Court Of Common Pleas, Mo...
The Times, 1824-11-30T00:00:00

,.tne argumeAts in this ease were gil(en-at letigth lin our paper of the 13th inst. 'The Imitt CIuEir JUSTICE dli! m~omnIng proceeaed to deliver the jitidgernat of' the Court upon it. After sttating the nalture of the action,. hsis LOrdship-observed, that It was a case of very cen. sldrauleinporane t te public. It aileged thirt the plaintifF was te ower ofcertiin ~ss of nmone3l vested itn Gevewinent securtie,whichstebdin his ame In the books of the Bank of Englad, uon wirhpery was entliled to.dividends, sud that the. .deenaiis lie iiprpel. gllowed sabie stock to he transferred withot hi (th plantift Is) knowledge or consent by whichi he -suferd aeon~leralelogs, There Wzer-e in the declaration aeve- ral counlts; but th nigi point for dechioiR would deliend uon o0ly two of themn. 'Therfir3t point to be conaidered wAs, whertCer the stock mentioned in thle decilaration hq4t been transferred fronti the leqa1 possessizon of the pleihitifit or not? The Court were of opinion that it had not been sd transferred, but that the legal title was still in him, and as squch that he was entitle to the dividends accruing upon it so that the plalintiff 'covil aiot recover uporn the first and thin1 counts of the declgr-Ation, which alleged chqt the stockt had been transfeeted. His I4ordship, afteer deserlfbng the nleture oif the 3 per Cent. Coligols, ana stating that they were trattafezTAble, obserred, that such trprnsfer could bp mnade only by consent of the pArty in writing, or by his POwer of! at, torney duly atttested. If the tr nzfi~ ghq%x d be ettvnmptd 'without those essentigl forms, It ias fi5ll gn4 osfnoiftect; a(Ia the propertY still remained in the possession of the ,itrty iii w~hose r%name it stood before such attemptwsas made. An' endorsement forged upon abill of exchiange amounted to nothing, and the saimt rule lheld with re- spect to foirged shares of any compatiy as well as the Bank of Eng. land. In this respectthe Ban,k of Eaglaeadhatd woreater 4Rihtthan pressily provided for tieconvoyq1p qr to.ck from hoWders to new pusrclhaerii. In thn early acts for raising loiIns and pa4ying the elivi., den4ai thereon, tflhiies and endorsernents were provii&ed, int o*4er to inform the Government of thte names of the pqrties tie whom the di- vidends were payable, and the endorsements werc niaiein theBank.. books kept for tltatpurpose.The Bsankwas now nopartyto the transfer. except that they kept books in whiichL a regcistry of such transfer was entereil. T.allieswere no longer in use, but it was enacted ~i almnost all the loan.acts, that kooks were to bekept in which ther-e4gistryof a transfer efstock wasq to be signed by the parties or their attorniey, at- tested by two credible witnesses.' This was enactedi by the 12th Goo. IL, c, 1., a. 23, and 41bhGeo. Il., c~ 19. In order to usalce a tr-ansfer legal. thiere mustt be ani assiganment and 'acceptAnce, bnet in the present case the assignment was wanting, 'When the transfer was made, the llanlcboliks contalined rt~slstries of it, and it was held that copieg of' those bonks would be gQod evidence of such transfer. This doctrine was conflrmed by two cases, in Peakc and Espi. nasse, 665. In the case of I" Auriel anid Smith," in Vesey thec Lord Chancellor of that day decided that the Banak-books shul be produced, to show that the entry nmade in them, in a particular in- stance, was not in thte handwriting of the party from whom the stock wvas said to be transf'erred. The Comirt were not now called upon to decide whether the logs (in cases of forged tr-ansferl shouild be on the parties sellinig, or on those accepting the stock, but it was clear that dividends could not be paid to two parties on the same identical sitock. Dificiulties would no doubt be createdI in congequence of thig, but the question was, wvhethier thie Biank should be exposed to such diffleuiltics, or thait injustice slhould be done to the real owner of stock, by withhlslding from- himn his dividend. The Bank was not bound to allow the transfer to be made until it was satisfged that all the necessarv forisis for that pi4rpote had been complied with. They were allowead a rea;onable time toinake thiereqt~iiitefnqurlres on this subject, and tor aseortaini-ng whether' the signat'ures wiere genuine. If they neglected to mnake ssieh inquiries, or did not succeed in imaking tlien, they, and not. the hiolder of the stock, must talte thea consequences, and the loss, if any. This rt,le should hold in the presentease. The plaintiff Was nopaity to the transf'er made in his niame, and if the Bank permitted it withiout the necessary inquiries, t hli loughiatogthe ignorant, of city frand, must hear the loss, an.ot theplaintiffl. TIhese transastions occurred abot;t fiye years ago, andi thte plaintiff sust-Vined by it a greater loss than the Couirt could make good to him by deciding that be was stillithe legal posses. sor cf his originat capital stock; foT hethad lost hsedevidend3upon it sincethen, the interest he might have had upon thiose dividends,. anid any advantage which m-ight have accruied from the rise in the funds in the sense time. Anothler alarmingn. consequaence of such, easeas-R the present would be, thit.t pevsons residing in the country n,igist have, as in a recent instance, thieir stoe~c trnanferred by fored powers of attornley, and the dividends ptra,d to them for so many years, as that they mighit be barredI in their claim bv the Statute of Limitations. His liordship herte cited several cases, fromi Aloore, aidt lzrniewall and Alderson, to show thiat, in eame of'forged trans.. Axr, time Statute of lmiitations, began to run iron, the moment ttime transfer was made, even though, as in ai recent caaee, the parties whose namies were forged Rhouhl contisme, inorant of it for a, longr time after. Thlere was acse tobhefounidinIarnarditto-, ,in whichi a personi namied Edwaid Harrisoms got possession by forgery of some Southt Sea stock, whicii ha-l stood in th0 nanmeof anothier person also named Edward Harrison. Thie cxecutors of the latter filed a bill aganst 'the Sotsth Sea Comnpany to recover the stoeck, and the Lorid Chansellor (Hardwicke) decidled that they wvere entitleid to have an equal quaniit at' stock transferred to theisti by the Company;anid htis Lmo'dsllip radded, that another anti maore difficult point for him to decide was, hoaw far the Comlpany wvere or were not liable to make geod any loss whichi mighit have accrued to Harrison's estate by his having been kept out of Isis stock and ot? coarse not being able to speculate upon It for suchi a iength of timei. The sense cewe was better reportedi hi 2d Atkins. In that hook it was stated, that in the case of "1 Harrison and liar. risen," thie transfer was mnade by~ a truistee,, and in breach of tiust; and the question was, whethcr the South sea Company or the trUP. tee Was bound to pay, andc this accounitedi for thie difficulty stated in thte Lord Chanicellor's decision. T-he Couirt was not here culle-d upon to decide whiethier purchasers of' stock sold under forged powerg of attorney were to have the-ir purchases confirmed, and toUhl tile right of receiving dividiendis upon tlieni; but, In ordier to pmrecent the alarm Ilikely to be excited by the arguilient usedi on the part of time defenldants, they (the Court) would dleclare that the Bankt could atot. refuge to ninke up to steeh purchaese the money paid for their stock. The B3ank was pail for keeping thte books Its which all transfers were to be registered ; they were to rieethat no transfers were made without the proper authiority, and they wotkld not. be per- mitted, to declare that they 'would lnot alcakegood all purichases made and registered in those books. Ifsuchm wire 'hot the law, whiat mian woniuh purczhae futnded property ? or who could be certain that. thie istock of which he lietd made a l.onsa fide putrchase was Itils owni? It was of great public importance tha there should- be a facility of transfer; but if purchasers of stock werecobliged to examnine all tlit particulars netessary to a transt'er, and to ascertain the idritily of tuec seller, or the genuineness of the auithority unider which lie sold, traRsafers of stoek -would be rendered exceedinjzly dilficult; if not al. most impossible. Fromtthise numiber of hands t.hro41A~ which such prmserty had passed from time to tlnm.'e-frbns the inutlcir of personis of tne sarumenaeire buiyiaim and selhing-...t would be aluostt Impossble, to trace iipsp ny given portion of stock, Sga,s to sitate withi certainty wbo %was thie legal possessor. TIhe Bank.book3 contained the names of thistthen omvners of stock, and purchassers itever went fair. tIme. Such being telse ase-, wh'at tras tilere which affected the p lain. 1if's rfig"' to recoveir in the present insta-ne ? It vae p roved thathbe discovered the forgery onj the &l of Mtarch, 1820, and that lie did not communicate it to the Bank until time Septtenberfolldwhng, anld that in the mean timec the delinquent escaped- fromi justic by tl'yin thie kingdomn. It was loeae that the g1lastTrachusewleged the lhaving received a cectek from hils brother (the guilty, paetv) for the amount of the balance thien clue td hiins at his - anker a. Such conduct on the part of the plaintiff was at the utmost only auidistemeanour. But it was finsigted, - that the plaintiff' liaid barred htis elrai to the dividlends whbich accrued tipois liis stock from the time wihen he dliscovered the~ forgerv to thmat in which he- comnmunicated it to the B3ank, for that the hank raight hiave paid over the- dividenids to the wvrong pa4rty. The Conrt were toea certain extent of' the scan opiniion, and if mite- Bank lied preveA that thiey lhad aettially pgaid suchb dividenrds, thjen the plsiutiff's righit to recver woeald be barred, as far ea that tynunoit of dilvidentd. Bust no such proof had been given ani it- would-be- nceissri to have giveis it in order thast the' Bank couqlad vail itself ol' tie plea. Tais Frncl -was fully reconized hin the casse of " Bird and Randal Burrowes, 2-53, in which. it was held thlat wbatever went to bar 'the plaidtitl"s righit should be given in evidenlce. It had beets contended, thiat upon principles of public policy, ,the Court ought~ not to asisist ;he pslaintiff. in- tiins actionl. Tisss, horrever, was a, piincijme upon, wsich, the C~ourL ought to pmroceed with the greatest cauticin, beceuse,cther. wise, tha -rights,-of the subject -would dependI on their diw~eouos. There wveie ma-ny thitigs...waegeo, for instaticti...wvi ~ tl~oNCurt permitted, although they wgp: conlirin'cd that thu.k wtire opposed to -pubhievolicy. Jag&smsWotr .lSitsjlsustas W66iu pb'wbr as that of fl~roceedingiuon prmllso aiii6lc rights of the subject MAndtheCot O ould n brough t he' a irIs irl party lbr do~ugaq an at sasietonacvlatn omiission to do an act comnm, ea;ed The a)roti accusedo ofor miscrision of felony, in hs pqamn oaceule of his brother. Tha,t, owever, formed -use ground o lfne~ h presnt ctin. lesodefendants had conteAdti-tg thqpAsifha forfite hisciv l igt (as fareas tbe present action. wgcneed by ha muisrusonof felony. Buvt Would. it be msiimtteud.ta misprsionof feon'~we, a.crunte fox which a i mansn sholdoe i punihent could fIldw only. 'n injury4dn t the~ ~~.e Cpuip~t kr~ew ahi Of forfe ,4e f altL god as- a gnerl. umnslsiie?lr-a mUprisfon of-felony..! TWuS1iant~ -mea wiicletlu l'tv, iusnnl 'awl-arvaded for that - oMllpne- wts ilo. an it~rlenioiit.: thg_- disepetfon of the IOourt,it 'juts ao.otendp y tbe defqnslanti,,t- -tihe civil acticti.mrtirgea,i1 -the felony. Thai. posititinxivighltholdgand1if h litf'a ie to. recover frocti theguilty party, but -that seas npr~tditicasa,e iere. :a4d it never hiad been held that the owner ofgoods,roalbbd-orsip*n, m~ight not being-his actioti for their,re,cover,y efpre'tbe~Qnv1Vtjbnof the' thief: for -instance,; ini'the caseoh o crf r-fonths vraggons -prouert. v mtghe' ave been- feloniously - takhteo wouhs-lY.Wbq conten.ded, Tha. tug ow"tit' cauid o. al acee ain t the- CA ei.rit-c ,flo. Ba.nk in this ease- as preelq;ly in IhII sitimOoin qftbe carrier. -NW thi the chiarge ofconiceaht enttigainitthd &i0tiffE1,li-was no ariswer'to the..present'astuon,-,4nless it odehomtate-db-sle of the intention Utocomueit-the-eriine; or-hedi 1 itc-dtpu~l *es hbek poe ~tisr 'fhdfnln,-ApiassIng by- IssbmiOqr'sdor-and:se6ingi enter, -whom hifbokuw to heilbOat W iAraw-out ltu (Ass,) proerty, by a fagIed chmcck, anditill.hiptiffered tbI fellsy, to k~vm n . .lt pat mse, 4'Q I4I iit Weoy-r ltty t te forgery;'btnoul thep1aindijf? i the prosnt action: obn OMe contrary,' tb-o jury by their verdict directly negatived-any suc asen..FortIeielmasns the Couixr vere~of o"lnioai thmi he %iiclends chficlh 0Act On tpSecOnj_nd:-J foUrth Coants, the fuvitd.ns'c i a deran5a" ,and wihich the Bank had re. * Dr. Sergeant VA trGIAaN appad t6 show c3ause against arule obtained by Rlr.. ega?ezo forme-rdey, why the defendant (the Wardeni 9f h FeteanawKman action had been comi- menced for the saeo rsnr narmed Hoskipm, shouldl notal. low to'tlie phalitif oyo h t.boas and contmittitur under .which the sad Usnsbdbe ie to hia custoy. Thelearned Sergeant wdk foloe n h aeside by Sergeantts Larves and Wilde;- but; ut~tecoeo h argmertt, it beinig discovered that the, plairntiff ceul obanhsojc n nte a,teocurt., without pronouncing onthic.ar mretsdicagdterewihu consts-Thls v'as thelast dayo :tkm ORY this deelsion, tevrfti nre othpanif,and lie is tlbus entitled to his dividends as if the forgery had never beeii cozn- rn2tte4, COURT OF COMMON PLEAS. MIInIAY- NOV. 2Q FRAUDULENT TRANSFERS OF SOCX BY FORBED POWEBRS OF ATTORN1EY.. DAVIS V. THE 'ANK2L OF REWLA7TI.