Court Of Common Pleas, We...
The Times, 1824-01-27T00:00:00

PRICE V. UARSII AND OTH1RR. 'l'he Court sat this mnornine in n.e,;-. Air. Sergeant PELL moved f&r n rule to show caose, why the ver- dict, which had beeni enteredl for the plaitiff' in this cansc, should not be set aside, as being contrary to the .eight of evidence, and why a new trial should not be granted. Before he stated the facts of the Case, he woniid inform their Lordships, that if the learned Judge who had triel it, would stale to the Court that he considered the question inivolved in it to be merely a question of fact, and the find- ing of the jury to be pertectly correct and satistactory to his mind, hle would not say a single word more upon it, but would leave it, as it remainedi at present; but unless such a declaration were made by the learned Judge, he was of opinion, that the Court, upoIn hearink his statement, would think him perfectly justified in making this motipon, wlich, thotugh of no importance to his clients in a pe- cuniary point oif view, was of great importance to them as tar as regartled the character of' two of their clerks, who lhad ap- peared as wiltesses upon the trial. This %vas an action brought by an apothecary of the iname of Priee. to recover of the defendants, Messrs. Alarsh and Co., hankers, in Bcmers-street, the sumt of 501., being mnoney whlihl, he alleged. has been lhad and received bv them for his use. On the trial a verdiet was iiven for that amoont to the plaintiff: To obtain that verdict the plaintiff had called two or three witnesses, one of whom was a boy named Johu Henrv Baggs, not more than 15 or 16 years of agc. Thsat boy told the following story: he said, that in August, 1822, he lived as servant with the plaintiff; that being with his master at no great distance from the banking-house of the defendants, his master pulled out of his side-pocket a small parcel that was twisted up, and put it into a side-pocket of a book ; that his master carried this book in his hand as far as an upholsterer' shop, wvhich was near the defend. ants' banking-house, and that he then gave it to the witness, say- ing, * Go straight forward, and see that the clerks receive the monevy." T'he boy thien proceeded to say, " I took the book,and car. ned Iit itl the state in which I received it to AMT. Marsh's. The book bulged out. I gave it to Air. 11'.W1atson. lie looked at it; took out the notes, untwisted them, wrote upon thenm, put them away into a drawer, a3id then weighed the sovereigns altogether. l1e then asked me if I knew the amount; I said I No, I do not.' lie then wrote down something in a book, and then gave it to mn." He must here observe to their o?rdslips. that this was one of the points of the cause. Mlr. W1atson undoubted alhad made an entry in the nass. book in the hurry of business; he entered on the receipt side of it the sum ofl-81. lOs. ; and the plaintiff's case uas, that that sum had actually been paid into the defendatts' hanls on his account; atid the defend. ants' case was, that not more than 311. lOs had been paid in, anti that too in a single draught. The boy ncxt proceeded to say, * I carried thLs book to my master's house, in Cannon-street. 1y tnas. ter's assistant looked at it when I brought it homne Afler this time I went often to this bankiig-house with draught,& I then saw illr. Golightly, and tiotl r. Watson. Nothing was ever said to me about tite entry,which was made on the 10th of August, though I took the pams-bo6k once at least afterwards. I called in January there again. I made a memorandum of it the same day which I gave tnv mas- ter." Such was the direct evidence which the bov gave at the trial; but upon cross-exatnination, lie (lr. Sergeant Pell) contrived to elicis from him this important fact-that his master had iVaited at the denr of the banking-house until the boy came out again to him. That fact appeared to him to be decisive of the case; for what man had ever heard of anotlhergoing to the door of a banking-hotse. sending his boyinlivery into it with a qhtantity of uncounted money, and then staying quietly at the door without any assignable cause for so doing, until his boy came back? Azain and again had he called upon the plaintiff to give soane explanation of tbis circum- stance; but no explanatiotl had he ever been able to obtain. le was aware that a strong impressiotn was made on the minds of the Jury by this boy's account at a very eariv period of the trial but he thotight that it ought to bave been entirely ehfaced by the evidence vwhich was subsequently tendered oti the part of the de. fendants. They proved that itlr. lVatson had rectived and enter- til the nmoney in the absence of the regular receiving clerk : that the regularreceiving clerk dliscovered the error inmmediately on his return, and that he made a meinorandom of the discovery imme-. diately, by 1r.Wvatsoii's express desire'. He, as a man of basinsess, felt that t te first thing which the defendants ouglt to have done, was to give notice to the plaintiff of their mistake. The learued J.udge who liad tried the case would recolect that a very stapid fellow of a porter, in the employ of the defeindauts, was called to prove that be had been sent to the house of the plaintiff's mother, with whomn the plaineilt' had for some tinie lived, in order to give him that notice; but that on his going there the plaintiff couhl not be found. Itwas, hawever, provedon the trial,and Iedid notwanttocon- cea from their Lordships that it was a point In favour of tles plaintiff swhich weighed much with the jury, that the Plaintiff subsequent. ly left liis pass-book more than once in the hantls of the defendants and that no alteration was ever made in it until the ustial time canme for making up his accouilt. There was also another point en the plaineiff'g favour; it was shown that there had be: n b'tls, i; wbich uie plaintiThad a claim, and in which his residence was. stited,lying in the handsofthe defendatits a very short time after this error had taken place so that if the bills had attracted their attention, they could not fail to know wbere the plAintiff was to be fo'und. No. th.ing, however, was done by the defetodants to inform the plaintiffof what had occurred,until the clerks made up the pass-book. They then fiound out where ithe mistakte was, having discovered the e-xistence of the mistake long before. They ernased tihe figures 811. l0s., and in- serted 311. 10s. in their stead. He could not help hearing the obser. vations o tthejury upon thatpoint. :Tie LORD Ca rrgs J wS coCE interrupted the learned sergeant, to inquire whlen the alle~ged error was discovered, atid whien the sub. s7eq,~ans erasure was niade. th- e r.einthetF .-The entry was made its August, 1822, and iheersrei the subsequent January The LORD CHnIEF JusTcIC.- ien the defendants made the erasure, was any explanation of it giren to the plaintiff?p X lr. Sergeant PELL replied that he would answer his Lordship's enquir upon that point directly. The sum for which this action was broug It was of no consequence to the defendants, ut nwit so the cha- .acter oftheeirderks. Now the defendants, with a very proper feel- ung, wished to protect the character of twvo of their clerks, ore of whonm had lived with them 37 years, from the imputation-of the grossest perury. lHe put it to their Lordslsips on which side such an imputation was most likely to attach in this case. On the one side thiere was a voung boy of asn inferior station in life, and on the other two clerks of mature age, who had.hitherto conducted themselves in the most irreproachable manner. One of them, Mfr. Mratson. was the first r7itnesi whotin he had called oni the trial for the defenice .lie stated that the boK had only paid in a check of 311. Jogs., and posi livel swoe tha e le pad inwithiot iohing else, nither notes rio-moey lithe aded tht epe tedraught into 4drawer to be Prie,terceijn,.eeri tiaPrice,onconmingfrouildin~er,; flinyin thtthremiht a~ ee som i8sitake, put thedraughtinto hishangin aae4 im bou it t~hen iesaid, "Good (od5I1bave made a Mistate,10 and reqwste Price to after It imntiediately. Ife further deposed, that.a porter was iustaptly sent to find oat the plain- tfWand. acquaint him with the errdr * bdut tiat he was notable to find hirn. NTow he would call their Lordships'. atte3tioid to 6ne or two poimts which this evidence presented for consideration. WVatson swore that he received nothing else but the draiglht. The boy, on the contrary, swore that he gave Watson a parcel oft notes, on each of wthich Watson wrote something hfter he bad untwisted theim. Every body knew that banlers, though they sometimes wrote on a rouleau of nites the amount of the whole, never wrote on each note its indi- vidual amount. The next evidence which he offered to the jury was that of IV. Prce, another clerk to the defendants. He corroborated the most material parts of M atson's evidence, and swore that the mistake was entered in the waste-book the moment it was discover'z ed; so that it was clear that W1'atson must either have -spoken the truth in the accounit wehich he gave to the iury, or else that he iiuut have put the money. into. his own pocket, and then have deterniined to prdtect himiself by the cimmisnion ofthe grossest peritiry. Anothier clerk, of the nane of Golighllvi w*vs then ex- amnNmed, whIo swore that the mistake was pointed o'it to him shortlv after it was discovered, so that the account of Mr. Watson receivea fresh corrobotation froni this quiarter also. 'Tleir Lordships would IIOw perhaps be anxious to know what account thebplaintiff w5d him- selfgirenof the manner in vhich this money was paid into the hanids of the defendants. On going to their banking house, he was asked how,he had paid in this sum of 811. 10s. To IiMr. Watson he said " I paid it into you myself, i1r. Watson, in a 501. note, alonz with a check for 30 guineas." That was one of the accounts whichi the laintiff had given. To Mr. Golightly, however, he had given anotner. He had said that he had paid it to him in one sum, with- out saying a word about anv sovereigns. The learned sergeant said that upoII hearing these differeat accounts. he was himself perfectly astonished, and thought that a.s the dliscrepancy between them could not fail to strike the most inattentive observer, it must be decisive with the jury. Both these accountS could not he true, and neither of them tallied with that given at the trial by the plaintiff's servants. These were the principal points whichl he wished to bring before tse attention of the Court. He would not fatigue their Lordsllips by recounting Eheam again, but would simply state, that the defendants had instructed him to make this metion, trom a wish to protect the character of their clerks. The defendants had, per- sonally, little or no interest in this case ; for the error which had been committed, was not an error of theirs, and therefore coald not affect their well-established character. They wished, however, to rescue their clerks from the imputation of gross fraud and audacious perjury. They therefore caUed upon the Court, thlrough him, to review the verdict of tcie jury. 1Lr. Justice BuRtROUGU observed, that this cause had been tried before hiin, and had occupied a considerable quantity of time. On summing up the evidence, he told the jury that it was entirely a question of credit between the serveants of the one party, and the -lerks of the other, and reminded them that if character was va- hlable to the witnesses on one side, it was equally so to the wit- nesses on the other. He had likewise said, that he considered the lact of the boy's not having mentioned any exact sum to be a circumstance which added muchi to his credibility. fie had also informed the jury, that, in lhis opinion, the boy's testimony received corroboration from another circumnstanece, wicbh, thouc j trfling it itself, was of great importance as far as related to this cause. The boy had sworn that the derk who had received the sove- reigr,s from him had weiglhed them al together; and it was provedI out of the mouth of'the defendants' own witnesses, that this was the practice at their banking-house. He had also called their attention to this circumstance-that the p7laiitif's pas-book had been several times in tcle4landsofthedefendants immediately after the montlt of August, and that no notice of the alleged errir hail been given to Iiim, nor any alteration made in the pass-book, till the month of the ensuingJanuary. Helikewise noticed thatin Januiary,fiminedi- ately aficr the erasure had beerr made, the plaintiff went to the de- fendants to obtain an explanation of the cayies of it, when they told him in reply, that they had nothing to dao with it, as it was ow.ing entirely to a blunder of their clerks. It certainly did appear to nim that it was a mere question o' fact which the jury had to decide; and as such, he leR it o their consideration. He could not say that lie was dissatisfied with htte verdict which the jury had given, and thei e- fore lie could not consent to the motion of his learned brotlher. *he l,Onn Cistl JUSTICE could not discover in the argutiuents of the learnedl sergeant anv reason for distturbing this verdict. It mighlt boe true that It afected the cliaracterof thiese clerks, though lie, i for one, could not sec how; still that br' itself formed no ground for I overturning the verdict, supposing it to be faultless in everv other respect. There was HO impuiatioi on the clerk; if lie inserted 811. l0s. for 311. 10s. in the pass-book, supposing the case to be so, it was oele of those accidents whirh must sometimes occur in the hurry of business. The learned sergeant had not even insinuated that !liere had been any contrivance between the plahitift' and his boy to induce the clerks'to mak;e this entry of 811. lOs. * and that was a circunistaicei wrich could iot fail to strike every man's attention as of very material consequence in the cause. It likewise appeared that no intimation of this error on the part of the defendants was ever made to the plaintiffbefore the nontli of January. It was very sit gular that the clerks who examined the books 'and discovered the mistake, did not take care to have it rectified immediately. They said that they did not know wvhere their customer was to be fount. T1at was in itselfa very singular circumstance, and was rendered still more so by the t'act of their lhaving bills of his ini their posses. sion, in which Ihis rcsitlextce was distinctly stated. They had like. wise had his pass-book sent to thetn oni more thati one ocrasion ; ainid yet they had always returnedl it till the nionth of January, without making any alterationi in it. The learned sereant had attempted to disturb ilie verdict upon another grounnl-iamnely, that the plain- tiff had given contratlictorv accounts concerning the manner in which this alleged sum of O'll. 10s. had beenrpaid into the defendants' hands. That circumnstance. however, would not surprise any persont who recollected, that five montlhs were allowed to elapse before the ilefendants called the attentioll of the plaintilfto the mistake in the pass.book. He was therefore clearly of opinioti, that the different accounts whiclt the plainitiff had given did not furnish ground for any imisproper imputation tupon lis character. It w.as a strong corroboration of the boy's testinonsv, that thie def'endants were in the habit of wveighing sovereigns together wlteit they re- ceived a nu(mber of titeni. He swore thia Alr. WI'atson weigled the sovereigns altogether, and that wats cosistent with the practice of the hon-se, of which the boy could not by any possibility. know any thing. Hecoalthnot see what advaultagecouldbe derived by sending this case down again to a jury. Supposing that a verdict were tound ror the defendants on the next trial upon this mass ot conflict- ing evidence, the verdiet whlich hail been given ott the last trial would be emnployedi as an argument for graitlig a third trial ; and would anJy body pretetid to sa) that both panies would be cotitentedl with the issue of that trial F The clerks would stiUl think that the nmis- take had originated with the plaintiff, and the plaintitfwould still remain of opinioni that it had originated with the defendants or their clerlts. He trusted that not'ting whihlilie had said would have the slightest effect on the character of the clerks, ilhicii, lie thought, was quite free from aU imputation ; but, nevertheless, for the reasons lie had stated, he could tiGt consent to distutb the verdict whici had been alreadv recorded. ir. Justice PATRK concurred with lis learned brothers, and the rule for a new trial was therefore refused. The LoaIn CitE., JUSTFCtE left the Court a! lhalf-past twelve o'clock to hold sittings in Guildhall, London. COURT OF COMMON, P AAl--- rT4w Of: I