The Liverpool Standard and General Commercial Advertiser.
Liverpool, Merseyside, England, 1842-04-08 00:00:00

pehblethwite, one of the Liverpool directors, suggested that

before a dividend was declared, they had bet
the affairs of the bank, and see whether they were in a con-

examine into

dition to make a dividend ; but Mr. Bower magnificently

said he was not tkere as aclerk to examine the accounts

they must presume that the accounts were correct, and the

suggestion was overruled. But when the shareholders were
not satisfied that the defendant and his brother directors

owed nothing to the bank,

Mr. Hebblethwite asked Mr,

Bower if he owed the bank anything; and the defendant re-
plied " I assure you, upon my word, I don't owe the bank
Is.: on the contrary, I assure yon I have a large balance in
my favour." At that very time he made that declaration,
the defendant had drawn many thousand pounds out of the
bank. At the next general meeting it was resolved, that an
account should be submitted to the shareholders, in order to
show the balance which each party was then owing to the
bank ; and the transfer of Mr. Bower's share account from
this general account was made by Mr. Bower himself, in
order to prepare for the important day, when the real state
of his account must be submitted to the board. When he
made the disclaimer•to Mr. Ilebblethwite, he was indebted
to the bank about £14,000 ; and it was therefore necessary
for him, before the meeting on the Ist January, 1840, to re-
duce that balance as much as possible. By the 26th of De-
cember, 1839, he had contrived to reduce the account to
£8793 ; and on that day, by the transfer from the general
account of the sum which was supposed to represent the
value of the shares, he succeeded in further reducing the ac-
count to £4163, that was supposing nobody found Olathe had
a separate account. The following day a dishonored promissory
note of his swelled his account to £8,172. Then Mr. Bower
paid into the bank, not cash, but two promissory notes of his
own, each drawn for £4,000, and at twelve months ; the bank
discounted them; the proceeds were put to his credit; and
then apparently in the account current his large account was
reduced to £439 ; and then he thought himself in a fit condi-
tion to meet the proprietors. At this time he actually owed
the bank £17,800. Though for a time the proprietors were
blinded, yet the state of the accounts was such as to surprise
the gentlemen to whom the account current was submitted.
The system of suppression could not long prevail, and it be-
came apparent what the real state of the account was between
the defendant and the bank. There was but one general half-
yearly meeting after this, at which Mr. Bower again presided ;
a dividend was again declared as on the paid-up capital, and
every one of the defendant's shares was still regarded as ca-
pital paid up • £125 being carried to his credit, and £25 upon
his own 200 shares which he had purchased. At length Mr.
Bower found himself in a very unpleasant position as a di-
rector of the bank ; and he quitted the direction of the board
in May, 1840. The bank, which, but for its directors, might
have had a lucrative business, struggled on in difficulty till
June, 1840, when it stopped for a short time, but afterwards
resumed, and was now carrying on business for the purpose
of winding up its concerns. Of course the shareholders
called upon every one indebted to the bank to pay ; and
amongst the first they called on the defendant, who at first
never pretended that he did not owe the sum claimed. He
need not tell the jury that in payments made to a bank, un-
less made with a specific appropriation, or directed to be car-
ried to a specific account, they would go to pay off the earlier
items of the debt : therefore, the money of which the de-
fendant availed himself on his cash credit, had been paid long
ago ; and the sum now sought was for the remainder due to
the bank, after the payments of the defendant to the early
debits. This sum now claimed amounted to £4,700 or
£4,800, and, with interest, would amount altogetherto about
£5,000. It was not till the bank stopped that the defendant
began to say that he was not liable for any shares, and that
he had paid the bank every thing except a small sum. The
question, then, was in fact, whether Mr. Bower should be taken
out of the general rule, and not be compelled to pay the balante
of his account, which had been acknowledged over and over
again, because it appeared in his pass-book, kept under his own
eye; and he never made any objection to it. The money re-
presenting the shares had been paid over and over again, and
what was sought comprised the later items in the account.
When the transfer of the share account took place, Mr.
Bower, at his own request, was furnished with two pass-
books, in one of which were entered the share transactiot s,
and in the other his ordinary account; but that would not
avail Mr. Bower, because that was done under his own di-
rection, and for his own purposes ; and it really made no
difference in Mr. Bower's transactions with the bank. Mr.
Knowles said, he must mention Mr. Slater as an honourable
exception to the other directors ; for he had paid for his
shares in cash, and held them to this day. It might be ex-
pected that he (Mr. Knowles) should make some strong ob-
servations on the conduct of the • defendant and his brother
directors ; but be should not do so ; for no observations he
could make would reach the feelings of Mr. Bower, who ap-
peared determined to take advantage of some little point of
law that might turn up In his favour, rather than forego the
shameful disclosure of. the proceedings which had taken
place in this bank; and he trusted the jury would give a
verdict against the defendant for every shilling to which he

was fairly liable. _
Documentary and parole evidence was then gone into, as
to the various meetings, dividends declared, and the entries
in the ledgers of the bank and the defendant's pass-book.
It appeared that the pass-book from the commencement to
May, 1839, called the old pass-hook, was in New Zealand ;
and a copy of it was put in. The new pass-book was filled,
and carried into a third book; and besides these there was a
pass=book or transfer-book, relating to the shares. The two
promissory notes of £4,000 each were also put in and read.
The balance due on the Ist of January, 1812, on the share
account, was £5,125 16s. 11d. ; the balance due to the bank,
on the cash account, on the Ist of January, 1841, was
£5 4s. Bd. ; and since then several payments had been'inade
to the defendant's credit.
Mr. Hebblethwite proved what had passed at some of the
meetings of the board and the proprietors at large, and the
conversations as to the profits of the bank, and its condition
to pay a dividend. Mr. Bower had declared on one occa-
sion, that the profits of the bank were 10+ per cent per an-
num. The liabilities of the bank, when it stopped, were a
million and a half.
Mr. DUNDAS.—Oh, that's nothing at Manchester.
Cross-examined.—The bank proved against witness's estate
for £14,000; and when he said his mind was easy, he owed
the bank about a third of that amount. He supposed the
bank felt easy about him. Witness was the plaintiff in the
cause of Hebblethwite v. 211`illoreen, of which much had
been heard in Westminster Hall, touching a sale of " Brigh-
tons" by the plaintiff to the defendant, in blank, in which
action witness was unsuccessful.
Mr. DUNDAS (with whom were Mr. Tomlinson and Mr.
Watson) then addressed the jury for the defendant. There
-were two accounts, a cash and a share account ; this action
would only lie for the former, and with the latter, he con-
tended, the jury had nothing now to do. The defendant had
paid every farthing of the cash account ,• and the share ac-
count must come before another court. Every payment since
the bank stopped had always been placed to the cash account,
on which there was only a balance of £5. 4s. Bd., and the
defendant had paid £lO into court to cover that. The divi-
sion of accounts had been mentioned and sustained by both
parties, from December, 1339, to the stoppage of the bank ;
and, since then, every payment by the defendant went in
liquidation of the cash debits. Not the defendant, but the
bank dealt thus, because it enabled them to divide the debits
due to the bank on any day in the week. With respect to
the shares, he submitted to his lordship, that no action could
be brought, as it was not such a demand (under the Ist and
2d Victoria, cap. 96) as an action would lie for under that
statute. Was this a demand within the act? He submitted
that it was in the nature of a contribution to the general stock,
and not in that of a demand. There was a count for shares
bargained and sold ; but, he submitted, an action would not
lie as for goods bargained and sold. There might be a remedy
in equity : he might go into equity, and get his remedy there
if he could.
His LORDSHIP said, the else had been very fairly stated
by the learned counsel for the defendant, and agreed that,
if the banking account had been fairly discharged, the de-
fendant was entitled to their verdict. But it appeared to
him the clearest case ever submitted to a jury. The defen-
dant had regularly been credited with the dividends, and the
accounts were not separated; for the defendant had actually
borrowed money, and placed the dividends to his credit. As
to the points taken by the defendant's counsel, that this did
not constitute a demand under the statute, and that an action
would not lie in this case for goods bargained and sold, his
lordship overruled them ; and, having recapitulated the prin-
cipal evidence, left it to the jury to say whether the defendant
was or was not liable to the bank for the amount claimed.
The jury found for the plaintiff, damages £5,160 16s.
DAVIDSON, PUBLIC OFFICER, V. ASHTON AND OTHERS.
In this case it was stated that the facts were wholly similar,
a verdict was taken for the plaintiff, by consent. The court
then rose, about a quarter before seven o'clock.