Whitmore and Another v Wilks the Elder
| Jurisdiction | England & Wales |
| Judgment Date | 24 October 1828 |
| Date | 24 October 1828 |
| Court | High Court |
English Reports Citation: 172 E.R. 458
IN THE COURTS OF KING'S BENCH AND COMMON PLEAS
S. C. Mood. & M. 214 Referred to, M'Gahey v. Alston, 1836, 2 M & W. 206; London Joint Stock Bank v. MacMillan, [1918] A C 777
458 WHITMORE V. WILKS 3 CAR. & P. 385 Oct. 24th, 1828. whitmore and another v. wilks the elder. (Tf trustees under a Paving Act sign checks drawn by the clerk of the person who is clerk to the trust, those checks being drawn so as to be alterable from small sums to larger, the trustees cannot charge the clerk to the trust for negligence if these are altered, as it was their duty not to sign hecks drawn in such a form ; nor can they charge him for misconduct of his clerk, which would have been prevented if the trustees had done their own duty m the way in which the clerk to the trust had fair reason to expect they would. A count charging a clerk with negligence in suffering his employers to be defrauded of sums of money, without specifying any in particular, is bad. If, by a private Act of Parliament, forty-eight trustees are appointed (not being a corporation), of whom sixteen are to go out annually by rotation , and, by the same Act, the trustees are to sue and be sued in the names of their treasurers for the time being ; an action for money had and received may be maintained in the names of the present treasurers, although both they and the present trustees came into office since the time when the money was received by the defendant to the use of the trust.) [S. C. Mood. & M. 214 Referred to, M'Gahey v. Ahton, 1836, 2 M & W. 206 ; London Joint Stock Bank v. MacM-iUan, [1918] A 0 777 1 Assumpsit by the plaintiffs, as treasurers to the trustees for lighting;, watching, and paving the parish of St Luke, Middlesex. The first count of the declaration stated, that, in consideration that the trustees would appoint the defendant to be clerk to the said trustees, he undertook to perform his duty as clerk ; that they did appoint him, and that it was his duty to prepare checks to be signed by the trustees, or any three of them, on one Thomas Ck bb , that fifty checks were drawn by the defendant " in a careless, improper, and unbusiness-like manner " ; and that the said checks were altered (after they had been signed) to larger sums, without the consent of the trustees ; that they were presented to Messrs. Masterman, who, by reason of the careless, improper, and negligent manner iti which the same were drawn, and not being able to detect the alterations, paid them. Second count, the like on an executed consideration. Third, that the defendant had been appointed clerk, and promised to perform his duty as such , and that checks were drawn and paid, and returned by the bankers, and that it was his duty to deliver them over to the trustees within a reasonable time, but that he did not do so Fourth, for neglecting to give notice of the defaults of a collector (a). [365] Fifth, that it was his duty to make out perfect accounts of payments made on behalf of the trustees ; but that he did not. Sixth, that it was his duty to investigate the accounts, and to take care that no improper ones were allowed ; but that he suffered improper payments to be made. Seventh, that he undertook to use reasonable diligence as clerk, and that he " permitted the trustees to be cheated and defrauded of divers sums of money." Eighth, money had and received. Ninth, account stated Plea- General issue The caae on the part of the plaintiffs was as follows ò-By a private...
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