1860. LORD WARD v. LUMLEY. the rent is incident to the reversion. When the day of payment arrives, the rent still remains annexed to the reversion. Here, the question is whether the simply canselling a lease destroys the lessor's right of action for the recovery of the rent. I am of opinion that it does not, because the cancelling a lease does not destroy the estates already vested or their incidents. WATSON, B.-I am of the same opinion. Where the contract arises from the deed itself, and the deed is destroyed, no action can be maintained in respect of it. But this case is very different, for here, upon the execution of the deed, there passed from the lessor to the lessee an estate which was not affected by the cancellation of the lease. The lessee holds the estate subject to the rent which is incident to the reversion in the lessor. According to the argument for the defendant, he may hold the estate without payment of rent. But the authorities are clear that the cancelling a deed does not divest the estate of the lessee, or deprive the lessor of his right of action upon the demise. MARTIN, B., added.-The Lord Chief Baron, who has left the Court, requested me to say that he is of the same opinion. Judgment for the plaintiff. 1860. CUMMING V. SHAND, Registered Public Officer of THE DECLARATION. That before and at the time of the committing of the grievances, &c., the plaintiff was a customer of, and kept an account with, the said Bank; and the said Bank before and at those times was and acted as the Jan. 13. C., a merchant, who received consignments of goods from abroad, was deliver to a Bank, where accustomed to he kept an account, the on him against such consignments, together with the bills of lading. banker of the plaintiff, for reward and commission to the said Bank in that behalf, upon the terms then agreed upon bills of exand understood between the plaintiff and the said Bank, change drawn that as to each check drawn by the plaintiff on the said Bank, the same check should, on presentation at the said Bank, be paid by the said Bank, if at the time of such presentation the said Bank should have sufficient available funds of the plaintiff to pay the amount of such check. Averments: that the plaintiff drew a certain check on the said Bank for 1997. 10s., and that such check was afterwards presented at the said Bank for payment; and although, at the time of such presentation the said Bank had sufficient available funds of the plaintiff to pay the amount of such check, yet the said check was not paid by the said Bank, The Bank paid the bills of exchange and bills of ex when sold. and payment thereof was wholly refused. By means whereof the plaintiff was deprived of the benefit of the On these occaamount of such check and injured in his mercantile credit, &c. sions, if the his account was overdrawn, but if that sum was not regarded there was a balance in his favour. C. was, nevertheless, allowed to draw against his cash account as if the amount advanced had not been placed to his debit. At length, some goods remaining unsold, and the market price having gone down, the Bank refused to pay a check drawn by C., whereupon he brought an action-Held, that it was properly left to the jury to say whether the course of dealing between C. and the Bank was on the footing that he was to be allowed to draw against the cash part of his account, and that the sums guaranteed by the broker were not to be taken into account against him, unless the goods failed to satisfy them; or whether the Bank was merely in the habit of indulging him by allowing him to overdraw his account; and if the former, that C. was entitled to a reasonable notice that the Bank declined to continue that course of dealing. 1860. CUMMING v. SHAND. Pleas. First: that the plaintiff was not a customer of the said Bank upon the terms aforesaid. Secondly: that the defendants' Bank had not sufficient available funds of the plaintiff to pay the said amount.-Issues thereon. At the trial, before Willes, J., at the Liverpool Winter Assizes, the following facts appeared:-The plaintiff was a merchant at Liverpool, who was in the habit of receiving consignments of cargoes from Trinidad, against which bills of exchange were drawn upon him, which he accepted. For some time past he had an account with the Royal Bank of Liverpool. By arrangement between him and the Bank he delivered to them the bills of exchange with the bills of lading annexed, and the Bank paid the bills debiting him with the amount; and they handed over to his broker the bills of lading, on receiving the broker's undertaking to pay the amount of the bills out of the proceeds of the goods when sold. Notwithstanding the balance was against the plaintiff, until the brokers reimbursed the Bank, he was allowed to draw on his account current, as if the amount advanced on the bills had not been placed to his debit. For this accommodation the Bank charged a commission. In July, 1859, twenty puncheons of rum were consigned to the plaintiff from Trinidad, against which bills of exchange, drawn upon him for 19007., were forwarded with the bills of lading attached. The plaintiff accepted the bills of exchange and delivered them to the Bank together with the bills of lading. The Bank paid the bills of exchange, which were then cancelled, and debited the plaintiff with the amount. They handed the bills of lading to the broker on receiving his guarantee to repay the sum advanced when the rum was sold. On the 12th August, if the 19007. was taken as an actual debit against the plaintiff, his account was overdrawn, but, if this item was excluded, there was a balance in his favour of 2007. The rum was not at that time sold, and the market price having gone down, the Bank, without giving any notice to the plaintiff, refused to pay a check drawn by him on the 12th of August for 1997., whereupon he brought the present action. The learned Judge left it to the jury to say, whether the course of dealing between the plaintiff and the Bank was on the footing that he was to be allowed to draw against the cash part of his account, and that the sums guaranteed by the broker were not to be brought into account against him unless the goods failed to satisfy them; or whether the Bank was merely in the habit of indulging him by allowing him to overdraw his account; and his Lordship told the jury that if they came to the conclusion that the course of business between the plaintiff and the Bank was that he was allowed to draw checks without reference to the sum so placed to his debit, the Bank was bound to give him a reasonable notice that they declined to continue that course of dealing. The jury having found a verdict for the plaintiff, Wilde now moved for a new trial on the ground of misdirection. The Bank was not bound to pay the check, for when it was drawn the plaintiff was their debtor. No doubt, they had been in the habit of allowing the plaintiff to overdraw his account, but that was an indulgence which the Bank had the right to discontinue at any time. Suppose the Bank had been in the habit of accepting bills for the accommodation of the plaintiff, might they not refuse to do so any longer, although they had given no notice to that effect? The circumstance of a banker having allowed a customer to overdraw his account is no evidence of a course of dealing between them, so as to impose on the banker the duty of honouring the customer's checks, notwithstanding the balance of account is against him. VOL. V.-N. S. H EXCH. 1860. CUMMING v. SHAND. 1860. CUMMING v. SHAND. POLLOCK, C. B.-I am of opinion that the case was properly left to the jury. No doubt, if a person has been accustomed to accept bills for the accommodation of another, he may refuse to do so any longer; for there is no tenancy of a man's credit which requires any time to put an end to it. But that is not the case where a course of dealing has prevailed, and value has been given for the accommodation. It makes no difference whether the one party is a factor or a banker, if the circumstances are such as to justify the other in drawing though he has not a cash credit, he is entitled to do so until he has notice that the accommodation is discontinued. The question then is, whether there was, between the plaintiff and the Bank, a course of business which could not be put an end to without a reasonable notice. It seems to me that there is no objection to the mode on which the case was left to the jury, and that they have arrived at a proper conclusion. MARTIN, B.-I am of the same opinion. The rule is moved for on the ground of misdirection; but I do not see how it was possible for the learned Judge to lay down more clearly what was the right question for the jury. WATSON, B.-I am of the same opinion. CHANNELL, B.-I also think that there ought to be no rule. The case is susceptible of two views: either that the plaintiff was to be allowed to draw, as if the advances had not been made, or that while the securities remained unrealized the advances should stand as a debit item in his account. The learned Judge did not express an opinion; but left it to the jury to deal with the evidence and say what the course of dealing was. Rule refused. |