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customer, provided they have sufficient money in their hands, and that the cheque be presented within business hours, and be drawn in a legal manner: Marsetti v. Williams (1 Barnewall and Adolphus, 415), and Whitaker v. Bank of England (1 Gale, 54). In the event of bankers dishonouring a cheque under these circumstances, they will be liable to an action by the customer, although their conduct was the result of mistake.
We shall give the judgment of the Court in Marzetti v. Williams, which is the leading case relating to this important point, at length.
Lord Tenterden, C.J., said "I think that the plaintiff is entitled to have a verdict for nominal damages, although he did not prove any actual damage at the trial. I cannot think there can be any difference as to the consequences resulting from a breach of contract, by reason of that contract being either express or implied. The only difference between an express and an implied contract is in the mode of substantiating it. An express contract is proved by an actual agreement; an implied contract by circumstances, and the general course of dealing between the parties; but whenever a contract is once proved, the consequences resulting from the breach of it must be the same, whether it be proved by direct or circumstantial evidence. The Attorney-General was compelled to admit, in this case, that if the action were founded on an express contract, the plaintiff would have been entitled to nominal damages,
although no actual damage were proved. Now this action is, in fact, founded on a contract; for the banker does contract with his customer that he will pay cheques drawn by him, provided he, the banker, has money in his hands belonging to that customer. Here that contract was broken; for the defendants would not pay the cheque of the plaintiff, although they had in their hands money belonging to him, and had had a reasonable time. to know that such was the fact. In this case a plaintiff might, for the breach of that contract, have declared in assumpsit. So, in Burnett v. Lynch (5 Barnewall and Cresswell, 589), the plaintiff might have declared as for a breach of a contract. It is immaterial, in such a case, whether the action in form be in tort or in assumpsit. It is substantially founded on a contract; and the plaintiff, though he may not have sustained a damage in fact, is entitled to recover nominal damages. At the same time, I cannot forbear to observe, that it is a discredit to a person, and therefore injurious in fact, to have a draft refused payment for so small a sum, for it shows that the banker had very little confidence in the customer. It is an act particularly calculated to be injurious to a person in trade. My judgment in this case, however, proceeds on the ground that the action is founded on a contract between the plaintiff and the bankers; that the latter, whenever they should have money in their hands belonging to the plaintiff, or within a reasonable time after they should
have received such money, would pay his cheques; and there having been a breach of such contract, the plaintiff is entitled to recover nominal damages."
A jury may give substantial damages in such a case, although no proof may be given of any actual damage: Rolin v. Stewart (23 L. J. (C.P.) 148). And if a course of dealing has existed whereby the .banker has led his customer to believe that cheques will be paid, although the banker may not actually have funds, but only expect them from the realization of consignments, then the banker will not be justified in dishonouring the cheques, until he shall have given notice of an intention to do so: Cumming v. Shand (29 L. J. (Ex.) 124).
On the other hand the Court of Chancery granted an injunction against such an action, where a bank had debited a customer with bills discounted, but not due, the acceptors having become bankrupt, but the case seems to have been ultimately settled, and compensation made to the customer: The Agra, &c., v. Hoffman (34 L. J. (Ch.) 285).
2. If funds have been previously applied in payment of a bill of exchange made payable at the bankers, but without any further authority to pay, the banker will not be responsible for refusing to pay a cheque presented afterwards. This point arose in the case of Keymer v. Laurie (18 L. J. (Q.B.) 218), which was against
bankers for not paying a cheque for £7. 11s. drawn upon them by the plaintiff, the declaration alleging that the defendants had sufficient funds of the plaintiff in their hands for the purpose. One of the pleas denied that the defendants had sufficient funds of the plaintiff in their hands, on which issue was joined.
At the trial before Lord Denman, C.J., at the sittings at Guildhall, after Hilary Term, the plaintiff proved that he kept an account with the defendants, and that on the 7th of March there was standing to his account a sum of £21. 4s., and that on the 25th of March he drew a cheque for £13. 13s., which was duly paid by the defendants.
The cheque in question was for the residue of the money alleged to be in their hands, and was drawn a few days afterwards. In answer to this case, the defendants proved that a bill of exchange for £42, which had been accepted by the plaintiff, payable at the defendants' bank, fell due on the 20th of March, and was on that day presented to the defendants, and by them paid to Messrs. Spooner and Co., who held it. In order to meet this defence, the plaintiff proposed to show that, no orders had been given by the plaintiff to the defendants to pay the bill of exchange, and that, in fact, he did not intend it to be paid, as the drawer had become bankrupt; that on the 20th of March, after the bill had been paid, a clerk of the defendants called on the plaintiff and inquired what was to be done about the acceptance, not
saying that it had been already paid; that the plaintiff desired that it should not be honoured; whereupon the clerk went to Messrs. Spooner's with the view of getting the money back, but failed to do so. The acceptance was marked as having been paid, and cancelled by mistake.
It was contended, under these circumstances, that the defendants had paid the acceptance for the £42 in their own wrong, and that the subsequent payment of the cheque operated as an admission that they had assets of the plaintiff in their hands on the 25th of March, and so that the bill had been paid without authority. The learned judge held, that whatever occurred after the payment of the acceptance was immaterial, as that payment must be taken to have been made by the plaintiff's authority, whether, so far as concerned the defendants themselves, they had paid it rightly or wrongly, and so that the assets were exhausted and this action answered. The jury accordingly returned a verdict for the defendants.
Crowder having moved for a rule calling upon the defendants to show cause why there should not be a new trial, on the ground of misdirection, the Court said-" This was an action against the defendants, who are bankers, for not honouring the plaintiff's cheque for £7. 11s., the plaintiff alleging that they had funds in their hands. It appeared that, on the 20th of March, the balance in the plaintiff's favour was £21. 4s. On that day an acceptance of the plaintiff, made payable by