C. P.] BRANSBY V. THE EAST LONDON BANK. the cheque was presented was not proved, one of the plts. came to the bank and called for the pass-book of the firm, and saw an entry crediting them with 150l. (cash): Held, in an action against the bank for not cashing a cheque of the plts., that these facts showed some evidence to go to the jury that the bank were in possession of funds, and therefore that the nonsuit ought to be set aside and the case sent back for trial. The declaration stated: That the plts. were and still are merchants and upholsterers, and carried on and still carry on the trade or business of merchants; and the defts. were and still are bankers, and carried on and still carry on the business of bankers at a certain banking-house in the city of London; and the plts. were customers of and employed the defts. in the way of their said business of banking upon the terms that the defts. would from time to time, out of any moneys of the plts. in the hands of the defts, as such the plts.' bankers applicable to the purpose, pay for the plts. on presentment at the banking-house any cheques which might be drawn by the plts. upon the defts. as such bankers at the said banking-house, and which should be duly presented at the said banking-house of the defts. for payment by any person lawfully entitled to receive the amount of such cheque not exceeding the amount of the balance of moneys of the plts. in the hands of the defts. as such the pits. said bankers applicable to the payment of such cheques at the the time of the presentment thereof; and such balance of the moneys of the plts. having been in the hands of the defts. as such bankers a sufficient and reasonable time to enable the defts, and their clerks and servants to know that such balance of moneys of the plts. in the hands of the defts. as such the plts.' said bankers applicable to the payment of such cheques was so in the hands of the defts, as such the plts.' said bankers and sufficient for the payment of such cheques. And the plts. say that while they were such customers of and employed the defts. as such bankers on the terms aforesaid, they, the said plts., drew a certain cheque upon and directed to the defts. as such the plts.' said bankers, and thereby required the defts. as such bankers to pay to one Lake, or bearer, 177. 10s. in payment of a debt then due to the said Lake from the plts., which said cheque the plts. then delivered to the said Lake, and the said Lake, then being the lawful holder of the said cheque, and entitled to receive the amount thereof, duly presented the said cheque at the said banking-house of the defts. for payment thereof, and the plts. say that all conditions were performed, and fulfilled, and all events happened and occurred, and all times elapsed, and all things exist, to entitle the plts. to have the said cheque paid by the defts., as such the said plts.' said bankers when so presented as aforesaid. Yet the plts. say that the defts., as such the plts.' said bankers as aforesaid, did not, nor would, pay the said cheque when so presented as aforesaid, but neglected and refused so to do, although the defts., as such the plts.' said bankers, then had in their hands a balance of money of the plts., applicable to the payment of the said cheque, more than sufficient in amount for the payment of the said cheque, and although the said balance then had been in the hands of the defts., as such the plts.' said bankers, a sufficient and reasonable time to enable the defts. and their clerks and servants to know that such balance of moneys applicable to the payment of the said cheque was in the hands of the defts., as such the plts.' said bankers, and was more than sufficient for the payment of the said cheque. By means of which said several premises the plts. have been and are greatly injured in their credit and reputation in the way of their said business of merchants and upholsterers, and were and are otherwise greatly injured and aggrieved, and the plts. claim 2007. Pleas: 1. That at the time of the presentment of the cheque in the declaration mentioned, they, defts., had not in their hands a balance of money of the plts. applicable to the payment of the said cheque and sufficient in amount for the payment of the said cheque as alleged. 2. That the said balance had not at the time of the presentment of the said cheque been in the hands of the defts. a sufficient or reasonable time to enable the defts, and their clerks and servants to know that a balance of moneys applic able to the payment of the said cheque and sufficient for the payment of the said cheque was in the hands of the defts, as alleged. Issues thereon. This was an action tried before Erle, C. J., at Guildhall, the following being the material facts in the case: [C. P. purport of which was, that the bank would not grant accommodation to customers whose balance was below 100%. To this the plts. sent the following reply: In consideration of your discounting for us from time to time approved bills of exchange, or making us any advance thereon by way of loan, we hereby agree to leave in your hands a minimum balance of 100% as a collateral and continuing security against the said bills, and we authorise you to retain this amount on our account for this purpose. Matters then went on in accordance with this arrangement until the 13th May of the same year, on which day (a Saturday) the plts. had a balance of 991. 10s. 7d. at the bank. On the morning of the same day one of the plts. took to the bank an open cheque for 1501. drawn on Sir Claude Scott's bank, and paid the same into the credit of the account of his firm. This cheque, however, appears to have been paid in after the clerk had left for the clearing-house. Later in the day and after business hours the plts. drew a cheque on the defts.' bank for 177. 10s. in favour of a Mr. Lake, which was delivered to him on the same evening, and which he presented at the bank on the following Monday morning, when it was returned with the indorsement "effects not cleared." On the same morning one of the plts. went to the bank (but whether before or after Mr. Lake was not clearly made out) and obtained the pass-book of the firm, in which was shown a balance of 235l. 18s. 7d., which sum included the cheque for 150l., which was entered in the book to the credit of the plts.' firm. The plt. having heard of the cheque being dishonoured, one of them returned to the bank, when he was told that as the walking clerk had left on the Saturday before the cheque for 150%. was paid in, and had not returned from the clearinghouse when Mr. Lake presented the cheque, the entry in the pass-book to the defts.' credit was nothing more than an acknowledgment that the 150l. cheque had been received by them for clearance. Mr. Lake, on the cheque being returned to him, immediately issued writs against the plts., and it was for damage caused to their firm thereby that the present action was brought. The plts. having been nonsuited, a rule was nonsuit should not be set aside and a new trial had obtained calling on the defts. to show cause why the on the grounds, First, that the evidence entitled the plts. to a verdict. Secondly, that the defts. having treated the cheque for 150l. as cash, the plts. had a balance available for cashing the cheque for 177. 10s. Thirdly, that there was evidence for the jury that the plts. had such a balance. whether, under the terms of the agreement of the Fourthly, that it was a question for the jury 25th March, they had such a right, or whether the terms had been waived. Fifthly, that the defts. had no right to treat the 150%. cheque otherwise than as cash, without positive evidence that they had not received the cash for it. Sixthly, that they had no such right without evidence either that there were special terms agreed upon between plts. and defts. as to the time which was so to elapse before the plts. were to be entitled to draw against cheques paid in to their account, or else that a reasonable time had not elapsed, and for the jury. that the question of reasonable time was a question Karslake, Q. C. (Honyman with him) now showed In Sept. 1864 the plts. opened an account with cause. This rule ought to be discharged. Accordthe defts., and since that time up to the 24th Marching to the terms of the agreement, the bank had a 1865 the plts. had drawn cheques in the ordinary way upon the defts., who have also discounted bills for them. On that day, however, the plts. received a letter from the general manager of the bank, the right to keep a balance of 100%. in hand, and as the cheque for the 1507, had not been cleared when Mr. Lake presented his cheque, they had not that sum in hand. The plts. had dealt with the bank some C. P.]. ENGLAND V. MARSDEN. [C. P. time, and they were obliged to admit that their | This was the reason given at the trial, and I cheques had been dishonoured before, and therefore, believe it to be the true one, and I think, thereif the fact of their cheques being dishonoured fore, the learned judge was right in saying that damaged their character, it had been damaged there was no evidence that the bank had a balance before that transaction. Then it is said that, when in hand available for paying the cheque, and if that a banker enters a cheque in the pass-book as cash. really were so we should have no difficulty in dishe is to be considered as giving credit to his cus-charging the rule. There, however, appears to be tomer. I say it is not so; it is only an acknow- some doubt as to whether there was, or was not, ledgment that he has received the cheque, and until evidence to go to the jury that the cheque for the that cheque has been cleared, he cannot be consi- 1507. had been actually cashed when the cheque dered as having received the cash. I contend, there- was presented by Mr. Lake, and the walking clerk fore, that the plts. have totally failed to show was not called to show at what time that cheque that there were available assets in the bank at the really was cashed. Under these circumstances I time the cheque was presented by Mr. Lake, and am of opinion that the case should again be intherefore that this rule should be discharged. quired into, in order to call evidence to show when the cheque was cashed. Montague Chambers, Q. C. (Campbell Foster and Channell with him) in support of the rule.--I contend that we are entitled to our rule. The pass-book shows that they had all they wanted in their hands, and that the 997. could be appropriated for cashing Mr. Lake's cheque. The defts. had frequently cashed cheques when they had not 1007. in hand. The plts. therefore had every reason to believe that the agreement had been waived. If plts. had not believed either that it had been waived, or that the bank intended to give them credit for the 150% cheque, they could have gone to Mr. Lake and requested him to delay presenting the cheque for an hour or so, when the money would certainly have been paid in. In Byles on Bills, 7 edit. p. 16, it is said: "A banker having in his hands effects of his customer, is bound within a reasonable time after he has received the money to pay his customer's cheques, and is liable to an action at the suit of the customer if he do not, for there is an implied contract between banker and customer that the banker shall pay the customer's cheque, and the customer's credit may be seriously injured by a refusal." Then the banker having once paid cheques when according to his contention there was not a balance, ought not to discontinue doing so without giving the plts. notice. Cumming v. Shand, 29 L. J. 129, Ex.; 1 L. T. Rep. N. S. 300. They also cited Skyring v. Greenwood, 4 B. & C. 280. M. SMITH, J.-I agree that there is some evidence that the bank had funds. The cheque was paid in on Saturday, and it was undoubtedly entered as cash in the pass-book to the credit of the plts. Prima facie the bank had received the money, and if the plts. have acted on the entry in the passbook, I think the defts, are estopped from denying that they had funds. I think, however, that the defts. ought to have shown when the cheque was cashed, and that the case ought to go back again for trial, in order that evidence may be given on that point. Attorney for plts., Bristow, Friday, April 23. ENGLAND V. MARSDEN. Rule absolute. Money paid to deft.'s use- -Implied authority. The plt. held a bill of sale of deft.'s goods as security for KEATING, J.-This was an action against the The action was tried at Westminster at the sittings after Hilary Term, before M. Smith, J. when a verdict was found for the plt. for 8/ 4s. 6d. ; the jury found also that the plt. paid certain sums of 5. 5s., and 11. 4s., and 36/. interest and expenses to protect his interest under the bill of sale, and not at deft.'s request. Leave was reserved to the plt. to increase the verdict by that amount. after banking hours, and which cheque is the subject of the present action. Mr. Lake presented this cheque on the Monday morning between ten and eleven, but the bank refused to cash it; somewhere about the same time, but whether before or after Mr. Lake called has not been clearly made out, one of the plts. called, and having looked at their pass-book saw that the 1507. had been entered to their credit as cash. After he left the bank he heard that the cheque presented by Mr. Lake had been dishonoured, and upon his returning to the bank and asking for an explanation he was told that the walking clerk had left the bank for the clearing house before the 150%. cheque had been paid in, and had not returned on the Monday morning when the cheque was presented by Mr. Lake, consequently it was not known whether Sir Claude Scott's bank had cashed the large cheque. Vol XIV., N.S., No. 341. Declaration : For money lent and advanced by the plt. to the deft. at his for the forbearance at interest of moneys owing from the deft. to the plt. on accounts stated. Pless, dated Nov. 20, 1865: 1. Never indebted. deft. at various periods. The plt. discounted the deft.'s bill for 50%, and previously gave a bill of sale for 50l. to a Mr. Low, a creditor, and in June 1860, at the deft.'s request, the plt. agreed to pay off Low and make a further advance. On the 2nd June 1860 the deft. executed a bill of sale of his stock-in-trade, &c. at Gospel Oak Tavern in favour of the plt., to secure the payment by weekly instalments of 1801., being 50l. for deft.'s overdue bill held by plt., 50l. which plt. had paid to Low, and 801. to be advanced less the agreed interest of 201. per cent. on the whole amount, not 20 per cent. per annum, but 367. for 1807., so that the plt. had to pay to deft. 447., being the difference between the agreed interest and the 807. advance. The bill of sale was by way of mortgage, and contained full powers of sale in case of default in payment. It also provided for payment by the deft. of all the costs, charges, and expenses which plt. might be put to in obtaining, or endeavouring to obtain, payment or otherwise in relation to the said bill of sale. The plt. said that he paid to the deft., at the time or very shortly after the date and execution of the bill of sale, the whole amount due, that is, 447. By the receipt at the foot of the bill of sale it would seem that the deft. received the whole 1807. at or before the date of the bill of sale. Some time after these transactions the plt. discovered that the deft. was indebted to his brewers (Meux and Co.) in a large sum of money as a security for 4007. of which they held the lease or the agreement for a lease of the Gospel Oak Tavern. On the 9th July 1860 the deft. was arrested and committed to the debtors' prison for London and Middlesex, Whitecross-street; and on the 11th of that month he filed his petition to the court for the relief of insolvent debtors, and the usual vesting order was made on the last-mentioned day. The plt. introduced deft. to an attorney, Mr. Begbie, who presented his petition to the court and prepared and filed his schedule; and the plt. became answerable for the costs and afterwards paid Mr. Begbie his bill, amounting to about 147. In his schedule the deft. inserted the name of plt. as a creditor as follows: 52. Philip Newbury England, 30, Polygon, Somers-town, Accountant 1860 admitted For money lent to me and paid on my account by the creditor he holds a bill of sale, dated 2nd June 1860, as a security for the amount, upon the stock in trade and household furniture, goods, chattels, and effects at the Gospel Oak Tavern, Circus road, Kentish - town, and upon which he has taken the property, and is now in possession under the bill of sale. The date of the bill of sale was the 2nd June 1860, and rent became due on the 29th Sept. Possession was taken by the plt. on the 10th June, when no rent was due, and he remained in possession to the 23rd Oct. following, when the landlord distrained for rent; the plt. paid the rent and released the goods; the deft. had in the interim given up his lease to his assignees. H. T. Cole showed cause against the rule in this case to increase the verdict by 421. 9s. as money paid for the use of the deft. on the ground of implied authority. M. Chambers (C. P. Butt with him), in support of the rule, cited Rogers v. Moore, 15 M. & W. 444-8; [C. P. ERLE, C. J.-I am of opinion that this rule ought to be discharged. The facts appear to be as follows: that the plt. took possession of the deft.'s goods under a bill of sale of the 10th July, left them there till the 29th Sept. when rent accrued due, and after rent had accrued due the landlord distrained, and afterwards the goods were relieved from the distress by the plt. paying the money. It has been said that the money was money paid under compulsion of law, and the case of Exall v. Partridge has been cited as an analogous case. But the case is distinguishable from that case. Here these goods are on the premises of the deft. for the benefit of the plt. the owner of them, and without any request on the part of the deft. the goods under the bill of sale had become the absolute property of the plt., and he had a right to take them away, and he seems to have left them for some reason, perhaps that he might sell them better. It seems as if, having goods and no place to warehouse them, he had put them on deft.'s premises without permission. BYLES, J.-I am of the same opinion, and think this case is clearly distinguishable from Exall v. Partridge. There there was a bailment exercised for the advantage of the plt.; in this case there is no evidence of the deft.'s request. It was the plt.'s own act to put the goods there, and the plt. put them there for his own purpose. KEATING and M. SMITH, JJ. concurred. Rule discharged. Attorney for deft., Langley and Gibbon. Attorney for the plt., Walker and Twyford. Tuesday, May 1. PHILLIPS v. IM THURM. Bill of exchange-Forgery-Action by indorsee for valuable consideration against acceptor for honour— Estoppel. A bill of exchange purporting to be drawn by C. and Co. (a real firm) payable to order of C. R., and indorsed by him, was presented for payment to S., the corTESpondent of the plt. S. having stopped payment declined to accept it, but sent it to the pits., with a letter saying that the deft. would accept it for the honour of the drawers, and on the faith of that representation they discounted it. The drawer's name and the indorsement turned out to be forgeries, but this was unknown to the deft.: Held, in an action against the deft. for the amount of the bill, that he was estopped from denying the genuineness of the names on the bill, and that the plts. were entitled to recover. Special case stated by consent. Action by indorsees against the acceptor for honour of a bill of exchange. The plts. are discount brokers in London. The deft. is a merchant in London, and is the correspondent and agent there of a firm carry ing on busi ness at Lima under the name of "Canevaro and Co." In June 1864 a person calling himself "Enrique" or Henry Plana presented to one Henry H. Sultzberger at Liverpool for acceptance a bill of exchange in the Spanish language, of which the following is a translation: Pay to the order of Mr. Enrique Plana. Lima, 12th May 1864. CARLOS RAFFO, HENRY PLANA. Photographic copies of the said bill and indorsements are annexed to and are to be taken as part of this case. [C. P. The plts. afterwards informed Mr. H. H. Sultzberger, and the person calling himself Plana, that they would discount the said bills upon their being accepted by the deft. accepted the same in the following terms: Accepted for honour and account of Messrs. Canevaro and Co., with charges 48. London, 24th June.-J. C. Im Thurn and Co. The bills were thereupon duly protested for nonacceptance, and were then presented to the deft., and were left in his office for acceptance for twenty-four The said bill of exchange was a forgery on Cane-hours in the ordinary course of business, and he varo and Co., and it may be taken that no person named Carlos Raffo, or Enrique or Henry Plana were known at Lima, or to Messrs. Canevaro and Co. A clerk of Canevaro and Co., named Arnaboldi, absconded from Lima by the mail packet, which left for England on the night of the 13th May 1864. A person named Jose Maretti, who was not in the employment of Canevaro and Co., left Lima with Arnaboldi. It may be taken for the purposes of this case that Arnaboldi assumed the name of Plana, and that he was the person mentioned above in paragraph 2 of this case. The written parts of the bill are undoubtedly in the handwriting of Arnaboldi; and it may be taken that the indorsement Henry Plana was written by him. It does not appear by whom the other indorsement mentioned in paragraph 3 was made, but it may be taken for the purposes of this case to have been made by Arnaboldi or Jose Ma retti. These facts were not known to the said H. H. Sultzberger, at the time the said bill was presented to him for acceptance, nor were they known to the deft. at the time when he accepted the said bill as hereinafter mentioned, or to the plts. Mr. H. H. Sultzberger having stopped payment, declined to accept the said bill, but wrote to the plts. with whom he was in the habit of dealing the following letter: Liverpool, 21st June, 1864. Messrs. B. S. and J. Phillips and Co., 19, Birchin-lane, London. Dear Sirs,-I have this day given your address to Mr. Henry Plana, the holder of two drafts on myself for 4001. and 800L, which I was prevented from accepting, in consequence of having lately been under the painful necessity to suspend my payments. Messrs. J. C. Im Thurm and Co. will intervene and accept on behalf of the drawers, Messrs. Canevaro and Co., Lima (who themselves are safe for any amount), and as Mr. Plana is quite a stranger here and might have some difficulty to get the bills discounted, I wished to render him some service, and therefore gave him your address, thinking that with Messrs. Im Thurm's signature you will not object to discount the bills for him.-I am, dear Sirs, yours truly, Per M. HENRY SULTZBERGER. Mr. Plana tells me he intends making some purchases, and would be glad to get the notes if possible by return of mail. HENRY SCHLATTER. The bill for 4007. mentioned in this letter is the bill set out above. This letter was accompanied by the following letter from the person calling himself Plana to the plts., inclosing the bills referred to: Liverpool, 21st June 1864. Messrs. B. S and J. Phillips and Co, 19, Birchin-lane, London. Gentlemen,-I am indebted for your address to Mr. Henry Sultzberger, of this town, in consequence of which I take the liberty of inclosing you two drafts of Messrs. Canevaro and Co., at Lima, for 4001 60 days sight. 90 8001. on the said Mr Sultzberger, who tells me that certain reasons prevent him from accepting them, but that Messrs. J. C. Im Thurm and Co., London, will accept on behalf of the drawers. I now request you to get these two drafts presented for that purpose to Messrs J. C. Im Thurm and Co., and afterwards to get them discounted for my account as favourably as possible, and remit me the balance in notes, per registered letter, to the address at foot. In the event of your not feeling disposed to discount the bills, I request you to return them to me provided with the needful, excusing the trouble. I am, Gentlemen, yours respectfully, HENRY PLANA. Care of Mr. H. Henry Sultzberger. The plts. showed the bills and the indorsements on them to the deft., and inquired whether the deft. would accept them for honour of Messrs. Canevaro and Co., and the deft. stated that he would. The plts. thereupon discounted the said bills upon the faith of the acceptance of the deft., and remitted the proceeds as directed in the letters set out above. Shortly after the plts. had discounted the said bills, the deft. received information of the real facts of the case, and informed the plts. thereof, and upon the bills being presented to the deft. at maturity, he refused to pay the same. The court is to be at liberty to draw any inferences from the above facts which a jury might draw. The question for the opinion of the court is, whether on the above-stated circumstances the plts. are entitled to recover the amount of the bill from the deft. If the court should be of opinion in the affirmative, then judgment to be entered for the plts. for 4004. and interest with costs. If in the negative, judgment to be entered for the deft. with costs. Hannen for the plts.-The deft. is not at liberty to deny the right of the plts. to recover, for that which the drawer would be excepted from doing, the acceptor for honour should be excepted from doing. It is as if the deft. had said, "You may rely on that being the handwriting of my correspondent." The man who draws a bill payable to a fictitious payee cannot deny that man's capacity to indorse to whose order the bill is payable. Cooper v. Meyer, 10 B. & C. 469, states the case clearly, viz., that the acceptor undertakes to pay the person who signed as drawer, and the case is the same as if he had called himself by the name of the drawer. You, by signing a name of a fictitious person, have vouched to the existence of a person who does not exist, and you are estopped from denying that such a person exists, and from this state of things it follows that such a person can transfer his rights: Gibson v. Minet, 1 H. Bl. 569; and as to the point of estoppel, Ashpitel v. Bryan, 3 B. & S. 474; 7 L. T. Rep. N. S. 706, per Wightman, J. The deft. has warranted this to be a genuine bill of Canevaro, and therefore Canevaro is liable in the same way as if he had set the bill afloat; and it becomes a bill payable to bearer, and has all the same rights as if Raffo had been a real person. Gibson v. J. A. Russell for the deft.-There is nothing to show that the acceptor for honour cannot deny the signature of the drawer. In an action against the drawer he could deny the drawing, and that would have been a good defence; he can deny the signature of the drawer, and therefore, as he is not estopped, the plt. has no title as against him. Minet is no authority for the plt., because there was a liability there, and therefore they must have had some intention to make the bill payable to bearer, as the parties knew it was a fictitious name, and the facts here are wholly different to those in Ashpitel v. Bryan. Beem in v. Duck is in point. Hannen in reply. It is not a case of mutual mistake, but is a case where one party made the other take a step prejudicial to himself, having the means of knowledge which the other has not. Thurm is in a position as if this had been a genuine drawing by Canevaro, and it is the same as if they Im C. P.] MACRAE v. CLARKE. [C. P. have engaged to pay a person whom they know not | Middlesex, when a verdict was found for the plt. to exist. They are estopped from denying the sig- for 1971. nature, and some effect must be given to the engagement which he has made to pay the individual who put the false name upon the bill: Pickard v. Sears, 6 A. & E. 469. ERLE, C. J.-Our judgment will be for the plt. in this case. If need had been we should have been inclined to decide on the ground that the effect of the facts was to make the bill payable to bearer. The deft. accepted the bill for honour of Canevaro, and Canevaro's name was upon the bill, and it was made payable to Carlos Raffo, and the case finds there was no such person in existence. The acceptor for honour of Canevaro must be assumed to have had all the knowledge that Canevaro had, and Canevaro, had he been a real acceptor, would have been an acceptor of a bill payable to bearer. The other point, however, puts the case beyond all doubt. This bill was a bill purporting to be drawn by Canevaro payable to Raffo, and indorsed by him and presented to Sultzberger, who having stopped payment declined to accept it, but the bill was handed to the plts. and the letter at the same time of the 21st June informing them that the deft. would accept for honour of the drawers, Messrs. Canevaro, and on the faith of that representation, and that the bill was properly indorsed, discounted it. I think the plts. are entitled to recover. BYLES, J.-I am of the same opinion. I think that the letters and facts in this case amounted to a representation, on the faith of which the plts. discounted the bill, and that they have a right to recover. KEATING, J.-I am of the same opinion. The facts are peculiarly strong to prevent the deft. contesting the right of the plts. to recover in this action. This case seems to me similar to that of Pickard v. Sears. The deft. accepted knowing that the plts. would only part with their money on the faith that the names were good, and by his acts and representations induced the plts. to advance the money, which they are clearly entitled to recover. On the other points I agree with the opinion of the court. M. SMITH, J.-I am of the same opinion. I agree with the court as to the point of estoppel to the deft. from disputing the genuineness of the bill, and that the case is the same as if this bill had been a bill payable to bearer. Judgment for the plts. Plts.' attorneys, Travers Smith and De Gex. Attorney for deft., J. W. Nicholson. Wednesday, May 2. MACRAE v. CLARKE. The action was brought against the sheriff of Gloucestershire for letting a person named Thomas Hartland escape from his custody; the following being the material facts of the case: The plt. obtained judgment against Hartland for 11574 on certain bills of exchange indorsed by Hartland for the accommodation of the acceptors; and the plt. not being able to obtain the amount under a fi. fr., issued a writ of ca. sa. directed to the present deft., who accordingly arrested Hartland, and kept him at the house (an hotel) where he was arrested, under the charge of two sheriff's officers, as he was not well enough to be taken to prison. During the time that Hartland was in custody some of his friends contrived to get the officers to leave him in bed in his room whilst they went into another room to supper, and during the time that they were away Hartland escaped, and has never since been heard of. The question at issue was as to the amount of damages for which the sheriff was liable. For the plt. it was proved that Hartland was the son of a rich man who was very nearly one hundred years of age, and that some time before his arrest a Mr. Edmonds, his solicitor, offered to pay 68. in the pound on the amount of the bills, on condition that they were given up to Hartland, with liberty for him to use the plt.'s name in any proceedings which he might take against any of the other parties to the bills, and upon Edmonds being asked at the trial why he made this offer, his explanation was that he made it entirely on his own account, and that Hartland knew nothing about it, but that, as he owed him a large sum of money, he intended to apply what money he could make out of the bills to repaying himself. For the deft. it was contended that at the time of the escape Hartland was hopelessly insolvent. The learned judge directed a verdict to be found for the plt., leaving it to the jury to find the amount of the damages, at the same time directing them that the true measure of damages was, what was the value of the chances that if the imprisonment thereof, would by that imprisonment have been had been continued the remaining debt, or any part extorted. A rule having been obtained on a former day calling upon the plt. to show cause why the verdict found for him should not be set aside and a new trial had, unless the plt. in the meantime should consent to reduce the verdict to nominal damages, on the ground that the judge misdirected the jury in telling them to consider the value of the chances that if the imprisonment had been continued the remaining debt, or any part of it, would by that imprisonment have been extorted, and in not telling the jury to consider only the means or resources of the execution debtor himself, and that the damages on the evidence should be nominal, and also on the grounds that the jury found a verdict for substantial damages against the evidence, and that the Action against sheriff for escape of debtor-Measure of verdict was against the evidence, damages 5 & 6 Vict. c. 98, s. 31. The true measure of damages in an action on the case This was Karslake, Q. C. and Henry James now showed cause. This case is brought under 5 & 6 Vict. c. 98. s. 31, which provides that if any debtor in execution shall escape out of legal custody after the passing of this Act, the sheriff, bailiff, or other person having the custody of such debtor shall be liable only in an action upon the case for damages susdebtor was taken or imprisoned, and shall not be tained by the person or persons at whose suit such liable to any action of debt in consequence of such escape. Arden v. Goodacre, 11 C. B. 371, reported twice, shows that the true measure of damages is the an action tried before Byles, J. in | value of the custody of the debtor at the moment |