DECEMBER 22, 1855.

LAW UNION FIRE AND LIFE INSURANCE COMPANY.

CHIEF OFFICES, 45, PALL MALL, LONDON.

CAPITAL, ONE MILLION.

The FIRE and LIFE DEPARTMENTS are under ONE MANAGEMENT, but with SEPARATE FUNDS and ACCOUNTS.

DIRECTORS.

SIR WILLIAM FOSTER, Bart., CHAIRMAN.

JAMES PARKER, Esq., Baddow House, Chelmsford, VICE-CHAIRMAN.

Mr. SERJEANT MANNING, Q.A.S., Serjeants'-inn.
JAMES ALEXANDER DOUGLAS, Esq., Solicitor, 16, Russell-square.
E. SLAUGHTER, Esq., Solicitor, 15, Mansfield-street, Portland-place.
JOHN WOOLLETT, Esq., Barrister-at-Law, 5, Brick-court, Temple.
CHAS. FOSTER, Esq., Lincoln's-inn, and 13, Bruton-street, Berkeley-

SOLICITOR.

GEORGE JOHN DURRANT, Esq., 45, Pall Mall.

Wm. Gillmore Bolton, Samuel Benjamin Merriman, and Camberwell, brewer, Jan. 15 at 12, London, div.-Thomas Simon Dunning, Austin-friars, attornies and solicitors.

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COURT OF QUEEN'S BENCH.

By G. J. P. SMITH and W. B. BRETT, Barristers at Law. The Overseers of Horton v. The Overseers of Leeds. -(Irremoveability— Militiaman - 9 & 10 Vict.

1162

c. 66, s. 1)... Drury v. Macnamara.- (Agreement for lease for term exceeding three years, not by deed-8 & 9 Vict. c. 106, s. 3-Action for not giving possession).. 1163 Willis v. Cooke.—(Insurance on passage moneyMaintenance of passengers-Detention during repairs-Passengers Act, 15 & 16 Vict. c. 44).... 1164 Reg. v. Wilks. -(Indictment-Several defendantsCertiorari at the instance of one-Recognisance for costs-Order of judge-Application to Court for procedendo-5 & 6 Will. & M. c. 11, s. 2—5 & 6 Will. 4, c. 33, s. 2) Bell v. Postlethwaite.-(Arbitration-Common-law Procedure Act, 17 & 18 Vict. c. 125, s. 3-Costs not mentioned in rule-Award of costs-Amendment of rule) Avery v. Bowden.—(Charterparty-Clause for cargo at C. instead of O., " in case of war"-Meaning of word "war"-Refusal to load caryo-Renunciation of contract-Waiver of breach)

..........

COURT OF COMMON PLEAS.

1166

1167

1167

1153

.....

on sale of goods)

1173

COURT OF EXCHEQUER.

By W. M. BEST, Barrister at Law.

VICE-CHANCELLOR KINDERSLEY'S COURT.
By C. MARETT, Barrister at Law.

Sharrod v. Winfield.-(Creditor-Costs)..

VICE-CHANCELLOR STUART'S COURT.
By T. F. MORSE, Barrister at Law.

......

In re Catherine Pitt.-(Practice-Costs of establish-
ing right to fund, how paid)........
In re Ellison's Estate, and in re The London and
North-western Railway Acts.—(Railway company
-Payment of purchase money into court under
special act-Application for payment out of court,
costs of ― Lands Clauses Consolidation Act)
In re The Trusts of the Will of W. Covington, and
in re The 10 & 11 Vict. c. 96.-(10 & 11 Vict.
c. 96-Payment of money into court by trustees
-Notice to the trustees against-Costs of appear-
ing on petition not allowed) ....

.....

VICE-CHANCELLOR WOOD'S COURT.
By MATTHEW B. BEGBIE, Barrister at Law.
Simson v. Morley.—(Judgment creditors-Registra-
tion-Priorities)

..

Thomas v. Thomas.- (Statute of Limitations—Im-
plied guardianship-Constructive possession) 1160
Cogswell v. Armstrong.-(Residuary devise-7 Will. 4
1 Vict. c. 26, s. 25)
1162

THE JURIST.

LONDON, DECEMBER 22, 1855.

CROWN CASES Reserved.
By G. FRANCIS, Barrister at Law.
Lands.-(Bankruptcy-12 & 13 Vict. c. 106,

8. 253-Evidence-Act of bankruptcy)

PREROGATIVE COURT.

By A. WADDILOVE, D. C. L.

........

In the Goods of Sir J. Stracey and Wife.--(Joint will-Probate granted, on the death of the sur

1175

1176

viving testator, of each, as two distinct wills). ... 1177

COURT OF ARCHES.

BY A. WADDILOVE, D. C. L.

Burder v. Pughe.—(Clergyman — Immorality — Suspension)

CONSISTORY COURT.

BY A. WADDILOVE, D. C. L. Westerton v. Liddell and Horne- Beal v. Liddell, Parke, and Evans.-(Church furniture and ornaments, including the cross, pronounced illegal, and ordered to be removed, and the Ten Commandments directed to be set up at the east end of the church)..

1178

1178

cheque for 487. 17s. 11d., drawn on Messrs. Masterman, and crossed with the name of Messrs. Dixon & Co., to pay into their bank. The clerk was in the habit of dining at a table d'hôte held at a tavern kept by the defendant in Fetter-lane, and to which persons were admitted only by an introduction, which he had obtained, through a respectable person, and he had re

THE direction of Lord Campbell to the jury in the recent case of Carlon and Another v. Ireland, tried at Guildhall on the 13th inst., is alleged by some of our daily contemporaries* to be at variance with the judg-presented to the defendant that he was an attorney, in ment of the Court of Exchequer, delivered by Parke, B., in Bellamy v. Majoribanks, (7 Exch. 389), and to have created considerable surprise and dissatisfaction in the minds of the mercantile community.

The plaintiffs had given to one of their clerks a

* Vide the Times, "City Articles," Dec. 14 and 19, 1855.

business for himself. Instead of paying the cheque into the bank, he took it to the defendant, and requested him to cash it for him, as it was crossed, and he had no banker through whom he could present it for payment. The defendant said he would pay the cheque in to his bankers, (Messrs. Gosling), and as soon as it was cashed he would give the clerk the money;

22

and he afterwards paid him the amount, without any knowledge of the circumstances under which the cheque had been obtained. The clerk paid 157. 4s. 1d. into Messrs. Dixon's on account of this cheque, and then absconded with the balance. The declaration in the action alleged that the cheque was the property of the plaintiffs, and had been converted by the defendant to his own use. The defendant pleaded that the cheque was not the property of the plaintiffs. For the plaintiffs Bellamy v. Majoribanks was cited, and it was contended, that upon the authority of the judgment delivered by Parke, B., in that case, the question for the jury would be, whether the defendant had exercised reasonable caution in cashing the cheque. But Lord Camp-"We think that the great preponderance of the evibell, in summing up, directed the jury that the question for them was, not merely whether there had been a want of caution on the part of the defendant, for that would not be sufficient to disentitle him to the benefit of the cheque, but whether the defendant gave value for it, and took it bonâ fide, and without any knowledge that it had been fraudulently obtained by the clerk, or that he had no right to transfer it to him. The jury found for the defendant. It will be observed that the action was not against the banker, (the drawee of the cheque), but by a former owner of the cheque against a transferee by delivery. It is one of the essential ingredients of a cheque that it should be payable to bearer on demand; (55 Geo. 3, c. 184, sched., part 1); it passes, therefore, by delivery, like bills, notes, &c. payable to bearer; and to restrict the negotiability of the cheque in this respect would be to render the instrument no longer a cheque. (See Bellamy v. Majoribanks, 7 Exch. 401). And although formerly it was considered that the title of the transferee of a cheque, bill, or note payable to bearer would be affected by want of caution on his part, and that he would be liable in trover to the real owner if he were guilty of negligence in taking it, (Snow v. Peacock, 2 Car. & P. 221; Gill v. Cubitt, 3 B. & Cr. 466), yet it having been found essential to the free circulation of instruments payable to bearer, which circulate as money, and to the interests of trade and commerce, that the honest possession thereof, and the property therein, should be inseparable, it is now finally settled, that if a man takes honestly an instrument payable to bearer, he has a good title to it, and it is immaterial with what degree of negligence he may have acted, unless his negligence be so gross as to induce the jury to believe that he was guilty of fraud. (Goodman v. Harvey, 4 Ad. & El. 870; Willis v. The Bank of England, Id. 32; Foster v. Pearson, 1 C., M., & R. 855; Collins v. Martin, 1 B. & P. 651; Elther v. Rich, 10 Ad. & El. 784). Such being the wellestablished law as regards cheques generally, it becomes necessary to consider what is the effect of the cheque being crossed; and with respect to this there appears to be a marked distinction between the position of the banker by whom the cheque is to be paid, and that of the transferee of the cheque. The law is clearly laid down in Bellamy v. Majoribanks, in which most of the principal London and many country bankers had been examined as to the custom with respect to crossed cheques, and the Court decided according to what they considered to be the great preponderance of the evidence given by the witnesses, that the crossing of a cheque with the name of

a banker, whether by the drawer or by any subsequent holder, does not in any way restrict the negotiability of the cheque, or render it necessary that it should be presented for payment by or through such banker, but is simply a memorandum giving notice to the banker on whom it is drawn that the party seeking payment thereof ought to present it through some banker; and that if the banker, (the drawee), notwithstanding this notice, pay the cheque otherwise than through a banker, and without making full inquiry into the title of the party presenting it, he does so at his peril, and it will be strong evidence of negligence in an action against him. In delivering the judgment, Parke, B., said,

dence on both sides tends to shew the custom to be
that which is reported to have been stated by some of
the jury in the case of Stewart v. Lee, (1 Moo. & M.
161), viz. that where a cheque is crossed, bankers
generally refuse to pay it to any one except a banker;
and if they do pay it to a person not a banker, they
consider that they do it at their peril, in the event of
the party to whom the payment is made not being en-
titled to receive it. That the object is to secure the
payment, not to any particular banker, but to a banker,
in order that it may be easily traced for whose use the
money was received; and that it was not intended
thereby at all to restrict the circulation or negotiability
of the cheque, but merely to compel the holder to pre-
sent it through a quarter of known respectability and
credit.' We are strongly inclined to think, that, on a
full inquiry, the usage will turn out to be no more than
this; and considering the custom in this point of view,
the crossing is a mere memorandum on the face of the
cheque, and forms no part of the instrument itself, and
in no way alters its effect. There can be no doubt that
such an usage is highly beneficial to the public. These
instruments are, in their essential character, payable to
bearer; they are, in many respects, treated as bank
notes, for which of late years they have been largely
substituted; but like all other things, they are liable to
be mislaid, or lost, or stolen, and may get into the hands
of persons, who are not entitled to receive payment of
them. It is manifestly, therefore, a great protection
and safeguard to the real owner that there should
exist the means of tracing and ascertaining for whose
use the money paid on a cheque is received, and to
whom the money actually goes; and the payment
through a banker secures this object. . . . . We think
the crossing of a cheque is a protection and safeguard
to the owner of the cheque; and that in the event of a
banker paying a crossed cheque otherwise than through
a banker, the circumstance of his so paying it would be
strong evidence of negligence in an action against him.

... We think there is no legal objection to the custom, if thus limited and understood, upon the ground of its being repugnant to the essential quality of a cheque, namely, its negotiability by delivery. There is no obligation upon any one to receive pay ment by a cheque, whether it be crossed or not crossed; but if a man receive a crossed cheque, he seems to us, not indeed to incur the obligation of presenting it for payment through a banker as a condition precedent, but he ought not to complain if the drawee does not pay without previous inquiry." Indepen

22

in the transferee, which will or may deprive him of his title to the cheque, would be a serious inconvenience to a large body of the public, who now both give and receive crossed cheques, and enjoy all the security which the present custom of bankers affords. Many persons who have no banker now receive crossed cheques, and pay them to their tradesmen, or get them cashed by a friend; but who will take a crossed cheque if the fact of his so taking it is to taint his title to its proceeds? The decision in Carlon v. Ireland, therefore, appears to be in accordance with the law, and with the preand others in the habit of making large payments by vious decision in Bellamy v. Majoribanks. If merchants means of crossed cheques wish for a greater security than they now possess, the most effectual and convenient course will be, to obtain from the Legislature an enactment, distinguishing between a simple crossing "and Co.," which should continue to afford the secuing with the name of a particular banker, which might ing the negotiability of the cheque, and a special crosshave given to it the effect of rendering the cheque payable to such banker only, without affecting its validity as a cheque, within the proviso in the schedule, part 1, of the 55 Geo. 3, c. 184.

LIABILITY

OF EXECUTORS UNDER AN AGREEMENT TO TAKE A LEASE.

dently, therefore, of the objection, that if a special crossing had the effect of rendering it no longer payable to bearer, but only to the banker named, it would destroy one of the essential ingredients of a banker's cheque, the above observations of the Court of Exchequer shew that the weight of the evidence given by the bankers examined on both sides was, that there is no material distinction between crossing a cheque with the name of a banker, and simply crossing it with the words "and Co.," the effect in either case being merely to give notice that the cheque should be presented through some banker. And this view of the custom is supported by the practice adopted by the bankers in Bellamy v. Majoribanks and in Carlon v. Ireland: in the former case, Messrs. Gosling presented and Messrs. Coutts paid Mr. Bellamy's cheque, though it had been previously crossed with the name of another bank; and in the latter, Messrs. Gosling presented and Messrs. Mas-rity which the present custom gives, without restrictterman paid the cheque, though it had been previously crossed with the name of Messrs. Dixon. The custom, so limited and understood, is founded on the practice of bankers, and applies only to the banker by whom the cheque is to be paid; it is notice to him not to pay except through a banker; but it does not affect a mere transferee of the cheque, like the defendant in Carlon v. Ireland. To hold that the crossing will affect a bonâ fide transferee of the cheque, and as against him raise a presumption of negligence in taking it, which will impugn his title thereto, would be, in fact, to restrict the negotiability and prevent the transfer of a crossed cheque; and the object of the custom, viz. to afford the means of tracing and ascertaining on whose account the cheque was presented, and by whom the money was received, appears to be sufficiently attained by merely requiring (that the banker on whom it is drawn should not pay it except through a banker. Bankers, from the very nature of their business, are called upon, and their contract with their customers in fact obliges them, in the case of ordinary cheques, to pay them (in the absence of any circumstances of peculiar suspicion) to any person presenting them at the bank, and consequently to perfect strangers, with whose residence, business, or habits they are wholly unacquainted; and there would be therefore great difficulty, often amounting to an impossibility, where a cheque has fallen into dishonest hands, in tracing the party who received payment of it. The custom of crossing cheques enables the owner of the cheque to obviate this difficulty, and, by requiring the drawee of the cheque to pay it only through a banker, affords the means of ascertaining on whose account the payment was received, and, through that party, the person from whom he received it. Although bankers, from the nature of their business, are compelled to pay cheques to strangers, an ordinary person would not cash a cheque crossed or uncrossed for a perfect stranger; and if he did so, it would be in itself strong evidence that the transferee was not a bona fide holder. The effect of crossing a cheque, therefore, as the law now stands, is not to give to the owner absolute protection against a dishonest holder, but it gives almost the certainty of tracing and detecting him. On the other hand, to restrict the negotiability of crossed cheques, by holding that the taking of such a cheque amounts to negligence

In the case of Stephens v. Hotham (1 Jur., N. S., part 1, p. 842) the testator had entered into an agree ment for a building lease of copyhold land, and as the custom did not allow of leases beyond twenty-one years, a lease was taken for twenty-one years, with an agreement that the lessor should at the expiration of the term procure a license for a further lease to the builder, his executors, administrators, and assigns, and that the builder, his executors, administrators, and assigns, should accept such lease, and execute a counterpart of it. The builder entered into possession under the first lease, and his executors. The lessor procured a license to demise, died before the term expired, appointing the defendants and tendered a counterpart of the new lease to the defendants for them to execute, which they declined to do. On a bill for specific performance, Sir W. P. Wood, V. C., on the authority of Phillips v. Everard, (5 Sim. 102), but against the inclination of his own the counterpart by the executors, observing that great opinion, decreed specific performance and execution of care would be required in framing the lease so as to avoid fixing the defendants with a personal liability to pay the rents, &c., especially on the reddendum. defendant's testator to grant to the latter, on the exIn Phillips v. Everard the plaintiff agreed with the piration of an existing lease, a new lease, subject to the same covenants as were contained in the existing lease. Among those covenants was a covenant against assignment of the lease, not extending to the lessee's executors or administrators. The testator died before the Shadwell, V. C., decreed specific performance of the time arrived for granting the new lease, and Sir L. agreement, the form of the lease to be settled by the Master. Before the bill was filed the plaintiff offered to permit the covenants which were to be entered into by the executors to be so qualified as that they might be no further liable thereon than they would have been into by their testator in case a proper lease had been on the covenants which ought to have been entered made to him in his lifetime.

On the other hand, in Worley v. Frampton, (5 Hare, 560), which was cited in Stephens v. Hotham, and was the converse case of a bill filed by a lessee, against a