« EelmineJätka »
the office, than if it be entrusted to an agent: because there may be cases in which circumstances of convenience would not require that the joint cheque should be signed by that assignee until the application of the creditor, and until the time of delivering the cheque. Upon the whole, I am of opinion that the delivery of these cheques by Brind to Shackell, as his co-assignee, was an act done in the proper execution of his duty as a trustee and that he is not responsible for the subsequent loss of these cheques. Ex parte Griffin and Others in the matter of Dixon (2 Glyn and J., 114). By 12 & 13 Vict., c. 74, the Court of Chancery is empowered, on petition, to order money deposited with a banker to be paid to some of several trustees for the purpose of being paid or delivered to the Accountant-General. Trustees of a benefit building society are not responsible for cheques drawn by them on the authority of the directors, although such cheques may be used for purposes not warranted by the rules. Grimes v. Harrison (28 L. J. (Ch.) 823).
If a cheque be signed in the name of the firm by either partner, the whole firm will be liable as drawers, notwithstanding the partner, by so doing, may have violated some private arrangement between himself and co-partners, and the bankers will be bound to pay such cheques unless they have entered into a special agreement to the contrary: see "Byles on Bills," p. 30.
If a lunatic draw a cheque, he will be liable to pay it to any bonâ fide holder, who has taken it without notice of the lunacy. The law being, that where a person, apparently of sound mind, and not known to be otherwise, enters into a contract, which is fairly executed, the contract cannot be afterwards set aside, either by the alleged lunatic or by those who represent him: Molton v. Camroux (18 L. J. (Ex.) 68). See also Rock v. Slade (7 Dowling, 22).
If the drawer of a cheque be an infant, he cannot be made liable upon it: Williamson v. Watts (1 Campbell, 552).
7. Married Women.
Except so far as a married woman is now empowered by the 33 & 34 Vict. c. 93, she cannot enter into any binding contract at law; and where her husband suffers her to keep a separate account with a banker, he will be bound by her signature to the cheques, to the extent of the funds in the banker's hands on such separate account; but probably the banker could not sue the husband in the event of the account being overdrawn.
The Acts of Parliament regulating savings banks enable such banks to treat married women as if they were unmarried, unless the husband should give notice to the contrary. See Moses v. Levi (3 Y. & C. 359), West v. Wheeler (3 Car. & K.
714), Freestones v. Butcher (9 Car. & P. 643), Agar v. Blethyn (5 L. J. (N.S.) (Ex.) 36, 2 Cr. Mee & R. 669, 1 T. & G. 160); Calland v. Lloyd (6 Mee & W. 26); Bankers' Mag., 1852; Lindus v. Bradwell (17 L. J. (C.P.) 121).
The Act 33 & 34 Vict., c. 93, s. 1, enacts:-"The wages and earnings of any married woman acquired or gained by her after the passing of this Act in any employment, occupation, or trade in which she is engaged or which she carries on separately from her husband, and also any money or property so acquired by her through the exercise of any literary, artistic, or scientific skill, and all investments of such wages, earnings, money, or property, shall be deemed and taken to be property held and settled to her separate use, independent of any husband to whom she may be married, and her receipts alone shall be a good discharge for such wages, earnings, money and property." S. 11:-"A married woman may maintain an action in her own name for the
recovery of any wages, earnings, money, and property, by this Act declared, to be her separate property, or of any property belonging to her before marriage, and which her husband shall, by writing under his hand, have agreed with her shall belong to her after marriage as her separate property, and she shall have in her own name the same remedies, both civil and criminal, against all persons whomsoever for the protection and security of such wages, earnings, money, and property, and of any
chattels or other property purchased or obtained by means thereof for her own use, as if such wages, earnings, money, chattels, and property belonged to her as an unmarried woman; and in any indictment or other proceeding it shall be sufficient to allege such wages, earnings, money, chattels, and property to be her property." It seems, therefore, so far as regards the property enumerated, a married woman may keep a banker and draw cheques, and sue and be sued thereon.
Executors and Administrators.
"One of several executors has power to act individually, and without the concurrence of the coexecutors."-"Williams on Executors," 683. It is therefore apprehended that where a testator has a balance at his bankers, any one of the executors might draw it out, although such a course would be so unusual that a banker might be justified in hesitating to sanction it; but after the account is altered into the names of the executors a new arrangement is generally made with regard to the signing of cheques, which would exonerate the bankers who acted on it, whatever might be its effect on the liabilities of the executors between themselves: Clough v. Bond (3 M. and C. 490). A Probate is conclusive protection to all who act under it, although it may have been granted in respect of a forged will: Allen v. Dundas (3 T. R. 125). And so is an administration, although a will may exist, and be afterwards proved: Prosser v. Wagner (26 L. J. (C.P.) 81).
1. Of cashing a cheque when the holder is a bailee.
THE holder of a cheque to be kept in trust for other parties, and to abide the result of certain experiments; or, in other words, a stakeholder is not guilty of a breach of duty in cashing the cheque, provided the parties treated the cheque as money. In a case of this sort, Mr. J. Coleridge said—“I was much struck with the argument as to the