1802. LEVY power under which they suffered their stock to be transferred; for in Hilyard v. The South Sea Company, (a) Sir J. Jekyl held that the company was but a mere instrument or conduit Bank U. S. pipe, and that it was the purchaser's concern to inquire into the letter of attorney. V. 2. But if this entry is considered to be an acceptance, still it is competent to the acceptor to deny the drawer's hand writing against every one but him to whom the bill has been negotiated after acceptance. All the cases which are so reported as to be worthy of credit, put it upon the ground that the acceptor has given a credit to the bill. In the leading case of Jenys v. Fawler, from Strange, Lord Raymond would not admit evidence to be given that the drawer's name was forged, from the danger to negotiable notes; and he inclined that actual proof of forgery would not excuse the defendants against their own acceptance, which had given the bill a credit to the indorsee. This was therefore the case of an indorsee after acceptance. That Lord Raymond limited this principle to the particular case is evident from Wilkinson v. Lutwidge, (b) decided by him in the prior reign, where, as between the acceptor and the plaintiff who was the holder before acceptance, he held that the former was not concluded from shewing the forgery; the acceptance being in his opinion merely presumptive evidence of the drawer's hand. Price v. Neal was also the case of an indorsee after acceptance, and therefore comes within the rule of Jenys v. Fawler. Smith v. Chester contains to this point only the dictum of judge Buller, and not delivered with reference to the distinction we take. When he repeats the same sentiment in Master v. Miller it is again his dictum; and in his general ideas in that case he was opposed by the whole court of King's Bench whose judgment was affirmed in error. It certainly may be true under some circumstances that" if a bill be forged the acceptor is "bound;" but wherever the question has been solemnly discussed the proposition is limited according to our argument; so that it is impossible for the plaintiff's counsel to bring any thing but dicta to their support, while the doctrine of the cases which are adverse to them has been adopted by more than one elementary writer; 3 Woodeson 115. Kyd 202.; and if instead of resorting to an arbitrary and in many cases an untrue position that the drawer's hand must be known to the acceptor and not to the (b) Stra. 648. (a) 2 P. Wms. 76. 1802. LEVY υ. holder, we adopt the reasonable and honest rule that so far as the acceptance has given the bill a credit the acceptor shall be bound, we introduce a harmony into the system which reconciles the cases with the dicta, and an equity which tempers the Bank U. S. severity of the law in its operation upon an innocent person. If the case is resolved into a question of laches, what comparison is there between the conduct of the plaintiff who held this check in his hands three days after it was due, and that of the bank whose clerk during the hurry of business entered it in. the bank book? The most that can be said for the plaintiff is that he and the bank are in equal neglect, and then melior est conditio possidentis. 3. The plaintiff claims through a forgery. Mead v. Young (a) is decisive. There a bill was drawn payable to a certain H. Davis or order and came by accident into the hands of another H. Davis. While it was in his hands it was accepted and then indorsed by him to the plaintiff. Three of the judges were clearly of opinion that he could not recover from the acceptor, because he claimed through a forgery. The policy of the law compels the holder of the bill to pursue the perpetrator of the crime, who must be more within his reach than that of the acceptor. 4. The conversation of the plaintiff proceeded upon no mistake, as all the facts were fully communicated to him; it was a deliberate renunciation of his right if he possessed one. It moreover prevented the bank from making any exertion to arrest Thomas, who on the same evening absconded. In reply it was said that the plaintiff does not claim through a forgery, but through the entry in the bank book. He does not make title through the bill, but they attempt to defeat his title by setting up the bill. There is no evidence that the bill was in the plaintiff's hands a day before he presented it; the date is no evidence of the fact; and if there was a delay it was for the interest of the bank. SHIPPEN C. J. 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 (a) 4 D. & E. 28. 1802. LEVY V. ment, 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 Bank U. S. 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 partics. 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 1802. LEVY V. Bank 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 present- Bank U. S. ed; 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 Ingersoll for the plaintiff, upon the same points which were made at the trial; but the court stopped Ingersoll in his argument, and immediately discharged the rule, without assigning their reasons. ON The Commonwealth against PASCALIS. Thursday, December .9th. A prefer N this day, which was the fourth day of the term and of the general jury period, the attorney general asked the ence must court to give this cause a precedence upon the trial list, agree- the commonably to rule 52. 7th January 1789. But be asked for wealth caus es upon the first day of Per CURIAM. A preference should have been asked upon the jury the first day. The cause must now take its chance. period. 1802. Monday, December 27th. A bill of exceptions to the charge may be tendered at any JONES and CLARKE against The Insurance Company of North America. AFTER the sealing up of their verdict in this case by the jury, but before the delivery of it in court, E. Tilghman time before for the defendants tendered a bill of exceptions to the charge of the jury have the court delivered by the chief justice; and the question was their verdict whether it was in time. delivered in open court; even after they Dallas for the plaintiff's objected that it was too late. The stahave agreed tute of West. 2. 13 Ed. 1. c. 31. which gives the bill of Excepupon it and sealed it up. tions, specifies no time; but it must be tendered at the trial. Bull. N. P. 315.; Wright v. Sharp (a); Tidd's Prac. 312. 314.; and at the trial means before verdict. Exception shall not be allowed after verdict, Tidd 314.; and the uniform practice has been to tender the bill at the time the exception is taken, Mostyn v. Fabrigas (b), Symmers v. Regem (c); though it may be sealed afterwards. Money et al. v. Leach (d). The same point is expressly ruled in Wright v. Sharp, where Holt C. J. and Powel J. say it must be prayed and minutes of it taken at the time of trial, and the cause may go on nevertheless; it may be reduced to form afterwards. The judge is not obliged to seal it unless it is offered at the trial. Pocklington v. Hatton (e). It is compared to a demurrer to evidence and to a special verdict, both of which must be minuted at the time. Gibson v. Hunter (f). The judges should set their seals that such exceptions were taken at the trial; and the writ to acknowledge the seal presumes that at that time the exceptionable matter was noticed. Money v. Leach. The precedents all justify these positions. Bull. N. P. 319. Lill. Ent. 249, 250.; and every evil which can arise from a bill of exceptions after a common verdict, will arise after one of this character, sealed up for delivery. E. Tilghman stated that the objection was taken as soon as the court opened, and before the jury appeared at the bar. A verdict had indeed been agreed upon, and sealed up for the con (a) 11 Mod. 175. 1 Salk. 288. S. C. (d) 1 W. Bl. 556. 3 Burr. 1692. S. C. |