no more than that sum, which the plaintiff agreed to prepare, saying that he could build the house which the plaintiff desired for $5,000 and would guarantee that it could be done; that he told the plaintiff that he did not care to incur any unnecessary expense, and that he would agree to pay him 31⁄2 per cent. of the cost, on the assumption that the house would not cost more than $5,000; that the plaintiff prepared plans and specifications for a house which could not be built for less than $8,900, and that he thereupon declined to accept the plans and specifications; that the plaintiff prepared a second set of plans and specifications, which did not comply with his agreement, and which were not accepted; that the defendant then agreed that the cost of the house to be built should be advanced to $7,500, and the plaintiff then agreed to prepare plans and specifications for a house, the size and character of which was agreed on, which could be built for a sum not exceeding that amount; that the plaintiff then prepared other plans and specifications for a house which could not be built for less than $12,000, which the defendant refused to accept; that while negotiating with the plaintiff he advanced to him $200 as a loan, under a promise to repay the amount if the plans and specifications were not satisfactory.

The jury, in response to the issue submitted to them, found that the defendant was indebted to the plaintiff in the sum of $220. The defendant excepted to the refusal to give the following charge to the jury:

The court charges you that if you find from the evidence and by its greater weight that the plaintiff contracted with the defendant to design and furnish plans and specifications for a residence to cost not exceeding a limited amount, and failed to furnish such design or plans and specifications for a residence that could be built within the amount limited, and abandoned any effort to do so, the court charges you that the plaintiff admits that the defendant has paid him on account of said work the sum of at least $200, then your answer to the second is sue would be $200 and interest.

After the jury had deliberated some time they asked for further instructions as fol

lows:

The Court: Do you gentlemen desire some further instructions?

Juror: We want to know if we could answer that first issue the full amount, and give Mr. Kimball a counterclaim.

The Court: No; if you answer the first issue the full amount, that is finding that the contract is as contended by the plaintiff; then the defendant would not be entitled to any thing back. If you answer the first issue $370, you will not answer the second issue; but, if you answer the first issue "Nothing," you will then consider the second issue. If you find that the contract was as contended by the defendant, by the greater weight of the evidence, you would answer that such amount as you find he paid, under these issues; but, if you are not satisfied as to that, you would answer it "Nothing"-the burden being upon the defendant under the second issue.

The jury thereupon retired, and returned a second time for further instructions.

The Court: Is there any matter I can aid you about?

Juror: It might be If you would charge us again, it might be we could get together.

The Court: If it is a question of fact, I have no right or power, nor do I desire to express any opinion upon the facts.

Juror: Could we answer both issues "No"? The Court: Yes. If you answer the first issue "No," you can answer the second issue "No." You can answer both "No," if you find the facts so to be. If you find the first issue "Yes," the amount claimed by plaintiff, you would not answer the second issue; but, if you answer the first issue "No," you can answer the second issue the amount claimed by defendant, or you can answer that "No." Juror: If we answer the first issue "Yes," that means $370.

The Court: Yes; that is the amount claimed by him, $370; that is, if you are satisfied that it is correct. Juror: We cannot split that, or anything?

The Court: That is within the physical power of the jury. If you find that the contract between them was that the plaintiff was to make out plans and specifications for 31⁄2 per cent. for a building upon the estimated cost, and the cost was $12,000, and that was complied with, he would be entitled to recover $370, and you are the judges of whether he has shown that. If he has shown that by the greater weight of the evidence, it would be your duty to answer it "$370." If you are not so satisfied, you will answer it "No." Of course, the jury has the power to pass upon these matters. You are the sole judges of the evidence and the weight you will give to it. If you answer the first issue "Yes," you would not consider the second issue; but, if you answer it "No," you will answer the second, and the burden of that is upon the defendant. If you find he is entitled to recover back the $200, or $225, you will say so; and, if you do not think he is, you will answer "Nothing."

There was a judgment in favor of the plaintiff for $220, and the defendant appealed.

R. R. King and Thomas S. Beall, both of Greensboro, for appellant.

ALLEN, J. [1] The prayer for instruction requested by the defendant was substantially given in the charge. In addition to telling the jury several times that the plaintiff was not entitled to recover anything, unless he proved performance on his part he instructed the jury as follows:

"If the jury shall find from the evidence and by its greater weight that the contract was that the plaintiff should furnish plans for a house not to exceed $5,000, and the plaintiff failed to comply with the terms of his contract, and that while negotiations were going on, and before the defendant learned that the contract would not be complied with, the plaintiff induced the defendant to advance him various sums from time to time, amounting to $200, or $225, or whatever the jury should find it to be, upon the assurance and warranty that he would comply with the terms of the agreement, and the plaintiff has failed to return said sums, and he failed and refused to comply with his contract, the defendant would be entitled to recover back the sum so paid."

And again:

"If you answer the first issue '$370,' you will not answer the second issue; but, if you answer the first issue 'Nothing,' you will then consider the second issue. If you find that the con

tract was as contended by the defendant, by the greater weight of the evidence, you will answer that such amount as you find that he paid under these issues; but if you are not satisfied as to that, you will answer it 'Nothing'-the burden being upon the defendant upon the second issue."

[2] The part of his honor's charge excepted to when the jury returned for further instructions is in telling the jury in substance that it was within the physical power of the jury to divide the amount claimed by the plaintiff and the defendant, respectively; and this, standing alone, would be erroneous, but when read in connection with the context

it does not reasonably bear the construction of a direction that the jury had the right to compromise the matters in controversy. The juror asked the presiding judge if the jury could split the amount claimed by the parties, and his honor said, it is true, "That is with the physical power of the jury;" but he immediately followed this statement with a clear and full instruction as to the duties of the jury in considering the evidence and in determining what their answers to the is

sues should be.

[3] If, however, it should be held that the charge was erroneous, it was not only not prejudicial to the defendant, but in his favor, and had the effect of reducing the claim of the plaintiff $150. The jury could not find any amount due the plaintiff under the instructions of the court, without finding that the contract was as the plaintiff claimed it to be; and, if so, he was entitled to recover $370, and the jury has reduced this sum to $220.

No error.

KEENAN v. NEW HANOVER COUNTY COM'RS et al. (No. 278.) (Supreme Court of North Carolina. April 22, 1915.)

1. JUDGMENT 710-JUDGMENT AS EVIDENCE -PARTIES.

In an action to recover damages against a board of county commissioners in their corporate capacity for entering plaintiff's land and taking a rock from his quarry, a judgment roll in plaintiff's action against certain other defendants was not competent evidence for the purpose of locating the division line between his land and that of a defendant, who was not a party to the former action and not bound by the judgment.

[Ed. Note. For other cases, see Judgment, Cent. Dig. § 1230; Dec. Dig. 710.] 2. JUDGMENT 710-JUDGMENT AS ESTOP

PEL.

Nor was such judgment competent for the purpose of estopping such defendant in locating the division line between himself and the plaintiff.

(Ed. Note. For other cases, see Judgment, Cent. Dig. § 1230; Dec. Dig. 710.]

3. JUDGMENT 710-PARTIES CONCLUDEDEVIDENCE.

Such judgment was competent as a mere link in the plaintiff's title. [Ed. Note. For other cases. see Judgment, Cent. Dig. § 1230; Dec. Dig. 710.]

Appeal from Superior Court, New Hanover County; Allen, Judge.

On petition for rehearing. Dismissed. For former opinion, see 167 N. C. 357, 83 S. E. 556.

J. O. Carr and J. D. Bellamy, both of Wilmington, for appellant Rhodes. Kenan & of Com'rs of New Hanover County. Ricaud Stacy, of Wilmington, for appellant Board & Jones and E. K. Bryan, all of Wilmington, for appellee.

PER CURIAM. [1] This is a petition to rehear the above cause, reported 167 N. C. 357, 83 S. E. 556. On the trial the court permitted the introduction of a judgment roll in the case of Thomas J. Keenan v. City of Wilmington and Louisa G. Wright. We hold that the said judgment roll was not competent evidence for the purpose of locating the division line between the plaintiff's land and that of the defendant Rhodes; it appearing that Rhodes was not a party to the said action and not bound by the judgment.

[2, 3] Such judgment is not competent for the purpose of estopping Rhodes in locating the division line between him and the plaintiff. If it is to be used as a mere link in the plaintiff's chain of title, it is competent

for that purpose.

The petition to rehear is dismissed.

STATE BANK v. CUMBERLAND SAVINGS & TRUST CO. (No. 401.) (Supreme Court of North Carolina. April 22, 1915.)

BANKS AND BANKING 149-PAYMENT OF FORGED CHECK-DRAWEE'S RIGHT TO RECOVER.

Plaintiff bank, which, in the course of business, received through another bank a check purporting to be drawn on it and indorsed by a third person, whose signatures were both forged, and which had been cashed by defendant bank, in reliance upon the indorsement "all prior indorsements guaranteed" and the custom to take such checks relying upon the exercise of due diligence on the part of the bank first cashing it, could not recover the amount paid on the forged check, as it should know the signature of the drawer, its own depositor.

[Ed. Note.-For other cases, see Banks and Banking, Cent. Dig. §§ 453, 454; Dec. Dig. 149.]

County; Lane, Judge.
Appeal from Superior Court, Scotland

Action by the State Bank against the Cumberland Savings & Trust Company. Demurrer to complaint overruled, and defendant appeals. Reversed.

Walter H. Neal, of Laurinburg, for appellant. Russell & Weatherspoon, of Laurinburg, for appellee.

the defendant, a bank in Fayetteville, cashed CLARK, C. J. The complaint alleges that a check, purporting to be drawn by the Wade Trading Company, on the plaintiff bank in

Laurinburg, and purporting to be indorsed by D. C. Jackson, but that the signature of the said drawer and said indorser were forged, and that thereafter in the course of business the said forged check was sent through a bank in Wilmington to the plaintiff with the indorsement, "All prior indorsements guaranteed," and that it was the custom and practice to take such checks relying upon the exercise of due prudence and diligence on the part of the bank which first cashed the check, and alleging that, the signature of the drawer being forged, the defendant should refund to the plaintiff the amount of said check which the plaintiff had paid by reason of the negligence of the defendant bank in failing to use due prudence and diligence in accepting and paying the said check. The defendant demurred upon the ground that the complaint does not state facts sufficient to constitute a cause of action. The judge overruled the demurrer, and the defendant appealed.

The drawee bank pays a check upon the faith of the genuineness of the signature of the drawer.

The

"When a drawee pays a check upon which the drawer's signature had been forged, he cannot, upon discovery of the forgery, recover back the amount if the party to whom he paid it was a bona fide holder. drawee is held bound to know the signature of his drawer and the banker, even more, to know that of his depositor; and if they fail to discover the forgery before payment they must stand the loss." This is the heading of an extended note to be found in 17 Am. St. Rep. 890, citing very numerous authorities. This rule seems to have been established by Lord Mansfield in 1762 in Price v. Neal, 3 Burr. 1355, who said that:

"It was incumbent upon the drawee to be satisfied of the genuineness of the drawer's sig nature before accepting or paying the bill, and that if he made a mistake it was his neglect or misfortune, and not that of the drawer."

In Bank v. Bank, 10 Wheat. 333, 6 L. Ed. 334, decided in 1825, Mr. Justice Story, referring to Price v. Neal, supra, said:

"After some research we have not been able to find a single case in which the general doc

trine thus asserted has been shaken or even doubted."

A proposition of mercantile law considered beyond question as correct by Mansfield and Story must be deemed settled unless changed by statute.

In Bank v. Bank, 115 Tenn. 64, 88 S. W. 939, 112 Am. St. Rep. 1817, it is held:

earlier decisions which would seem to indicate a liability on the part of the indorser who negligently pays a check without fully satisfying itself as to the genuineness of the signature of the drawer. The proposition which now obtains, almost universally, is thus laid down in Howard v. Bank, 28 La. Ann. 727, 26 Am. Rep. 105:

"The drawee of a bill is presumed to have a better knowledge of the signature of the drawer than the holder. So, where a bank cashed a draft and afterward collected it of the drawee, and" the draft was a forgery, the drawee cannot recover the amount paid from the bank to which it was paid though "the latter had received the draft from an unknown holder without requiring his indorsement."

In Bank v. Savings Inst., 62 Barb. (N. Y.) 101, and Bank v. Boutell, 62 N. W. 327, 27 L. R. A. 635, 51 Am. St. Rep. 519, it is held:

"The holder of a check or draft, presenting it to the drawee for payment, owes it no duty to inquire into the genuineness thereof."

The drawee bank has no right to assume that the holder has made such investigation. Failure of a bank to follow the usage or practice adopted for its own security of requiring evidence of the payee's identity before receiving on deposit the check drawn on another bank does not excuse the drawee bank from its duty to examine its customer's signatures to checks presented by another bank or other holder in due course. See, also, numerous citations 10 L. R. A. (N. S.) 57-59.

The same proposition is fully discussed and held in Bank v. Bank, 30 Md. 11, 96 Am. Dec. 567, and notes, a very carefully considered case. In Howard v. Bank, 28 La. Ann. 727, 26 Am. Rep. 105, it is held, as above stated, that the drawee of a bill is presumed to have a better knowledge of the signature of the drawer than the holder.

In Morse, Banks (4th Ed.) § 463, it is said, quoting many cases:

"A bank cannot recover money paid on a forgery of the drawer's name from the person to whom it was paid. The bank is bound to know the signature of the drawer."

Morse, supra, cites, among other authorities, Bank v. Bank, 10 Vt. 141, 33 Am. Dec. 188, which was exactly like the present case, in that the signature of the drawer was forged and the drawee bank in action against the cashing bank asked for instructions that if the jury should find that the cashier of the purchasing bank received the check, without due circumspection or the exercise of due diligence in ascertaining its genuine

the drawee bank was entitled to recover, but the court held that it was only necessary that the cashing bank should appear to have received the check in ordinary course of business and in good faith.

This last proposition seems to be now the

In 5 Cyc. 541, there is quoted in the notes the following proposition:

"A factor who has received drafts from his principal drawn on him, which have been dis

stand the loss of those which are discovered to be forgeries."

The latest and fullest discussion of the subject will be found in 3 Ruling Case Law, § 244, with full citations of the more recent authorities. The law is thus summed up: "Where a bank receives in good faith for collection a check upon another bank, the signature of the drawer of which is forged, and receives payment and pays over the proceeds to its customer, the drawee bank cannot recover from the collecting bank the money so paid to it. In order, however, that the collecting bank may claim protection, it must have been a bona fide holder, but the mere fact that the collecting bank receives the check from a stranger does not itself prevent it from claiming protection as a bona fide holder."

Where the cashing bank acts in good faith, the drawee cannot recover the amount which it has paid on the forged check. The drawee should know the signature of the drawer, its own depositor, better than the holder. The drawee cannot plead a custom that would entitle it to pay such draft without the signature being genuine.

The demurrer should have been sustained. Reversed.

MOWERY v. MOWERY. (No. 408.) (Supreme Court of North Carolina. April 28, 1915.)

APPEAL AND ERROR 731-ASSIGNMENT OF ERROR-FORM AND SUFFICIENCY.

Defendant appealing from an order allowing plaintiff alimony pendente lite, upon the ground that the affidavits and evidence were insufficient to support the finding of fact, should have assigned error by pointing out the particular finding of fact not supported by the evidence.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 3017-3021; Dec. Dig. 731.]

Appeal from Superior Court, Anson County; Rountree, Judge.

Action by Helen Mowery against M. W. Mowery for divorce a mensa et thoro, heard on plaintiff's motion for alimony pendente lite. Order and judgment allowing alimony to defendant pendente lite, and defendant appeals. Affirmed.

This is a civil action, tried at the superior court of Anson county, for divorce a mensa et thoro, heard on a motion of the plaintiff for alimony pendente lite by Rountree, J. From the order and judgment rendered, the defendant appealed.

H. H. McLendon and John W. Gulledge, both of Wadesboro, for appellant. Robinson, Caudle & Pruette, of Wadesboro, for appellee.

No such assignment of error is set out in the record. If the appellant desired to present such a contention, he should have assigned his error by pointing out the particu lar finding of fact, which is not supported by the evidence.

Nevertheless we have examined the affi

davits, and find that his honor's findings were fully sustained, and they warrant the order allowing alimony to the plaintiff pendente lite. Affirmed.

STATE v. GIBSON. (No. 305.) (Supreme Court of North Carolina. April 22, 1915.)

172-Is

1. INDICTMENT AND INFORMATION SUES, PROOF, AND VARIANCE. cused the right to be informed of the accusation Under Const. art. 1, §§ 11-13, giving acagainst him by indictment, and providing that no person shall be convicted, except on the charge made, the evidence must correspond with the indictment and sustain it at least in substance before there can be a conviction.

[Ed. Note. For other cases, see Indictment and Information, Cent. Dig. § 539; Dec. Dig. 172.]

2. FALSE PRETENSES 38-INDICTMENT-EVIDENCE-VARIANCE-"MONEY."

Under Revisal 1905, § 3432, making it an indictable offense to obtain by false pretenses any "money," goods, property, or other thing of value, or any note, with intent to defraud, variance between an indictment charging accused with obtaining by false pretenses a specified sum of money, and the proof that he, by false representations, procured a note executed by prosecutor, is fatal, for a note is not "money" which is any lawful currency, whether coin or paper, issued by the government as a medium of exchange.

[Ed. Note. For other cases, see False Pretenses, Cent. Dig. §§ 50-53; Dec. Dig. 38.

For other definitions, see Words and Phrases, First and Second Series, Money.]

3. CRIMINAL LAW 970 ARREST OF JUDG

MENT VARIANCE BETWEEN CHARGE AND PROOF.

A variance between an indictment and the proof cannot be taken advantage of by motion in arrest of judgment.

[Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 2445-2462; Dec. Dig. 970.]