THE DOCTRINE OF PRICE v. NEAL, 309 seems specious, rather than sound. From the point of view of natural justice, the time of the loss is immaterial/ If one looks at the fraudulent transaction in its entirety, the equality of the equities be- tween the holder and the drawee is just as obvious as the equality of the equities between the purchaser and the equitable incum- brancer. One or two additional illustrations may be put : — A creditor seUs his claim to A, and afterwards, concealing this sale, sells the claim to B, who in good faith collects it of the debtor. B paid his money for nothing, but surely he ought to be allowed to keep what he has collected, although received after he suffered his loss, and although the loss is thereby thrown on the equally innocent A.^ Again: A third mortgagee buys the first mortgage in ignorance of the second. The second mortgagee, in justice, cannot prevent the third from tacking his two mortgages, although the second is thereby squeezed out." ^ Another example is found in the singular case of London Bank V. London Co.* Some negotiable bonds were stolen from the de- fendant's box and sold to the plaintiff, a bona fide purchaser. The thief, fearing detection, afterwards, by fraud, got them again from the plaintiff and replaced them in the box of the defendant, who did not learn till later of the theft or replacement of the bonds. The ^ If, for instance, the money paid by the drawee to the holder should by mistake be repaid to the drawee, the latter could keep it. This happened in Second Bank v. Western Bank, 51 Md. 128, where the loss first fell on the holder, who bought a bill drawn with- out funds ; the loss was then thrown upon the drawee by the latter's paying the bill by mistake ; but was finally cast upon the holder by his mistake in refunding to the drawee. ^ In Judson v. Corcoran, 17 How. 612, Catron, J., said, p. 614: The case is one where an equity was successively assigned in a chose in action to two innocent persons, whose equities are equal, according to the moral rule governing a court of chancery. Here C. [the junior assignee] has drawn to his equity a legal title to the fund, which legal title J seeks to set aside. . . . Now, nothing is better settled than that this can- not be done. The equities being equal, the law must prevail." See to the same effect Mercantile Co. v. Corcoran, i Gray, 75; 40 Seuffert's Archiv, No. 103; 13 id. No. 246; 24 id. No. 234; 31 id. No. 27; 3 Stobbe, Handbuch d. deutschen Privatrechts, 181; Knorr, 42 Archiv fiir die Civilistische Praxis, 318. In Germany, as generally in the United States, the mere fact, that the second assignee first notifies the debtor of his assignment, does not defeat the precedence of the first assignee ; but in France, as in England, priority of notice determines the rights of successive assignees. ' A wider generalization has convinced the writer that his opinion to the contrary in I Harv. L. Rev. 15 is erroneous. But the English doctrine, which permits tacking by the third mortgagee, even when he has notice of the second mortgage, as in Taylor v. Russell (1891), I Ch. 8, seems as indefensible as ever. Such a case is hardly to be dis- tinguished from the cases where the holder of a bill collects it with knowledge that it is forged, or drawn without funds, and that the drawee is acting under a mistake. Supra, p. 301, n. 2. - * 21 Q. B. Div. 535.
