Court Of Common Pleas, Sa...
The Times, 1824-05-24T00:00:00

(Sittings in Bance.) - ,Et- t3LELUU-u E4I---C tJ.- -j WlulUI uElS >ea arOse. as tney excitec a considerable degrceof public attention at the tinieof their occurrenec, are, we have no doubt, still rresh in the recollection oft many of our readers; we shall therefore give only an outline of their substance. The plaintiff. John Hlenry Davis, lsq., was in possession of about 1,1001. in the three per cents, and othler Government securities, which gtood in his name in the Bank of England. Of these funds, his brother, Catain Hforatio Davis, fraudulently obtained a transfer bTa tfrgeryof plaintiff's name. The money thus obtained he ap- to his om use, and it was not until some three months after, when in custody under a charge of forgery on (we think) the bank of Messrs. Drummonds, that he confessel the fact to plaintiff, who then for the first tinie became acquainted with the loss. This was in April, 1820. At thle same time that Captain H. Davis ac- knowledged the fraud he hsd practised, hc gave to plaintiff an order on the bank of Messrs. Drsninond for the balance of whatever money stood in his name. This, nowever, turned out to be only the small sum of 231. 10s. Soon after this, Captain Horatio Davis efTfcted his escape from prison, and succeed- ed in getting out ef the kingdom, to which he has not since returned. The p!aintiffmade no communication to the Bank ot the facts disclosed by his brother; but in the mnonth of Septenm- ber following, he gave a power of attorney to a broker to transfer the funds which had stond in h;i name. The Bank refused to allow the transfer or to pay the dividend, alleging that the money had been already paid. The plaintiffupon this brought his action. It was tried before Lord Chief Justice Dallai, and the jury, after liear- ing his Lnrdship's opinion on the law of the case, tound a veydict for the defendants. That verdict was afterwards ret asidc, and a new trial granted. On the xecond trial, the jury returned a special verdict-a partof which was, that the plaintiff was wholly ignorant of the forgery by his brother until the fact was contessed by the bro- ther bimself, and that he had no ftarther participation in the trans. action than the haviimg concealed it from the Bank after it had conic to his kowiLdge. Upon this a case was made out, and the questioR for the opinion of the Court was, whether the plainitiff, by concealing the knowledge of the forgery for several nmonths from the Bank, had not adopted the act of his bro- ther, and thereby debarred himself of his right of action as against the Bank. Should the Court decide in the affirmative, the verdict was to stand for the defendants: should they decide in the negative, and admit the plaintiff'a conduct had not barred his right to sue tne Bank, then the verdict was to be entered for him. The COURT, after hearing the case argued on Thursday by Ilr. Sergeant ONsLow, for the plaintiff, and Mr. Sergeant LAWES, for defendant, deferred their judgmenit. This morning liord Cliief Justice BEST observed. that the case had been ably argued on both sides; but that it being a ques- tion so novel in its nature, and of such vast importance in its conse- quences, he and his learned brothers on the Bench were of opinion, that it onglit to be argued over azain; as they were sure that there were on the books many cases which might be cited, bearing on it " Let the case," continued his Lordship, " stand over till next tenr, and be argued when the Court is full (viz. the four Judges present.) Alr. Sergeant LAWES observed, that the case must stand over in- definitely; as the Court might not be full next term. Alr. Justice PARK.-" It is very probable, brother lIjawes, that the Court will be ftill by next term."'-Trhe case to stand over. (WVe have not given the arguments of counsel at each side, as they will be gone into, probably, at much greater length next term.) The Court rose at half-past 12, after which Lord Chief Justice BEST proceeded to the Guildh.dll, London, to hold (Sitgsof Nat Ns Prius.) CONDUCT OF AS ATTORNEY.-ROSE V. VAN SANDAU. Mr. H.CDOPEre, opened this case. M42r. Sergeant VAUGHAN stated it to the jury. It was, he said, In action on the cdae, torecover compensa;tion for.injury sustained by the plaintiff under the followzing circumstances:-The plaintifF vwas i chymist, wlho by a variety of untoward events-had fallen intogreat pecuniary embarrassments. It would appear,that in the year 182, ne had accepted a bill fer231. This bill gotinto thehands of a per- son named f'owler who sued plaintiff upon it, and ran him up to execution. The aefendant was Fowler's attorney. Plaintiff was taken] in execution in October, 1822, and remained in custody in Whitecross-street prisoa until the December following. A person samed Prior, an attorney, who, we believe, was thedrawerofthebill, and whobad entered intoanagreementfo give a cognovit tor the debt, wias attached and committed to prison for non-performance Of that agreement. In thetoonthof December, while Bose and Prior werein istodyfor the same debt, a t'riend oF the latter went to Van Sandau, thc.defessdant, tpRegotirte for the releasue of,the parties. Tihe debt and onsta atthi time amounted to'601. I'. 'This sum' tbe defendant sgreed to take in a bill at six months, properly secured. eSene ittle delay took place in procuring such -ecurity and in the in- teim the debt amounted to the sum of 80L This was offered to bxe seeute iby a i'ill at 1.2 tnontths.- After somwe- htather abort deay, thle defendant aRreed to take a bi!1 for 851., accepted by W. Watson, ~eq., and payable in 12 months. He then signed two tlischarges, one for. Prior, and the other for the plaintiff' RosD e That of the latterran thusW.-. 1C Fowler v. Rose.-Discharge Mhe above defendant, C. Rose, at the suit of D. Fowler, for which this shall be your authority. (Signed) " VAN SANDAU, Attorney for Plaintiff" This diseharge was handed to the SherifP" Sicondary, but he not being acquainted with Mr. Van Sandau's hand-writing, naturally enough despatched a messenger with the discharge to his office to ascertain if it were his. The messenger saw one of Van Sandau's clerks, who admitted the discharge to be that ofhis emnloyer, but took it from the messenger arid interlined in the body of it these words-" Upon paymentof poundage fees." Themessengerbrought back the discbarge thus altered, and the Secondary, of course, re- fused to discharge Rose until the poundage fees were paid. Rose said the bill for 851. was given in Nayment of debt and costs, and all contingent expenses-that he had not the money, and would not pav the fees. The poundage fees amounted to about 31. The plain- tifrnot being -able to pay the fees, was detained in prison until the latter end of the Februatry following, beingan addition of 57 days to the two months' confinement he had already suffered. For this ille- gal detention by the act of the defendant he now sought compensa. tion. It was true that the interlineation in the body of the discharge was the act of the defendant's clerk; but the detendant had after- wards adopted it, by refesing to discharge the plaintiff' unless the poutidage fees were paid. The money was at length paid by a friend of plaintiff's, and he was discharged. Now he would contend, that by the words of the act of Parliament, the plaintiff was not bound to pay poundcage fees for an execution on his person. Had the execu- tion been on his goods, he would be bound to pay those fees. but not otherwise. But be this as it might, he should be able to satisfy the jury that the bill for 851., (wshieh had since become due, and was paid to defendant),was given with the express agreement that it was to cover all contingent expenses. Proof was now given of the arrest in execution of the plaintiff'for debt and costs, amounting to 601. 12s. 3. Hunt, a clerk in the Secondary's office, proved the receiptof the discharge, and the alteration made in it at the defendant's office. Defendant'sclerk said it was not his master's intention to pay the poundage fees. He then made the alteraion, though witness cau- tioned him against it. DIr. Lewis Droved that he negotiated the discharge of Rose and Prior with the defendant. He said he would take a bill for 801., but not beiag satisfied with the first bill, he said tlbe biU should be for 8G1. to cover all expenses. The bill to that anmount was handed to him by witness, who allowed himn a week to make inquiries respect- ing the accentor. - At the end of that timne defendant expressed him- self satisfied, and gave witness the discharges, with the express un- derstanding that the plaintiff was to pay nu farther expenses. The 851. bill was vaid when it became due. By Ar. H. CooPER.--The original bill fCa 23L waas accepted by plaintifffor another person. Air. Sergeant PELL objected tw going into any evidence of the consideration for which the bill was given Mr. COOPER said he was going to show that the bill had been purchased by Van Sandau for 301. The CHEuF JUSTICE said, that that could not then be entered into. He would asqume that the plaintifFwas properly in execution for 601. 12s. debtand costs. On his cross-examination witness said that no person was present when he made the agreement with the defendant respecting the bill of 851. Some of the defendant's clerks were present on a former oc- casion when the arrangement of the debt and costs was spoken of, but not on the latter occasion. - Rippon proved, that on the 8th of January, 1823, he deliver- ed a letter from plaintiffto defendant, at the effice of the latter. In that letter (a copy of which witness took before he delivered it, and wvhich hc now produced) the plaintiff complained of being illegally detained for non-payment ofnpoundage..fes, and gave defendantnotice that if he were not discharged he would take legal proceedings against him. This letter witness handed to one of defendant's clerks. (The defendant had notice to produce the original, buthe denied having re- ceived any such letter.) This witnessunderwentalong cross-examination by MIr. Ser- geantWsILDE withtheviewof shaking his testimony respecting thedelivery o?the letter. He admitted that he had been anat- torney's clerk for a time ; that he was aftcrwards " in the stage- coach line," and tha: at present he was an accountant, but he per- severed throughout in a consistent story respecting the delivery of the letter. This was the plairtiff's case. rVI. Sergeant PELL, for the defendant, said he should be able to show that it was pa.t of the agreement which the defendant bad made with Lewis, that plaintiff' should pay the poundage.fees, and therefore that the detention in prison for their non-pay- ment was his own act, and not that of the defendant. to show thejury the nature of the transaction, he would prove that no such person as Wim. Watson, Esq., on wvhom the bill of 851. had been drawn, lived at Berkeley-square, where it was snade payable. It was true the bill had been paid, but lie believed it was paid solely for the purose of the present action. With respect to the fifty- seven days imprisonment, the jury shouldthrow it out of theircon- sideration, for nothing would have been more easy than for the plaintiffto have issued a summons, and gone before ajudge, who would have ordered his discharge if he had been illegally detained. If he chose not to do so, he must blame himself. The learned Ser- geant then called two witnesses-one tbe clerk, asd the other the former clerk and Tecent partner of the defendant. The first spoke to a conversation in which defendant said be would not pay pound- age, but he could not speak as to what passed when the bill for 851. wvas given. The partner stated thathe caUed at 19, Berkely-square. No such person as W. Watson, Esq., lived there, but the gentle- man who lived there knew such a person living at Bath whose wife had put into his hands a lease of lands at Eltham, iu Rent, and de- scribed her husband as a man of large property. He added that he believed be had been imposed upon by the parte. This was the defendant's case. Mr. Sergeant VAUGHAN replied at considerable length. The LORD CHiEF JUSTICE, in summing up, commented upon tho "iserawinz up" of tb-4gri-A A"1- - #LtAaLv_fM. 12s., then to 801., and finally to 851., and left it to the jury to say wne- ther the last named sunm was not intended to cover all expenses. His own opinion was, that the plaintiffs case remained unanswered. The Jury, after consulting together for a short time, gave a vcr- dict for theplaintiff-Damagcs 551. and costs. The Court did not rise till nearly five o'clock.' COURT OF COMMON PlEAS. SATURnIY. NfiY 9') DAVIS V. TIfE BANK OF ENGLAND. _. _ _ _ .1