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1862.

THE QUEEN

WARDELL.

Newcastle-on-Tyne; being a stranger in these parts, he has requested me to speak to his identity.

“Yours, &c.

“Reginald Remington.” This was addressed to “ Messrs. Alcock and Son, Clitheroe Bank.” The prisoner took this note and a cheque, indorsed “ Regd. Remington,” and of which the following is a copy :

“Winlaton, Nov. 25, 1861. “ Messrs. Armeron, Stable and Dees,- Please pay to Mr. George Wardell, or my order, four pounds ten shillings. 41. 10s.”

“ CHARLES WARDELL." to the innkeeper at Chatburn, and asked him to cash it, but he declined. He then took it to the Craven Bank, and there saw the clerk, who objected that the indorsement was not very like Mr. Remington's, and the prisoner produced Mr. Remington's note, and in addition said that he saw Mr. Remington sign his name at the back of the cheque. The clerk, on seeing Mr. Remington’s note, cashed the cheque. The indorsement was proved by Mr. Remington not to be in his handwriting. There was no proof that the cheque was not a valid one; but on its being presented it was returned dishonoured.

At the close of the case for the prosecution,

Campbell Foster, for the prisoner, objected that there was no proof of any intention to defraud. The cheque must be assumed to be a valid cheque, on which the drawer was liable, and the indorsement of “Reginald Remington” was an order simply to pay “ Reginald Remington” or bearer, and the prisoner being the bearer, it was paid to bim.

WILLES, J., however, held that the indorsement, if not a forgery, would have rendered Mr. Remington liable on the cheque, the same as an indorsement on a bill of exchange, and if the writing of Mr. Remington's name was

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1862.

The Queen

WARDELL.

intended to obtain credit with the bankers it was a forgery with intent to defraud.

Campbell Foster then (to the jury) contended that it must be assumed that the cheque was a good cheque in the absence of any proof to the contrary, and that the prisoner's object in calling on Mr. Remington was, he being a stranger in the neighbourhood, to obtain means to establish his identity as the person named in the cheque, which Mr. Remington's letter did for him, and with which the bank would have cashed the cheque without the indorsement. That Mr. Remington's name had been written on the cheque inadvertently, without any intention to forge his name or to defraud. It was an unnecessary act to write Mr. Remington's name on the back of the cheque, and done in carelessness or ignorance.

His LORDSHIP, in summing up, left it to the jury whether the prisoner had indorsed Mr. Remington's name with the intention of inducing the bank to cash the cheque for him, and directing them that this indorsement was the same in effect as if a person holding a valid bill of exchange had indorsed the name of “ Baring" without authority upon it, in order the more readily to get it cashed, directing them that if they thought the prisoner had done this with this intention it was their duty to find him guilty; if he had no such intention, to acquit him.

The jury found the prisoner guilty; sentence,

penal servitude for seven years.

urrers

the Court

1862. Judges' Chambers, coram Cockburn, C. J. OXENHAM v. SMYTHE. .

Easter Term. In this case (a), the third and fourth counts on a re- When the

plaintiff, pend presentation of authority were demurred to, because not Ina alleging that the representations were false and fraudulent, to the declara

" tion, takes the and, pending the deinurrers, the plaintiff carried the case case down to

trial, and obdown to trial, coram COCKBURN, C. J.(b).

tains a general

verdict, subCOCKBURN, C. J., doubted whether or not the case camę ject to leave to

move to enter within Collen v. Wright (c), and directed a general verdict it for the de

fendant, and for the plaintiff, with leave for the defendant to move to enter the verdict for him (d). Afterwards the Court of directs the

verdict to be Exchequer held the special counts bad, for not alleging entered for the

defendant on distinctly that the defendant falsely represented that he the counts dehad the authority of Collins; and, on the rule to enter the murred to, and

On me rule out we also holds them verdict, likewise ordered it to be entered for the defendant bad for want of

a certain alleon those counts, on the ground that it did not appear that gation, it is for

the Judge, who he had made any false representation of authority, or that various of the allegations in the counts had not been to settle the

postea in acproved, as that Collins bad let, that Collins had dis- cordance with

the judgment trained, and the like. But the Court directed the verdict of el to stand upon the count in trespass, as defendant had not on the

enter the verprofessed to let for himself, and had no authority from dict. Collins either to let or distrain. Pending the argument, however, the plaintiff got the associate to complete the postea and enter all the issues for him.

There was then an application at Chambers before MARTIN, B., to alter this, which he did, supposing that he was doing so by consent of the parties, and he directed the chief issues on the special counts to be entered for the de

cause,

ourt on the rule to

(a) Vide Vol. II., p. 220. (6) Vide Vol. II., p. 222. (c) 8 E. & B. 2.

(d) It is erroneously stated in the Nisi Prius Report, Vol. II., p. 222,

that the defendant had the verdicton
the count in trespass; and the ob-
servations of CockBURN, C. J., on
that count were misconceived. Vide
the report, Vol. II., p. 222.

1862.

OxEN HAM

SMITHE.

fendant, but afterwards finding that it had not been by
consent, rescinded his own order, on the ground that he
had no jurisdiction to make it, and that only the Judge
who tried the cause could deal with the postea (a). The
parties now came before the Lord Chief Justice to have
the postea altered according to the judgment of the Court
of Exchequer.

Wood for the plaintiff.
Garth for the defendant.

On the part of the plaintiff it was insisted, that though the counts had been held bad for not alleging that the representation was false, yet in substance, as they stood,

(a) Where the Court saw that, unless a verdict for at least some damages were entered, there must be a new trial, the application to enter such verdict must be to the Judge who tried the cause; Grout v. Glasier, 1 D., N. S. 58. So again, where, indeed, the Court has settled the principle on which the verdict is to be entered, and the question of number or amount arises, which can only be settled by the evidence on the Judge's note; Freshney v. Wells, 26 L. J., Exch. 228. So as to any mistake in the postea, which may be amended by the Judge from his notes, even after error; Bowers v. Niron, 12 Q. B. Rep. 546. And the Judge's direction as to amendment cannot be questioned in the Court above; Daintry v. Brocklehurst, 3 Exch. 691. The present, however, appeared the converse kind of case. “When issues in law and fact are raised, the costs of the several issues, both in law and fact, will follow the finding or judgment; and if the

party entitled to the general costs of the cause" [i. e. in this case the plaintiff) "obtain a verdict on any material issue, he will also be entitled to the general costs of the trial; but if no material issue in fact be found for the party otherwise entitled to the general costs of the cause" [i.e. here, the plaintiff'], “the costs of the trial shall be allowed to the opposite party." Here, however, the plaintiff was entitled to a judgment to recover on the whole record, and so this rule could not apply in favour of the defendant; but, supposing that the special counts held bad had been the only counts, then the question would have arisen, on this rule, whether there can be any “material" issue (for either party) on a bad count, according to the terms of the rule, whether, or not, the general principle of law that a pleading bad in law must be proved in omnibus, as to which quare; for a declaration was held not within the stat. Hen. 8, as to pleadings.

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they had been proved, the plaintiff was entitled to the verdict on the plea of not guilty (a).

On the part of the defendant it was contended, that the effect of the judgment of the Court was, that there had been no representation of authority, and that as this was implied in the counts in question there was no proof of the wrongful act alleged, and that therefore the defendant was entitled to the verdict on the general issue, as well as on the various allegations in the indictment.

COCKBURN, C. J., said, he must now direct the postea to be altered in accordance with the judgment of the Court of Exchequer, on the rule to enter a verdict for the defendant on the special counts; but, to enable the plaintiff to apply to the Court, to vary or mould its judgment on the rule, the order should not be yet drawn up; otherwise,

Order as prayed (6). (a) Which put in issue the wrong issue of law or of fact shall follow ful act alleged, i. e. the wrongful the finding or judgment on such representation. See Mummery v. issue" (which should seem to mean, Paul, 1 C. B. 316.

the finding on the issue of fact, or (6) In Easter Term, 1862, Cham- the judgment on the issue of law), bers moved the Court with that ob- “and be adjudged to the successful ject, but it was ultimately agreed party" [i. e. the party successful on that the matter should be referred such issue or issues respectively), to MARTIN, B., or Wilde, B., to whatever may be the result of the settle the postea, by consent. By other issues." And see Rule H. T., the C. L. P. Act, 1852, s. 81, it is 1853, 62. provided, that “ the costs of any

Judges' Chambers, Queen's Bench, coram Mellor, J.
FERGUSSON v. COOMBE.

Dec. 1861. SUMMONS on the part of the defendant to inspect Inspection of

plaintiff's plaintiff's books of account. The action was for repairs to a ship.

count allowed,

the question Plea: general issue.

being, whether

the defendant Defendant alleged that credit was given to the owners,

or some one else had been debited.

s of ac

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