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of great obstacles in the way of its introduction, or else must wonder why it has not been law always, and so pause before assuming its advocacy. What some of those obstacles are we have seen; for it is as true to-day as in Littleton's time that "La ley veut plutot suffre un mischief qu'inconvenience."

FORGED AND ALTERED NEGOTIABLE PAPER.

THE currency of the commercial world has long since ceased to be coin or bullion. The exchanges of commerce are now made, almost entirely, by means of the promises to pay, in some form or other, of some party or other, either a government, or a bank, or a private individual.

And for many reasons the industrious ingenuity which used to devote itself to the counterfeiting of the coin of the realm is now turned to the manufacture of paper evidences of debt. The parties who engage in this manufacture are not, however, generally individuals whose names command the entire confidence of the mercantile world; and for that reason the names used by them on these evidences of debt are generally not their own, but the names of wealthy merchants and bank officers. As a consequence, our modern reports are filled with cases of altered and forged bills and notes, many of them of great interest.

As far as the writer is aware, however, these cases rest on no new principles of law. The practice of certifying checks, indeed, is not very ancient; and it is now much more extensive than it was a few years since. The cases involving the rights of parties on certified checks are, therefore, comparatively recent. In only one or two points, however, do they involve principles not previously clearly settled in the law of negotiable paper.

The cases on forged or altered paper come before the courts in two forms. They arise either in actions brought by the holders of such paper against parties who are claimed to be liable on the paper, or in actions brought to recover money paid by one party to another, on forged or altered paper, under a mutual mistake of fact; the one party at the time supposing facts to exist that make him liable to pay, and the other party at the time supposing facts to exist which entitle him to receive, the amount paid.

This action to recover money paid under a mutual mistake was, in its early existence, a kind of equitable or merciful innovation on the harsh and technical rules of the common law. And as it was an innovation, there was not always strict uniformity in the

principles under which it was applied. When the courts came to allow recoveries of money paid under such mutual mistake, on negotiable paper, they came immediately into a supposed conflict with their imagined duty of holding negotiable paper to be at all times, and under all circumstances, a kind of sacred, inviolable thing. There grew up, consequently, some confusions and contradictions in the law as to forged and altered paper, and especially in the law as to allowing a recovery of money paid on such forged or altered paper, when both parties, the party paying and the party receiving, supposed it to be genuine. The attempt will be made in this paper to state some of the principles on this branch of the law.

And it will be well, in the outset, to attend to one or two points in the elementary definitions of bills, notes, and checks.

The note is the promise to pay, not only to some one party named, but, according to Kent,1 "to his order, or assigns, or to bearer." And, without any discussion on the origin of the law on this point, there is, on such a note, a right of action in favor of the owner or holder, in his own name, against the maker, whether such owner or holder be, or be not, the original party named as payee of the note.

The bill is simply a request of the drawer made to the drawee, to pay a certain amount of money to a certain party, or his order, or assigns, or to bearer; and, when the drawee accepts it, he makes the paper his promise to pay, according to the terms of the bill, and becomes, for most purposes, the original maker of a note.

The check is, for most purposes, merely a bill. Each is, in theory, drawn against funds of the drawer. Each is an order or request to pay a certain amount of money from these funds. Each may alike be negotiable; and, without considering here in what manner a certification can be made, or, in the cases of banks, what officers have power to certify, it may here be stated in general terms that certification of a check is, to most intents and purposes, equivalent to the acceptance of a bill of exchange; that is, it is a promise to pay the check, according to its terms. Keeping these rudimentary points clearly in view, it seems that there may have been some errors in doctrines that have been

1 3 Kent, Comm. 77.

promulgated in relation to forged and altered paper. certain cases will be here considered and discussed.

And

The cases cannot all be reconciled; but it is thought that clear and unquestionable principles can be derived from them. Some of them are, however, at least peculiar.

The case of Price v. Neale 1 is a leading case, and is one generally at this day recognized as a sound authority. It may well be questioned, however, whether it has not at least begotten some bad law. It was thus. The action was one for money had and received, to recover money paid under a mistake of fact. And the amount sought to be recovered was the combined sum of two bills of exchange drawn on the plaintiff. As to the first bill, it purported to be drawn by one Thomas Sutton on the plaintiff, was presented, when due, by the defendant to the plaintiff, and was paid by him, having never been previously accepted. The signature of the pretended drawer was forged. As to the other, it was drawn in the same forged name, was accepted, and came after acceptance to the same holder, the defendant, who paid value for it. The facts, it is easily seen, as to the two bills are entirely dissimilar. As to the first, the defendant bought a forged bill drawn on the plaintiff, who had never promised to pay it, but who did pay it, although he was not liable to pay., As to the second, although the bill was forged, the plaintiff did promise to pay it, according to its terms, to the holder; and the defendant became the holder, afterwards, for value, of that promise, and the bill was paid to him by the plaintiff. This one the plaintiff clearly was liable to pay. It was held that the plaintiff could recover neither payment. And Lord Mansfield very summarily put it on the ground that the drawee was bound to know the handwriting of the drawer, and that it was the drawer's fault and negligence, rather than his mistake, if he paid or accepted on a forged signature. The case went to the House of Lords, where the plaintiff's counsel conceded at once that no recovery could be had as to the bill that had been bought after the plaintiff's acceptance, and argued the point only as to the amount of the other bill. But the law was still maintained that the drawee was bound to know the drawer's signature.

And this has never been, as far as the writer is aware, in broad terms contradicted.

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The case of Smith v. Mercer1 was placed on a more reasonable ground. In that case a forged acceptance of the drawee of a draft was made payable at the plaintiff's, the drawee's, bankers, was presented when due, and was paid to the holder. The forgery was not discovered for seven days, and notice was then given, and payment demanded. The action was then brought to recover the money, as money paid under mistake. And it was held that the plaintiff could not recover.

The delay alone, in this case, is a good and sufficient reason for not allowing the recovery by the plaintiff; for thereby the defendant had lost his remedy against the prior indorsers; and on that ground the case was rested by some of the judges.

Dallas, J., said, "Suppose Smith & Co. had not paid it, it would have been immediately returned, and it might have been recovered or put in suit. But the effect of the delay has been to give him an extended credit; and how am I able to say that his situation in the intermediate time may not have undergone such a change as to render him incapable of paying what he could have paid upon proper notice and demand?" "The ground, therefore, upon which I rest my opinion, and to which I wish to confine it, is the want of due caution in having paid the bill, the effect of which has been to give time to different parties, which the plaintiffs were not authorized to do.”

Coming down to more recent times, we have in New York the case of The National Park Bank v. Ninth National Bank.2 Here a genuine draft had been drawn on the plaintiff, the name of the payee was erased, and the name of a new payee written in; the amount was erased, and a larger amount was written in; the name of the drawer was erased and rewritten. The draft had then a forged indorsement of the name of the new payee, and was indorsed and transmitted to the defendant, who received payment from the plaintiff, both, of course, supposing the bill to be genuine, and there having been no prior acceptance by. the plaintiff. Here it was perfectly clear that there was an undoubted good defence to the plaintiff, if the case had been one where the defendant had presented the draft under the same circumstances to the plaintiff for acceptance, and had brought suit on the acceptance; for the defendant's title to the draft was

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