"In order to turn their funds to profit, the London bankers employ as much money as they can amongst their customers. They invest a considerably larger proportion of their deposits in bills of exchange and promissory notes than in public securities. The city banker is, however, under a disadvantage in this respect, which is not felt by the banker at the west end of the town. The latter may. to a certain extent, depend upon the use of the money deposited with him, as his accounts are usually those of country gentlemen, and individuals out of trade; whereas the former, whose accounts are principally those of persons actively engaged in commercial or money operations, can hardly know three days beforehand what the amount of his deposits may be at any given period. The London bankers are obliged to employ their money occasionally at a very low rate of interest. In some cases, it may have been within the last twelve months, 2 1/2 per cent.; but the average has been from 3 to 3 1/2, and it has fairly kept at that rate. The highest rate has been 4 for short bills, but 5 has been charged for bills of twelve or eighteen months."
The circumstances that attended the failure of Messrs. Strahan and Co. have called attention to the following section respecting bankers inserted in the Act 7 & 8 Geo. IV. c. 49.
"Agents embezzling Money entrusted to them to be applied to any special Purpose; or embezzling any Goods or valuable Security entrusted to them for safe custody, or for any special Purpose, guilty of a Misdemeanour.
"And, for the Punishment of Embezzlements committed by Agents entrusted with Property, be it enacted, That if any Money, or Security for the Payment of Money, shall be entrusted to any Banker, Merchant, Broker, Attorney, or other Agent, with any Direction in Writing to apply such Money, or any Part thereof, or the Proceeds or any part of the Proceeds of such Security, for any Purpose specified in such Direction, and he shall, in violation of good Faith, and contrary to the Purpose so specified, in anywise convert to his own Use or Benefit such Money, Security, or Proceeds, or any Part thereof respectively, every such Offender shall be guilty of a Misdemeanour, and being convicted thereof, shall be liable, at the Discretion of the Court, to be transported beyond the Seas for any Term not exceeding Fourteen Years nor less than Seven Years, or to suffer such other Punishment by Fine or Imprisonment, or by both, as the Court shall award; and if any Chattel or valuable Security, or any Power of Attorney for the Sale or Transfer of any Share or Interest in any Public Stock or Fund, whether of this Kingdom, or of Great Britain or of Ireland, or of any Foreign State, or in any Fund of any Body Corporate, Company, or Society, shall be entrusted to any Banker, Merchant, Broker, Attorney, or other Agent, for safe Custody, or for any special Purpose, without any Authority to sell, negotiate, transfer, or pledge, and he shall, in violation of good Faith and contrary to the Object or Purpose for which such Chattel, Security, or Power of Attorney shall have been entrusted to him, sell, negotiate, transfer, pledge, or in any Manner convert to his own Use or Benefit such Chattel or Security, or the Proceeds of the same, or any Part thereof, or the Share or Interest in the Stock or Fund to which such Power of Attorney shall relate, or any Part thereof, every such Offender shall be guilty of a Misdemeanour, and, being convicted thereof, shall be liable, at the Discretion of the Court, to any of the Punishments which the Court may award, as hereinbefore last mentioned."
But it was said that the parties could escape punishment if they complied with the 52nd Section of the Act.
"Provided always, and be it enacted, That nothing in this Act contained, nor any Proceeding, Conviction, or Judgment to be had or taken thereupon, against any Banker, Merchant, Broker, Factor, Attorney, or other Agent as aforesaid, shall prevent, lessen, or impeach any Remedy at Law or in Equity which any Party aggrieved by any such Offence might or would have had if this Act had not been passed; but nevertheless the Conviction of any such Offender shall not be received in Evidence in any action at Law or Suit in Equity against him; and no Banker, Merchant, Broker, Factor, Attorney, or other Agent as aforesaid, shall be liable to be convicted by any Evidence whatever as an offender against this Act, in respect of any Act done by him, if he shall at any Time previously to his being indicted for such Offence have disclosed such Act, on Oath, in consequence of any compulsory Process of any Court of Law or Equity in any Action, Suit, or Proceeding which shall have been bond fide instituted by any Party aggrieved, or if he shall have disclosed the same in any Examination or Deposition before any Commissioners of Bankruptcy."
Messrs. Strahan, Paul, and Bates stopped payment the 11th June, 1855. They were made bankrupts, and on the 25th June they voluntarily declared, in the Court of Bankruptcy, that securities amounting to £113,000, lodged with them by their customers for safe custody, had been sold or otherwise parted with, and the proceeds applied to their own use. They were committed for trial, and it was presumed they intended to plead the above clause in the Act, in the hope that it would save them from punishment.1
1 Strahan, Paul, and Bates were tried at the October, 1855, session of the Central Criminal Court. They pleaded not guilty, and Sir F. Thesiger applied, on their behalf, to plead in addition 52nd sect. of 7 & 8 Geo. IV. c. 29. They were not allowed to plead it in addition; but the point, among others, was raised by Serjeant Byles in his address to the jury for Paul. It appeared that the statement made by the prisoners in the Bankruptcy Court (coupled with the account to which it referred) merely disclosed a dealing in April, 1855, with certain Danish Bonds which had been purchased by the prisoners in substitution for certain other similar bonds deposited with them by the prosecutor, and which they had previously converted, for which conversion of the original (not the substituted) bonds they were indicted, but that the statement also referred the assignees to certain of the firm's books, in which the conversion of the original bonds appeared. The presiding judge (Alder-son), in summing up, ruled that the statement was an insufficient disclosure, in not relating to the original bonds, which were the subject matter of the indictment; and then continued:-" It never could have been intended that a person by voluntarily disclosing any act could evade the penalties of the misdemeanour to which such act had rendered him liable. People cannot thus be allowed to play fast and loose with the criminal law; now rendering themselves liable to be transported for fourteen years, and then, by a mere process got up for the purpose, voluntarily absolving themselves from the consequence of their acts."
Baron Martin and Justice Willes concurred