THE DOCTRINE OF PRICE v. NEAL. 301 own negligent disregard of duty has contributed to induce the drawee to commit.^ So, also, a holder who acquired the bill in good faith and with due care, but afterwards discovered or suspected the forgery, could not honestly collect the bill, and if he should collect it, would be bound to refund the money.^ The generally received rule, that the drawee pays or accepts a forged bill at his peril, has nevertheless been assailed by the dis- tinguished author of a very successful book. Mr. Daniel, in his treatise on Negotiable Paper,^ maintains that a drawee, who pays or accepts a forged bill, should be permitted to recover the money paid or to resist his acceptance, for the reason that the holder, who presents a bill to the drawee for payment or acceptance, "represents, in effect, to the drawee, that he holds the bill of the drawer, and demands its acceptance or payment, as such. If he indorses it, he warrants its genuineness; and his own assertion of ownership is a warranty of genuineness in itself." But, with all deference, this criticism, and the similar criticism of Mr. Justice Chambre in his dissenting opinion in Smith v. Mercer,^ spring from a false analogy. One who transfers a bill or any chattel, whether by way of sale or in payment of a debt, does indeed rep- resent that the thing sold or exchanged is his, and also what it purports to be. To use the common expression, he impliedly warrants his title and the genuineness of the thing transferred. Accordingly, if it is not genuine, the vendee may recover his pur- chase-money, or the creditor may treat his debt as still unpaid.^ ^ Ellis V. Ohio Co., 4 Oh. St. 628, 668. See to the same effect Nat. Bank v. Bangs, 106 Mass. 441 ; Danvers Bank v. Salem Bank, 151 Mass. 280; People's Bank v. Frank- lin Bank, 88 Tenn. 299; Rouvant v. San Antonio Bank, 63 Tex. 610. The French law is the same. 2 Pardessus, Cours de Droit Comm. (3 ed.) § 505; 2 Bedarride, Lettre de Change (2 ed.), § 377. But see contra, Howard v. Mississippi Bank, 28 La. An. 727; Comm. Bank v. First Bank, 30 Md. 11; Salt Bank v. Syracuse Inst., 62 Barb. loi; St. Albans Bank v. Farmers' Bank, 10 Vt. 141. It would not be surprising if these last four cases should not be followed even in the jurisdictions in which they were decided. "^ First Bank v. Ricker, 71 111. 439; Nat. Bk. v. Bangs, 106 Mass. 441, 444-5. For like decisions in analogous cases see Martin v. Morgan, 3 Moore, 635; City Bank V. Burns, 68 Ala. 267 (semble) ; Peterson v. Union Bank, 52 Pa. 206. See also Whistler V. Foster, 14 C. B. N. s. 340. 3 Vol. II. (3d ed.) § 1361.
- 6 Taunt. 76.
^ Jones V. Ryde, 5 Taunt. 488; Young v. Cole, 3 Bing. N. C. .724; Gurney v. Womersley, 4 E. & B. 133; 2 Ames, Cas. B. & N. 242, n. i, 633, n. i.
