The Law of the Land. as was, in view of all the probabilities of the case, sufficient to protect the stamp from being improperly used. It is not unlawful for a man to have a rubber stamp by which a facsimile of his written signature may be affixed to papers. Nor is it so extraordinary a thing as to war rant a bank in presuming, without inquiry, that a depositor will not possess nor use such a stamp for any purpose. If the owner place it in the hands of a third person for the pur pose of affixing his signature to certain papers and he without authority use it to forge the signature of the owner to checks, it might well be argued that the bank honor ing the checks should not be responsible for the loss. In such a case there might be propriety in applying the maxim that where one of two innocent persons must suffer, he should suffer who by his own acts occasioned the confidence and loss. In the case supposed the loss would be traceable to the act of the owner of the stamp in the selection of the agent to use it. In the case in hand it was traceable, proximately, to the criminal act of a third person in the use of the stamp, and more remotely to his tortuous, if not criminal act in possessing himself of it against the will of the owner. In the former case there would be an element of negligence in the care of the stamp, while in the case in hand there is none. The rule that where one of two innocent persons must suffer loss that party who did the act that was the occasion of the loss ought to bear it may be extended so as to reach a reductio ad absurdum so far as it ap plies to the practical business of life. The doctrine of remote and proximate cause must govern in such cases. In determining what is proximate cause the true rule is that the injury must be the natural and probable consequences of the negligence, such a consequence as under the surrounding cir cumstances of the case might and ought to have been foreseen by the wrong doer as
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likely to flow from his act. To apply the maxim here would be carrying the principle too far. The production of the rubber stamp was a lawful act and the procurement and posses sion of it without notice to the bank did not relieve the latter from the liability for the amount paid out on the forged checks. An act which is in and by itself entirely lawful and which had no relation to the plaintiff's deposit in bank, did not impose upon the former the duty of notifying the latter of the performance of it and if such a duty was not created by the procurement of the stamp, the loss occasioned by the use of it in the perpetration of the forgeries did not necessarily fall upon him, provided he had taken proper precautions to prevent an un lawful appropriation or use of it. The other portion of the divided court were of the opinion that to hold the bank responsible put an additional burden upon the bank not resulting from the commercial contract between it and its depositors. When an account is opened at a bank by the deposit of money the depositor leaves his genuine signature with the banker for his guidance and protection in the payment of checks. When checks are presented bear ing this signature they must not be refused, but if the signature is a forgery, no matter how skillfully it is done or how difficult of detection, they must not be paid. The con tract which the commercial law raises upon a deposit of money with a banker, is that the deposit shall be paid out only to the depositor or his order. Payment upon a forged check is therefore no payment and in no way af fects the depositor. But if the depositor executes a check and for any reason leaves it on his- table where it is found by another who fills it up, presents it at bank and receives payment upon it, this is a good payment by the bank and the loss is that of the depositor, for the check was signed by him. If instead of leaving his check upon the table the drawer had
