John Hortsman, Plaintiff in error, v. John Henshaw, William Ward, and Joseph W. Ward, Merchants and Copartners, doing business under the Firm and Style of Henshaw Ward, & Co., Defendants in error, 11 How. 177

Mr. Chief Justice TANEY delivered the opinion of the court.. The material facts in this case may be stated in a few words. Fiske & Bradford, a mercantile firm in Boston, drew their bill of exchangé. upon Hortsman of London, payable at sixty days’ sight to the order of Fiske & Bridge, for six hundred and forty-two pounds-sterling. The drawers, or one of them, placed the bill in the hands of a broker, with the names of the payees indorsed upon it, to be negotiated; and it was sold to the de-. fendants in error bom fide and for full value.

They transmitted it to their correspondent in London, and upon presentation it was accepted by the drawee, and duly paid at maturity. The payees and indorsees all resided in Boston, where the bill was drawn and negotiated. It turned out that the indorsement of the payees was forged; — by whom does not appear; and a few months after the bill was paid, the drawers failed and became insolvent. The drawee, having discovered the forgery, brought this action against the defendants in error to recover back the money he had paid them.

The precise question which, this case presents does not appear to have arisen in the English courts; nor in any of the courts of this country with the exception of a single case, to which we shall hereafter more particularly refer. But the established principles of commercial law in relation to bills of exchange leave no difficulty in deciding the question. The general rule undoubtedly, is, that the drawee by accepting the bill admits- the handwriting of the drawer; but not of the indorsers.

And the holder is bound to know that the previous indorsements, including that of the payee, are in the handwriting of the parties whose ñajn'es appear upon the bill, or were duly authorized by them. And if it should appear that one of them is forged, he cannot recover against the acceptor, although the forged name was on the bill at the time of the acceptance. And if he has received the money from the acceptor, and the forgery is afterwards discovered, he will be compelled to repay it. The reason of the rule is obvious.

A forged indorsement cannot transfer any interest in the bill, and the holder therefore has no right to demand the money. If the bill is dishonored by the drawee, the' drawer is not responsible. And if the drawee pays it to a person not authorized to receive the money, he cannot claim credit for it in his account with the drawer. But in this case the bill was put in circulation .by the drawers, with the names of the payees indorsed upon it. And by doing so they must be understood as affirming that the indorsement is in the handwriting of the payees, or written by their authority.

And if the drawee had dishonored the bill, the indorser would undoubtedly have been entitled to recover from -the drawer. The drawers must be equally liable to the acceptor who paid the bill. For having admitted the handwriting of ithe payees, and precluded themselves from disputing it,'the bill ;-'Was paid by the acceptor to the persons authorized to receive the money, according to the drawer’s own order. ^ Now the acceptor of a bill is presumed to accept upon funds .of the drawer in his hands, and he is precluded by his acceptance from averring the contrary in a suit brought against him by the holder.

The rights of the parties are therefore to be determined as if this bill was paid by Hortsman out of the money of Fiske & Bradford in his hands. And as Fiske & Bradford were liable to the defendants in error, they are entitled to retain the money they have thus received. We take the rule to be this. Whenever the drawer is liable to the holder, the acceptor is entitled to a credit if he pays the money; and he is bound to pay upon his acceptance, when the payment will entitle him to a credit in his account with the drawer.

And if he accepts without funds, upon the credit of the drawer, he must look to him for indemnity, and cannot upon that ground defend himself against a bona fide indorsee. The insolvency of the drawer can make no difference in the rights and legal liabilities of the parties. The English cases most analogous to this are those in which the names of the drawers or payees were fictitious, and the indorsement written by the maker of the bill.

And in such cases it has been held that the acceptor is liable, although, as the payees were fictitious persons, their handwriting of course could not be proved by the holder. 10 Barn. & Cres. 478. The American case to which we referred is that of Meachim v. Fort, 3 Hill, (S. C.) 227. The same question now before the court arose in that case, and was decided in conformity with this opinion.

Another question was raised in the argument upon the sufficiency of the notice; and it was insisted by the counsel for the defendants, that, if they could have been made liable to .this action by the plaintiff, they have been discharged by his laches in ascertaining the forgery and giving them notice of it. But it is not necessary to examine this question, as the point already decided decides the case. ■ The judgment of the Circuit Court is affirmed, with costs. Order.

This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the District of Massachusetts, and was argued by counsel. On consideration whereof, it is now here ordered and adjudged by this court, that the judgment of the said Circuit Court in this cause be, and the same is hereby, affirmed with costs.