text:
    *Ellis & Morton v. The Ohio Life Insurance and Trust Company.
    The courts of this state, in a proper case, have-the power to take the evidence given by the plaintiff from the jury, and order a peremptory nonsuit.
    Such a motion involves an admission of all the facts which the-evidence in any degree tends to prove, and presents only a question of law, whether each fact, indispensable to the right of action, and put in issue by the pleadings, has been supported by some evidence.
    If it has, the motion must be denied; as no finding of facts by the court, or weighing of the evidence, is permitted.
    Money paid upon a mistake of facts, and without consideration, may, as a general rule, be recovered back.

      A well-settled exception to this rule occurs when the payment is made by the drawee of a forged bill or check, to a holder, for value and without fault, and the money can not be returned without prejudice to him.
    'The exception rests upon the supposed knowledge of the drawee of the drawer’s signature, and the negligence imputed to him for paying the paper, without sufficient inquiry as to its genuineness.
    '.But this exception does not apply when, either by express agreement or a settled course of business between the parties, or by a general custom in the place and applicable to the business in which both parties are engaged, the holder takes upon himself the duty of exercising some material precaution to prevent the fraud, and, by his negligent failure to perform it, has contributed to induce the payee to act upon the paper as genuine, and to advance the money upon it.
    'Nor does it apply in any case where the parties are in a mutual fault, or where the money is paid upon a mistake of facts, in respect to which both were bound to inquire.
    ,In a ease of money paid upon a forgery, not falling within the exception, and governed by the general rule, it is sufficient to give notice when the forgery is discovered.
    Error to tbe Superior Court of Cincinnati.
    The original action was one of assumpsit, brought in the court of common pleas of Hamilton county, Pecember 29,1852, but *re■moved to the Superior Court of Cincinnati, by consent of parties, May 11, 1854. The declaration is for money had and received, money paid, money lent, and money found to be due on an account ■.stated. The plea is the general issue.
    On the 14th of June, 1854, at a special term of the Superior Court, held by the Hon. Bellamy Storer, the cause came on to be tried by jury. When the plaintiffs had produced all their evidence and rested, the defendants moved for a nonsuit, which, after argument, ■¡was granted. Whereupon, a bill of exceptions, presenting all the evidence, was signed by the judge and made part of the record. The plaintiffs filed their petition in error to the Superior Court, at •the general term of the Superior Court, October, 1854; assigning for error, that the court, at special term, erred in rendering said judgment of nonsuit. The Superior Court, at general term, affirmed the judgment at special term. To reverse this judgment of affirmance, the present petition in error, is filed on leave.
    The facts sufficiently appear in the judgment of the court.

      Fox, French & Pendleton, and Walker & Kebler, for plaintiff.

      Timothy Walker made the following points, and cited authorities below:
    I. That a court in Ohio can not, by ordering a peremptory non-suit, refuse the plaintiff the chance of a verdict, if he insists upon it, when he has once offered evidence bearing upon the case.* 3 Black. Com. 316, 376; 3 Bouvier’s Inst. 530; Elmore’s Lessee v. Grimes, 1 Peters’ S. C. 469; De Wolf v. Rabaud, 1 Peters, 476; Crane v. Lessee of Morris, 6 Ib. 598; Foote v. Silsby, 1 Blatchford, 445; Silsby v. Foote, 14 Howard, 218; Irving v. Taggart, 1 Serg. & Rawle, 360; Girard v. Gettig, 2 Binney, 234; Mitchell v. New England Ins. Co., 6 Pick. 117; French v. Smith, 4 Vt. 363 ; Smith v. Crane, 12 Ib. 487; Hunt v. Stewart, 7 Alabama, 525; Martin v. Webb, 5 Pike, 72; St. Louis Ins. Co. v. Soulard, 8 Missouri, 665; Wells v. Gaty, 8 Ib. 681; Davis v. Hoxey, 1 Scammon, 406; Booe v. Davis, 5 Blackf. 115 ; Coxe v. Field, 1 Green, 215 ; Bartow v. Brands, 3 Ib. 248; Foster v. Dixfield, 6 Shepley, 380; Sandford v. Emery, 2 Greenl. 5 ; Pratt v. Hull, 13 Johns. 334; Thompson v. Dickinson, 12 Barbour, 108; Scruggs v. Brackin, 4 Yerger, 528; Thweat v. Finch, 1 Wash. Va. 114; Brown v. Frost, 2 Bay, 126; Sliphen v. Fisher, 11 Ohio, 299; Powell v. Janes, 12 Ib. 35.
    II. That the evidence given established the following propositions :
    1. TÉat the purchase of these checks, in the manner before stated, was not only a departure from the general usage of banks, but from the usage of that particular bank, and from all rules of pru•dence.
    2. That independently of any usage, there was gross negligence, amounting to recklessness, in making so large a negotiation without any inquiry as to the genuineness of the cheeks, or the right of the stranger to them.
    3. That if either of these checks had been' presented by this ■stranger, at the counter of the bank upon which it was drawn, it •would not have been paid.
    4. That the usage of bankers, to receive from their depositors checks taken by them on other banks, is merely an accommodation to them, as customers, and in no way analogous to the purchasing of such ■checks from a stranger.
    Therefore the plaintiff ought to recover upon either one of these .•grounds:

      1. The loss was occasioned wholly by the negligence of the defendants.
    2. There was a total failure of consideration.
    3. The money was paid under a mistake.
    He referred to and commented upon the following cases and authorities*: Gill v. Cubitt, 3 Barn. & Cress., 466; 3 Kent’s Com. 80, 82 ; Crook v. Jadis, 27 Eng. Com. Law 234; 5 Barn. & Ad. 911; Backhouse v. Harrison, 27 Eng. Com. Law, 276; 5 Barn. & Ad. 1098; Goodman v. Harvey, 31 Eng. Com. Law, 212; 4 Adol. & Ellis, 870; Etter v. Rich, 37 Eng. Com. Law, 232; 10 Adol. & Ellis, 784; Levy v. Bank United States, 4 Dall. 234 ; 1 Binn. 27 ; Gloucester Bank v. Salem Bank, 17 Mass. 33; Bank of U. S. v. Bank of Georgia, 10 Wheat. 333; Bank of St. Albans v. Farmers’ and Mechanics’ Bank, 10 Vt. 141; Canal Bank v. Bank of Albany, 1 Hill, 287; Bank of Commerce v. Union Bank, 3 Comstock, 230 ; Goddard v. Merchants’ Bank, 4 Ib. 147; Hall v. Wilson, 16 Barbour, 584; Price v. Neale, 3 Burr. 1354; Young v. Adams, 6 Mass. 182; Markle v. Hatfield, 2 Johns. 455.
    Fox, French & Fendelton claimed:
    I. That the court had no power to arrest the evidence from the jury and direct a nonsuit.
    II. If the court had such power, when there was a total want of testimony to support the plaintiff’s claim, it was improper to order a nonsuit in this case, because there was sufficient evidence in the cause to sustain the action.
    They claimed the evidence showed that, by the course of dealings between bankers in Cincinnati, checks presented by one bank, drawn by individuals on other banks, were always received from the bankers, presenting them in bundles, with a ticket-mark on the back stating the amount of checks, with an understanding that they need not be examined at the time of acceptance, but might be examined after bank hours; that this usage amo.unted, in fact, to an assurance or warranty .that all the checks embraced in the bundle were genuine, and, therefore, the party paying money on the faith of this representation had a right to recover it back if the checks were not genuine. 4 Comstock,-147.
    III. That although they admitted the general rule to be well settled,. that the drawee of a cheek or draft was bound, by the *law merchant, to know the handwriting of his correspondents, when he¡ had an opportunity to examine the handwriting, yet the rule did not apply to cases where a draft was paid without an opportunity of seeing the signature; nor did it apply to the present case, where, by the usual mode of dealing between bankers, the signatures to the checks are not expected to be examined at the time they are paid, but, on account of facilitating business, the payment is made with an understanding that a subsequent examination may be made. Counsel cited the following authority to sustain his view: 4 Comstock, 147; 10 Eng. Com. L. 143; 44 Ib. 641.
    IY. That plaintiffs claimed that the right of the plaintiffs to recover in this case, depended upon the question of negligence. As a general rule, where money is paid by mistake, it may be recovered back. But if the party paying back were guilty of negligence in paying the money, and that negligence had been the cause of loss-to the party receiving it, the money could not be recovered back. If, on the contrary, the party receiving the money had, in the purchase of the check (as in this instance), acted negligently in purchasing from a stranger, and this negligence had tended to the injury of the plaintiff, the defendants must refund the amount received; that, in facf, most of the cases of forged instruments depended upon the question of negligence. They claimed that the defendant was guilty of negligence, in purchasing from a stranger without inquiry into his character, or without crossing the street and presenting the check to Ellis & Morton, to know whether it was good; that, if they had taken this precaution, the forgery would have been discovered and loss prevented. The negligence of the defendants, therefore, caused the loss. 10 Wheaton, 333; 1 Hill, 290 ; 17 Mass. 42.
    Y. That notice of the fact of the check being forged was unnecessary in this case in order to enable the plaintiffs to recover back the money paid, because there was no party on the cheek to whom the defendants could have resorted for payment, even if ^notice had been given on the same day; and in all such cases the plaintiff is not required to give notice. But all the law requires is a notice as soon as the forgery is discovered, which was given in this case: citing 4 Comstock, 151; 3 Mass. 74; 10 Eng. Com. L. 140; 9 Barn. & Cress. 902; 6 Taunt. 80; 17 Eng. Com. L. 519.

      Worthington & Matthews, made the following points for the defendants :

      1. On the power of the Court to order a nonsuit.

    I. In all cases -where a nonsuit may be directed by the court, by reason of the irrelevancy of testimony, or by reason that the testimony adduced docs not support the case set forth in the declaration, and also, whenever the testimony shall be arrested from the jury, by reason of which the plaintiff becomes nonsuit, the plaintiffs shall have the same right of appeal as in other cases. Sec. 96, Prac. Act of 1881, 3 Chase Stat. 1686; sec. 89, Prac. Act of 1824 ; 2 Chase Stat. 1274; sec. 91, Prac. Act of 1816, 2 Chase Stat. 969; sec. 3, Act to amend, etc., 1813, 2 Chase Stat. 794.
    II. In all cases pending, etc., either party shall have a right to ■except to the opinion of the court, on a motion to direct a nonsuit, and to arrest the testimony from the jury, etc., so that the case may ■be removed by writ of error. Sec. 3, Act to regulate, etc., of March 12, 1845, 43 Stat. 80.
    III. Every special verdict or demurrer to evidence shall be entered on the minutes of the court; after which either party may move the court to assign a day for argument. See. 84, Prac. Act of 1831, 3 Chase Stat. 1684; sec. 81, Prac. Act of 1824, 2 Chase ■Stat. 1273; sec. 83, Prac. Act of 1816, 2 Chase Stat. 963; sec. 96, Prac. Act of 1810, 2 Chase Stat. 717.
    IV. The act establishing courts of judicature of 1795 was adopted from Pennsylvania, and is very general in its terms. *The act organizing judicial courts of 1803, and that of 1805, are also very general, and doubtless the practice act of 1810 was founded upon what had been the course of procedure by the courts under the prior acts. It has been substantially followed by the subsequent acts up to the time of the present code. Prac. Act of 1810,1 Chase Stat. 703; Prac. Act of 1805, 1 Ib. 450; Prac. Act of 1803, 1 Ib. 355; Prac. Act of 1795, 1 Ib. 147.
    V. At an early period in the judicial history of Ohio, it was determined that an appeal could not be sustained on a judgment of nonsuit, because it did not conclude the rights of the parties, and this probably induced the act of 1813, amending the practice act of 1810. 2 Ohio, 87; 9 Ib. 192.
    VI. “ The act of Assembly, 29 Ohio St. 75 (sec. '96, Prac. Act, 1831), pro vides, for. an appeal, where the-court-orders a -nonsuit by reason of the irrelevancy or insufficiency of testimony to supjiort the plaintiff’s declaration, and where nonsuit results from the court’s .arresting the from the All these which are exceptions from the common rule, suppose the interposition of the court. This is essential to the appeal. The case before us shows no such interposition. The common rule does not allow an appeal from a voluntary nonsuit.” 6 Ohio, 496.
    YII. Section 96 of the practice act of 1831, was intended to allow an appeal as in other cases, where the court decided a nonsuit, by reason of irrelevancy, etc., but in no other case. It was introduced into our system by the judiciary act of 1813, and has been «ince continued. Without it, no appeal would lie upon a -nonsuit at law. In chancery the statute is different. 9 Ohio, 192.
    YIII. The court never hesitates to arrest a trial, at any stage of the proceedings, when it is discovered, if a verdict be taken, the judgment must be arrested. Any-other course would be a useless delay of time, which the technical forms of proceeding should not *be suffered to produce unless in very special cases. 11 'Ohio, 302.
    IX. Whenever it appears, in the progress of a trial, that the plaintiff is not entitled to maintain his action, the court may interpose and direct a nonsuit, although the same objection appears upon the face of the declaration, and might have been made on demurrer, etc. This was a case where the court, on motion, arrested the testimony from the jury and directed a nonsuit; because a justice -of the peace had no jurisdiction over a constable for a false return -on mesne process. This was an objection to the declaration. 12 Ohio, 41; 1 Camp. 256.
    X. A nonsuit will not be set aside, though improperly directed, unless a verdict in favor of the plaintiff will lay the foundation for a legal judgment. In this case a deed was ruled out and a nonsuit ordered. The cases in 11 Ohio, 302, and 12 Ohio, 41, are cited and affirmed. 14 Ohio, 606.
    XI. In the case of Showers v. Emery’s lessee, a nonsuit had been granted and judgment. On a writ of error it was reversed, because the evidence adduced tended to prove the plaintiff’s claim. The ■court said even the presumption of a fact must be left to a jury, and the court -can not compel -the plaintiff to 'become ’nonsuited. 16 Ohio, 296. See also, in Warring v. Martin, Wright, 380.
    XII. The Supreme Court will not reverse the judgment of the court of-common pleas-for error in refusing to grant-a nonsuit, unless the bill of exceptions disoloses all-the testimony which was before the court on the motion -for a nonsuit. A reversing court never presumes that an inferior tribunal bas erred. Tbe presumption is, it has not. Until tbe contrary be shown by record, every court is presumed to have decided correctly. 17 Ohio, 439, 497, 498; 18. Ib. 30; 19 Ib. 426; 20 Ib. 361.
    Sill. Error can Dot be assigned upon any ruling of tbe court in tbe progress of a trial, unless by tbe bill of exceptions it appears tbat an exception was taken to sucb ruling. 19 Ohio, 300; 20 Ib. 34.
    *XIV. In tbe progress of a trial, if a motion to direct a, nonsuit be made to tbe court, it must be decided; and to tbe decision upon tbe motion each party bas tbe right to except. 19 Ohio, 301.
    XV. A bill of exceptions must be signed, sealed, etc., at tbe term, in wbicb tbe exception is taken. 19 Ohio, 426.
    XVI. If tbe court, supposing the evidence all true, were of opinion it fell short of establishing a legal right in tbe plaintiff to recover, it bad tbe legal right to order a nonsuit. Wright, 335 ; Ib. 337; Ib. 489.
    So if tbe evidence do not conduce or tend to establish every fact involved in the issue. 17 Ohio, 42, 43; 1 McLean, 309; 10 Eng. C. L. 152; 3 Barn. & Cress. 462.
    XVII. If tbe plaintiff, having made a prima facie case, introduce other testimony showing tbe fact to be contrary to tbe supposed case, and against tbe plaintiff, he will be nonsuited. Ho inference can obtain against a fact. Or in tbe language of tbe court “ nonsuits are ordered when there is a total failure of evidence to sustain tbe plaintiff’s claim, and when taking all tbe evidence be offers as true, it shows in him no legal right to a verdict.” Wright, 661.
    XVIII. Tbe majority of tbe Supreme Court of tbe United States, hold tbe circuit court bas no authority to order a peremptory non-suit against tbe will of tbe plaintiff. He bas a right by law to a trial by a jury, and to have tbe case submitted to them. It was in a case from G-eorgia. Johnson dissented, because tbe sixth circuit over wbicb be presided bad adopted tbe practice of tbe state courts, and it was their practice to grant sucb nonsuits. 1 Pet. 471, 497; 6 lb. 609.
    Tbe two latter cases rest upon tbe former. 14 How. 222.
    This case rests upon tbe preceding cases.
    In these cases tbe evidence all conduced to sustain tbe and ■the nature and effect or -weight of the testimony should have been ^leffc to the jury. It is in such cases the plaintiff has the right by law to a trial by. a jury. 16 Ohio, 296; Wright, 380; 6 Peck, 117 ; 12 Barb. 108; 1 Wash. (Vir.) 114; 2 Bay, 126; 13 Johns. 334; 4 Cush. 416; 5 Cush. 67; 14 Penn. St. (2 Harris) 197; 2 Hon. Black. 205.
    XIX. When there is no dispute about the facts proved, no testimony to be weighed, and the facts proved fall short of the legal proposition upon which the plaintiff seeks to maintain his issue, •or, in other words, when there is a defect in the testimony, the ■court will nonsuit him. There is no testimony tending to sustain .all the facts, or some one fact necessary to the issue. 13 Johns. 334; 12 Ib. 298; 1 McLean, 309; 4 Cush. 414; 17 Mass. 33; 14 Barb. 585; 13 Ib. 9; 10 Ib. 663; 3 Hill, 287; 7 Ib. 529; 21 Wend. 623; 17 Ohio, 42, 43.
    The latter case is very conclusive. It was an action against an indorser, where no demand of payment was proven, and a nonsuit •ordered. The court held — “ the indorser acknowledged notice of non-payment, but there was no evidence of demand of payment. There was no sufficient evidence then to take the case to the jury, either upon the special counts or general counts.” So the case in 1 McLean, 309.
    XX. When the defendant offers testimony in defense, he waives his nonsuit rights. 32 Maine, 576; 14 Mass. 154; 5 Cush. 67. Otherwise in New York. 10 Barb. 663; 3 Hill, 287; 7 Ib. 529; see also 6 Barn. & Cress. 225, or 13 Eng. C. L. 152; 11 Ohio, 302; 12 Ib. 41; 14 Ib. 606.
    XXI. It is enough to warrant a nonsuit, that the clear weight ■.and effect of the defensive testimony is against the plaintiff. Wherever the case is so clear the court would grant a new trial if .a verdict be for the plaintiff, it may order a nonsuit, and when so •ordered, a new trial will not be granted*. 10 Barb. 663; 3 Hill, 287; 7 Ib. 659; 23 Wend. 480; 21 Ib. 109; 14 Ib. 146; 6 Ib. 436; 1 Ib. 376, 379; 6 Barn. & Cress. 225 ; 1 Iowa (Greene), 259 : 2 Ib. 205.
    XXII. On a motion for a nonsuit the court takes into consideration the whole testimony of the plaintiff, whether given on cross-examination or in chief. 30 Maine (17 Shep.), 58; 5 Dana (Ky.), 419; 3 Marsh. (Ky.) 277; 21 Maine (9 Shep.), 256.
    XXIII. A demurrer to evidence involves the admission by the demurrant of every fact claimed to be sustained by tbe plaintiff’s evidence, otherwise he can not be compelled to join in.the demurrer, nor can the case be withdrawn from the jury; but admitting all the facts claimed to be established by the evidence, there is nothing for the jury to find, and the court will apply the law to the facts admitted and render judgment. 2 Hen. Black. 187, 205; 1 Doug. 119; 11 Wheat. 171, 320; or 6 Con. Pet. 261, 328; 22 Peck, 135; 3 Phil. Ev. (C. & H. Notes) 796; 3 Pet. 36, 96.
    XXIV. If the party against whom the demurrer is offered, join in the demurrer, neglecting to insist on the admissions he claims, the court will draw from the testimony what the jury might have-drawn, if it leave the facts not unsettled. 3 Phil. Ev. (C. & H. Note) 796; 12 Wheat. 383, 389; 6 Con. Pet. 546, 328.
    XXV. Whether evidence be admissible or not, relevant or not, or conclusive or not, to support the issue, must be for the court to-determine. The legality of evidence is a matter of law and for the court to settle. The effect of legal testimony admissible to a jury must be for the jury to ascertain. But before evidence can go to a jury the court must act upon its competency or tendency to support the issue. 1 Greenl. Ev., sec. 2 ; 2 Pet. 44, 133, 148.
    *2. Was the power properly exercised in this case?

    I. Where an act is done, or contract made, under an injurious-mistake, or ignorance of a material fact, it is voidable. This ruléis not limited to cases of fraudulent concealment and suppression, but extends to cases of innocent misapprehension and mistake. The mistake or ignorance must be an essential and efficient cause, and not a circumstance. Story on Contracts, sec. 409, 411; 9 Peck, 129; 9 Mees. & Welsb. 54; 11 Conn. 143; 2 Sumner, 387, 394 ; 3 Story, 700; 1 Story Eq. Jur., sec. 140, 141; 2 Kent Com. 490, 491.
    II. It was formerly held that any mistake or ignorance, which might, by the exercise of reasonable diligence, be obviated, would be insufficient to avoid a contract; but now a plain and palpable mistake or ignorance will entitle the mistaken or ignorant party to-relief, unless he be put directly upon inquiry; and then it must be such as could not be found out by due diligence. But no relief will be given where the means of information are open or closed to both parties. 1 Story on Contracts, sec. 410; 1 Story Eq. Jur., secs. 146, 149, 150, 151; 2 Kent Com. 484; 1 Ohio, 450; 3 Story, 181; 20 Ohio, 581, 607; 20 Wend. 174; 8 Cowen, 195; 9 Mees. & Welsb. 54; 43 Eng. C. L. 16, or 4 Man. & Grang. 11; 2 East, 469 ; 13 Eng. C. L. 293, or 6 Barn. & Cress. 671.
    III. Anything that }Duts you upon inquiry is notice in the law. The presentation to a banker of a bill drawn by his correspondent, puts him upon inquiry at once as to the genuineness of his signature, and is notice. 8 Barb. 521; 1 Gall. 41; 7 Conn. 324; 18 Ib. 108; 16 Ohio, 83, 415.
    IY. There are exceptions to these rules:
    1. "Where the party making the mistake willfully assumes the fact, or declines to examine into it when his attention is called to it. Story on Contracts, see. 411; 9 Mees. & Welsh. 54.
    *2. When the mistake or ignorance relates to matters which the party is bound by law imperatively to know, unless fraud or imposition were directly practiced upon him. This exception applies solely to cases where public policy requires the party mistaken to bear the consequences of his mistake, and when the other party is not in fault; such as the payment of bank-notes or bank-checks under a mistake. Story' on Contracts, sec. 411; 4 Dall. 234; 19 Wheat. 333; 17 Mass. 33.
    3. So, also, if a banker receive in payment his own notes, that prove to be counterfeit, because he is bound to know his own notes on presentation. Story on Contracts, sec. 411; 10 Wheat. 333; 17 Mass. 33.
    4. So, also, if a banker pay a counterfeit bill or check drawn on him, it is an admission of the genuineness of the signatures of the drawers; the law binds him not only to know his own signature, but also the signatures of his correspondents. 10 Vt. 141; 4 Comstock, 147; 3 Ib. 230, 236; 1 Hill, 287, 290; 10 Wheat. 333; 4 Dall. 234; Story on Contracts; sec. 411; Story on Bills, secs. 262, 263; Ib., sees. 450, 451, note 2; Ib., sec. 411; 42 Eng. C. L. 634, or 2 Adol. & Ell. 204; 10 Eng. C. L. 140, or 3 Barn. & Cress. 428; 17 Eng. C. L. 577, or 9 Barn. & Cress. 902; 1 Eng. C. L. 312, or 6 Taunt. 76; 1 W. Black. 390; 3 Bur. 1354; 1 Strange, 548; 2 Ib. 946, 1051; 1 D. & E. 655; 3 Esp. 60; 4 M. & Selw. 15; 4 Esp. 226; 12 Eng. C. L. 368, or 5 Barn. & Cress. 750; 2 Johns. 462; 17 Mass. 33, 42; 6 Ib. 182; 10 M. & W. 147.
    5. But where he who takes a forged bill, note, or check, is not a party to it, the rule is totally different; the law then does not require him to know the signatures thereto. Story on Contracts, sec.. 411; Story on Bills, secs. 111, 225, 262, 263, 413, 451; 5 Taunt. 448, or 1 Eng. C. L. 153; 5 Taunt. 495, or 1 Eng. C. L. 170; 5 Taunt. 488, or 1 Eng. *C. L. 166; 9 Barn. & Cress. 905, or 17 Eng. C. L. 517; 3 Barn. & Cress. 428, or 10 Eng. C. L. 120; 3 Comstock, 230; 1 Hill, 290; 6 Mass. 184.
    ■ 6. The payment of a forged check is a matter of negligence, and not to be considered as a mistake. 3 Bur. 1357.
    Y. A bill of exchange is well devised for circulation. The law throws its mantle over it, and he to whom it is tendered has simply to read it; he need look no further ; and its private history is of no moment to him. The policy that introduced this simple instrument has hitherto protected it, and it goes on its mission unembarrassed by the acts of the parties through whom it is transmitted without notice of any infirmity. 1 Hen. Black. 607; Swan’s Stat. (1854) 575 ; Story on Bills, secs. 189, 190, 191, 192, 193. This, of course, does not include illegal bills.
    YI. A consideration to support a bill consists either in some right, interest, profit, or benefit accruing to the party who makes the contract, or some forbearance, detriment, loss, responsibility, or act, or labor, or service on the other side. Story on Bills, sec. 183.
    YII. A bank check is always payable on demand, and days of grace do not attach to it. The holder of a check on presentation has a right to have it paid, and if not paid to proceed at once against the antecedent parties, even though he may fix their legal liability the next day, and of this right he can not be deprived without his consent. 21 Wend. 373; 35 Ib. 674; 1 Eng. C. L. 316; 6 Taunt. 76; 17 Eng. C. L. 518 ; 9 Barn. & Cress. 902 ; 3 Ib. 428; 10 Eng. C. L. 140.
    YIII. Where parties are equally innocent or equally guilty, the rule is melior est conditio possedentis, except in innocent mistakes; then it is reversed. 1 Mass. 66; 3 Bur. 1354: 5 Coke, 115 ; 10 Wheat. 333; 1 Hill, *290; 2 Doug. 639; 1 Eng. C. L. 169, Dallas, J.; 12 Ib. 121.
    IX. Where a bank receives a check from another bank and sends it to a third, averring it was received from the latter bank, which proves not to be the case, the loss consequent must fall upon the erring bank as first in fault. 3 Mass. 74.
    X. Payment made in forged notes of third parties, or in base coin, is not good, but they must be returned in a reasonable time. The true rule is for the party receiving them to examine them aa «oon as there is an opportunity, and return them immediately. This applies to all eases, and especially to one’s own notes received with a reservation to return if not good on examination. Story on Contracts, sec. 411, note 2; 10 Wheat. 333 ; 17 Mass. 33; 6 Ib. 182 ; 2 Johns. 455; 3 Taunt. 488 ; 1 Eng. C. L. 166.
    XI. The drawee of a forged check by him paid, can not recover the amount back from the holder of the check upon the ground of failure or insufficiency of consideration, if the holder had acquired the cheek in good faith and for value received. 42 Eng. C. L. 684; 2 Adol. & Ell. 196.
    XII. The holder of a bill or bank check fraudulently, feloniously, nr without consideration obtained and put in circulation, must have acquired it in good faith for a full and fair consideration, in the usual course of business, without notice of the defect or infirmity in the title. 16 Barb, 560 ; 4 Esp. 56; 3 Comstock, 236 ; 4 Ib. 147 ; 1 Hill, 287; 10 Eng. C. L. 143, 154; 12 Ib. 121, 95, 142 ; 14 Ib. 330 ; 19 Ib. 201; 27 Ib. 234, 276 ; 31 Ib. 212 ; 37 Ib. 235 ; 41 Ib. 645 ; 42 Ib. 634 ; 10 Vermont, 141.
    XIII. He must have acquired the title in good faith.
    1. It was first held he must acquire the title without collusion or ■mala ftdes. 1 Bur. 452; 4 Dur. & Est. 30; 4 Ib. 315; 1 Ld. Ray. 738 ; 3 Bur. 1355, 1524; 2 Doug. 634, 640 ; 4 Esp. 56.
    *2. It was next held, if he acquired title under such cir•cumstances as would excite the suspicion of a prudent or careful man without due caution, although he gave value for it, he could not hold it. 3 Barn. & Cress. 466; 4 Ib. 330; 2 Car. & Payne, 215 ; Ib. 261; 6 Bing. 677; 16 Barb. 550; 3 Car. & Payne, 325; 2 Ib. 11; Ib. 314; 10 Eng. C. L. 154, 347; 12 Ib. 95, 121; 19 Ib. 201; 14 Ib. 330; 12 Ib. 5, 142.
    3. It was next held, if he acquire title through gross negligence, ■he could not hold it, otherwise he could. 5 Barn. & Cress. 909, 1098 ; 16 Barb. 550 ; 27 Eng. C. L. 234, 276.
    4. Finally, it was held that gross negligence might be evidence of mala ftdes, but it was not the same thing, and if he acquired title without mala ftdes, or collusion with the fraud, etc., he could hold the same. 4 Adol. & Ellis, 870, or 31 Eng. C. L. 212; 10 Adol. & Ellis, 784, or 37 Eng. C. L. 252; 1 Adol. & Ellis N. S. 489, or 41 Eng. C. L. 645; 16 Bark. 550; Story on Bills, secs. 194, 416; Story on .Notes, sec. 197.
    XIV. He must acquire the title not only in good faith, but upon a full and fair consideration paid. 16 Barb. 550; 12 Ib. 410; 5 Johns. Ch. 54; 16 Mass. 428; 1 Burr. 452; 4 Esp. 56; 31 Eng. C. L. 212; 37 Ib. 232; 20 Pick. 545.
    XV. . The title must also be acquired in the due course of business. 16 Barb. 552; 20 Peck, 545; 5 Johns. Ch. 54; 10 Bing. 243; 25 Eng. C. L. 116; 20 Johns. 651.
    XVI. The title must also be acquired without notice of any defect or infirmity of title in him who transfers it. This principle is elementary. 16 Barb. 553.
    XVII. The negligence, though gross, of the holder of a bank-cheek in its acquisition, confers no immunity upon the payer when ^presented for payment. 25 Eng. C. L. 116; 10 Bing. 243.
    XVIII. The usages of business alone between the parties control .their transactions, and not the usages of third parties, or the usages of either with others. 4 Esp. 56; 7 Cush. 423.
    XIX. A general or special custom, to be obligatory, must be ancient, uniform, certain, reasonable, consistent, compulsory, and peaceably acquiesced in. But it does not 'control a written contract, nor vary a general rule of law. Wright, 572; 1 Ohio, 252; 19 Ib. 343; 16 Ib. 426, 515; 7 Cush. 417; 2 Sumner, 377; 1 Pet. 33; 15 Howard, 545 ; 13 Penn. 33; 1 Selden, 159.
   Ranney, J.

We can not consider it necessary to enter at much length upon an examination of the power of the courts of this state to order a peremptory nonsuit. If any question can be said ■to be settled, this must be so regarded. There is reason to believe that the power has been constantly exercised since the first organization of the state government; and it is certain that, since 1813r the power has been expressly and repeatedly recognized by the legislature. From- that time to this, by numerous statutory provisions, the party against whom such a judgment has been given has been secured in the right to appeal, or to except to the order of the court, and to review it on error.

In the multitude of cases that have in this manner found their way to the Supreme Court, no doubt has been expressed, either from the bench or at the bar, of the existence of the power, although the propriety of its exercise, in particular cases, has often been obstinately contested. It is true that these enactments have not, in terms conferred the power; but they furnish unmistakable evidence :that the legislature was well advised of the course of decision tbe subject, and intended it to continue with tbe proper safeguards, against abuse. In view of .this Uninterrupted practice of courts, sanctioned and regulated by the legislative department for' half a century, it can matter but little what may have been the course of decision in other states, or in the federal courts. If there is anything eminently and exclusively our own, it is our system of legal procedure; and while an enlightened policy would require us to consult other systems when constructing one for ourselves, they ought never to be received to prevent the application of rules and principles which we have deliberately adopted and applied for such a length of time as to give them general notoriety. If it was necessary, however, it would not be difficult to show that our decisions-have rather limited than extended the power exercised by the courts-of such of the old states as were, for obvious reasons, most influential in giving character to our system of law and legal procedure-And if we have somewhat enlarged the practice of ordering involuntary nonsuits, as compared with the English courts and those of other states of the Union, it has been done, as a matter of practical convenience, by substituting this mode of proceeding for the demurrer to evidence, in full operation with them, thereby referring1 the rights of the parties to the same principles of adjudication and attaining the same end, but in a manner much less embarrassed with technical formality, and in its effect much more favorable to-the plaintiff, against whom the power is exercised.

There is still less difficulty in defending the exercise of this power-from the imputation of being an encroachment upon the constitutional right of trial by jury. The law of every case, in whatever1 form presented,belongs to the court; and it is not only the right of the judge, but his solemn duty, to decide and apply it. He must determine the legal requisites to the right of action, and the admissibility of the evidence offered to sustain it. When all the evidence-offered by the plaintiff has been given, and a motion for a nonsuit is interposed, a question of law is presented, whether the evidence before the jury tends to prove all the facts involved in the right of action and put in issue by the pleadings. *In deciding this question, no finding of facts by the court is required, and no weighing of the evidence is permitted. All that the evidence in any degree tends to prove, must be received as fully proved; every fact that the evidence, and all reasonable inferences from it, conduces to> establish, must be taken as fully established.

The motion involves not only an admission of the truth of the ■evidence, but the existence of all the facts which the evidence con- • duces to prove. It thus concedes to. the plaintiff everything that the jury could possibly find* in his favor, and leaves nothing but the question whether, as a matter of law, each fact indispensable to the right of action has been supported by some evidence ? 'If it has, no matter how slight it may have been, the motion must be denied; because it is the right of the party to have the weight and suf.ficiency of his evidence passed upon by the jury — a right of which he can not be deprived, and involving an exercise of power for which, without his consent, the court is incompetent. But where he has given no evidence to establish a fact, without which the law • does not permit a recovery, he has nothing to submit to the jury; and the determination of the court, that the fact constitutes an essential element in the right of action, necessarily ends the case.

It follows, from the views we have expressed, that we do not concur in the position assumed in argument, and supported by several .Now York cases, that a nonsuit may be ordered where the clear weight of the testimony is against the plaintiff. It is said, with ■much plausibilty, that if the weight of the evidence is so decided, .as that the court would grant a new trial if the verdict should be for the plaintiff, he can not he injured by taking the case from the jury in the first instance, instead of waiting to set aside their finding, after they have improperly given him a verdict. But, aside ■from the fact that such a practice involves an assumption of power •by the court which the constitution and laws have committed to the jury, in the very case supposed, the ^plaintiff would have good cause to complain of injury. A nonsuit puts him out of court, and charges him with the costs ; a new trial leaves him in court, and, ordinarily, exacts the costs from the other side. It would also have deprived the plaintiff of the benefit of section 98 •of the practice act of 1831, limiting the power of the court, in granting new trials, to not more than two to the same party.

In fact, the two proceedings have nothing in common. The one reviews the evidence, but uot until the functions of the jury have been discharged, and then only for the purpose of determining whether the cause should be submitted to another jury. The other tabes the evidence from the jury, prevents a verdict, and disposes •of the case. This can only be done when, assuming everything that the party has attempted to prove as true, and thereby obviating the necessity for a jury to find it so, the law still disposes of the case against the plaintiff, because some fact, material to his right of action, is unsupported by any evidence. So long as there is evidence tending to prove the whole issue, there can be no substitution of the court, for the jury, to pass upon it; and the party can not be deprived of the right to demand a verdict, without a substantial denial of the right of a jury trial. 22 Pick. 7; 17 Mass. 249; 14 Penn. St. 275.

Our conclusions upon this subject can not be better stated than in the clear and explicit language of one of the learned judges in the court below: “Wherever there is any evidence, however slight, tending to prove the facts essential to make out a ease for' the plaintiff, a nonsuit can not be properly ordered: it is in no-case a question as to the weight, but as to the relevancy .of the testimony. If the testimony tends to prove a prima facie case for the plaintiff, a nonsuit can not be properly ordered. Nor can facts tending to prove a defense on the part of the defendant, though proceeding from witnesses introduced by the plaintiff, be. considered on a motion to nonsuit. If the defendant wishes to set up any such facts, he must resort to the jury to have them established.”

*2. Having settled the principles by which our inquiries are to be guided, we are now prepared to ask the question : Were the plaintiffs properly nonsuited in the present case ? An answer to this question demands a careful attention to the evidence contained in the bill of exceptions, and a settling of the state of facts that it conduced to prove, and then the legal principles applicable to such a state of facts.

There has been, and can be, no dispute that the money, for which this action was brought, was paid by the plaintiffs, and received by the defendants, on a check for $7,500, purporting to be-drawn upon the plaintiffs by Evans & Swift, a firm at Cincinnati engaged in the pork-packing business, and payable to Samuel Taylor & Co., or bearer; and that the check was a forgery, of which the parties were mutually ignorant at the time the payment was made. This check, with another for $7,300, purporting to be drawn by S. Davis & Co., on the Mechanics and Traders’ Bank, and which was also a forgery, was presented in the early part of the day it bears date, by a stranger having the dress and appearance of a drover, and expressing a desire to exchange .them for. Kentucky money or gold, to tbe teller of tbe defendant’s batik, by whom they were taken and the gold advanced, at a discount of one-fourth of one per cent. He testified that he did not know the standing of either firm, nor their signatures, but took the checks to Mr. Bishop, the cashier, laid them on his desk, and asked him if he .should make the exchange. He [Bishop] said yes. Can not say whether he examined or knew the signatures. The checks were before him some three or four minutes. He assisted in calculating the premiums. No question was asked as to who the presenter was, •or as to his right to the checks. He was probably in the bank from two to fifteen minutes; should not have recognized him again. He carried off the gold in saddle-bags. Both the banks, upon which the checks were drawn, were within less than a square; there was nothing to create suspicion, and nothing unusual in the transaction.”

*In accordance with a custom of doing business between these banks, and, to some extent, with other banks of the city, this •check, with others drawn upon the plaintiffs and taken by the defendant, were pinned together, with a ticket upon the top showing the amount of each and the aggregate amount of all, and on the .same day presented to the plaintiffs, who paid the amount appearing from the ticket, without any examination of the cheeks; it ■being the custom, however, to examine them on the same day, and return such as were found not to be good. This check was examined, on the same day, by the note-clerk of the plaintiffs, and •charged up against the supposed drawers. The forgery was not discovered until ten days .afterward, when the check was returned to the defendants, and repayment demanded.

For the purpose of showing what was claimed to be gross negligence on the part of the defendants, the plaintiffs introduced sev•eral witnesses engaged, in the business of banking at Cincinnati, who -expressed the opinion that the defendants, in the exercise of proper diligence,.should have required the person presenting the check to have drawn the money himself; or should, by .inquiry, have been satisfied of his right to it, and off -his identity. As expressed by one of them.: “It is the .general custom in this city, when check-is presented for sale — that is, when .it is presented by a stranger to a-bank, not the .one upon which it is drawn — to make inquiries in reference to his right to the check, and the identity of the person.” And with a view-of making it appear that this .negligence •operated directly to their prejudice, and induced the payment of the check, the plaintiffs further gave evidence tending to prove their uniform custom of making such inquiries, when a check of this •character, drawn upon them, was presented by a stranger; and that there was “not generally so strict a scrutiny when checks come from other banks, it being presumed that caution had been already exercised.” The tendency of this evidence can not be mistaken. It clearly conduced to prove the existence of a general custom *among the banks of Cincinnati, requiring the bank taking a check of this character, drawn upon another, from a ■stranger, to be satisfied, by inquiry, of his right to the check, and of the person from whom it was received; and as clearly allowing the bank, upon which it was drawn, to rely upon the presumption that such caution had been exercised, when the check was presented for payment. If this custom, in both its branches, was established to the satisfaction of the jury, the fair presumption •arising would be that the defendants had been negligent in failing to comply with an established custom of the business, necessary not only to their own security, but also to that of the bank upon which the check was drawn, and that the plaintiffs, not being informed to the contrary, paid the check upon the supposition that the custom had been observed; while it would be made absolutely •certain that the intervention of the defendants had prevented the plaintiffs from exercising this precaution ; and nearly so, that if it had been exercised by the defendants, the check would not have been purchased by them, or paid by the plaintiffs.

We do not say that the evidence was sufficient to establish this state of facts, or that it was not. It is enough that.it had that tendency. It is wholly immaterial, for present purposes, how weak and inconclusive it may ,have been, or even that it was contradicted by other evidence given by the plaintiffs. As was well said .in the court below, “if the testimony .be contradictory, it can not all be admitted to be true; if not all true, judgment must be exercised in separating the true from the false; and this is the peculiar province of the jury.”

Assuming all to be satisfactorily proved that this evidence conduced to prove, does the law permit a recovery? Upon this question we have bestowed the careful attention which the importance of the subject, as well as the learning and ability with .which it was treated .in the Superior Court, and by counsel in this .court, seemed to demand, and a majority of the court are brought to the conclusion that it does.

*Thore is, certainly, no room for the application of technical or arbitrary rules, in determining the rights of the parties. Neither the form of the action nor the nature of the subject permits it. The action is brought for money had and received; and it lies in all cases, where one has the money of another, which he can not in equity and good conscience retain. It lies, therefore, for money paid by mistake, or upon a consideration which has failed; because, in such case, the plaintiff did not intend to give his money to the defendant, and the latter can not conscientiously retain money for which he has given no equivalent. This is the general rulo; but it has its exceptions, as well settled and resting upon reasons as solid and satisfactory as the rule itself. Wherever the mistake has arisen from the fault or negligence of the party paying, the money, and can not be corrected without prejudice to the party who has received 5t, there can be no recovery, and simply because the plaintiff is alone In fault; the defendant is under no obligation to submit to loss, to extricate him from difficulty, and may therefore conscientiously retain the money. The question is, does this-case fall within the general rule, or the exception ? We make the solution of this question depend wholly upon the answer to be given to another: Does the negligence imputed to the defendants, subject them to an action for the recovery of the money paid upon the'check? Can a party, upon whom an established course of business devolves the obligation of making certain inquiries, before-taking a check purporting to be drawn upon another, in negligent disregard of that duty, conscientiously retain the money received ■upon a forged instrument, when it appears that such negligence-contributed to induce the payment?

Whatever of doubt might have been once entertained, it has been-long settled that a person giving a security in payment, or procuring it to be discounted, vouches for its genuineness ; and if it proves to be a forgery, he is still liable for the debt, in the one case, or for a return of the money in the other. 2 Johns. 455; 6 Mass. 182 ; 5 Taunt. 488.

*We admit it to be equally well settled, that, where the instrument is drawn upon, or purports to be signed by, the party paying the money, to a holder without fault, and whose situation would be thereby changed to his prejudice if he was compelled to refund,. the money can not be recovered back. The foundations of the rule aré sufficiently obvious. The party is supposed to know his own handwriting, in the one case, or that of his customer or correspondent in the other, much better than the holder can; and the law, therefore, allows the holder to cast upon him the entire responsibility of determining- as to the genuineness of the instrument, and if he fails to discover the forgery, imputes to him negligence, and, as between him and the innocent holder, compels him to suffer the loss. For still stronger reasons, the drawee of a bill or check, who-has accepted it, and again suffered it to go into circulation, is absolutely estopped to deny the genuineness of the drawer’s handwriting. The acceptance necessarily involves the most positive affirmation that the instrument is what it purports to be, and the acceptor is not -permitted to withdraw the assertion, to the prejudice of those1 who have, in consequence of it, given credit to the paper.

In all such cases, either of acceptance or payment, the foundation upon which the drawee is made to suffer the loss, is the imputed negligence in accepting or paying, until he has ascertained the bill to be genuine; and, in case, of payment, notwithstanding he has done it in mistake, and parts with his money without receiving the-supposed equivalent, and notwithstanding the holder has obtained the money without consideration, the former can not be relieved from the consequences of his negligence, at the expense of the latter, and the latter may in equity and good conscience retain what ho has got. But this stern rule is only exerted in favor of a holder without fault, and for a valuable consideration; and we deem it equally clear that he may, by his own negligent conduct, place himself in such an equitable position, in reference to the drawee, as to deprive-himself of the benefit *of this rule, and make it unjust and inequitable that he should keep what he has obtained by mistake, and for which he has given no equivalent.

We do not here speak of negligence as a matter at large. We-only intend to deal with the case before us; and that only requires us to say, that where the negligence reaches beyond the holder, and necessarily affects the drawee, and consists of an omission to exercise some precaution, either by the agreement of the parties or the course of business devolved upon the holder, in relation to the genuineness of the paper, he can not, in negligent disregard of this duty, retain the money received upon a forged instrument. But these propositions, we think, will be found fully sustained, if' not in every particular, by direct adjudications, by the fixed principles upon which nearly all the cases have proceeded.

The leading case is that of Price v. Neal, 3 Burr. 1355. It is not very clearly reported, and has been the subject of some misunderstanding in the subsequent cases. The action was brought to recover the money paid upon two forged bills of exchange, drawn upon the plaintiff; one of which was first accepted and afterward paid, and the other paid upon presentation. Lord Mansfield lays some stress upon this circumstance; and he is very careful to say that the “misfortune happened without the defendant’s fault or neglect,” and that whatever of negligence there was, was on the side of the plaintiff.

Without advancing any views of our own, as the true ground upon which the plaintiff was denied a recovery, it will be sufficient to present those of the Supreme Courts of Massachusetts and New York. In Young v. Adams, 6 Mass. 187, Sewall, J., says, the strong ground for the decision, “ although not so prominently stated by the reporter, was because the plaintiff’s acceptance and payment of these false bills, considering them as drawn upon himself, was Ms own peculiar negligence by which the loss had been incurred; and therefore it was not to be thrown back *upon the innocent holder of the bills.” And Chief Justice Kent, in Markle v. Hatfield, 2 Johns. 462, says:. “ That decision turned upon the negligence imputable to the one party, and not to the other.”

In Smith v. Mercer, 6 Taunt. 80, the payment was made by the bankers of the party, who purported to have accepted the bill payable at their banking-house, and the forgery was not discovered for a week afterward. The court were of the opinion that no distinction was to be taken between a payment by the bankers of the acceptor and the acceptor himself, and gave judgment for the defendant. But the judges were not unanimous: Chambre, J., expressing his dissatisfaction with the reasoning in Price v. Neal, thought the case came within the general rule of money paid by mistake, and could be recovered back; while Gibbs, C. J., being the only judge, as Mr. Chitty thinks, who put the case upon the true ground, rested his judgment wholly upon the delay in giving notice, by which the defendant’s remedy against the indorsers was lost. See Chitty on Bills, ch. 9, p. 463 (8 ed.)

In Wilkinson v. Johnson, 3 B. & C. 435, the bill was paid for the ¡honor of an indorser whose name was forged; but the forgery was -discovered on the same day, and notice being given, the money was recovered back. Lord Tenterden, after examining the previous cases, and stating that a call upon the acceptor for payment was .altogether a matter of course, while a call upon a person to pay for the honor of an indorsor was unusual, and necessarily imports that the name of the correspondent, for whose honor the payment is asked, is actually on the bill, proceeds to say: “ The person thus ■called upon ought certainly to satisfy himself that the name of his correspondent is really on the bill; but still his attention may be reasonably lessened by the assertion that the call makes upon him in fact, though no assertion may be made in words. And the fault, if he pays on a forged signature, is not wholly and entirely his ■own, but begins at least with the ^person who thus calls upon him. And though, where all the negligence is on one side, it may ■perhaps be unfit to inquire into the quantum, yet, where there is any fault in the other party, and that other party can not he said to he ■wholly innocent, he ought not, in our opinion, to profit by the mistake into which he may, by his own prior mistake, have led the other; at least, if the mistake is discovered before any alteration in the situation of any of the other parties — that is, whilst the remedies of all the parties entitled to remedy are left entire, and no ■one is dischaged by laches.” And he adds: “We think the payment, in this case, was a payment by mistake to a person not wholly free from Mame, and who ought not, therefore, to retain the money.”

Now, as it is undeniably clear that a payment supra protest, either for the honor of a drawer or indorser, places the party paying in the same situation as payment by the drawee (the party for whom payment is made being supposed to be his correspondent, with whose handwriting he is acquainted), it is evident that this decision was grounded upon the negligence of the holder, in not ■properly informing himself as to the genuineness of the signature, before presenting the bill to the correspondent of the indorser for ■payment; and the case is very strong to show with what scrupulous .-.fidelity every duty devolved upon the holder must be discharged, to entitle him to retain the money received upon a forgery.

I shall refer to but one other English case — Cocks v. Masterman, 9 B. & C. 902. In that case, as in Smith v. Mercer, the payment was made by the bankers of a supposed acceptor, and the forgery was discovered and notice given the next day. As there were indorsers the paper, the court hold the notice too late.- While it is admitted that the holder had notice in time to have charged the other parties upon the bill, it is nevertheless said, that he had the right, if he saw fit, to take steps against them on the day it matured, and that he ought not to be deprived of this right by the negligence of the party making payment.

*Among the American cases, those of the Gloucester Bank v. The Salem Bank, 17 Mass. 33, and Bank of the United, States v. The Bank of Georgia, 10 Wheat. 333, were payments made upon forged notes, purporting to have been issued by the banks-making payment. In the one case, a delay of fifteen days, and in. the other of nineteen, had occurred in giving notice of the forgery to the banks receiving the money; and in each they were held, entitled to retain it.

There can be no doubt of the correctness of these decisions. In. neither case was the party receiving the money implicated in any fault; and while the decisions are based upon the analogy furnished by the rule, which fixes the rights of the drawee or acceptor of at bill, it is very successfully shown that, in reason, the rule has a-much stronger application to’the redemption of bank-notes, growing out of the fact that they purport to be the party’s own paper,, circulating as money, and therefore difficult to trace back, and from the greater facilities that a bank has to detect forgeries, by the use of registers and private marks.

In the first of these cases, Ch. J. Parker commences his able-opinion by laying down the general principle applicable to that and like cases. He says: “In all such cases, the just and sound principle of decision has been, that if the loss can be traced to the-fault or negligence of either party, it shall be fixed upon him.. Generally, where no fault or negligence is imputable, the loss has-been suffered to remain where the course of business has placed it.” And he very reasonably concludes, that “ it would seem to be a. principle of natural justice, that where a loss has happened, he,, through whose means it happened, should sustain it, although innocent, rather than he who is not only innocent, but wholly without imputation of negligence.’’

In Levy v. The Bank of the United States, 4 Dall. 234, and Bank of St. Albans v. Farmers and Mechanics’ Bank, 10 Vt. 141, the-payment was made upon a check, purporting to be drawn by a depositor upon the plaintiffs. In the first case, *the forgery was detected and notice given on the same day, and in the other., mot until after the expiration of two months; and in both, the right to retain the money was sustained. While the first case is certainly •questionable, the last may have been correctly decided.

The Canal Bank v. The Bank of Albany, 1 Hill, 287, was the case -of a forged indorsement of the payee, and the money paid by the drawees was recovered back; although the forgery was not diseov•ered for two months after the payment, and the remedy against other indorsers was lost. .

We do not cite this case as bearing directly upon the question under discussion, as it is well settled that payment by the drawee does not involve an admission of the genuineness of the signature of any indorser; and the rule has even been carried so far, as to be .applied to the case of a bill payable to the order of the drawer, and purporting to be indorsed by him. Story on Bills, sec. 412. But •the case is valuable for the general rule elicited by the court, upon a full review of all the cases we have cited, that “ money paid by • one party to another through a mutual mistake of facts, in respect ■to which both were equally bound to inquire, may be recovered back;” • and that when money is thus paid upon a forgery, it is sufficient to .-give notice, without unreasonable delay, after the forgery is discovered.

In the case of the Bank of Commerce v. The Union Bank, 3 Comst. 230, the forgery consisted in increasing the amount by altering the body of the bill; and the drawees recovered back the money, although a notice was given too late to enable the holder to charge the indorsers. Judge Ruggles, in delivering the opinion of the •■court, after stating that the rule which casts the loss upon the • drawee, when the drawer’s name is forged, “is founded on the supposed negligence of the drawee in failing, by an examination of the ■signature, when the bill is presented, to detect the forgery and refuse payment,” and that the rule did not apply to an alteration in the body of the bill, which was not ^presumed to be in a handwriting known to him, arrives at the conclusion, that “ the ■greater negligence in a case of this kind is chargeable on the party who received the bill from the perpetrator of the forgery,” and that, “if reasonable diligence is exercised in giving notice after the •forgery comes to light, it is all that any of the parties can require.”

In Goddard v. The Merchants’ Bank, 4 Comst. 147, the signature of the drawer was forged, and the bill was paid the day after it was protested by the plaintiff, for the honor of the drawer. The bill purported to have been drawn by a bank in Ohio, upon the American Exchange Bank in New York, and was indorsed by the person, who forged it to the Bank of Butland, Yermont, by which it was-transmitted to the defendants for collection. In consequence of the absence of the notary, in whose hands it was placed, from his office,, the plaintiff did not see the bill at the time he made the payment, but left word to have it sent to his place of business. On seeing it the next day, he pronounced it a forgery and demanded back the money. The court held him entitled to recover. They admit that he occupied the same position as the drawee would; but as he paid the bill without an opportunity of judging whether it was signed by his correspondents or not, and upon the representation of the holders that they had such a bill, that he could not be held to have admitted the genuineness of the signature. And although the' forgery was discovered too late to give notice of protest, they held that no such notice was necessary, as the defendants had the bill only for collection and needed no recourse, and the payee who' forged it was liable to the'owners without notice.

We have thus particularly referred to every important case, in England and the United States, having a direct reference to the subject under examination, and to the grounds upon which these decisions have been made. It is readily admitted that no one of them is, in all respects, like the present. The governing principles by which these cases wore ruled, rather than precise identity *of circumstances, must furnish a guide for us. Several questions will readily suggest themselves, which we do not consider necessarily involved in the decision of this case. Amongst these is the question, whether, in cases properly within the rule, of payment by the drawee of a bill or other party occupying a like position, the payment becomes absolute as soon as made; or whether a discovery of the forgery, and notice given in time to charge the real parties ■ upon it, will entitle him to a return of the money ?

The cases cited from the Massachusetts and Wheaton’s Beports pretty strongly imply that, in the case of bank-notes, the payment is absolute; and Mr. Justice Story, in his Treatise on Bills, is evidently of the opinion that the same rule is applicable to the payment of bills and cheeks. For myself, I must be permitted to ■ say that I can see very little foundation in principle for this opinion. The ground upon which the drawee is denied the right to.correct the mistake originating in his own negligence, is the prejudice arising to the holder from making payment instead of suffering the paper to be protested. I do not say that this prejudice must be affirmatively proved; the law may, in many cases, presume it. But where the only prejudice which the party could sustain would be the loss of remedies against other parties, and when tho law by its own fixed rules determines that those remedies remain unimpaired, I think no such presumption can arise. And such is not only the opinion of Mr. Chitty, but he thinks it the fair result of the modern English cases. After alluding to the grounds of the contrary opinion, he says : But, on the other hand, it may be observed, that the holder who obtained payment, can not be considered as having altogether shown sufficient circumspection ; he might, before he discounted or received the instrument in payment, have made more inquiries as to the signatures and genuineness of the instrument, even of the drawer or indorsers themselves; and if he thought fit to rely on tho 'bare representation of the party from whom he took it, there is no reason that he should profit by the accidental payment, when the *Ioss had already attached upon himself, and why he should be allowed to retain the money, when, by an immediate notice of the forgery, he is enabled to proceed against all other parties precisely the same as if the payment had not been made; and consequently the payment to him has not in the least altered his situation, or occasioned any delay or prejudice. It seems that, of late, upon questions of this nature, these latter considerations have influenced the court in determining whether or not the money shall-be recoverable back.” To this may be added the repeatedly expressed opinion of the courts of Now York.

We pass without any remark, or the expression of any opinion, the claim of the plaintiffs, that, as the defendants were confessedly liable, under the custom, to return the money for one day, as there were no parties upon the paper to be made liable by notice of non-payment, and as the money was irrecoverably gone before tho check was presented, unless recovered from the forger, whose liability still continues, the failure to give notice until the forgery was discovered, did not, in presumption of law, prej udice the defendants, and that it could only operate against the plaintiffs when it was shown that actual loss ensued; and, for the purposes of the case, we yield to the defendants the position, that, after the expiration of that day, and after the plaintiffs had the opportunity to examine the signature, they stood upon the same ground as though they had paid on sight of the check. We do not examine these propositions, because we think the case now depends upon much more obvious considerations.

Recurring again to the fact, that the plaintiffs gave evidence tending to establish a course of business, which required the defendants to take the first precautionary step for the detection of the forgery, which they wholly omitted to do, we proceed to apply the principles deducible from the cases referred to, to that attitude of the controversy. Yiewed in that light, the case is most clearly within the principle upon which Wilkinson v. Johnson was decided. In that case, in consequence of the relation *of the parties, it became the duty of the holder to exercise active diligence to ascertain the genuineness of the bill. In this case, a like obligation arose from the course of business between the parties. In this case, as in that, the attention of the plaintiffs might be “reasonably lessened,” under the supposition that this obligation had been regarded. .And while it is true, here as there, that the plaintiffs ought to have satisfied themselves of the genuineness of the cheek before making payment, yet the fault “ was not wholly and entirely their own, but began, at least,” with the defendants ; and the payment was made, not only “ to a person not wholly free from blame,” but to one grievously in fault.

Quite as clearly is it within the rule of Chief Justice Parker, requiring the loss to fall upon the party to whose “ fault or negligence ” it can be traced, and that of the Supreme Court of Now York, affirming the general proposition that where the parties are equally innocent, or equally in fault, and money is paid upon a mutual mistake of facts, in respect to which both were equally bound to inquire,” it may be recovered back. In this case, there is every reason to believe, that if the defendants had required the person presenting the check to show who he was, he would have declined the ordeal, and it would not have been bought or paid. The loss may therefore be traced directly to their negligence. But whether this would have prevented the fraud or not, it is enough that both parties were bound to inquire, and, allowing both to be in fault, the result is precisely the same. The case of Goddard v. The Merchants’ Bank is full to the purpose, that, in order to bring the drawee within the exception to the rule, which allows money paid under a mistake of facts to be recovered back, the whole responsibility of investigating must be east upon him by tbe holder, and, as between them, be must be left in possession of every effective means for prosecuting tbe inquiry. If tbe bolder does not see fit to require this, or takes any part of tbe duty upon himself, or deprives the drawee of any part of these *means of information, tbe case, in tbe language of Chief Justice Bronson, “is out of tbe exception, and witbin tbe general rule.” And in all cases witbin tbe general rule, all tbe New York cases affirm it is sufficient to give notice when the forgery is discovered.

To entitle the bolder to retain money obtained by mistake upon a forged instrument, be must occupy tbe vantage ground, by puting tbe drawee alone in tbe wrong; and be must be able truthfully to assort that be put tbe whole responsibility upon tbe drawee, and relied upon him to decide, and that tbe mistake arising from his negligence can not now be corrected without placing tbe bolder in a worse position than though payment bad been refused. If tbe bolder can not say this, and especially if tbe failure to detect tbe forgery, and consequent loss, can be traced to bis own disregard of duty, in negligently omitting to exercise some precaution which he bad undertaken to perform, be fails to establish a superior equity to the money, and can not with a good conscience retain it. To allow him to do so, would be to permit him to take advantage of bis own wrong, and to pervert a rule, designed for bis protection against tbe negligence of tbe drawee, into one for doing injustice to him.

Nor is it anything remarkable or unusual that such an obligation should arise from a settled course of business between tbe parties, or be ■established by tbe proof of a custom; or that tbe bolder, should, for bis negligent failure to regard it, be deprived of rights which be would -otherwise be entitled to demand. No court has been more reluctant than this to allow local customs to interfere with the general principles of law; but to a certain extent, and witbin certain limits, it be■comes absolutely necessary to enforce them, or to disregard tbe implied conditions and understandings upon which parties have dealt. To allow them to operate against third persons, who can not be shown to have bad any knowledge of their existence, is one thing; and to hold tbe immediate parties to the controversy bound by a •course of business upon which they have uniformly acted, or one ■embarked in *a particular business, at a place where it has been found necessary to its safe or convenient prosecution, that a general custom should be observed, under obligations to conform to' it, is quite another. Every one engaged in a business, undertakes to bring to it a competent knowledge of its rules and principles; and those who deal with him, have a right to rely upon his having regarded them.

The custom which the plaintiff sought to establish, seems to have been one of the most reasonable character. It is a great error to’ suppose that the drawee of a bill or check is bound to rely alone upon his knowledge of the handwriting of his customer or correspondent. The testimony in the case, as well as every day’s experience, shows this alone to be an insufficient security, when dealing with strangers and in large amounts, against the ingenuity with which forgeries are now committed. The next most effective precaution is that of requiring the holder to furnish some reliable information of himself, and of his right to the paper. But when another bank intervenes and takes the check, this can not be resorted to by the drawee. As between the banks, therefore, the observance of the custom becomes a matter of mutual protection, and saves to the drawee the benefit of this precaution. While the bank taking the check, by its exercise, is consulting its own security, as well as that of the bank upon which it purports to be drawn, it gets a full remuneration for its care, in the reciprocity afforded in relation to checks drawn upon itself and taken in like manner.

When the defendants purchased this check, they knew full well that it deprived the plaintiffs of the ability to make this part of the investigation, and that it would be paid to them without any examination whatever; and if the custom really exists, they must have known equally well that, in afterward passing upon the genuineness of the paper, the plaintiffs would have a right to rely, as an important element in forming a conclusion, upon the supposition that the defendants had made the investigation, and were ^satisfied with the result. And, while it may be very true that they did not warrant the genuineness of the checks, in the package which they presented for payment, yet, in the event siipposed, they did what, was 'equivalent to affirming — that they had checks for the amount they asked, received from persons either known to them, or of whose identity and honesty they were satisfactorily informed.

But the short answer to all this made by counsel for the defendants, and adopted in the Superior Court, is that negligence alone, however gross, and however injurious to the plaintiffs, can not affect the defendants; that “unless they have been proved to be complicated with the fraud by which the plaintiffs have suffered, they can not be held to refund the amount that has been paid to them.” And they very correctly say that there was no proof of any such fraud or complicity in the forgery. This position is grounded upon the authority of several recent English decisions in relation to the' proof necessary to "impeach the title of a holder of negotiable paper, in conflict with many earlier cases in that country.

Gill v. Cubitt, 3 B. & C. 466, was the case of an accepted bill, which had been stolen, and was afterward discounted by the plaintiff (a bill-broker), without knowing the name of the holder, though his features seemed familiar, and without asking any questions as to his right to the bill. C. J. Abbott left to the jury the question, “ whether the plaintiff took the bill under circumstances which ought to have excited the suspicion of a prudent and careful man ? ” And he put to them this very significant inquiry, what they would think of a sign like this : “ Bills discounted for persons whose features are familiar, and no questions ashed.” The defendant had a verdict, and the court refused to disturb it. This decision was followed in several subsequent cases, until at length, in Crook v. Jadis, 5 B. & Ad. 911, which was also the case of an accepted bill, fraudulently put in circulation, Lord Denman told the jury to find for the ^plaintiff, “ if they thought he had not been guilty of gross negligence in taking the bill; ” and his ruling was sustained by the whole court. This case, again, governed several others, until, in Goodman v. Harvey, 4 Ad. & Ell. 870, Lord Denman .and his associates took another step, and held that “gross negligence only could not be a sufficient answer, where the party has given consideration for the bill. Gross negligence may be evidence of mala fldes, but is-not the same thing,” And they add, “ We have shaken off the last-remnant of the contrary doctrine.”

It is not a little remarkable, if these cases can properly have so-commanding an influence upon the question before ns, that they' should not have been alluded to, either by the court or counsel, in any of the cases to which we have referred. They present an important question, and, when it shall properly arise, one which will deserve careful attention ; but, in the decision of this case, we regard it alike immaterial, whether the rule of Lord Tentorden, or the first impression, or “ sober second thought ” of Lord Denman,, is adopted. They were all actions brought upon genuine bills,, either lost, or fraudulently negotiated; and the rule which; governed them all, has its foundation in that public policy which' fosters the circulation of bills, as a medium of exchange, answering the purposes of currency. But the law has shown no such anxiety to facilitate the circulation of forgeries. On the contrary, however innocent and careful the holder may have been, if he is obliged to trace his title through a forgery, the instrument is a nullity in his hands. Before any encomiums can properly be passed upon the peculiar and happy adaptation of the bill of exchange for circulation, or any foundation can be laid for insisting that the title of the holder shall not be affected by anything that may have attended its private history before reaching his hands, a bill must exist, of which title may be predicated, and to which such considerations may be referred. We do not say that every name appearing upon it must be genuine; but there must at least, either at its inception, *or coming upon it afterward and impliedly warranting the previous signatures, be some one liable to pay it before it acquires the character of a bill, in any respect or for any purpose. The rule insisted upon, is a rule alone applicable to the protection of legal titles, and to the instruments by which such titles may be acquired, .and to no other. What title did the defendants get when they took the paper appearing in this case ? Certainly none. It was as perfect a nullity as though no word had been written upon it. No one .appeared to be liable upon it but the drawers, and their names were forged. Even the felon, although liable for his fraud, was not liable as a party to the paper. With exactly the same propriety could a plea of purchase, for a valuable consideration without notice, be .sustained upon a forged deed, as this rule applied to a paper of that -description.

If the defendants are entitled to retain the money, it is upon a different principle, resting upon different considerations, and with other and different objects. Confessing the nullity of the paper as ■a muniment of title, they must stand upon their interest, to know it at the earliest moment, and their right to exact the information from the plaintiffs, when it was presented for payment. The negligent omission of the plaintiffs to discharge this duty, resulting in injury to the defendants, lies at the very foundation of the rule, which subjects them to the loss and allows the defendants to retain the money. But it would indeed be singular, if the one party could be visited with consequences so severe, upon the mere legal imputation of negligence and -injury, and the other stand wholly unaffected for their negligence, however gross and injurious it might, have been; As was said in the Bank of Commerce v. The Union Bank, “ the plaintiffs’ right of recovery rests on equitable grounds and, in our opinion, they place themselves upon the highest equitable ground for a return of the money, when they show it was theirs, that they parted with it by mistake and without consideration, upon a forged instrument which the defendants, by their negligent disregard of duty, *had contributed to induce them to act upon as genuine. In the forum of conscience, it is true, there may be a wide difference between intentional injuries and those arising from negligence. But no man operates quite as absolutely in this world as though he was the only man in it; and the very existence of society depends upon compelling every one to pay a proper regard to the rights and interests of others. The law, therefore, proeeedingupon the soundest principles of morality and public policy j has adapted a large number.of its rules and remedies to the enforcement of this duty. In almost every department of active life, rights are in this manner daily lost and acquired, and we know of no reason for making the commercial classes an exception.

The necessity for care and caution on the part of those who use bills and checks, to prevent injury to those upon whom they are drawn, is strikingly illustrated in another class of cases, which turned upon a principle very analogous to the one that we have applied to this. As a general proposition, it is perfectly well settled that payment upon a forged check or order can not be charged by the party paying, against the party purporting to have drawn the* paper; but the latter will be entitled to recover the money intrusted to the former, however innocently or with whatever caution the payment may have been made. Hall v. Fuller, 5 B. & C. 750; Johnson v. Windle, 3 Bing. N. C. 225; Roberts v. Tucker, 12 Q. B. 560.

But yet, in Young v. Grote, 4 Bing. 253, where the customer had intrusted his wife to fill up checks in his absence, and this had been' so inartificially and carelessly done, as to be easily changed from £50 to £350, the banker was held entitled to a credit for the larger sum. In the very recent case of Orr v. The Union Bank of Scotland, in the House of Lords (29 Eng. Law & Eq. 1), Lord Chancellor Cranworth, in speaking of the general rule, and of the exception, ingrafted upon it by this case, says: “ The decision went on the ground that it was the fault of the customer; the bank had been deceived. The ^principle is a sound one, that when the customer’s neglect of due caution has caused his bankers to make a •payment on a forged order, he shall not set up against them the invalidity of a document which he has induced them to act on as genuine.”

We have thus, at much greater length than was intended at the •outset, stated our views of this case. We have nowhere doubted the wisdom or policy of the rule, which allows an innocent holder to require the drawee to pass upon the signature of the drawer, and makes him responsible for the decision he makes ; nor the justice of permitting the former to retain the money received upon a forgery, when some one must suffer by the mistake. But we must be better informed than at present, before we shall be able to perceive the justice or propriety of permitting a holder to profit by a mistake which his own negligent disregard of duty has contributed to induce the drawee to commit.

Should the plaintiffs be ultimately able to satisfy a jury of the .-state of facts which their evidence before conduced to prove, they would, in our opinion, have established a clear right to recover.

Judgment reversed and cause remanded.

Thurman, C. J., and Swan, J., dissented.


source: Caselaw Access Project

author: Kennon, J.

license: Public Domain

text:
    *Hiram Gregory v. Cleveland, Columbus and Cincinnati Railroad Company.
    Where two of the judges of the court of common pleas are interested in the event of a proceeding to appropriate land to the use of a railroad, and that fact appears in the record, and there is no evidence that the landholder waived his objection to the court, the order of such court, appointing appraisers and directing a warrant, will be reversed.
    Certiorari to the district court of Union county.
    The case is stated in the opinion of the court.

      Bweetzer <& Reid, for plaintiff.

      8. Finch, for defendant.
   Kennon, J.

The Cleveland, Columbus and Cincinnati Railroad Company, in 1849, sought to appropriate a part of the plaintiff’s land for the use of the road. The instrument of writing appropriating the land, was filed in the clerk’s office of the court of common pleas of Delaware county, a copy served on Gregory, and a petition filed asking M. L. Griffin, one of the associate judges of the court, to appoint three disinterested freeholders, resident of the county, appraisers, to ascertain the amount of damage which Gregory ought to receive according to the statute then in force.

The associate judge appointed the appraisers, who made the ap-* praisement, found the damages and benefits equal, and made their return accordingly. Application was afterward made to the court to set aside the appraisement and proceedings, for reasons assigned in the motion. The proceedings were set aside, and the court of common pleas appointed three other commissioners, and by warrant under the seal of the court, required them *to make the proper appraisement. In August, 1849, these commissioners made their return, assessing the defendant’s damage at $205, and tbe benefits conferred on the defendant by the road at the sum of $145, making the difference between the damages and benefits $60, to be paid by the company. A motion was made by Gregory to set aside this report for several reasons; one of which was, that two of the judges of the court of common pleaB, which appointed the appraisers or commissioners, were stockholders in the railroad cornpany. The court refused to set aside the report, but made a journal entry that two of their members were, at the time of making the appointment of the appraisers, and still were, stockholders in the company, and interested in the matter in controversy, and, under the statute, certified the case to the court of common pleas of Union county. A motion was made in the court of common pleas of Union county to set aside the report, for the same and additional reasons; but the court overruled the motion, and confirmed the report of the commissioners. The case was then taken by Gregory, on certiorari, to the district court of Union county. The district court reversed the order of the court of common pleas of Union county, and remanded the case to the court of common pleas of Union county for further proceedings. The case is brought into this court on certiorari to the district court by the railroad company, for the purpose of reversing the order of the district court.

The error assigned by the company is, that the district court erred in reversing the order of the court of common pleas of Union county confirming the report of commissioners.

If the court of common pleas of Union county erred in confirming the report of the commissioners and the action of the court of common pleas of Delaware county, then there is no error in the order of the district court.

Is there any error in the ruling of the court of common pleas of Union county?

*lt is claimed that the court of common pleas of Union county ought to have set aside the report of the commissioners and the whole proceeedings, for various causes, which we do not consider it necessary to state, particularly as we find one cause for which, we think, the order of the common pleas should be set aside, and therefore the judgment of the district court affirmed.

It appears from the record, that two of the judges of the court of common pleas of Delaware county were stockholders in the railroad company, at the time of the commencement of the proceedings, and still were, at the time the case was transferred to Union county court. They were interested parties in the whole proceedings ; and the question presented is, whether they could make an order, touching the merits of the case, which could not be reversed, when no error appeared in the order itself? Is the mere fact that they were interested, a sufficient ground upon which to reverse the judgment ? The district court so held. Did that court err in so holding? No man should be judge in his own cause, is a very common and true saying. If an interested court had nothing to decide but pure questions of law, and if those questions could all be clearly saved, so as to be' presented to a higher court, there might not be so much objection to such judges sitting in their own cases, because, if they erred, there might be a remedy to correct their errors. It sometimes, however, happens that there is great difficulty in getting correct bills of exceptions taken before disinterested judges, and there might be much greater before interested judges. In this proceeding, however, the court have the power, not only to decide the law questions arising in this case, but the statute confers on the court, and upon the court only, the power of selecting the men who shall decide the facts in the case, who determine how much benefit the road will be to the landholder, and how much damages he will sustain by the appropriation of the land — questions upon which men are likely to differ very much, some supposing that a railroad would be of great advantage to the person through whose Hand the road passes, and others that it would be an intolerable nuisance; the amount, if any, which the landholder receives depending entirely upon the preconceived opinions of men as to the utility of such road, and, consequently, the increased or diminished value of the land through which the road passes. There are few subjects upon which men are more likely to differ in opinion, -and few cases in which an interested judge, in the mere selection of the commissioners, could (if he chose to do só) more effectually injure the landholder, and that, too, without redress, if his judgment could not be reversed without showing actual error in the proceedings.

In the case of George A Pearson v. John Atwood, found in 13 Mass. 324, the interest of judges is discussed by Chief Justice Parker. The plaintiff brought an action of trespass against the defendant, for arresting the plaintiff, on a warrant held by the defendant as constable.

It appeared that a justice of the peace had issued a warrant to the defendant to arrest the plaintiff for a violation of the Sabbath day; that, by the laws of Massachusetts, a moiety of the fine went to the town in which the justice resided, and that, therefore, he was interested. And, although the court did not find it necessary, in the case, to hold the act of the justice wholly void, yet the chief justice, in commenting on the law, says: It is very certain that, by the principles of natural justice and of the common law, no man can lawfully sit as judge in a case in which he may have a pecuniary interest. Nor does it make any difference how small the interest is. Any interest, however small, has been held sufficient to render a judge incompetent. The only exception known to this broad and general rule, exists where there may be a necessity that the judge should act in order to prevent a failure of justice.” After reciting the opinion of Lord Mansfield, in the case of Hestruph v. Braddock, upon the subject of the interest of witnesses and juries, Chief Justice Parsons says : “It is true he does not comprehend a judge within *his general exclusion on account of interest, but there can be no doubt that the principle applies, with equal strength, to them ; and we think, for this cause, any judgment rendered by a justice thus circumstanced, might be defeated; but as the interest of a justice who issues a warrant, may be latent and unknown to the officer who is called upon to servo it, we are not prepared to say he may not be protected from damages.”

No authority is cited by counsel bearing directly upon this point, and few can be found; and for the reason, that in but few cases do interested judges ever pretend to sit in such cases.

We think, for the administration of justice, the safe way is, in all cases, for interested judges to decline acting in such eases; and where it appears, on the record, that they were interested, and acted on questions of fact, and especially when they were to select the jury who try the facts, they should refuse to sit, and make known their interest at the earliest stage of the proceedings, that the case may, under our statute, be transferred to an adjoining county. In this case, the court appointed the appraisers and received their report, and did not, on motion, set the same aside; nor did the court of common pleas of Union county. We think the whole proceedings, after the issuing of the warrant, are erroneous, and ought to have been set aside; that the court of common pleas of Delaware county ought to have retraced its steps, and set aside the report of the commissioners, and that the court of common pleas of Union county erred in not doing so, and that, for this cause, the district court was right in reversing the order of that court.

The judgment of the district court is therefore affirmed, with costs.