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the right of a particular individual, whose name stands with others, to transfer only a certain portion up to his limited right by law, in the mere view of a joint tenancy. And it appears to me to be palpable, on the plain language of the Act of Parliament, that the transfers were to be made by the parties in whose names the stock stood which was to be made the subject of transfer or assignment. Then, in this particular case, the very view of the law which I take was, in fact, bowed to by the Bank of England, for no transfer was made except on the production of that which was apparently on the face of it, an authority of two."
These remarks of the Vice-Chancellor show that the Bank would have been the first to lament the success of the argument in this particular case. The law on this subject is not peculiar to the case of money deposited with a banker by several parties, and then drawn out by one of them, or to stock, as just stated; the same rule applies to other things. Thus, if an article be deposited by one with the authority of another, and received by the bailee to keep on the joint account of the two, one alone cannot lawfully demand it without the authority of the other, so as to sustain trover upon the bailee's refusal to deliver it: May v. Harvey (13 East, 197). See also Regina v. Turpin (2 Car. and K., 820), and Attwood v. Ernest (22 L. J. (C. P.) 225).
As to payment of cheques by banker after notice of an act of bankruptcy by drawer.
Bankers having notice of an act of bankruptcy committed by a customer, cashed cheques drawn on them by him in favour of creditors. A fiat was issued against him founded on a subsequent act of bankruptcy. It was held that the bankers could not prove under the fiat for the amount paid by them on such cheques. The Court said"This is the case of a banker who has knowledge of an act of bankruptcy, on which a fiat may never be issued. It is a very difficult position for him to be placed in; he must either issue or cause to be issued a fiat, or refuse the cheque; for, in effect, the judgment of the court of law on these actions is, that if he pays the cheque the money may be recovered from him by the assignees ": Ea parte Sharpe (3 Montague, Deacon, and De Gex, 490,8 Jurist, 1012). See Vernon v. Hunkey (2 T. R. 113), and Abbott v. Pomfret (1 Hodges, 24).
5. If the drawer of a cheque cancels or destroys it, and it is afterwards fraudulently obtained and presented, the banker ought not to pay it, and will be responsible if he should pay it.
In the case of Scholey v. Ramsbottom, the defendants were bankers, with whom the plaintiff kept cash. It was an action to recover the balance of his account; and the only question was, whether
defendants were entitled to take credit for a sum of £366. On Wednesday, the 20th September, 1809, the plaintiff being indebted to Messrs. Miller and Co., drew a cheque in their favour in the following form:
"Messrs. Ramsbottom, Newman, Ramsbottom
"London, September 20th, 1809.
Pay Messrs. Miller and Co., or bearer, three hundred and sixty-six pounds.
But finding that the sum was incorrect, he tore the cheque into four pieces, which he threw from him, and drew another cheque in the same form for £360. The latter was presented for payment and paid by the defendants the same day. On Monday, the 25th of September, the first cheque was likewise presented for payment by a person unknown. The four pieces into which it had been torn were then neatly pasted together upon another slip of paper; but the rents were quite visible, and the face of the cheque was soiled and dirty. The defendant's clerk paid it, however, without making any inquiries.
Lord Ellenborough was of opinion that, under these circumstances, bankers were not justified in paying the cheque; and the jury found a verdict for the plaintiff for £366: Scholey v. Ramsbottom (2 Campbell, 485).
6. If the drawer's signature be forged, or the amount of the cheque be fraudulently altered
after it has been properly filled up by the drawer, the banker ought not to pay it.
In the following case the plaintiffs were merchants in the city of London, having, at the time of the transaction in question, an account with the defendants as bankers. On the 25th or 26th of August, 1823, Mr. S. Hill applied to J. Hall, one of the plaintiffs, for the loan of a cheque of £3, stating at the time it was for a friend to send into the country; upon which Mr. Hall drew and delivered to S. Hill the cheque upon the defendants, using for that purpose one of the printed forms with which the defendants supply their customers. The sum for which this cheque was drawn was written by Hall in words at length in the body of the cheque, and also in figures, the latter being in the same line with his signature. Mr. Hill had been induced to apply for the loan of the cheque by one Wagstaff, who had applied to him for such a cheque; and Hill, having obtained it, handed it over to Wagstaff. Wagstaff expunged the dates, the figures, and the words three pounds, and also the figures £3. 0s. Od., and substituted the words two hundred pounds, and £200 in figures, but in such a manner that no one, in the ordinary course of business, could have observed it. The cheque, so altered, was presented by, or on account of, Wagstaff to the defendants
for payment on the 20th of August, on which day the balance in their hands, on account of the plaintiffs, was only £183. 15s. 5d. The defendants paid the amount of the cheque as altered ; and having, a day or two afterwards, received funds to cover the amount overpaid on the 29th of August, they claimed to retain the whole sum of £200 on account of the cheque drawn and paid under the foregoing circumstances.
Abbott, C.J. (afterwards Lord Tenterden) said"I am of opinion that the plaintiffs are entitled to recover. Bankers can only charge their customers with sums of money paid pursuant to order. Here, unfortunately, the bankers have paid more than the order authorized them to do, for by that they were directed to pay no more than £3. I have no doubt the bankers cannot charge their customer beyond that sum. The plaintiffs are, therefore, entitled to the judgment of the Court for the excess."
Bayley, J.-" The banker, as the depositary of the customer's money, is bound to pay, from time to time, such sums as the latter may order. If, unfortunately, he pays money belonging to the customer upon an order which is not genuine, he must suffer; and, to justify the payment, he must show that the order is genuine, not in signature only but in every respect. This was not a genuine order, for the customer never ordered the payment of the money mentioned in the cheque ": Hall and Another v. Fuller and Others (8 Dowling and Ryland, 464).