The Governor and Company of The Bank of Ireland v Trustess of The Charities of Joseph Evans

JurisdictionIreland
Judgment Date02 July 1855
Date02 July 1855
CourtHouse of Lords (Ireland)

H. of Lords.

THE GOVERNOR AND COMPANY OF THE BANK OF IRELAND
and

TRUSTESS OF THE CHARITIES OF JOSEPH EVANS.

Lyons v. Fitzgerald S. & B. 405.

Witham v. Earl of Derby 1 Wils. 55.

Young v. GroteENR 4 Bing. 253.

Coles v. The Bank of England 10 Ad. & Ell. 437.

624 COMMON LAW REPORTS. 1855. H. of Lords. Vou4t of Xerb4. THE GOVERNOR AND COMPANY OF THE BANK OF IRELAND v. TRUSTEES OF THE CHARITIES OF JOSEPH EVANS. July 2. In an action on Tuts was an appeal from the Court of Exchequer Chamber in the case for not transferring Ireland. stock, it vi- peered in evi- The action was one of trespass on the case, brought by the dente that the stock had been defendants in error against the plaintiffs in error, for refusing to transferred under forged powers of attorney, executed by the agent of the plaintiffs (a corporate body) under their common seal, without their knowledge or consents the Judge told the jury, if they believed the evidence, the powers of attorney were forgeries, and that believing them to be so, they were bound to find a verdict for the plaintiffs, unless they should be of opinion that the use made of the common seal of the corporation, whereby the defendants were imposed on and defrauded, was caused exclusively by the neglect ordefault of the plaintiffs ; and that in considering whether the use so made of the common seal was the exclusive cause of the imposiÂtion and fraud practised on the defendants, they should consider whether there was any neglect or default on the part of the defendants in examining the powers of attorney, or inquiring into their genuineness ; and if they were of opinion that there was such neglect or default, and that same in any degree contributed to the imposiÂtion and fraud, they should find for the plaintiffs. Reid (affirming the judgment of the Exchequer Chamber, Ireland), that such direction was wrong, as there must be something that amounts either to an estoppel or to ratification, to make negliÂgence an answer to the action. Upon a bill of exceptions taken by the plaintiffs to the Judge's charge, the Court awarded a venire de novo, upon which the plaintiffs again went to trial, and had a verdict by default, the defendants not appearing, and judgment was entered thereon. The defendants brought a writ of error into the Exchequer Chamber, and the transcript of the record returned by the Court of Queen's Bench into the Court of Error omitted (in accordance with the practice of that Court) the bill of exceptions and the judgment thereon, merely entering the continuances thereon of vice comes non misit breve, from the award of the first venire to the entry of the verdict on the second trial. Held, that the Court of Queen's Bench were wrong in ordering a venire de novo by a rule or order, as if it were a new trial, and that they should not have left out the bill of exceptions as part of the postea, but entered a judgment that the exception was sufficient, and concluded with an award of a venire de novo. Held, that the House of Lords had power to direct the Court to reform the record, by entering such judgment thereon, which was done by striking out the continuance and striking out the postea returned on the new trial from the plea roll. The 28 G. 3, c. 31 (Ir.) enacts that the Judge must sign the bill of exceptions, and the clerk of Nisi Prins incorporate it in the postea, and return it therewith to to the Court where the action is brought, which Court shall have authority to examine same, and give judgment and make such order, either by arresting the judgment, granting a venire facias de novo or otherwise. Held, that this does not authorise the Court to order anew venire as on a new trial, but that they may award a venire de novo. A new venire issues when a new trial is granted for matter dehors the record; a venire de novo is always issued for matter on the record. Young v. Grote (4 Bing. 253), Coles v. The Bank of England (10 Ad. & Ell. 637), observed upon. COMMON LAW REPORTS. 625 transfer to their attorney Government £34 per cent. stock, and permitting it to be transferred without their authority. At the trial before Blackburne, C. J., in Michaelmas Term 1847, it appeared in evidence that the stock in question had been entered in the names of the Trustees of Evans's Charities in the books of the Bank of Ireland, and that same had been transferred under forged powers of attorney, purporting to be under the common seal of the corporation, which their agent had affixed to the powers of attorney, without their knowledge or consent, and for which- he had been prosecuted by the defendants (in error) and convicted. The Bank contended that they ought not to be liable for these forgeries, inasmuch as same had been caused by negligence and want of due caution in the defendants (in error), in entrusting the custody of their common seal to their agent, and by no want of due caution on the part of the Bank. The Chief Justice told the jury that if they believed the evidence offered by the trustees, the powers of attorney being forgeries, they were bound to find a verdict for them, unless they should be of opinion that the use made of the common seal of the corporation, whereby the Bank was imposed on and defrauded, was caused exclusively by the neglect or default of the trustees. And that in considering whether the use so made of the common seal of the trustees was the exclusive cause of the imposition and fraud pracÂtised on the Bank, they should consider whether there was any neglect or default on the part of the Bank in examining the said powers of attorney, or inquiring into their genuineness; and that if they were of opinion that there was such neglect or default, and that same in any degree contributed to said imposition and fraud, they should find for the trustees. The jury found for the Bank on this charge; and the trustees...

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