(dissenting). It is at least doubtful whether judgment ought to go against the government under the circumstances of this case. The moment the United States had paid the Providence Bank money through mistake upon pension checks bearing forged indorsements, there was created in its behalf by operation of law the right to recover it back. The question is, therefore, whether the United States has lost the right. The right might be lost, perhaps, under an effective state of facts upon the ground either of estoppel, laches* or negligence. The majority opinion proceeds upon the idea that the government cannot recover, because it failed upon discovery to give prompt notice of the forgeries and make demand for repayment. It seems to be conceded, and it is unquestionably true, that want of prompt notice in a case like this is not governed by the peremptory and necessary dogmatic rules prevailing in commercial law in respect to bills and notes and other' commercial paper circulating in .trade.Neither is it a case in which the government has lost its right through estoppel, because it is not a case where it is shown that the bank was in any way damaged by the delay on the part of the government in giving notice, and loss or damage is understood to be a necessary element of estoppel by conduct. If the government, therefore, has lost its right of recovery, a right which at one time existed, the loss of the right came by reason of negligence or laches resting in the failure to give notice. So it is not a case where diligence is an element of the plaintiff’s case in establishing his right, because the right of recovery resulted by operation of law from the fact that the payments were made upon forged indorsements through mistake, and thus it. follows, as it seems to me, that the negligence comes into the case as an element of the defense rather than as a necessary element in the plaintiff’s case. Delay being a matter of defense, it is difficult to see why it should operate to- bar -recovery,' unless the party receiving the money on forged indorsements has been damaged by the delay.
*409Again,' this1 is not a situation in which prompt' notice is -required under commercial rules to charge an indorser, as such, upon an instrument. The precise questions are whether laches or negligence are imputable to the government in a case like this, and, if so, whether a defense results upon such ground by operation of law in favor of a party who, through his own error or mistake, has collected money from the government upon forged indorsements upon pension warrants or checks, and who, without proof of change of position or of injury, relies solely upon failure of the government to give prompt notice of the discovery of forgery.
I am aware that the doctrine of the old'maxim, “Nullum tempus occurrit regi,” as well as the ancient and somewhat broader doctrine that negligence is not imputable to a government, is somewhat relaxed. Still J am not willing to adopt the idea that the authoritative decisions go beyond what is said in Cooke v. United States, 91 U. S. 389, 398, 23 L. Ed. 237. In that case the .court, after stating the general rule that laches is not imputable to the government in its character as sovereign, apparently so far limits the general rule as to allow laches and negligence to operate upon situations involving commercial transactions, and the exceptional rule in respect to commercial transactions was apparently adopted as subject to an important qualification ; that is to say, that laches or negligence only operate against the government, provided a particular official has been specially charged with the performance of a duty which he neglects with consequent loss. That idea seems to have been carefully safeguarded as a qualification upon the limited rule in the following paragraph on page 398 of 91 U. S. (23 L. Ed. 237):
“Generally, in respect to all the commercial business of the government, if an officer specially charged with the performance of any duty, and authorized to represent the government in that behalf, neglects that duty, and loss ensues, the government must bear the consequences of his neglect. But this cannot happen until the officer specially charged with the duty, if there be one, has acted, or ought to have acted.”
Eurthermore, I do not accept it as at all clear that payments upon pension warrants or pension checks, if they are checks, which in a sense relate to a government bounty or gratuity, thus presenting a situation sui generis, should be treated as things relating to a commercial transaction, in respect to which the government comes down from its position of sovereignty and enters the domain of commerce within the view of the expressions of the Supreme Court in Cooke v. United States. There are hundreds of thousands of pension warrants or checks spreading over the entire country, which, under existing conditions and for the convenience of pensioners, are cashed at local hanks. There is at least some shadow of duty upon the local banks to know whether the pensioner is dead or alive, and whether the indorsements are genuine or forged.
It must often happen, as is shown in this case, that payment through mistake is In one department of the government, and discovery of the forgery in another, and, so far as seen, it .is not expressly made the special duty of á particular official to give notice: It is difficult, therefore, • to see what particular- officials .are remiss. Indeed, the *410majority opinion, in the concluding paragraph upon the defense of negligence, looks upon the question as one which would involve doubt if not controlled by decisions in the federal courts. It does not seem to me that either the proposition that negligence applies as a general .rule to government transactions. of this character has been settled by controlling weight of authority, or that it ever has been distinctly decided by the United States courts in a case like this that the defense of mere government delay is an available one in the hands of a party who shows no loss.
I will first call, attention to the cases upon which the majority opinion seems to rely. The case United States Bank v. Bank of Georgia, 10 Wheat. 333, 6 L. Ed. 334, related to fraudulently altered bank notes circulating in affairs of commerce, and involved in a general account between two banks, and therefore is not in point here.
The case of United States v. Central Bank (D. C.) 6 Fed. 134, was not a pension case, but one involving- commercial paper drawn in 'favor of an individual by a paymaster in the army, presumably for army supplies. The decision was one apparently without consideration further than to accept the commercial situation there as controlled by the commercial situation involved and passed upon in Cooke v. United States.
In United States v. Clinton National Bank (C. C.) 28 Fed. 357, the defendant pleaded a delay of 10 years after notice and loss by reason of the delay. To this the plaintiff demurred, and the case was accepted as one controlled by Cooke v. United States. The effect of the demurrer was an admission that the bank had suffered actual loss by the delay.
■ I do not purpose to attempt an analysis of the decisions further than to call atention to the fact that the Clinton Bank Case, decided by Mr. Justice Brewer when a circuit judge, was the only case involving a situation relating to a transaction in the nature of a sovereign gratuity or pension. That case was one of bounty, and perhaps stands as something in the nature of a pension rather than something in the domain of commerce, and it is important to note that actual loss was sustained by the bank. Loss was an important element, and one thus making it an entirely different case from the one at bar.
Now, on the contrary, we have the case of United States v. National Bank (D. C.) 6 Fed. 852, 854, where the exceedingly well-reasoned opinion was by Judge Choate, in which he points out the distinction between recovery for money paid for counterfeit money and for money paid on fraudulently indorsed drafts, and rests the decision upon the idea that delay in giving notice 'in the case of a draft for bounty is not a complete defense if unattended with loss. The case of Onondaga County Savings Bank (D. C.) 39 Fed. 259, was a pension case where the payment was upon forged pension drafts, and upon full consideration was decided' favorably to the government upon ¡the theory that 'the mistake-was a mutual one where parties were equally ignorant, ■and thus a situation in which there was no -greater, obligation upon .one’party than the other to discover the death of the payee and the 'forgery-.' : Judge Cox’s'decision also involved an examination .of United *411States v. Clinton National Bank (C. C.) 28 Fed. 357, and United States v. Central Bank (D. C.) 6 Fed. 134, which he points out as' the two cases in which the defendant succeeded, and that in one case there Was a delay of 12 years in giving notice after knowledge, and in the other, which was Judge Brewer’s case, that there was no notice whatever.
The case of United States v. National Bank of the Republic, 2 Mackey, 289, 296, in the Supreme Court of the District of Columbia, is likewise useful, because it points out the distinction between different kinds of negotiable commercial paper in respect to which the reason for notice is to charge in contract upon the instrument or indorsement, and situations like this, where the recourse is to recover money paid under mistake, where the right rests more upon equitable grounds.
Query whether the doctrine of imputable government negligence does not depend more upon the question whether the subject-matter of the check or treasury warrant relates to a purely sovereign act, or, on the other hand, to something within the domain of commerce, than upon the mere form and transaction of the check or warrant itself. The subject-matter of Cooke v. United States, which was treasury notes circulating as commercial paper, was something clearly in the domain of commerce, and query, whether the medium adopted by the government for distributing the pension fund is not something relating to a pure act of sovereignty. Apparently a question like that involved in this case has not yet been dealt with by the Supreme Court. Surely Cooke V. United States does not deal with any such question, because it expressly limits itself to situations where the government comes down from its character .as sovereign, and enters the domain of commerce.
■ It would be an inequitable hardship upon the government, thus discharging a beneficent obligation under circumstances necessarily affording a field of opportunity for deception and fraud difficult to discover under. the inherent defects of government agencies resulting from lack of direct individual or official responsibility, to apply the equitable doctrine of laches as a defense in favor of a party who had received money from the government on forged indorsements, and who had not been damaged by the delay in ascertaining the fact of the forgery and giving immediate notice, and it would he an unnecessary and unreasonable legal hardship upon the government, under such circumstances, to have a hard and fast rule that delay shall be an available defense in behalf of one who has not been damaged. At least, in such a sui generis situation, in order to make delay an available defense, it should be incumbent upon a party to show that he has suffered some damage. From the very nature of the situation, in affairs of government, there must necessarily be more delay than in ordinary commercial affairs, where the discovery and .the duty are direct and individual, and in such government situations a defense upon the ground of negligence should depend upon showing that the party has suffered loss or inconvenience.
The delay here was .not very considerable,- and surely not so much as to create a defense upon the ground of laches; and. query, it not being a situation governed-by commercial :law, whether the delay- was *412sufficient under the circumstances to become an available defense upon the ground of negligence.
But, quite aside from .the question as to how far negligence in respect to sovereign acts is imputable to the government, it is well to consider the effect of mere delay in other and different situations ■without proof of resulting loss. Daniel on Negotiable Instruments, at 1372, in dealing with questions relating to commercial paper, asserts the reasonableness of the wiser and juster doctrine that mere space of time is not important, provided loss or inconvenience does not result.
Where money is paid by mistake upon forged instruments, in transactions fiot governed by legal rules in respect to general negotiable paper, the right of recovery seems to be accepted as one immediately attaching by force of law, and the delay in giving notice is generally accepted as a matter of defense to be set up against recovery, and its effectiveness as a defense seems to depend upon loss. This being so, the burden would seem to be upon the defendant to show the loss. Under such circumstances mere lapse of time and mere delay without prejudice are often spoken of both in England and in this country as of little consequence (18 Am. & Eng. Encyc. 101, note 4; 5 Cyc. 547 [c], and note 42), and injury is often accepted as an element of the defense which prevents recovery by reason of failure to act promptly in giving notice (5 Am. & Eng. Encyc. 1069, notes 1, 2).
. In the Circuit Court, before Judge Lowell, this case was decided for the government upon the ground that delay unsupported by proof of loss was not a defense. Numerous authorities are cited in the opinion of that court. 141 Fed. 209. Quite likely some of the authorities which relate to situations where prompt notice was necessary to create liability may seem not to support the proposition. But such a situation is not at all like the case at bar.. If the defense prevails here, it is upon the severe ground that the government has through delay forfeited an existing right created by law from the mere fact of payment upon forged paper under a mistake, and the forfeiture will be made to operate in favor of one who has not shown that he was injured by the delay; and query whether such' an inequitable and embarrassing .rule in sovereign affairs would not be too arbitrary and abstract in its application to a government, which in its character as sovereign is endeavoring to distribute something in the nature of charity.