a plaintiff to know and prove, with ease and certainty, the amount to be recovered. Of course, under such circumstances, individual opinion will differ somewhat as to which rule should have been chosen."

840 STAGG v. ELLIOTT, 12 Common Bench, N. S. 373. 1862. Bill accepted "per pro. William Elliott, George Elliott." George was the son of the defendant, William, and manager of his business. BYLES, J. - The words " per procuration are an express statement that the party accepting the bill has only a special and limited authority, and therefore a person who takes a bill so accepted is bound at his peril to enquire into the extent and nature of the agent's authority. It is not enough to show that other bills similarly accepted or endorsed have been paid, although such evidence, if the acceptance were general by an agent in the name of a principal, would be evidence of a general authority to accept in the name of the principal.

The result of the decisions seems to be this, that the way in which this bill was accepted is the legitimate way of showing the fact that the acceptor has only a special and limited authority. Further, it is to be observed, that this rule depends upon the law merchant, which extends over Europe and America; and this is the way in which it is understood all over the world.

§ 40 THE FLOYD ACCEPTANCES, 7 Wallace (U. S.), 666. 1868. MR. JUSTICE MILLER. An individual may, instead of signing, with his own hand, the notes and bills which he issues or accepts, appoint an agent to do these things for him. And this appointment may be a general power to draw or accept in all cases as fully as the principal could; or it may be a limited authority to draw or accept under given circumstances, defined in the instrument which confers the power. But, in each case, the person dealing with the agent, knowing that he acts only by virtue of a delegated power, must, at his peril, see that the paper on which he relies comes within the power under which the agent acts. And this applies to every person who takes the paper afterwards; for it is to be kept in mind that the protection which commercial usage throws around negotiable paper, cannot be used to establish the authority by which it was originally issued. These principles are well established in regard to the transaction of individuals. They are equally applicable to those of the government. Whenever negotiable paper is found in the market purporting to bind

See also article in 10 Law Notes, 104, entitled "Liability of an agent under the Negotiable Instruments Law," and criticism of this article in 20 Harv. Law Rev. 159. — C.

the government, it must necessarily be by the signature of an officer of the government, and the purchaser of such paper, whether the first holder or another, must, at his peril, see that the officer had authority to bind the government.

$ 40 NIXON V. PALMER, 8 New York, 398.1853. Bill accepted "Jeremiah G. Palmer, by James L. Palmer." Defense, want of authority. MASON, J.-"The bill being on its face accepted by James L. Palmer for the defendant, was notice that he professed to act under an authority, and imposed upon the plaintiffs the duty of ascertaining that he acted within it."

XII. Indorsement by infant or corporation.

841

FRAZIER v. MASSEY.

14 INDIANA, 382. — 1860.

WORDEN, J. Action by Massey against the appellants upon a promissory note made by the latter to William T. Hess, and by Hess indorsed to the plaintiff.

Answer that said William T. Hess, the payee of the note, was, at the time he indorsed it to the plaintiff, a minor under the age of twenty-one years; wherefore, etc.

To this answer a demurrer was sustained, and the plaintiff had judgment.

The ruling on the demurrer raises the only question involved in the case.

We think it clear that the demurrer was correctly sustained to the answer. The disability of an infant to make a valid, binding contract, is a personal privilege intended for the benefit of the infant himself, and none but he, or his representatives, can take advantage of such disability. (1 Pars. Cont. 275.) Besides this, the defendant. by making the note to Hess, asserted to the world his competency to negotiate and assign the paper, and they cannot be permitted to gair. say the assertion so made. (Edw. on Bills, p. 250; Story on Prom. Notes, 80, 5th ed.)

PER CURIAM. The judgment is affirmed with 6 per cent. damages. and costs.

4 See Neg. Inst. L., § 110. A second indorser cannot deny the competency of the first indorser. Prescott Bank v. Caverly, 7 Gray (Mass.) 271. — H.

§ 41

WILLARD v. CROOK.

21 APPEAL CASES (DIST. OF COL.) 237.-1903.

APPEAL by plaintiff from an order of the Supreme Court overruling his motion for judgment against the defendants for want of sufficient affidavits of defense, in an action on a promissory note against the maker and several indorsers.

The affidavit of defense of the last indorser was that the preceding indorser, a corporation, had indorsed the note solely for accommoda

tion.

Mr. Justice SHEPARD delivered the opinion of the court:

The defense of Walter P. Wilkins, the last indorser of the note, is equally without merit. Whether the preceding indorser, Wilkins & Company, incorporated, had the power to make an accommodation indorsement merely is a question of no importance so far as his liability under the subsequent indorsement is concerned. If it were conceded that the corporation's indorsement of the paper was beyond. its powers, and it incurred no liability thereby, its effect was, nevertheless, to pass the property therein. Code, D. C., § 1326. And the subsequent indorsement by Wilkins to Willard was a warranty of the genuineness of the paper, of his own title thereto, and of the capacity of all the preceding parties to contract. Idem, §§ 1369, 1370. *

*

For the reasons given, the order will be reversed with costs, and the cause remanded for further proceedings in conformity with this opinion. It is so ordered."

XIII. Forged signatures.

§ 42

LANCASTER v. BALTZELL.

7 GILL & JOHNSON (MD.) 468. - - 1836.

ACTION by indorsee against maker. Judgment for plaintiff. Defendant appeals. The facts appear in the opinion.

7 In Brown v. Donnell, 49 Me. 421, the court held that in an action by the indorsee of a note against the maker, the plaintiff is only required to prove an indorsement sufficient to pass the property in the note. "The authority to be proved is not one to bind the corporation by a contract of indorsement, but simply an authority to transfer the property of the company. If the indorsement is sufficient to pass the property, so as to protect the maker in paying the note, that is all that is necessary to render him liable to the indorsee." P. 425.

See also Oppenheim v. Simon Reigel Cigar Co., 90 N. Y. Supp. 355, post, -; Winer v. Bank of Blytheville, 89 Ark. 435, and cases, post, under Neg. Inst. Law, §§ 110–112, 115, 116. — C.

p.

BUCHANAN, CH. J., delivered the opinion of the court. A bill or note payable to order can only be transferred by indorsement; and as an action against the acceptor or drawer can only be sustained by one who has legal title, which cannot be derived through the medium of forgery, it is incumbent on the plaintiff in such an action to show his interest in the bill or note, which must be done by proving that it was indorsed by the person to whom, or to whose order, it is made payable.

This is an action by the second indorsee against the maker of a promissory note, payable to the payee or order, which was resisted at the trial on the ground, that the first indorsement, purporting to be by the payee was a forgery, of which proof was offered by the defendant. On the part of the plaintiffs, it was proved, that the defendant on being called on by their counsel, after the indorsement to them, to pay the note, examined it, and said it was right, and he would settle it with them. Upon which the court instructed the jury that if they believed the defendant, when the note was presented to him by the counsel of the plaintiffs, had examined the indorsements and said it was right, the plaintiffs were entitled to recover, although they might believe the indorsement of the payee's name had been forged, and notwithstanding that acknowledgment had been made, after the transfer of the note by these indorsements to them; on an exception to which instruction the case is brought up.

Apart from the alleged conversation between the defendant and the counsel of the plaintiffs, it is very clear that the plaintiffs are not entitled to recover, if the first indorsement in the name of the payee of the note was forged; as the title was not and could not thereby be transferred, but continued in the payee, who on obtaining possession of the note, might sue upon it, and recover against the maker, notwithstanding he should have paid it to him, into whose hands it came, through the medium of forgery; for besides that in such case the payee has not parted with his title, the payee of a note whose name is forged knows nothing of it, and the maker before he pays it to the holder as indorsee should look carefully to the indorsements. And if one is to suffer, the loss should fall on him who is most in fault, or most negligent.

The only question then, in this case is, whether, if after the indorsements had been made, the defendant, on the note being presented to him by the counsel of the plaintiffs, examined the indorsements and said it was right, that makes any difference. And we think it does not. By saying so, he gave no credit to the note; and did not thereby induce the plaintiffs to take it. That had been done before, and not on the faith of what he said. The plaintiffs might before they took the note have inquired whether the first indorsement was by the payee or not, and not having done so, they must abide by the consequence and cannot throw the loss upon the defendant, who had done nothing to

mislead them or induce them to take the note; and who if made to pay the amount in this action, may be made to pay it over again by the payee, whose right remains unimpaired.

It is not like the case of a drawee of a bill, who if on being asked if the acceptance is in his handwriting, says that it is and that it will be duly paid, cannot afterwards set up as a defense the forgery of his name; because by saying so he has accredited the bill and induced another to take it, which being his own fault the loss ought to fall on him, and not on another, who has been induced to take the bill on the faith of his assurance."

§ 42

Judgment reversed."

WELLINGTON v. JACKSON, 121 Massachusetts, 157.-(1876). GRAY, C. J.-"Although the signature of Edward H. Jackson was forged, yet if, knowing all the circumstances as to that signature, and intending to be bound by it, he acknowledged the signature and thus assumed the note as his own, it would bind him, just as if it had been originally signed by his authority, even if it did not amount to an estoppel in pais. (Greenfield Bank v. Crafts, 4 Allen, 447; Bartlett v. Tucker, 104 Mass. 336, 341.) "1

Nor like the case of a drawee who accepts or pays a bill upon which the drawer's name is forged. See National Park Bk. v. Ninth Nat. Bk., 46 N. Y. 77.-H. [See First Nat. Bank v. Bank of Wyndmere, 15 N. D. 299, post, and State Bank of Chicago v. First Nat. Bank of Omaha, 127 N. W. (Neb.) 244, post.-C.]

Money paid to a holder deriving title through a forged indorsement may be recovered back. Chambers v. Union Bank, 78 Pa. St. 205; Espy v. Cincinnati Bank, 18 Wall. (U. S.) 604; Holt v. Ross, 54 N. Y. 472; Green v. Purcell N. B. (Ind. Ter.), 37 S. W. Rep. 50. Contra: London, etc., Bank v. Bank of Liverpool (1896), 1 Q. B. D. 7. — H.

[In First Nat. Bk. v. Shaw, 149 Mich. 362, it was held that makers who actually signed a joint and several note purporting at the time of its delivery to have been signed by twenty persons and bearing nothing on its face to cast doubt upon any of the signatures, cannot escape liability to a bona fide holder upon the ground that the names of some of the purported makers were forged before the note was executed and delivered. See this case reported with notes in 13 L. N. S. 426, and 12 A. & E. Ann. Cas. 437. C.]

1 Accord: Howard v. Duncan, 3 Lansing N. Y.) 174; Hefner v. Vandolah, 62 Ill. 483. But non-repudiation is not conclusive evidence of ratification. Traders' N. B. v. Rogers, 167 Mass. 315. Contra: Brook v. Hook, L. R. 6 Ex. 89; Workman v. Wright, 33 Oh. St. 405; Henry v. Heeb, 114 Ind. 275; Henry Christian, etc., Association v. Walton, 181 Pa. St. 201; Owsley v. Philips, 78 Ky. 517.

While there is a sharp conflict of authority as to the possibility of ratifying a forgery, all of the cases agree that one may by his admissions or conduct estop himself from denying the genuineness of his signature as against one who has changed his legal position relying on such admissions, representations, or conduct. Huffcut on Agency, § 43; cases supra; Lancaster v, Baltzell, ante, p. 221.-H.