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the plaintiffs are entitled to recover." The jury returned a verdict for the plaintiffs.
This is a much stronger case against the validity of transactions connected with cheques drawn without effects, than the previous case of The Earl of Bristol v. Wilsmore, because here the drawer of the cheque had a small balance at the bankers when the cheque was drawn, whereas there the drawer's account had been closed for months. The fraud was therefore much less apparent, and yet the decision established that payment by such a cheque gave no title to the goods purchased.
In another case it appeared that the plaintiffs were brokers of the City of London, and in November, 1823, were employed by Tenbruggenhate & Co., London merchants, to purchase for them a large quantity of cotton. The plaintiffs, accordingly, on the 13th of that month, applied to Ryder, a merchant in the cotton trade, and agreed for the purchase of 110 bales of Surat cotton. The contract was regularly entered in their books thus:
"London, 13th November, 1823. "Bought by order and for account of Messrs. Tenbruggenhate and Payne, of Mr. A. Ryder, T. S., 1822, One hundred and ten bales Surat cotton, three piles, P. Swallow, at 6d. per pound. Prompt one month brokerage, 1 per cent.
“KILBY AND CARROL."
And the sale, mutatis mutandis, and brokerage
charged both parties. The plaintiffs were known by Ryder to be brokers; but the names of Tenbruggenhate & Co. were not disclosed at the time of the purchase. The custom of the trade is not to deliver the cotton until paid for, and the plaintiffs had been in the habit of dealing with Ryder, without disclosing the names of their principals. Bought and sold notes, signed Kilby and Carrol, were delivered to Ryder, and to Tenbruggenhate & Co., respectively, charging brokerage to both, but not naming any principals to either, the words "by order and on account of T. & Co. and R.," respectively, being omitted; in other respects, the notes were copies of the entries in the books. On the 28th of November, Tenbruggenhate applied to the plaintiffs for the cottons, who paid Ryder for the amount, and received the East India Company's warrants for the cottons, which were then in the company's warehouses. The plaintiffs on the next day, being Saturday, delivered the warrants to Tenbruggenhate & Co., and received their cheque for £1,027. 19s. 3d., the amount with the charges. At the same time they delivered a bill of parcels, as follows:
"London, 13th November, 1823. "Messrs. Tenbruggenhate and Payne.
"Bought of Kilby & Carroll, One hundred and ten bales of Surat cotton, 3d., per Swallow, lots, marks, &c., and charged brokerage £5. 3s. 8d."
The names of Ryder and Tenbruggenhate & Co. were not communicated to each other as connected with the transaction. Tenbruggenhate took the warrants to the defendant, and deposited them as a security to cover his acceptances for two bills of £500 each, given to Tenbruggenhate & Co. In fact, Tenbruggenhate's only object in the whole transaction was to raise money and abscond; and on the evening of the 29th of November, being Saturday, he left this country for Paris, carrying with him the proceeds of large quantities of goods obtained from other persons, and for which payment had been made on that day, in cheques on Tenbruggenhate & Co.'s bankers. These cheques, and amongst them that given to the plaintiffs, were dishonoured. Payne, who drew the cheques, was altogether unconcerned in the frauds of his partner, and had been persuaded by him that there was money in their banker's hands to the amount of £5,000. Tenbruggenhate & Co. were declared bankrupts, and the solicitor to the commission pursued Tenbruggenhate to Paris, and recovered from him, with other property, the defendant's acceptances. These were afterwards given up to the defendant by the assignees, of whom the plaintiff Kilby was one. The defendant had sold the cottons before any demand was made by the plaintiffs, to secure himself from another advance, made to Tenbruggen hate before the deposit of the warrants. The action was resisted on the grounds that the plaintiffs had no property in
the cottons, they having bought and sold as brokers; and it was contended that the sale to Tenbruggenhate & Co., if valid, vested the property in the assignees; and if it was invalid through fraud, the property remained in Ryder.
Abbott, C.J., in summing up to the jury, said—“I am of opinion that upon this evidence the plaintiffs must be considered to have dealt with both parties as principals, however improper it may have been in them as sworn brokers. think they are buyers of Ryder and sellers to Tenbruggenhate & Co. on their own account; and the only question I think fit to leave to you is, whether or not Tenbruggenhate obtained the warrants from the plaintiffs with a pre-conceived design to raise money upon them, and then abscond without ever paying the plaintiffs. If you are of that opinion, your verdict must be for the plaintiffs. In that case the partnership ought not to prevent the plaintiffs from recovering; for although the partner was himself deceived, and had no participation in the fraud, still no property could be vested in the partnership by such a transaction. If you think that Tenbruggenhate conceived the design of defrauding the plaintiffs, after he had obtained possession of the warrants, then your verdict must be for the defendant."
The jury returned a verdict for the plaintiff; and although an application was made for a new trial, yet it was refused: Kilby v. Wilson (Ryan and Moody, 178).
ON CRIMINAL FRAUDS BY MEANS OF CHEQUES. DRAWN ON BANKERS WITH WHOM THE
DRAWER KEEPS NO ACCOUNT.
We have seen the civil consequences which result from frauds by means of fictitious cheques. If false representations be made of the genuineness of the cheque, or false statements regarding the keeping an account with the banker, either of these may be sufficient to constitute a criminal offence.
In Rex v. Jackson, at Gloucester spring assizes, 1813 (3 Campbell, 370), on an indictment on Stat. 30 Geo. 2, c. 24, where it appeared that the prisoner had obtained property by giving a draft on his banker, and pretending he had cash there to pay it,
Bayley, J. (before whom the prisoner was tried), said "That this point had been recently. before the judges, and that they were all of opinion that it is an indictable offence fraudu