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of the jury does not go to anything like that extent, nor was there any evidence to warrant such a finding." Littledale, J., said "It was no defence to the action that the plaintiff took the bill under circumstances which ought to have excited the suspicion of a prudent man, and that it had not been fairly obtained. The defendant was bound to show that the plaintiff had been guilty of gross negligence. That was decided in Crook v. Jadis. The plaintiff is therefore entitled to recover." Taunton, J., said-" Crook v. Jadis shows that the plaintiff is entitled to recover, unless gross negligence has been made out. That was not found by the jury; and I think the negligence proved was not sufficient to warrant such a finding. The other point does not arise." Patteson, J., said "I am of opinion that the first fact found by the jury did not amount to a defence to the action. I have no hesitation in saying, that the rule first laid down in Gill v. Cubitt, and acted upon in these cases, that a party who takes a bill under circumstances which ought to have excited the suspicion of a prudent man cannot recover, has gone too far, and ought to be restricted. I can perfectly understand that a party who takes a bill fraudulently, or under such circumstances that he must know the person offering it to him has no right to it, will acquire no title; but I never could understand that a party who takes a bill bonâ fide, but under the circumstances mentioned in Gill v. Cubitt, does not

acquire a property in it. I think the fact found by the jury here, that the plaintiff took the bills bonâ fide, but under such circumstances that a reasonably cautious man would not have taken them, was no defence." A rule absolute for a new trial was granted.

These last-mentioned decisions were approved in Goodman v. Harvey (4 Adolphus and Ellis, 870; and 6 Neville and Manning, 372). Lord Denman there said "I believe we are all of opinion, that gross negligence only would not be a sufficient answer by the defendant, when the plaintiff has given consideration for the bill. Gross negligence may be evidence of mala fides, but it is not the same thing. We have shaken off the last remnant of the contrary doctrine." See also Raphael v. Bank of England (17 C. B. 161; 25 L. J. (C.P.) 33).

7. Lost cheque which cannot be produced.

The drawer of a cheque will not be liable unless indemnified on a cheque which has been lost, and cannot be produced by the last holder.

In the following case, on the 27th of February, 1809, the defendant purchased £70 Five per Cents., belonging to the plaintiff, for £69. 7s. 6d., and the same day gave her a cheque for that sum on his bankers, Messrs. Walpole & Co. She lost the cheque on her way home from the Stock Exchange. He was immediately apprised of the fact; and at various times down to the month of June following,

was requested to pay for the stock; but he always refused to do so unless he had an indemnity against his liability on the cheque. Messrs. Walpole & Co. became bankrupts in the month of May in the same year, without the cheque having ever been presented for payment. The defendant proved for the amount of the cheque under their commission, but had not received any dividend at the time the action was commenced.

Garrow, for the plaintiff, insisted that the cheque could not operate as payment of the stock, and that the defendant was still bound to pay the £69.7s, 6d., without receiving any indemnity. Long before the commencement of the action he had ceased to be liable on the cheque, according to the principle of Tindal v. Brown (1 Term Reports, 167). After the bankruptcy of Walpole & Co. a holder of the cheque could not have maintained an action upon it against the drawer; and even in a short time from the loss of the cheque, and whilst Walpole & Co. continued to pay, it must have come into the hands of any person under circumstances of such suspicion, that Brown could not have been sued upon it, if he had withdrawn the money from the bankers and paid it to the plaintiff. It will be seen from what has been previously stated, that some of these arguments are not maintainable.

Lord Ellenborough said "It is certainly possible that this cheque may have got into the hands of a person who might maintain an action upon it. The very day it was lost it might have been passed for


value to a bonâ fide holder, without notice. therefore think the defendant was entitled to an indemnity. He could not, without this, have safely withdrawn the money from Walpole & Co. before their bankruptcy. He then ceased to be liable upon the cheque, but the money was gone. Besides the bankruptcy of Walpole & Co. may not be sustainable, and the defendant is not to be exposed to the risk of the commission being superseded." The plaintiff was nonsuited. Bevan v. Hill (2

Campbell, 381).

But the drawer of a cheque may make a special agreement to pay a lost cheque, and will be bound by such agreement. This appears to be established by the following case, although the action there failed, because it had been brought in a wrong form. Assumpsit for money paid, and on account stated. Plea-Non assumpsit. At the trial before Lord Abinger, C.B., at the London sittings after Michaelmas Term, 1837, the following facts appeared in evidence. The plaintiffs were bankers in the city of London; the defendant was an attorney. Henry Tribe, the brother of the defendant, was the secretary of the Killewerris Mining Company, whose account was kept with the plaintiffs. On the 21st November, 1835, the defendant drew his cheque on the Bank of England for £100, payable to Henry Tribe, who afterwards paid it on his own account into the banking-house of the plaintiffs, to the credit of the Killewerris Mining Company. The cheque was lost by the plaintiff's servants, and was never

afterwards found. Upon the discovery of the loss the following correspondence took place between the plaintiffs and the defendants:

"To Edward Tribe, Esq., 86, Great Russell Street.

"SIR,-On or about the 23rd or 24th November last we received, on account of the Killewerris Mining Company, a draft drawn by you on the Bank of England for £100, in favour of Mr. Henry Tribe, dated on one of the above-mentioned days, which draft was lost or accidentally destroyed by us; and notwithstanding we have endeavoured to find it by a diligent search, we have not succeeded. We therefore request the favour of your giving a fresh draft in lieu of it for the same sum; and hereby indemnify you from all loss which you may sustain by so doing, and beg to thank you for the trouble you have already taken in requesting the Bank of England to stop the missing draft, in case it has been presented.

"We are, Sir,

"Your most obedient Servants,


“To Sir J. Lubbock & Co.

"March 25th, 1836.

"GENTLEMEN,-Yours of the 24th instant brings under my notice what had escaped my attention. I am leaving home to-day for a short time, and send my book to the bank to be made up. On my

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