1849. MIDDLETON and Others, Assignees of HEMINGWAY, a Bank rupt, v. BARNED and Others. June 18. TROVER for a bill of exchange for 13007.—The first In an action of count of the declaration laid the possession in the bankrupt before the bankruptcy, and alleged the conversion to be before that time. The second count laid the possession in the assignees, and stated the conversion to be after the bankruptcy. The defendants pleaded not guilty, and not possessed; upon which pleas issues were joined. trover for a bill of exchange, it appeared that were bankdiscounted bills who sent the the defendants ers, and had for A. B., bill in question by his clerk to inquire whether they would discount it, and to inform them of an agreement between him and C. D. with respect to defendants subsequently plac the title. The ed this bill to of the credit of A. B. At the of At the trial, before Coleridge, J., at the last Liverpool Spring Assizes, it appeared that the defendants were the assignees of one Hemingway, who, previously and up to the time of his bankruptcy, carried on business as a merchant, and that the defendants were bankers at Liverpool. On the 12th of February, 1846, Hemingway made a personal application to one Holmes, a merchant, to let him have a large quantity of beef, and produced the bill exchange in question, and offered to take 200 casks the beef, if the former would pay him the difference between the amount of the bill and the price of the beef. Holmes intimated his readiness to accept the proposal, but stated, that he could not do so unless his bankers would discount the bill; and he therefore proposed to send to them, to inquire whether they would discount the bill. This being agreed to, Holmes called his clerk, Wallace, and said to him, in Hemingway's presence, "Mr. He mingway has agreed to buy 200 casks of provisions, if can give him the difference out of this bill. Will you go to Messrs. Barned with the bill, and ask them if they will discount it-telling them the transaction?" Wallace left the place with the bill, but shortly afterwards returned and stated that one of the partners was absent, and that they did not like to act without his advice. Subsequently, I trial, neither ed the clerk to prove that he side having call had delivered 1849. MIDDLETON V. BARNED. Holmes and Hemingway ordered Wallace to leave the bill at Messrs Barned's, to await the answer of the partner who had been absent. Hemingway, on the 19th of the same month, called at the defendants, and asked for the bill, but they refused to give it him, stating, that they had put it to the account of Holmes. The bill, however, had not been indorsed by him. On the part of the defendants, evidence was given, which shewed that Wallace was in the habit of bringing bills for Holmes to the Bank to be discounted, and that, on the 16th of the same month, he called there, and inquired whether the bill in question was to be discounted, when the answer was, that the defendants had not then made up their minds. Wallace shortly afterwards took another bill to the Bank, upon which one of the defendants handed this bill to the cashier and said, "Let this and the 13007. bill be passed for Mr. Holmes;" upon which the amount of the bills were placed to his credit. Wallace was not called as a witness by either side. Upon this state of facts, the counsel for the defendants having stated that the defendants' case was closed, and that he should not call Wallace as a witness, the learned Judge remarked, that the defendants' case as bonâ fide holders of the bill, was not made out; for that, as Wallace had been sent with a message by Messrs. Hemingway and Holmes to the defendants, to inform them of the transaction between those gentlemen, and to inquire of them whether they would discount the bill, it was to be presumed that the message had been delivered; and as no evidence had been given to negative that fact, the defendants' case was incomplete. The defendants' counsel then proposed to call Wallace himself; but this, the learned Judge would not allow, and the plaintiffs obtained a verdict. Knowles, on a subsequent day, obtained a rule for a new trial on the ground of misdirection, and also on the ground that the learned Judge was wrong, in not allowing Wallace to be called. Against this rule Martin and Henderson now shewed cause. The presumption is a reasonable one, that Wallace delivered the message to the defendants, according to the order he received, in the course of his duty. That being so, the defendants had no authority to place the bill to the account of Holmes-it ought to have been discounted, and the money should have been paid over in pursuance of the order. [Alderson, B.-If we are to presume that the message was delivered, the defendants' conduct was not perfectly honest, so that your presumption is met by a counter presumption of a stronger character.] The defendants might easily have shewn that the message was not delivered, by calling Wallace in the first instance. [Parke, B.—The presumption in law is, that the proceeding on the part of the defendants was fair and honest. They have a good title to the bill, unless it be shewn affirmatively, that their title was impeached by the notice. The plaintiffs were bound to shew this, in order to succeed in the present action.] As to the other point, it is submitted, that the learned Judge had a perfect right to allow or not to allow the witness to be called—it was a matter purely within his discretion. [Parke, B. We never interfere in such case, unless it be perfectly clear that a learned Judge has wrongly exercised it.] Knowles and Crompton, who appeared to support the rule, were stopped by the Court. PARKE, B.-In this case, the rule must be absolute for a new trial. If the jury have found their verdict upon the presumption that Wallace delivered the message, the verdict is wrong. The defendants were clearly bonâ fide holders of the bill for value, unless they had notice. ALDERSON, B., ROLFE, B., and PLATT, B. concurred. Rule absolute. 1849. MIDDLETON V. BARNED. 1849. July 6. A Company, empowered by Act of Parliament to con struct a rail way, contracted under seal with certain persons to make a por tion of the line, and by the con REEDIE V. THE LONDON AND NORTH WESTERN RAILWAY THIS COMPANY. HOBBIT V. THE SAME. HIS was an action by the widow and administratrix of a person who was killed while passing under a viaduct in course of construction, as part of a railway from Leeds to Dewsbury. The action was brought to recover compensation, for the benefit of herself and her children, under the provisions of the 9 & 10 Vict. c. 93. The declaration stated, that the defendants were possessed of a viaduct over the Gomersall and Dewsbury turnpikeroad, such viaduct being part of a railway then in course of construction between Dewsbury and Leeds; yet the defendants conducted themselves in making the said archway over the said turnpike road so negligently, that, by reason thereof, a large stone, parcel of the materials used public highway, in the construction of the said archway, fell on the plaintiff's husband as he was passing along the road, whereby he was killed. tract reserved to themselves the power of dismissing any of the contract ors' workmen for incompetence. The workmen, in constructing a bridge over a negligently caused the death of a per- neath along the : Held, in an ac tion against the Company, by the administratrix of the deceased, that they were not liable; and that, in such case, the terms of the contract in question did not make any difference. The pleas were, first, not guilty; secondly, that the defendants were not making the said archway in manner and form &c. Upon which pleas issues were joined. At the trial, before Cresswell, J., at the last York Summer Assizes, the material facts proved were as follows:-On the 30th of June, 1845, an Act of Parliament, intituled "The Leeds, Dewsbury, and Manchester Railway Act, 1845," received the Royal assent. By the provisions of that Act, a Company was incorporated in the usual way, for the purpose, among other objects, of forming the railway in question. By an indenture, dated the 29th of September, 1846, made between the Company of the one part, and Joseph Crawshaw and Richard Crawshaw of the other part, the Messrs. Crawshaw covenanted with the Company that they would, in consideration of a sum of 55,000l., to be paid as there in mentioned, make and complete a portion of the railway described in the indenture, of the length of 3830 yards, or thereabouts, with all excavations, embankments, bridges, tunnels, viaducts, roads, fences, and other works connected therewith, according to the specification referred to. Amongst other stipulations in the deed, it was provided, that the works were to be done by the contractors; but the Company had a general right of watching the progress, and, if the contractors employed incompetent workmen, the Company had the power of dismissing them. Under this contract, Messrs. Crawshaw proceeded to execute the works, and, while they were in progress, viz. on the 9th July, 1847, another Act received the Royal assent, whereby it was enacted, that the said Leeds, Dewsbury, and Manchester Railway, with all and singular the undertakings thereof, as well those which had been commenced as those which had not, and all the real and personal estate of the said Company, should (subject to the existing debts, liabilities, and contracts of the same Company) be vested in the London and North Western Railway Company, and might be lawfully executed, completed, held, and enjoyed by them, in the same way as they might have been executed, completed, held, and enjoyed by the said Leeds, Dewsbury, and Manchester Company if that Act had not passed. After the passing of this second Act, Messrs. Crawshaw continued to proceed with their work, and in the course of it, by the negligence of some of the contractors' workmen, a heavy stone fell from a travelling truck upon the plaintiff's husband, who was passing along the road underneath, and occasioned his death. Upon these facts, a verdict was found for the plaintiff, leave being reserved for the defendants to move to enter a nonsuit, if the Court should be of opinion that the action would not lie. A rule nisi having been obtained accordingly, against this rule, in Hilary Vacation last, (February 13 and 14,) cause was shewn by 1849. REEDIE V. LONDON AND NORTH WESTERN RAILWAY CO. HOBBIT V. SAME. |