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misdirected. But the Court supported the ruling of the Lord Chief Justice. It will appear from decisions which will be subsequently referred to, that this case, and some other similar cases, are not now law. So far as the date is concerned, Down v. Halling is clearly opposed to Boehm v. Sterling ; and the negligence, if any, of the defendants, and which influenced the Court, was, according to the last mentioned decisions, insufficient to charge the defendants with the loss. We have referred to it at length, that it might not be supposed it was overlooked, and because it is still sometimes quoted as an authority.

The next case to which we shall refer is Rothschild v. Corney and others (9 Barnewall and Cresswell, 388). Where Lord Tenterden said-"It cannot be laid down as a matter of law, that a party taking a cheque after any fixed time from its date, does so at his peril; and, therefore, the mere fact of the defendants having taken the cheques six days after they bore date, from a person who had not given value for them, did not entitle the plaintiff to a verdict. It was, indeed a circumstance to be taken into consideration by the jury, in determining whether the defendants had taken the cheques under circumstances which ought to have excited the suspicions of prudent men. If the case were sent to a new trial, the same question must be presented to the jury; and, as we cannot say that their former verdict was wrong, I think that we ought not to disturb it."

And Mr. J. Littledale said—"It has been urged as matter of law, that a party taking a cheque overdue, has it with the same title, and no other, as the person from whom he receives it. But, although the rule of law certainly is so with respect to bills of exchange and promissory notes, I think it cannot be applied to cheques."

But the cases which are now considered to contain the modern law upon this subject, are the following: and although they happen to relate to bills of exchange and promissory notes, yet they are equally applicable to cheques, which, for this purpose, may be regarded as bills of exchange which are not due with this qualification, that they do not bear date an unreasonably long time before they are taken.

The first is that of Crook v. Jadis (5 Barnewall and Adolphus, 909; and 3 Neville and Manning, 257). This was an action brought by the plaintiff, as indorsee, against the defendant as drawer of a bill of exchange, dated the 23rd May, 1831, for £1,000, accepted by Lord Foley, and payable eleven months after date. At the trial, before Lord Denman, Chief Justice, at the Middlesex sittings, after Michaelmas term, 1834, the defence was that the bill, as between the drawer and acceptor, was a mere accommodation bill, and had been issued by the defendants to a bill-broker, to get discounted, and that the latter had, fraudulently and without any authority, sold it to one Howard, for whom the plaintiff discounted it. On the evi

dence it was contended that the plaintiff had not used due caution, and that he had taken the bill under circumstances which ought to have excited the suspicion of a prudent man; that the bill had not been fairly obtained, and therefore he was not entitled to recover. Lord Denman, Chief Justice, told the jury to find for the plaintiff if they thought he had not been guilty of gross negligence in taking the bill, under the circumstances given in evidence. A verdict having thereupon been found for the plaintiff, a motion was afterwards made for a new trial, when the following judgments were delivered:-Lord Denman, Chief Justice, said "I used the expression 'gross negligence' advisedly; because I thought nothing less ought to have prevented the plaintiff from recovering on the bill." Mr. J. Littledale said "There must be 'gross negligence,' at least, in a case like the present, to deprive a party of his right to recover on a bill of exchange." Mr. J. Taunton said-"I think the case was properly submitted to the jury. I cannot estimate the degree of care which a prudent man should take. The question, as put by the Lord Chief Justice, whether the plaintiff was guilty of‘gross negligence' was most definite and appropriate. Mr. J. Pattison said-"I never could understand what was meant by a party's taking a bill under circumstances which ought to have excited the suspicions of a prudent man.' The rule for a new trial was therefore refused.

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The point again rose in Backhouse v. Harrison (5 Barnewall and Adolphus, 1098; and 3 Neville and Manning, 188). This was an action by the plaintiff, an officer of the York City and County Banking Company, upon two bills of exchange for £26. 19s. 6d., and £20 indorsed to the company, against the defendant as an indorser. At the trial, before Mr. J. Alderson, at the Yorkshire Spring Assizes, 1833, it appeared, that about two o'clock p.m. on the 5th of September, 1832 (being the first day of Howden Fair), a man dressed like a sailor, accompanied by another person dressed in the same manner, came to the Company's office at Howden, and requested one Clough, their clerk, who managed their business there, to discount the bill for £26. 19s. 6d. The bill being much discolored, Clough asked how it came to be so. The man said it had fallen, with his pocket-book into the Knottingley and Goole Canal, and that he had been searching two days and two nights for it. This statement was corroborated by his companion. Clough then looked at the bill, and secing the names of J. and R. Harrison upon it, asked the man how he came by it. He said he had got it from those gentlemen in payment for a cargo of coals; that he had two vessels in which he traded between Hull and West Riding; and that he had come to Howden to purchase two horses to draw his vessels up and down the canal. Clough then agreed to discount the bill, and offered it to the man to indorse; but he said he could not write.

Upon which Clough wrote the name given to him by the man (William More), to which the latter affixed his mark. Clough stated in evidence, that it was not uncommon for persons unable to write to have such bills. Having received the money for this bill, the man produced the other bill, and said, "That if the money was not sufficient to pay for the horses, he would return, and get the other bill discounted." In an hour and a half he returned for that purpose, and Clough discounted the bill for £20. Clough asked the man if he was. known in the town. He said he did not know any one there. The jury returned, as their verdict upon questions specially submitted to them by the judge, "That the plaintiff took the bills bona fide, but under such circumstances that a reasonably cautious man would not have taken them. They also found that the defendant had not used due diligence in making the loss known."

On the case afterwards coming before the Court of Queen's Bench, the following judgments were delivered :-Denman, C.J.-" This case involves a mixed question of law and fact. The law upon the question is not very well settled; and I think the rule should be absolute, if not for entering a verdict for the plaintiff, at least for a new trial. I think, upon the whole, the plaintiff is bound to recover. To constitute a valid defence to the action, it was incumbent on the defendant to show that the agent of the banking company had been guilty at least of gross negligence. The finding

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