It is clear that Hoyle could not maintain an action, against the defendant, on this check:
1. Because the check was not given to him by the drawer, or any person apparently au-thorised to pass it away.
2. Because, in his knowledge, the check was not drawn, in order to be paid, but for the special purpose of taking up a note.
3. Because he came by it unfairly, having taken it from the counter, without any authority from a person authorised to pass it away.
But a person, who cannot maintain an action upon a paper, may enable another person to sustain one, in certain cases. If the mail be robbed, the thief may not sue on the bank notes he may *327have obtained, by the robbery; yet if he pays them away to a person unacquainted with the unfair means through which it was obtained, he may maintain one. So, although Hoyle could not sue the defendant, he has legally, by the delivery of the check, enable the plaintiff to sustain an action, if he received it without any knowledge of the particular circumstances under which Hoyle had come by it.
When the day of payment of a note, bill, or check, is past, its circulatiofi gives rise to a presumption that it may have been paid, or that the person bound to pay it, has some reason to resist the payment of it. The person, therefore, accepting it, receives it, in some degree, at his risk. But in the present case, the check was received by the plaintiff, very soon indeed after its issue. If the Sunday be not reckoned, and it ought not, the check was not twenty-four hours old.
The check was payable to H. M. & Co's note, or bearer. The latter words repel the idea that it was exclusively to be used for the payment of the note. It may be fairly inferred that the words, H. M & Co's. note, were put in, as a memorandum for the drawer.
The circumstance of the house's failure, of itself, does not perhaps afford such a presumption *328of an improper application of the check, as would amount to a proof that the plaintiff was acquainted with the manner in which Hoyle had obtained the check.
Verdict for plaintiff.