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with printed forms of cheques, and that the latter generally drew on them by such cheques; and that, by a printed notice, they specially desired that their customers would use them, but that, notwithstanding, it was their practice to pay written cheques, if they thought the signature genuine. It further appeared that the defendant had represented to the bankers that the cheque had been written on a piece of paper containing his signature, which was lying in his office, by a person named Jones, who was his clerk.

This last representation was made after Jones had been taken into custody on a charge of having forged the cheque. In consequence of what the defendant said on the Monday to the bankers, they caused the following entry to be made on the credit side of his account in their books:"November 5th, 1827. Charles Woodward, by Williams & Co., for forged cheque £154." The defendant was the secretary to one of the London Gas Companies, of which one of the plaintiffs was the treasurer, and Jones was in the constant habit of going backward and forward from the defendant to the banking-house on the business of the company. The bankers' clerk who was examined, was not able to mention any instances in which the plaintiff had sent cheques not in the printed form.

The clerk who paid the cheque was examined before the grand jury on an indictment for forgery against Jones, but had since become insane, and

could not therefore be examined at the trial. The defendant also went before the grand jury. The bill was returned by them "Not found."

Tindal, C.J., in summing up, said—“This is an action brought to recover a sum of £154, which the plaintiffs say they have paid under a mistake. In point of fact, the question is, whether, upon the evidence, they are at liberty to claim that money again, and that will depend upon whether the instrument was genuine or not; for if it was genuine, and they found it out afterwards, they might rescind the payment. The burthen of proof is on the plaintiffs. It is for them to show, in this case, that the instrument was genuine. An instrument is as much a forgery if the name has an order for payment written over it, without any intention in the signer that the signature should authenticate the instrument, as if the whole is forged. There is no positive affirmative evidence that the defendant had ever authorized Jones to draw cheques for him."

The jury found a verdict for the plaintiffs, but said that, in their opinion, there was not any imputation on the character of the defendant. Williams and Others v. Woodward (4 Carrington and Payne, 346).

9. A banker who pays a cheque without funds, cannot legally receive the amount from his customer after the latter has committed an act of bankruptcy.

A bankrupt had, by his acceptance of a bill of £300, made it payable at the house of the defendants, who were his bankers; it fell due on the 8th of August, a Saturday, and on that day was presented to them and they paid it, having at that time, as it afterwards appeared upon a statement of the bankrupt's banking account, a balance of £54 only in their hands. The bankrupt, on the morning of Monday, the 10th, as soon as the defendant's shop was open, paid them £250 to the credit of his account there. He had committed an act of bankruptcy on the preceding Wednesday, the 5th of August, and a docket was struck against him on the 8th, on which a commission issued on the 17th. The defendants, when they received the money, had no knowledge of Halls (the bankrupt) having committed an act of bankruptcy. The assignees sued the bankers to recover what the bankrupt had so paid. The jury found a verdict for the plaintiffs, thereby deciding that the banker could not retain the £250.

Shepherd (Solicitor-General), moved the Court to set aside the verdict and enter a nonsuit, contending that the payment of the £250 was protected by the statute 19 Geo. 2, c. 32, sec. 1; for that the defendants were creditors in respect

of a bill drawn by the bankrupt, namely, his direction to them to pay his acceptance. If he had drawn a draft upon the defendants, and they had paid it, that would have been a thing upon which they could have maintained an action against him, and this direction to pay his acceptance was equivalent to it.

Gibbs, C.J., said "If this, instead of an acceptance made by the bankrupt payable at the defendants, had been a draft drawn upon them, it would not even then have been within the statute; the statute contemplates bills accepted by the bankrupt in respect of which debts arise to the creditor. If a man draws a bill on another, who pays it, the drawee cannot afterwards bring an action against the drawer thereupon, as if he was the bearer of the bill. He does not take the bill as an indorsee, he discharges the bill. It has been held at law that if one of two obligors discharges a bond, he cannot set it up and recover on it against the other. Here the bankrupt desires, by an order written on the bill, the defendants, as his agents, will pay the bill. The defendants never became indorsers or holders of the bill; the case is the same as if the bankrupt had written a letter to the defendants, desiring them to pay a sum of money; when they have done it, there is an end of the letter, it is not transferred to them as a negotiated instrument. This is not within the words of the Act, which are, 'A person who shall be really and bonâ fide a

creditor of the bankrupt, for or in respect of any bill or bills of exchange really and bona fide drawn, negotiated, or accepted by such bankrupt.'


Chambre, J.-" This is merely a loan of money. The Act is confined to two cases-first, where the money may be recovered in an action for goods sold and delivered; and secondly, where an action may be brought against the bankrupt upon bills. This is neither of those cases; it is merely the case that the bankrupt, finding his account overdrawn, and thinking it a hard case on the bankers, sends them this sum." Rule refused. Holroyd and Others v. Whitehead and Others (3 Campbell, 350).

The foregoing case is qualified by the recent statutes relating to dealings with and payments to or by bankrupts. But these statutes do not sanction a fraudulent preference, and therefore the case may still be law to a considerable extent. The payment to the bankers was made without any pressure by them, and might be deemed a fraudulent preference.

10. Bankers may, by their conduct, render themselves liable to pay a cheque, although they have a large balance due to them by the drawer.

In Kilsby v. Williams (5 Barnewall and Alderson, 815), Williams and Co., the bankers, received a cheque on the 13th of November, from a customer named Kilsby, for £250, which was drawn by another customer named Robertson, who owed

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