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him at the defendant's for £42, was presented and paid. The cheque in question was presented about a week afterwards. The plaintiff was prepared to prove that on the 20th, after the acceptance had been paid, a clerk of the defendants called on him to know what should be done about that acceptance, not stating that it had been paid that the plaintiff directed that it should not be paid; that the clerk endeavoured to get the money back from the persons to whom it had been paid, marking the acceptance as paid and cancelled by mistake, but they refused to refund: and that the defendants had afterwards, on the 25th of March, honoured a cheque drawn by the plaintiff for £13. 13s., and so the plaintiff contended that the defendants had paid the acceptance for £42 in their own wrong, as appeared by their own conduct, and had still funds in hand sufficient to pay the cheque in question for £7. 11s. The learned judge held that these facts, if proved, would make no difference; that the defendants had authority from the plaintiff to apply his money towards the payment of the acceptance, and so had properly applied and exhausted his funds, and that what happened afterwards was immaterial. We think he was right in so holding. The plaintiff, by making the acceptance payable at the defendants, clearly authorized them to pay it; and if the balance in his favour had been £42 on the 20th of March, they would have been bound to pay it, unless the plaintiff, before it was pre

sented, had countermanded that authority. They were not, indeed, bound to pay it under the existing circumstances, because they had not sufficient funds; but they were fully authorized to apply what funds of the plaintiff they had towards the payment. Whether they could recover from the plaintiff the additional sum which they advanced to make up the £42 (which was necessary to be advanced, since the holders would probably not have taken part only; nor is it customary to offer a part payment), it is not necessary for us to determine. That question might depend on the course of their dealings, and other circumstances which are not before us. It is sufficient for the present purpose to say, that we are clearly of opinion that the defendants had authority to apply what funds of the plaintiff they had towards the payment of the £42 acceptance; and that if the plaintiff intended them to dishonour that acceptance, he should have given them notice to do so. What took place after they had paid the acceptance, however ill advised on their part, could not alter or destroy the pre-existing authority. We are, therefore, of opinion that there was no misdirection in this case, and the rule for a new trial must be refused."

3. Duty of a banker as to the payment of cheques, when an account is opened by more than one person, not being partners in trade.

When an account is opened by several persons,

it appears always to have been the practice of bankers to require the signature of all those persons to the cheques that are used to draw out any of the money. Thus, part of a bankrupt's estate was paid into the Bank of England in the names of five assignees. One of the assignees died, and another went abroad and the remaining assignees applied to the Bank to draw out the money, but the Bank refused to pay them; and it became necessary to apply to the Lord Chancellor for an order, which on being granted, was of course a sufficient indemnity to the Bank: Ex parte Collins (2 Cox. 427). Again, in the case of Ex parte Hunter (2 Rose, 363), the petitioners and Fidgeon, as the assignees under a bankruptcy, opened an account with the Bank of England, and paid in the proceeds of the estate as they were realized. Fidgeon absconded, and was declared bankrupt, but did not surrender. A dividend having been ordered, the petitioners drew upon the Bank, who refused to pay the drafts without the additional signature of Fidgeon. The petition prayed that the Bank of England might be directed to pay cheques signed by the petitioners only, to the extent of the bankrupt's property there deposited, and the Lord Chancellor made the order.

The foregoing cases show what is the practice of bankers; but they do not go to the extent of proving that bankers would incur any liability by paying such cheques. It is now, however, clearly settled that bankers are not justified in paying

cheques drawn by one of several persons having an account, and not being partners.


In Stone v. Marsh (Ryan and Moody, 369), the Court said " If two persons give a power of attorney to bankers to sell out their joint stock, the bankers ought to place the proceeds to their joint account, and both ought to draw."

In Innes v. Stephenson (1 Moody and Robinson, 145), it was contended that bankers had a right to pay cheques drawn by one assignee in the absence of the others; but Lord Tenterden said— "That the case was a very clear one, that money was paid to the bankers by three persons, not partners in trade; that it had been stated that one of them could draw cheques so as to bind the others but that was not the law, and to allow it would defeat the very object of paying it in jointly; and it must be well known to the jury that it was not the practice, unless the persons drawing stood in the relation of partners."

This principle was laid down in Dixon's Case (2 Lewin's Crown Cases, 178) by Mr. J. Patteson, who said "Here the bankers, being authorized to pay the money to three persons in particular, and to them only, pay it to one of those persons and to two who are strangers to the transaction, and that without any authority, genuine or colourable, from the real parties." And, accordingly, the bankers were held to be the parties who had been defrauded by the forgery there committed, inasmuch as they were liable for the money they had

so paid on the genuine authority of one person only out of three persons.

In the late case of Slowman v. Bank of England (9 Jurist, 243), an elaborate attempt was made by the Bank of England to break in upon this principle, so far as related to joint holders of stock. There a sum of stock was standing in the names of two trustees, and one of them forged the name of the other, and sold out the stock. The parties beneficially interested filed a bill in Chancery to recover the stock; and one of the points taken by the Bank to defeat the bill was, that the transfer by the one trustee had the effect of severing the joint tenancy, and leaving the other trustee legal owner of a moiety. But the Court said-"The absolute nonsense of that is apparent from this, that if it be so, and if the right of the joint tenant is to transfer a moiety, put the case that £1,000 stock stands in the names of A. and B. jointly, then A. transfers a moiety. What is the consequence? £500 appears to remain in the names of A. and B.-A. has still a right to transfer a moiety; and so he may go on, transferring moiety after moiety of every remaining sum, until, as the expression is, the remainder will be less than any assignable quantity. Virtually he will have the power to transfer the whole; and then that will be the result of the doctrine, that a joint tenant has himself the right to make a transfer of the moiety. And it would be quite impossible for the Bank of England to be always keeping a sort of check account against

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