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In an action to recover the amount of a cheque, where the defendant does not deny giving the cheque, but pleads that it was given for a gambling transaction, the plaintiff is not bound to make it part of his case, nor to produce it for the purpose of the defendant giving it in evidence, unless he has received notice to produce it: Reeves v. Gambell (1 Har. and W. 567).
In Rex v. Aldridge (1 Nev. and M. 776), on the trial of an indictment for conspiracy to extort money under a charge of forging a cheque, it was held that the prosecutor was not bound to produce the cheque in question.
ON CIVIL FRAUDS WITH CHEQUES DRAWN WITHOUT
Ir appears clear that if a person buy goods of another for cash, and pay him by a cheque drawn without effects, that no property passes in the goods to the purchaser, and that the goods may be reclaimed by the person from whom they were obtained.
One of the earliest cases on this subject is that of Earl Bristol v. Wilsmore (1 Barnewall and Creswell, 514). There the plaintiff was a public officer for the execution of the king's writs, and in that capacity he had, by virtue of a writ, seized some sheep, alleged to be the property of a person named Miller. These sheep were taken by stratagem by Wilsmore and Page, the defendants, and the action was brought to recover them back again. On the part of the defendants, it was proved that Miller had obtained the sheep from Page under the following circumstances:-They
were offered to him for sale on Wednesday, the 12th May, 1821, by Lemon, the servant of Page, and Miller agreed to pay £78 in ready money for them. The bargain being made, the sheep were driven by Lemon to the house of Miller at Nayland, about nine miles from Colchester. Upon their arrival there, Miller prevailed upon Lemon to accept a cheque for £78 upon Mills & Co., bankers at Colchester, by assuring him that it was as good as money. Miller's account at the bankers
had been overdrawn for some months before this transaction took place. Lemon then left the sheep in Miller's possession. Page, after keeping the cheque for two days, presented it at the bankers, and payment was refused. On the very day the sheep were obtained from Lemon, Elizabeth Carver, who was sister-in-law to Miller, went with him to the office of an attorney at Colchester, who was an entire stranger to them, and gave him instructions to prepare a warrant of attorney, which was accordingly done; and upon that, judgment was entered up and execution issued against Miller, under which the sheep were taken. Miller absconded, and was not afterwards heard of. Upon these facts it was contended, on the part of the defendant, that no property in the sheep was vested in Miller by the sale, he having obtained possession of them by fraud. A verdict having been found for the plaintiff, the Court ordered a new trial, and said:
"Upon further consideration, we are all of
opinion that there ought to be a new trial. If Miller contracted for and obtained possession of the sheep in question, with a pre-conceived design of not paying for them, that would be such a fraud as would vitiate the sale, and, according to the cases which have been cited, would prevent the property from passing to him. Whether he obtained possession of the goods with such a pre-conceived design, is a question of fact which ought to be left to the jury, and for that purpose the case must go down to a second trial. At the former trial, the cases of Noble v. Adams, Rex v. Jackson, and Read v. Hutchinson, were not cited. If the property in the sheep had not passed to Miller, it is clear that the plaintiff was not entitled to the possession of them against the defendants. For the plaintiff had a right to seize, under the fieri facias, the property of Miller only. Unless the sheep, therefore, had become the property of Miller, the plaintiff had no right to take them, and still less to retain possession of them against the rightful owners.
The point was brought forward more prominently in the subsequent case of Hawse v. Crowe (Ryan and Moody, 414). There the plaintiffs sold some tallow to Ramsbottom, under an agreement, the principal stipulations of which were that the goods should be delivered in London, that the plaintiffs should give fourteen days' notice of delivery, and that Ramsbottom should pay for them on delivery. On the day of delivery, Ramsbottom
came to the counting-house of the plaintiffs, asked for and received the delivery orders for the tallow, and gave a cheque for £1,400, drawn by himself on the cashier of the Bank of England, payable to the plaintiffs. It is the custom of the Bank of England never to permit overdrawing; and, accordingly, Ramsbottom, having on that day only £2. 16s. 6d. in their hands, the cheque was dishonoured. The plaintiffs immediately gave notice to the warehouseman in whose custody the tallow was, not to deliver, but the tallow had already been transferred to one Forrester. Subsequently, however, the transactions with Forrester were rescinded, and the warehouseman delivered the tallow to Crowe, as assignee of Ramsbottom, under a commission of bankruptcy issued against Ramsbottom in the meantime. This action was then brought by the plaintiff against Crowe to recover the tallow in question. The Court said :
"The right of Forrester to the tallow was determined before this action was brought, and Crowe claims only as assignee of Ramsbottom. The question therefore is, whether Ramsbottom, when he obtained the delivery orders and gave the cheque, intended to obtain possession of the tallow on the terms of the contract, namely, 'payment on delivery,' or not. If he had reasonable ground to expect that the cheque would be paid, the transaction was not fraudulent, and the property would pass to him; if he had not reasonable ground for so expecting, the transaction was fraudulent, and