Page:Harvard Law Review Volume 8.djvu/434

4l8 HARVARD LAW REVIEW. that delivery was necessary to constitute a certification ; but he thought that to require an express allegation of delivery would be " too narrow " a construction of the indictment. It has generally been supposed that an indictment is bad if capable of a meaning which does not charge a crime, and that the courts will be astute to find it capable of such meaning. " Nothing shall be intended against a defendant." United States v. Carll, 105 U. S. 611; Com. v. Grey, 2 Gray, 501; Com. v. JVew- buryport Bridge., 9 Pick. 142 ; State v. Brown, 3 Murphy (N. C), 224. As the counsel for the defence contended, everything in this in- dictment would be true if Potter had written on the check the words of certification, and then thrown it into the fire, instead of delivering it or causing it to be delivered. This would have been a conversion of the check, but it would not have been a certification, if the court was right in supposing delivery necessary. Of the two points decided in the case, then, that on the indictment is against Mr. Potter, and that on the intent is the most desirable con- struction of an obscure statute, seldom enforced. The legal result, then, is not to be objected to. A Careless Acceptor. — The decision in Schol/teldv. Earl of Londes- borough (Court of Appeal, Dec. 19, 1894), 11 The Times Law Reports, 149, will not meet with universal assent. The facts of the case were, briefly, these : The defendant at the request of the drawer accepted a bill payable to the drawer's order for ;!^5oo. The bill had been written by the drawer in such a way that space was left for inserting the figure "3" and the words "three thousand," and by so writing it the drawer was enabled subsequently to raise the amount of the bill to ^3,500. Thereafter the drawer negotiated it to the plaintiff, a bona fide pur- chaser, for value without notice. The stamp was sufificient to cover the amount of the bill as raised. The court held, affirming the decision of Charles, J., 10 The Times Law Reports, 51 8, that the plaintiff" could not recover. Charles, J., held that the facts did not show negligence on the part of the defendant. Lord Esher, who delivered an opinion with which Rigby, L. J., concurred, rested the decision of the Court of Appeal on the grounds that the defendant owed no duty to the plaintiff", and even assuming that he did, and that there had been a breach of the duty, the breach was not the cause of the plaintiff"'s loss, because a felonious act intervened. Lopes, L. J., delivered a vigorous dissenting opinion. Al- though the case may perhaps be distinguished from Young v. Grote, 4 Bing. 253, the distinction will make the earlier decision of very limited applicatio.n ; and, indeed, Lord Esher said of it, " That case ought not any longer to be quoted." 39 Sol. Law J. 164. In that case the oppor- tunity for raising the check in question in the suit was afforded by a customer of the bank which paid it, and Lord Esher intimated that a customer might owe a duty to his banker, which an acceptor would not owe to the world at large. Whether Lord Esher would regard the position of the maker of a promissory note as analogous to that of an acceptor is not clear. It must be admitted that the reason for holding an acceptor, and especially an indorser, liable for the consequences of the improper form in which a bill or note is drawn or made is not so clear as the reason for holding the drawer or maker himself liable for such con- sequences. But the acceptor or indorser, though not in general empow- ered to add to or subtract from the face of a bill or note may certainly