Periculum between Mandant and Mandatary. - Postmaster, whether answerable for Money sent by Post.
Henry Swinton v. William Beveridge, Solicitor of the General Post-Office
Date: 21 June 1799 Case No. No 40.
A letter-carrier of the General Post-Office having abstracted some banknotes from a letter, and put two of them into circulation before he was detected, the solicitor of the Post-Office paid value for them to the holders, and lodged them with the clerk of Justiciary as evidence against the litter-carrier. After his conviction, the original owner of the notes was found to have no claim for recovery of them.
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James Stewart, one of the letter-carriers of the General Post-Office at Edinburgh, abstracted from a letter five notes of the Falkirk Banking Company, for L.20 each, which had been transmitted by Henry Swinton of Grangemouth, for Thomas Gladston and Son of Leith.
Stewart, before being detected, had put two of the notes into circulation, and one of them had come into possession of Sir William Forbes and Company, and the other of Messrs Kinnears, bankers in Edinburgh.
William Beveridge, solicitor of the Post Office, afterwards received, the notes from them, on paying their full value, and lodged them with the Clerk of Justiciary, as evidence against Stewart.
After his conviction, Messrs Swinton and Beveridge presented petitions to the Court of Justiciaty, each claiming the notes.
The Court refused both petitions, but ‘granted warrant to, and ordained the clerk of Court to deliver up the money lodged with him to the person who shall be found to have right thereto, upon his receipt.’
A multiplepoinding was accordingly raised in the Court of Session, in which Messrs Swinton and Beveridge were called as defenders. The former
Pleaded; By a salutary regulation of the law of Scotland, the expense of criminal prosecutions, at the instance of his Majesty's Advocate, is defrayed by the public.
In offences against property, one branch of this expense, and which may greatly exceed the value of the subject, frequently arises from recovering the property abstracted, in order that it may be used as evidence against the culprit. This, however, cannot effect the right of the person defrauded, to recover his property after conviction, otherwise, contrary to the rule of law, he would be indirectly subjected to part of the expense of the prosecution.
It is unnecessary to inquire how far bank-notes, in possession of a third party, acquiring them bona fide, are subject to a vitium reale at the instance of a former owner, from whom they have been fraudulently abstracted; (See Ersk. b. 3. t. 1. § 10.; Stair, b. 1. t. 7. § 1. 11.); because here the only competition is between him and the public, the latter having recovered the abstracted property to be evidence against the offender; and the former insisting, that no part of the expense of the conviction shall be defrayed by him.
Answered; It is completely fixed, from views of commercial expediency, that an onerous holder of money, bank notes, or bills of exchange, is liable to no extrinsic objection; Bankt. v. 1. p. 218.; 24th February 1749, Crawfurd against Royal Bank, No 2. p. 875; Bur. Reports, v. 1. p. 452, Miller against Rare; Douglas's Reports, p. 611, Peacock against Rodes; and Mr Swinton clearly would have had no claim against the bankers, from whom the notes were purchased. No right can arise to him from the purchase, which took place bona fide, and from which he sustained no prejudice.
The public is not responsible for the safe transmission of letters, (see preceding No.), or obliged to purchase stolen goods, and restore them to their former owner.
If the present claim had been suspected, instead of purchasing the notes, the object of the prosecution would have been obtained by a warrant on the holders for production of them; and there could have been no doubt of their right to recover them after the trial. The solicitor of the Post-Office is precisely in their place.
The Lord Ordinary reported the cause on memorials.
The Court unanimously preferred Mr Beveridge on the grounds stated for him.
Lord Ordinary, Methven.For Swinton, Ar. Campbell.Alt. Boyle.Clerk, Home.
Fac. Col. No 131. p. 300.
