THE CALEDONIAN INSURANCE COMPANY v. THE BRITISH LINEN COMPANY.—

July 8.

Fraud-Liability of a Bank to repeat Money paid on a Forged Indorsation of a Letter of Credit.

Harvey, the agent at Dalry for the Caledonian Insurance Company, made a proposal to the Insurance Company in the name of King for an insurance on King's life, and a loan to King of L.450 on the security of the policy and the personal obligation of two cautioners. King was inspected by a medical man, before whom he was induced to appear under the idea that Harvey wished to effect an insurance on his life. The whole signatures to the documents excepting that of the medical man were forged by Harvey, as well as the signatures of King and the cautioners to the bond granted to the Insurance Company. The Insurance Company remitted the money to be lent to King by a letter of credit for L.436 on the British Linen Company's Bank at Irvine, payable to King— it was enclosed to Harvey. Harvey forged King's name upon the back of it, and obtained payment of the money in July 1853. Harvey desired the money to be made payable at Irvine, as most of it, he said, " was to be paid away there." When he presented the letter of credit for payment, he represented to the bank agent, whom he knew, that he was King's agent ; that King was in frail health and unable to come himself. Harvey paid the interest on the loan due in November 1853, and the premium on the policy due in December following. In July 1854 he absconded, when the Insurance Company first became aware of the fraud practised on them; and having no recourse against the granters of the bond whose signatures were forged, the Insurance Company raised this action against the bank, on the ground that by incautiously paying the money remitted to King by the letter of credit on a forged indorsation, they were liable to reimburse the pursuers for the loss thereby incurred. It was pleaded for the bank, that they were not liable, the forgery of King's indorsation on the letter of credit being part of a fraudulent scheme practised upon the Insurance Company by their own agent; the loss being the result of the deception practised on them, which was completed by the paying away their money in the purchase of a letter of credit in favour of a man who never applied for it and never heard of it; and the Insurance Company were to blame in sending the letter to their agent instead of the party in whose favour it was drawn. The Court held the bank liable to the Insurance Company for the loss. Observed by Lord Benholme, who delivered the judgment of the Court-Although Harvey deceived the pursuers, the pursuers never put the money properly into his power: they did not authorise the bank to pay to Harvey, but, on the contrary, made King's draft or indorsation an essential prerequisite to payment: so far as the bank was concerned, the previous deception practised by Harvey on the pursuers was of no consequence; he would have required to forge no other signatures than the indorsation on the draft had the proposals and bond borne genuine signatures. The Insurance Company were not bound by any rule of practice to transmit the letter of credit direct to King, and such was not established to be their usual course of business. It could not be affirmed as law that the pursuers were liable for the forgery of their agent. It did not appear that the unfortunate trust reposed in Harvey by the bank agent at Irvine had anything to do with Harvey being the pursuer's agent; he represented himself as King's agent, who was a frail man, and unable himself to come and get the money. In trusting Harvey's statement as to King's circumstances and signature, the bank agent was acting for the bank, and on his own responsibility as the bank agent; and for this confidence, in consequence of which the forgery was rendered successful, the bank must suffer.

[Owing to want of space, the reports of some Second Division cases require to be postponed.]

THE

JOURNAL OF JURISPRUDENCE.

THE MERITS AND FAULTS OF JURY TRIAL.

The Dark Side of Trial by Jury. By JOSEPH BROWN, Esq., of the Middle Temple, Barrister-at-Law. London: W. MAXWELL.

Address delivered before the Juridical Society of London, by W. M. BEST, Esq., Barrister-at-Law. Solicitor's Journal and Reporter; May 1859.

THE British public seems, from time to time, to derive a strange pleasure from abusing British institutions. This does not arise from an actual dislike of these institutions, as a foreigner would soon discover were he to try the same game. What it really does arise from, it is more difficult to say; perhaps from a morbid love of grumbling, perhaps from the indulgence of a wayward fancy, perhaps from the idea that it is pleasant

"At each wild word to feel within

A sweet recoil of love and pity;"

but whatever may be the motive, the fact is certain. It is only lately that we have ceased to hear the parrot-cry, that "representative government was on its trial;" and now our system of trial by jury is made the object of many bitter attacks. These periodical manias are not unproductive of mischief. They do not, indeed, accomplish much direct harm. In the present case, for example, we have no fear that pamphlets will overthrow juries. But indirectly, their effect is bad. They tend to render the people discontented with the institutions under which they live, disposed to undervalue the blessings which they enjoy as citizens of a free state. In ordinary minds, they induce an absurd habit of constant grumbling, and in village Carlyles they induce a yet more ridiculous conviction of superiority to "the age." It may not, therefore, be out of place here to examine the merits of an essay by Mr Joseph Brown, of the Middle Temple, which he has entitled, "The Dark Side of Trial by Jury."

It is no part of our present purpose to reproduce the stock argu

VOL. III.-NO. XXXIII. SEPTEMBER 1859.

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ments in favour of this institution. The general scope of these arguments the additional weight attached to the sentence, the purity of the tribunal, and the elevation of character communicated to the body of the citizens by the discharge of such important functions must be familiar to all our readers. It will be more germane to the matter, to inquire what arguments Mr Brown has been able to adduce on the opposite side. Mr Brown has encumbered the simple question, juries or no juries, with an immense quantity of extraneous discussion. Objections to the multiplicity of juries in the English system, objections to the numbers of which these juries are composed, objections to the requirement of unanimity, objections to the method and amount of payment which jurymen receive, and many other criticisms of the same sort, all refer to points of mere detail-useful, perhaps, as a peg on which to hang some small smart writing, thereby filling up the pages of a pamphlet-but none of them bearing in the least degree on the great question at issue. Upon that question Mr Brown's arguments may be reduced to two-(1.) That jurymen are put to loss and inconvenience by being compelled to attend court to the neglect of their business, without adequate compensation; (2.) That jurymen are frequently incompetent or partial, or, in Mr Brown's own redundant affluence of expression, "I accuse it (the system) of incapacity or ignorance, of partiality, of cumbersomeness, of barbarism."

To the first argument no reply need be vouchsafed. When Englishmen come to grudge what portion of their time may be required for the administration of justice, when they think it hard that some slight self-sacrifice may be looked for at their hands in defence of their liberties and their laws, when they deem it no degradation to exact money for the performance of an important civic duty, then the sooner the system of jury trial comes to an end

the better.

With regard to the second accusation, some embarrassment is experienced, owing to the vague language in which Mr Brown has disguised his opinions. It is hard to tell whether he would wish juries superseded altogether, or whether he would make any exception to the rule of total abolition. In one place he says, "Retain them, if you will, in all prosecutions for political offences, and in any case wherein public liberty may be concerned, or wherein the judge may possibly have a bias." This view seems to have been derived from Mr Bentham, who would retain the jury in all cases in which the liberty of the subject may come in question, but in no others. The answer is quite plain. It is impossible to know what cases would fall under this category. No one can tell at the beginning of a case what questions may arise in the conduct of it; and, as a matter of fact, some of the most important questions in constitutional law have arisen in civil cases. This difficulty is shown in the very words employed by Mr Brown. What does he mean by saying he would have a jury in all cases "wherein the judge may possibly

have a bias?" as if a judge may not have a bias in any case that comes before him. But, inconsistent as Mr Brown's statements are, the general tone of his essay goes to condemn juries altogether. As to criminal cases, he says: "Apply Lord Mansfield's observations to criminal trials, and what do they lead to? There is not a session or assize passes but we see notorious criminals escape, in spite of convincing evidence; and, to aggravate the evil, the law never allows a man to be tried again on the same charge. (Does Mr Brown wish this changed also?) It is thus that the whole herd of villains, who live by plunder, come to look on the law as a rather old net, full of holes, through which any slippery fish may escape." In the illustrations which Mr Brown uses, his dislike to juries in all cases becomes yet more obvious. Indeed, those illustrations are derived from that very class of cases in which he expresses his readiness to tolerate juries, i.e., cases in which the liberty of the subject is involved. "How long is it since an Irish jury found a verdict of wilful murder against Lord John Russell, because a poor man had fallen a victim to a national famine; or refused to convict the notorious Phoenix conspirators at Tralee? In many parts of Ireland, it is next to impossible to get a conviction of the assassins who execute the dark and bloody decrees of Whiteboys and Ribbonmen. On the other hand, when popular feeling is strongly excited against the accused, the jury becomes a blind instrument of vengeance. Every one of the judicial murders and confiscations committed under Charles II., was committed by means of a jury." Of course Mr Brown refers here to the great invention of Titus Oates, and to that unfortunate affair known on the other side of the Channel as the "Conspiration des poudres et des farines." No one, we suppose, will deny that jurymen are human beings, and being so, are affected by human emotions, even by human prejudices. Say that in times of great delusions, such as the delusion of the Popish plot, or in times of great local excitement, as on the occasion of the Birmingham riots in 1791 against Dr Priestly and the Dissenters, juries are found to perpetrate acts of gross injustice. The question is, Would not judges have done the same? We concede that juries are only on a level with average human nature; but what tribunal can be obtained which shall always be superior to that level? If Mr Brown will go back to a period so exceptional as the frenzy of the Popish plot in order to find illustrations for an argument which is meant to have a universal application, we would ask him, Who was it that condemned Lord Stafford? Not a jury taken from the crowds that cried, "God bless you, my lord; we believe you, my lord," when that unhappy nobleman protested his innocence on the scaffold, but the highest court of judicature in the realm. And be it remembered, that Lord Stafford was the very last victim of the lies of Oates and Dangerfield. When convictions could no longer be obtained from the bigotry and credulity of tailors and tallow-chandlers, they were obtained from the bigotry and credulity

of the House of Lords. But when that miserable madness had possession of the whole land, why should such superiority to the passions of the time be looked for in juries alone? Did Mr Brown ever read the charges of the judges in these cases? Does he think the victims would have been safer with Scroggs and Jeffreys as the sole arbiters of their fate, than they were with a jury? Were those meek and impartial men forced, in violation of their feelings, into the shedding of innocent blood? On the contrary, the judges were far the most culpable. The juries were led away by popular delusion, and by the authority of the ermine; but the judges sinned against their own convictions. Lord Guildford, while secretly drawing up a refutation of the whole fable, did not shrink from browbeating Roman Catholics from the judgment-seat, and from declaring that the truth of the story was as plain as the sun in the heavens. And if to this it be urged that the advance of society has improved the morale of the bench, we answer, that the same advance has improved also the intelligence and the independence of juries. But, indeed, it is idle, in discussing this question, to take our illustrations from the period immediately preceding the Revolution, a time when, in the words of Lord Macaulay, "a state trial was merely a murder, preceded by the uttering of certain gibberish, and the performance of certain mummeries." Throughout the whole of this brochure, Mr Brown adopts a very natural but very fallacious mode of reasoning, in throwing the blame of all wrong-doing invariably on the juries. His whole argument seems based on the assumption, that our trials are by juries alone, not by juries and a judge. It would be curious to inquire which of the two have been generally responsible for the scandalous results which have from time to time occurred. At all events, the history of our country affords no good grounds for maintaining that the one should be thrown overboard, and the other invested with the whole power. Certainly it would never do to change in the direction proposed by Mr Brown. What should we gain by the transference? Decisions uninfluenced by passion or interest? We doubt it. Education does not necessarily imply a perfect "dry light" of the mind, a superiority to all prejudice, an absence of all selfishness. Let Mr Brown listen to the trial of a poacher by a few justices of the peace, and then say whether the upper are more prone to equity than the middle classes. Better all juries and no judges in trials such as we are now discussing, than all judges and no juries. There are some instances, indeed, but these are few, in which the bench has protected the accused from the frown of power, or from an outburst of popular frenzy. Far oftener has this honourable part been played by the jury. If Chief-Justice Pratt declared the illegality of general warrants in defiance of the hatred with which Wilkes was regarded by the Crown, the maligned juries at the trials of Hardy and Horne Tooke protected English liberty against the partiality of Lord Ellenborough and the tears of Lord Eldon. As regards criminal and political offences at least,