Page:Federal Reporter, 1st Series, Volume 6.djvu/866

 85,4 FBDEBAL BEPOBTEB. �it ayear ago, and eould not justly or equitably keep it then^ beoause it did not belong to him; yet, now that the party paying bas neglected to let him know of bis claim after dis- covery of the mistake, he can justly and properly keep it ? Tbis would be absurd. The autborities are to tbis effect: that negligence in giving information of the mistake to the other party, with resulting loss of remedy over, is a defence, but otherwise not. The doctrine resta on the duty which the party paying o\res to the other to sbield him, as far as poss- ible, from loss or damage resulting from the mistake, when he discovers that it is sach. If the failure to perform that duty resulta in loss or damage to the other party, then it is^ inequitable that he should be obliged to refund. But if that negligence bas made no difference to him then it is imma- terial. See Kingston Bank v. EUinge, 40 N. Y. 391; Meyer V. The Mayor, 68 N. Y. 455; Pardee v. Fisk, 60 N. Y. 271; Union Bank v, Leath Nat. Bank, 43 N. Y. 456; Allen v. Fourth Nat. Bank, 59 N. Y. 19; Bank of Commerce v. Me- chantes' Banking Ass'n, 55 N. Y. 213; Continental Nat. Bank y. Nat. Bank Corn. 50 N. Y. 575. These cases, it is true, are mostly cases where the negligence imputed was in mak- ing the payment or in not discovering the mistake, but I think the reasoning on which they proceed applies with equal fprce to cases where the imputed negligence is in giving in- formation after discovery of the mistake. U. S. v. Union Nat. Bank, D. C, S. D. N. Y., April 24, 1879; 2 Parsons" Notes and Bills, 597. The rule declared in Price v. Neal, ^ Burr. 1354, which precludes recovery where the mistake con- sists in the erroneous admission as genuine, by acceptance or payment, of a draft where the signature of the drawer wa» forged, and the cases following it, are now regarded as excep- tions to the general rule that negligence in making the pay- ment, even where the matter mistaken was peculiarly within the plaintiff's knowledge, or one as to which he had a duty of inquiry^ unattended with damage, doea not defeat the action, Allen v. Fourth Nat. Bank, ut supra; and see Welch V. Goodwin, 123 Mass. 71. The cases cited by the del'endant's eounsel, where delay in giving notice thatmoney ��� �