302 HARVARD LAW REVIEW. But the attitude of the holder of a bill who presents it for payment is altogether different from that of a vendor. The holder is not a bargainor. By presentment for payment he does not assert, ex- pressly or by implication, that the bill is his or that it is genuine. He, in effect, says: "Here is a bill, which has come to me, calling by its tenor for payment by you. I accordingly present it to you for payment, that I may either get the money, or protest it for non- payment." Mr. Justice Chambre's statement, that the holder war- rants the genuineness of the bill by presenting it, was expressly repudiated by Littledale and Bayley, JJ., in E. I. Co. v. Tritton.^ The notion, that the holder's indorsement of his name on the bill at the time of payment is a warranty of the genuineness of the bill, although not without judicial sanction,^ should be strenuously re- sisted. The so-called indorsement is not an indorsement at all, but simply a receipt of payment.^ Wherever Price v. Neal is recognized as law, we should expect to find that one who paid a bill or note on which his own name was forged could not recover the money from an innocent holder for value. The authorities, with a single exception, permit the holder to retain the money."* In order to test the soundness of the principle upon which Lord ^ 3 B. & C. 289, 290-1. See to the same effect Wilkinson v. Johnston, 3 B. & C. 428, 436; Bemheimer v. Marshall, 2 Minn. 78, 84; Bank of St. Albans v. Farmers' Bank, 10 Vt. 141, 146-7. The distinction between a sale and a payment of a bill is pointedly taken in Corn Bank v. Nassau, 91 N. Y. 74, 80. ^ Nat. Bank v. Bangs, 106 Mass. 441 ; People's Bank v. Franklin Bank, 88 Tenn. 299. ' See Story, Prom. Notes (7th ed.), 526, n. 5.
- Mather v. Maidstone, 18 C. B. 273; Young v. Lehman, 63 Ala. 519, 523; Tyler
V. Bailey, 71 111. 34, 37; Allen v. Sharpe, 37 Ind. 67, 73; Third Bank v. Allen, 59 Mo. 310, 315; Lewis v. White's Bank, 27 Hun, 396; Johnston v. Bank, 27 W. Va. 343; Banca Nazionale v. Giacobini, Cassaz. di Torino (1871), cited in Famone, II Codice Civile, 454-5; 2 Pardessus, Cours de Dr. Comm. (3d ed.), § 505; 2 Bedar- ride, Lettre de Change (2d ed.), § 380. See also Bank of U. S. v. Bank of Ga., 10 Wheat. 2)Z2) Cook v. U. S., 91 U. S. 389, 396-7-; Gloucester Bank v. Salem Bank, 17 Mass. Tf2>- The exceptional case contra^ Welch v. Goodwin, 123 Mass. 71, is not to be supported. It was decided almost wholly upon the authority of Carpenter v. North- borough Bank, 123 Mass. 66, which was a totally dififerent case. In this last case, the plaintiff made a note payable to A, and gave it to B for the latter's accommodation, upon the understanding that A should also indorse for B's accommodation. B forged A's name as indorser and discounted the note with the defendant, to whom the plain- tiff paid it when due. The title of the note obviously never passed from the plaintifif. The defendant, therefore, obtaining the money by the wrongful use of the plaintiff's property, must hold the money as a constructive trustee for the plaintiff, who accord- ingly rightly recovered it from the defendant. Talbot v. Rochester Bank, i Hill, 295; Arnold v. Cheque Bank, i C. P. D. 57S, were similar cases.
