went from one house to the other from time to time according to the usual practice between bankers:

That Marsh and Co. kept a book called a house-book, in which corresponding entries to those in the pass-book ought to have been made, and that in the due course of business the pass-book and the house-book of Marsh and Co. ought to have corresponded:

That the house-book was in constant use in the banking-house of Marsh and Co., and that the pass-book was frequently brought thither from the house of Martin and Co.; and when it was at the banking-house of Marsh and Co. the said H. Fauntleroy kept the same generally locked up in his own desk:

That the said H. Fauntleroy was permitted by the other partners to conduct the greater part of the business of the said banking-house without their interference that they were not men of business: that they had no knowledge of book-keeping: that they reposed great confidence in the said H. Fauntleroy, and *762] that the said *H. Fauntleroy made very many false entries and omis

sions in the house-book, so that the same did not correspond with the pass-book in many instances: that the said H. Fauntleroy paid into the hands of Martin and Co., and drew out of their hands, considerable sums, which appear respectively in the pass-book, but not in the house-book; and also made very many other false entries in the other books of the firm without the knowledge and in fraud of his partners, to a large amount :

That on the 23d day of June, 1820, the said H. Fauntleroy ordered one Thomas Butterfield Simpson, a stock-broker, to sell out the sum of 6057. 11s. 2d. Long Annuities, described as standing in the books of the Governor and Company of the Bank of England, in the names of E. Stracy, of Parliament street, Esq., and J. H. Stracy, of Berners street, Esq., survivors in a joint account with H. Stracy, late of Lincoln's Inn, deceased; and that the said T. B. Simpson sold the same to Gilbert Burrington for the sum of 10,7867. 10s. 1d., which sum he received from the said G. Burrington: that according to the course of business between the said T. B. Simpson and the said Marsh, Stracy, and Co., the said T. B. Simpson allowed the said Marsh, Stracy, and Co. one half of the usual commission when employed by them to effect sales, and upon the said sale he allowed one half of the commission; and that the said T. B. Simpson paid the sum of 10,7787. 13s. 10d., being the amount of the sum so received by him from the said Gilbert Burrington, deducting one half of the usual commission, by a check payable to the said H. Fauntleroy, into the hands of Messrs. Martin and Co. to the account of Marsh and Co.:

That no entry was made at any time of the said sum of 10,7787. 13s. 10d. in the house-book, or any other books of Marsh and Co., but only in the pass-book of that firm with Martin and Co.:

*763]

*That on the 16th of September, 1824, in consequence of the discovery of the forgeries of the said H. Fauntleroy, Marsh and Co. became bankrupts :

That from the month of April, 1820, up to the date of the said bankruptcy, entries were made in the books of Marsh and Co. by which Mrs. Stracy's account was credited with the amounts of the dividends on the said sum of C05/. 11s. 2d. in the said stock called Long Annuities as it had previously been, and as if those dividends had been regularly received from time to time; that such entries were all made in the handwriting of the said H. Fauntleroy, and that at the date of the said bankruptcy there was a balance of between 600l. and 7007. in the books of Marsh and Co. in favour of Mrs. Stracy:

That after the bankruptcy the said Sir E. Stracy made application to the Governor and Company of the Bank of England respecting the said sum of 6057. 11s. 2d. interest or share in the said stock called Long Annuities; and that thereupon the following letter was written by the attorneys of the Governor and Company of the Bank of England to the plaintiffs, and sent to the said Sir E. Stracy:

"4th Dec. 1824. "Gentlemen, The Governors and Directors of the Bank of England have had under their consideration your claim to have 6057. 11s. 2d. per annum Long Annuities, which formerly stood in your names, replaced. They find, upon inquiry, that the stock in question was sold and transferred in your names by one of the partners in the late firm of Marsh, Stracy, and Co., and that the produce of the stock was paid into the hands of Messrs. Marsh, Stracy, and Co. You have, therefore, as the Bank is advised, a right to prove the amount received on your account, and to receive a dividend upon that proof under Messrs. Marsh, Stracy, and Co.'s *commission: and we are directed by the Governors and Directors to request, that such proof may be tendered and enforced by petition, if it should not be admitted by the commissioners; after which the Bank will be ready to replace the amount of your stock so sold, upon having an assignment of your proof; and the dividends on the stock so replaced, which accrued subsequent to the latest period at which they were cre dited to you by Messrs. Marsh, Stracy, and Co., will also be paid to you:

[*764

"We beg to add, that we are ready to afford you information and assistance as to the evidence by which your right to prove will be established.

We are, &c." That on the 31st of May, 1825, the Governor and Company of the Bank of England paid the said Sir E. Stracy the sum of 6057. 11s. 2d. on his signing and entering into the following receipt and agreement :

"31st May, 1825. Received of the Governor and Company of the Bank of England the sum of 6057. 11s. 2d., being the amount of payments which would have been made to me for the two half years on the 10th October and 5th April last on 6057. 11s. 2d. Long Annuities, if that stock had not been transferred, as I allege it to have been, without any legal authority from me:

"I say, received the same, without prejudice to my right to prove for the produce of the said stock under Marsh and Co.'s commission, or my right to claim to have the said stock replaced by the said Governor and Company. And I hereby engage, if the said debts should be decided by a court of law to be provable, when required by the said Governor and Company, to tender a proof to the commissioner under the bankruptcy of Marsh and Co. in respect of the produce of such stock sold out by them; and in case such proof *shall be rejected, to enforce the same by petition at the expense of the said Governor and Company. E. STRACY, and for J. H. STRACY, Survivors of HARDINGE STRACY."

[*765

That on or about the 16th May, 1829, the said Sir E. Stracy and J. H. Stracy applied to the Governor and Company of the Bank of England to transfer a part of the said sum of 6057. Ils. 2d. Long Annuities; and that thereupon the attor neys for the Governor and Company of the Bank of England wrote and sent to the said Sir E. Stracy and J. H. Stracy a letter, whereof the following is a copy :

66

Gentlemen,-Having been informed by the officers of the bank that an application was made on your behalf to transfer 3007. odd, Long Annuities, from the names of Sir E. Stracy and J. H. Stracy, survivors of Hardinge Stracy, we beg to suggest, that before any application is made relative to the stock transferred in the year 1820, under an authority alleged to have been forged, you should tender to the commissioners the proof engaged to be made by you on the estate of Marsh and Co., in respect of the proceeds of that stock. We are satisfied, that it is equally important to all parties in this case to reduce as much as possible the litigation necessary to an adjudication on the conflicting claims. We confidently expect that these must be disposed of before the vacation, if the measures now in progress are allowed to go on; but if proceedings are adopted against the Bank, the delay and expense will be increased in a degree which it is serious to contemplate. We feel that the delay that has taken place must have been most irksome to the parties; and it has been, no doubt, purposely

created by the agents of the assignees with a view to exhaust the patience of the claimants. We should regret that they succeeded in this when the transaction *is so near a close, particularly as no means have been spared by the *766] Bank to render the delay as little inconvenient as possible to the parties. If proceedings are adopted against the Bank, they will necessarily avail themselves of every defence within their power, though they will reluctantly enter into such a contest. We have the honour to be, &c."

That on the 20th May, 1829, and after the death of the said Mrs. Stracy, the said Sir E. Stracy and J. H. Stracy sold to one E. Alder the sum of 3027. 15s. 7d. of the said stock called Long Annuities, for the sum of 5885l. 5s. 4d., which they received from the said E. Alder: that on the same day the said Sir E. Stracy and J. H. Stracy, together with the said E. Alder, went to the Bank of England and required the Governor and Company of the Bank of England to transfer into the name of the said E. Alder the sum of 3027. 15s. 7d. of the said stock called Long Annuities, as and for part of the said sum of 6057. 11s. 2d. Long Annuities; and the said E. Alder at the same time offered to accept the same; but that the Governor and Company of the Bank of England refused to make such transfer, and stated that there was not the sum of 3027. 15s. 7d. Long Annuities in the names of E. Stracy and J. H. Stracy, survivors of Hardinge Stracy:

That the said Sir E. Stracy and J. H. Stracy afterwards bought and caused to be transferred to the said E. Alder, a sum of 3027. 15s. 7d. in the said stock called Long Annuities, in pursuance of the said sale so made to him, for which sum the said Sir E. Stracy and J. H. Stracy paid the sum of 59237. 2s. 3d. ; and that the said Sir E. Stracy and J. H. Stracy thereby sustained a loss of 377. 16s. 11d., being the difference between the said sums of 59231. 2s. 3d. and 58857. *767] 5s. 4d., together with the amount of the *commission paid by them to their broker on the said transaction, amounting to 71. 7s.: That there was negligence on the part of the said Josias Henry, arising from want of knowledge of business:

But as to the issue first within joined between the parties, whether or not, upon the whole matter aforesaid, by the jurors aforesaid in form aforesaid found, the Governor and Company of the Bank of England are guilty of the premises above laid to their charge or not, the jurors aforesaid are wholly ignorant. And thereupon, &c.

This case was argued at great length in Easter term last, by Spankie, Serjt., for the plaintiffs, and Taddy, Serjt., for the defendants, chiefly on two points: first, whether the Bank is liable to make good to the original holder, stock which has been transferred under a forged power of attorney; and, secondly, whether the plaintiffs' omission to fulfil their engagement to prove their demand under Marsh and Stracy's commission of bankruptcy did not suspend their right to proceed against the Bank. The decision of the Court is confined to the latter question; but it has been thought right to present an outline of the argument on both points.

Argument for the plaintiffs. Government stock is a right to receive an annuity: it is not a chattel interest of which the holder may be dispossessed, but an incorporeal hereditament of which he cannot be disseised: Wildman v. Wildman, 9 Ves. 174; Bracton, c. 12; Justin. Inst. p. 2, tit. 2; Vinnius in loc.; 2 Bl. Com. 40; 3 Bl. Com. 179; Co. Lit. 144 b; Lit. s. 588: and it is only by express provision in all the statutes touching the national debt, *that gov*768] ernment stock passes to the personal representative of the owner. The Bank of England may be likened to the lord of a manor, and wrongful seizure by the lord, or admittance of one who has no claim to be admitted, confers no title. Watk. Copyh.; Zouch v. Forse, 7 East, 186. The acts of parliament which create the stock provide for the mode of transfer, which can only be effected by the party entitled to the stock, or his attorney duly authorized. In Hildyard v. The South Sea Company and Keate, 2 P. Wms. 76, the company were ordered to restore to the right owner stock which had been transferred

under a forged power. There was a similar decision in Harrison v. Price, Barnardist. 24, and Ashby v. Blackwell, 2 Eden, 299. In Monk v. Graham, 8 Mod. 9, the action was brought against the purchaser of the stock: but the right of the original owner has never been doubted; and the decision in Davis v. Bank of England, 2 Bingh. 392, was reversed on a mere technical point not argued in the Court below: the reasoning of the Chief Justice as to the inexdiency of supposing a transfer to have taken place, remains in its full force. The Bank of England is only the agent of the government to pay dividends; the government is the debtor; and the Bank cannot, without authority, release the debtor from the claim of the real creditor.

[*769

Then, assuming the plaintiffs' rights to have been unaffected by the transfer under the forged power, the plaintiffs' engagement to tender a proof of their claim under Marsh and Stracy's commission does not bar their action against the Bank. At the utmost it affords no more than a ground of cross action for the Bank. But the plaintiffs' rights remaining always the same, there is no consideration for their engagement with the Bank: it is nudum pactum, and the mere conditional offer of the Bank does not amount to accord and satisfaction. To bar the action, the Bank should show that they have given the plaintiff an equivalent for what he demands. Accord without satisfaction is not sufficient. Com. Dig. Accord. (B); Reniger v. Fogossa, Plowd. 1; Peyto's case, 9 Rep. 77, 79; Onelie's case, Dyer, 356 a; Allen v. Harris, 2 Lutw. 1537, 1 Lord Raym. 122; James v. David, 5 T. R. 141. And this cannot be said to be a settlement of conflicting rights and doubtful claims, as in Longridge r. Dorville, 5 B. & A. 117, for the plaintiffs' claim is exempt from doubt. The money paid into the house of which the plaintiffs were partners was Burrington's money, and not the money of the plaintiffs. The plaintiffs, however, were ignorant of the whole transaction. The breach of trust was committed by Fauntleroy alone, and does not implicate the innocent partners in the firm. Ex parte Apsey, 3 Br. Ch. C. 265, Ex parte Hunter, 1 Atk. 223, Ex parte Heaton, Buck. 386, Emly v. Lye, 15 East, 7.

Argument for the defendants. The earlier authorities have very little weight in a question touching the nature and incidents of stock,-a species of property altogether of modern origin. Bracton could scarcely have foreseen the creation of a 3 per cent. fund, and even Justinian and Vinnius must have been in the dark on the subject of consols. But according to the principle laid down by Sir William Grant, in Wildman v. Wildman, a party can be no more possessed of stock than he can be dispossessed; he has merely a right to receive dividends; so that the argument derived from the doctrine of disseisin goes too far. The passage in Co. Lit. 144 b, does not lay down that an annuity is necessarily [*770 real property, but merely that the remedy for it is by writ of annuity, which is in form a real action. And as to incorporeal hereditaments, Blackstone expressly says (vol. iii. p. 170), disseisin of them cannot be by dispossession, but by disturbance in the means of coming at or enjoying them. Unless the plaintiffs were possessed of the stock, they cannot sue the defendants for refusing to transfer it. The question, therefore, is, whether they can be predidicated to have been possessed of it, as they aver in the declaration. Of what were they possessed? of the 6057. 11s. 2d., or of the mere right to receive an annuity in respect of an entry in the Bank books?-Of the right merely. Upon the transfer, that sum is placed to the credit of Burrington; it is subsequently divided, subdivided, passes into various hands, and occasions a multitude of transactions which it would be impossible to unravel. The Bank may buy stock of others, and place it to the plaintiffs' account; but they could not do that which the plaintiffs complain they have refused to do, namely, permit a transfer of what has already been transferred. By all the statutes which create stock it is declared to be personal property; but if it were real, against whom should the writ issue?-Not against the bank, for the government is in effect the debtor. The analogy of the lord of the manor, therefore, suggested in Hildyard v. The South Sea Company, is altogether inapposite; and in Ashby v. Blackwell, Lord

Northington dissented both from the decision and the reasoning of that case. In Davis v. The Bank of England, it was said, the Bank could not refuse to pay the subsequent dividends to the transferee under the forged power; if so, how can the former holder be said to remain in possession? and the declaration here proceeds on the assumption that the plaintiffs are in possession; for the Bank is not called on to make compensation for negligence, but to do that *which they can only do on the supposition that the stock still belongs *771] to the plaintiffs. So that at all events the count is ill conceived. Thus, when a carrier loses goods, the owner cannot declare in trover on his possession, but must sue in case for negligence. Ross v. Johnson, 5 Burr. 2825.

But, secondly, the agreement between the plaintiffs and the Bank amounts to a settlement of matters in dispute between the parties, which imposes on the plaintiffs the necessity of fulfilling the conditions of the agreement before they can revert to their original claim. And the conditions might have been fulfilled, for the debt is provable under the commission. Stone v. Marsh, 6 B. & C. 551. It is not a case of accord and satisfaction, where the party accepting the satisfaction loses all cause of action, but an agreement to suspend a disputed cause of action on good consideration; the consideration being, payment, without demur, of a demand at least questionable, upon the claimants performing a condition precedent. Longridge v. Dorville is an authority to show that such an agreement may be insisted on, where an action is brought in breach of its conditions; and Tatlock v. Smith, 6 Bingh. 339, shows that the present action is at least premature, the conditions of an agreement for the settlement of claims not having been fulfilled. Then, the produce of the stock having been paid into the firm of which the plaintiffs were members, they have incurred no damage.

In reply it was contended, that possession is according to the nature of the property said to be possessed; and here the possession was the possession of the right to receive the debt, or to command its transfer. The word possessed was employed in the declaration according to *its popular sense; and the

*772] plaintiffs had been sufficiently possessed of the right, to call on the

defendants to put them in their original situation, or to pay an equivalent in damages. The plaintiffs had nothing to do with unravelling the subsequent accounts: to oppose that difficulty to their claim would be as hard as to call on an owner of lemons to recompose them when in a state of solution among the combined ingredients of a bowl of punch. The owner of the stock, and the purchaser under the forged power, were, it is true, both innocent; but the buyer was the younger brother, the owner the elder; and as between those two, the elder must be preferred. But the case did not differ from that of a private banker, who was bound to make good to his customer all money paid under a forged authority. Cur. adv. vult.

TINDAL, C. J. The declaration in this action is framed in accordance with the judgment of this Court, given in the case of Davis v. The Bank of England; in which case it was held that the owner of property in the funds still remained the legal holder of the stock, notwithstanding it had been transferred to another name under a forged power of attorney. Accordingly this declaration states, that the stock had been in the names of the plaintiffs in the books of the Governor and Company of the Bank of England, and that no transfer of the stock had been made; and alleges as a breach of the duty on the part of the bank, their refusal to make and enter in their book a transfer of the plaintiffs to a purchaser of part of the stock. One question, and that which has been principally argued at the bar, turns upon the rule of law laid down by this Court in the case above referred to, and involves, in fact, a rehearing of that case. It becomes unnecessary, however, for this Court, upon the present occasion, to give any opinion *upon the law so declared by the Court; indeed, as the question is raised *773] upon the record, it is more satisfactory that a decision in which two of my learned Brothers now sitting with me concurred, should be made the subject of review in another Court, where, in case it becomes necessary, that question may be discussed upon a writ of error.

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