by John Marshall Harlan

“ If the bank pays forged checks it commits the first fault. It cannot visit the consequences upon the innocent depositor who, after the fact, is also deceived by the simulated paper. So, if the depositor, in the ordinary course of business, commits the examination of the bank account and vouchers to clerks or agents, and they fail to discover checks which are forged, the duty of the depositor to the bank is discharged, although the principal, if he had made the examination personally, would have detected them. ”

“ But when, as in this case, the agent commits the forgeries which misled the bank and injured the depositor, 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. ”

“ It is not necessary that it should be made to appear, by evidence, that benefit would certainly have accrued to the bank from an attempt to secure payment from the criminal. Whether the depositor is to be held as having ratified what his clerk did, or to have adopted the checks paid by the bank and charged to him, cannot be made, in this action, to depend upon a calculation whether the criminal had at the time the forgeries were committed, or subsequently, property sufficient to meet the demands of the bank. ”

“ The alleged duty, at most, only requires the depositor to use ordinary care; and if this is exercised, whether by himself or his agents, the bank cannot justly complain, although the forgeries are not discovered until it is too late to retrieve its position or make reclamation from the forger.'
In Manufacturers' Nat. Bank v. Barnes the supreme court of Illinois, while expressing its approval of the decision in Weisser v. Denison, shows that the bank was itself guilty of negligence in paying checks drawn by the depositor's clerk ”

“ The law, therefore, proceeding upon the soundest principles of morality and public policy, has adapted a large number of its rules and remedies to the enforcement of this duty. In almost every department of active life rights are in this manner daily lost and acquired, and we know of no reason for making the commercial classes an exception.'
Recurring to the facts of this case, there was evidence tending to show-we do not say beyond controversy-that Cooper failed to exercise that degree of care which, under all the circumstances, it was his duty to do. ”

“ In this way it operates to protect him against the carelessness or fraud of the bank. The sending of his pass-book to be written up and returned with the vouchers is therefore, in effect, a demand to know what the bank claims to be the state of his account; and the return of the book, with the vouchers, is the answer to that demand, and, in effect, imports a request by the bank that the depositor will, in proper time, examine the account so rendered, and either sanction or repudiate it. ”

“ Ohio Life Ins. & T. Co., 4 Ohio St. 667, while in the forum of conscience there may be a wide difference between intentional injuries and those arising from negligence, yet no man conducts himself 'quite as absolutely in this world as though he was the only man in it; and the very existence of society depends upon compelling every one to pay a proper regard for the rights and interests of others. ”

“ The peremptory instruction to find against the bank upon this cause of action was, perhaps, based mainly upon the assumption that the indorsement imported a direction to place the amount of the check to the credit of Cooper as agent for Ashburner & Co. But there is ground to contend that such was not the intention of Cooper. Evidently he had for use a stamp by which he could print the foregoing words upon checks which he desired placed to his credit as agent for Ashburner & Co., leaving a blank line for his own signature. ”

“ They cannot now require the defendant to correct a mistake to its injury, from which it might have protected itself but for the negligence of the plaintiffs. Whether the plaintiffs were required, in the exercise of due diligence, to read the monthly statements or to examine the checks, and how careful an examination they were bound to make, and what inferences are to be drawn, depend upon the nature and course of dealing between the parties, and the particular circumstances under which the statements and checks were delivered to them.' So in Hardy v. ”

“ In the first of those cases it was said by PARKE, B., for the whole court, that 'if, whatever a man's real intention may be, he so conducts himself that a reasonable man would take the representation to be true, and believe that it was meant that he should act upon it, and did act upon it as true, the party making the representation would be equally precluded from contesting its truth ”

“ The notes were received by the Bank of Georgia as genuine, but being discovered 19 days thereafter to be counterfeits, they were tendered back to the Bank of the United States, which refused to receive them. ”