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return I shall have the pleasure of handing you a fresh draft, on the terms contained in your letter. "I am, Gentlemen,
On the 20th July, the plaintiffs wrote to the defendant, stating that they had been called upon by the Killewerris Company to place to their account the sum of £100, due to them in respect of the cheque. The correspondence between the plaintiffs and the defendant continued down to the 17th May, 1837, and on the 25th this action was brought. During the whole of the correspondence, and after the commencement of the action, the defendant promised to pay, but requested indulgence. The particulars of the plaintiffs' demand, dated 8th June, 1837, were to the following effect, "The plaintiffs in this case delivered to you the receipt for the £100 paid on your behalf to the Killewerris Consolidated Mining Company on the 21st November, 1835, and from this date the Company debited the plaintiffs with the amount of this sum, and treated it as paid to them. The plaintiffs delayed to make the entry in their own books, and kept the sum in suspense until the 21st April, 1837, when the credit was finally written into the Company's credit, into their own books." The plaintiffs then stated the reason of their so doing. The jury found for the plaintiffs, damages £100. A rule having been obtained, calling on
the plaintiffs to show cause why this verdict should not be set aside, and a nonsuit entered,
Maule showed cause.- "This is a case in which the jury were justified in finding that the money had been paid to the use of the defendant, for it is a payment according to the express direction of the defendant, and discharges a debt for which he was liable."
Platt, contrà. "The defendant gave the plaintiffs no authority, either express or implied, to pay this money. Nor does it appear that any money everpassed from the plaintiffs to the Company. The settlement of accounts between the parties may have been effected by the Company being allowed to overdraw their account to the extent of £100. In that case no action could be maintained on the count for money paid; nor can the plaintiffs succeed upon the account stated, for no debt is due from the defendant to them."
Alderson, B.-"Does the letter of the defendant amount to anything but a promise to perform an agreement? There is no acknowledgment of any antecedent debt. The plaintiffs are indebted to the Company for the money received from Henry Tribe, and the defendant promises that if they will pay that debt he will repay them. This case falls within the principle of Spencer v. Parry (3 Adolphus and Ellis, 331, 1 Harrison and Wollaston, 179,4 Neville and Manning, 770); and Hansard v. Robinson (7 Barnewall and Cresswell, 90).".
Parke, B.-"This action is not maintainable,
either on the count for money paid, or on the account stated. The money in question was not paid by the plaintiffs to exonerate the defendant from his liability, for as soon as the cheque was paid into their hands, they became answerable to the Company for the amount. The correspondence, indeed, shows an agreement, and on that agreement an action might be maintained. Still, there is no payment of money to the use of the defendant; the money is paid to the bankers on account of the Company. This case falls within the principle of Spencer v. Parry. Nor can any action be maintained on the account stated, as that account has reference to money actually due and owing. The plaintiffs must bring their action for the breach of the special agreement."
Bolland, B.-" No debt was due from the defendant to the plaintiffs for which the former was liable in an action for money paid. With regard to the account stated, the rule of law is clear, that that which is relied upon as proving an account stated, must furnish evidence of a subsisting debt." Alderson, B., concurred
Rule absolute. Lubbock v. Tribe (1 Horn and Hurlstone, 160). The 9 & 10 Wm. 3, c. 17, s. 3, respecting the giving another bill of exchange in the place of one lost, does not seem to apply to a cheque, the statute referring only to an inland bill, above the value of £5, payable at a certain time after date, expressed to be for value received and lost within the time limited for payment.
Now by 17 & 18 Vict., c. 125, s. 87, it is provided
in case of any action founded upon a bill of exchange or other negotiable instrument, it shall be lawful for the court or a judge to order that the loss of such instrument shall not be set up, provided an indemnity is given to the satisfaction of the court, or judge, or a master, against the claims of any other person upon such negotiable instru
8. Cheque which has been destroyed.
If the cheque can be proved to have been destroyed, the holder may recover from the drawer the amount of it, upon proving the destruction, and also the contents. The distinction between a lost cheque and a cheque which has been destroyed, so far as relates to the right to recover, is that the one may get into his hands of a bona fide holder, but the other cannot. In Pierson v. Hutchinson (2 Campbell, 211), Lord Ellenborough said"If the bill were proved to be destroyed, I should feel no difficulty in receiving evidence of its contents, and directing the jury to find for the plaintiff." See also Wain v. Bailey (2 Perry and Davison, 507); and Blackie v. Pidding (6 C. B. 196). A Court of equity will not entertain a suit to recover the amount of a destroyed instrument, the remedy being at law: Wright v. Maidstone (24 L. J. (Ch.) 623.) A cheque upon the Accountant General was alleged to have been accidentally des
troyed. The Court, though not satisfied with the evidence of its destruction, directed the issue of a new cheque, on the ground that the other cheque being more than a year old would not be paid if presented Taylor v. Scrivens (1 Beav. 571).
9. Drawer fraudulently inducing banker to honour cheque.
Prisoner having overdrawn his bankers, and wishing to induce them to answer other cheques drawn by him, placed in their hands a bill drawn by himself on J. G., which he assured them was a good one, and on the faith of which they paid several cheques of his, in the hands of other persons. The prisoner was convicted, on the ground that the bill was altogether a false pretence. On case reserved, however, the judges held the conviction wrong, as the prisoner could not be said to have received any specific sum on the bill; all that he obtained was credit in account; the money having been received by other persons: Rex v. Wavell (1 Ryan and Moody, 224). A drawer of a cheque who tampered with his own signature, and tried to represent it as a forgery, and thereby defraud his bankers, was held to be guilty of a fraud, but not of a forgery: Brittain v. Bank of London (3 F. & F., 465).