delivered the following charge to the jury This case depends partly upon law, and partly upon the facts which have been given in evidence to you; upon the former it is incumbent upon us to give you our sentiments. Several points of great importance have been made in the course of the argu*36ment, upon some of which the court have an opinion, and indeed no great doubts upon any of them. They will communicate enough to assist you in forming your verdict, and if any dissatisfaction is felt by the counsel, they can put the matter in train for revision. It is our opinion that when the check was credited to the plaintiff as cash, it was the same thing as if it had been paid; it is for the interest of the bank that it should be so taken. In the latter case the bank would have appeared as plaintiffs; and every mistake which could have been corrected in an action by them, may be corrected in this action, and none other. Now the law seems to be well settled that where a bill of exchange to which the drawer’s name is forged has been paid by the drawee, it is too late for him to question the hand writing, and the loss must therefore fall upon him. The effect of an acceptance of a forged bill is not quite so clear. Some of the authorities decide that the acceptor is bound, because his acceptance gives a credit to the bill, and as it is very common to negotiate bills after acceptance, and indeed to procure their acceptance for the purpose of negotiating them, the reason of this rule may include the greatest number of the cases which occur. If the acceptor were liable for no other reason, this point would be in favour of the defendants, for the bank did not give the check a credit with the plaintiff. But the modern cases certainly notice another reason for this liability which we think has much good sense in it; namely, that the acceptor is presumed to know the drawer’s hand writing, and by his acceptance to take this knowledge upon himself. In Price v. Neal it is said that it is incumbent upon the acceptor to be satisfied that the bill is the drawer’s hand writing, before he accepts it; that is, it is his duty; and if he does not attend to it, it is a neglect for which he should suffer, and not the holder whose duty it is no where asserted to be. This rule would include the plaintiff’s case. But as it is a point of much importance, it shall be reserved if the counsel request it. The delay of the plaintiff in presenting the check, even if it were proved, is of no importance between these parties. There are instances in which an indorsee holding a bill too long makes it his own; but it is for a reason which can never avail the acceptor or drawee. The drawer or indorser may lose by the delay, if their responsibility is held to continue; but it is for the advantage of the acceptor that the demand should be deferred, and he cannot sustain any injury by it. Whether the *37Bank is entitled to a certain time for the purpose of examination, depends upon their mode of doing business with their customers, which is a matter of fact. It is impossible that they should be able to detect every forgery the instant it is presented; and they are clearly free from any laches in communicating the detection of this forgery to the plaintiff. But it is said the plaintiff has voluntarily renounced his right, by agreeing that it was no deposit if the check was a forgery. If he had said this deliberately, knowing his right, it might have been obligatory on him; but it was the expression of an opinion of what he should be obliged to allow, rather than of what he was willing to allow, and being under a mistake of his right he is not bound by it. The case of Penn and Lord Baltimore is decisive to this point. I was present at the argument half a century ago, and heard Lord Hardwicke say, though it is not mentioned in the printed report, that if Lord Baltimore made the agreement in question under a mistake of his right to another degree of latitude, he ought to be relieved; but that he was not mistaken-As some of the points however are of extensive commercial importance we will hear their merits examined in bank on a motion for a new trial, or otherwise if it is desired. In the mean time you will find such a verdict as the evidence and the law, as thus explained to you, will warrant.
Verdict for the Plaintiff.
A motion for a new trial was argued at March term 1803, by Rawle and Lewis for the defendants, and by Lngersoll for the plaintiff, upon the same points which were made at the trial; but the court stopped lngersoll in his argument, and immediately discharged the rule, without assigning their reasons.