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Decisions of the Superior Courts of New South Wales, 1788-1899

Gordon v. Boucher [1841] NSWSupC 58

foreign attachment

Supreme Court of New South Wales

March 1841

Source: Sydney Herald, 2 March 1841

FOREIGN ATTACHMENTS. Gordon v. Boucher. This was a foreign attachment in which Mr. Foster moved, that the damages be increased which were laid in the summons at £2000, but which had been inserted in the declaration at £1100, leave to amend given. Mr.a'Beckett made a similar application in the next case, which was also granted. Mr. Foster then opened the case, he said it was an action under the Foreign Attachment act against the defendant, as the agent of a company carrying on business under the name of the British and Australasian Bank, for the recover of a bill of exchange originally drawn for £1000 which, with principal, interest and re-exchange at £25 per cent, now amounts to £1266 1s. 9d. and called the plaintiff who proved that he bought the bill of the defendant as the agent of the said company. Mr. Windeyer objected that under the new act at the present stage of the case the plaintiff could not be examined, as the old act which gave that power had been repealed, Mr. Foster said the plaintiff had only been put forward for extra caution as they could make out their case without him.

            Mr. Smith proved that he was the payee of the bill, and at the time when the bill was drawn, Mr. Boucher was acting as the agent of the bank here. Mr. Windeyer objected to Mr. Smith as a witness on the part of the bank; he did not appear for Boucher who never had any authority to act as the agent of the bank. Mr. A'Beckett thought Mr. Windeyer's objection was taken prematurely, as they were at present merely proceeding against Charles Boucher. Mr. Smith knew that Mr. Boucher had been acting as agent for the bank, having seen a bill drawn on him as such by the directors in London. William Henry McKenzie, Esq., manager of the Bank of Australia deposed - that when attached about the 12th of February he had funds belonging to the British and Australasian banks in his hands, to the amount of £5,850. Cross-examined - The agent of that bank was Mr. Thomas Walker, who had paid that sum into the credit of the bank. Mr. A'Beckett called on His Honor to attach the sum. Mr. Windeyer objected to it on the ground that it was against the second clause of the Act which was made for the protection of the real agents of such Companies as the bank for which he appeared as by the clause referred to they could only attach such sums as the defendant was beneficially interested in, and not monies or other property in which other parties are beneficially interested, but in which the defendant had no beneficial interest. The 17th clause at first sight seemed to favor the cause of the plaintiff; but farther on it was evident that it was consonant with the view he had taken of the 2nd clause. Had Mr. Walker the real agent of the bank, been summoned, he would have come in to defend. He also thought, as the whole Act was directly opposed to the principles of common law, that the Court would interpret it strictly. He also submitted that the only person who could sue on the bond was the defendant Boucher. Mr. McKenzie's cross-examination was resumed: the money was not paid in by Boucher; he did not know that he had any interest in it; he would not have cashed Boucher's cheques on the Bank without Mr. Walker's authority. His Honor thought the plaintiff was bound to show that Boucher was the agent, or had a beneficial interest in the money. Mr. Foster submitted that having proved him the agent of the Bank was all that was necessary, and the door was still open for the Bank to come forward and try the question as to whether Boucher was the agent or not, which they could do under the 25th clause of the Act; all the bank had to do was to demand an issue. His Honor thought it might now be a question for a jury to try whether Boucher had been the agent, or had been held out by the bank as their agent, as in either case it was not to be tolerated that however dishonest Boucher had been, that he, while acting as the authorised agent of the bank, the honest traders of this country were to be swindled out of their money and property, and the bank proprietors remain scathless. After a long conversation it was agreed to try the matter during the present term by a feigned issue. The assessors, under the direction of His Honor, returned a verdict for the sum of £1,266 1s. 9d. The judgment against the garnishees to abidepro forma the trial of that issue.

Burton J., 11 June 1841

Source: Sydney Herald, 12 June 1841


Before Mr. JUSTICE BURTON and a Special Jury.

GORDON V. BOUCHER, as Agent of the British

and Australasian Bank.

This was an issue directed to be tried under the Foreign Attachment Act, to decide whether Mr. Charles Boucher was authorised to draw in Sydney, upon the British and Australasian Bank.

            The circumstances were as follows: - Mr. C. Boucher exhibited in Sydney a letter signed Frederick Boucher, Managing Director, appointing him Agent for the British and Australasian Bank at Adelaide, and authorising him to draw bills to the amount of £10,000. Mr. George Smythe, a Sydney merchant, who was acquainted with several of the Directors of the Bank in London, endorsed a bill for £1,000, for which the plaintiff gave cash at three per cent. premium, and sent it to England, where it was dishonored. Under these circumstances the plaintiff brought an action against Charles Boucher, who was out of the Colony, and attached certain funds which were in the hands of Messrs. Walker and Co., and the Bank of Australia. Mr. Walker denied that Mr. C. Boucher was Agent of the Bank, and the Court directed the issue to be tried.

            The [above facts having been proved,] and also that in April last Mr. C. Boucher advertised in the Sydney papers that he had authority to draw to the amount of £10,000.

            Mr. WINDEYER addressed the jury for the defendants; he said that he represented the Bank, and although it was probable that the affairs of the Bank might might have got into the hands of two fools or two knaves, it was his duty to protect the property of the innocent parties, the shareholders of the Bank. The Agents of the Bank in Sydney he should be able to prove were Messrs. Walker and Co., and there was no other agent. Mr. C. Boucher, he believed, was appointed agent at Adelaide, and at Adelaide only he had authority to draw, and he particularly drew the attention of the jury to the great mischief that might arise from the improper conduct of Boucher, for if they took the money out of Walker's hands, to meet these drafts they might leave them without funds to meet drafts properly drawn.

            Mr. Archibald Walker proved that his brother was appointed agent for the bank in 1839, considerable quantities of goods having been sent out and bills drawn. When Boucher's advertisement appeared in the appeared in the papers he cautioned such persons as spoke to him against receiving his bills.

            Mr. Mackenzie proved that the funds to the credit of the British and Australasian Bank, now deposited in the Bank of Australia, amounted to £4,266, of which £2,645 had been attached by different parties.

            HIS HONOR said, the question for the determination of the Jury was, whether Charles Boucher had authority to draw the Bill. If a number of persons associate together to form a Bank, and give the management of it to one of themselves, they must be answerable for his acts; so that if Charles Boucher had authority from Frederick Boucher it was conclusive. It was hardly disputed that Charles Boucher was agent at Adelaide; but he question was, whether he had any authority to draw generally.

            The Jury, without retiring from the box, returned a verdict for the plaintiff.

Published by the Division of Law, Macquarie University