. counsel for the defendants on the present occasion, has not been more successful than our own. Considering, then, as we do, that the doctrine is well established, that the acceptor is bound to know the handwriting of the drawer, and cannot defend himself from payment by a subsequent discovery of the forgery, we are of opinion, that the present case falls directly within the same principle. We think the defendants were bound to know their own notes, and having once accepted the notes in question as their own, they are concluded by their act of adoption, and cannot be permitted to set up the defence of forgery against the plaintiffs. It is not thought necessary to go into a consideration of other cases cited at the bar, to establish, that the acceptor may show that the accepted bill was void in its origin, as made in violation of the Stamp Act; &c. for all these cases admit the genuineness of the notes, and turn upon questions of another nature, of public policy, and a violation of the laws of the land. Nor are the cases applicable, in which bills have been altered after they were drawn, or of forged endorsements, for these are not facts which an acceptor is presumed to know. Nor is it deemed material to consider in what cases receipts and stated accounts may be opened for surcharge and falsification. They depend upon other principles of general application. It is sufficient for us to declare, that we place our judgment in the present case, upon the ground, that the defendants were bound to know their 1825. U. S. Bank V. Bank of Georgia. Rights of the der the cash deposit, waived. own notes, and having received them without objection, they cannot now recal their assent. We think this doctrine founded on public policy and convenience; and that actual loss is not necessary to be proved, for potential loss may exist, and the law will always presume a possible loss in cases of this nature. The remaining consideration is, whether there plaintiffs un- has been a legal waiver of the rights of the plainnot tiffs derived under the cash deposit, or, in other words, whether they have consented to treat it as a nullity. There is nothing on which to rest such a defence, unless it is to be inferred from the letter of Mr. Early, the Cashier of the Bank of the United States, under date of the 17th of March, 1819, addressed to the Cashier of the Bank of Huntsville. That letter contains information of the forgery of the notes, and then proceeds, "by the person which we shall in a few days send to your place, as heretofore intimated, we will forward these altered bills for the purpose of getting you to exchange them for other money." Now, there is no evidence that this letter was ever shown to the Bank of Georgia, or its contents ever brought to the cognisance of its officers. It states no agreement to take back the notes, or to transmit them, on account of the Bank of the United States, to Huntsville. For aught that appears, the intention may have been to transmit them on account of the Bank of Georgia, under the expectation that the latter might desire it. But what is almost conclusive on this point is, that on the same day the Bank of Geor U. S. Bank V. gia had made a tender of the notes to the plain- 1825. tiffs, which had been refused. This is wholly inconsistent with the notion that they had agreed to take them back, or to treat the previous credit Bank of Georgia. as a nullity. Assuming, therefore, that the Cashier had a general or special authority for the purpose of extinguishing the rights of the plaintiffs, growing out of the prior transactions, (which is not established in proof,) it is sufficient to say, that it is not shown that he exercised such an authority. And the case of Levy v. The Bank of the United States affords a very strong argument, that a waiver, without some new consideration, upon a sudden disclosure, and under a mistake of legal rights, ought not to be conclusive to the prejudice of the party, where, upon farther reflection, he refuses to acquiesce in it. The subsequent letter of the 25th of March, demonstrates, that the intention of waiving the rights of the bank, if ever entertained, had been at that time entirely abandoned. The letter from the Huntsville Bank, of the 4th of May, cannot vary the legal result. What might be the rights of the plaintiffs against that bank, in case of an unsuccessful issue of the present cause, it is unnecessary to determine. The contract, whatever it may be, is res inter alios acta, from which the defendants cannot, and ought not to derive any advantage. It only remains to add, that if the plaintiffs are entitled to recover the principal, they are entitled to interest from the time of instituting the suit. 1825. Keplinger V. Upon the whole, it is the opinion of the Court, that the Circuit Court erred in refusing the first and third instructions prayed for by the plaintiffs; De Young. and for these errors the judgment must be reversed, with directions to award a venire facias de novo. On the second instruction asked by the plaintiffs, it is unnecessary to express any opi nion. Judgment reversed accordingly. [PATENT.] KEPLINGER V. DE YOUNG. A., having obtained a patent for a new and useful improvement, to wit, a machine for making watch chains, brought an action, under the 3d section of the Patent Act of 1800, c. 179. [xxvi.] for a violation of his patent right against B.; and on the trial, an agreement was proved, made by the defendant with C., to purchase of him all the watch chains, not exceeding five gross a week, which he might be able to manufacture within six months, and an agreement on the part of C. to devote his whole time and attention to the manufacture of the watch chains, and not to sell or dispose of any of them, so as to interfere with the exclusive privilege secured to the defendant of purchasing the whole quantity which it might be practicable for C. to make: And it was proved that the machine used by C. with the knowledge and consent of the defendant in the manufacture, was the same with that invented by the plaintiff, and that all the watch chains thus made by C. were delivered to the defendant according to the contract. Held, that if the contract was real and not colourable, and if the defendant had no other connexion with C. than that which grew out of the contract, it did not amount to a breach of the plaintiff's patent right. |