The Sun.
London, England, 1839-12-20 00:00:00

LAW INTELLIGENCE.

COURT OF EXCHEQUER, DEC. 19.
(Sittii.gs at Nisi Prins, before Mr. Baron GURNEY and
a Special Jury, at
MORTIMER V. WALLAH.
_

Mr. Cresswell, with whom were Mr. Richards and
Mr. Martin, appeared for the plaintiff; and Sir W.
I Follett, with Mr. Bagley, was Counsel tor the defendant
The plaintiff in this case is a gentleman connected
with the Stock Exchange, and sought to recover by this
action a sum of 4,5311. ss. from the defendant, who is
a tailor, carrying on his business in King-street, Covent-
garden, under the following circumstances, as substan-
tiated by the evidence which was adduced by the Leatned
I Counsel on both sides in support of their cpening state-
Iments. The defendants, it appears, had been in the
habit of intrusting "the working of his capital," as he
termed it himself, to a broker named Taylor, a man who
had been in that line of busiaess for some years, but
had gradually been contracting his monetary transactions
for some little time past. According to the system
adopted between them, the broker would seem to have
been confided in to a considerable extent, until Mr.
M'Allen, in September last, came to the determina-
tion to relinquish a course of dealing with his loose
capital which he found had been productive of more
trouble and anxiety than the increased profits arising
therefrom could compensate him for. He accord-
ingly intimated to Mr. Taylor by note that he wished
hint to re-invest at his earliest convenience whatever
stun he might have of his in his hands, and which did in
fact amount to something under 5,0001. Mr. Taylor,
however, it would seem, had abused the trust so imposed
on him by his correspondent, for he was at that time
utterly without any funds wherewith to satisfy his de-
mands, but being at length peremptorily called upon to
meet him at twelve o'clock on Monday, the 7th of Sep-
tember last, in order that the transfer of the stock so to
be purchased in his name might be made, he attended
for that purpose at his usual offices, from which he had
been absent on the Saturday before, for which day the
appointment had been originally made. These parties
having so met, Mr. Taylor left the room with the
avowed intention of purchasing the stock required with
the money so in his bands, but in fact with the deter-
mination to get the stock " by hook or by crook," as
the Learned Judge expressed himself in summing up
the case to the Jury. He accordingly applied to the
plaintiff, whom he met on the Stock Exchange, saying
that he wished to purchase 5,0001. stock for Mr.
M'Allen immediately, but that gentleman not being at
the instant able to do so in his own name, made an
arrangement with a friend named Ward, who agreed to
make the transfer on his account. The transfer
ticket of that sum was accordingly made out,
and handed over to Mr. Taylor, who thereupon re-
paired to Mr. M'Allen at his office, where an acceptance
of the bargain was executed by that person, and the
stock securely transferred into his name. As soon as
this was done Mr. Mortimer demanded payment of the
Purchase-money, amounting to 4.5311. 55., from Mr.
Taylor, requiring from him the check of his principal.
Mr. Taylor. however, begged hint to wait till the next.
day, and in the meantime offered to give a cheque on
his own bankers, Messrs. Roberts and Co., which he
wished not to he presen;,ed until the following day, as he
said he had received a cheque from his principal on a
West-end banker, which he could not get till that time.
Mr. Mortimer, however, insisted on that being banded
over to him, when Mr. Taylor said he could not do
that, as he had already paid it into his bankers ; but
this Mr. Mortimer answered by saying, "Oh ! very
well, then come and walk with me to your bankers, and
we can easily get the cheque back again." This course
Mr, Taylor assented to, and they were proceeding on
their way to Messrs. Roberts, when Taylor turned
round and confessed that he had never had
any cheque from the defendant ; hut that being
indebted to him for stock previously sold out for
him, and also for money paid, to the amount of 5,000/.
stock, he had been suddenly called upon to invest that
amount, and heed thus been driven unavoidably to per-
petrate this friend upon the plaintiff. Highly indignant
at this communication, Mr. Mortimer instantly caused
a distringas to be placed upon the stock so transferred
to Mr. M'Allen's name, and on tho same day pro-
ceeded to lay his case before the Committee of the
Stock Exchange, when in the presence of Taylor he
made the above statement, which was admitted by Tay-
lor, with the additional statement, that though he
knew he could not pay the purchase-money of this
stock, he had friends in town and country from whom
he hoped to receive the necessary funds, unless the
transaction was revealed to the public. The unfortu-
nate man, it would appear, never after this day ap-
peered at his office, and shortly afterwards absconded
from his private residence ; nor was he traced until the
body of a stranger was found stricken with apoplexy
while in a cab, we believe, which turned out on the in-
quest to be that of the absentee. Under these melan-
choly circumstances it was that the action was brought,
the plaintiff contending that the defendant was liable to
him, while Sir W. Follett for the defendant on the other
hand, urged as a defence thereto, that according to the
regulations of the Stock-Exchange itself; the credit on
all such transactions was that of the broker buying the
stock, and not that of his principal, who, being in most
cases wholly unknown to the seller, was not likely to
obtain much credit from those in the habit of frequenting
the Money Market. It would be a new practice if the
plaintiff should make out that the principal was liable to
whom a broker had transferred stock purchased by him,
no matter what the accounts between them might be.
The brokers and jobbers transacted all the business
themselves, and. knew each other well, and their res-
pective credit ; the transfers and soles, therefore, were
made on the faith of being paid by the broker
doing the business, and the usual course of the. business
seemed to be to take their cheek. If the broker was a
doubtful man, the seller would hold back the transfer
till he was satisfied of the money, and as some one is to
bear the heavy loss consequent upon this fraud of the
broker, it was but right that the plaintiff should do so,
for he dealt with a man whose position he was the best
judge of.

Mr. CRESSWELL, in reply, said that it was not a
correct statement of the usual course of the dealings
on the Stock Exchange, for so far from its being usual
to look to the broker, the credit was never given to
him, nor is he always held liable, unless the principal
neglects to pay : that was the object of the fourth re-
gulation of the committee, which expressly says, that a
broker shall be liable, even though he gives a reference
to a third party, if the third party neglects to pay ; so
that, in fact, he is only the last resource of the seller.
The evidence however in this case fully proves that no
credit had ever been given to Mr. Taylor,
who had none on the Exchange at the time
of this transaction, and who was immediately asked
by the plaintiff to give the check of his principal, and
not his own, with which Mr. Mortimer would not have
anything whatever to do. There could be no doubt
but that the plaintiff had been defrauded out of the
stock, which he had immediately put a distringas upon,
and to recover the entire of which he had brought this
action at the very earliest point of time. It the fraud
was that of Taylor alone, at any rate it was one in
favour of the defendant, who had imposed such blind
confidence in him, and who ought to bear the loss ra-
ther than the plaintiff, a stranger to him, and one who
certainly showed no inclination to trust him to any
amount.

Mr. Baron GURNEY then addressed the Jury on the
whole case, the main question wherein was, whether the
plaintiff had trusted to Taylor, and to Taylor alone, in
the transaction for the payment of the value of this
stock so transferred by him to M'Allan.
The Jury having retired for about half an hour, re-
turned with a verdict for the plaintiff for the full amount
claimed, which was accordingly so entered, subject to a
motion on a point of law raised by Sir W. Follett as to
the right of the plaintiff to maintain the present form of
action, which was indebitatus assumpsit for the value of
this stock, with reference to the statute of George IL,
c. 8, s. 8, by which it is enacted that all sales and
transfers of stock by persons not actually possessed of
the same shall be illegal and void in law. The Learned
Gentleman cited the case of " Child v. --," p. 162
of 8 T. R., in support of this position, but the Learned
Baron determined to allow the ease to go on, subject to
future proceedings, if he should be wrong in the opinion
entertained of the case, which seemed to be favourable
to the plaintiff's right to sue in the present form.

EXCHEQUER IN EQUITY, DEC. 19.
DIXON V. BUTLER.
Mr. SHARPE (with whom was Mr. Wray) appeared in
support of a petition from the parish of Abram, in the
township of Wycombe, praying for the payment of the
sum of 5001., bequeathed by the will of Elizabeth Be-
van, to build a church.
Mr. TEMPLE and Mr. BAGSHAW opposed the peti-
tion on behalf of the residuary legatee.
Mr. Baron ALDERSON said he should take time to
consider the matter, because it was one of some nicety,
and should probably give his decision on Saturday
morning.