Page:Federal Reporter, 1st Series, Volume 6.djvu/865

 UNITED STATES. V. NATIONAL PAEK BANK OF N. T. 853 �assistant treasurer at New York for the sum of $100, paya- ble to the order of Duolap. . The defendant received the draft from another bank for collection, indorsed in the name of Dunlap, and also indorsed by such other bank. Without indorsing the draft, the defendant presented it to the assist- ant treasurer in New York, and received the $100, on the sixteenth of March, 1869, and immediately thereafter allowed it asa credit in its account with the bank from which it was received. The indorsement of Dunlap's name w^as a forgery, This ,is a elear case of payment under a mutual mistake of facti lit is claimed, however, for the defendant that the plaicitiff cannot recover on account of its negligence iii iii4 formiog -tho defendant of the forgery after its discovery 'that the. indorsement was forged. It is claimed; tkat the plaintiflf djiscoyered the forgery when Dunlap made another applica» t^Oii.foi the bounty, which he didoathe tWenty-fourthi of< Pebruary, 1879, and that no infomiation of the forgery waS^ communicated by the plaintif tb the defendant till .Pebruaryi. 3; 1880^. It is.not alleged in: the auswer, nor is theirean.;^.» proof, that: the defendant has.suffered,any loss or daEiage''Jby< reason of this delay, or lost any remedy over against;th&. partyifrora whom it; received the draft and to whom itpaid the money<. But it is contended that such delay is ieselt negligence of such & charaeter : that loss or damage will be, presumed to have resulted from it. I think this ipoint is not' ^stained, either ;by authority or the reason of the fhingi money thus paid under a mistake of fact is recoverable, be-' cause it is paid vnthout any actual consideration, and can-: Bot equitably be retained. The ruie is equitable, and may be defeated where to allow the recovery would be inequitable. Negligence in the transaction, unattended with any loss or harm resulting from such negligence to the other party, surely does not impair the equity of the claim against him. Such negligence does not touoh the reason of the rule allow- ing the recovery* If that negligence consists in delay in making the reclamation, with, what justice oan the party to whom the payment was made say that though he received the money under a mistake of fact, and was bound to retum ��� �