Daily capital journal. (Salem, Oregon) 1903-1919, 1911-08-12

is certified by the bank on which 1t
is drawn, the certification is equiva-
lent to an acceptance"
L. o. L. Sec. 6021. Where the
holder of a check procures it TO be
accepted or certified, the drawer and
all indorsers are discharged from
liability thereon"
L. o. L. Sec 6O25. In any case
not provided for in this act the rules
of the law merchant shall govern"
When the defendant bank, which
was a holder in due course, present
ed these checks to the plaintiff bank.
the drawee and they were honored,
accepted and paid, the prior indors-
ers were thereby discharged from
further liability. The checks when
so paid had run their course; they
were no longer checks within the
meaning of the negotiable instru-
ments law but only cancelled vouch-
ers, and the plaintiff was not a hold
er thereof in due course st. Louis
Bank V. German American Bank, 127
S. W. (Mo), 494; Riverside Bank V.
Shenandoah Bank, "a Fed, 276; Neal
". Coburn, 80 Mo-, 139; Farmers &
Merchants Bank V. Rutherford Bank.
lis Tenn, g. The payment of
bill or check by the drawee amounts
to more than an acceptance. The
rule, holding that such a payment
has all the efficacy of an acceptance,
is founded upon the principle that
the greater includes the less. Bank
". Bank, 125 S, W., 513; Neal V. CO.
burn, supra. In Bank Bank, 109
Mo. App. ,665, Mr.. Justice Broaddus,
answering the argument that abso-
lutte payment was not an acceptance,
said: "An acceptance binds the ac-
ceptor to pay the bill, and he cannot
be heard to deny that he has funds
in his hands for the purpose. A pay
ment of the bill is more than accept
ance, for the one is an obligation to
pay; the other discharge of the in
debtedness represented by such bill.
If the one concludes the drawee, it
is inconceivable why the other would
not" Under the provision in Sec
6O21, L. o. L., that where the holder
of check procures it to be accepted
or certified the indorsers are dis
charged from liability, the plaintiff,
when it paid the checks in question,
precluded itself from setting up that
the check was forgery on any want
of authority of the person affiXing
the signature it purported to bear,
within the meaning of Sec. 1856, L.
o. L. The following cases, in which
the negotiable instruments law is ap-
nil vic nh Nf
Com. V. Mech. Nat. Bank, 127 S. w.
(Mo), 429; Title Guarantee & T. Co.
v. Haven, Ill N. Y. Sup, S05; Bank
of Rolla V. Salem Bank, 1875 S. W.
(Mo), 513; Farmers & Mer. Bank v.
Rutherford Bank, 115 Tenn, Ga. In
the case of Title Guarantee & T. Co.
V. Haven, supra, Mr.. Justice Ingra-
ham, in considering sections of the
negotiable instruments similar to
those quoted from our statute, con-
strued them as making it conclusive
that the note was genuine and all
prior Endorsements assured.
Under our negotiable instruments
law, as well as by the weight of judi
cial authority, we think that where a
bank, as the plaintiff, being the
drawee of a bill of exchange or
check drawn upon it by one of it's
depositors, pays the bill or check to
holder thereof in due course (as
the defendant, who has in no way
contributed to the fraud and is not
guilty of negligence in the matter)
and it is afterward ascertained that
the signature to the bill or check is
forgery, the bank making such pay
ment cannot recover the money from
such holder. A case of this kind Is
an exception to the general rule that
money paid under a mistake of fact
may be recovered.
There was no error in the iudg-
ment of the lower court, sustaining
the demurrer and it is affirmed.
Mr.. Chief Justice Eakin did not sit
in this case, and took no part in its
decision.
Some men discover that they have