Page:Harvard Law Review Volume 4.djvu/315

THE DOCTRINE OF PRICE v, NEAL. 299 know the drawer's signature. A conclusive presumption of the drawee's knowledge means simply that his ignorance, whether cul- pable or excusable, is an irrelevant fact. The question, therefore, immediately recurs: Why is the drawee's excusable ignorance an irrelevant fact ? * The holder's right to retain the money paid him by the drawee has sometimes been placed upon the ground, that, in consequence of the payment, he has lost the right of recourse against prior indorsers, which he would have had, in case the bill had been dis- honored. There seems to be great force in this argument. But, if the holder's right of retention were founded solely upon this argu- ment, it would follow that in cases where there were no prior in- dorsers, he would have to refund the money to the drawee. But the decisions show that the drawee pays at his peril in these cases also.^ The holder's right to retain the money must depend, there- fore, upon a more comprehensive principle than that of the loss of rights against prior indorsers. The true principle, it is submitted, upon which cases like Price V. Neal are to be Supported, is that far-reaching principle of natural justice, that as between two persons having equal equities, one of whom must suffer, the legal title shall prevail. The holder of the bill of exchange paid away his money when he bought it; the drawee parted with his money when he took up the bill. Each paid in the belief that the bill was genuine. In point of natural justice they are equally meritorious. But the holder has the legal title to the money. A court of equity (and the action of assumpsit for money had and received is, in substance, a bill in equity) cannot properly interfere to compel the holder to surrender his legal advantage. The same reasoning applies if the drawee has merely accepted the bill. The legal title to the acceptance is in the holder. A court of equity ought not to restrain the holder by injunction from enforcing his legal right, nor should a court of law permit the acceptor to defeat his acceptance by an equitable defence. Lord Mansfield, in Price v. Neal, considered, it is true, the ques- ^ If there were in truth any such conclusive presumption of the drawee's knowledge, a 'drawee who purchased instead of paying a forged bill ought not to recover his purchase- money; but a recovery is allowed. Fuller v. Smith, i C. & P. 197; Ry. & M. 49, s. c. ^ Howard v. Mississippi Bank, 28 La. An. 727; Commercial Bank v. First Bank, 30 Md. 11; Salt Bank v. Syracuse Inst., 62 Barb. loi; Levy v. U. S. Bank, i Binn. 27; Bank of St. Albans v. Farmers' Bank, 10 Vt. 141; Johnston v. Bank, 27 W. Va. 343.