Law Report.
The Times, 1824-04-22T00:00:00

IU?-SOA,RLETT stated thatthis'Was anctiOnb_A6Sr?llOdgson and Co. to recover damages against the defendanit for fraudulently losing their- mark on beer-casks sent to India. Tils conduct was nodobt, Very fraudulent; 'but the defendant, at alate hout, haia acnwegdta ehddn rn,adcnet~t umtt verdict. Under these circumstances, the plaintifft lid not wish to press for heavy, damages, but had agreed to take a 'erdict, for 40s., to whiich the CO2%IMOXr.SEsetGNxIT,'wII0 wals not ptesent, was in- structed to consenL-.Verdlictfor'theplsintiffi~..Damiges 40s. SlIR RICHARD SUTTON V. THlE BANK OF LYGLAND. Mdr. J. Li. ADOLIPHUS Stated the substance of the pleadings. The declaratioat alleged that-the plaintiff was entitled o) certain shares of stock in the boo6ks of the Governor and Companyof the Bank of England, and tlfat he -granted a power of attorney ffr its transfer- tkqat the Banke' llayed so long to verify the power, that a contract for the sale of the stock could not be effected, and tie plaintiff sus- tained loss by its fall. Thedefendantslsadplcadedtaegeneral isLsue. Mlr. SCAiRLFETT statced the case of the plaintifF~ Si Richard Sot- ton, who derived a large fortune, as9 much as 300,(001. in money, from the late Lady Bath, the greater p art of whichbhe invested in land, li e employed as his agent for the transfer of uhe stock, 3Ir. Alexander Alacdougall, a gentleman of the highest respectability, and onie of the oldest practitioners Of the law Iin Lon&on. Having agreed for the purchase of an estate in Norfolk-, he gave a Power of- attorsiey to Mlr. Mlacdougall for the sale of 62,7001. in stock, with di- rections to sell so much as would raise about 20,0001. which he had to pay on the 2'2d of November, by way of deposit. This dccumcnt was lodged in the Bank, in the usual manner, by being placed in the box at the office, on the '2Oth of October, preparatory to tbetrans- fer of stock on the following day. It was the customi of the Bank to require 24 hours for verifying of the Powers so lodged,..a. custom of wvhich no man could complain, because they had a right to use a reasonable caution against forgery. Having lodged the poAer, Mlr. AMacdougall directed his brother to sell the quantity of stock requi- site for the purpose of Sir J~ichard for the next day which he ac- cordingly did at the current price. On the next (lay he wenit -to transfer the stock, but was told, to his sutrprise, that it could not he done, because a difficulty had occurred as tothie power. Hie begged to know what th.. difficulty was. At first insfermation xwas denied hiim ; but after rep&atcd inquiries, he was informned thut doubts were entertained as tothe authenticity of the signature. He then offered to produce fifty letters written to him by Sir Richard; b ged the officers of the Bank. to refer to. his bankers in town, and ottred his own inde,mnity for their protection.. They did not-, how- ever, avail thems%elves of any of those proposals: tiey told himall was of no use ; -and waited tui they cAould receive an answer from Sir Richard, who then was atlIns seat near Lincoln. In consequence of the obstacles thus raised, the barTain fer the sale of stock was eaa- celled, and some hoiyaays intervening, the stock was not sold till the 29th, when thte p rice o.f the funds hiad sunk. By this fallSir Richard lost 2091. Its. 841., anid, by thet resale, whichi becamne necessary when the trausf&r was refused, he incurred an expense of about 291. for brokerage, the aggregte of whlichi sums he now sought to recover. WVheni the jury recollected that Mr.Mlacdougall was a man of moat respectable character ; that lie had before produced at the Bank a power for the sale of miore than "20,0001. from the same party, which tiatl been acted on ; andthat he oft&red to produce themost conclusive evidence of the genuineness of the signature, which the Bank refus- ed to hear of, he thought thev could feel no difficulty in holding thein liable for all the loss arising fromn their unreasonable delay in authenticating the power. AlIr. Benjamin Boyd, a broker, proved that the power of attorney was lodged with the Bank on the 20th of October; that he sold out uander it 23,9521. 2s. Id. at 83k, to be delivered on the '21st; and that he went, according to cuistom, a little after 12 to transfer the istock, and was told that the power had not come from the office. Mli. Nesbitt, of the Warrant of' Attorney-office, said, that the power beingd for more than 00,OOOL, was in the parlour, but that he had lokcl at it, and had no doubt that it was correct. He waited till one o'cloick with Ms . 5Macdougall, anid was then told it was not comne out, but was expected every mninute. On the third inquiry, Mr. Nesbitt said that it was undfer MVr. Kaye's inspectioa, and that he said if Mir. Adaedougall wouild indemnify, it would pass. Air. Macdon. gall directly assented. They then went to the office of M4r. Dawes. wvho said the power was under consideration in the Bank parlour. Alr. MlacdougalI requested to know the difficulty, but informa-tion was refused. At half-past two they went again, when Mr. Mac.. dougall explained that the money was required that day for the de- posit on a purchiase of en estate, and he shiould hold the Bank re- sponsible for the consequences. .5r. Dawes then said he believed the delay arose from a difference in the signature of this from former powers: on which M1r. Mlacdougal saiai he could bring ample proof that he liadl acted on simnilar powers to a great amounit, and that the Signature wait genuine. Mir. Dawes said he could gay no more; MAr. Mlacdougall myight do as hie thought proper, cud they went away. The stock was re-bought at the same price. The broker cilleLd every day betwveen 12 and 1, to ask for the power till Saturday 25thi of October, when Mir. Nesbitt said the power wA.s passed. He sent on Saturday to Mr. Macdougall, but he was then absent ; Monday was a private transfer-day, and T'uesday w-as a holydLay at the Bank. Ont Wednesday he sold %t 821, 36,3801L 12s. 6d. to raise a larger suni, makina differ- znce of 2091. Ils. 3d. on the stock, originally sold, without bro- kerage. If the stock had been sold on Saturday at the highest price 8341, the difference would be 891. 6s. 2d. ; at the medium price, 1191. 15s. Id. ; at the lowest price, 159L Msa. Id. The arokerage on the first sale was about 291. On AMonday the price was as high as on Wedn'esday, when the stock was sold. Being cross-examined, the witness said. to the best of hlis belief, he did apply, on the 24th) at the Bank, and saw Mir. Neshitt. The power, dated the 17th of October, 1823 was put in and read. It authorized the transfer of 62,7621. gls. 3d. Air. Alexanider Macdou2all, the attorney to whom the power was granted, saidhe had acted for Sir R. Sutton since he came of age,and badl transferred for him upwards of 200 0001. The monev was to be paid on the 22d, for an estate in N~orfolk, antl he ias to take it down that evening. Thisj gentleman eorroborated the 'testimnony af r. oyd asto he irs reusa totell him tho nature ef the ob- jecion an aded tht wen e kewit,he ffeedto produce manycheks o Si R.Suttn, o reer o hs baker, ad to see the of twn,he id nt rceie Mr Bod'sletter till Mionda Bngou Bein cras-ecamued.It as treeO'clock when he,oftired to go to the Directors. Mr. Kayecldid not object to his single iademsnity For so large a sum, nor did he assent to the objection,H had known Air. Kaye upwards of 40 years The ATToitNEY-GENERAL addressed the jury for the defend- sat. His learned friend had presented thema with only a part of the ~a.se, and it wouldl be his duty to supply those circumstances 'Which- lie had omitted. Sir Richard Sutton was no doubt a very respecta.. ble man, but still, if stocks had risen instead of fallen he would probably never have made the present complaint. The b)irectors of ,he Bank could have no interest in the regulations adopted: they were mere trustees for the pubhic. The LORDs CHIuacJU STICE.-YOU say theBank are only trustees For the public; wil you point out the act bywhich they are protected Fromu the coheequenres of an erroneous transfer ? Are they trustees orany one except thesle and the protprietors of Bank stock? The ATTORN-EY.G- IA explained, that wheni he saIed the Diiectors trustees for the Public, he only meant trustees for a great publicbody. The&course which they took, inreference to powers ofattor- uney,was surely justified by the great value of the property cominitted to their charge. lVhen those powers authorized the tranfer of sums Lnader 20,000l., they were passedon being examinedbiv the inspector ; but if they were above that tumu, thoy were uniforinuly referred to the Accountant-General, who, if any suspicion arose, referred tothe Directors. When the party whose name the docuniient bore had deposited similar powers at the office, or had signed the books, re- course was had to his previous signatures, in order to ascertain wheherthepapr ws gnuie. n tisinstance, the Bank bad onl a inge sgnaureof ir ichrdSutton, with which they coud cmpae te dcumnt n qeston;and on making the corn, parion,the foud agret aparet dssiilarity between the writ. ings whch he ury oul thmsevesobserve. Was it unrea. sonale or he iretors whn clle onto sanction the transfer of so large a sum as 03,0001., to pause and hesit-ate, and take the best means of information in their powver, before they exposed the body for whom they were trustees to the Possibility of so serious a loss ? He would prove that the stegp they took- in writing to the plaintiff was suggested by Mr. Macdougall himsqelf, and that the letter wais addressed according to the direction which he gave. He knew that, in the course of the post, an answer would be received to that letter on Friday; that as the dlocument was genuine, the answer must confirm it; and that he might consequently effect a transfer on that dayti.Surtely it was his duty to remain us town, or to delegate his atoity to some one whioimight then act for hima; or if he could no d ti, to make a bargaini for Friday, to which there. would be no legal objection. Had the stock, been transferrecd on Friday, the loss would have beeni trivial ; and surely the plaintiff was not to chare te Bnk ith he onsquecesof a delay attributable en- tirey t hi ownagets.Buthe (he ttoneyGeneral) was-not so nxiuson hi pont whch ffcte mrel te amount of the damgesas n te rinipl bywhch he ondctof the BaLnk was reguate1, nd he easnabenes ad popretyof wvhich he trusted Mr. Dawes, principal accountant of the Bank, said, he had been in that e-stablishment 40 years, and in his own station '18. There was a box in the Power ot'Attorney Office into which ,powers were usually put; if for sums undler 20,0001., they were passed by Mr.' 'Neabitt; if over that sum, they were first inspected by him, and then sient to the witness. Thie power in questior was so sent, accom- panied by the former Power, which was all the means he hafd of as- certaining whether the last was genuine. There appeared to be a dissimilari.ty in the wriiting. Hle submnitted it to the Governor and Directors. 'LThe powers8werelhandedlin to thejury.} By direction of the Governor, he addressed a letter to Sir R- Suttoni, according to the books of the Banik. MVr. Kayo gave another address, and a letter wvas wryitten to that addlress, Sudbrooke, Lincolnshire. On the 24th, he received an answer from Sir Ri. Sutton. on that day, between 11 and 12 o'clock, he admitted the power, sadi notifiedi it to MVr. Ncsgbitt. it was the general course, when objections oc-curred to powers, to write to the Proprietor. Not aday passed without objections to powers, and no claims ever were made before on account of delay. Mir. SCAitT.ETT objected to this last answer as not evidence, The Looto CHrEIacrJUSTICE said, it certainly was not evidence; mnany indlividluals would rathier sit down with a loss than enter into a contest with so powerful a body as the Bank. Alr. Joseph Kaye, who had been solicitor many vears to the Bank, and who happened to be there when the difiicslty arose, stated that 5Mr. Macdougall called on him, end speaking about the matter, said that if there was any doubt about the genuineness of the signature, the Bank officers had better write to Sir R. Sutton, who was residinz at Sudbrooke, in Lincolnshire. M1r. Kayc took down the address, and said he would take it to the Bsnk. Mr. Alaedougall asked whei an answer might Ee expected' to which wit- ness answered,- " Friday." The witness said, that if a satisfactory answer was received on Friday, he might make the trausfor on that dav. Alr. Alacdougal mentioned that ho had oaibred anindemnity; M'r. Kaye replied, that the sum was too large for an individuals's indemnity, to which MLr. Macdougall assented. The course adopted in this case was that ordinarily adop ted. -lr. Nesbitt was ealled, and said if he thought there was an ob- jection, he did not send up the large powers of attorney to the Di- rectors. He didntot stop this power. Mtr. SCAtLETT replied.-If in the onset of the cause,he tbought that it was of h rh importance, be now thought it bf much higher from tbeqrnTip es asserted in' the defece. If tbose prinQiples were sanctionue, then the B.iiik Directors were invested with the fearful power - of managing property t'o the amount of 800,000,0001. according to their own arbitrary will. " Trustees for the pub- lic," indeed ! He had never he6rd the title applied to the Bank, except in- sone loose debate in the House of Commons; and little did be expeot to hear it from is learned friend iva Court- of Justice. They were trustees only for themnielves Una their part- ners, like any other mercantile frm; and the prec=utions which they adopted were forthe-safetynf themselves, eand not for the wefiare of others The were rght, no doubt, in taking care of their own in- tertpts; but it;s in sadopting ie4sures for that purpooe, they Unjus, [qfabginjredothers, they werebour%& -to inke-rp1-t, like any ot.,er incoprs or unincorporsted companyr of merch6nt Aidiiduals ,tseselxnany of theDireeora " e hes couldv risot hel p sayhsn', that the c,'rs3 they, hadpto bhit: occasion was the -most absurel which it could be -airned evsi referenceto theli own safety. They-suspected ththep)owetoet . torney~ presentedl was forged; that the patrty-applyling was 4b4ut f o- sell this geat amnountof Stc antd'apply it tolewn.u.use.-and; they proposed, as the only mode''of saisfying thwlems~j. timt their suspicions were groundless, to address a letter, -to Sir. Richard Sutton, accrding to the -direction givetn byr the party suspected, and' which direction differed fromn thgt in their own booka-th s' supplying hirm with the very means of scm p ishing his purpose; for he might send, or go by thp same mail, and answer the letter himself! And this course they, s,h sii wisdom, adopted, rather tlan look at the letters or the check2, or than consult the bankers, whose testimony could not he usupcted I Why did they not consult their iwn experienced clerks, who were often called to give an oino nhadwing n woul4 have seen ata glance that the signature wa.? gnuine? 'Wiydid not they- call in Air. Mlacdoupall, and examine haim and hear his propogalsp W"ere thiev so raised above their fellows, so wrapt up indijnuty,.th,, they coula not admit a respectable attorney to their august presenf a-. Did they think that if admitted to their paelour,he would blowrup the Bank? (A laugh.) There he was, ready-tomneettheir charge...tbe ,,, mrsonaccused; he exclaimed, adsum qui feel ; irrmecontvertite te1,,,- ~!Tet they didanot apprehend him on suspicion. Let it berecollected that Mlr. MVardougall had before sold oust more than 200001. on, power of attorney from the plaintiff, and that then they had nos%ig... nature to oDmpare it withi; yet they' never took thie course they now- alleged tobe necessary,but merelymiquired of Mr.AMacdual hbim.. self the residence of one of the subscribing witnesses. It hid been said that Mr. Macdougall ought to have reinainled in town. to await the pleasure of the Bank; he denied it. they h1Ad no, right to, impose such an inconvenience on any mani, nor were attor.. nies to naglec-t all their other business to attendl on. their caprices. As to delegating his power, he could not do it, had he been so dis. posd,eve b th mosit solemn instrument, nor was, he bound to mapke thsaerefore wa uture day on the costingeney of- their decision. There teeoewsno defence to any part of te claim, and Sir Richard Sutto wasclealy etitled to indemnity for the full extent o F his loss. The LOD.CHIE JUSTICE -aid, the Simple question in this, casewas,rh~hr tere hiad been any unreas.onable de%'.y 'vein ingthepoar wichwas essenitial to the transfer of the stock. Tf Govrno anl Cmpay of the Bank of England-though one of tb% ~reaest andperapsthe very greatest, mercantile establishment in th word.sted mno other situaLtion in reference to individual& thanpriate ankrs. ikeothers, Ihly Were responsible if they alloed n ipropr tanser,and had, like others, a right to, takefai an reaonale imeto ascertaini the authenticity of do- cumnents wihtey were required to verify. The questiorn in this case was, not whether they might not, under some circumnstance of suspicion, write to the country, but whse- ther they here might not have obtained satisfaction at once bv adifferent course of proceeding, havinig respect to who Mr. Macougll as an toth prposls,whichi he made, lIfthe and thn, infixingthe dmages,they ould fonsdr whthera tit apprie him that terdut eermvd The Jury almost immediately returned a verdict for the plaintiff- to the fhul amount of the chimn-2391. 1Os. 7d. GIBIaON V. CARLTr-ONr AND OTHERS. This was an action against John Wlilliam Carlton, as the 16 Henry Staniforth, as the publisher, aud Jonathan Duncan,,W the pro~prietor of the Briti,sh Press, fora libel. The plaintiff was aur. viving owner of the ship Minerva, which in18'22, took Out possen- gers to Van Dieman's Land. On the 6th ofA Au t, 18-23, the ar- ticle in questite appeared in the Br-itishx Press It pupred to be an extract Wvika letter from a person in Van Diem~an's I Msd, who had gone out in the 2titnerva, and contained grievous complaints of cir- cUnmstances which were " a stigma on the character of the captain and the owners," but which the author professed to bring forward " not fromn any motives of malice, hut merely, that by their publicity- others might be deterred fromn acting a srimilar part." The writer asserted " that the -i fnerve was ill found in everv comfort of life, consderng he engt ofthevoyge;that the stock of fr-esh mneat was xcedinly isuficint or te psseger; that great inronve- alene wa susaind bythecptai toching at no port after St.Jago, whic touhingat io Jneir, ortheCape of Good Hope wouild hav prvened;tha th stwar beaved extremely ri to the passengers, especially the ladies; that one young man, in an hilstate of halth wasinalreatd bythe passengers, i the presenice of hecapai, ad hatwaer aspouired on him when lie com- planed an tht te chief-ae namned Reid, who was most com-. potent to his duty, was dismissd. The article, which did not name either the captain or the owne cotained also manydetails respect.. ing the colony, which had norelto to the matter of charge. The defendant Carlton pleaded merely the general issue;, the other de- fendants, in addition to that plea, also pleaded that the matters in the alleged libel were true. MsZ. SCARtLETT stated the case on behalf of the plaintiff, express ing his confidence that the defendants who had justified would be uite unable to establish their pleas, and arguing that by asaereing %he truth of the libel they had deprived themselves o? that excuse which they might otherwise liave relied on-that they inadvertently inserted it in their journal. Thie defendants were proved to be connected with Thte ritid Press, as printer, publisher, and proprietor, by the affidavit filed in the Stasii.,office, The captain of the vessel named Bell, was, then called, who stated that the ship hadl ha proper store of provi.. sions on 'board; that no comnplaint was made by any of the pas- sengers except one of the name of Browne, whom the Captain had refused to allow to take out machinery, which would have subjected the ship to forfeiture--that it woutld have been expen-. sive to touch at Rio Jane-ro, and also dangerous., on account of' the ungettled state of the couintry; and that it was not usual to call at the Cape.of Good Hope att that season-that he never heard the steward USO improper lAnguage to the passengers, nlor ever saw any act of cruelty committed. It was suggested, in his cross-examinja, tion by Mlr. BitostesGAsr, that an appliqation had been macle ona t),e part of the def;ndant to postpone the tria on-account of thse absence of witnesses, and that the Judges bWore whom it was heard refused to do so unless the plaintiff would consent, which he declinedl and, fromn the answer, this appearedl to be probably the case. Mr. Thomas Motley, tide-surveyor of the customas -at Plymouth, proved that he examined the ship, and found her Waen with sufficient salt provisions and water, and that hte received no complaints from the passengers. Mr. Samuel Wyatt Garratt, who supplied the pro. visions, gave evidence to a similar eliret. Mr. B5OUGHAIMaddressed the juyoir the defendants. He com- plainied that the plaintiff had byhi rgfiNsl to consent to a post. ponement of the trial, deprived them of the0 oportunity of .iro,io.*f truth of the charges, or bringing that whuich as the essenceofil t~.i cause fairly to issue. Here thae Capt~in, -who was far more-imph.- eated. in the accusations than the plaintiffs, was really the only writ.. ness, although it appeared there were tw6 sailors who might have, been called to confirm him, aid he had given hiis evidence in-thst most cautious and general terms. Thle comnplaint was, not that there was an insufficienit quautity of salt provisiions on heard, but too small a proportion of fresh meat, and, therefore, it was not met by the evidence of the two respectable witnesses from Portsmouth. WVas it not man3ifest that by calling at St. Jago. which was not.above three. weeks' voyage from home, the necessity of' touching at a port in the middle of the voyage was not superseded; and the omission to do so was a great evil of which the passengers had a right to complaini ? If the jury looked at the whole article, they would see that it was des. titute of any thing like nialice; -it was just generalenough to avoid wounding the feelings of any individual, and specific enough to al- low opportunity forinquiry into its truth; andwas obviously -writ.- ten boneajlde, to warn others disposed to emigrate,fromn exposing them- selves to those evils which the author had suffered. If a man who felt that he ought to make known an evil, as an error in a chiart for exainple, by which men's lives might be put in jeopardy, could not perform the dutv which he owed to othiers, without baring his witnesses ready 'for six years to establishi the facts, and, if the party whomn he accused had the power to brime his cae to trial in thie absence of hthose witnesses, nonlan could venture to disclose the results ot' his own experience for the benefit of others. The jLonD CHIEF JUSTICE Mid, that before any man ublish- e-d a libel on another, it bheloved him to know thatlie had hiis evi- dence ready to prove its truith. In his judgment the plaintiff was not hound to consent to a postponemient of the trial, until the de. fendants had procured some one or more witnessus from anr part o.t the world whom they could not specify ; -nor were judges justified in pstponing trials uinless there was a fair reason to expect the ar. riva of a witnesst whonm the defendant wished to examine. The Jury consulted for a niinutes, after- which the foremaLn said they found for the plaintiff, damages 1501. He was stopped by a juror behind, who said they were not agreed, and the consultation was resumed. He turned soun again to give the verdict, and was a second time correctedl by the jury as premature, oi. which there was much laughter. in a- fqmsinutes, however, he announced that they hadrealyagred,an dTlivereclthe same verdict asbhehad mentin. ad at first. -For the plaintiffl-Damages, 1501. FULLER V. SMITH. This was an action to recover the sumn of 2711., advanced by the ,plaintifito the defendants on a bill, which afterwards, proved to be a forgery. It appeared that the defendants, who are blflbrokers, tooDka bill purprting to be drawn by Iiir. Lunn, on and accepted by Mlessrs. G.K Norm an and Son, for 2711., tsix months after date, to the plain- tiffs, who are bankers in the city, to be discounted; and they, who were thie bankers of the apparent acceptors, discounted it-according- ly. They received the bsll, in the way of their trade, from A man niamed Simpson, and it afterwards proved to be a forgery. The ATTOILNEY.GENERIAL, for the defendants, contenaed that that they were not liable,-becausc, firsit, they had not indorsed the bill; secondly, it was the duty of bankers to know the hand-writing. of their own customers ; and laLstly, they were merely agents, hay- ing mmediately paid ever the miosey to their custonier Simnpson. To p rove this laLst fact, George Chapman, clerk to SmitLsennaep., was called, who stated that he saw the money paid; but tbl-h~-* were not pouced, though niotice had been given by tbe plaihierk to pro-duce themn. Ms1. SCARLFTT, in reply, ou this evidence, urgedl that it dlid not appear how tke account stood, as the bookLs were not produced, and urged that, at all events, the defendant was liable. -The LOnRDn CItIES JUSTpiCE said he wa of --io- in -oit of law, that, even if the money vwas paid over to tiimpson, iheidefend. aRts were liable. In general a man was not liable oii a bill unless he endoreed it, but here the instrument was no biU; it was not that instrunment on the faith of which the money wvas given. Bankers were bound to know the hand-writing of their customers, as to the customers. but not as to others, in cases where their attentio would not be directed to the genuineness of the aignaturei- He advised them, therefore, to find their verdict for the plaintiffi, but requested- them to inform him whether they were satisfied that the money was paid to Simpson, in case the defendants should wish to take the opi- nion of the Court. Thejury found a verdict for the plaintiff-Damages 2711., and said they were not satisfied that the monev was naid to Simpson. LA?V RAp6pOi' COURT OF KING'S BRNcit f4mr-n wAt r *_ . IlODGSOW V. TW-PTlvxf- 1t 1