that he was for a justifiable cause removed from the command of the ship, and so earned no wages. The jury having found, upon a question left to them by the learned judge, that there was no precedent authority in Cheetham to remove the master from the command of the vessel, it is not competent to the defendants now to insist that there was. [CROWDER, J.-The question is, whether the evidence warranted what the learned judge laid down as law. He was quite justified in causing the verdict to be entered according to his own opinion of the construction of the authority.] The jury were fully warranted in the conclusion they came to, that *Cheetham had not authority to dismiss the captain. The office of the trading-master is well known in the [*460 African trade. He is the agent of the owners for the purposes of trade and barter; but he has no authority over the captain and crew. [CROWDER, J.-It was proved that many instances had occurred of such agents removing masters.] Assuming Cheetham to have had no precedent authority from the defendants, their subsequent ratification of what was done by him could not render it valid. The reasoning of Lord Ellenborough in Right d. Fisher v. Cuthell, 5 East 491, is equally applicable here.

CROWDER, J.-I am of opinion that this rule must be discharged. It appears to have been moved on the ground of misdirection; the alleged misdirection being, that the learned judge laid it down that the subsequent ratification by the defendant of the act of Cheetham in dismissing the plaintiff was equivalent to a precedent authority. But it appears from the notes of my Brother Cresswell that he told the jury that there was a precedent authority, and that Cheetham had acted upon that. I am of opinion that he was right. Cheetham stated that he had acted under a power of attorney, which was lost. He gave evidence of its contents. He stated that it gave him the entire charge of the property of the defendants, and that he was to look after their interests, and to act as their representative. Upon that the learned judge said, that, assuming the power of attorney given to Cheetham to have been as alleged, he ruled that Cheetham had authority to dismiss the captain. It seems to me that the learned judge was quite right in this. If the instrument had been before him, it would have been for the court to decide upon its meaning. It must be taken that the power of attorney did contain what Cheetham said it *contained: and the learned

It

judge decided upon that assumption. He was requested to leave [*461 it to the jury. He said he was of opinion it was not for the jury, but, as he was pressed to do so, he would leave it to them. He, however, directed the verdict to be entered upon his own view of the matter. seems to me, therefore, that the case is to be determined upon the assumption that there was a precedent authority for what was done by Cheetham; and therefore it is unnecessary to consider the other point, viz., whether this is a case in which there could have been a subsequent ratification. I am far from saying that it is not: it is enough to say that it is unnecessary to decide the point; because, if Cheetham had a precedent authority to act as owner, he had authority to dismiss the captain. On the 26th of December, 1856, therefore, the plaintiff was no longer captain: and, whether the owners had or had not a justification for his summary dismissal, still he cannot sue for wages as captain after that day. If the dismissal was wrongful, the plaintiff may sue the

owners for wrongfully dismissing him: if rightful, he is without remedy, nor ought he to have any. Upon this ground, therefore, it seems to me that this rule ought to be discharged. Looking at the notes of the learned judge, I do not perceive that any question was made as to the veracity of Cheetham: nor does it appear that there was any evidence offered to contradict him, or in any way to shake his credit.

WILLES, J.-I am entirely of the same opinion. The circumstance of the jury having pronounced an opinion upon it is quite immaterial when you come to look at what the question really was, viz., whether or not certain terms in a power of attorney gave Cheetham, the attorney, authority to remove the captain from the command of the ship. The terms which that *instrument were stated to contain were obvi*462] ously large enough for that purpose. He stated that he was the representative of the owners, their plenipotentiary in the African trade. Seeing the distance the ship was from home, I do not think it a very far-fetched conclusion that Cheetham should have the extensive powers he professed to have. It turned out that the document which conferred that authority upon him was lost. But the fact of a document being lost, does not make the construction of its contents a question for the jury. The true rule is laid down in Neilson v. Harford, 8 M. & W. 806. The construction of all written documents is for the court, and not for the jury. It was for the judge, therefore, to say whether or not there was such authority. He thought there was. The jury thought there was not. That, however, was quite immaterial, the question being solely for the court. The learned judge did not leave it to the jury to say whether or not they disbelieved Cheetham; nor was he asked to do so: and the objection now is, not that that was not left to the jury, but that, the jury having come to the conclusion that Cheetham had no authority, we ought to come to the same conclusion.

BYLES, J.-I fully agree with what has fallen from my learned Brothers, and for the same reasons; and therefore I deem it unnecessary to add anything. Rule discharged.

diana 597; Illinois Central Railroad Co., 17 Illinois 389; Emery v. Owings, 6 Gill 191; Kidd v. Cromwell, 17 Alabama 648.

The construction of written instruments is in all cases matter of law for the Court: Levy v. Gadsly, 3 Cranch 180; Welsh v. Dusar, 3 Binney 337; Fowle v. Bigelow, 10 Massachusetts 384; Woodman v. Chesley, 39 Maine ascertained: Fosterman v. Parker, 10 45; Drew v. Fowle, 10 Foster 531; Iredell 477; Rhodes v. Chesson, BusHarris v. Doe, 4 Blackford 369; Lev- bee, N. C. 336.

iston v. Junction Railroad Co., 7 In

ments, where

And so of verbal agreetheir terms are clearly

END OF EASTER TERM.

IN THE EXCHEQUER CHAMBER.

EASTER VACATION, 21 VICTORIA.

SIMMONS v. TAYLOR, Public Officer of THE LONDON JOINT STOCK BANK. May 10.

Held, by the Exchequer Chamber,-affirming the judgment of the Court of Common Pleas,that the statute 19 & 20 Vict. c. 25, which makes a "crossed check" payable only to or through a banker, applies to the state of the instrument at the time of its presentment: and therefore that the banker is justified in paying it otherwise than to or through another banker, if, when presented, it does not bear any crossing on the face of it.

Held also, that the crossing, though made by the drawer himself, forms no part of the check itself, and consequently that its erasure does not amount to a forgery.

THIS was an appeal against a decision of the Court of Common Pleas, in which that court held that the statute 19 & 20 Vict. c. 25, which makes a "crossed check" payable only to or through a banker, applies to the state of the instrument at the time of its presentment, and therefore that the banker upon whom a check is drawn is justified in paying it otherwise than through another banker, if, when presented, it does not bear any crossing on the face of it; and that the crossing forms no part of the check itself, and consequently its erasure does not amount to a forgery: vide 2 C. B. N. S. 528.

The short facts were these:-The plaintiff drew a check upon the London Joint Stock Bank, drawing across the face of it two parallel lines, and writing the words "& Co." at the end of the intervening space, and enclosed the draft so crossed in an envelope addressed to a third person. The check by some means fell into the hands of a stranger, who erased the crossing in such a manner, that, when presented at the bank, it was received and paid as an uncrossed check. No negligence was imputed to the bank: but the simple question was, whether, it having once been a "crossed check," the bankers were justified in paying it otherwise than to or through a banker.

The case was argued in the Exchequer Chamber *before Wightman, J., Erle, J., Crompton, J., Bramwell, B., Watson, B., Channell, B.

and

[*464

Lush, Q. C. (with whom was C. Addison), for the appellant.--The effect of crossing a check was thus described by Parke, B., in Bellamy v. Majoribanks, 7 Exch. 389, 400,†-"The crossing a check cannot operate as an endorsement to the banker whose name is used, because it was not written with any intent to transfer the property in the check to him, and it wants the essential part of an endorsement, the delivery of the instrument to the endorsee. And we think it cannot well be supposed that the usage is to be considered as equivalent to a direction by the holder or drawer to the drawee not to pay to the bearer, but to a particular person only; for, then the check would be altered in a manner which would take it out of the exemption of the stamp-act, 55 G. 3, c. 184, Sched. part 1, which applies to checks payable to bearer only; and the bankers to whom it was addressed would not be bound to pay to the person named. We are therefore of opinion that a crossing the check with the name of a banker cannot have the effect of restricting its negotiability to such banker alone. To hold it to have this effect would be to render the instrument no longer a check." That case was followed

and confirmed by Carlon v. Ireland, 5 Ellis & B. 765. Such being the state of the law, the statute 19 & 20 Vict. c. 25 passes with the avowed object of amending it. It recites that "doubts have arisen as to the obligations of bankers with respect to cross-written drafts, and that it would conduce to the ease of commerce, the security of property, and the prevention of crime, if drawers or holders of drafts on bankers, payable to bearer or to order on demand, were enabled effectually to direct the payment of the same to be made only to or through some *banker:" and it then proceeds to enact, that, "in every case *465] where a draft on any banker made payable to bearer or to order on demand, bears on its face an addition in written or stamped letters, of the name of any banker, or of the words and company,' in full or abbreviated, either of such additions shall have the force of a direction to the bankers upon whom such draft is made, that the same is to be paid only to or through some banker, and the same shall be payable only to or through some banker." That must necessarily have the effect of controlling the operation and the negotiability of the draft. It is no longer payable to any bearer, but only to a bearer who is a banker. Payment to any other is a payment unauthorized by the drawer of the check. The obliteration of the words " & Co.," which formed an essential part of the instrument, is a forgery. [CROMPTON, J.-Then, the payment could not be made even "to or through a banker."] If the drawee pays the draft to or through a banker, he pursues the authority. [CROMPTON, J.-Not if it is a forgery. BRAMWELL, B.-The framer of the act was evidently ignorant of the law, and equally ignorant of the effect of the proposed alteration. Suppose I tell my banker that I never cross checks, and some one to whom I give a check chooses to write a banker's name across it,-what is to be the effect of that? Can the crossing thus put on it form part of the instrument? Surely, it can be no more than a caution to the banker.] It was that before the late act. [BRAMWELL, B.-Then it is a more emphatic caution now.] It is submitted that it is impossible to give any operation to the words of the statute, without holding that the crossing has the effect of controlling the word "bearer." The drawer knows that it is customary to cross checks when he gives a check, therefore, he gives the bearer authority to cross it. *466] *The question is, did the bankers pay the money in pursuance of the authority of the drawer: Robarts v. Tucker, 16 Q. B. 560 (E. C. L. R. vol. 71). [CROMPTON, J.-How is the crossing to operate as a direction, unless the instrument bears it on the face of it at the time of presentment?] The erasure is a material alteration of the document, which amounts to a forgery. [BRAMWELL, B.-How can that be said to be a forgery of the instrument which restores it to the state in which it was originally issued? WIGHTMAN, J.-Suppose the endorsement were struck out by a bonâ fide holder,-what would be the consequence, if the banker refused to pay the draft? Or, suppose the name of a particular banker were struck out, leaving the check still a "crossed check?"] That might not be a material alteration. Here, the direction has been altogether disregarded: the payment was made to a person who was not a banker.

Bovill, Q. C. (with whom was Archibald), for the respondent, was not called upon.

WIGHTMAN, J.-We are all agreed that the judgment of the Court of

Common Pleas must be affirmed. The case turns upon the construction of the statute 19 & 20 Vict. c. 25, s. 1, the terms of which are sufficiently clear. The act professes to be "an act to amend the law relating to drafts on bankers." It begins with a recital that doubts have arisen as to the obligations of bankers with respect to cross-written drafts, and that it would conduce to the ease of commerce, the security of property, and the prevention of crime, if drawers or holders of drafts on bankers, payable to bearer or to order on demand, were enabled effectually to direct the payment of the same to be made only to or through some banker:" and it then proceeds to enact, that, "in every case where a draft on any banker, made *payable to bearer or to order on [*467 demand, bears across its face an addition in written or stamped letters, of the name of any banker, or of the words and company,' in full or abbreviated, either of such additions shall have the force of a direction to the bankers upon whom such draft is made, that the same is to be paid only to or through some banker, and the same shall be payable only to or through some banker." That clearly only gives the crossing the effect of a direction to the banker upon whom the draft is made, to pay it only to or through another banker, if it appears on the face of the instrument at the time of its presentment. This must be so from the very terms of the enactment; for, unless the draft bears the crossing on its face at the time of presentment, it cannot operate as a direction to the person to whom it is presented. Whether that direction is put on the instrument by the drawer himself or by any other person, if it bears the crossing on its face at the time of presentment, the banker who is to pay it can only do so to or through the banker named or to or through some other banker. If he sees the direction, he is bound to obey it. Here, it appears that the check, when presented for payment, had no direction at all upon the face of it, and therefore it was not a draft or order within the contemplation of the act. I entirely agree with the Court of Common Pleas in thinking that the crossing is a mere direction to the banker, and must, to be of any avail, appear upon the face of the draft when presented; and that the erasure of it would not constitute a forgery.

BRAMWELL, B.-Concurring, as I do entirely, in what has fallen from my Brother Wightman, I cannot refrain from remarking that this piece of legislation is an abortive attempt to perform the impossible feat of rendering a draft which upon the face of it purports to be payable to the bearer not payable to him. It is a thing which cannot be done: the utmost that can be done, is, that which the law had already [*468 done before, viz., to make the crossing of the check or draft operate as a caution to the banker to use a greater degree of vigilance. (a) It may be that the statute has turned that which before was a mere caution to the banker, into an absolute direction to him not to pay the draft otherwise than to or through another banker, when the direction is put on by the drawer of the check himself. But, to hold that the direction forms part of the instrument itself, would be to attempt to perform the impossible feat I before alluded to, or to do that which would be equally impossible and inconsistent, viz., to say that the crossing should not affect the rights of the holder, and yet that the banker would not be (a) Quære, what constitutes vigilance in a banker, who has no option to exercise as to whether he will or will not pay the draft when presented?