[Bank of NSW Case - bonds - sureties - fraud - evidence, confession]

Campbell et al. v. Williams, Terry and Howe's Executor
Supreme Court
Field J., 21 September 1821
Source: Sydney Gazette, 22 September 1821[1]

This was an action brought by the late President and Directors of the Bank against their late Cashier and his Sureties, upon their bond for his fidelity. Mr. Williams suffered judgement by default, and Mr. Wylde and Mr. Garling, for the Bank proved written admissions by him, that he had, during his Cashiership, entered many bills and notes in the Bank books as duly paid, which in fact were not so; by which means, for want of notice to the drawers and indorser's, the Bank had lost their rights upon them, the acceptors and [?] being insolvent persons. Mr. Moore and Mr. Norton for the defendants, contended that this admission could not be evident against the two other defendants, and that, except by this admission, it did not appear but what Williams's defalcation was made after he was removed from his situation, when his sureties were no longer liable under the bond.
Mr. Justice Field acknowledged the principle, that confession could not implicate more than the confessor, and wished that separate actions had been brought against the defendants: Williams might then have been called as a witness against his sureties. But the defendants Solicitors did not pretend that they could have drawn a different light upon the case by any cross-examination of William; and it was for the Court to say, whether the evidence of Mr. Bayly, the present Cashier, and Mr. Wills the late Accountant, was not enough to prove this case, without the admissions of Williams. From the former, it appeared that Williams was superseded on the 18th September 1820, for certain irregularities which did not engender a suspicion of his integrity; and was continued at a salary to wind up his accounts till the 31st of December; about which time he handed over to his successor a sealed bag, labelled to contain 2493 £5 and 3306 5s. notes, enough to make good the deficiency that appeared upon his accounts; and from the latter that upon the opening of the bag, in the presence of the Directors on the 26th of January following, it was found to contain only 98 £5 [?] notes, making a deficiency of £12,100 10s. The Learned Judge allowed that there was no other evidence than the admission of Williams, but what he might have committed the defalcation between the date of his ceasing to be cashier and the 31st of December; but it was too much to say, that because the Directors indulged him with three months to make up his accounts, therefore his sureties were to be discharged. Nor could it be said that the Directors were bound not to delay the examination of the bag till the 26th of January. They had then no cause to suspect the honesty of Williams; and the reason why they had taken the bond in question, was that they might feel safe in confiding in him. The sureties did not pretend that, if the bag had been opened on the 31st of December, they would be able to indemnify themselves from Williams; and the Judge was of opinion that Williams had not discharged himself, of the office of Cashier to the Directors, and for the purposes of this bond, till he had wound up his accounts with the Directors.
The other Member of the Court agreed, and the Plaintiffs had a verdict for £2000 against each of the three Defendants, that being the extent of the penalty.

Note

[1] See also Supreme Court of Civil Judicature, Judgment Rolls, 1817-1824, State Records N.S.W., 9/2234 (no. 468).