The state

cause, and the original act of negligence the remote cause. ment of the principle is easier than its application. Each case must be governed by its own facts and circumstances, but, if the case comes clearly within the rule, the court should not hesitate to enforce it.

We have stated the rule, and have said that in our opinion Mrs. Pike comes within its general terms, but does not her case come under some of the exceptions or limitations to the rule which have been recognized by the courts? The intervening cause is not the proximate cause, unless the person acted of his own free will. The first cause does not cease to be the proximate cause if such intervening stranger is imbecile, or acts under compulsion, or under a sense of imminent peril; or, in other words, under such circumstances, produced by the first cause, as would give no opportunity for the exercise of free volition on the part of such stranger. Now, to my mind, there is no evidence going to prove that Mrs. Pike's act was not a strictly voluntary one. There is no evidence going to prove that her act was one of compulsion, or that she acted under the fear of imminent peril to herself, or that the circumstances were such as to destroy her power of volition. Each case must be controlled by its own circumstances. Upon the evidence it cannot be doubted that Mrs. Pike had every opportunity to escape. Neither the direction of the wind, nor the proximity of the fire, nor the dryness of the season, upon the plaintiff's own evidence, placed the intestate in peril for the time being. Instead of escaping from the danger, whatever it was, she voluntarily advanced towards it, going a distance of about 50 rods towards and into the place where the fire was burning. Her act may have been praiseworthy, but it was not the less voluntary, and it does not relieve her from the consequences which ensued. Mrs. Pike had no legal or equitable interest in this property, and consequently in this action her administrator cannot invoke the principle that it was her duty to approach the fire, and endeavor to put it out. Even in a supposed action brought by the owner of the property against the railroad company, for damage caused by fire, the failure of this lady, 72 years of age, though she was active and strong for her age, to voluntarily endeavor to put out a fire 30 or 40 rods distant from the dwelling, could hardly be urged as contributory negligence on the part of the owner of the property. In the present case, I can see nothing in the situation of Mrs. Pike towards the property which was on fire which called for the action she took.

The plaintiff's counsel in their argument have cited Page v. Bucksport, 64 Me. 51; Stickney v. Maidstone, 30 Vt. 738,—as supporting a right of recovery under the facts disclosed in this case. But these cases do not meet the present one. There the plaintiff was in duty bound to act as he did; besides, his act grew immediately out of and was a part of the original act of negligence. The plaintiff in those cases was acting under the immediate force of the first cause. What took place was but a single happening or event, which was directly and immediately occasioned by the first cause. There was no such element present, as in this case, of a party voluntarily and deliberately putting herself in a dangerous posiv.39F.no.4-17

tion, which did not result directly and immediately from the first cause. The plaintiff also relies upon Railway Co. v. Kellogg, 94 U. S. 469, but that case distinctly recognizes the doctrine of proximate cause, which the leading cases in this country and England have established. Mr. Justice STRONG in that opinion says:

"We do not say that even the natural and probable consequences of a wrongful act or omission are in all cases to be chargeable to the misfeasance or non-feasance. They are not when there is sufficient and independent cause operating between the wrong and the injury. In such a case the resort of the sufferer must be to the originator of the intermediate cause. But when there is no intermediate efficient cause the original wrong must be considered as reaching to the effect, and proximate to it. The inquiry must, therefore, always be whether there was any intermediate cause, disconnected from the primary fault, and self-operating, which produced the injury.”

I cannot hold that the Kellogg Case is an authority to the position taken by the plaintiff that the question of remote or proximate cause must, under all circumstances, be submitted to a jury for decision. If upon the facts presented there is any question as to what was the prox imate cause, then the case should go to the jury; but if the undisputed facts show, under well-established rules of law, what the proximate cause is, then manifestly the court should act accordingly. This position is recognized in the later case of Scheffer v. Railroad Co., 105 U. S. 249, where the supreme court held, as a matter of law, that the proximate cause of the suicide or death of the intestate was insanity, and that it was not due to the negligence of the company, whereby he suf fered an injury eight months before. In the time allowed me I have given such consideration as I was able to this motion. It has been my effort to discover, if possible, some question which could fairly be submitted to the jury in this case. The court should be clearly satisfied before granting a motion of this character, but, if so satisfied, it becomes just as clearly the duty of the court not to hesitate in granting

it. In revolving in my mind what charge to give to the jury, I did not see, under the evidence and the law, how I could frame one which would not substantially direct them to bring in a verdict for the defendant; and in the light I now have I do not see how, if the jury should find for the plaintiff, I could hesitate in setting the verdict aside on motion of the defendant. Such being the situation of the case, and such my views, I feel it my duty now, upon the close of the whole evidence, to direct the jury to return a verdict for the defendant.

UNITED STATES v. ONONDAGA COUNTY SAV. BANK.

(District Court, N. D. New York. July 5, 1889.)

1. NEGOTIABLE INSTRUMENTS-DRAFTS-INDORSEMENT.

False vouchers, purporting to be signed by W., (who was then dead.) and fraudulent affidavits and proofs in due form were presented to a pension agent of the United States, and he drew two drafts on the treasury in favor of W., the drafts having a notice on the back that the "payee's indorsement on this check must correspond with signature to the voucher for which the check was given. The drafts, with forged indorsements of W.'s name, were in good faith cashed by defendant, and by it indorsed and paid by plaintiff, the United States. Two years later plaintiff discovered the fraud, and within three days notified defendant, with a demand for the amount of the drafts, but refused to return the drafts to defendant when paid. Held, that plaintiff could recover the amount.

8. SAME-LIABILITY OF INDORSER-LACHES.

Plaintiff was not chargeable with negligence in not discovering the fraud immediately, nor in failing to discover the death of W. prior to issuing the Vouchers and drafts.

8. SAME-REPRESENTATIONS AS TO PAYEE.

There was no implied assertion, in the act of issuing the drafts, that the payee was living.

4. SAME-SPECIAL PROVISIONS.

The notice on the back of the drafts did not change the legal character of defendant's indorsement.

5. SAME RETURN OF DRAFT TO INDORSER.

Plaintiff was under no legal obligation to return the drafts to defendant on an offer of payment thereof by the latter.

At Law. On motion for new trial.

This is an action to recover money paid by plaintiff to defendants under a mistake of fact. On the 25th of July, 1882, a pension certificate was issued to Alma Wood, as mother of Elias A. Wood, who died in the war of the Rebellion. On the 3d of August false vouchers, purporting to be signed by Alma Wood, and accompanied by a fraudulent affidavit and certificate, were presented to the United States pension agent at Syracuse. On the same day the pension agent drew two drafts, for $1,000 and $924.80, respectively, upon the assistant treasurer of the United States, payable to the order of Alma Wood, and mailed them to her address at Constantia, N. Y. On the back of the drafts is the following indorsement:

"Payee's indorsement on this check must correspond with signature to the voucher for which the check was given. If the payee cannot write, his or her mark should be witnessed, and the witness state his or her residence in full."

Alma Wood died July 8, 1882. Her signature upon the vouchers and drafts was forged. On the 8th of August the drafts with the forged indorsements, and bearing also the indorsement of Sylvester Wood, the husband of Alma Wood, were presented at defendants' bank, and cashed by them. On one of the drafts appears an indorsement indicating that the signature of Alma Wood was identified by one John O'Brien, an attorney, who was interested in obtaining the pension, and who at the time

was a depositor in the bank. The money was paid to Sylvester Wood, who received $924.80 in cash, and was given credit on the books of the bank for the remaining $1,000. On the following day the drafts were paid at the sub-treasury to the defendants, having been indorsed by them. In the spring of 1884 the officers of the pension department discovered the forgery. The defendants were notified three days thereafter, and demands were made for a return of the money. The defendants offered to refund, provided the drafts were surrendered. This offer was declined. The defendants insist that the plaintiff was negligent in issuing the drafts after the pensioner's death, and that they had a right to rely upon the implied assertion that the payee of the drafts was a living person. They also insist that the publication of the notice upon the drafts operated to limit the effect of defendants' indorsement to that of a simple guaranty that the payee's signature on the drafts and on the receipt corresponded. It is further argued for the defendants that the plaintiff cannot recover because of the refusal to surrender the drafts which were necessary to enable them to collect from those responsible for the forgery. The action was tried at the May term, and a verdict pro forma was directed for the plaintiff. The defendants now move for a new trial upon the exceptions taken, and on the ground that the ver dict is against the evidence, inequitable and contrary to law. William B. Hoyt, Asst. Dist. Atty., for plaintiff.

Charles L. Stone, for defendants.

COXE, J., (after stating the facts as above.) The law applicable to this controversy is plain. Money paid under a mistake of fact may be recovered back. Negligence of the plaintiff in making the mistake does not give the defendant the right to retain what is not his, unless such negligence has so misled and prejudiced him that it would be inequitable to require him to refund. A party who transfers a bill of exchange by indorsement warrants that the instrument is genuine, and is liable upon the warranty if any of the names prior to his own are forged. Bank of Commerce v. National Mechanics' Banking Ass'n, 55 N. Y. 211; White v. Continental Nat. Bank, 64 N. Y. 316; 1 Edw. Bills, §§ 242, 273, 274; 2 Pars. Notes & B. 597. There are exceptions to this rule, but the facts do not bring the defendants within any of them. The rule itself has long been recognized as a fundamental principle of commercial law, and should not be departed from upon slight and unsubstantial grounds. The burden of proving facts which take the case out of the general rule is upon the defendants. Mayer v. Mayor, 63 N. Y. 455. Negligence in discovering and giving notice of the forgery is pleaded in the answer, but the point is not argued orally or in the brief. The forgery was of such a character that the plaintiff could not have discovered it immediately. Within three days after it was discovered notice was given. The plaintiff discharged its obligation to the defendants in this regard. The plaintiff was no more in fault than the defendants in failing to ascertain the truth. "Where each party enjoys only the same chance of knowledge, no case demands anything more than reasonable

diligence in giving notice, after a discovery of the forgery. Both parties are equally ignorant, the one being no more guilty of neglect than the other. Indeed, neither being negligent, but both being imposed upon under the exercise of ordinary diligence." Canal Bank v. Bank of Albany, 1 Hill, 287; Bank of Commerce v. Union Bank, 3 N. Y. 230; Weisser v. Denison, 10 N. Y. 68; Welsh v. Bank, 73 N. Y. 424; Ellis v. Insurance & Trust Co., 4 Ohio St. 658. Bank v. Eltinge, 40 N. Y. 391; 2 Daniel, Neg. Inst. § 1372; 2 Pars. Notes & B. 599; U. S. v. National Park Bank, 6 Fed. Rep. 852. The proposition that the defendants might have recovered the amount of the conspirators had they been informed of the forgery by the plaintiff at the time, is answered, therefore, by the suggestion that the plaintiff was under no more obligation to discover it than the defendants were; and also by the absence of proof that the conspirators were not liable and responsible to the defendants at the time the notice was actually given. Troy Bank v. Sixth Nat. Bank, 43 N. Y. The pension was granted, the vouchers were signed, and the drafts issued in the usual course of business. Every requirement of the law was fulfilled. Rev. St. §§ 4764, 4765. The officials of the pensionoffice were not guilty of negligence in failing to discover the death of Alma Wood prior to issuing the vouchers and drafts. They were justified in accepting and acting upon the vouchers and accompanying proofs, signed and verified according to the minute and technical requirements of the statute. They could not be expected to anticipate the formation of an infamous conspiracy, involving several individuals, and consummated only by forgery and fraud of the boldest character. There was no implied assertion that the payee was living. The legal character of the transaction is not changed because the actors were government officers. It would be a novel proposition that a debtor who mails a draft to the order of his creditor must lose the amount if the draft is paid on a forged indorsement, should it transpire that the creditor died prior to the mailing. The notice on the back of the drafts does not change the legal aspect of the transaction. It was intended to insure greater accuracy and precision. It was for the benefit of all who might thereafter deal with the drafts. The plaintiff lost no rights because of the endeavor to have the signature on the voucher and the check correspond, and is not estopped from asserting that both signatures are forgeries. Besides, the defendants did not rely upon the notice, and were not misled by it. They required the identification of the payee's signature, and indorsed a minute of the fact that it was so identified on the draft immediately below that signature. Both the plaintiff and the defendants. were bound to inquire into and satisfy themselves of the genuineness of the indorsement. The defendants recognized this obligation, and proceeded to make the inquiry, and, by indorsing the draft, warranted the prior signatures. The demands for the return of money are proper, and sufficient in form. The refusal to surrender the drafts after the defendants had agreed to repay the money, was, perhaps, ill-advised and discourteous, but the defendants lost no advantage by reason thereof. There was no legal obligation to return the drafts. The defendants had