Star.
London, England, 1821-11-23 00:00:00

DAVIS V. THE BANE OF ENGLAND.

Lord Chief Justice DALLAS said, that in this case
Horatio Davis, Esq. was the plaintiff, and the Go-
vernor and Company of the Bank of England were
the defendants ; and the .declaration stated, that the

plaintiff had deposited in his own name in the public
books of the Bank, £lO,OOO in the S per Cents. that
the defendants had, on the 12th of October, 1819,

and on the 16• h of November following, suffered the
iaid Stock to be transferred, in two sums of £'5,000

each, from the plaintiff's name in their public books
without his knowledge or authority. The declara-
tion also stated the transfer in the same manner of,

some small property of the plaintiff in the 75 per Ct.
Long Annuities. The damages were laid at £15,000.
The Attornies on each side agreed upon the fol-
lowing admissions :—That on the26th of May,lBl9,
the plaintiff had duly purchased and entered in the
Bank books two sums of £5,000, Consolidated Bank

Annuities; that on the sth of July following, the
dividends upon the said stock were duly received by
him ; that he had received no subsequent dividend
from the Bank ; and that no part of the said sum of
£1 0,000, `,3 per Cents. now stood in his name in the
books, it having been transferred; £5,000 on the
12th of October, 1819, by a Power of Attorney to
Messrs. Drummonds, bearing date the 6th of that
month ; and, on the 16th of November, the remain-

ing £5,000 was transferred by a Power of Attorney
to the same Banking-house : that on the 30th of Sep-
tember, 1820, the plaintiff demanded of the Bank
the dividends upon the said stock subsequent to the
receipt of his former dividend on the sth of July,
1819, and that the defendants had refused payment
thereof. The plaintiff insisted that to the said Powers
of Attorney the signature was a forgery.
The CHIEF JUSTICE, after this preliminary state-
ment of the facts of the case, proceeded to read his
notes of the trial at Guildhall, in which a verdict
was given for the defendants. The first witness was
Lady Davis, and she proved that her name to the
attestation of the Power of Attorney was a forgery.
It also appeared from the evidence, that on the 3d
of March, 1820, John H. Davis, the brother of the
plaintiff, was apprehended and lodged in the Poul-
try Compter, upon a charge of forging a bill on
Messrs. Drummonds and Co. a forgery quite uncon-
nected with the present case : that on the 12th of
Jan. 1819, the day for paying the dividends plain.
tiff went to the Bank, and got some small sum as
his dividend upon Long Annuities, but lid not de-
mand his larger sum for dividend upon the 3 per
Cent. stock which had stood in his name, and which,
had he done, must have led to an earlier detection of
the forgery upon the Bank ; and that a day or two
before that time he had received a draft from his
brother for £l5O. The reason which was assigned
for his not calling for his larger dividend on the day
' before stated was, that he was going to an auction
in the city, and did not want the amount at that mo-
ment. The receipt of the £l5O from his brother was
not (as stated) remembered by him at the time of the
trial, nor had his attention been previously called to
it in the bill of discovery filed by the Bank. From
all that appeared, it may be taken that on the sth of
March, 1820, the plaintiff knew of the forgery corn-1
mitted upon him by his brother ; but in the month of
September, 1820, he transmitted a Power of Attor-
ney to Messrs. Marsden and Co. Stock• brokers, to
receive dividends upon 1:10,000, 3 per Cents. which
he represented as standing in his name in the Bank
lof England ; and he wrote to these Gentlemen at
the time, as if he was entirely ignorant that any for-
' fiery had been committed. On application to the
Bank there was a. refusal to pay, an allegation of the
forgery, and ultimately came this action. On the
sth of March, Colonel Davis, the brother, was in
custody for the forgery on Messrs. Drummonds.—
Lady Davis, in her evidence, said, that at an inter-
view between her sons in the Poultry prison, some
conversation took place about the forgery on the
Bank; but of the fact she could not speak with cer-1
tainty, nor indeed could any particularity have been
expected from her Ladyship, owing to her agitation
when the conversation in the prison was alluded to,
and also, indeed, on the trial. But, adverting to the
plaintiff's answer to the bill filed by the Bank, it
would be found that he there denied all knowledge
of the forgery, until he obtained information thereof
from Messr4. Marsden at the time he transmitted to
them the Power of Attorney. There was at the trial
some evidence to shew as far as this—that in the
prison a conversation like the following took place
between the plaintiff and his brother, Colonel Davis:
" You are charged in a strong manner with com-
mitting a forgery : have you done anything with my
property, or any part of it?"—" Yes, I have," was
said to be the answer; " I have taken £lO,OOO Con-
solidated Annuities, and 75 per Cent. of the Long
Annuities."—" Then you have indeed beggared
me," was the reply. There the conversation ended.
Some letters were also given in evidence, one of the
7th of March, two days after this conversation'
with the brother in prison, written by the plaintiff
to Messrs. Drummonds, the object of producing
which was to shew that the plaintiff had thin a

knowledge of the forgery. In one letter were throe
words 1-6, By what has happened, my prospects ate
blasted, and a great part of my fortune irretrievably
lost." The object of this letter was to implore com-
passion for his brother, who was then in custody.—
In the answer of the plaintiff to the inference raised

upon this letter, he said, that the expressions referred,
not to this forgery on the Bank, but to certain secu-
rities and loans in which he had become involved for
his brother. The Chief. Justice then stated, that in

summing up the whole case to the Jury, he had ob-
served, that if there was a wilful suppression of the
knowledge of the forgery for any unreasonable time
after its discovery, such a suppression would impli-
cate the party making it, either in a knowledge of
the forgery at the time, or in acquiescence in it sub-
sequently, so far as to preclude his right of recovery.
The Jury thought that the plaintiff had precluded
himself from t. Ling his right,: and had given their
verdict against him accordingly. During the pre-
sent Term, the plaintiff had obtained a Rule to sliew
cause why a new trial should not be had, on the
ground that he was taken by surprise in the proof of
his receiving, at a particular time, £l5O from his
brother, a circumstance which greatly influenced the
Jury, but which he was now prepared satisfactorily
to explain away.
Mr. Serjeant Bo 8 A NQUET rose to shew cause against
this Rule. It was not contended that there was, upon
general principles, any reason to find fault with the
verdict ; but that the plaintiff had been at the trial
taken by surprise upon a particular fact, which was,
his having received £l5O on the 11th of. January, by
means of a draft paid on his account to his bankers,
Messrs. Cox and Co. by his brother. That fact could
not have been inserted in the bill of discovery filed
by the Bank, for he had Mr. Freshfield's affidavit to
thew, that the defendants did not know it until three
days before the trial. The plaintiff, it would be re-
collected, had distinctly denied receiving any sums
of money from his brother, directly or indirectly,
since the first transfer of the stock had taken place.
It being of great moment to trace any money trans-
actions which happened between the brothers at that
period, it was soon found on investigation that the
plaintiff's declaration was incorrect : for upon re-
ference to the bankers of Mr. Horatio Davis, the
plaintiff, it was found that two sums, of £BO and
£l5O, had been paid to his account by a draft from
his brother on the 11th of January. The moment
this fact was ascertained, Mr. Freshfield gave notice
to the plaintiff to produce at the trial his bankers
pass-book between the Ist of October, 1819, and the
10th of July, 1820: so that he was clearly apprized
before the trial, that his bankers account, within the
period specified, would become the subject of inquiry;
and yet he now came forward and said that he was
taken by surprise, when, at the trial, an item in that
account was produced before him: but independent
of that timely notice, the length of the trial enabled
him, if he pleased, to have explained the transac-
tion, for he was, in the vicinity of Guildhall at .the
time. He had, therefore, quite disentitled himself
from putting in any claim of surprise. His Counsel
(Mr. Serjeant Lens) had commented upon the fact at
the trial : he had never offered, indeed, to explain it
away, as was now attempted, but had submitted that
the plaintiff's brother might have paid in the sum
mentioned to his bankers, without apprising his bro.
ther in any way of the fact. Lady Davis, who might,
if the account were correct, have explained it, was
never asked upon the subject.
Mr. Serjeant ONSLOW.—" You must recollect she
was permitted, from her distressing situation, to leave
the Court."

Mr. Serjeant PELL admitted that to have been the
case, but still urged that she might easily have been
recalled to support such an explanation about house-
keeping accounts as was now attempted to be put
upon the £l5O. Besides the £l5O, there was the sum
of £BO, which had passed from J. H. Davis to his
brother, and which remained altogether untouched
upon; and this, after the latter had distinctly de-
clared he had received no sums of money from his
brother at the particular period when the occurrence
took place. He must contend that there was no
ground of surprise in the case ; and as to the general
facts, he thought it was clear the plaintiff, from the
conversation with his brother on the 5:1 of March,
had then at least, if not before, known of the forgery ;
and it was equally clear he made no communication
upon the subject to the Bank until the September
following, when he received the refusal of the Bank
to pay the dividends to Messrs. Marsden and Co.
upon his power of attorney.
Here Lord Chief Justice DALLAS read from his
notes the letter written by the plaintiff to Messrs.
Marsden, with the power of attorney to receive his
dividends upon the £lO,OOO, 3 per Cents. and assign-
ing at' the time his mother's (Lady Davis) illness in
the country, as the reason he was unable to come up
to town, And receive the dividends himself.
Mr. Serjeant BOSANQVET concluded by observing,
that he should abstain from going further in this case
than was absolutely necessary for the purpose of re-
sisting this Rule.
Mr. Serjeant TADDY rose at the same side, when
Chief Justice DALLAS inquired whether his obser-
vations were likely to occupy any length of time, as,
if so, the late period of the day would preclude the
Court from hearing him ?
Mr. Serjeant TADDY replied, that he should not
detain the Court many minutes. He then merely
urged that the fact of surprise upon which the motion
for a new trial was grounded, was quite inconsistent
with the whole of the facts disclosed on the trial.
Mr. Serjeant LAWES merely repeated the same
observation.
The Court then adjourned the further hearing of
the Rule, and intimated that Mr. Serjeant LENS could
be heard in reply to-morrow.

CORN EICIIANOS, MARE-LAPR, Nov. 23,—Our Market conti-
nues most abundantly supplied with Wheat from what remained
over of last week's supply, and fresh arrivals received during
the present, and for which there is little or no demand, eacept
prime picked samples of old, which with difficulty obtained
the prices of last Wednesday ; but all other descriptions are
nearly unsaleable, and the prices, cf course, remain nominal.
fine bright Malting Barley, being scarce, is in brisk demand at
Monday's pricer, but the ordinary sorts are very heavy and ra-
ther cheaper. Beans and Peas are dull sale, but not lower is
prices. Oats are very heavy, owing to large arrivals. In other
articles there is no dictation.

Summate MASILIT, Nov. 23.—There was a good supply 66
Market this morning of all descriptions of Catae, and prime
Beasts obtained last Monday's prices, but inferior sorts were
dull sale. Hay, Straw, and Clover remain the same.

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