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curing it for her. A Mr. Taylor appeared to have acted 1862. as attorney for Miss Richards in the matter, and the Viscountess executed a mortgage for the amount she required, which, however, turned out to be fruitless, no Viscountess
FORBES. money being advanced. Thereupon Miss Richards proposed, as difficulties had arisen in procuring the entire advance, that she should lend the Viscountess 5001., and gave a cheque for the purpose, which was dishonoured. Miss Richards had represented that the money was to be paid into Coutts's for her, but nothing was obtained from her. In September, 1859, the Viscountess went over to Ireland, and had not seen Miss Richards since. Letters then passed between them on the subject up to the month of December, 1859, but which were not produced. But there was a fragment of a letter in her handwriting put in on the part of the plaintiff, which was addressed to Miss Richards, and was much relied on, and which ran thus :“Make Mr. King pay the money before you give him the signed bill; it is very kind of you to have taken so much trouble for me.” On the 28th of December, 1859, the mortgage deed was sent to the attornies of the Viscountess. The bill in question was dated on the 30th of January, 1860, and it was admitted that the Viscountess had sent Mr. Richards her acceptance in blank at that time. On the 2nd of February following (that is, a few days after the bill was dated), the Viscountess wrote to Miss Richards a letter, which was put in on the part of the plaintiff, and ran thus:-“I have just received a letter from my mother, stating that you would lodge on that day 2501, at Coutts's bank. But the bill I signed, and for which I am liable, is for 5601. I hope my mother has made a mistake as to the amount, as the whole amount is due to me, to be paid in at Coutts's. My mother says that 601. is for expenses. Will you explain how this is ? It is more than three weeks since Mr. Taylor had the assignment for the 5001., stating that the sum bad been
sent by you to my bankers. You know the dishonoured cheque, and the reason stated for not paying the money, (a gross untruth), &c. This letter is to save you from being cheated, &c.” The Viscountess had never had a farthing upon the bill; and she had not had any personal communication with the plaintiff. On the 30th of January, 1860, however, the date of the bill, it appeared that one Bicknell, proprietor of the Argyll Rooms, cashed the bill for the plaintiff, a performer of music at those rooms giving him a cheque. The bill then was filled up for 5601., and bore upon it the names of Miss Richards and Mrs. Terrett, as indorsees; and Bicknell got the plaintiff to put his name upon it also as indorsee. The bill, it will be observed, was not filled up in the writing of the Viscountess, but only bore her signature, as she was abroad at the time. Miss Richards was lodging at the same house as the mother of the Viscountess, Mrs. Terrett, and the plaintiff swore he paid the money over to Miss Richards at that house, and in the presence of Mrs. Terrett. In February, 1860, the Viscountess, finding that no money was forthcoming to her, instructed her attornies in the matter, and they set about recovering the bill. They demanded it from Miss Richards, and she sent them to the plaintiff. On the 26th of February they demanded it from him, but were told it had been discounted. The plaintiff also said he had advanced 3001. upon it, but he did not say a word as to the Viscountess, nor of a sum of 5001. The bill, it will be seen, was due in May, 1860, but no action was brought upon it until the 7th of February in the present year, that is, nearly two years after it was due. The Viscountess to the last had never received a shilling from any one upon or for the bill, nor had she ever had a shilling from the plaintiff, who claimed to be the holder of the bill. Miss Richards had become bankrupt, and had turned out to be the daughter of a pauper in Wales, and the plaintiff described her as a "swindler."
The plaintiff stated that Miss Richards had applied
1862. to him on behalf of the Viscountess for a loan of 5001.
KING upon the security of her acceptance, producing a letter from her attornies to Taylor touching the mortgage Viscountess to show that she was negotiating an advance to her, and also showing the two fragments of letters from the Viscountess to herself, which have been already mentioned. He said he believed from this and from seeing her at the same house with Mrs. Terrett, that she was authorized to negotiate a loan for the Viscountess. He did pot, however, apply in any way to the Viscountess herself, or her attornies, to know if she had given such authority. He said she produced a letter from Mr. Taylor, which showed that “something of the sort was going on." He stated that he told her he was not sufficiently acquainted with Lady Forbes to make the advance on this evidence, but that if she (Miss Richards) and Mrs. Terrett would join in a bill as security he would do so. He swore that the fragment of the letter of the Viscountess, “ Make King pay the money,” &c., had been shown to him by Miss Richards. Having got the bill from Miss Richards he discounted it with Mr. Bicknell and handed him the bill, endorsing it himself. He stated that he took the money to Miss Richards, but as she was indebted to him in 1101. she paid it to him out of the money, and said she was going to pay the rest into Coutts's. He did not explain how he came to take her debt out of money he professed to have lent to the Viscountess. He said Miss Richards had since become considerably indebted to him, and he did not explain how.
The plaintiff was severely cross-examined as to his connection with Richards, and especially whether he did not know where Richards was, and he was pressed particularly as to whether he had not visited her last Thursday, which he swore he had not. He was threatened with a contradiction on that point, but persisted in his denial, and swore
that he had only heard from his attorney within the last two days where she was. (This is mentioned with a view to what followed.)
Bicknell was called to confirm the plaintiff, but Taylor was not called.
M. A. Richards was called on her subpæna, on the part of the plaintiff, and did not answer, but some one in Court handed to the Judge a document, which his Lordship stated to be a doctor's certificate of ill health.
Bovill objected to the production of any document by a stranger, unsworn, and without any legal evidence of its nature or authenticity. Thereupon,
Shee, Serjt., called, not the person who produced the paper but his own client (a), the attorney, to prove that he had tried to discover the address of M. A. Richards, and had only succeeded in doing so two days ago, when he directed her to be subpænaed. And the clerk who had subpænaed her was called to prove it: on his cross-examination he stated, that she said she should not attend, “ as she
(a) This evidence was not objected to, and perhaps might have been admissible, in consequence of the cross-examination of the plaintiff as to his privity with Richards and his knowledge of her address, and having visited her so lately as that day week. He certainly had been asked as to his attorney having told him of her address; and a contradiction was threatened (and afterwards attempted) as to his having visited her a week ago. The evidence, however, went beyond the point as to his knowing of her address, &c., and was directed to show that every effort had been made to procure her attendance on the part of the
plaintiff as a witness. It was the case for the defendant that the plaintiff was all along in collusion with her, and of course the counsel for defendant might shrink from shutting out evidence on that point. Quære, however, whether the evidence might not be admissible, on that ground, as tending to rebut the inference of collusion, or of notice, arising from Richards not being called. It has been held, that the not calling the defendant is some evidence, coupled with other circumstances (M. Ewen v. Cotching, 27 L. J., Esch, 41); and if so, surely, in some cases, it may be admissible to adduce evidence to rebut such a presumption.
could not appear against Lady Forbes ;” and, further, he stated that she seemed quite well.
Bovill for the defendant said, the truth of the transaction was not that Richards was to borrow money on her behalf, but that she was to raise the money on the security of the bill, and lend it to her. He admitted that the two versions of the transaction ran very closely to each other, and that the line between them was fine and difficult to draw, but, when drawn, the distinction was, in law, substantial, and made an end of the case.
He called the defendant, who gave evidence of the version of the transaction above stated, and swore she never authorized Richards to borrow the money for her, but supposed that she would borrow it herself and lend it to her. She admitted, indeed, that she knew the money was to come from King, and thus explained the fragment of her letter relied on by the plaintiff, but she said she thought the loan by King was to be to Richards.
The defendant's mother, Mrs. Terrett, was called and admitted her indorsement of the bill, but stated that it was obtained from her by a representation of the transaction such as the defendant had sworn to, and that she never heard from Richards of a loan from King to the defendant.
A witness was called to prove that, about the beginning of February, 1860, Richards asked him to put his name to a bill, and said she was going to lend the defendant money.
Shee, Serjt., objected.
ERLE, C. J., held the former piece of evidence as admissible but not the latter.
Bovill proposed to put in letters from Richards to the defendant, in order to disprove the alleged agency to borrow money on behalf of the latter.
Shee, Serjt., objected.