NOTES OF CASES
| DOI | http://doi.org/10.1111/j.1468-2230.1959.tb00521.x |
| Published date | 01 January 1959 |
| Date | 01 January 1959 |
| Author | P. H. Pettit |
JAN.
1959
NOTES
OF
CASES
87
FOLLOWING
THE
MONEY
AT
LAW
AND
IN
EQUITY
THE
greater part of the judgment of Danckwerts
J.
in
G.
L.
Baker,
Ltd.
v.
Medway Building
4
Supplies,
Ltd.,'
is concerned with the
unsuccessful defence raised by the defendant under the Limitation
Act,
1939.
This note is, however, concerned with a different point,
which is of considerable interest, although
it
occupies little space
in the report.
It
seems desirable to begin by giving a brief
account
of
the facts of the case, which, fortunately, were not
complex. The plaintiff company had as its auditor one Titley who
was a chartered accountant and a director of the defendant
company. Titley was entrusted2 by the plaintiff with the sum of
approximately
280,000
which Titley paid into his business account.
Titley fraudulently paid some
26,000
to the defendant by means
of
cheques drawn
on
his business account which,
as
appeared from
the bank statement, were paid out of the moneys entrusted to
Titley by the plaintiff. Titley, who was eventually tried and
sentenced to a term of seven years' imprisonment for his frauds,
had prior to the present action been sued to judgment by the
plaintiff, but the judgment remained entirely unsatisfied and the
plaintiff had never succeeded
in
recovering any part of its moneys
from Titley. The plaintiff now sought to recover from the
defendant the
sums
which the defendant had admittedly received
from Titley.
It
appears clear from the judgment that the defendant would
have succeeded
if
it
had been able to show that
it
had received
the cheques in good faith, and for value, and without notice of the
want of authority. The court held that the defendant took without
notice and for the purpose of the judgment was prepared to
assume that
it
received the money in good faith.
It
was, however,
not permitted to give any evidence
to
show that
it
had given value,
since
no
allegation
to
this effect appeared
on
the
pleading^.^
The
result was that, whatever the merits may have been, the plaintiff
in
fact succeeded by reason of a defect
in
the defendant's pleadings.
Having stated the facts, and the actual decision
on
this point,
I
should perhaps, before discussing the law, confess that
I
write
from
the standpoint of one who doubts whether it is true to say:
''
It
is
no
longer appropriate, however,
to
draw a distinction
between law and equity.""
It
is right
to
observe at once that
Nelson
v.
Larholt,'
from which this proposition is taken, was
1
ri95s1 1
W.L.R.
1216; [i95s] 2
~ii E.R.
532.
2
I
shall assume, as seems probably to be the fact, that Titley was properly
to be regarded as a trustee.
s
An
application by the defendant for leave to amend
so as
to
enable it
to
allege such giving
of
value was refused by the judge. However, the Court
of
Appeal has now allowed an appeal against the refusal of the application to
amend, and a
new
trial has been ordered
([1958]
1
W.L.R.
1216,
at p.
1225;
[1958]
3
All
E.R.
540).
A
Per
Denning
J.
(as he then was),
Nelson
v.
Larholt
[1948]
1
K.B.
339
at
p.
343; [1947]
2
All E.R.
751
at
p.
752.
5
Supra.
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