ACTION AGAINST A BANK.

Press, Volume VIII, Issue 839, 8 July 1865, Page 3

ACTION AGAINST A BANK.

An important special jury case, 1 Isaac and another v. Bank of New ' Zealand, was commenced on June 29 in the Supreme Court, Dunedin, before his Honor Mr. Justice Chapman. ' According to the "Otago Daily Times," June 30, it appears that the ; "plaintiffs are trustees of the estate of A. G. Fisher and Co., and they sue for damages for the wrongful conversion of bills of exchange, to the amount of £70.5 5s lid. The de- ; fence is, that under the general law - as bankers, the defendants had a right to hold the bills as a lien against the unliquidated balance of - Fisher and Co.'s account; and that there was a special agreement in this case, which extended the right of lien [ as agahißt other bills of exchange paid in by Fisher and Co., and which to a large amount, were unmatured. The case occupied two days, and on June 30, in Bumming up, The Judge said that the mere facts of the case had been presented so clearly that they were capable of being -\ understood at once. The questions which the jury would have to decide under the state of the law, were of a simple nature; but the question as to the agreement, depending on the evidence, would have to be carefully considered. The general rule as to a banker's lien had been so often proved, that the Courts now took notice of it as a portion of the law. It was, that upon all the securities of a customer that came lawfully into his hands, whether placed there under an agreement or not, the banker had a lien for what was usually termed his general balance. The rule was founded on reasonable grounds. If a banker was entitled to retain bills for an unliquidated balance, he was entitled to retain all that he held. In this case, the Bank claimed an unliquidated balance, on the 4th March, of £3700, and it was not competent for the plaintiffs to say, " pick out I such bills as will be sufficient to answer your balance of £3700, and give us the rest," because it would be impossible to foretell at any particular•tune which of the bills retained would ultimately be paid. In this case, there was a balance which was pretty well _dn-itted; but, besides it, there was a sum whicb be tbought ought to be included, but which Mr. Barton said ought not to be. If Mr. Barton should think it necessary, he would have an opportunity of moving the full Court for anew trial, on-the ground of misdirection. The balance admitted was £2807 8s sd— an over-draft of £2155 6s 7d, and bills dishonored before the 4th March, induding a cheque for £110—wMchMrMacdeanhadexplained to have been paid in twice, and which was therefore, properly included— £652 Is lOd. Then, he thought tliat the bills sent to the Bank of New South Wales on the morning of the 4th March, and then dishonored, also came within the general lien. Those bills amounted to £954 5s 3d, so that the total overdraft on the morning of the 4th, according to bis view, was i>3761 13s fid; but the jury would calff il_fft for tl_-__fl_lv€_ from the state-

ments of the witnesses. He said that those bills formed part of the overdraft, because, the moment they were presented, and'the officer whose duty it was to attend to bills, wrote, ' " IN'.S.F." (not sufficient funds) that was substantially a dishonor of the bills, and the bank wao held them would be entitled to place them to the debit of the party who paid them in, whether he was the endorser or the drawer. True, to succeed in an action on them, the bank would have to do something more; but that did not alter the fact of due dishonor. To succeed in an action, notice must be given. In a town case, there would be at all events, until the day after presentation and refusal, for giving notice; if the endorser or drawer had gone to Melbourne, there would be until the sailing of the next steamer; and if notice had to be sent to England, the time would be extended until the next English mail day. But the right of the holder did not accrue from the giving of notice—---it related back to the moment the bill was refused : the best test being, that when the holder succeeded in an action, he was entitled to recover interest from the moment of refusal. If Fisher had gone to England, notice of the dishonor of these bills could not be given until the 18th March ; but the defendants would be entitled to debit the amount to Fisher, and, if there were funds in hand, to recoup himself from those funds. The question of tender might turn out to be of no importance ; but, having regard to possible ulterior proceedings, he intended to put some questions to the jury as to it, quite apart from the issues stated. The original offer to pay the balance, if the bills were given up, was not a legal tender. A tender must be of a specific sum of money; or, which was the safest course, to offer more than enough, leaving it to the option of the creditor to take out the amount he claimed. There must be no clogging with anything like conditions. It was not enough that a sufficient sum should be tendered, with the condition, " I will give it to you, provided you givemeareceipt;" though, under ordinary circumstances, the right to a receipt was generally ascertained. A marked cheque would, no doubt, generally be received between merchant and merchant, because the Bank by which it was marked was held to be bound for the amount filled in ; but it was no legal tender, and Mr. Maclean refused it. It was not clear whether, when Isaac went with the gold, he said, " I have here three bags, each containing £1000 in gold;" the most favorable assumption was, that he did so. Mr. Maclean refused it. "Was that an unconditional tender on the part of Isaac ? Whether the tender was dispensed with or not would have had a material effect if the tender had been pleaded, which it was not, because it would have affected the amount of the verdict. But, whether the tender was made or not, or refused or not, did not, as he (the Judge) thought, affect the right to a lien. No doubt, Mr. Maclean, with a banker's instinct, from first to last stuck to the securities ; saying, in effect, " our claim is greater than you state ; we shall retain the bills." That would be evidence of dispensing with a tender. But with what tender ? The tender as Mr. Isaac had made it. If a tender of the full amount, which Mr. Maclean might set up, had been made, it did not follow that he would either have dispensed with or refused it. He should therefore ask the jury to answer these questions :—" Was there a. tender of money? Was tbe amount sufficient to cover the overdraft? Was the tender unconditional ? Was the tender dispensed with ? If the jury found that the amounts composing the overdraft were as he had summed them up, he was of opinion that the deferioants were entitled to a verdict on the first issue ; and that was an important one, because it would entitle the Bank to retain the securities, at least until the overdraft was paid, and possibly longer. The first count put in issue that the bills were the property of the trustees; but that simply meant property in them as against the Bank, and the trustees might, whatever was the verdict, have property in them as against all the rest of the world except the Bank. There had been some dispute as to when bills given by Prichard, Fisher and Co., came into the hands of the Bank; but he thought the matter was not important as affecting the case. The existence of the special agreement was stated by Mr. Maclean, who was confirmed —though not in every specific terms—by Mr. G. W. Moss, one of the insolvents. Mr. Fisher had not been examined, because, as was stated, he had gone away. He did not suppose that the jury would disbelieve Mr. Mclean, but without doing that, it was quite competentforthemto examine the terms of the agreement as stated, bo as to see whether a special lien existed as well as the general lien that had been explained. They would answer " Yes " or " No," to the second issue. The third issue as to the amounts of money due and bills unmatured, would depend on the findings aa to the previous ones. His Honor read the evidence as to the agreement, and then left the case to the jury. After an absence of rather more than half-an-hour, the jury returned into Court. They found as follows: —Were the bills, or any of them, the property of the plamtiffs at the time of their alleged conversion? No. Were the bills lodged as security for advances made, an_ for bills discounted, &c. ? Yes. On the first part of the third issue, as to whether there was money — Yes; to the second part, as to the amount of the bills unmatured, &c. — We do not know. The questions put by the Judge, apart from the issues, were thus answered:— Was there a tender of money? Yes. Was the amount sufficient to cover the overdraft ? No Was the tender unconditional ? No. Was it dispensed with ? Yes. Verdict for the defendants. j

LORD DUNDREARY. When I was stopping down at Wockingham with the Widley's, last autumn, there was a monstrous jolly girl staying there too. 1 don't mean two girls you know —only—only— one girl—but stop a minute. Is that right? How can one girl be stopping there t w0 —What doosid queer expwessions there are in the English language! Stopping there two I It's vewy odd. I—l'll swear there was only one girl — at least the one I mean was only one — if she'd been two, of course I should have known it —Let mc see now, one is singular, and two is plural —well, you know, she was a singular girl — and she was too many for mc. Ah, I see now —that accounts for it—one two many—of course—l knew there was a two somewhere. She had a very queer name, Miss —miss—Missis, no not miss Missis —I always miss the wrong— I mean the right name, Miss Chaffingham—that's it—Charlotte Chaffingham. I weckomember Charlotte, because they called her Lotty—and one day at bweakfast I made a stunning widdle—l said—' Why is Miss Charlotte like a London cabman?' Well, none of them could guess it. They twied and twied, and at last my brother Sam, who was in England then —he gave a most stupid anthwer —he said " I know," he said, " She's like a London cabmen because she's got a fair back." Did you ever hear anything so widiculous ? Just as if her face wasn't much prettier than her back ? —Why I could see that, for I was sitting opposite her. It's true Sam was just behind her, offering her some muffins, but —you know heed seen her face, and he weally ought to I have known better. I told him so—l said, " Tham you ought to be athamed of youthelf, thafth not the anther." Well, of course, then they all wanted to know, and I—l told 'em—ha, ha ! my anthwer was good wasn't it ? Oh, I forgot I haven't told you —well —here it is—l said—" Miss Charlotte is like a London cabman, because she's a Lotty Chaffingham" (of course I meant, lot o' chaff in him) —D'ye see —Doosid good I call it —but, would you believe ? —all the party began woarwing with laughter all wound. At first I thought they were laughing at the widdle, and I laughed too, but at last Captain Wagsby said (by the way I hateWagsby —he's so doosid familiar) —Captain Wagsby said —" Mulled it again, my Lord." From this low expression— which I wecollect at Oxford, I thought that they thought I had made a mithtake, and asked them what they meant by woarwing in that absurd manner. " Why, don't you see, Dundreary," — some one said—" It won't do—you've forgotten the lady's sex—Miss Charlotte can't be said to have any chaff in him. It ought to be chaff in her" —and then they began to woar again. Upon my word now, it hadn't occurred to mc certainly before, but I don't see now that it was such a mithtake. What's the use of being so doosid particular ; about the sense of a widdle as long as it's a good one ! Abthurd ! But there's one thing I do like in the countwy besides the larks, the little"naked chaps you see on''a skewer at the poulters in Bond street, all among the Epping sausages, singing above your heads, and the smell of hay and clover (I've got this sentence in a jumble that no man can make sense) —and that's a pic-nic: pigeon-pies and porkpie hats, girls and lobster-salads,pwetty faces and champagne (and all on the steps on an old castle that Eichard the Conqueror bombarded, or in the cloisters of an abbey that Cromwell founded, or confounded, I don't know which), music and womance, wheumatism and poetwy. The girls look so pwetty among the wild wuins, and even the old dowagers gwow agweeable. Then the music begins, and there's the dance in the moonlight, like Dinowah's shadow dance in Meyerbeer, and then the fellows laugh till the old walls wing again. That's what I call fun for the countwy ; and pop go champagne corks all the time, and the quantity dwunk, considewing no lady pwofesses to like champagne, is what no fellow can understand. I think if ever I did p-p-pop the question, I should do it coming home from a p-p-pic-nic. Why ? Why because a fellow must do it somewhere, and coming home from a pic-nic in the moonlight is a very nice time. At the top of the long walk at Wockingham there is a summer house, though why so called I don't know, for I've been down there hunting at Christmas, and there it is just the same as then. However, this summer house is built up of twunks of twees in what they call twellis work —all twisted together, you know, in a sort of vewy perplexing way, and lined with bark. Now I think of it—l think its called " wustic" work —I 'spose because its only found near gentlemen's houses. However, it's a jolly sort of place with a lot of ferns and things about, and behind there are a lot of shwubs and bushes and pwickly plants which give a sort'of rural or wtjwal, which is it ? blest if I know—look to the place, and has it was vewy warm, I thought if ever I'm to make an ath of myself by pwposing to this girl —I wont't do it out in the eye of the sun—it's so pwecious hot. So I pwposed we should walk in and sit down, and so we did, and then I began: " Miss Chaffingham, now, dont't you think it doosid cool ?" " Cool! LordD," she said; " why I thought you were complaining of the heat." " I beg your pardon," I said; " I—l—can't speak vewy fast (the fact ith, a beathly wathp was buthing about mc at the moment), and I had'nt quite finished my thenterce. I was going to thay, " don't you think it doosid cool of Wagsby to go on laughing—ar—at a fellow as he does?" " Well, my lord," she said, " I think so too; and I wonder you stand it. You have your remedy you know" " What remedy ?" I said, " you don't say I ought to thwash him, Miss Charlotte ? Here she somehow began to laugh, but in such a particular way that I—l could'nt think what she meant. "A vewy good idea," I said, "I've a vewy good mind to twy it. I had on {the gloves once with a lay figure in aj

I painter's studio, and gave it an awful licking. It's true it—it didn't hit back, you know—I —I did all the hitting then. And pwaps —pwaps Wagsby would hit back. But I could always —alwavs —" "Always ichat, my lord?" said Lotty, who was* laughing in a most hystewical manner. Why I could always say it was a mithake, and —and it should'! happen again, you know." Admirable policy, upon my word," she said, and began tittering again. But what the dooth amused her so much I never could see. Just then we heard a sort of wustling in the leaves behind, and I confeth I felt rather nervouth. " Its only a bird," Lotty said ; and then we began talking of that little wobbin wedbeast, and what a wonderful thing nature is—and how doosid pwetty it was to see her laws obeyed. And I said " Oh! Miss Chaffingham," I said, " if I was a wobbin " " Yes, Dundreary," she anthered —very soft and sweet. And I thought to myself— " Now's the time to ask her —now's the time to—" " I—l was beginning to wuminate again, but she bwought mc to my senses by saying " Yes ? " mterwogatively. "If I was a wobbin, Lotty, and —you were a wobbin ——" I exclaimed with a voice full of emotion "Well, my lord!" "Wouldn't it be —jolly to hatch one's own eggs for breakfast ? " —" London Society."