1829.

Cocks

v.

MASTERMAN.

For the plaintiffs it was contended, that the general principle of law, that money paid under mistake of fact might be recovered back, must prevail in this case, unless there was such negligence on the part of the plaintiffs as to prejudice the rights of third parties, and such rights had in fact intervened. Here there was certainly no culpable negligence. The bill was paid in the regular course of business; and it would be hard indeed if bankers were to be required to detect, at the first glance, the spuriousness of every instrument presented to them. If ordinary care were exercised, it was all which could reasonably be required. In Smith v. Mercer (a), indeed, it was suggested that it was the duty of bankers to be acquainted with the hand-writing of their customers; but there were other grounds besides this sufficient to warrant the judgment of the Court in that case; and indeed the case itself was somewhat questioned by the Court in Wilkinson v. Johnson. (b) But even were this otherwise, such a rule could not apply in this case, because no prejudice had been sustained by third parties in consequence of the payment of the bill, and the subsequent claim of repayment. Timely notice was given to all who had rights upon the bill. If the bill had been refused payment in the first instance, no earlier notice could have been required. Upon this point, the case of Wilkinson v. Johnson (c) was decisive, where the same course having been pursued on the discovery of the forgery, the Court held that the money paid might be recovered back.

For the defendants it was answered, that there was negligence on the part of the plaintiffs sufficient to defeat their claim; that every banker was bound to

(a) 6 Taunt. 76.

(b) 3 B. & C. 437. (c) Ibid. 428.

1829.

Cocks

V.

know the hand-writing of his customer, and it was at his peril that he gave credit to a signature not in his hand-writing, Smith v. Mercer; secondly, that in this case there might be prejudice to a third party from MASTERMAN, undoing the act of the plaintiffs. The discovery was not made till the following day; so that the holder, not having notice until that time, would be deprived, if the bill were now to be treated as having been refused payment when presented, of one whole day, during which time he might have taken measures to protect himself. In both these respects the case was distinguishable from Wilkinson v. Johnson. In that case there was no reason why the plaintiff in particular should be acquainted with the hand-writing of the parties whose names had been forged, and there was at least equal negligence on the part of the holder of the bill. Moreover, the notice there was given on the same day, so that no injury could possibly have been sustained by the holder.

The Court having taken time to consider, the judgment was delivered on the following day by

BAYLEY J., who, after stating the facts, proceeded thus: It is a general rule, that the party called upon to pay a bill of exchange must satisfy himself of the genuineness of the instrument at the time when he pays it. An acceptance payable at a banker's is properly a cheque, and the banker ought not to pay it without taking pains to ascertain its genuineness. But it was contended in the argument, that supposing the rule to be so, the effect of it in this case was altered by the notice given to the parties interested in the bill; and the case of Wilkinson v. Johnson was relied upon as an authority for that position. There are several material distinctions between that case and the present. We say nothing as to the effect of notice given on the same day to the party to whom payment was made,

A A

1829.

Cocks

v.

MASTERMAN.

though we have an opinion upon that point; but we are all of opinion that the holder is entitled, on the day when the bill becomes due, to know whether it is dishonoured or not. If he be suffered to remain in ignorance during the whole of that day, notice afterwards comes too late. He might, if he chose, take steps on that day, and you cannot by laches on your part deprive him of any right which diligence on his would have given him.

Postea to the defendants.

A new ship

made her first voyage in bal

lisle to Lon

PILOT ACT.

In the KING'S BENCH.-Sittings in Banc after Easter Term.

STEPHENSON, Administrator of STEPHENSON deceased, v. DIXON and Others.

THIS was an action on the case, brought by the plaintiff as representative of Elizabeth Stephenson deceased, last from Car- against the defendants as owners of the ship Cumberland, for an injury done, in the lifetime of the intestate, to a vessel of her's, called the British Queen, by the Cumberland running foul of her. At the trial before Hullock B., Lancashire Spring assizes 1828, the learned of being em- Judge thought the defendants were exempted from ployed as a

don, for the purpose of being fitted with steamengines, &c.,

up

with the view,

steam-vessel in the coasting trade between Carlisle and Liverpool. While proceeding up the Thames, having on board a pilot duly licensed and qualified under the pilot act (6 G. 4. c. 125.), she ran foul of and damaged another vessel. Having been fitted up, she took down a cargo to Liverpool, and was afterwards regularly employed in the coasting trade between Carlisle and Liverpool: Held, that she was not, at the time of the injury, a vessel " employed in the regular coasting trade of this kingdom," and therefore exempted by the fifty-ninth section of the pilot act from the obligation of taking on board a licensed pilot; and that, therefore, her owners were not responsible for such injury, since a licensed pilot was on board.

liability by the provisions of the pilot act, 6 G. 4. c. 125., and directed a nonsuit, subject to the opinion of the Court upon a case in substance as follows:

On the 8th December 1826, the British Queen, of which the intestate Elizabeth Stephenson was then sole owner, was lying at anchor in a proper situation in the river Thames, between Gravesend and London; when the Cumberland, of above sixty tons burthen, of which the defendants were then the owners, through the neglect or incapacity of the pilot acting in charge of her, ran foul of and did damage to the British Queen to the amount of 1361. The pilot was duly licensed under the 6 G. 4. c. 125., and duly qualified by his licence to take charge of vessels of the size of the Cumberland. The Cumberland was then a new vessel, on her first voyage from Carlisle, by Liverpool, to London, for the purpose of being fitted up with steam-engines, and being completed in other respects, with a view of being afterwards employed as a steam-vessel in the coasting trade; in which she was regularly employed between Carlisle and Liverpool from the time of her return from London until the month of January 1828. She sailed from Liverpool to London in ballast, and after she had been there fitted up with steam-engines, a cargo of tallow was taken on board, and she returned to Liverpool with the same captain and crew who sailed with her from Liverpool to London. Neither the captain nor the crew being acquainted with the navigation of the Downs, or of the river Thames, the captain took a pilot on board in the Downs, who navigated the vessel as far as Gravesend, to which place only his licence allowed him to go; and then another pilot was taken on board, who continued to have charge of the vessel at the time when she ran foul of the British Queen.

The questions for the opinion of the Court were, first, Whether the plaintiff, as administrator of Elizabeth

1829.

STEPHENSON

v.

DIXON.

1829.

STEPHENSON

v.

DIXON.

Stephenson, could maintain an action for the damage done to her ship in her lifetime (a); and, secondly, ' Whether the defendants, under the circumstances above mentioned, were by the provisions of the 6 G. 4. c. 125. exonerated from the liability to pay for such damage. If the Court should be of opinion that the action could not be maintained, the nonsuit was to stand; if they should be of the contrary opinion, a verdict was to be entered for the plaintiff, with 1367. damages.

Creswell for the plaintiff. The question in the case is, Whether the owners of this vessel, the Cumberland, were bound by the provisions of the pilot act to take on board a licensed pilot; for if they were not, but the pilot was taken on board voluntarily, they were nevertheless responsible in this action. The second section of the 6 G. 4. c. 125. enacts, that all vessels navigating in the British Channel from the Isle of Wight up to London Bridge (save and except as afterwards provided), shall be conducted and piloted within those limits by pilots to be licensed by the Trinity House Corporation in the manner thereinbefore mentioned. The fifty-fifth section exempts the owners and masters from liability for loss or damage arising from the neglect or incapacity of any licensed pilot acting in charge of a vessel under and in pursuance of any of the provisions of that act, where and so long as he shall be duly qualified to have charge of the vessel. Then, by the fifty-ninth section, certain vessels, among which is " any ship or vessel employed in the regular coasting trade of this kingdom," are exempted from the obligation of taking a licensed pilot on board, so long as they are not navigated by an unlicensed pilot, or by any other person than the ordinary

(a) This point was not argued.