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them a considerable balance.
The drawer of the
cheque paid in a sum of money on the same day, which he expressly appropriated to the charges of the day. After paying these charges there was a balance left of £237 out of the sum so paid in. Two cheques, drawn by Robertson, were presented for payment after the cheque for £250, and were paid. On the 14th of November the bankers wrote to Kilsby, and said the cheque for £250 was not paid, and they would keep it in the hope of there being money to pay it; and they promised Robertson also to pay it when they had funds. On the 14th Robertson paid in money, which, added to the £237, was sufficient to pay the cheque. On the 15th of November Robertson failed. The Court held that the bankers were bound to pay Kilsby, although there was a large balance due to them from Robertson; and the judgment seems to have rested on the conduct of the bankers.
Abbott, C.J., said " He thought, under the circumstances, the defendants (the bankers) were liable to pay the cheque in question, in preference to the two of £50 each, and to their own balance."
11. Where the drawer and the holder of a cheque employ the same bankers, the latter are not bound to inform the holder that the drawer has no funds, unless the question be asked, and they will not be responsible if they retain the cheque for a day after it has been presented.
The consequences of the drawer and the holder employing the same banker, were much discussed in Boyd v. Emerson (2 Adolphus and Ellis, 184). It appeared that the plaintiff resided at Littlebourne, in Kent. Robert Matson was a cornfactor at Wingham, in the same county, and the defendants were bankers at Sandwich. On the 17th of November, 1832, Robert Matson drew a cheque on the defendants (with whom he then and for two or three years antecedently had kept an account) for £397. 11s. 6d. in favour of the plaintiff, who also kept an account with the defendants, and had for a considerable period employed Robert Matson as his corn-factor and salesman. The plaintiff had before that time received Robert Matson's cheques, drawn on the defendants. On the 17th of November, 1832, Robert Matson was indebted to the plaintiff in a somewhat larger sum than the amount stated in the cheque. On the morning of the 18th (Sunday), Robert Matson delivered to the plaintiff the cheque, and on the 19th (Monday), about a quarter before 1 o'clock in the afternoon, the plaintiff took the cheque to the defendants' bank, and saw Mr. Reader, their
cashier and confidential clerk of the establishment, and gave him directions to provide for the payment of a bill made payable at their correspondents in London (Glynn & Co.) for £75, in the following month. A memorandum of the request was made at the time by Mr. Reader. While Mr. Reader was making a memorandum of this request, the plaintiff, laying the cheque for £397. 11s. 6d. on the counter, said "Place this to my account" or "credit." No intimation was given to the plaintiff at the time that his request to have the amount of the cheque carried to the credit of his account would or would not be complied with, or that Matson had overdrawn his account. Mr. Reader knew, at the time the cheque was presented, that Robert Matson was indebted to the bank upwards of £1,700, and doubted whether the cheque would be honoured by the defendants, but he knew it to be his duty, if cash was demanded for a cheque, to pay it. He also knew that Matson had frequently been permitted to overdraw his account. Mr. Reader expressly abstained, from motives of delicacy to Robert Matson, from disclosing his doubts or the state of the accounts. A few minutes after the plaintiff left the banking-house, Reader took the cheque up from the counter, but did not debit Matson with the amount, or credit plaintiff with it, or cancel the cheque. Other cheques of Robert Matson, drawn on the defendants for about £1,500, were received on the 18th from the Canterbury
banker. Mr. Hodgson (one of the firm) was away from the bank on the 18th, but returned about 5 o'clock in the afternoon of the 19th, the bank having closed at four. The fact of the receipt of the cheques was then disclosed to him by Mr. Reader.
The post leaves Sandwich at 7 o'clock in the evening, two hours subsequent to the arrival of Mr. Hodgson. It was determined that Mr. Reader should go to Wingham before breakfast the next morning (Tuesday), to ascertain from Robert Matson whether he had paid any money's to their credit with their London correspondents. On his arrival at Wingham on Tuesday morning, Reader found that Matson was in London, but was expected to arrive at Canterbury the same day by coach, at about 10 o'clock. Mr. Reader then proceeded to Canterbury, but finding that Robert Matson did not arrive, he returned to Sandwich, where he arrived a little after 2 o'clock. Mr. Hodgson, finding that no assets had been received to discharge the large amount of cheques drawn by Matson on the house, determined not to pay any of them; and a messenger was sent by him to the Canterbury banks and to Littlebourne, returning all the other cheques to the Canterbury banks, and the cheque in question to the plaintiff, inclosed in a letter to the plaintiff, which was delivered to him at 7 o'clock on the Tuesday evening, and which was as follows:
"MY DEAR SIR,-On my return home last night, I found Mr. Robert Matson's cheque which you had left with Mr. Reader; but not having effects in our hands to meet it, I sent over to Wingham this morning to see him, but unluckily he was from home in London, which, for the present, constrains me to return the cheque.
No previous intimation whatever had been given to the plaintiff of the defendants' resolution not to pay the cheque.
The question for the opinion of the Court was, whether the plaintiff was entitled to recover the amount of the cheque. If so, the verdict which had been taken for the plaintiff, to stand; if not, a nonsuit to be entered. After an elaborate argument, the Court decided in favour of the defendants.
Lord Denman, C.J., said-"It seems to me that, according to the facts submitted for our consideration, the plaintiff has failed to prove his declaration, It is not proved that, in consideration of the plaintiffs delivering up the cheque to the defendants, they promised to pay the amount thereof. What passed when the bill was left was equivocal; for it appears, that while Mr. Reader was making a memorandum, the plaintiff, laying the cheque on the counter, says, 'Place this to my account or credit.' No intimation was given to the plaintiff, at the time, that his request would