The opinion
ROSE, District Judge
(dissenting). I think the difference between the courts as to the liability of a drawee of a check to the payee for an unauthorized payment upon it does not turn upon the form of action. The Supreme Court, as I understand it, holds that the drawee is not liable to the payee for a mispayment due to simple negligence, unmixed with any element of bad faith. If the allegation in the declaration that the bank knew it had no right to pay the check was unqualified, it would doubtless be good; but the plaintiff was not willing to undertake the burden of proving so much, and so, after the statement that the bank knew, it added “or should have known,” and that :may amount to nothing more than a charge of carelessness.