« SebelumnyaLanjutkan »
The Crossed Cheques Acts.-Mr. Hubbard, M.P., writing to the Times on this Act, says :-“The absence of a penalty in previous statutes would have been adequately supplied by the 10th clause of the Act, which provides that any banker paying a cheque crossed generally otherwise than to a banker, or a cheque crossed specially otherwise than to the banker to whom the same shall be crossed, or his agent for collection, being a banker, shall be liable to the true owner of the cheque for any loss he may sustain owing to the cheque having been so paid.' It was thought necessary, however, by the Government to define the 'true owner' to whom the paying banker should be liable, and the first paragraph of the 12th clause, intended to accomplish that purpose, runs: 'A person taking a cheque, crossed generally or specially, bearing in either case the words 'not negotiable,' shall not have (and shall not be capable of giving) a better title to the cheque than that which the person from whom he took it had. The Attorney-General explained that these words ‘not negotiable' precluded a thief from having or giving a title to a cheque so marked, but by specifically withdrawing from the manipulation of the thief, cheques marked with words equivalent to ‘not for thieves,' you invite his attention to the mass of cheques not so specifically marked as the legitimate field for his industry. It may be said, 'Adopt the suggestion of the Attorney-General, and stamp or print at once across all your cheques "not negotiable.” That might be a remedy against theft (effectual though clumsy), but for the second paragraph of the 12th clause. According to the first paragraph, if a crossed cheque marked ‘not negotiable' were stolen and handed over to a bank with whom the thief had a deposit account, and a cheque were paid 'otherwise than according to the crossing' by the paying banker, the true owner from whom it was stolen (who might be either the drawer or the payee) could recover the amount from the paying banker, who would in his turn recover from the receiving banker, who would recover from his customer. The second paragraph, however, neutralizes the first paragraph in the following words But a banker who has in good faith and without negligence received payment for a customer of a cheque crossed generally or specially to himself, shall not, in case the title to the cheque prove defective, incur any liability to the true owner of the cheque by reason only of having received such payment.' The same individual who as the ‘person' taking from the thief the stolen cheque, is in the first paragraph pronounced to have no title to the cheque, is in the second paragraph, as a 'banker,' acquitted from any liability to the true owner. He has received the amount of the cheque for a customer of his own choice; without his intervention the cheque would have been waste paper in the hands of the thief or if his assigns; but, having so received the amount he will
be enabled, under the immunity secured to him by the last paragraph of the 12th clause, to refuse to refund it, and the true owner would remain hopelessly despoiled. This is the risk to which, under the last achievement of the legislation of 1876, is consigned the multitude of cheques (stamped or not stamped ‘not negotiable'), which convey to their owners millions in amount dividends in the public funds, and in all the great industrial companies of the country.”
Judges and Newspaper Reporters.—More than once we have commented upon the unfair opinion which ordinary readers of newspapers are apt to derive from many of the newspaper reports of criminal trials. From the brief and inaccurate way in which cases are reported, the “general reader” is apt to think that too little justice has been done to one prisoner and too much to another. At the recent assizes at Leeds, Mr. Justice Denman complained in poignant language of the injustice that is in this way done to Judges who are striving earnestly to do their duty, and of the consequent detriment to the institutions of public justice. In one case of manslaughter he said—“The present case he did not look upon as the worst that he had tried at these assizes. In another case he had tried, the man had received no provocation except that his wife had tried to prevent his getting any more drink. Taking a stick with a knob at the end of it about the size of a large walnut, he cut her about the head, he gashed her forehead, and made a wound three inches long and penetrating to the skull, and he laid open her scalp so that the bone was visible. He was indicted for wounding with intent to do grievous bodily harm, and sentence was passed of eighteen years' penal servitude, and not one whit too severe, in his opinion, was that sentence. happily, with regard to sentences, Judges were misrepresented by inaccurate newspaper reports of cases taking place before them, and it did so happen that in the case he had just named it went forth to the public that a man had been sentenced to eighteen years' penal servitude for wife-beating, and in another paper it was said that the punishment was for unlawfully wounding—an offence which would not have justified such a sentence at all. He thought it was a great misfortune, when Judges took such great pains to apportion the proper sentences to terrible offences, that by any inaccuracy in reporting these sentences, and any deficiency in reporting the facts justifying such sentences, that that should go forth to the world which made it appear that excessive sentences had been passed, when the world had no means of judging whether the sentences were or were not more severe than were absolutely necessary to have a deterrent effect. By this means all the pains a Judge took to do justice, and to exercise rightly the most painful duty he had to perform, became utterly in vain.”
Anecdote of Lord Ardmillan.-An esteemed correspondent sends us the following :-"In the Spring Circuit of 1833, at Stirling, there was a trial which excited much local interest. The accused was one Henderson, maimed in one hand. He was a stone-breaker, and of intemperate habits. He had been indulging over night. An old man, the surveyor, was supposed to have remonstrated with him in the morning, whilst Henderson was attempting to work at the stone depôt. No person saw or heard the interview and melancholy result. But early in the morning the surveyor was found dead close to the spot, and Henderson, in the field behind, was found sound asleep, with his stone-hammer in his grasp. One blow on a vital part of the skull had been sufficient to deprive the old man of life. Henderson was indicted for murder: Lord Gillies was sole Judge. Persons still remember this able Judge, with his chin enveloped in a large cravat. James Craufurd had recently passed advocate, and was the sole counsel. His speech to the jury was something remarkable from one so young. There being no persons present, he imputed the death to many causes; but should the man at the bar be proved to have been the actual occasion, he pled for a verdict of culpable homicide, which, in the more lenient view of the law, would doubtless have been the issue in the present day. The prosecutor put in evidence the hammer, with several grey hairs attached with blood to the heft. The young advocate, taking the instrument in his hand, asked the jury if they would send a fellow-creature to the gallows on so slender evidence as these hairs. Lord Gillies, in a charge strongly for a conviction, in allusion to the advocate's reference, at once aptly remarked that surely his young friend, though from Ayrshire, had forgotten the line of the favourite poet, • The
grey hairs yet stack to the heft.' The man was found guilty, condemned, and publicly hanged, and was the first that was buried within the precincts of the old jail. Lord Gillies, in the course of his address, complimented the young advocate on his eloquence and ingenuity. All who were present foresaw in this his first address the forthcoming eminence he attained—first as a counsel, especially in criminal trials, and subsequently as a Judge of Justiciary, wherein he had few, if any, who excelled in tact and demeanour.”
The Law of “ Packarapu.”—An Otago paper just arrived tells the story of a Maori, who, having been the unfortunate creditor of a bankrupt, had lost £40 or so, and was determined to master the system by which he was deprived of his money. Having done so, he was able to explain to his friends that he had lost his money because the debtor became “Packarapu." In explanation of this word he laid down that a white man who wants to become “ Packarapu " goes into business and gets lots of goods and does not pay for them. He then gets all the money he can together, say £2000, and puts it away where no one can get it, all except £5. With this he goes to the Judge of the Supreme Court, and tells him he wishes to become “ Packarapu.” The Judge says he is very sorry,
but of course it cannot be helped, and he then calls all the lawyers together, likewise all the men to whom the “ Packarapu” owes money, and he says :- This man is Packarapu, but he wishes to give you all he has got, and so he has asked me to divide this among you all.” The Judge thereupon gives £4 to the lawyers and £l to the other men, and the “Packarapu ” goes home a regenerated man. Not so satisfactory to debtors, it seems, is the law administered in the district court of Oamaru, as appears by the following extract from a judgment by Judge Ward, reported in The New Zealand Jurist :-"Under the Debtor and Creditor Act, 1875, the proceedings can go no farther, but do not lapse, and no provision is made for quashing them, or for replacing the debtor in the position he occupied before filing the fatal statement of insolvency. Freed from his property, but not from his debts, of a certainty 'the last state of that man is worse than the first.' The wisdom of the Legislature has evidently deemed it fitting that a debtor, who has not reserved a portion of his estate sufficiently large to induce his creditors to attend his meetings in hope of a dividend, should go down to his grave in a state of liquidation. Until his debts are merged in the great debt of nature,
“ Years may come and years may go,
But he remains for ever an unliquidated man. It may be a comfort to him in his painful situation to reflect that when he filed his statement of insolvency —and paid the fees thereon-he unconsciously enrolled himself in the ‘noble army of martyrs' to colonial legislation.”—Irish Law Times.
Notes of English, American, and Colonial Cases.
ANIMALS.-Agistment-Injury by animal mansuetæ nature-Scienter.-A man who receives beasts to agist on a contract to take reasonable care, which beasts are afterwards injured by an animal mansuetæ naturæ, is not exempt from liability merely on the ground that he did not know the animal to be ferocious. All the circumstances taken together may show a want of reasonable care nevertheless, and if so, he will be liable. Per Blackburn, J., the rule requiring proof of scienter in cases of injuries by animals mansuetæ naturæ, is an artificial rule which ought not to be extended.Smith v. Cook, 45 L. J. Rep. Q. B. 122.
BANKER'S CHEQUE.-Cheque crossed with name of banker—Payment through wrong banker-Bona fide holder for valu..—The payee of a cheque drawn on the Union Bank of London payable to him or his order, indorsed his name on it and crossed it with two lines, and the name of his bankers, the London and County Bank. The cheque was stolen, and ultimately came into the hands of a bona fide holder for value, who paid it into his bankers, the London and Westminster Bank. They presented it to the Union Bank, who notwithstanding the crossing paid the amount. In an action by the payee to recover the amount from the Union Bank :-Held (affirming the decision of the Court below), that he was not entitled to recover for the breach of the duty imposed upon the defendants by 21 & 22 Vict. c. 79, s. 2, that provision not being directly for the protection of payees; nor for conversion of the cheque, since the statutes had not affected the negotiability of crossed cheques, and that both the property and possession had therefore passed to the bona fide holder for value.-Smith v. The Union Bank of London, 45 L. J. Rep. App. Q. B. 149.
BUILDING SOCIETY.--Advanced member—“Rules for the time being."—An advanced member of a building society, who, by the terms of his “ advance" deed, was to pay back the sum advanced with premium according to the rules “ for the time being” of the society, held not to be bound by new rules passed after the date of his advance, by which certain moneys were to be deducted from all members' shares on redemption thereof.—Re Norwich and Norfolk Provident Building Society; Smith's Case, 45 L. J. Rep. Chanc. 143.
CHARTER-PARTY.—Implied warranty as to ship's capacity and fitness to take a particular cargo.—What is a reasonable cargo such as under a charter-party the shipowner has contracted to carry ; and implied warranty of ship's fitness to carry it. Freighter entitled to select any cargo from various kinds of merchandise mentioned in the charter-party. Freighter entitled to refuse either to reload the cargo which had been unloaded by reason of ship's incapacity, or to wait while the necessary alterations were made in the ship, and shipowner not entitled to recover anything on account of the freight lost by such refusal ; also freighter entitled to recover damages for the cargo spoilt through the ship not being in a reasonably fit state, nor capable within a reasonable time of being put in a fit state, to carry the cargo provided for her. Decision of Exchequer Chamber, 43 L. J. Rep. C. P. 230, affirmed.-Stanton v. Richardson, 44 L. J. Rep. H. L. C. P. 78.
COMPANY.-Fraud in prospectus—Contract of promoter—Evidence on appeal.— M. entered into a contract with a patentee to purchase his patent for £65,000 in cash and shares in a company to be formed, and thereby engaged to form such company, of which the patentee was to be entitled to nominate two directors; and it was thereby also provided that if M. failed to form the company, the contract should be void, and a deposit of £1000 forfeited. Three months later M. entered into a contract to sell the patent to a trustee for a named company, then intended to be formed, for £125,000 in cash and shares ; and shortly afterwards the company was registered, and a prospectus issued, which stated the date, etc., of the second contract, but not of the first.
On an application (before the winding up) by a shareholder who subscribed on the faith of the prospectus to have her name removed from the register :-Held, affirming the decision of Bacon, V. C. (Brett, J., diss.), that the application must be refused : Held by all the Judges, that M. was not a pronoter when he entered into the first contract. Opinions of the Judges as to whether the contract was one that required to be mentioned in the prospectus according to the provisions of section 38 of the Companies Act, 1867 ; and whether the omission to mention it was a fraud, and the effect thereof.-In re the Coal Economising Gas Company; Ex parte Gover, 45 L. J. Rep. App. Chanc. 83.
CONTRACT.—Consideration–Agreement not to publish defamatory facts.-Action against an executor on a money bond made by his testator. Equitable plea, that plaintiff had seduced and committed adultery with testator's wife, and after the making of the bond and before suit plaintiff promised testator, that if testator should not and would not expose and make public the conduct of plaintiff with regard to the seduction and adultery, he, plaintiff, would not enforce payment of the penal sum in the bond, or any part thereof, or any money thereby secured, or sue for the same. Averment, that in pursuance and performance of the agreement, testator did not during his lifetime expose or make public the conduct of plaintiff with regard to the seduction and adultery, but relying upon the promise of plaintiff, faithfully performed his part of the agreement, nor had defendant, since the death of testator and while executor, exposed or made public the conduct of the plaintiff. On demurrer to the plea :-Held, that the plea was bad.-Brown v. Brine, 45 L. J. Rep. Exch. 129.