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water by the plaintiff's intestate, it had been earth; and was the City bound to anticipate impure, unwholesome or dangerous, there is that such water would become impure and Do proof that any reasonable diligence on the dangerous in the wells? There was no proof part of the defendant would bave discovered that it was the necessary, or even the natural. its impure or dangerous quality, if it existed. consequence that water in city wells, bowever The plain inference is that there was some they may be located, will become poisonous cause of contamination which had not long ex- and deleterious. On the contrary, the proof isted. There must have been some unobserved showed that the waters of such wells have been deposit of deleterious matter at some distance used for years with impunity. These wells from the well, upon or under the surface of were furnisbed for the accommodation of the the soil, or some new vein opened in the soil, public. They were not obliged to use them; througb wlich impure water, for the first time, and most people have sufficient knowledge to percolated into the well in the early part of know that their waters may not be as pure as August. Tbere is no proof or claim that any water brought from pure streams, far away improper or poisonous substance had been from the city limits, and from exposure to thrown into the well, or that the well was un contamination. The public may use them: clean, or needed cleaning out. Assuming and when they are found unwholesome or delthat tbe defendant was bound to make a chem- eterious, and ihe City has notice thereof, it is ical avalysis of the water of its wells from bound to protect the public bealth by purifytime to time, how often should such analysis ing the waters, or filling up the wells. The be made? It appears that there were 296 wells burden upon the City is sufficient if it is beld within the city limits belonging to the City to the responsibility of keeping tbe wells and To analyze the waters of all these wells would pumps in order, and clean, and if it is made take a long time. If the defendant were reliable for any injury resulting from the use of quired to do it even once a quarter, it would impure water from the wells after it bas bad probably take the whole time of a single chem. notice of their dangerous qualities, and an op

But, if the chemical analysis of ihe water portunity to remove the danger. The bigher of this well had been made in June, or even degree of diligeuce as to water apparently pure early in July, there is no proof, and there can and wholesome, agreeable to the taste, and in be no legal inference, that it would bave been common use by the public without complaint, found unwholesonie; and how, tben, can it be would be unreasonable. said that at the precise time the deceased drank These views are not in conflict with any of of this water, in August, the City was bound the authorities to which our attention has been to bave disi overed and known that it was un-called. wholesome and dangerous? For aught that In McCarthy v. Syracuse, 46 N. Y. 194, it appears in the case, the City may, from time was held that, when the duty was imposed to time, during previous montlis or years, by law upon a public officer or municipal corbave examined and tested the waters of these poration of keeping a structure in repair, it wells. It appears that the department of pub- involves the exercise of a reasonable degree of lic health, about the 1st of June, 1882, ordered watchfulness in ascertaining the condition of the chemist of that department to make an ex such structure from time to time, and that wbere amination of the waters of the wells of the this is omitted such officer or corporation is City, and be proceeded with such examination, liable for damages resulting from a dilapidation but did not reach the water of the well io ques- of tbe structure which is an ordinary result of tion until the last of August. Here there was its use, and which would have been disclosed a well in perfect order, clean, free from filth by an examination, and that no votice of the and débris, the water of which had been used defect is necessary, in such a case, to fix the with impunity and satisfaction by those living liability. There ibe damage complained of in the neighborhood for many years; and no resulted from a defective sener, and the City complaint had been made of it, and no sus- was under obligation to use reasonable dilipicion had been raised that it was in any way gence to keep it in repair; and it could not unwholesome or dangerous. Under such cir-escape responsibility simply because it had no cumstances, what was there to suggest to the notice that the sewer was out of repair. Here City the duty of analyzing and testing this it was the duty of the City to use reasonable water prior to the 1si day of August, 1882? diligence to keep this well and pump ic repair, We find poibing.

and to guard agaiust any dilapidation or danger We bave thus far assumed that the City resulting from use of the well; but as we have was bound, from time to tiine, to make a shown, ibere was no evidence which would chemical examination of the waters of the justify a finding of culpable negligence as to public wells, for the purpose of ascertaining ihe well on the part of tbe City. whether they were pure and wholesome. But In llunt v. New York, 109 N. Y. 134, 12 (ent. we are of opivion that such assumption is not Rep. 60, the plaintiff was injured by an erwell founded, and tbat no such burden rests plosion at one of the man-boles of a steamupon the City. The City has its public water beating company in one of the streets of the supply by running water in addition to these City of New York. He was defeated in his wells. The wells are furnished and kept for action for damages. Andrews, J., writing the public use by the City. It was undoubtedly opinion in this court, said: "The language o£ the duty of ihe City to keep the wel's and the cases expressing the measure of duty restpumps in good order, and to keep the wells ing upon municipal corporations in respect to properly cleaned out, so they would not be their streets, sewers, etc., bas not always been come contaminated by anytbing that might be carefully guarded; but the doctrine bas been thrown into tbem. But these wells were 10 frequenily reiterated in this court that tbere is be supplied by water percolating through the no absolute guaranty of undertaking on the

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part of a municipal corporation that its streets a nuisance, or turns a stream of mud or water or other constructions shall at all times, and upon the premises of private individuals. under all circumstances, be in a safe and proper such cases it is held responsible for the nuisance condition, and that its obligations and duty ex. which it creates or permits, and for its wrong. tend only to the exercise of reasonable care and ful acts. People v. Albany, 11 Wend, 539; vigilance. . . There must be willful miscon- Nevins v. Peoria, 41 Ill. 502; Shawncetown v. duct or culpable neglect to create liability." Mason, 82 Ill. 337.

Here there was no willful misconduct or There was no proof in this case that the City culpable neglect on the part of the City as to in any way polluted or poisoned the water of this well. Trees, bridges and other wooden this well, or permitted others to do so; and hence structures will necessarily decay, and become the cases of 'Rex v. Meuley, 6 Car. & P. 292; unsafe; and, wbere they may thus become Goldsmid v. Tunbridge Wells Imp. Comrs. Lo dangerous to human life, the duty devolves R. 1 Eq. 161; Charles v. Finchley Local Board, upon the municipality to make tests and ex- 48 L. Î. N. S. 569; Brown v. illius, 27 Conn. aminations, using reasonable diligence to ascer. 84; Ballard v. Tomlinson, L. R. 29 Ch. Div. 115, tain wheiher they are safe or not. V’osper v. -are not in point. New York, 49 N. Y. Super. Cl. [17 Jones & S.] Without commenting upon or referring to 296; Ilovoard Co. v. Lc97, 110 Ind. 479, 9 West. other authorities found in the interesting and Rep. 212; Jones V. New Haven, 34 Conn. 13; learned brief submitted on bebalf of the ap Norristown v. Moyer, 67 Pa. 355.

pellant, it is sufficient to say that we bave exBut this case is not analogous to those. Here amined and considered all of them, and that we there is no proof justifying the inference that are not able to bring ourselves to the conclusion the water of this well was constantly and in that there is any principle of law whicb, upon evitably exposed to impurities which would the facts appearing upon this case, imposes render it dangerous to buman life. On the any liability upon the defendant for the damcontrary, the evidence shows that up to about ages claimed. the 1st of August iis waters were wholesome, The judgment of the General Term should and free from dangerous impurities. This is therefore be affirmed, with custs. not like the cases where a city creates or permits

All concur.




William BINGHAM et al., Respts.

William BINGHAM et al., Respte.

of which has been procured by fraud, who hy mis take of both himself and the payee takes it with out the latter's ladorsement, holds it subject to all defenses which the bank would have against it in the bands of the payee, even although he pays full value for it without notice of the traud; and a subsequent indorsement made after the purchaser has received such notice will not render the check valid in his bands, at least in the absence of an express agreement to indorse made

at the time of the transfer. 2. A bank is not estopped to deny its liability on a check which it has certified even as against a bona fide holder for value who


(118 N. Y. 349.)

1. The purchaser of a check, made payable to the drawer's own order, the certification

NOTE.-Banking check.

not treated as overdue merely because it has not

been presented as early as it might have been. Bull A check is an appropriation or assignment of the v. First Nat. Bank, supra. specific money called for in the check. Stoller v. It may be revoked by the drawer before present. Coates, 4 West. Rep. 602, 88 Mo. 514.

ment (Kuhn v. Warren Sav. Bank (Pa.) 9 Cent. Rep. When deposited it becomes the property of the 620, 20 W. N. C. 230), unless the bank on which it is bank and is credited to the depositor. Brooks v. drawn has accepted or certified it, or otherwise Bigelow, 2 New Eng. Rep. 360, 142 Mass. 6.

committed itself to its payment. Kahn v. Walton, An instrument drawn upon a bank simply direct- 46 Ohio St. 195. ing payment, to a party named, of a specified sum So where the drawee bank has, before opportu. of money on deposit with the drawee, without nity of presentment, agreed with the holder, who designating a future day of payment, is a check. advances the value thereon, to pay it, such drawee Bull v. First Nat. Bank, 123 U. S. 105 (31 L. ed. 97). becomes in legal effect the acceptor of a bill of ex.

It is the essential characteristic of a check that it change, and as such primarily liable. Farmers & is payable on demand. Harrison v. Nicollet Nat. i T. Bank v. Allen Co. Bank (Tenn.) 12 S. W. Rep. 545. Bank Minn.) 5 L. R. A. 746.

The certificate of a bank that a check is good is Whether or not a check or draft on a bank be an equivalent to acceptance. Merchants Nat. Bank v. equitable assignment of the fund, it canpot bind State Nat. Bank, 77 U. 6. 10 Wall. 604 (19 L. ed. 1008). the fund in the hands of the bank until notice of A draft for money drawn on a bank, payable at the check or draft is given by presentation for pay- a day subsequent to its date and to the date of its ment or otherwise. Laclede Bank v. Schuler, 120 issue, is not a "check,” but is a "bill of exchange" U.S. 511 (30 L. ed. 704).

and entitled to grace.

Harrison v. Nicollet Nat. Until then other checks drawn afterward may be Bank, supra. paid, or other assignments of the fund or part of A check given for money lost at a game of cards it may secure priority by giving prior notice. Ibid. is by the laws of Ohio absolutely void, even in the

A cbeck is not due until it is demanded, and is l bands of an indorsee though a bona fide holder

See also 9 L. R. A. 850.

purchased upon the faith of the certification, I of the draft on Bingham & Co., accompanied

where it has never been indorsed by the payee. by the bonds. The cashier of the Goshen Na8. A bank whose certification of a tional Bank, relying upon such representations, check has been procured by fraud can-casbed the draft of $17,000, and placed the pronot maintain an action to recover possession ceeds to the credit of Brown, upon the books thereof against one who has purchased bona fide and for value from the payee, but who took it of the Bank. He gave Brown sight drafts on without the latter's indorsemento

New York_for $12,000, and ceriitied a check

drawn by Brown to bis own order, dated Nov. (January 14, 1800.)

ember 26, 1884, for $5,000. On the morning of

November 28, Brown called at the office of AI PPEAL by plaintiff from a judgment of William Bingham & Co., and stated that he

the General Term of the Supreme Court, wanied to get some currency. Mr. Bingham First Department, affirmiog a judgment en passed the check to the firm's cashier, directing tered upon the report of a referee dismissing him to give Brown currency for the amount. the complaint in an action to recover possession The cashier gave him a check drawn on the of a certain check. Affirmed.

Corn Exchange Bank for $5,000. Brown bad

the check cashied at ibe Corn Exchange Bank. AP PPEAL by defendants from a judgment of He also had the New York drafts cashed,

the Grperal Term of the Supreme Court, amounting to $12,000, which he had obtained First Depariment, affirming a judgment en from the Goshen National Bank. After protered upon the report of a referee in favor of curing the checks and drafts to be cashed, he plaintiff in an action to recover the amount fled to Canada, where be remained at the time due upon a certain certified check. Recersed. of the trial of these actions. Wben Bingham

& Co. took from Brown the check certitied by Statement by Parker, J.:

the Goshen National Bank, it was not inAppeals from judgments rendered by the dorsed. The referee found that, " at the time General Term of the Supreme Court of the First of the transfer of the said certified check by Department, affirming judgments entered upon Brown to the plaintiffs, it was intended both the reports of a referee.

by Brown and the plaintiffs that said certified On November 27, 1884, Benjamin D. Brown check should be indorsed by Brown, and it applied to the cashier of the Goshen National was supposed by both parties that be bad so Bank, at Goshen, N. Y., lo cash a sight draft indorsed it; and if the plaintiffs had known that for $17,000, drawn by him upon the firm of it was not indorsed, they would pot bave paid William Bingbam & Co. of New York, ac the consideration therefor." He further found companied by a quantity of the bonds of the "that Brown made no statement to the deWest Point Manufacturing Company, of the fendants, or either of them, at the time of the face value of $17.000. Brown represenied that transfer of the cbeck,

that such check he bad negotiated a sale of these bonds at was indorsed;" and prior to the commencetheir face value with William Bingham & Co.: ment of tbe action of replevin, the defendants that they had directed bim to draw upon them never requested Brown to indorse said check." at sight for $17.000, the draft to be accompa. W bile Bingham & Co. beld the check in ques. nied by the bonds, and that the draft would be tion upindorsed, a demand for its return to the paid upon presentation. Such representations Bank, accompanied by a full expianation of the were absolutely false. The bonds had no circumstances under which the certification market value. Brown was a bankrupt, and was obtained, was made upon Biogham & Co. had no funds in the Bank, except such as re- in bebalf of tbe Bank; and, upon their refusal sulted from the credit given him upon the faith | to return it, an action to recover its possession without notice. Lagonda Nat. Bank v. Portner, 21 If drawn on a specific fund, a bill of exchange Chio L. J. 383.

may operate as an equitable assignment of the The negotiability of a check is not affected by the fund. Kahnweiler v. Anderson, 78 N. C. 133. fact that it is payable "in current funds." Bull v. A check not accepted or certified by the cashier First Nat. Bank, supra.

does pot create a lien on money, wbich the holder Checks do not generally operate as equitable assigno Co v. Brown, 124 U. 8.385 (31 L. ed. 424).

can enforce against the bank. Florence Mining ments. Checks and bills of exchange, whether accepted until notice of the check or draft is given by pres

It cannot bind the fund in the hands of the bank or pot by the drawee, do not generuly operate as

entation for payment or otherwise. Laclede equitable assignmente, even when funds have been

Bank v. Schuler, 120 U. S. 511 (30 L. ed. 704). placed in the drawee's hands to meet their payment (Kuhn v. Warren Sav. Bank (Pa) 9 Cent. Rep; be paid, or other assignments of the fund or part

Until then, other checks drawn afterward may 622 : Lynch v. First Nat. Bank, 9 Cent. Rep. 565, 107 of it may secure priority by giving prior notice. N. Y. 179; Florence Min, Co. v. Brown, 124 U.S.

lbid. 885, 31 L. ed. 424 ; Harris v. Clark, 3 N. Y. 93; Marine & F. Ins. Bank v. Jauncey, 3 Sandf, 257;

Acceptance of forged paper. Luff v. Pope. 5 Hill, 413; Pope v. Luff, 7 Hill, 577; Where one accepts forgoi paper purporting to Phillips v. Stagg, 2 Edw. Ch. 108; Sands v. Matthews, be his own, and pays it to a bolder for value, he can27 Ala. 399; First Nat. Bank v. Dubuque 8. W. R. not recall the payment. Cooke v. United States, Co. 52 Iowa, 378; Jones v. Pacific Wood, L. & F. 91 U. S. 389 (23 L. ed. 237). Co. 13 Nev. 359; Kimball v. Donald, 20 Mo. 577; Where a bill of exchange is placed in circulation Hopkins v. Beebe, 28 Pa. 85; Greenfield's Estate, 24 by the drawer with the forged indorsement of the Pa. 232; Mandeville v. Welch, 18 U. S. 5 Wheat. 277, payee upon it, and the drawee ao pts and pays it 6 L. ed. 87: 3 Pom. Eq. Jur. 295), unless made so by to a bona fide holder, he cannot, after the discovery specific agreement. Cowperthwaite v. Sheffield, 3 of the forgery, recover of such holder. The insolvN. Y. 243; Lowery v. Steward, 25 N. Y. 239; Harwood ency of the drawer is immaterial. Hortsman v. Tucker, 18 MM. 544.

v. Henshaw, 52 U. 8. 11 How. 177 (13 L. ed. 663).

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was commenced by the Bank against Bingham Mechanics Bank v. New York & N. A. R. Co. & Co. That action is tirstly above entitled. 13 N. Y. 599; Clark v. Sisson, 22 N. Y. 312; Subsequently, and on December 16th, Bing: Bush v. Lathrop, 22 N. Y. 535; Moore v. ham & Co, obtained from Brown a power of Metropolitan Nat. Bank, 55 N. Y. 41; Fair attorney to ipdorse the check. Pursuant there-banks v. Sargent, 5 Cent. Rep. 919, 104 N. Y. to, the check was indorsed, and payment there- 108. after demanded of the Bank. This was The Bank has the right to maintain an acfused, and thereupon the action secondly tion of claim and delivery for the certified above entitled was commenced by Biugbam & check. The action of replevin, or claim and Co. to recover the amount of the check. delivery, lies in favor of an acceptor of a

draft, or the maker of a note for the draft or Mr. Henry Bacon, with Mr. B. R. tbe note itself. Champion, for appellant :

3 Wait, Pr. 712; 5 Wait, Act. and Def. 477; Binghanı & Co., having taken this certified Graves v. Duilley, 20 N. Y. 76; Black River check without baving or requiring an indorse-Ins. Co. v. New York 8. L. & Trust Co. 73 N. Y. ment of it by Brown, beld it subject to all the 262; Knehue v. Williams, 1 Duer, 597; Muno defenses and equities existing between the sell v. Flood, 13 Jones & S. 460. original parties.

So also trover lies. Harrop v. Fisher, 30 L. J. N. 8. (C. P.) 283 ; Murray v. Burling, 10 Johns. 172; Decker Calder v. Billington, 15 Me. 398; Osgood v. Artt, . Mathews, 12 N. Y. 313; Develin v. Coleman, 17 Fed. Rep. 575; Central Trust Co. v. First 50 N. Y. 531; Powell v. Powell, 71 N. Y. 71; Nat. Bank, 101 U. S. 68 (25 L. ed. 876); Comstock v. Hier, 73 N. Y. 269; Thayer v. Franklin Bank v. Raymond, 3 Wend. 69; Manley, 73 N. Y. 305; Decker v. Matheros, 5 Hedac8 v. Sealy, 9 Bart. 214; Raynor v. Hoag. Sandf. 439. land, 7 Jones & S. 11, affirmed, 64 N. Y. 630; W benever trover lies replevin in the detinet Muller V. Pondir, 55 N. Y. 325; Freund v. will lie. Importers & T. Nat. Bank, 76 N. Y. 352; Davis Evans v. Kymer, 1 Barn. & Ad. 528; Jones Seiing Mach. Co. v. Best, 7 Cent. Rep. 63, 105 v. Fort, 9 Barn. & C 764; Barrett v. Warren, N. Y. 59; Lynch v. First Nat. Bank, 9 Cent. 3 Hill, 348; Ross v. Cassidy, 27 How. Pr. 416; Rep. 564, 107 N. Y. 179.

Pierce v. Van Dyke, 6 Hill, 613. The indorsement by Brown, subsequently Messrs. Carpenter & Mosher, for rcprocured after full notice and actual knowl- spondents: edge of the fraud perpetrated by Brown in The respondents bave good title to the check, obtaining the certificate, does not make Bing- as against the appellant, and have a perfect ham & Co. bona fide holders for value with right of action upon it. out notic..

See 1 Daniel, Reg. Inst. $$ 769 a, 780, 781. Harrop v Fisher, supra; Whistler v. Forster, Through inadvertence and mistake, tbe for. 14 C.B. N E. 218; Sarage v. King, 17 Me. 301; malily of iodorsement was omitied, but equity Haskell v. Mitchell, 53 Me. 46%; Clark v. Whit- looks upon that as done which ought to have aker, 50 N. H. 474; Clark v. Callison, 7 Ill. been done, and supplies a remedy on that App. 263; Slury, Bills, $ 201; Story, Prom. theory. Noies, $ 120; Lancaster Nat. Bank v. Taylor, 1 Story, Eq. Jur. $ 64 g. 100 Macz. 18; Gilbert v. Sharp, 2 Lans. 412. The act which chancery decrecs to be dono

The Bulk is not estopped from asserting its is the same act that would bave existed bad rights to, and defense agains, this check by it been done wben it was agreed to be done. reason of its certificate.

Jordan v. Cooper, 3 Serg. & R, 564; Atrood v.

Where mouey is paid or a raised check by mig. has a vested right to the sum credited. Levy v. take, neither part, buing in fault, the general rule Bank of United States (Sup Ct. Pa.), 4 U. S. 4 Dall. is that it may be recovered back as paid without 234 (1 L. ed. 814). consideration. But if either party has been guilty A bank which has cashed a forged check present. of negligence ci carelessness by which the other ed by a clerk or agent having apparent authority has been injured, the negligent party must bear to present it and receive the proceeds, is entitled the loss. Espy v. First Nat. Bank, 85 U. S. 18 Wall. to recover from the principal or employer, although 604 (21 L. eu. 947).

the authority actually conferred did not extend to Where bills of exchange were drawn, accom. bank transactions. Levy v. Hastings First Nat. panied with a forged bill of lading, and were dig- Bunk (Neb.) 43 N. W. Rep. 354. counted by a bank, and subsequently accepted and A bank which pays a (orged check upon compar paid by the a«ceptors, they cannot recover back ison of the signature with the genuine signature from the bank the money paid by them, on the in its own books, and without requiring identifi. ground of the forgery of which the bank was cation of the person to whom it pays, does so at its ignorant at the time of this discount. Hoffman v. peril; and where the check is drawn upon another National City Bank, 79 U. S. 12 Wall. 181 20 L. ed. bank, which pave the amount to the bank cashing 386). See Corp Exchange Bank v. Farmers Nat. it, the latter will be liable to the bank upon which Bank, ante, p. 559.

it is drawn, upon discovery that it is forged. Where treasury notes were payable at the treas. First Nat. Bank v. State Bank, 22 Neb. 763. ury, their redemption did not retire them, and if If a check payable to a payee named, or order (it forged, until the order of the Secretary of the having been delivered to the payee), comes into the Treasury for their redemption was made, it cannot hands of one not entitled to it, who forges the be said that the government had accepted and payee's indorsement, and passes the check to adopted them as genuine. Cooke v. United States, another person, who receives the money on it, such 91 U. S. 389 23 L. ed. 237).

other person is not liable for such money to the If a bank accept a forged check, and make entry drawer, but may be liable to the payee. Hensel v. therefor to the depositur's credit, it is equivalent Chicago, St. P. M. &0. R. Co. 37 Minn. 87. to cash payment; and the depositor, if innocent,

Vincent, 17 Conn. 575; Hale v. Omaha Nat. I arises out of the rule of the law-merchant as to Bank, 49 N. Y. 626; Husted v. Ingraham, 75 N. negotiable instruments. It is founded on the Y. 251; Gardener v. Pullen, 2 Vern. 394; Board commercial policy of sustaining the credit of man v. Lake Shore & M. S. R. Co. 84 N. Y. 157; commercial paper. Being treated as currency Erans v. Wood, L. R. 5 Eq. 9; Paine v. Hutch. in commercial transactions, such instruinents inson, L. R. 3 Ch. App. 338; Hughes v. Nelson, are subject to the same rule as money. I 29 N. J. Eq. 647; 1 Story, Eq. Jur. $ 99 b; transferred by indorsement, for value, in good Smith v. Pickering, Peake, N. P. 69; Watkins faith and before maturity, they become avail. v. Maule, 2 Jac. & W. 237; Bacon v. Cohen, 12 able in the bands of the bolder, notwithstand. Smedes & M. 516.

ing the existence of equities and defenses which The indorsement made in pursuance of the would bave rendered them unavailable in the original intention of the parties related back bands of a prior bolder. This rule is only ap to the time when it should have been made, plicable to negotiable instruments wbich are and gave to Bingham & Co., even at law, negotiable according to the law-mercbant. the full rights of holders by indorsement at Wben, as in this case, such an instrument is that time.

transferred, but without an indorsement, it is Smith v. Pickering, supra; Wallace v. Hard-treated as a chose in action assigned to the pur. acre, 1 Camp. 45; Anonymous, 1 Camp. 492; chaser. The assignee acquires all the title of Baker v. Arnold, 3 Caines, 279; Watkins v. the assigpor, and may maintain an action there. Vaule, supra.

on in his own name; and, like oiber choses in The Bank is estopped by its certification to action, it is subject to all the equities and dedispute its liability on the check.

fenses existing in favor of the maker or accepMerchants Nat. Bank v. State Nat. Bank, 77 tor against the previous holder. Prior to tho U. S. 10 Wall. 604 (19 L. ed. 1009). See also indorsement of this check, therefore, Bingham U. S. Rev. Stat. § 5208; Bigelow, Estoppel, 3d & Co. were subject to the defense existing in ed. 309.

favor of the Bank as against Brown and the This estoppel is quite independent of the in- payee. Evidence of an intention on the part of dorsement of the check, and operates in favor libe transferee lo indorse does not aid the plainof anyone who acts upon the faith of it. tiff. It is the act of indorsement, not the in.

Freund v. Importers & T. Nat. Bank, 76 N. tention, which negotiates the instrument; and Y. 352.

it cannot be said that the intent constitutes the

act. Parker, J., delivered the opinion of the court: The effect of the indorsement made after no As against Brown, to whose order the check tice to Bingbam & Co. of the Bank's defense was payable, the Bank had a good defense. must now be considered. Did it relate back to But it could not defeat a recovery by a bona the time of the transfer, so as to constitute the fide holder, to whom the check bad been in- plaintiffs holders by indorsement as of that dorsed for value. By an oversight on the part time? While the referee fiu is that it was in. of both Brown and Bingbam & Co., the check tended both by Brown and the plaintiff that was accepted and cashed without the indorse the check should be indorsed, aud it was supment of the payee. Before ibe authority to in posed that be bad so indorsed il, be also finds dorse tbe name of the payee upon the check ibat Brown made do slalement to the effect was procured, and its subsequent indorsement that ibe check was indorsed; neither did the thereon, Bingham & Co. bad notice of the defendants request Brown'lo indorse it. There fraud, wbich constituted a defense for the was therefore no agreement to in Jorse. NothBank as against Brown. Can the recovery had ing whatever was said upon the subject. Be be sustained? It is too well settled by aŭtbor. fore Brown did agree to indurse, the plaintiff ity, both in England and in this country, to bad notice of the Bank's defense. Iodeed, it permit of questioning, that the purchaser of a bad commenced an action to recover possession draft or check who obtains title without an in. of the check. It would seem, therefore, that, dorsement by the payce bolis it subject to all baving taken tille hy assignment,-for such equities and defenses existing bei ween the was the legal effect of the iransaction, by reaoriginal parties, even though be bas paid full son of which the defense of the Bank against consideration, without notice of the existence Brown became effectual as a defense against a of such equities and defenses. Harrop v. Tisto recovery on the check in the bands of the er, 30 L. J. N. S. (C. P.) 283; Whistler v. Fors. plaintiffs as well. -Brown and Bingham & Co. ler, 14 C. B. N. S. 24%; Saraye v. k'ing. 17 could not by any subsequent agreement or act Me. 301; Clark v. (allison, 7 I. App. 263; 8o change the legal chiac'er of tbe transfer as Haskell v. Mitchell, 53 Me. 468; Clark v. Whit to affect the equilies and rights which bad acaker, 50 N. H. 474; Calder v. Billington, 15 crued to the Bank; that the subsequent act of Me. 398; Lancaster Nat. Bank v. Taylor, 100 indorsement could not relate back so as to de Mass. 18; Gibert v. Sharn, 2 Lans. 412; Heriges stroy the intervening rights and remedies of a V. Sealy, 9 Barb. 211-218; Franklin Bank v. third party. This position is supported by auRaymond, 3 Wend. 69; Ruynor v. Joaglund, 7thority. Harrop v. Fisher, Whiller v. Forster, Jones & S. 11; Muller v. Podir, 55 N. Y. 325; Sarave v. King, Ilaskell v. Mitchell, Clark v. Freund v. Importers & T. Nat. Bank, 76 N. Y. Whit iker, Clark v. Callison, Lancaster Nat. 352; Central Trust Co. v. First Nat. Bank, 101 Bank v. Taylor, Gilbert v. Sharp, cited supra. U. 8. 68 (25 L. ed. 876); Osgood v. Arti, 17 Fed. Watkins v. Maule, 2 Jac. & W. 243, and Rep. 575.

Iluyhus v. Nilson, 29 N. J. Eq. 5:17, ale cited The reasoning on which this doctrine is by the plaintiff in opposition io the view wo founded may be brie stated as follows: have expressi d. The general rule is that no one can transfer a To Watkins v. Maule the holder of a noto beller title than he possesses. An exception lobtained without indorsement collected it from

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