had a right to do it; and, having regard to the position of Cross in the bank, there was nothing in his so doing calculated to excite any suspicion of dishonesty or fraud. I take, therefore, these two propositions to be true: one, that if the defendant had presented at the bank a cheque, signed by himself, to a clerk not connected with any fraud in relation to it, and had got the money, his ignorance of the nature of the document would not protect him against responsibility to the banker: the other, that payment by the cashier at the bank with money from the till, was not of itself such an act as to affect the defendant with knowledge that the cashier was paying his debt with the banker's money. Then the facts are, that the defendant having a debt against Cross, received from him payment in money which the defendant believed to be the money of Cross, and that the cheque was obtained from the defendant by a fraud committed by the agent of the plaintiff. Under these circumstances, I am of opinion the plaintiff can neither follow the money, nor recover against the defendant in respect of the cheque.

CHANNELL, B.-I also think that our judgment ought to be for the respondent. We have the written finding of the jury, and to whatever interpretation it may be open, it is not competent to the appellant to contend that it is against evidence. The first point which has been raised by Mr. Gray is, whether the direction of the Judge, in leaving to the jury the question whether the 407. was paid to the defendant as a loan from the bank, or was a payment from Cross on his private account, was correct. I think that

was the proper question to leave, and that no objection can be raised on that ground. Then taking the direction as right, what was the effect of the finding? The jury say, "We are of opinion that Green received the 407. from Cross believing it to be on account of payment of a larger

1862.

FOSTER

v.

GREEN.

1862.

FOSTER

V.

GREEN.

sum of money owing from Cross to Green, and that he signed the cheque believing it to be a receipt for the 407.” This negatives the supposition that the money was received as a loan from the bank, and affirms that it was in payment of Cross's debt.

Then is there any reason for ordering the judgment to be entered for the appellant on the ground, that the finding shews a state of circumstances which entitles the plaintiff to recover the money. I was at first inclined to think that the case fell within the authority of Young v. Grote ; and that it might be said that, however innocent the defendant may have been of any negligence (for being an illiterate man he merely signed a document which he was unable to read, upon the representation of the person from whom he was receiving payment that it was a receipt), yet he had enabled Cross to put the cheque into the banker's drawer, and by this means to conceal from him the misapplication of the money. But having regard to all the facts, and taking into consideration that Cross was the manager of the bank, and that he took advantage of the defendant's inability to read as a means to commit the fraud, I think the banker is not in the position of an entirely innocent third party; that Young v. Grote, therefore, does not apply, and that our judgment ought to be for the respondent.

WILDE, B.-I am of the same opinion. The first point was, that there is no distinction between money and any other chattel in respect of the ability of the owner to follow it in the hands of a third person, where it has been taken dishonestly out of the owner's possession. There is no case supporting such a contention, and it is opposed to the characteristic peculiarity of money, which distinguishes it from other chattels, namely, that it is the highest degree of currency.

It was contended, secondly, that the plaintiff was entitled

to recover because the case was one in which a fraud had been committed by an intermediate person, by which one of two innocent persons must suffer, and that one of these persons had by his negligence afforded the opportunity of committing the fraud, and therefore that the loss ought to fall upon him. No doubt can be entertained of the soundness of the principle upon which Young v. Grote proceeded; but the present case does not fall within it, for having regard to the position in life of the defendant, and his inability to read, there was no culpable negligence in his signing a document represented to be a receipt. Further, the intermediate person by whom the fraud was committed was the plaintiff's own agent, and I should doubt whether this fact would not counterbalance negligence on the part of the defendant, if such had been proved.

The third point urged by Mr. Gray was that, the defendant having signed the cheque, the banker is in the same position with relation to it, as the bonâ fide holder of a bill of exchange for which he has given value is in with relation to the bill; and that it is not competent to the defendant, as against him, to set up fraud. There is, however, this difference; the cheque has never, as would be the case with a bill, been passed into the hands of a third person. The plaintiff seeks to fix the defendant with liability in respect of one transaction, and upon facts which occurred at the same time, and by which his agent fraudulently carried out his design. The plaintiff's claim is in respect of that transaction, and that alone. He cannot at the same time adopt that transaction, and disavow the fraud of his agent, by means of which alone it was effected.

Appeal dismissed (a).

(a) Reported by W. Marshall, Esq.

1862.

FOSTER

v.

GREEN.

1862.

Feb. 5.

A plea of nul

tiel record to

an action upon the judgment of a colonial

Court is bad.

PHILPOTT v. ADAMS.

THE declaration alleged that the plaintiff, to wit, at the Supreme Court of the Colony of Victoria, and within the jurisdiction of the said Court, heretofore, to wit, on the 19th day of December, A.D. 1860, by the judgment of the said Court, recovered against the said defendant the sum of 7872 15s. 5d., and also 61. 13s. for his costs, making together the sum of 7941. 8s. 5d., whereof the defendant was convicted, as by the record and proceedings thereof remaining in the said Supreme Court of the said Colony of Victoria fully appears: and that the plaintiff had not obtained any execution or satisfaction of the said judgment.

Plea. That there is no such record in the said Court as in the declaration alleged.

Demurrer and joinder therein.

G. Evans, for the plaintiff.-The plea is bad. A plea of nul tiel record is not applicable to a declaration on a foreign judgment. In Walker v. Witter (a), where the action was on a judgment of the Supreme Court of Jamaica and the defendant pleaded nul tiel record, the Court held that the plea was bad. Lord Mansfield there said: "The question was brought to a narrow point, for it was admitted on the part of the defendant that indebitatus assumpsit would have lain, and on the part of the plaintiffs, that the judgment was only primâ facie evidence of the debt. That being so, the judgment was not a specialty, but the debt only a simple contract debt, for assumpsit will not lie on a specialty.” And Buller, J., added, "As to the point that the judgment is not a record, and that the defendant must have judgment on

(a) 1 Doug. 1.

the plea of nul tiel record, there is no foundation for it, because it is stated to be a judgment of a Court in Jamaica. As such, it is to be tried by the country (as it might have been in this case on the nil debet,) and not by the Court. The prout patet per recordum in the declaration is absurd, and may be rejected, and the plea of nul tiel record is a mere nullity."

C. G. Merewether, for the defendant.-A judgment of the Supreme Court of Victoria is the judgment of a Court which is created a Court of record by act of parliament, 9 Geo. 4, c. 83. It is not, therefore, a foreign Court, and the plea of nul tiel record applies. [Wilde, B.-In The Bank of Australasia v. Nias (a), the judgment of the Court of Queen's Bench proceeded entirely on the ground that the judgment of the Supreme Court of New South Wales, upon which the action was brought, was the judgment of a foreign Court. Channell, B.-In arguing that case, I endeavoured to draw a distinction between a foreign possession acquired by conquest, and a settlement of colonists, but Lord Campbell said that made no difference.] It is no objection to the plea that the issue must be proved by an examined copy, and not by the production of the record itself. In Collins v. Mathew (b) debt was brought upon a judgment recovered in Ireland. The defendant pleaded nul tiel record, and concluded with a verification. The Court held that the plea ought to have concluded to the country, "for though the Irish judgment be a record, yet being only proveable by an examined copy on oath, the verity of the evidence could only be tried by a jury, and not by the Court, and, therefore, the conclusion should have been to the country."-Secondly, the plea is an informal traverse of the existence of the judgment alleged to have been recovered, but it is not bad on (a) 16 Q. B. 717. (b) 5 East, 473.

1862.

PHILPOTT

v.

ADAMS.

VOL. VII.-N. S.

M M M

EXCH,