Overend for the plaintiff. Brett and T. Jones for the defendants. The plaintiff was clerk to Messrs. Theedmann, merchants, of Newcastle; the defendants were bankers, at and giving landlords summary procedure for re-entry, were passed. On the same principle it has been held, that a man cannot enter on the premises of another in search of his goods, even though stolen (Anthony v. Haney, 8 Bing. 186), at all events without some special authority. And even an authority in law to take goods does not always involve an authority to take forcibly from the person, which, it, perhaps, may be laid down as a general principle (founded on the fact of breach of the peace), can never be lawful, without some actual and express authority in law, as by warrant, or arrest for felony, or the like. If it were otherwise, then, in most cases in which an action of trespass or trover would lie, an assault might be committed. This cannot be law, for it would lead to constant breaches of the peace, and often to personal violence and resistance, and sometimes, perhaps, even to bodily injury, possibly to homicide. The forcible seizure of the person by a private party is only lawful in the case of felony; and it required statutes to authorize an owner of property to apprehend a person even for a malicious injury thereto; and, out of the scope or authority of those statutes, if a private person arrest an offender and be killed in so doing, it is not murder; R. v. Carian, 3 C. & P. 397. The plaintiff here could not be in a worse position than if he had obtained goods by fraud, not amounting to a felony (and even in that case, quære if an assault for forcible retaking of the goods could be justified, though an arrest might be, for the purpose of taking them before a justice), and though no doubt the property does not pass where goods have been obtained by fraud; Abbotts v. Barry, 2 B. & B. 369; yet when they have been obtained, and are in actual personal manual possession, however the owner might be justified in getting hold of them by stratagem (Bristol v. Wilsmore, 1 B. & C. 514), he could not retake them by force and personal violence; and, indeed, the mere retaking them, unless there was such a fraud as would avoid the transaction, would be a trespass; Gillard v. Brittain, 8 M. & W. 575. But there is a wide distinction between a mere retaking (even although a trespass) and a retaking from the person with an actual assault; insomuch, that even an authority in law which might justify the mere retaking, will not justify the taking with violence from the person, for the obvious ground that that has a necessary tendency to provoke,-not a mere constructive breach of the peace, which every trespass is, but an actual breach of the peace, which is always wrongful. 1862. CHAMBERS v. MILLER and Others. Sunderland. On the 8th October, 1861, the plaintiff's employers directed him to go next morning with a cheque of one Mison, drawn on the defendants' bank for 150l., and get it cashed. He went accordingly, and when he presented the cheque it was cashed by a clerk in the usual way. While he was counting the notes, the clerk, after having gone to another part of the bank and spoken to another clerk, came back and demanded the money back again. The plaintiff refused; on which the manager was sent for, and repeated the demand, saying there had been a mistake. The plaintiff still refused; whereupon he was desired to go into the back parlour, and after some further parley, in the course of which he was told that the drawer had overdrawn his account, they forcibly took the money out of his pockets and returned him the cheque which he got cashed by the drawer, Mison; who, it turned out, was in embarrassed circumstances, and became bankrupt a fortnight afterwards. It did not appear that the plaintiff or his employers knew of this. For the defence, the clerk who had cashed the cheque was called, and stated that he had not left the plaintiff half a minute, and returned before he had counted the notes, one of the packages being untouched. One of the defendants was called, and proved that the account of the drawer of the cheque was overdrawn 2,300l., and that orders had been given not to cash his cheques, unless in cases where there had been special remittances for specific purposes; but that the clerk who had cashed the cheque in question had been absent, and was not aware of these orders. It was elicited, however, that on the 8th there was a cheque of the drawer's paid (money having been received to meet it), and that the last cheque of his so paid was on the 14th October. ERLE, C. J., held, that the moment the bankers' clerk had laid down the money or notes on the counter, in payment of the cheque, the bankers' property in the money was gone, and it could not be lawfully retaken (a). It did not matter that orders had been given to the clerks not to cash the drawer's cheques (even if the particular clerk had heard of the order), for the clerks in a bank had a general authority to cash cheques of customers, and third parties, holders of cheques, could not be bound by private orders given to the bankers' clerks. The law would, in this respect, have been the same even if the clerk had not gone away from the counter; for the moment the cash was laid down in return for the cheque the property was changed. The jury must, therefore, find for the plaintiff: the question of damages was for them (b). Verdict for the plaintiff, damages 201. (a) Of course the Lord Chief Justice had not in his mind the case of a fraud or felony, such as passes no property (Kingsford v. Merry, 26 L. J., Exch. 83), though even in such a case, semble, that the proper course is to give the party into custody on a criminal charge, and detain him until a police officer arrives; not violently to retake the money from him. (b) The ruling of the Lord Chief Justice implied that if the property had not passed, the seizure would have been justified, and that would be in accordance with the recent case of Blades v. Higgs, 30 L. J., C. P. 347, where it was so laid down, in a judgment delivered by the Lord Chief Justice himself. That judgment, however, proceeds upon the assumption that, for this purpose, constructive possession is the same as actual, i. e. that a man who has the property VOL. III. has the legal possession. And as that is so in every case where a man has the property in personalty, the maxim being that in personalty possession (in law) follows property, it follows that in every case where a man could bring trover he may go and violently retake the chattels, even, (for so the plea stated,) with a battery. This is certainly a very serious conclusion, seeing that a battery may reduce a homicide to manslaughter. The Lord Chief Justice, in the case cited, relied on Harvey v. Brydges, 14 M. & W. 437 (in error), 1 Exch. 261, as showing that though a forcible entry is indictable, it is no objection to a justification in a civil action, and no doubt that is so; and the plea need not answer the manu forti; Davison v. Wilson, 11 Q. B. Rep. 890. But there may be a forcible entry on land, amounting F.F. 1862. CHAMBERS v. MILLER and Others. 1862, CHAMBERS V. to a breach of the peace, or having a tendency to it (which is equally unlawful) without any assault. And it has been held that lib. ten. is no MILLER and Others. justification of an assault; Roberts v. Taylor, 7 M. & G. 659. And though it has been held that a person in possession of premises may turn another off them and justify an assault in so doing; Brown v. Dawson, 12 Ad. & E. 625; actual personal possession destroys a justification under a distress damage feasant, because it has a tendency to produce a breach of the peace; Bunch v. Kennett, 1 Q. B. Rep. 179; and it is only an actual possession, whether of land or chattels, which has been held to justify an assault; see Price v. Seeley, 10 Cl. & Fin. 28; Gayland v. Morris, 3 Exch. Rep. 695. And even a legal authority to take goods does not justify a taking them from the person; De Gonduin v. Lewis, 10 A. & E. 117. None of these cases were cited in Blades v. Higgs, as to which, therefore, quære. London Sittings. Trinity Term. GRAHAM AND OTHERS v. CANDY. Though there ACTION by assignees of bankrupts named Nicholson & is a desire to favour a par Stone, to recover the value of bills of exchange belonging ticular creditor, to the bankrupts, converted and disposed of by the de yet, if there is pressure, the fendant. There was a count for money had and received. Pleas not possessed, not guilty, and never indebted. : The plaintiffs' claim was based on an alleged fraudulent preference. The defendant had lent the bankrupt 1,000l. to assist him in joining a firm of Nicholson, Pascoe & Stone, and taken his note for the amount. On the 10th April, 1861, Pascoe having withdrawn from the firm, the defendant asked for payment, and, as it was not convenient to pay him, he took a note from the firm for the amount, payable on demand. The defendant still pressed for payment, and the bankrupt Nicholson promised it. On the 2nd May, he having again asked for payment, the bankrupt Nicholson sent him bills to the amount of 5001. The defendant on the same day saw Nicholson, and, as he said, insisted on being paid in full, upon which bills to the amount of nearly 5007. more were handed to him. At that time Nicholson & Stone were in embarrassment; but Nicholson, who was called for the plaintiffs, swore that they had been in worse circumstances and had got over it, and that he hoped to recover his position. On the 4th May, however, the firm stopped payment. There was the evidence of an accountant, who had examined the bankrupts' affairs, that from the 22nd March to the 2nd May business was carried on at an increasing daily loss. There was also evidence that after Pascoe's retirement several private debts were brought forward to the amount of about 6,000l., as debts on the firm, though they appeared to have been for advances to the bankrupts before the partnership, but for the purpose of enabling them to enter into it, and the money being carried into the capital of the concern. At the close of the plaintiffs' case, M. Chambers submitted that there was no case, as there was no evidence of a fraudulent preference, as it did not appear that it was voluntary, or in contemplation of bankruptcy. ERLE, C. J.-The case of Van Castell v. Booker (a) is one of those most in your favour. M. Chambers.-The case of Brown v. Kempton (b) shows that it is not enough that the transaction has been partly from a desire to prefer the creditor, if it has also been really by reason of pressure on his part. ERLE, C. J.-Still you cannot say that the mere fact (a) 2 Exch. Rep. 691. (b) 19 L. J., C. P. 169. 1862. GRAHAM and Others v. CANDY. |