566 HARVARD LAW REVIEW. ' RECENT CASES. Bills and Notes — Alteration — Payment. — The plaintiff certified a draft which had been raised from $76 to $7660, and subsequently paid it, having at the time of payment the means of knowing that the draft had been altered. Held, that the plaintiff is not entitled to recover the amount so paid. Continental Bank v. Trades- man's Bank, 55 N. Y. Sup. 545 (Sup. Ct., App. Div., First Uept.). The court declines to discuss the effect of the certification, but argues that the plain- tiff is not entitled to recover here in any event, having negligently paid the draft. But the mere fact that an acceptor negligently pays over money which the holder would otherwise be entitled to retain is not a sufficient reason for refusing to allow him to recover. Negligence in the mistaken payment of money is not necessarily a bar to recovery. AppUton Bank v. McGilvray, 4 Gray, 518. The decision might well have been placed upon the principle that, as between two innocent persons, one of whom must suffer, the legal title shall prevail. It must be admitted, however, that the Court could not consistently adopt this principle in view of the decisions which have allowed the drawee of a bill to recover where he has paid an altered bill without negligence, and which, however unsound in principle, seem to have established the law. Bank of Com- merce V. Union Bank, 3 N. Y. 234. Bills and Notes — Assignments — Indorsement. — Upon the back of a promis- sory note payable to his own order the defendant signed a writing which read : — "I hereby assign and transfer to F, all right, title, and interest that I may have in the within note." Held, that defendant is liable to a subsequent holder as an ordinary in- dorser. Citizen's Nat. Bank v. Walton, ■}^i S. E. Rep. 890 (Va.). It is held in a majority of the American jurisdictions, as in the principal case, that the holder of a negotiable instrument who writes upon it an assignment of all his inter- est incurs all the liabilities of an ordinary indorser. Markey v. Corey, 108 Mich. 184 ; Sears v. Lantz, 47 Iowa, 658. It is argued in these cases that since a mere signature of the holder upon the back of a negotiable instrument gi.ves to a subsequent rightful holder an authority to complete an indorsement in the name of such transferrer, a sig- nature with the added words of assignment can have no less effect. But this reasoning seems fallacious. The plain import of the language is that the transferrer shall stand in the position of an assignor merely. The words of assignment exclude any implica- tion of an authority to make him an indorser. A different construction subjects him to liabilities he has expressly indicated he did not intend to undertake. Upencer v. Halpem, 62 Ark. 595. , Bills and Notes — Forged Check — Payment by Drawee Bank. — Plaintiff bank, the drawee of a check, paid it to the defendant, an indorsee for value in due course. At the time both parties were ignorant of the forgery of the drawer's signal ure. Held, that the plaintiff cannot recover the money paid. First National Bank of Marshalltown. Marshalltown State Bank,. 77 N. W. Rep. 1045 (Iowa). The court considered the general doctrine that the drawee bank was precluded from recovery because it was conclusively presumed to know the signature of its depositors too narrow and placed their decision on the ground that present business conditions demanded the result reached. The principle was established in a case before Lord Mansfield. Price v. Neal, 3 Burr. 1354. His reasoning appears to discover the true ground of the doctrine. He argued that the defendant, having obtained the money should keep it unless it be against conscience for him to do so ; that such is not the case when he has given value for the instrument in good faith, and then there is no reason for shifting the loss from one innocent man to another. Whatever the reason- ing, the result of the principal case is law everywhere and it can be fully justified on the ground that as between equal equities the legal title should prevail. See 4 Harv. Law Rev. 297. Bills and Notes — Infancy of Maker. — Held, that an infant can be sued by the pavee on a note given for necessaries. Melton v. Katzenstein, 49 S. W. Rep. 173 (Tex., Civ. App.). The principal case has the support of the weight of authority in this country. Eirle V. Reed, 51 Mass. 387 ; Dubose v. Wheddon, 4 M'Cord, 221. The argument on the other side, however, seems sounder in principle. Even where an action is allowed against the infant on his contract for necessaries the prevailing rule restricts recovery to what the goods are reasonably worth. Earle v. Reed, supra. The result is an anomaly in procedure and indicates that the true nature of the infant's liability for necessaries is
