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

• Jurisdiction: Ireland
• Judgment Date: 17 November 1848
• Date: 17 November 1848
• Court: Queen's Bench Division (Ireland)

Queen's Bench.

THE TRUSTEES OF THE CHARITIES OF JOSEPH EVANS

and

THE GOVERNOR AND COMPANY OF THE BANK OF IRELAND.

Armstrong v. LewisENR 4 M. & Sc. 1.

Master v. MillerENR 4 T. R. 320.

Crosby v. LengENR 12 East, 409.

Stone v. MarshUNK 9 D. & Ry. 643.

Forward v. PittardENR 1 T. R. 27.

Robinson v. DunmoreENR 2 Bos. & Pul. 416.

Sloman v. Bank of England 14 Sim. Rep. 475.

Kelly v. Bank of Ireland Bat. 593.

Davs v. Bank of EnglandENR 2 Bing. 393; S. C. 9 Moo. 747.

Coles v. Bank of EnglandENR 2 P. & D. 521; S. C. 10 Ad. & El. 437.

Young v. GroteENR 4 Bing. 253.

Hall v. FullerENR 5 B. & C. 750.

Marsh v. KeatingENR 1 Scott, 5; S. C. 1 Bing. N. C. 198.

Goodman v. HarveyUNK 6 Nev & M. 372.

Gough v. BevanENR 2 M. & W. 770.

Bridge v. Grand Junction Railway CompanyENR 3 M. & W. 224.

Hume v. Bolland Ry. & M. 371; S. C> Cr. & M. 130.

The Queen v. Wilson 1 Den. Cr. Cas. 284.

Rex v. Hort 1 Mod, Cr. Cas. 486.

Flower v. AdamENR 2 Taunt. 314.

Hawkins v. CooperENR 8 Car. & P. 473.

Woolf v. BeardENR 8 C. & P. 373.

Luxfrd v. LargeENR 5 Car. & P. 421.

Buttrfield v. ForresterENR 11 East, 60.

Russel v. langstaffeENR 2 Doug. 514.

Lickbarrow v. MasonUNK 2 Term Rep. 63.

Pluckwell v. WilsonENR 5 Car. & P. 375.

Vanderplank v. Miller Moo. & Mal. 169.

Sills v. Brown 9 Car. & p. 605.

Marriott v. StanleyUNK 1 Scott, N. R. 392.

Bradley v. Waterhouse Moo. & Mal. 154.

Whitmore v. Wilks Moo. & Mal. 214.

Barber v. GingellENR 3 Esp. 60.

Collis v. EmmettENR 1 H. Bl. 413.

Cruchley v. Clarence 2 M. & Sel. 90.

Stone v. MarshENR6 B. & C. 551; S. C. 9 Dow. & Ry. 643.

Pickard v. SearsENR 6 Ad. & El. 474.

Gough v. BryamENR 2 Mees. & Wels. 770.

Bridge v. The Grand Junction Railway CompanyENR 3 Mees. & Wels. 244.

Sutton v The Bank of EnglandENR 1 Car. & P. 193.

Lynch v. Nurdin 1 Q. B. 29.

Davies v. MannENR 10 Mees. & Wels. 548.

Raisin v. MitchellENR 9 Car. & P. 618.

Batson v. DonovanENR 4 B. & Al. 21.

Sleat v. FaggENR 5 B. & Al. 348.

Company v. WilmotENR 9 East, 360.

Salford Water WorksENR 5 B. & Ad. 866.

Foster v. Bank of England 15 Law Jour. N. S. 215.

Purves v. LandellENR 12 Cl. & Fin. 99.

Coggs v. BernardUNK 1 Sm. L. C. 82.

CASES: AT,-LA,W, 365 M. T. 1848. Queen' aBeneh. THE TRUSTEES OF THE CHARITIES OF JOSEPH EVANS THE GOVERNOR AND COMPANY OF THE BANK OF IRELAND.* June 6, 8, 9. Nov. 17. TRESPASS on the case.-The declaration contained seven counts. Case, brought The first count stated an Act of Parliament of 59 G. 3corpora- , whereby by a ption aggre the Dean of Ossory, the Mayor and Recorder of the city of Kil- prietorss i!)fro- in the public kenny, the High-sheriff of the county of Kilkenny, and the Minister egal,icet ,,ft t_ e of the parish of St. Mary and the Vicar of the parish of St. John in the said city of Kilkenny, all for the time being, and their successors Largiclio too transferefu rarnsfes; for ever, were constituted a body politic in deed and in law by the their fun nominee; d te name of " The Trustees of the Charities of Joseph Evans ;" and that for permitting it to be trans by that name they should have perpetual succession and a common ferred to ano ther without seal; that the plaintiffs were, on the 1st of January 184,5, pro- their autho rity ; and for prietors of £9,300. 4s. 6d. £34 per cent. stock, which had previously non-payment of the divi been made up of £4,566. 16s. 8d. old £34 per cent stock, and aends tai this stock. It appeared in evidence that the stock had been transferred out of the books of the bank under forged letters of attorney, purporting to be the deeds, and to be executed under the common seal, of this corporation ; that these letters of attorney had been executed by Grace (the agent of the corporation) under their common seal, without their knowledge or consent, for which forgery Grace had been prosecuted by the corÂporation, and was convicted ; that Grace had made regular entries in the books of the corporation to their credit of the sum of stock claimed, and that the seal was always left in his custody, the members of the corporation supposing that no valid act would be done without the signature of some member of the corporation that the forged letters of attorney had been lodged in the bank on one day, and that the transfer was made on the following day ; that a genuine letter of attorney to receive the dividends on the stock had been lodged in the hank prior to the execution of the forged letter ; that the practice was to compare the seal on any letter of attorney with that previously lodged ; that this had been done on this occasion, and that the officer of the bank had acted on the letters of attorney, depending on Grace's respectability, and having so compared them. The Judge told the jury, if they believed the evidence, the five letters of attorney were forÂgeries, and that believing them to be so, they were bound to find a verdict for the plaintiffs, unless they should be of opinion upon the evidence 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 or default of the plaintiffs ; and that in 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, they should consider whether there was any neglect or default on the part of the defendants * MOORE, J. absente. 366 CASES AT LAW. £4,733. 7s. 10d. new £32 per cent. stock, which said several sums of stock were theretofore standing in the name of the plaintiffs in the public books kept by the defendants in the Bank, and that same had not, nor had any or either of them, been transferred by the plaintiffs, or any attorney authorised by them to transfer the same ; that the plaintiffs, being such proprietors of said share or stock, it thereupon became the duty of the defendants to permit said share to be transferred by the plaintiffs or their attorney ; that plaintiffs, by letter of attorney duly executed, did appoint Alexander Colles their attorney, in their names, to transfer said share of plaintiffs in said .E31 per cent. stock ; that the said letter of attorney was lodged with the defendants at the Bank of Ireland, and that they had notice thereof; and that the said Alexander Colles, on the 22nd of February 1847, required the defendants to permit said sum to be transferred to the name of John Johnson. Breach, that the defendants refused to enter such transfer, or permit such transfer to be made, by reason whereof the plaintiffs lost the value of said sums. The second count was for not transferring a different amount of stock. The third count averred that the plaintiffs, on the 1st of NovemÂber 1842, were proprietors of £4,566. 16s. 8d. old L32 per cent. in examining the said letters 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 plaintiffs. On exceptions to this charge, calling on the Judge to tell the jury that, the documents being forgeries, they should find for the plaintiffs notwithstanding the allegation of default or neglect by the plaintiffs ; and also calling on him to direct the jury that, if they believed on the evidence that the plaintiffs did not previously authorise and were not privy to the affixing of the seal to the said letters of attorney, and did not by any subsequent act adopt them, they should 'find for the plaintiffs. The jury found for defendants.-Held, that direction was wrong, there being no eviÂdence to go to the jury that the forgery or utterance was exclusively caused by the neglect or default of the plaintiffs. Held also, the direction of the Judge that, in considering whether the use made of the seal was the exclusive cause of the imposition and fraud practised on the defendÂants, they should consider whether there was any neglect or default on the part of the defendants in examining and inquiring into the genuineness of the letter of attorÂney, and if there was any, and that it contributed to the imposition and fraud, they should find for the plaintiffs, was a wrong direction, being unaccompanied with any instruction upon this mixed question of law and fact ; that it should have been accompanied with instructions as to what was the duty or extent of examination and inquiry necessary, in order to assist the jury in finding whether there was proper care or due diligence in examination and inquiry. Held also, that there was no evidence to go to the jury that the plaintiffs caused the forgery and imposition, the seal being left with the agent not enabling him to execute the letters of attorney as the act of the corporation.-[BLAcKBuRNE, C. J., dubitante.] CASES AT LAW. 367 Government stock, and that the plaintiffs had not authorised the M. T. 1848. ueen'sBench transfer thereof previous to the time thereinafter mentioned. Q Breach, that the defendants, contrary to their duty, &c., permitted TRUSTEES OF EVANS'S said stock to be transferred in said books out of the name of the CHARITIES plaintiffs, and without their authority, by which the plaintiffs had BANK OF lost the benefit of same. IRELAND. The fourth count proceeded as the third, in reference to the £4,733. 10s., new £32 per cent. stock. The fifth count was for permitting a transfer of the sum menÂtioned in the second count ; and the sixth and seventh counts were for non-payment of the dividends on the said stock. Plea-not guilty. On the trial, before BLACKBURNE, C. J., at the Sittings after Michaelmas Term 1847, the plaintiffs gave in evidence the Act of Parliament incorporating them as trustees, and a consent admitting several formal matters, amongst others, the judgment of conviction of one William Grace, at the prosecution of the plaintiffs, for forgery of five letters of attorney purporting to be the...