and, therefore, has an interest in concealing the facts, the principal occupies no better position than he would have done had no one been designated by him to make the required examination, without, at least, showing that he exercised reasonable diligence in supervising the conduct of the agent while the latter was discharging the trust committed to him. In the absence of such supervision the mere designation of an agent to discharge a duty resting primarily upon the prin cipal cannot be deemed the equivalent of performance by the latter. While no rule can be laid down that will cover every transaction between a bank and its depositors, it is sufficient to say that the latter's duty is discharged when he exercises such diligence as is required by the circumstances of the particular case, including the relations of the parties, and the established or known usages of banking business": Leather M. Nat. Bank v. Morgan, 117 U. S. 96, 6 Sup. Ct. Rep. 657, 29 L. ed. 811.

"Of course if the defendant's officers, before paying the altered checks, could by proper care and skill have detected the forgeries, then it cannot receive a credit for the amount of those checks, even if the depositor omitted all examination of his account': Leather M. Nat. Bank v. Morgan, 117 U. S. 96, 6 Sup. Ct. Rep. 657, 29 L. ed. 811.

In the case at bar there was evidence tending to show that the plaintiff did not examine its passbook and the vouchers returned therewith with reasonable care and diligence; and did not exercise reasonable care and diligence in supervising the 353 conduct of its agent while the latter was examining such passbook and vouchers. Whether he did so exercise reasonable care and diligence was, under proper instructions, a question to be determined by the jury.

We are of opinion that the circuit court erred in refusing the following instruction asked for by the defendant: "No. 3. The jury are instructed that the plaintiff is charged with such knowledge as Woodall had in making the examination of its bank-book and the inspection of returned checks, and comparison of the same with the stubs of plaintiff's checkbook."

As already seen, such examination of its passbook as was made by the plaintiff was together with Woodall as its agent. Woodall had, at the time these examinations were made, full knowledge of the forgeries, as he had himself been guilty of the wrongdoing.

In the commission of a forgery the employé is not the agent of his principal, and his knowledge cannot be imputed to the principal. But after the forged checks have been paid and returned to the depositor as vouchers, with the bank account written up and balanced according to the usual business methods, if the depositor assigns the duty of examining such vouchers and account to this same clerk, who has had an opportunity of committing a fraud and has done so, then such employé in the discharge of this duty is the agent of the depositor, and such depositor is chargeable with his agent's knowledge of the fraud: Dana v. National Bank, 132 Mass. 156; First Nat. Bank of Birmingham v. Allen, 100 Ala. 476, 46 Am. St. Rep. 80, 14 South. 335, 27 L. R. A. 426; Myers v. Southwestern Nat. Bank, 193 Pa. 1, 74 Am. St. Rep. 672, 44 Atl. 280; Critten v. Chemical Nat. Bank, 171 N. Y. 219, 63 N. E. 969, 57 L. R. A. 529; Leather M. Nat. Bank v. Morgan, 117 U. S. 96, 6 Sup. Ct. Rep. 657, 29 L. ed. 811.

In First Nat. Bank of Birmingham v. Allen, 100 Ala. 476, 46 Am. St. Rep. 80, 14 South. 335, 27 L. R. A. 426, it is said: "The evidence shows that on each occasion after the return of the passbook and checks, the plaintiff, with the assistance of his clerk, Tomlin, the forger, examined the account as rendered and the checks or vouchers. We may conclude the evidence shows that the plaintiff himself personally was without fault in 354 this respect, and but for the fact that his clerk, Tomlin, was the forger, the false checks would have been discovered by the examinations which were in fact made. The evidence shows that in these examinations Tomlin either called from the passbook and the plaintiff the checks, or vice versa, and Tomlin, knowing when a forged entry or check was reached, answered in such a way as to deceive the plaintiff. Tomlin, the clerk and forger, had knowledge of the forged checks; was such knowledge of the agent chargeable to his principal? The case in 132 Mass. 156, holds that the principal is chargeable with notice under such circumstances, and we are of opinion the conclusion is supported by reason and sound principles of law."

In Critten v. Chemical Nat. Bank, 171 N. Y. 219, 63 N. E. 969, 57 L. R. A. 529, it is said: "Of course the knowledge of the forgeries that Davis possessed, from the fact that he was the forger, was in no respect to be attributed to the plaintiffs. But we see no reason why they were not chargeable with such information as a comparison of the checks with the check-book would have imparted to an innocent party pre

viously unaware of the forgeries. The plaintiffs' position may be no worse because they intrusted the examination to Davis instead of to a third person; but they can be no better off on that account. If they would have been chargeable with the negligence or failure of another clerk in the verification of the accounts, they must be equally so for the default of Davis, so far as the examination itself would have disclosed the facts."

In the case of Myers v. Southwestern Nat. Bank, 193 Pa. 1, 74 Am. St. Rep. 672, 44 Atl. 280, it is said: "While the plaintiff was not chargeable with the knowledge of his clerk that the latter had committed the forgery, he was clearly responsible for the acts and omissions of his clerk in the course of the duties with which he was intrusted-viz., to receive the checks from the bank, take them to his employer's office, compare the amounts thereof with the amounts in the bank-book, check-book, etc."

In the case at bar the instruction under consideration was 355 supported by the evidence, and the authorities cited show that it correctly stated the law.

We are inclined to think there was no error in the action of the circuit court with respect to other instructions, but as its judgment must be reversed for the error pointed out in refusing instruction No. 3, asked for by the defendant, we will not comment upon the other instructions objected to, but will leave the court, upon the evidence adduced at another trial, to give such instructions as to it may seem proper in the light of the principles herein announced.

The judgment complained of must be reversed, the verdict of the jury set aside, and the case remanded for further proceedings not in conflict with the views herein expressed.

The Rights and Remedies of the several parties when a forged check has been paid are discussed in the note to People's Bank v. Franklin Bank, 17 Am. St. Rep. 889; and the liability of one receiving payment of a check on a forged indorsement is discussed in the note to First Nat. Bank v. Bank of Rutherford, 94 Am. St. Rep. 641. For subsequent decisions on these questions, see Wellington Nat. Bank v. Robbins, 71 Kan. 748, 114 Am. St. Rep. 523, and cases cited in the cross-reference note thereto. If, in an action by a depositor to recover of a bank money alleged to have been paid on forged checks, it appears that the forgeries were made by a confidential clerk of the depositor, who intrusted him with the balancing of his bank and account-books, and that the bank was not negligent in honoring the checks, the depositor cannot recover of the bank. He alone is responsible for his failure to examine the checks after payment and reject them within a reasonable time: Myers v. Southwestern Nat. Bank, 193 Pa. 1, 74 Am. St. Rep. 672, and see the cases cited in the cross-reference note thereto.

LEE v. LAPRADE.

[106 Va. 594, 56 S. E. 719.]

CONVEYANCES-Rescission of for Mistake Notwithstanding Covenant for Title.-Although a vendee has a right to proceed at law upon his covenants for title, he also has a right, when the grantor has made a mistake in the description of the property conveyed, which he is unable to correct and which is material in its character and affects the very substance of the transaction, to go into a court of equity upon the ground of mistake, and have the deed canceled and the purchase money refunded. (p. 1024.)

DEEDS Cancellation for Mistake-Interest on Purchase Money. If a deed is canceled on the ground of mutual mistake in the description of the land conveyed, and a decree is rendered for the repayment of the purchase money, the latter should bear interest from the time when the mistake was discovered and demand made. (p. 1027.)

D. P. Halsey, J. E. Edmunds, Anderson & Lee and S. A. Anderson, for the appellant.

Dillard & Lee and C. A. McHugh, for the appellee.

594 CARDWELL, J. The Hyde Park Land Company, in the year 1888, acquired 595 title to a lot of land in the suburbs of the city of Roanoke, had a plat made of its property, laid it off into lots and streets, dedicating the streets to the city, and placed the lots in the hands of real estate agents to be sold. Some of these streets were only designated by a plowed furrow on either side, but there does not seem to have been anything to indicate the boundaries of the lots. On the map they were indicated by sections and numbers. In 1890 the land company sold one of these lots to one Aunspaugh, trustee, and on January 31, 1890, executed to him a deed purporting to convey the lot, in which deed the boundaries were described as follows: "Beginning at a point on the south side of Loudoun avenue four hundred feet west of Thirteenth street; thence with Loudoun avenue north 68 degrees 45 minutes west, fifty-two and seven-tenths feet to a point; thence south 25 degrees west, one hundred and thirty and three-tenths feet to an alley; thence with the said alley south 68 degrees 45 minutes east, sixty-two feet to a point; thence north 21 degrees and 15 minutes east, one hundred and thirty feet to the place of beginning."

Aunspaugh, by deed bearing date June 25, 1890, conveyed the said lot to George W. Laprade, the description being the

same as that in Aunspaugh's deed from the land company. Laprade placed the lot in the hands of one J. F. Wingfield, a real estate agent (who was also a stockholder in the land company), who sold it to C. A. Lee for the sum of seven hundred dollars, and Laprade and his wife conveyed the lot to Lee by deed bearing date October 17, 1890, in which deed it was described identically as in the two aforementioned deeds, with the further recital that it was the same lot conveyed in those deeds. Laprade is a resident of Franklin county and Lee is a resident of Lynchburg, Virginia.

After purchasing this lot Lee instructed certain real estate. agents in Roanoke to sell it for him, but no sale was effected. It was in the summer of 1899, by correspondence, placed in the hands of one J. W. Boswell, a real estate agent, and after a further correspondence, continuing over a period of three years, Lee was informed that the lot described in his deed was squarely 596 in Fourteenth street. Lee then made repeated efforts to get an amicable settlement of the matter with Laprade; but failing in this he instituted this suit for the purpose of rescinding the contract of purchase of the lot, and annulling the deed conveying the same to him, and for the recovery from Laprade of the purchase money he had paid for the lot, with interest thereon, etc.

The defendant, Laprade, demurred to the bill on the grounds that the plaintiff had a complete and adequate remedy at law, and that the city of Roanoke was not made a party defendant. The demurrer was sustained, but the plaintiff was allowed to file an amended bill, which he did, making the city of Roanoke, and Laprade's wife also, parties defendant, and setting out and alleging more definitely the circumstances constituting the mutual mistake under which Laprade and the plaintiff were laboring when the contract for the purchase of the lot was made. Laprade also demurred to this amended bill, which demurrer was overruled, and he thereupon filed an answer.

With his answer Laprade files and tenders to the plaintiff a deed bearing date June 4, 1904, purporting to convey from the land company and the defendants, Laprade and wife, the lot which Laprade claims that he in fact sold and intended to convey to the plaintiff, which deed, so tendered, conveys an entirely different lot from that conveyed to the plaintiff by the deed of October 17, 1890, to wit, a lot with a different number and in a different section of the Rogers & Fairfax