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botham the other indorser, and also a like one to J. Harris:

"Sir,-A bill of exchange, bearing your indorsement, for £198. 19s., drawn by Thomas Dutton, and purporting to be accepted by Sewell & Cross, and indorsed by you to J. Harris, due yesterday, has been refused payment, and now lies with me, the acceptance being forged; and if the same is not taken up by 10 o'clock to-morrow, legal proceedings will be taken against all parties."

The sum of £198. 19s. was entered by the plaintiffs in the day-book, to the debit of Sewell and Cross, but was not carried into the ledger, or further charged to their account. Sanderson & Co. did not draw out of the hands of the defendants any sum of money upon the credit of, or in respect of, the said bill; and the balance of money's belonging to Sanderson & Co. in the hands of the defendants, as their bankers, both before and at and after the several days before mentioned, greatly exceeded the said sum of £198. 19s.

The case was now argued by Richards for the plaintiffs-The money in this case was paid by the plaintiffs to the defendants without consideration, and under a mistake as to the facts; it may therefore be recovered back in this action.

On the other side, the cases of Price v. Neal (1 W. Blackstone, 390, 3 Burrows, 1354), and Smith v. Mercer (6 Taunt. 76), will be relied on.

On the other hand, Jones v. Ryde (5 Taunt. 488), and Bruce v. Bruce (5 Taunt. 495, 1 Marshall, 155), are in point for the present plaintiffs.

Nothing was done in this case that could prejudice any of the parties; when the forgery was discovered the holder of the bill had not drawn out any of the money from the hands of the defendants, and none of the prior parties to the bill were discharged by laches. Unless, then, it be held, that if the forgery had been discovered immediately after the payment, the money could not have been recovered back, the present plaintiffs must be entitled to recover in this action.

Pollock, on the other hand, argued that--" The defendants were entitled to retain the money which they had received for their customer. The case presents two conflicting principles: first, that money paid under a mistake may be recovered back; secondly, that the acceptance or payment of a bill cannot be revoked. And the question is, by which of these principles the present caso is to be governed? The first has been applied with this limitation, that where the party paying has knowledge of all the facts, or the means of knowledge, he cannot recover back the money paid. Here the plaintiffs had the means of knowing their customer's handwriting—it was their duty to know it; and, therefore, they cannot recover back the money on the ground that they paid it under a mistaken supposition that the bill

was accepted by their customer. If, indeed, the mistake had been discovered immediately, the transaction might have been undone, for then no new circumstances varying the situation of the parties could have intervened. Here a whole day intervened; new circumstances might have arisen ; and the Court will not inquire whether they did or not. Smith v. Mercer is directly in point for the defendants; and Wilkinson v. Johnson, cited for the plaintiffs, differs, for there the mistake was discovered on the same morning when the payment was made."

Bayley, J., delivered the judgment of the Court in the following terms--"This was an action brought by Cocks & Co., bankers in London, to recover a sum of money paid by them to the defendants, on the ground that they, having paid the money by mistake, and in ignorance of the facts, were entitled to recover it back. The bill was presented the 24th of May, the day on which it became due. The plaintiffs paid it, not knowing that it was not the genuine acceptance of Sewell & Cross. On the following day it was discovered that the acceptance was a forgery; and the plaintiffs on that day gave notice to the defendants. It was insisted that the plaintiffs were not entitled to recover, because they, being bankers, ought, before they paid the bill, to have satisfied themselves that the acceptance was genuine. On the other hand, it was said that the plaintiffs, having given notice of the forgery

to the defendants on the day next after the bill had been paid, were entitled to recover back the money, on the ground that they had paid the money under a mistaken supposition that the acceptance was the genuine acceptance of Sewell & Cross; and the case of Wilkinson v. Johnson was relied on. That case differs from the present in one material point-viz., that the notice of forgery was given on the very day when payment was made, and so as to enable the defendant to send notice of the dishonour to the prior parties on that day. In this case we give no opinion upon the point whether the plaintiffs would have been entitled to recover if notice of the forgery had been given to the defendant on the very day on which the bill was paid, so as to enable the defendant on that day to have sent notice to other parties on the bill; but we are all of opinion that the holder of a bill is entitled to know, on the day when it becomes due, whether it is an honoured or dishonoured bill; and that if he receive the money, and is suffered to retain it during the whole of that day, the parties who paid it cannot recover it back. The holder, indeed, is not bound by law (if the bill be dis-honoured by the acceptor) to take any steps against the other parties to the bill till the day after it is dishonoured: but he is entitled so to do if he thinks fit; and the parties who pay the bill ought not, by their negligence, to deprive the holder of any right or privilege. If we were to hold that the plaintiffs were entitled

to recover, it would be in effect saying that the plaintiffs might deprive the holder of a bill of his right to take steps against the parties to the bill on the day when it becomes due."

It will be seen that the foregoing was an ordinary bill of exchange; but there is no distinction, in this respect, between it and a cheque. The drawer of a cheque is analogous to the acceptor of a bill of exchange payable at a banker's; and the holder of a cheque is also analogous to the indorsee or holder of a bill.

8. Where bankers allow their customers the amount of a cheque under a representation that it is a forgery, they may, upon discovering that it was genuine, recover back the amouut.

In the case of Williams and Others v. Woodward, plaintiffs, who were bankers, had paid a cheque of the defendant's, and afterwards allowed him in account on a suggestion that the cheque was a forgery. On the part of the plaintiffs one of their cashiers was called, who swore that he believed the signature to the cheque in question to be the defendant's handwriting; and he further stated, that on Monday, the 5th of November (the cheque having been paid on Saturday, the 3rd), the defendant came to the banking-house and stated that the signature was not his, and offered to make oath of the fact. On his cross-examination he said that the plaintiffs supplied their customers

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