[balance of account - banking - Crown treasury - Cornwall Bank - forgery - convict evidence]

Attorney General v. Henty

Supreme Court of Van Diemen's Land

Montagu J., 20 March 1835

Source: Cornwall Chronicle, 28 March 1835[1]

Before Mr. Justice Montague, and a Special Jury, consisting of G. H. Skardon, Pearson, Foote, Henry Jellico and John Leake, Esquires

The Attorney General v C. S. Henty, Managing Director of the Cornwall Bank.

The Attorney General, in opening the pleadings, stated, that this was an action brought by His Majesty’s Attorney General against the defendant, as Managing Director of the Cornwall Bank, to recover the sum of £100, due on a balance of accounts between that Establishment and Mr. Assistant Treasurer Davis. It would be shown by reference to that gentleman’s bank book, that, when the accounts were closed, there was an admitted balance due from the Bank of £1500 6s. 5d., which was verified by the Cashier’s signature.

[Here several letters from the Directors to Mr. Davis and the Colonial Secretary, establishing the Bank’s admission of that balance, and soliciting indulgence, were given in evidence, and admitted by Mr. Gellibrand, who appeared for the defendant.]

The Attorney General then observed, that, at the death of Mr. Rankin, the late Cashier, against whom, as being dead, he would not offer any insinuation, the affairs of the Cornwall Bank had been left in much confusion; and soon afterwards, from some cause or other, no matter what, its payments became suspended. The learned gentleman went on to say, that the indulgence of which he had spoken, was afforded; but, that after a period of some fifteen months, Mr. Davis had again demanded payment of the balance, when, strange to say, although all along previously it had been admitted as correct, the Bank, for the first time, thought proper to dispute it, and to debt the Assistant Colonial Treasurer with a cheque of £100, which cheque was not a genuine one, although no doubt existed that it had been paid. It bore a signature remarkably like Mr. Davis’s - so extremely like it indeed, that Mr. Davis himself, except for one circumstance, might easily have been deceived - but that circumstance was conclusive: - the cheque had never been entered in either his bank or cheque book! - nay more, he had never heard of it until fifteen months after the time (when assuming it to have been genuine) it should have been entered in his bank book. The Learned gentleman here, with such energy, depicted the appalling effects of forgery; and after repeating that in this case the imitation was admirable, he proceeded to say ; "Yet, gentlemen, if, because it is so well executed, it is to be viewed as genuine, notwithstanding the inexplicable delay attending its being brought forward, then you will perceive that in exact proportions to the skill of the forger, will be the impunity of his offence, and the danger of any man holding a public situation, and depositing Government money in a bank, will be rendered absolutely frightful, for his utter ruin might at any moment be effected." The learned gentleman then observed, that the disputed cheque bore date the 22nd October, 1832; and after putting in Mr. Davis’s bank book for 1832, and cheque book from May, 1832, to October, 1833, called -

William Bream. - I was clerk to Mr. Assistant Treasurer Davis from his arrival here; I was with him two years and five months; I left him in December, 1833. [The cheque book already mentioned was put into the hands of the witness, who said] "This is the remnant or remainder of Mr. Davis’s cheque book; I have seen it frequently when he wrote cheques, and detached them from it. I think that the Cornwall Bank suspended its payments in or about October, 1832. I have often seen Mr. Davis’s account with the Bank; that account comes down to December 1832. [Cheque book shown to witness.] This is Mr. Davis’s account for public money in the Bank, embracing from August to October, 1832. During the period expressed by those months in that year inclusively, there appear two cheques payable to bearer; but all the others are drawn payable to either self or order, or to self or bearer. Mr. Davis’s bank book was generally brought by me, when required; it was but very seldom left at the Bank. From the book, a balance would appear to have been struck about once a-week, or once a-fortnight. Mr. Davis’s habit from August to November, 1832, was to draw his cheques from this book, unless he was without a book. I never, to the best of my remembrance, drew a cheque from any other book than his own during that time. After Mr. Rankin’s death, Mr. Kennedy became Cashier of the Cornwall Bank, and I was accustomed to apply for, and obtain weekly certificates of the balance in the Bank due to Mr. Davis, as Assistant Treasurer. In or about August or September, 1833, I held a conversation about the balance with Mr. Kennedy. He expressed himself to wish that I would ask Mr. Davis for his bank book; I did ask him accordingly; and Mr. Davis requested that I would enquire what it was wanted for. I did enquire, and Mr. Kennedy said he "merely wanted it for the purpose of comparing it with the Bank accounts, to see if they agreed; but, as respected the balance, it was correct."

Cross-examined by Mr. Gellibrand. - Mr. Davis generally used to get the cheques cashed himself. I think his book has been left once or twice at the Bank. I had positive instructions from him never to leave it. I think that I have been sent to the Bank once or twice for the book; am not certain, nor can I be so. I do not recollect Mr. Davis to have refused sending his book when Mr. Kennedy asked for it. This (a book being produced) is a copy of Mr. D’s pass book, made by me under his directions, and left by me with Mr. Kennedy at the Cornwall Bank. This book reaches to August 10, 1832. I was never required to furnish a copy of Mr. D’s pass book up to 1833. The margin of Mr. Davis’s cheque Book showed not alone the dates on which cheques were drawn, but likewise the amounts and the persons in whom payable. Mr. Davis had no cheque against the Cornwall Bank, except the pass book (thirty four cheques, including the one disputed, shewn to and examined by the witness.) I believe all these cheques to be in Mr. Davis’s handwriting, I am well acquainted with it, and have been so about two years and five months.

Re-examined by the Attorney General. - Had Mr. Davis, when at the instance of Mr. Kennedy I asked for the pass book, surrendered it, he would have been left without any voucher for his transactions with the Cornwall Bank. The entries in that book on Nov. 13th and 17th, 1832, I think were in the handwriting of Mr. Rankin. Mr. Kennedy applied to me in August, 1832; so far as it goes, but I made it up only to the 10th August, there not having been any further entries, the book having been left at the Bank two or three times, from Tuesday to Wednesday.

[Here the disputed cheque was put in to the hands of the Witness, who, after examining it, said]

The date of this cheque is written over an erasure, and the amount is likewise written over an erasure, but in none of the other cheques that have been shewn me, is there any such thing. Still I believe that the whole of the cheques shewn to me are in Mr. Davis’s handwriting.

David Kennedy, sworn. - The certificates given by the Cornwall Bank to Mr. Assistant Treasurer Davis were made only once a-week or once a-month. They invariably were signed by the Cashier, and as invariably stated the balance due when they were made out. [A certificate being shewn to Mr. Kennedy, he, after perusing, it resumed.]

This certificate was for a considerable period, taking in October and November 1832. All the entries are by Mr. Rankin, and in his handwriting; I mean all on the credit side. The balance is in my hand-writing. On the 13th Nov., 1832, the balance is in Mr. Rankin’s handwriting. I first saw this cheque while going over the Bank accounts, between December, 1832 and June, 1833. The books were in progress of examination at the time of Mr. Rankin’s death. I omitted, through an error of my own, entering this cheque in the pass book, and the only way in which I can account for my error, is by explaining, that in the Bank day book there were two entries for £100 each, coming close together.

By the Court. - The entry on the 20th October is in my handwriting, - two days afterwards, namely on the 22nd., the pass book was balanced, and on the 20th appeared the second entry for £100. I do not recollect ever having seen the cheque before the books were examined. It was Mr. Rankin’s duty to enter it into the day book. This cheque is numbered, "85," it must have been paid on the 22nd Oct., as appears by Mr. Rankin’s entry on the day book; there is another cheque of the same number, between which and the first, there is a trifling variation.

Wm. Bream, recalled by Mr. Gellibrand. - Mr. Davis kept his cheque book in a tin box upon his table, and when he left the office the box was locked. No person except himself (Mr. D.) could have access to it.

By Mr. Attorney General. - I think that no one could for five minutes have had access to the cheque book. I am a prisoner. Mr. Davis had another prisoner clerk, named Collier, who is now a clerk in the Colonial Hospital. The box was open when Mr. Davis was in the office, and he might occasionally have lost sight of the cheque book for a minute or two. (The balance being shewn). There is in this remainder of Mr. Davis’s cheque book, an entry on the 20th Oct. for £100, which Mr. T[ho]mas received. I do not distinctly recollect at this distance of time, that Mr. Davis’s pass book was ever left at the bank.

Mr. Henry Dowling, sworn. - (The cheque book examined by him). I believe this to be the particular cheque book printed at my office, and sold by me to Mr. Davis. I believe it to have contained 100 cheques, but have sometimes far more or fewer in a book through the B[in]der’s carelessness.

George Stephen Davis, Esq., sworn. - I have the honor to hold office as Assistant Colonial Treasurer, in November 18, Mr. C. S. Henty held out to me a cheque resembling this, but I do not know this to be the same altho assuming it to be the same. I swear that I had never seen it before it was so held out to me by Mr. Henty. I swear the signature to it is a forgery; but it is so close, so exceedingly clever an imitation of my handwriting that I should not know it to be my cheque but for the circumstance that there is a counterpart entry on the margin of my cheque book. It is calculated to deceive any person. I have drawn so many cheques that I cannot distinctly and positively swear I never have made an erasure on any one of them. I had this cheque book from May, 1832, until November 1833. There are not any duplicate numbers in this book. I never filled up a printed cheque from any other book than my own, or out of my office in my life.

Cross-examined by Mr. Gellibrand. - I have been given to understand that the Crown will not call upon me; I have received an official notification from the Colonial Treasurer to that effect. (Here Mr. Attorney General handed over the table to Mr. Davis the Governor's release.) I kept this cheque book locked up in a iron chest out of office hours, and when during the hours of business, I had occasion for it, it lay on my office table. I am not aware that any other person that myself could have access to it. Uniformly when I drew a cheque, I made a marginal entry in the cheque book. I do not think that I ever wrote on the margin, a sum different from what a cheque have been drawn for. When I cancelled a cheque, my invariable custom was to tear it to pieces. I am quite sure, that without so tearing it, I never threw one away. (Here the witness was shown at page "97" an original entry of £360 14s. 1d.). Certainly if it were not for my cheque book, I should consider the cheque now in dispute to be in my handwriting. I repeat the only reason for disputing it, is, that I can not find it entered on the margin; I swear that my private accounts were never mixed up with those of my office. I kept no other memorandum of such sums as I received from the Bank, than what was written on the margin of my cheque book. The Bank repeatedly applied to me to leave my bank book to be examined. I know it has been left 24 hours. I was t[en]acious about leaving it, because on one occasion the Bank had struck a false balance of £1000, and therefore instead of again leaving it, I furnished them with a copy.

Re examined by the Attorney General. - The Bank failed. I drew a cheque for £360 14s. 1d. before I went to the bank. I drew from this remnant a corresponding cheque, which differs in number only and I drew another cheque for £378 18s. 5d. which amount is debited against me, but the other is not.

By the Court. - The cheque for £378 18s. 5d., is cut from this remnant of my cheque book, or it appears so to be. No, it must have been the other cheque "97" was taken. I can’t tell whether it was cut from the cheque book.

The Attorney General having closed his case, -

Mr. Gellibrand in reply, addressing himself to the Court, said - "Your Honor and Gentlemen of the Jury, - the case now before you involves considerations of a very important and most extraordinary nature. I do not think there ever were before to-day a precisely similar case submitted to a Jury. Does any one who hears me doubt, that although this Action has been brought in the name of the Attorney General against Mr. Henty, yet, that Mr. Davis is the actual defendant! Can any one suppose for an instant that Mr. Davis has no direct interest in the fate of this action? Is it not quite apparent that even his character is staked upon your verdict? And yet, because he holds the high office of Assistant Colonial Treasurer, the Government had thought fit to throw its shield around him and he has been called before you to prove his own case! But; Gentlemen, it will be for you to say in what manner and upon what a foundation he has attempted to raise even a presumption of a proof. Mr. Davis tells you that the cheque is so like one of his own with regard to signature that he would not have known it not to be his own, if on reference to his cheque book he could have found a marginal entry of it. He tells you that he kept no cash book - no memorandum whatever, except in the margin of his cheque book, for monies drawn by him at the Bank, and that the cheque in question is a forgery he has sworn, because - alone because, he never entered it in that book. Now gentlemen, you have just heard and seen enough. I imagine, to be, as I am, convinced that Mr. Davis’s cheque book entries are not immaculate, and yet, that it is so forms Mr. Davis’s solitary plea for denying that his signature to his cheque is genuine, I must say, that after the evidence which that gentleman has given, and the opposing testimony of the book, upon the accuracy of which he has so confidently depended, you are placed in a most extraordinary position. (Here Mr. Gellibrand turned round, and looking towards Mr. Davis) I by no means wish to insinuate ought morally prejudicial, but it does certainly seem strange, that with so treacherous a memory as has been evinced, there should have been united so much positiveness. Another circumstance, gentlemen, of a very extraordinary character is, that the cheque disputed alone upon the untenable ground to which I have drawn your attention, does within the merest shadow of a shade tally with the cheque book! And now let me ask with respect to the erasures of which so much has been spoken of. Is it likely that an person who committed a forgery would write upon erasures? Would he not on the contrary endeavour to perform a foul deed in the cleanest and least suspicious manner possible? Most assuredly he would. But, gentlemen, I again wish to impress on you that I do not mean to insinuate a wilful untruth against Mr. Davis, I say, and I say in charity to him, that the cheque which he calls a forgery, must have been filled up by him, laid aside, and forgotten. The Attorney General has, with his accustomed force and elegance, drawn the outline of a picture of frightful peril to a public functionary having Government funds in any bank, if a forged cheque, because skilfully executed, is to be deemed genuine. But glance on the, at least, equal danger to which such bank would be subjected, if an interested party were privileged to deny his own signature. Suppose a cheque for £2,000 or £3,000 had been drawn, would not the Cashier have been compelled to pay it immediately? - Without a doubt. As relates to Mr. Davis, no reliance can be placed on his memory - none on his representation of the circumstances. Much has been said about the Cornwall Bank, and its having stopped payment; but it should be borne in mind, that if the Bank had not paid all the world, it had paid Mr. Davis. (Here Mr. Gellibrand looked seriously at Mr. Davis, and exclaimed with pathos) again I desire to be understood as not imputing a deliberate falsehood. I am not driven to the necessity, and I rejoice that I am not. Even common charity would restrain me from it, unless I were compelled to it. But, gentlemen, Mr. Davis’s evidence shows the frailness - the extreme treachery of his own memory. As for the cheque, I can hardly believe that any man could forget it; I cannot think it possible! If you, upon such evidence as has been produced, shall pronounce this cheque to be a forgery, your verdict will tend to effectually destroy a Public Company, established and carried on for the public convenience. When this case was opened by my learned friend, I was afraid I should have had to put it to you in a very painful manner; I am most happy, however, that I can now, in the performance of my duty, put it to you in a very different manner, I could call twenty or thirty gentlemen to prove Mr. Davis’s hand-writing; but, after his evidence, and the opposing proof of inaccuracy which his cheque book furnishes, I shall, without any further observations, call upon you with confidence for a verdict.

His Honor then proceeded to charge the Jury, which he did at some considerable length and with his characteristic impartiality. He stated that although this case had occupied the whole day, with the exception of about an hour, the simple point to which he would cal their attention was, whether Mr. Davis had, or had not, signed the cheque in question; in other words, was it genuine? Or was it forgery?

[After commenting on the evidence, while His Honor was doing which, the noise created by officers calling silence at the Court-house door, prevented our Reporter from accurately taking down what fell from him.]

His Honor, with much solemnity, ob-[?] observed, that he wished it should be clearly understood that he did not impute anything but error, if even that, to Mr. Davis; but that great neglect, in His Honor’s opinion, had been shewn by the Cornwall Bank, for not having given up during eighteen months, Mr. Davis’s cheques, although repeatedly applied to for them. And, in conclusion, His Honor said, that this case was "solely imputable to gross misconduct on the part of the officers of the Bank."

The Jury then rose, as if intending to retire, but without leaving the Court, returned a verdict for the Defendant.

Notes

[1] AOT SC 26/8 records this case as an action of debt. See also Launceston Advertiser, 26 March 1835 and Henty v. Stewart, 1834. For Henty see M. Bassett, ‘Thomas Henty (1775-1839)’, ADB, vol. 1, pp. 531-4.