[A forged check on a bank, which is received by the bank from a bona fide holder, and either paid or passed to his credit, is equivalent to the payment of so much money to the bank, and the bank cannot in the one case recover back the amount of the check, or in the other retain it. (a)]

If the holder of a bill or note employ a particular agent to get it discounted, but refuse to endorse it, and the agent guarantee its payment, the principal will (66) not be bound by such guarantee; and not being bound, a subsequent

(65) Bishop v. Rowe, 3 Maule, 362. Plaintiff sued the drawer and acceptor of a bill, and proved the necessary facts: defendant gave in evidence that after the bill was due, and part paid, one Tucker, who had been connected with the bill, but had not endorsed it, drew for the balance on Lewis at two months, and gave plaintiff the draught: plaintiff could not prove that the draught was presented for payment, but he nevertheless had a verdict: the court however thought that proof essential, and granted a new trial. On the second trial plaintiff gave this proof, but he could not prove that he had given notice to Tucker of the dishonor: the point was saved, whether he was bound to give this proof? and on rule nisi for nonsuit, and cause shewn, the court held it sufficient for him to prove presentment and non-payment, for that shewed there had been no payment in fact; and if the defendant insisted there had been such neglect as amounted to payment in law, he should have shewn it. The rule was discharged.

[(a) Levy sent a check to the U. S. Bank purporting to be drawn by Wharton upon that bank, between eleven and one o'clock. The bank received the check, credited it to Levy as cash, and charged it to Wharton. The check was a forgery, but Levy was a bona fide holder. Between three and four the same afternoon the bank discovered the forgery, and sent notice to Levy. Levy, on first being informed of the forgery, said, "If the check is a forgery, it is no deposit." The bank refusing to pay Levy the amount of the check, he brought a suit against it to recover that sum. Shippen C. J. charged the jury," When the check was credited to the plaintiff as cash, it was the same thing as if it had been paid. In the latter case the bank would have appeared as plaintiffs; and every mistake which could have been corrected in an action by them, may be corrected in this action, and none other. Now the law seems to be well settled that where a bill of exchange to which the drawer's name is forged has been paid by the drawee, it is too late for him to question the handwriting. The effect of the acceptance of a forged bill is not quite so clear. Some of the authorities decide that the acceptor is bound because his acceptance gives a credit to the bill. But the modern cases notice another reason for this liability which we think has much good sense in it, namely, that the acceptor is presumed to know the drawer's handwriting, and by his acceptance to take this knowledge upon himself." As to what Levy said, "it was the expression of an opinion of what he should be obliged to do, rather than what he was willing to allow, and being under a mistake of his right he is not bound by it." Levy v. Bank of the United States, 1 Bin, 27; S. C. 4 Dall. 234.]

promise by him to pay the amount of the bill or note, will be (66) nudum pactum.

But if no restraint be imposed on such agent, the principal (66) may be bound by his guarantee; at least such guarantee will be a (66) sufficient consideration to support a subsequent promise by the principal to pay the bill or

note.

[A mere endorser of a note, is not liable as guarantor. (a) (b)

A promise made to endorse the bill or note of another person, on request, on the payment of a certain per centage by the holder, will not be binding, unless the request to endorse be made within a reasonable time. (c)]

(66) Fenn v. Harrison, 3 Term Rep. 757. and 4 Term Rep. 177. The defendants employed F. Huet to get a bill discounted, but said that they would not endorse it; F. H. employed his brother James H. and said he would indemnify him if he would endorse it; James endorsed it, and the plaintiffs discounted it; the bill being dishonored the plaintiffs applied to the defendants who promised to take it up, but did not; and this action for money had and received and money paid, was brought against them. Lord Kenyon told the jury, that if they thought that James H. had made himself answerable as agent for the defendants, that was a sufficient consideration for their promise. A verdict was found for the plaintiffs; and on a rule nisi for a new trial, and cause shewn, Lord Kenyon inclined to think the verdict right; because though the agent had exceeded his authority, he thought the principal bound by what he did: the other judges differed, because F. H. was a particular agent only: and the rule was made absolute. On the next trial it did not appear that the defendants had told F. H. that they would not endorse the bill. A verdict was found for the plaintiff, and on a rule nisi for a new trial, and cause shewn, the whole court thought the verdict right, because as F. H. was not restrained as to the mode of getting the bill discounted, the defendants were bound by his act. But Buller and Grose, Js. said, that if the facts had been the same, they should have continued of their former opinion. Rule discharged.

[(a) A count upon a guaranty that a note endorsed by the defendant to the plaintiff was given for a valid and legal consideration, and a promise to indemnify, is not supported by mere evidence of an endorsement, as "this is not the legal effect of an endorsement." Copp v. M'Dugall, 9 Mass. R. 1. See also Hopkins v. Liswell, 12 Mass. R. 52 ; and Josselyn v. Ames, ante, p. 65.]

[(b) It seems that withdrawing a note from a bank where it has been lodged for collection, is of itself a sufficient consideration for the promise of a third person not a party, to the holder, to pay the note, although a regular demand is afterwards made on the maker, and sufficient notice given to an endorser. Stewart v. Eden, 2 Cain. R. 150.]

[(c) Ives and Co. signed an agreement to endorse any bill or bills which Stubbs might give Payne and Co. in part payment of an order

In case of a transfer by delivery, no action can be brought against the deliverer, except on account of the consideration.

[In an action against the maker of a note by an endorser who has taken it up, the plaintiff cannot recover without producing the note at the trial. (a)]

If a bill or note be destroyed by fire or other accident, an action may perhaps be brought thereon as if it were in esse. (67)

[And it has been held, where all the bills of a set miscarried, that an action lay for the original consideration given for them. (b)]

But if a bill or note be lost, there can be no remedy upon it at law, unless it was in such a state when lost that no person but the plaintiff could have acquired a right to sue thereon. (68)

for lace then executing for him, Payne and Co. to allow five per cent. on the amount of the bills for the guaranty. Stubbs shipped the goods to India, and in part payment accepted a bill drawn on him by Payne and Co. at eighteen months, the usual period of credit in the India trade. Payne and Co. kept the bill seventeen months and ten days, and then, finding Stubbs had become insoivent, applied for the first time to Ives and Co. for their endorsement, tendering the commission. Ives and Co. refused to accept the commission, or to endorse the bill. It was held that no action lay for Payne and Co. against Ives and Co. on this agreement, because the request to endorse was not made within a reasonable time. Payne v. Ives, 3 Dow. and Ryl. 664.] [(a) Morgan v. Reintzel, 7 Cranch, 275.]

(67) See Pierson v. Hutchinson, infra. Mayor v. Johnson, post. p. 264. [An action on a lost bill was maintained in South Carolina, the letter bag of the vessel in which it was sent having been thrown overboard. Anderson v. Robson, 2 Bay, 495.]

[(b) All the bills of a set miscarried on their passage to Europe, and of course before acceptance. The manner of the loss is not stated in the case. The owners of the bill applied to the drawers for another bill of the same tenor and date, offering to indemnify against the former bills, the drawers refused to give it. It was held that an action for money had and received lay in favor of the purchasers of the bill against the drawers. Murray v. Carrett, 3 Call, 373.]

(68) Pierson v. Hutchinson, 2 Campb. N. P. C. 211. In an action by an endorsee against the acceptor of a bill, it appeared that the bill had been lost after endorsement, and the plaintiff had offered the defendant an indemnity. But Lord Ellenborough nonsuited the plaintiff, saying, that if the bill had been proved to have been destroyed, he should have had no difficulty in receiving evidence of its contents, and in directing the jury to find for the plaintiff; but that having been lost, after endorsement by the payee, it might still be in the hands of a bonâ fide endorsee for value, who might sue the defendant upon it. And as to

As if it were specially endorsed to plaintiff, and had no endorsement from him upon it. (69)

Where it is so specially endorsed, [or is not negotiable,] an action may perhaps be brought thereon. (69)

Where the person paying is entitled to require an indemnity, the only remedy on a lost bill is in equity: a court of equity can inquire into the sufficiency of an indemnity; a court of law cannot. (a)

The acceptor is not liable to be sued upon a lost bill, if the loss was before the bill was due, though he promises to pay it after knowing of the loss, unless there is some new consideration for such promise. (70)

the indemnity, he said a court of law could not inquire into its sufficiency.-S. P. ruled by Lord Eldon. See ex parte Greenway, 6 Ves. 812.

[But in an action at law on a lost bill in Pennsylvania, the court appear to have directed the plaintiffs to indemnify the defendant. Meeker v. Jackson, 3 Yeates, 442.

In an action against the maker of a note, which was lost after it became due, the plaintiff was nonsuited, on the ground that it was not sufficient to prove its loss without proving its destruction. Curia per Woodworth J. "Although the note was due when it was lost, yet in an action by a bonâ fide holder against the maker, he would be exposed to the hazard of showing that fact by evidence. It would therefore be a hard doctrine which should place the maker in this situation, without requiring an indemnity. In such cases, it is better to leave the party to his remedy in equity, where a suitable indemnity will be provided against any subsequent recovery." Judgment affirmed. Rowley v. Ball, 3 Cowen, 303.]

(69) Long and another v. Bailie, 2 Campb. N. P. C. 214. This was an action against the acceptor of a bill of exchange, payable to the order of the drawer, and by him specially endorsed to the plaintiffs. It was proved that a person took the bill to have it compared with the affidavit to hold to bail, that a copy was then taken, and that the bill was afterwards stolen from such person. The correctness of this copy and the special endorsement were proved, and upon this the plaintiff's had a verdict.

[Where an action was brought on a promissory note as a lost note, and it did not appear that the note was negotiable, or if negotiable, that it had ever been endorsed, and the existence and contents of the note were fully proved, and the circumstances showed that it had been lost or destroyed, it was held that the action was maintainable. Pintard v. Tackington, 10 Johns. R. 104.

In an action against the endorser of a note, where the note was lost, but had been produced a few days before in the trial of an action against the maker, it was held that secondary evidence of the contents of the note might be admitted. The case does not state whether the endorsement was full or in blank. Renner v. Bank of Columbia, 9 Wheat. 581.]

[(a) See Rowley v. Ball, supra.]

The holder's only remedy is to enforce the giving a new bill under the statute. (70)

If a bill is lost after action brought thereon, and defendant suffer judgment by default, the court will, on a copy verified by affidavit, refer it to the master to see what is due thereon; (71)

Especially if the bill has been shewn to defendant, and he has admitted his signature, and promised payment. (71) But if the bill is lost after action brought, and defendant resists the action, and puts the plaintiff to prove the bill, the loss will be no excuse for the non-production of the bill, and plaintiff will not be able to recover. (72)

And it will make no difference though the bill is of so old a date that the statute of limitations has attached upon it. (72) (a)

(70) Davis v. Dodd, 4 Taunt. 602. Action on bill payable to Allen or order, accepted by defendant, and endorsed generally to plaintiff: plaintiff lost it before it was due, but defendant after knowing of the loss, promised repeatedly to pay it. Lord Ellenborough however held the action not maintainable, and nonsuit; and on motion for a new trial, the court agreed with him: they thought defendant under no moral obligation to pay plaintiff, who by his negligence had exposed defendant to the danger of being compelled to pay another holder, and that his subsequent promise, their being no new consideration, was nudum pactum: they said, enforcing the giving a new bill under the statute, seemed to be plaintiff's only course.

(71) Brown v. Messiter, 3 Maule. 281. The acceptor of a bill desired to see the bill, and then he admitted the acceptance, and promised payment; he suffered judgment by default; and the bill having been stolen from plaintiff's attorney's pocket, rule nisi to refer on production of copy verified by plaintiff's attorney, and on cause being shewn, rule absolute.

(72) Poole v. Smith, Holt. 144. In action by endorsee against acceptor, it appeared that a few days before the trial the bill was picked out of the pocket of the plaintiff's attorney's clerk; and that defendant had admitted the acceptance, but said it had been satisfied between him and the drawer: the bill had been due above six years. Gibbs C. J. thought the non-production of the bill called upon him to nonsuit plaintiff, and that the statute of limitations made no difference: he said the rule was salutary, and ought not to be relaxed.

[(a) In an action brought in 1815 upon a note, which had been lost in 1797, it was objected that the note might still be in existence, and be again demanded of the defendants by a bona fide holder. But the court thought that after so great a lapse of time, it was incumbent on the defendants to show either that the note existed, or that it had been demanded of them; and that it must be presumed that no demand would now be made. Peabody v. Denton, 2 Gallis. 351.]

there