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As regards the position stated by Mr. Justice Bayley above, that the banker must show the order was genuine, not in signature only, but in every respect, it appears to us to lay the principle down too broadly. Thus, where a party receives a blank cheque signed, with directions to fill in a certain amount, and to appropriate the instrument to a certain purpose, and he fraudulently fills in a different amount, and devotes the cheque to other purposes, he commits forgery: Reg. v. Bateman (1 Cox's Crim. Cases, 186), Flower v. Shaw (2 Car. and K., 703), and Reg. v. Wilson (17 L. J. (M.C.) 82). But a banker who paid such a cheque, would clearly be warranted in so doing, because the signature is genuine; and no attention could possibly discover whether the cheque had been filled up before or after the signature, or in conformity or not with the instructions given by the drawer: see the case of Young v. Grote (4 Bingham's Reports, 253). Where the indorsement of the name of the payee of a bill of exchange, made payable at a banker's, was forged, and the bankers paid it, they were held to be responsible to the acceptor, although the acceptance was genuine, and was placed on the bill after the forgery of the indorsement: Tucker v. Robarts (18 L. J. (Q.B.) 159). Same case in error, 20 L. J. (Q.B.) 270.
7. Right of bankers who pay a forgery to recover back the amount from the party receiving it.
We shall give the leading cases on this point at length. Fuller v. Smith (1 Ryan and Moody, 49) was an action to recover the amount of a bill of exchange which had been discounted by the plaintiffs for the defendants, and which afterwards turned out to be a forgery. The bill purported to be drawn by a person named Lunn, and accepted by George Norman and Son, payable at the plaintiff's who were their bankers, and indorsed by Lunn and one Robert Simpson. The forgery was clearly proved. For the defendants their clerk was examined, who swore that the defendants were the agents of Simpson, and had paid over the money to him before they had any notice of the forgery; but on his cross-examination he admitted that there was a running account between the defendants and Simpson, and entries in the books on both sides. These books were not produced.
The Attorney-General for the defendants— "The defendants in this case are entitled to a verdict. It appears, from the evidence of their witness, that they were only the agents of Simpson, and had paid over the money to him before they had notice of the forgery; and if an agent pays over money to his principal, he cannot be called on to refund. In this case, also, it appears that the plaintiffs are the bankers of the acceptors as
well as the discounters of the bill, and bankers are bound to know the handwriting of their customers. If there was any negligence, it was on the part of the plaintiffs."
Scarlett, for the plaintiffs-"I doubt whether Simpson was indebted to the defendants at all, because the books are not produced. But it makes no difference whether the defendants were acting as agents or not; the contract is with them, and there is a warranty on their part. It matters not whether the subject of the action be a bill of exchange or anything else. Suppose a man sold another a hamper as a hamper of wine, and it turned out to be a hamper of water, he could not, on being called on to return the money, say I sold it for a principal, you must run after him. There is no defence to the action."
Abbott, C.J.-"The only question of fact in this case is, whether the defendants paid over the money to Simpson before they had notice of the forgery; but I am of opinion, in point of law, that they are liable whether they did so or not. With respect to the argument that the plaintiffs ought to have known the handwriting of the acceptors, I am of opinion that a banker is bound to know the handwriting of those who draw on him, as far as regards paying bills so drawn; but not when discounting a bill, for his attention is not called to it then. My opinion therefore is, that the plaintiffs in this case are entitled to a verdict." His Lordship then requested the jury to say whether
they were satisfied of the fact of the money having been paid over before notice of the forgery.
The jury stated that they were not satisfied. -Verdict for the plaintiffs.
But if a bona fide holder of a forged cheque receive the amount of it from the banker, and retain it without notice for a whole day, the banker cannot recover back the amount. This question was discussed in the case of Cocks v. Masterman (9 Barnewall and Cresswell's Reports, 902).
At the trial of this case before Lord Tenterden, C.J., at the London sittings after Michaelmas Term, 1827, a special verdict was found stating in substance as follows:-Long before and at the several times hereinafter mentioned, the plaintiffs carried on business as bankers, at Charing Cross, in the city of Westminster, and the defendants carried on business as bankers in Nicholas Lane, in the city of London. Before and on and after the 24th of May, 1827, certain persons carrying on trade and business under the firm and style of "Sewell & Cross," kept an account and cash with the plaintiffs as their bankers; and certain other persons carrying on trade and business under the firm and style of "Sanderson & Co.," kept an account and cash with the defendants as their bankers; and before the said 24th of May, a bill of exchange, drawn by one T. Dutton upon Sewell & Cross, bearing date the 21st of March, 1827, for £198. 19s., payable two months after date to the order of T. Dutton, and indorsed by the said
T. Dutton, and also by C. Heginbotham and one J. Harris, and purporting to be accepted by Sewell & Cross, payable at the plaintiffs, was paid to the defendants by Sanderson & Co. to their credit with the defendants; and upon the said 24th of May, the defendants presented the said bill to the plaintiffs, and required them to pay the same according to the said acceptance; and that the plaintiffs, believing the said acceptance to be that of Sewell & Cross, paid to the defendants the sum of £198. 19s., as the amount of the bill of exchange so purporting to be accepted as aforesaid; that on the 25th day of May (being the day next following the day on which such payment was made), the plaintiffs discovered that the acceptance on the bill was not the acceptance of Sewell & Cross, but that the same was forged by T. Dutton, the drawer of such bill; that the said acceptance was, in fact, so forged; and that on the said 25th of May, about 1 o'clock, the plaintiffs gave notice to the defendants and to J. Harris the indorser, and to Sanderson & Co., that the same was forged, and that the said payment had been made by them under a mistake, and in ignorance of the acceptance being so forged; and they requested the defendants to repay them the said sum of £198. 19s. And on the same day one Thomas Gates, as attorney for the "Bankers' Society for Protection against Forgers," and of which society the plaintiffs and defendants were members, sent the following letter to C. Hegin