Star.
London, England, 1829-05-11 00:00:00

LAW INTELLIGENCL

-wwww.e.
COURT OP ZINO'S BENCH. Wsnuntwea, MAT 10.
DO/DECRILD O. CORM AND DRUMM
This case, according to the statement of Sir J. Scott-
Lam excited a considerable sensation in the City. It
was an action brought to recover a sum of between
, 1,3001. and MOM money had and received by the de.
*,feedants to the Use of the plaintiff. It was tried before
Lord Tenterdeis. at Guildhall. at the Sittings after last
Term, and the circumstances were stated at the time.
The verdict was for the defendants.
Sir JAMIIS &ASSM now applied for a rule to show
cause why that verdict should not be set aside, and a
new trial granted; and he briefly recapitulated the cir-
cumstances. The plaintiff waa employed to pay the
dividends on the Prussian Loan. The persons entitled
to the dividends were furnished with certain papers or
tickets, called eat:pont. one of which each claimant pre-
sented at the house of the Messrs. Rothschild. as his
title to receive the dividend. After these papers had
been examined and passed, they were cancelled and
set aside in a place appropriated for that purpose,
and the Messrs. Rothschild gave cheques for the
payment of • the amount, with the words " and Co."
written across, the object of which was that the
name of the claimant's banker should be prefixed (pre-
suming that each would have a banker) by way of pre.
caution, without which the Messrs. Masterman and Co.
Mr. Rothehild's bankers, would not pay. A clerk of
the plaintiff, of the name of Byrne, whose duty it was
to see the coupons cancelled and deposited in the proper
place, on the payment of the dividends, contrived to
leave one of them uncancelled, and took it out of the
proper place, and had it passed and paid a second
tithe, by a cheque in the usual form. This cheque came
into the hands of a person of the name of Brady, a
retail wine merchant, who had dealings with the
defendants, who are wholesale wine merchants in the
City. This Brady applied to the defendants to get the
cheque passed through the hands of their bankers, as
the plaintiff's bankers would not pay without having the
name of some banker prefixed to the words " and Co."
according to the usual practice; and he (Brady) had no
banker of his own. Here it would have been but a rea-
sonable and proper precaution on the part of the de-
fendants to have demanded a full explanation as to
how a person in the situation of Brady could have a
cheque for a dividend to this amount, the capital of
which must have amounted to fifty-three thousand
pounds. They made no such inquiries. but sent Brady
with the cheque to the plaintiff's house of business to see
that the cheque was right. and Brady accordingly went
to the house, and applied as directed to a clerk of the
name of Turner. by whom he was informed as he stated
to the defendants, that the cheque was all right, but
that a banker's name must be inserted according co the
regular rule. Upon the return of Brady with the cheque
and this story. the defendants got the cheque filled up
by their banker. and procured the money now in dis-
pute. which they paid to Brady. from whom it came
into the hands of the clerk of the plaintiff who had corn-
. /flitted the fraud ; and that person, as it was understood,
immediately afterwards fled the country. The plaintiff.
on discovering the fraud, which had been practised OW
him. brought his action against :he defendants for the
amount of the money which he had lost ; and the clues.
tion submitted at the trial by LordTenterden to the Jury
was, in substance,whether, according to the us ral course
of business the defendants had made the proper inqui-
ries, and used the proper precautions, before they con-
sented to get the cheque passed at their bankers? The
Jury being of opinion that there was no want of proper
precaution, found for the defendants. Sit J. Scarlett,
however, contended, that there was a want of proper
precaution, and again adverted to the obvious improba-
bility theta person in the situation of Brady should have
capital in the Prussian Funds corresponding to such a
dividend. He also submitted that the evidence of
Brady. who was the principal witness, ought not to
have been received, and relied on both the points as
grounds for a new trial; but his chief ground was, that
the cheque had not been brought to the defendants by
Brady till five days after it became due, and that, as
cheques were bills of exchange, the defendants could
not be in a better situation than the person from
• whom they took it; and. in order to make a good de-
fence. must show that Brady had given a good consi.
deration for it, which they attempted to do, but had
t. In the case of Walsh, who had defrauded Sir
Thomas Plomer, which he had argued before the
elve Judges, he endeavoured to make a distinction be-
tween a cheque and a bill of exchange, when he was an-
swered by Lord Ellenborough,who said." Sir, a cheque is
emphatically a bill of exchange." If so, cheques must
be governed by the same rules; and the defendants,
having taken this cheque after it was regularly due.
must either show that the person from whom they took
it gave the proper consideration for it, or return the
money; and he cited the case of Down v. palling, in
Barn. and Cress. as one in point. The only distinction
he knew was, that cheques Were often presented for pay.
mew a day after they became due, while bills of ex•
change were presented on the very day; but here the
cheque was not presented to the defendants till five
days after it had become doe.
Mr. Justice BArLIT—The statement is, that the de-
fendants sent Brady to the house of Rothschild with the
cheque, and that Brady got it authenticated there, on
the same day or the day before it was passed by the
defendants.
Sir JAMAS Seantrre—That was only Brady's story.
Mr. Gurney. at the trial, bad very ingeniously at-
tempted to turn the charge of negligence on the plain-
tiff; but the charge was unfounded. as it was utterly
-impossible for any person, conducting such extensive
concerns as the plaintiff, to carry on their business with-
mu reposing confidence in some others.
Lord TINTINDIN—SuScient ground had not, in his
opinion. been shown to justify the Court in disturbing
the verdict. They could not lay it doivn that there was
any rule of law as to the time when a cheque ought to
be presented for payment, although it was a bill of es.
change; but it was a very fit matter for the considers.
tion of the Jury, whether the cheque was resented in
proper time, or under circumstance; which ought to
excite suspicion? In that way the question was left to
the Jury, and if the case were sent again to a Jury. it
did not appear• what other question could be put to
them. The Jury were men of business themselves, and
were the most competent judges of the question; and if
the Court were to set aside the verdict, he confessed that
be thought they would be trenching more on the pro-
vince of Juries than they ought to do.
Mr. Justice Beetti—He could not say that the goes.
don put to the Jory was net the tight one, and he could
not say that the Jury were not the proper judges whe.
ther the defendants had exercised a sound precaution?•
but still he would here been satisfied if the verdict had
been the other way. To be sure, it would have been a
hard case on the defendants, after Brady, had been been
sent by them toßothsebild's, and had suffered the cheque
to go out of his hands, and bad it again returned to him
at Rothschild's as authentic. But when, at the same time,
the defendants were apprised that the plaintiff 'Mused

I .. u

to dispense with the regular *course with respect to this!
cheque, this was an intimation that the-plaintiff required
the security of a banker, in CM the cheque should be
taker: under improper circumstances, and the defendants
oughttfierefore to have taken the greater precaution►
and to have made the stricter inquiry. If he had been
at the trial, he would have espected a verdict the other
way; but still it was a question for the Jury to deciJe,
and he acquiesced. __
Mr. Justice LITTLELCLI thought the direction to the
Jury right, and that the 'question as to the precaution
and time was matter for their consideration. Then as
to the question of the cheque bring over due. Bills of
exchange must be presented at a time certain, but
banker': cheques, though they were bills of exchange,
were not subject to the same rule. Small cheques were
often kept a considerable time before they were pre-
sented for payment, and in law there was no distinction
between a cheque for lOL and one for 10,0001. But,
perhaps, if the banker were to fail in the meantime, the
holder of the cheque might lose the benefit of it.—Rule
refuted.

COURT OF COMMON PLEAS. MAT 9.
WATIRHOUSI IP. BooTM.

Mr. Sergeant JONES moved for a rule to show cause
why the verdict found for the plaintiff should not be
set aside. and a new trial granted. It was an action
against a carrier to recover the value of certain goods
intrusted to his care, and by him delivered to Messrs.
Eastwood and Co.* to whom the plaintiff was indebted.
The cause was tried before Mr. Justice Bayley, at
York, at the last Assizes, when the Jury found for the
plaintiff.
The Covel granted a rule to show cause.
TOWLIM V. CHATTIBTON.
This was an action tried before Lord Chief Justice
Best st the last L;ncoln Assizes, to which the defendant
pleaded the statute of limitations. A verbal promise,
however, made within sil years, was proved; and upon
that arose the question, whether, under Lord Tenter.
den's Act (which says that no promise spell be given in
evidence atter that Act shall have come into operation
(January 1, 1829), to take the case out of the statute of
hmitations, unless the same shall be made in writing,
to be signed by the party making it), this promise
having been made before the passing of the Act, but
offered in evidence after the Act came into operation,
was sufficient to sustain this action? In other words,
whether this part of the Act was retrospective or merely
prospective? The Lord Chief Justice having taken the
verdict of the Jury upon the facts, nonsuited the plain-
tiff, and gave him leave to move to set aside the nun-
suit. and enter a verdict fur 71. the amount of damages
found by the Jury.
The CQURT observed, that the question was now pend-
ing iu another case before the Court of King's Bench,
the decision in which would probably govern this. It
was an important point, and they therefore granted the
rule.