1841.

THOMAS

บ.

HAWKES.

Erle and Montagu Chambers now shewed cause.-The Exch. of Pleas, plaintiff relies upon an express promise, but the defendants seek to convert some of the items of the account, whose correctness they have expressly admitted, into a subject of set-off. [Alderson, B.-The issue is not simply whether there was an account stated or not, but whether the defendant was indebted on an account stated or not.] The evidence is of an express contract, whereby the defendants admitted a debt. An account stated is conclusive of a debt until avoided; it is voidable; the plea, therefore, should have been in confession and avoidance.

Humfrey and J. Henderson, contrà, were stopped by the Court.

ALDERSON, B.-The rule must be absolute. It cannot be contended that from the mere statement of an account a debt arises. The averment of the declaration is, not merely that an account was stated, but that the defendants were indebted upon it. How can the defendants confess and avoid this allegation? They must confess the being indebted; then how could they avoid it? They were entitled, therefore, under the general issue, to shew that the account did not shew them to be indebted, because it was not correct.

Lord ABINGER, C. B., and ROLFE, B., concurred.

Rule absolute.

Exch. of Pleas, 1841.

BOSANQUET and Others v. CORSER.

April 23. ASSUMPSIT on a banker's cheque for £500, dated the

Assumpsit by

the holders against the drawer of a banker's

Plea,

cheque. Plea, that the defendant made the

draft for the ac

commodation of C., and that

there never was any considera

tion for it; and

further, that

there never was any consideration for the transfer of the same by C. to the plaintiffs, and that they

always held and

now hold the same without

value. Repli

cation, de inju

riâ. At the trial,
it appeared
that the plain-

tiffs were trus-
tees of the L.
and W. Bank,
and that they

31st of March, 1840, drawn on Messrs. Barnard, Dimsdale, & Co., and made payable to M. Chippenfield or bearer, and by the said M. Chippenfield indorsed to the plaintiffs.

Plea, that the defendant made the said draft for the accommodation of the said M. Chippenfield, and that there never was any value or consideration for the making of the same; and further, that there never was any consideration for the transfer or delivery of the same by Chippenfield to the plaintiffs; and that the plaintiffs always held and now hold the same without any value or consideration.

To this plea the plaintiff replied, de injuriâ.

At the trial before Gurney, B., at the Middlesex Sittings after Hilary Term, the following facts appeared in evidence:-The plaintiffs, who were trustees of the London and Westminster Bank, employed a person of the name of Charles Rees as their agent, to manage the Whitechapel branch of the bank. Chippenfield, in whose favour the cheque was drawn, had an account with the Whitechapel branch, which had been considerably overdrawn for some time. It was shewn to be the practice of gent to manage the London and Westminster Bank to send round a visiting inspector once a quarter to all their branch banks, to exain whose favour mine their agents' accounts and balance their books. order to prevent the Bank from ascertaining that Chippenfield was in their debt, Rees was in the habit of obtaining from the latter, before the quarter-day approached, cheques and bills drawn by himself or his friends, which he placed

employed one R. as their a

one branch of

the bill was

drawn, had an account with that branch,

which was con

siderably over

drawn. It was

In

the practice of the bank to send round an inspector to all their branch banks once every quarter to examine their agents' accounts; and in order to prevent its being discovered that C. was in debt to the bank, R. was in the habit of taking cheques from C. before the quarter-day approached, which he placed to his credit on the acount, but upon an express understanding that they were not to be presented, but returned to C. after the quarter-day was past. The cheque in question had been obtained from the defendant for this purpose by C., R. being aware of it, in consideration of a counter cheque from C. for the same amount :-Held, that neither of the averments in the plea was sustained on the evidence, and that the plaintiffs were entitled to recover.

1841.

BOSANQUET

v.

CORSER.

to the credit of his account; but upon the express under- Exch. of Pleas, standing between them, that the cheques, &c., were not to be presented for payment, nor the parties to be held liable on them, but were to be returned after the inspector had gone round. In pursuance of this arrangement, the cheque in question had been obtained from the defendant, with the knowledge of Rees, by Chippenfield. It did not however appear that the defendant knew anything of this arrangement; on the contrary, he was induced to give the cheque only on receiving from Chippenfield a counter cheque for the same amount, but on an understanding that neither was to be presented for payment. Suspicion having been created in the minds of the trustees of the Bank relative to the conduct of Rees, they sent suddenly to the Bank at Whitechapel, and took away his papers and desk, when they found two cheques drawn by the defendant, one of which was the subject of the present action. At the trial, the plaintiffs insisted that they had a right to recover on this cheque, on the ground that it had been transferred to their agent in payment of the balance of an overdrawn account, and consequently rendered them indorsees for a valuable consideration; and the learned Judge, being of this opinion, directed the jury accordingly, who returned a verdict for the plaintiffs for the amount of the cheque.

Erle now moved for a new trial, on the ground of misdirection. The plaintiffs stand in the situation of Rees, and must take the cheque as affected by his acts; and as it was delivered to Rees on the express understanding that it never should be presented, but should be returned to Chippenfield, the plaintiffs are estopped from insisting on payment of it by the defendant. [Gurney, B.-The cheque was made part of the account balanced in the books of the bank. It was not presented, it is true, but credit was given for it by the bankers.] In

1841.

BOSANQUET

v.

Corser.

Exch. of Pleas, Ferguson v. Carrington (a), where A. purchased goods on credit, fraudulently intending at the time not to pay for them, and B., the vendor, brought assumpsit for the goods sold before the credit had expired; it was held that the action was not maintainable, though the vendor might have treated the matter as a nullity, and have brought trover immediately to recover the value of the goods. So in Strutt v. Smith (b), where goods were sold upon the terms of a "bill at three months; 107. per cent. discount; cash in fourteen days;" it was held that the vendors could not sue in indebitatus assumpsit within fourteen days, even if the sale had been effected by fraud on the part of the vendee, so that trover might have been maintained. Those decisions proceeded on the ground that the transaction was treated as a matter of contract. So here, the delivery of this cheque was a matter of contract, an express agreement having been entered into that it was not to be presented, but returned. If no such agreement had existed, an implied contract to pay would have arisen; but here there is an express contract that the cheque shall not be presented, but returned. The plaintiffs' claim is through Rees, who entered into this contract, and they are affected by his acts.

ALDERSON, B.-It seems to me that no rule ought to be granted in this case. This is an action on a banker's cheque; and the question for us now, as raised by the pleadings, is, whether the defendant has established these two propositions: first, that as between him and Chippenfield, there was no consideration given in respect of the delivery of this cheque; and secondly, that as between Chippenfield and the present plaintiffs, no consideration passed for it. He is bound to make out those two propositions; and I think he has failed in both. With respect to the first, it appears that cheques were inter

(a) 9 B. & C. 59.

(b) 1 C., M., & R. 312.

1841.

BOSANQUET

บ.

CORSER.

changed between these parties; that the defendant gave a Exch. of Pleas, cheque for £500 to Chippenfield, and received from him another to the same amount, and of which, for all that appears to the contrary, he may still be the holder, as a security for the debt due to him by Chippenfield. His allegation, that there was no consideration for making the cheque, consequently fails. Then, as between Chippenfield and the plaintiffs, the real bargain and fraudulent contract appears to be this; that Chippenfield shall give Rees the cheque for £500, which is to pass into his account with the Bank, to whom Chippenfield owes a much larger sum; and then it is corruptly agreed between Chippenfield and Rees, that the cheque shall only be held for that purpose, and returned after inspection day is over; and the whole contract so made by Chippenfield is with the view of inducing the Bank to believe that he was not at the time in their debt. It is a corrupt agreement, that Rees shall take from Chippenfield a certain cheque, and set off against its amount a certain sum of money standing in his account to the credit of the Bank; but what is there to shew, that because Rees and Chippenfield thus make a separate contract between themselves, in addition to the one made by Rees on behalf of his principals, the plaintiffs, the money allowed to Chippenfield, in his account with the Bank, is not a consideration passing to Chippenfield? I think there was consideration passing between them, and consequently, in that part of his plea, the defendant also fails. This is not at all like the case of the plaintiffs themselves making the bargain, and being parties to the fraud; so far from that, the fraud is here intended to take effect against them.

GURNEY, B., and ROLFE, B., concurred.

Rule refused.

VOL. VIII.

L

M. W.