The Governor and Company of the Bank of Ireland, - Plaintiffs in Error; The Trustees of Evans' Charities in Ireland, - Defendants in Error

JurisdictionIreland
CourtHouse of Lords (Ireland)
Judgment Date02 Jul 1855

English Reports Citation: 10 E.R. 950

House of Lords

The Governor and Company of the Bank of Ireland,-Plaintiffs in Error
The Trustees of Evans' Charities in Ireland,-Defendants in Error

Mews' Dig. iii. 780, 1559, 1586, 1587; iv. 1309; vi. 476; x. 118. S.C. 3 W.R. 573. Followed as to estoppel by negligence in Merchants of the Staple of England v. Bank of England, 1887, 21 Q.B.D. 160. Distinguished in Bank of England v. Vagliano (1891), A.C. 115; and cf. Mahony v. East Holyford Mining Co., 1875, L.R. 7 H.L. 899; Arnold v. Cheque Bank, 1876, 1 C.P.D. 587; Baxendale v. Bennett, 1878, 3 Q.B.D. 530; London and South-Western Bank v. Wentworth, 1880, 5 Ex.D. 105; In re Cooper, 1882, 20 Ch.D. 634; Union Credit Bank v. Mersey Docks and Harbour Board (1899), 2 Q.B. 205.

Bankers - Trustees - Corporate Seal - Negligence - Bills of Exception - Practice.

The GOVERNOR and COMPANY of the BANK OF IRELAND,-Plaintiffs tn Error; The TRUSTEES of EVANS' CHARITIES in Ireland,-Defendants in Error [June 25, 26, 28; July 2, 1855]. pfews' Dig. iii. 780, 1559, 1586, 1587; iv. 1309; vi. 476; x. 118. S.C. 3 W.R. 573. Followed as to estoppel by negligence in Merchants of the Staple of England v. .Bank of England, 1887, 21 Q.B.D. 160. Distinguished in Bank of England v. Vagliano (1891), A.C. 115 ; and of. Mahony v. East Holyford Mining Co., 1875, L.R. 7 H.L. 899; Arnold v. Cheque Bank, 1876, 1 C.P.D. 587; Baxendale v. Bennett, 1878, 3 Q.B.D. 530; London and South-Western Bank v. Wentworth, 1880, 5 Ex.D. 105; In re Cooper, 1882, 20 Ch.D. 634; Union Credit Bank v. Mersey Docks and Harbour Board (1899), 2 Q.B. 205.] Bankers-Trustees-Corporate Seal-Negligence-Bills of Exception-Practice. On the trial in Dublin, of an action between A. and B., the judge gave certain directions to the jury, to which A. objected; he tendered a bill of exceptions, which (according to the provisions of the Irish Statute, 28 Geo. 3, c. 31), was duly signed by the judge, and was afterwards argued in the Court in which the action was brought. That Court adopted the exceptions and ordered a venire de novo, and a new trial took place, the Court deciding that such was the proper course. B. did not appear at the second trial. On the first trial, the verdict had been given for B.; on the second it was given for A., and judgment was pronounced thereon in his favour; B. brought a writ of error, and then, finding that the postea and all the proceedings relating to the first trial had been struck out of the record, which from the first venire went on with formal continuances only to the second trial and verdict, he applied to the Court in which 950 BANK OF IRELAND V. EVANS' TRUSTEES [1855] V H.L.C.. 390 the action was brought, to have these omissions supplied. That Court refused to supply them: Held, that this mode of proceeding was erroneous, and this House ordered the Court in which the action was brought to amend the record, by entering on the plea roll the first trial, the exceptions, and the award of a venire de novo. Held also that B. was not bound to appear at the second trial. Trustees of a charity in Dublin incorporated by Act of Parliament, and having a common seal, possessed stock in the public funds, which stock was in Ireland registered in the Bank of Ireland. G., the secretary of the incorporated trustees, was allowed to have the seal in his possession. Five several powers of attorney prepared in different years, sealed with the seal of the incorporated trustees, the due affixing of which seal was attested by witnesses, who (though without any fraudulent intention) attested what was not true, since the seal was affixed by the unauthorised act of the secretary alone, were presented to the bank, and the stock was transferred. The facts were afterwards dis^ covered, and G., the secretary, was indicted and convicted. By a power of attorney duly executed, the Trustees then authorised C. to transfer the [390] stock, but the bank refused to make the transfer. An action was brought by the Trustees on this refusal; the judge who tried the cause, told the jury that if under these circumstances the Trustees had so negligently conducted themselves, as to contribute to the loss, the verdict must be given for the Bank. On exceptions for this direction : Held, that it was wrong. Trespass on the case. The declaration contained seven counts. The first count stated the Act 59 Geo. 3 (Ireland), c. xxxvii., by which certain persons, separately named therein, were constituted " Trustees of the Charities of Joseph Evans," by which name they were to have perpetual succession and a common seal. It then alleged that the Plaintiffs were trustees under that Act, and were as such possessed of 9300 in the 3J per cent. Stock standing in their names in the books of the Defendants, which the Defendants were bound, on request duly made by the Plaintiffs, or their lawfully authorised attorney, to transfer; that Plaintiffs had not before the time, etc., by themselves or their attorney, transferred the said stock; that in February 1847 they authorised one Alexander Colles, as their attorney, to transfer the said stock, and that he required the Defendants to permit such stock to be transferred to the name of John Johnson, but that the Defendants refused. There were other counts varying the form of the allegation, and applying it to the portions of the sums of which this gross sum was composed. The Defendants pleaded not guilty. The cause was tried at the Court of Queen's Bench in Dublin, before Lord Chief Justice Blackburne, at the sittings after Michaelmas Term 1847, when the Plaintiffs proved their act of incorporation, and gave in evidence a consent, by which certain facts were admitted. .One of these was, that one William Grace had presented to the Defendants five letters of attorney, purporting to be exe-[391]-cuted by the Plaintiffs, and authorising the transfer of the stock in question; the conviction of Grace for forging these letters by fraudulently affixing the corporation seal thereto, and the subsequent refusal of the Defendants to transfer to the order of Colles. The signatures to the letters of attorney were genuine, but the seal of the corporation had been affixed, without authority, by Grace, who took advantage of his being secretary to the trustees, and thereby having the custody of the common seal (the third section of the Act incorporating the trustees of these charities, gave to any meeting of trustees, or to the majority there present, provided such majority should consist of three trustees at the least, power " to order and dispose of the common seal of the said corporation, and the use and application thereof "). The Defendants proved that in each case the letter of attorney was lodged with the Bank on the day before it was acted upon, that the broker procured the forms of these letters from the Bank and sent them to Grace, by whom they were severally returned executed; that he lodged them, so executed, at the bank, and, in each case, upon the next day made the transfer, and received and remitted the produce to Grace. The Lord Chief Justice told the jurors that if they believed the evidence offered by the Plaintiffs in support of the issues, that the five letters were forgeries, then the verdict ought to be for the Plaintiffs, 951 V H.L.C., 392 BANK OF IRELAND V. EVANS' TRUSTEES [1855] unless they at the same time believed that the use made of the common seal of the trustees, whereby the Defendants were imposed upon, was caused exclusively by the negligence or default of the Plaintiffs, in which case the verdict must be for the Defendants. And further, if the jurors in so considering whether the use so made of the common seal of the Plaintiffs was the exclusive cause of the imposition and fraud practised on the Defendants, should also consider that there was any neglect on the part of the Defendants [392] to- examine the letters of attorney, and inquire into their genuineness, so that such negligence contributed in any degree to the said imposition and fraud, the verdict must be for the Plaintiffs. The Plaintiffs' counsel required the Lord Chief Justice to tell the jury that if the letters of attorney were forgeries the verdict must be for the Plaintiffs, notwithstanding the evidence of default on their part; and they further required him to direct the jury that if the Plaintiffs had not beforehand authorised the affixing of the common seal to the letters of attorney, or had not afterwards adopted the same, or the transfer made under it, the verdict must be for the Plaintiffs. His Lordship refused so to direct the jury, and a bill of exceptions was tendered to the direction on both points. The jury returned a verdict for the Defendants. The bill of exceptions was argued before the Court of Queen's Bench,* (three j udges only being present), in Trinity Term 1848, and in Michaelmas Term of that year judgment was given (12 Ir. Law Rep. 365). Mr. Justice Perrin thought that there was no evidence that the Plaintiffs furnished occasion for the commission of the fraud and deception; that consequently the direction was wrong, and that there must be a venire de novo. Mr. Justice Crampton was of the [393] same opinion, and the Lord Chief Justice, without observation, assented' to a venire de novo. On the award of the venire the case was brought to trial in Hilary Sittings 1849, and the Defendants not appearing, as they intended to bring a writ of error and were advised that no such writ would be allowed till after the second trial, a verdict was entered against them by default. The record on the giving of judgment in the Court of Queen's Bench on the bill of exceptions was thus made up. There were set out the pleadings, the award of the venire facias juratores, and the continuances from Trinity Term 1847 to Hilary Term 1849, (entirely omitting any notice of the first trial), the return by the sheriff on the first day of Hilary Term 1849 of the writ of venire, with the panel of...

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