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fication of the check, for the reason that the bank thereby agrees to hold the funds of the drawer to the amount of the check and pay them to the holder; and the holder, by accepting the certification, takes the bank's promise, when he might take the drawer's money, and, in effect, does take both.

There is, then, in the certification of the check, something more than an "assertion." There is a promise to pay the amount of the check; it is equivalent, to all intents and purposes, to the acceptance of a bill. Had not Derippe & Co. "suffered loss"? They never took the check at all until the bank had certified and accepted it; for they had, of course, no title to the check until they delivered the gold, and this was after the certification.

The doctrine here advanced is in strict harmony with the doctrine laid down by the same court in the case of Continental Bank v. National Bank of the Commonwealth. In that case one John Ross drew his check on the plaintiff, which purported to be certified by the plaintiff; but the certification was in fact forged. Ross presented the check to Cronise & Co. in payment for United States gold certificates and gold checks, which were sold and delivered to Ross by Cronise & Co. After the delivery of the gold and the receipt of the check by Cronise & Co., they sent the check to the plaintiff's bank by a messenger to inquire if the check and certification were genuine. The messenger was informed by the teller that "it was all right.” Cronise & Co., relying on this statement, took no measures to follow Ross or recover their gold. It had, in effect, under the charge to the jury, been found that Cronise & Co., if the messenger had been correctly informed that the certification was forged, would have been able then to secure their gold. The check had then been deposited by Cronise & Co. with the defendant, and paid through the clearing-house by the plaintiff. And the action was brought to recover the amount of the check, as money paid by mistake. And it was held that the recovery could not be had.

It was assumed on all hands that the defendant was in precisely the same position that Cronise & Co. would have been in. And it seems to have been conceded, by both court and counsel, that the plaintiff could have recovered, if Cronise &

1 50 N. Y. 575.

Co. had not suffered any loss or damage in consequence of the assertion of the plaintiff's teller. And it is by the court considered that in this case the effect of the assertion of the teller was precisely the same in effect as though he had in fact then certified the check.

That is, the rights of Cronise & Co. and of the plaintiff would have been the same, whether the plaintiff through its proper officer had certified or only acknowledged a forged certification, if Cronise & Co. acted on the faith of this acknowledgment.

This last case is undoubtedly good law. The acknowledgment of the certification to a party who acts on it is precisely the same as the making of the certification. The case is, then, precisely the same as if the check had been originally given uncertified to Cronise & Co. for their gold, and they had sent it to be certified, and then, after receiving the certification, had neglected to stop their gold, which they otherwise could and would have done.

In the one case the court allow the recovery; in the other, they do not. In the one case the gold was not delivered until the promise of the bank was made; in the other, the gold had been delivered, but was not stopped, after the promise of the bank was made. The writer has endeavored with great zeal to reconcile these two cases, but has not yet attained success.

There was undoubtedly, in the one case, an alteration in the amount, and in the other no alteration in the amount. But so is there an alteration in the amount of the bill of exchange, in Langton v. Lazarus.

The case of Bank of North America v. Bangs may now be recalled. In that case, it will be remembered, the plaintiff had paid a check which had been forged. Notwithstanding the repeated statements, in the books and in the cases, that the acceptor is not allowed to dispute the signature of the drawer, the court allowed it, on the ground that the defendant in that case had, by his own negligence, caused the mistake in fact under which the payment had been made. The only act in that case done by the defendants was their indorsing the check. And that was undoubtedly enough. But suppose the check had been drawn tỏ bearer, and not indorsed at all by the defendants, but simply presented by them for payment. The indorsement only transferred title. The simple delivery of a bearer check without

indorsement would have done the same thing. And would not a party who presents a bearer check unindorsed for payment represent it to be a genuine check, precisely the same as the party who presents an order check indorsed? And if, in the one case, a party is to be considered as representing the check to be genuine, why should he not in the other? And why should not a party who presents, in any case, a bill or check for payment, be held to represent to the party paying or accepting it that that check is genuine in all its points? This is, it would seem, the only reasonable doctrine. And it is believed that this will ultimately be so held. See Fuller v. Smith.1

And this doctrine would allow in all cases a recovery by a party paying a forged or altered bill, on which he was not already liable before payment, unless he had by the payment caused the party receiving the payment to change his position.

And as to what constitutes a change of position or damage, sustained in consequence of the payment, one point may be here alluded to. The case of Mather v. Lord Maidstone 2 was thus.

The plaintiff held a bill purporting to be accepted by the defendant, on which there were other parties who had indorsed to the plaintiff. The bill was presented, dishonored, and notice given. The defendant afterward took it up and gave his own acceptance for it, and a month afterwards discovered the forgery of his acceptance of the first bill, and offered to return it.

Per cur. Jervis, C. J.: "I think there is sufficient upon the record to show a consideration for the acceptance of the bill declared on; viz., a loss to the plaintiff of his remedy against Villiers and Clark [his indorsers] having delayed the plaintiff of his remedy thirty days."

The court, however, say, "As a general rule, when the bill is presented, if the acceptor pays it, the money cannot be recovered back, if the acceptor has the means of satisfying himself of his liability to pay it, although it should turn out that the acceptance was a forgery."

From which it appears that there need not, in all cases, be a parting with other value, to bar a recovery of money paid under a mistake on forged or altered paper. But if, by the delay in claiming the repayment, the party receiving the money has lost.

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his remedies against prior parties on that altered paper, that is enough to bar the recovery. Nor, in order to bar a recovery, need a party have actually parted with property on the faith of the payment or acceptance. It is enough if he has lost the chance to recover it, or a remedy. In short, it is enough if he has lost any legal right of value in the eye of the law, i.e., any thing that would amount to the consideration for a contract.

What, then, are the principles that are to be deduced from the cases as to forged or altered negotiable paper? It is believed that they are very plain, and that they are as follows:

I. A party claiming under a forged title, i.e., a forged indorsement, can in no case recover on the paper, or retain a payment received on it.

II. No party is liable on paper that has been, after his name has been put on paper, altered in any material point.

III. A party is liable on paper that has been, before his name has been put on the paper, altered in a material point, to any party who thereafter takes title to it for value in good faith.

IV. A party paying altered or forged paper can in no case recover the payment where he was liable in suit if the payment had not been made.

V. A party paying altered or forged paper can in all cases recover the payment where he was not liable in suit, the payment not having been made, provided the party receiving the payment has not in the mean time suffered damage in consequence of the payment.

THE EFFECT OF THE SEVENTEENTH SECTION OF THE ENGLISH STATUTE OF FRAUDS.

Ir is a singular fact that no more than two text-writers have ever discussed the effect of the 17th section of the English Statute of Frauds; that no one has determined what consequences ensue from a non-compliance with its provisions in the formation of contracts within its operation.

This fact cannot be explained on the ground that the nature of the effect is so obvious as not to admit of discussion; for the two writers who have considered it differ in their conclusions. The section is as follows:

"No contract for the sale of any goods, wares, or merchandises, for the price of £10 sterling, or upwards, shall be allowed to be good, except the buyer shall accept part of the goods so sold, and actually receive the same, or give something in earnest to bind the bargain, or in part payment, or that some note or memorandum in writing of the said bargain be made and signed by the parties to be charged by such contract or their agents thereunto lawfully authorized."

The two text-writers referred to are Mr. John William Smith and Mr. Causten Browne.

Mr. Smith, in his work on Contracts, p. 117, states that " a parol contract, unaided by any of the formalities mentioned in the 17th section as equivalent to writing, is totally and entirely void."

Mr. Browne,1 speaking of the 17th section, says:

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"That enactment does not declare that the contracts embraced by it are illegal or void, unless put in writing. It does not in any way affect their substance or ingredients, but simply prescribes, as a rule of evidence, that, in cases where they are sought to be enforced, oral proof of them shall not be received."

In this conflict of opinion on the part of the text-writers, it becomes necessary to determine how the two constructions of the 17th section advanced by them are borne out by authority. It has been held,

1 Browne on Statute of Frauds, § 115 and note a.

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