Janin

The plaintiff was a depositor in the bank of defendant, and the controversy in this action grows out of the payment by defendant of a check for sixteen thousand seven hundred dollars, purporting to have been signed by plaintiff, and for which amount defendant claims that it is entitled to debit the account of plaintiff. The complaint alleges that this check was a forgery. This is denied in the answer, and as another and separate defense, it is averred, in substance, that the plaintiff is estopped to deny the genuineness of said check because of his negligence in not examining his balanced pass-book and returned checks, including the one in dispute, within a reasonable time, and giving notice that such check was forged, “ by reason of which laches defendant was prevented from tracing out the forger of said check or said signature, if it was a forgery, *22 and proceeding against him, for a period of nearly five months, and until all trace of said forger was lost.” The defendant also avers that the account between itself and plaintiff had become a stated one.

The check was paid on May 29, 1878, and on September 4, 1878, the defendant returned to plaintiff his passbook, showing the…

I concur in the views of Mr. Justice De Haven on the main questions of law discussed in the opinion, but think that the question whether the defendant sustained any loss by reason of „the plaintiff's failure to notify the defendant earlier of the discovery of the forgery should have been left to the jury. The evidence shows that the plaintiff had notice of the forgery several months prior to the time when he informed the officers of the bank of the fact, and when asked why he had not before spoken of the matter, he replied that he had been working up the case himself. It seems to me that, whatever may be said of the duty of a depositor to examine his checks promptly, it must be conceded that when he has discovered the fact that his signature has been forged, or is informed of circumstances which would put him upon inquiry as to the fact, it is his duty to report the matter immediately to the officers of the bank. If he has willfully withheld from the bank any information he may have had, he ought to be estopped from claiming that the bank could not have protected itself. Under the decision of the majority, it seems to me a dishonest depositor will be enabled, without peril to…