granting licences to houses for the performance of stage plays and every such licence shall be given under the hands and seal of four or more of the justices assembled at such special session, and shall be signed and sealed in open court, and afterwards shall be publicly read by the clerk, with the names of the justices subscribing the same.

Local Government Act 1888 (51 & 52 Vict. c. 41): Sect. 7. There shall be transferred to the county council on and after the appointed day the business of the justices of the county out of session: (a) in respect of the licensing of houses and places for the public performance of stage plays.

5 & 6 Will. 4, c. 39, s. 7:

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.

It shall be lawful for the commissioners and officers of excise, and they are hereby authorised and empowered to grant retail licences to any person to sell beer, spirits, and wine in any theatre licensed by justices of the peace without the production by the person applying for such licence or licences of any certificate or authority for such person to keep a common inn, alehouse, or victualling-house; anything in any Act or Acts to the contrary notwithstanding.

Asquith, Q.C. (with him Roskill) showed cause. -The powers of the county council are co-extensive with those formerly possessed by the justices, and it has been held that the justices were entitled to refuse the licence without giving any reason for their refusal. [CAVE, J.-That does not entitle them to refuse it for a bad reason duly set out by them-for instance, because the applicant had red hair. The question here is, have the county council not usurped the jurisdiction given to another authority by Parliament-the jurisdiction of saying whether intoxicating liquors should or should not be sold in a given place.] When a theatre licence is granted an excise licence is given as a matter of course. This is a fact the county council are entitled to take into consideration. It is not purely collateral or altogether irrelevant matter since the sale of intoxicants in the theatre may have a serious effect upon the order of the neighbourhood. Here the county council thought that the neighbourhood in which the theatre is situate was sufficiently supplied with public-houses, and that to add to their number by allowing the theatre manager to sell intoxicants would prejudice public order. If they had passed a general resolution that in all applications for theatre licences the applicant would have to give an undertaking not to apply for an excise licence that might not be a judicial exercise of their powers and discretion:

Reg. v. Sylvester and others, 5 L. T. Rep. 794. Here, however, their decision is based on the facts of this particular case.

Macmorran, Q.C. (F. Low with him) for the rule. The county council have powers to make rules for maintaining order in theatres under sect. 9 of the Theatres Regulation Act 1843. A rule prohibiting the sale of intoxicating liquors would not be valid within this section. If Parliament had intended they should have had this power for the preservation of public order, it would expressly have given it to them. They are attempting now to obtain by means of a side wind what Parliament has not given them. Not merely has Parliament not given them this power, but it has given it to another authority-the commissioners and officers of excise. The words of sect. 7 of 5 & 6 Will. 4, c. 39 are wide enough to Vol. LXXV., 1931.

[Q.B. DIV.

give these a discretion in issuing excise licences to theatres. That being so, the county council are not entitled to take into consideration the way they exercise their discretion, or whether they exercise it at all or not.

CAVE, J.-I am of opinion that this rule must be discharged. It is difficult to lay down, and I do not require to lay down, any rules by which the discretion of the licensing committee of the county council should be guided in a case like this. It is enough to say that a discretion is placed in them. Unless the court can see that that discretion has not been exercised or has been exercised improperly in the sense that they have allowed considerations to influence their decision which ought not to have influenced it, the court has no right to interfere. In this case I can see nothing to which exception can reasonably be taken. It might perhaps be a valid objectio if they had made a general rule that no theatre licence should be granted unless the manager gave an undertaking not to apply for an excise licence. But here there is no such general rule. They have decided on the particular circumstances of the case. The propriety of permitting the sale of intoxicating liquors in a theatre depends on a variety of matters such as the locality in which the theatre is situated and the character of the theatre itself. It is a matter very proper to be taken into consideration that there are, as there are here, public-houses within a few doors of the theatre. The committee have exercised their discretion in the matter, and I cannot for a moment say they have exercised it wrongly.

WILLS, J.-I am of the same opinion. The Lord Chancellor in Sharp v. Wakefield (64 L. T. Rep. 180; (1891) A. C. 173) lays down the rule very clearly. He says: "Discretion' means, when it is said that something is to be done within the discretion of the authorities, that that something is to be done according to the rules of reason and justice, not according to private opinion; according to law and not humour. It is to be not arbitrary, vague, and fanciful, but legal and regular.. And it must be exercised within the limit to which an honest man competent to the discharge of his office ought to confine himself." Applying this rule, is there anything which the committee have taken into consideration which is not " within the limit to which an honest man competent to the discharge of his office ought to confine himself"? It seems to me that the fact that the excise licence will, as a matter of course, be granted to the manager holding a theatre licence is the very thing to be taken into consideration by the committee. It seems to me they may honestly and reasonably have taken this view. Granting this theatre licence practically means granting a licence for the sale of drink. This cannot be done in this particular neighbourhood without danger to the peace and order of the district. To the theatre itself, however, there is no objection. Surely these are considerations sufficient to justify them in the exercise of their discretion in the way they have done. If it is not, I cannot conceive what are.

Rule discharged.

Solicitors for the applicant, Andrew, Wood, and Co., for Newman and Bond, Barnsley.

Solicitors for the County Council, Badham and Williams, for Trevor Edwards, Wakefield.

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House of Lords.

Nov. 26, 28, 29, 1895, and July 31, 1896. (Before the LORD CHANCELLOR (Halsbury), Lords WATSON, MACNAGHTEN, MORRIS, SHAND, and DAVEY.)

SCHOLFIELD V. LORD LONDESBOROUGH. (a)

ON APPEAL FROM THE COURT OF APPEAL IN ENGLAND.

Bill of exchange-Alteration-Duty of acceptor— Negligence Estoppel-Bills of Exchange Act 1882 (45 & 46 Vict. c. 61), s. 64, sub-sect. Ï. There is no duty on the acceptor of a bill of exchange to see, before he accepts the bill, that it is not so drawn as to render a subsequent fraudulent alteration possible.

S. drew a bill of exchange on the respondent. The bill was drawn upon a stamp sufficient to cover a much larger sum than that which appeared on the face of it, and spaces were intentionally left in the body of the bill which would facilitate alterations. After the respondent had accepted the bill, S. fraudulently inserted words and figures which altered the amount from 500l. to 35001. The bill so altered afterwards came into the hands of the appellant as a bona fide indorsee for value.

Held (affirming the judgment of the court below),

that the respondent was not liable for more than 500l., the original amount of the bill. Young v. Grote (4 Bing. 253) discussed and distinguished.

Per Lord Watson: If the respondent had been guilty of such negligence as to make him liable by estoppel, sect. 64, sub-sect. 1, of the Bills of Exchange Act 1882 would have been no defence to the appellant's claim.

THIS was an appeal from a judgment of the "Court of Appeal (Lord Esher, M.R. and Rigby, L.J., Lopes, L.J. dissenting), reported in 72 L. T. Rep. 46; and (1895) 1 Q. B. 536, who had affirmed, on different grounds, a judgment of Charles, J. at the trial without a jury, reported in 71 L. T. Rep. 86; and (1894) 2 Q. B. 660, in favour of the respondent, the defendant below.

The action was to recover 35007. on a bill of exchange, dated the 8th Sept. 1890, and drawn by one Francis Charles Scott Sanders upon, and accepted by, the respondent. The appellant (the plaintiff below) was the holder of the bill in good faith and for valuable consideration. The bill when accepted by the respondent was for 500l. only, and before it was indorsed it had been fraudulently altered into a bill for 35001. The bill bore a 21. stamp, which was sufficient to cover 40007. In the left-hand corner of the bill at the time of the acceptance were the figures "500," preceded by the sign "£." Between the "£," however, and the figures was a space sufficiently wide to admit of another figure being interpolated. The body of the bill was in three lines. On the first were the words, "Three months after date "; on the second were the words, Pay to me or my order the sum of"; and on the third were the words, "Five hundred pounds for value received.” After the word "of" in the second line there was sufficient space left for the addition of another word; and before the word "five" in the third

64

(a) Reported by C. E. MALDEN, Esq., Barrister-at-Law.

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line there was also a space for the addition of a word without carrying the third line further to the left than the word "pay in the second.

Charles, J., in his judgment, found that Sanders, having obtained the respondent's acceptance to the bill so drawn, inserted the figure “3” between the sign £ and the figures 500, and in the body of the instrument added the words "three thousand" between the word "of" on the second line and the words five hundred" on the third line, writing the word "three" on the second line, and "thousand" on the third line; and in that shape he negotiated it.

The respondent paid 5007. into court.

The learned judge held that the respondent was not estopped by the above facts from denying that he had accepted a bill for 35001.; that the respondent was liable for 500l., the amount of the bill as originally drawn and accepted; and this sum having been paid into court, he gave judg ment for the defendant.

The Court of Appeal held that there was no duty on the respondent to scrutinise the form of

the bill.

Asquith, Q.C., Morten, and Roskill appeared for the appellant, and argued that the bill was evidently intentionally drawn in such a form as to facilitate the fraud that was afterwards committed. In this state of facts three questions arise (1) Is there a duty on the acceptor to take reasonable precautions that the bill as accepted shall not be in such a form as to facilitate subse quent alteration? A bill of exchange is accepted for the purpose of its being discounted in the market, and it is within the contemplation of the parties that it may be negotiated. The extent of the obligation on the acceptor is not to leave obvious loopholes for the commission of a fraud. The doctrine has its origin in Young v. Grote (4 Bing. 253), which has been commented on, and See explained in many subsequent cases.

Robarts v. Tucker, 16 Q. B. 560;

Bank of Ireland v. Evans' Trustees, 5 H. of L. Cas.
389;

Ingham v. Primrose, 7 C. B. N. S. 82;
Swan v. North British Australian Company, 7

C. B. N. S. 400; see also the same case in
7 H. & N. 603, and in the Exchequer Chamber,
2 H. & C. 175;

Halifax Union v. Wheelwright, 32 L. T. Rep. 802;
L. Rep. 10 Ex. 183;

Arnold v. Cheque Bank, 34 L. T. Rep. 729; 1 C. P.
Div. 578;

Baxendale v. Bennett, 40 L. T. Rep. 23; 3 Q. B.
Div. 525;

Merchants of the Staple v. Bank of England, 56
L. T. Rep. 665; 21 Q. B. Div. 160;
Vagliano v. Bank of England, 64 L. T. Rep. 353;
(1891) A. C. 107.

[Lord DAVEY referred to Colonial Bank v. Cady (63 L. T. Rep. 27; 15 App. Cas. 267).] See also Pickard v. Sears, 6 A. & E. 469;

Société Générale v. Metropolitan Bank, 27 L. T.
Rep. 849.

There is a duty on a person who launches a nego tiable instrument to take precautions that it is so drawn that an innocent holder may not be deceived. This duty is not founded on contract, but it is implied in law from the nature of the document. There is a possibility that it may get into fraudulent hands, and, if proper precautions have not been taken, the damage is the

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direct result. When the authorities are sifted they support the view that there is a duty, and the evidence is that there was a breach of it in the neglect of ordinary business precautions, which in fact deceived an innocent holder. (2) Was there a breach of duty on the facts? As to this res ipsa loquitur. [The LORD CHANCELLOR. -There is a great difference between a bill and a cheque; there is a regular form for a cheque, but not for a bill.] (3) Is the appellant in a position to take advantage of the breach, if any? Clearly it was the proximate cause of his being misled. Charles, J. admitted the duty, but denied the breach; Lord Esher, M.R. and Rigby, L.J. denied both, while Lopes, L.J. admitted both. The defendant is not protected by sect. 64, subsect. (1) of the Bills of Exchange Act 1882. It is a case of estoppel by negligence. See

Carr v. London and North-Western Railway Company, 31 L. T. Rep. 785; L. Rep. 10 C. P. 307; Seton v. Lafone, 57 L. T. Rep. 547; 19 Q. B. Div. 68.

The question as to the duty cast on the acceptor depends on the general law of negligence, which is discussed in

Heaven v. Pender, 49 L. T. Rep. 357; 11 Q. B. Div. 502.

Reasonable care and reasonable precautions should be taken. See also the American case, Garrard v. Haddon (67 Pennsylvania Rep. (17 Smith) 82) in 1870, where Hall v. Fuller (5 B. & C. 750) was cited; and the Scotch cases, Pagan v. Wylie (Morr. Dict. 1660) in 1793, and Grahame v. Gillespie (Morr. Dict. 1453) in 1795.

Jelf, Q.C., A. T. Lawrence, and Francis, for the respondent, maintained that the argument of the appellant, which is founded on estoppel, failed. Since the Bills of Exchange Act 1882 the argument from estoppel cannot be maintained. Sect. 64, sub-sect. I, deals exhaustively with the question of the alteration of a bill, and avoids the altered bill absolutely. It does not recognise the case of negligence facilitating the alteration. See also sects. 24 and 54, which do recognise estoppel, and sect. 97, sub-sect. 2. There is no evidence of such custom or duty as is contended for. See per Cockburn, C.J., in

Goodwin v. Robarts, 33 L. T. Rep. 272; L. Rep. 10
Ex. 337.

All the duties which do exist are dealt with in the codifying Act, and this alleged doctrine is omitted. As to the effect of a carelessly worded document without fraud:

Derry v. Peek, 61 L. T. Rep. 265; 14 App. Cas. 337;
Langridge v. Levy, 2 M. & W. 510; 4 M. & W. 337;
Le Livre v. Gould, 68 L. T. Rep. 626; (1893) 1
Q. B. 491, per Bowen, L.J.

This is not a case of an authority implied by handing over an incomplete instrument; "gaps are distinct from "blanks." The exact point was decided in Adelphi Bank v. Edwards (not reported), in 1882, by Baggallay, Brett, and Lindley, L.JJ., affirming a judgment of Chitty, J. (a)

(a) It appears from a note in 26 Sol. Jour. 360 (April 8, 1882) that Chitty, J held that the case was not distinguishable from Société Générale v. Metropolitan Bank (27 L. T. Rep. 849) and from 27 Sol. Jour. 70 (Dec. 2, 1882), that the Court of Appeal thought that on the facts there was no evidence of negligence, which is probably the reason why the case is not reported anywhere.

[H. OF L.

The decision in Downes v. Richardson (5 B. & Ald. 674) is wrong. The bill is "issued" as soon as it is accepted and handed to the drawer, and the stamp is exhausted on the first issue of the bill. The relation of banker and customer distinguishes Young v. Grote from this case, which is a case of a bill, not of a cheque. That decision was founded on a passage in Pothier, which does not go as far as the appellant's argument in this case requires. The other cases cited are distinguishable upon the facts, and only contain dicta in favour of the appellant's contention here. Lord Herschell defined the limits of the duty of the acceptor of a bill in

Vagliano v. Bank of England (ubi sup.).

The American authorities are collected in Beven's Law of Negligence (2nd edit. 1895), vol. 2, pp. 1575 et seq. If the breach of duty is a question of fact, Charles, J., sitting without a jury, found it in favour of the respondent, and the majority in the Court of Appeal agreed in his view of the facts. Asquith, Q.C. was heard in reply.

At the conclusion of the arguments their Lordships took time to consider their judgment. July 31.-Their Lordships gave judgment as follows:

My

The LORD CHANCELLOR (Halsbury). Lords: In this case the plaintiff below (the appellant here) brought an action against the respondent on what purported to be a bill of exchange for 35001. The respondent's name attached to the bill in question was genuine. He had, in fact, accepted a bill for 500l, but, by fraudulent alteration, amounting to forgery, the amount for which the respondent accepted was increased to the sum sued for. It is not contended that the bill is not a forgery and, if nothing else appeared, it would of course be a sufficient defence for the acceptor to plead and prove that he never accepted any such bill as that for which the plaintiff brought his action. But it is contended that the form of the bill was such that the respondent was negligent in accepting it. The bill, as originally accepted, was so far in ordinary form and perfect that, but for some criminal act, it was, in its then form, a complete bill of exchange, leaving nothing to be added to or taken from it. It is said, indeed, that certain spaces were left which gave opportunity for the insertion of the added words and figures, and if by that is meant that the words and figures were not written so closely together as to prevent the insertion of other words and figures, the observation is true. But when it is said that certain spaces were left, it is to be remembered that there was nothing unusual or calculated to excite attention in the intervals between the written words and figures by which the bill was made. As a matter of fact, the person who drew the bill intended to draw it in such a way as to enable him to fill up the intervals between the letters and figures in question; but, to my mind, there was nothing suspicious in the appearance of the bill when tendered to the respondent for acceptance calculated to put him on his guard. I cannot myself understand why the particular form of fraud adopted in this case should have any different operation in giving validity to a forged instrument rather than other forms of fraud to which instruments are subject. I am

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or

not aware of any principle known to the law which should attach such consequences to a written instrument when no such principle is applicable in any other region of jurisprudence where a man's own carelessness has given opportunity for the commission of a crime. A man, for instance, does not lose his right to his property if he has unnecessarily exposed his goods, or allowed his pocket-handkerchief to hang out of his pocket, but could recover against a bona fide purchaser of any article so lost, notwithstanding the fact that his conduct had to some extent assisted the thief. It is true that stolen goods sold in market overt could be retained by a bonó fide purchaser for value, notwithstanding they had been previously stolen; but the same result would follow equally whether the owner had been careful or careless in the custody of his goods. The truth is, that the whole doctrine, that facilitating forgery giving opportunity for forgery, or so acting that a forgery is a possible result, affects the validity of the instrument forged, may be traced, in English law at all events, to the case of Young v. Grote (4 Bing. 253) and probably beyond, to certain doctrines of the Roman civil law, which to my mind form no part of the law merchant so far as it exists in English jurisprudence. That case has been pushed so far in argument that I think that the time has come when it would be desirable to deal with it authoritatively by your Lordships, and to examine how far it ought to be quoted as an authority for anything. It is to be observed that, when one looks at the judgments delivered, there is an inextricable confusion, not only among the different judges, but in the judgment of each judge in turn. Best, C.J. says: 'If Young, instead of leaving the cheque with a female, had left it with a man of business, he would have guarded against fraud in the mode of filling it up.' So that here the negligence is made to consist, so far as the drawer was concerned, in leaving a cheque, already signed in blank, with a female unacquainted with business, and in accordance with this view the learned judge goes on to distinguish Hall v. Fuller, because, he says, the alteration in that case was not made by the drawer's clerk, nor a person improperly trusted by him, but by an entire stranger who accidentally became possessed of the cheque. Park, J., again distinguishing Hall v. Fuller (5 B. & C. 750), says: "Can anyone say that the cheque signed by Young is not a genuine order? I say it is. The cheques left by him to be filled up by his wife, when filled up by her, became his genuine orders." This is an intelligible ground; but the learned judge immediately adds that the arbitrator had found negligence on the part of the drawer, and he says he concurs, and then goes on: "He leaves blank cheques in the hands of his wife, who was ignorant of business, but having left them with her to be filled up as the exigency of the moment might require, they became upon her issuing them his genuine orders." manifest that the learned judge oscillates between the two views. In the perfectly sound view upon which he decides in the defendant's favour he adds the absolutely irrelevant statement that the cheques were left in the hands of the wife, who was ignorant of business. Burrough, J. seems only to deal with the question of negligence, and says the blame is all on one side,

66

It is

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while Gaselee, J. points out the circumstances negativing the general authority of the clerk, who was the actual forger, either to fill up cheques or to receive money from the bank; these circumstances, he says, might have strengthened the case. It is not very surprising that a variety of reasons have been given by various judges for not disagreeing with the case. The arbitrator had decided that there was negligence, and Park, J., as is apparent, puts forward, and justly puts forward, the argument that by the act of the drawer's wife that cheque became the husband's genuine order. Shortly put, the argument is that he attached his genuine signature, leaving it to be filled up by his wife, and, as the learned judge emphatically says, "when filled up by his wife they became his genuine orders.' If that is a true view of the case, and that is the learned judge's reasoning, it could not be doubted but that it was the drawer's genuine order. I am not concerned to discuss whether the particular mode in which a written order which was given by the banker to his customers for the purpose of being filled up in the usual way before signing it may afford ground for saying that the banker was misled by his own customer. If, to use Lord Cranworth's phraseology, the customer by any act of his has induced the banker to act upon the document by his act or neglect of some act usual in the course of dealing between them, it is quite intelligible that he should not be permitted to set up his own act or neglect to the prejudice of the banker whom he has thus misled, or by neglect permitted to be misled: (Bank of Ireland v. Evans' Trustees, 5 H. of L. Cas. 389).

do not say that had I been the arbitrator I could have agreed that there was in the particular case any such neglect as would have come up to this proposition; but the principle, as Lord Cranworth says, is a familiar one, though it may not have been properly applied to the then state of facts. Your Lordships have acted upon it in Ireland v. Livingstone (27 L. T. Rep. 79; L. Rep. 5 H of L. 395), and in Vagliano v. The Bank of England (64 L. T. Rep. 353; (1891) A. C. 107), and the minuteness with which the arbitrator described the printed forms of drafts which were supplied by the bankers to their customers indicates what was in his mind as to what I will describe as an agreed or assumed course of business between banker and customer, and under those circumstances the finding of negligence which was conclusive upon the court might have justified it in assuming that the facts brought it up for the proposition which Lord Cranworth suggests; but, unfortunately I think, Best, C.J. adopted the argument presented to him that Pothier might be quoted as an authority decisive of the case, and I think that some of the confusion that has arisen upon the frequent occasions when the case has been quoted has resulted from a misapplication of what Pothier, in fact, has said, and the more serious assumption that what he has said forms any part of the mercantile law of England. Now Pothier, in his Treatise on Bills of Exchange, and commenting on Scacchia, a Roman lawyer of the seventeenth century, gives a variety of illustrations sometimes adopting and sometimes modifying the rules which Scacchia lays down. But I think it impossible adequately to deal with the matter without having both the text and the commen

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tary before us. They are as follows (Scacchia Tract de Commer." pp. 390, 391): "Summaria.Falsificatis litteris cambii ab eo, cui litteræ illæ solvi debent; et proinde, soluta majore summa, cujus sit damnum (n. 393 et seqq.). Falsificationis vitium aliquando est patens (sub nu 393 vers, primus, et n. 394). Et quandoque latens (n. 395). Bancherii debent esse cauti in solutionibus cædularum, &c. (n. 397). Falsificatio litterarum cambii raro posset hodie contingere (n. 399). Quæro XV. Tu in civitate Genuæ das Viviano scutos 100 ut eorum valorem faciat solvi Petro Romæ, Vivianus, ut moris est, facit et dat tibi litteras apertas, solvendas Petro Romæ a Bergonzo; tu litteris acceptis, mittis eas Romam ad Petrum, qui eas Romæ falsificat in numero, et illis falsificatis, exigit a Bergonzo majorem pecuniarum summam, puta scutos 200,faciendo litteram 2 ex littera 1 vel aliter ex litteris C. litteram O. Dubitatur, an hoc damnum pati, debeat Bergonzus quia male solverit, vel Vivianus, quia non caute late scripserit characteres, vel tu, quia elegeris malum virum ad exigendum,_et sic ad quem ex his spectet hoc periculum? Pro resolutione distinguo in primis duos casus falsificationis seu vitiationis litterarum. Primus casus est, quando falsificatio seu vitium litterarum est ita patens et evidens ut a quolibet campsore, qui accurata, et debita uteretur diligentia, cognosceretur, et isto casu concludo, quod periculum pertinet ad Bergonzum, qui malè solvit; et ratio est, quia ipse solvendo illas litteras falsas fuit in culpa, cum teneretur inquirere veritatem, et sua culpa sibi et non aliis debet nocere (Ang. cons. 370 creditor sub n. 1 vers. pro hoc adduco ibi, sed si falsific et in fine consilii, quem sequitur Foll. ad Maran. in spec, par. 6, Act. 6, n. 54 vers. sed nunquid campsor fol. 387). Exemplifica istum casum, quando ex comparatione litterarum, adhibito peritorum judicio, cognosci potuisset falsificatio (Ang. ubi sup.) vel; quando appareret aliqua rasura, seu aliud vitium visibile, et demum esset in culpa, quoties in litteris esset tale quid quod ipsas redderet suspectas de falso, quia paria sunt, civiliter loquendo, litteras esse falsas vel esse suspectas de falso (ut secutus sum in meo trac. de judic. caus., &c., lib. 2, cap. ii., n. 165, præsertim in futura impressione). Secundus casus est, quando falsificatio erat ita latens, ut etiam a perito et diligenti campsore cognosci non potuisset, quia nulla præ se ferebat suspicionem ; et isto casu concludo contrarium; nempe periculum non pertinere ad Bergonzum, quia solvendo, non fuit in aliqua culpa et consequenter recte solvendo, est liberatus, tam a Viviano, qui scripsit quam a te, qui es creditor (Ang. d. cons., 370, sub num. 1, ibi, sed si culpa campsori nulla, &c., et sub n. 2, in fine consilii, vers. concludo igitur, et Foller ubi sup.). Declaro, hujus secundi casus conclusionem esse veram, quando mercator scripsit litteras et sic supposita substantia negotii; secus quando mercator nullas scripsisset litteras, quia tunc licet aliquis ita mercatoris manum contrafecisset, i.e., imitatus esset, ut nullus peritus potuisset cognoscere diversitatem manus, i.e., litterarum, et consequenter nulla posset attribui culpa, desidia, negligentia, seu inexperientia ipsi campsori, quia quilibet fuisset deceptus tamen adhuc damnum erit ipsius solius, et ratio est, quia si mercator secum in hoc non contraxit periculum remanet ipsi soli campsori. Infero ex hac

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declaratione, quod Bancherii, seu nummularii debent esse cauti in scripturis, et subscriptionibus cedularum, et illarum recognitionibus, quia si solverint pecuniam cum cedulis, seu apochis falsis, quæ eis præsentantur, et quas ipsi veras præsupponunt, quando solvunt, cogentur iterum solvere veris dominis pecuniarum, quia male solverunt: (Vinc. de Franchi dec. 304, sæpe sæpius, dicens, sæpe sæpius id evenire in Civitate Neapolis). Supposito nunc isto Secundo casu, quod Bergonzus recté solverit, superest, ut absolvendo propositam quæstionem videamus, an Vivianus qui scripsit litteras, teneatur facere novas litteras solvendas; vel tu, qui fuisti in mala electione mandatorii, habeas solum regressum contra Petrum, cessa tibi condictione furtiva a Bergonzo? Et agendo breviter, concludo Vivianum esse liberatum; ideo non teneri ad alias litteras, et tibi cedendam esse condictionem furtivam, quia omnis culpa quæ posset adscribi Viviano, quòd scripserit litteras, seu characteres culposos tollitur ex quo tu habuisti illas litteras apertas, et acquievisti, cum deberes potius, non acquiescendo, facere scribi litteras characteribus bene compositis ut variari non possent (ut concludit Ang. d. consil 470, sub n. I vers. Secunda culpa et sub n. 2). Sed casus hujus quæstionis hodie raro potest contingere, tum quia campsores non solet canbire, nisi per illas partes, in quibus adsunt publici tabellarii, et ideo ultra litteras cambii mittunt litteras d'aviso, quas habes, sup. q. 5, nu. 78, et mercatores, nisi habeant litteras d'aviso, non solvunt, et in illis litteris d'aviso, stat veritas incorrupta, tum quia campsores sagaces hodie substantialia litterarum scribunt ita per extensum, ut falsificari non possint, sine evidenti, et notoria falsificatione." Pothier Contrat de Change, part 1, ch. 4, s. 99, vol. 4, Ed. Bugnet, pp. 516-518: -"99, Scacchia, Tract. de Comm., § 2, gl. 5, quæst. 15, propose cette question: Le porteur de la lettre de change l'a falsifiée, et a écrit une plus grande somme que celle portée par la lettre; la falsification est faite de manière qu'elle peut tromper une personne attentive et intelligente. Le banquier qui, trompé par la falsification de la lettre que lui a été présentée, a payé au porteur la somme entière que paraissait portée par la lettre; aurat'il répétition contre le tireur, son mandant, de ce qu'il a payé de plus que la somme qui était effectivement et véritablement portée par la lettre? Scacchia décide pour l'affirmative. On peut dire pour son opinion, que, selon les règles du contrat de mandat, le mandant s'oblige à rembourser le mandataire de tous les déboursés auxquels le mandat aura donné lieu, pourvu que le mandataire n'ait pas par sa faute déboursé plus qu'il ne fallait: Mandator debet refundere mandatario quidquid ei inculpabiliter abest ex causa mandati, comme nous l'avons établi en Pand. Justin., tit. Mand., No. 53 et seq. Or, le paiement qu'a fait le banquier de la somme entière qui, par la falsification de la lettre, paraissait être portée dans la lettre qu'on lui a présentée, est un déboursée auquel le mandat du tireur a donné lieu; et l'on ne peut en cela reprocher aucune faute à ce banquier [Non, sans doute, mais il a été victime d'une fraude] puisqu'on suppose que la falsification était telle qu'elle pouvait surpendre un homme intelligent; le tireur ne peut donc pas se dispenser de rembourser le banquier sur qu'il a tiré la lettre, de la somme entière qu'il a payée; sauf au tireur à exercer l'action du