THE LIBRARY 
 
 OF 
 
 THE UNIVERSITY 
 
 OF CALIFORNIA 
 
 LOS ANGELES 
 
 SCHOOL OF LAW 
 
 is the Property 
 )f the 
 IUNTY LAW LIBRARY 
 
 // found elsewhere than in 
 Law Library, please return, 
 or notify Librarian. 
 
 Books belonging to this 
 
 Library are never sold, 
 
 exchanged or given away. 
 
 CHICAGO STAR 
 BINDSRY 
 224 S. SDtinf St., L. 
 Tel. MUtual
 
 LAV/ LI& i\ 
 
 OF 
 LOS ANGELES COUNTY
 
 A TREATISE 
 
 Cj}£ Jain 
 
 RELATING- : TO 
 
 BANKERS AND BANKING. 
 
 By 
 
 JAMES GRANT, M.A., ESQ., 
 
 OP THE MIDDLE TEMPLE, BARRISTER AT LAW; 
 AUTHOR OP "THE LAW OP CORPORATIONS IN GENER\L." 
 
 PHILADELPHIA: 
 
 . T. & J. W. JOHNSON & CO., 
 LAW BOOKSELLERS AND PUBLISHERS, 
 
 No. 197 CHESTNUT STREET. 
 1857.
 
 T 

 
 ft) 
 
 
 
 PREFACE. 
 
 These pages are the result of an endeavour to compile the law re- 
 lating to the business of banking, as gathered as well from statutes as 
 from the decisions at common law, in equity, and in bankruptcy. A 
 work on such a plan, if properly executed, seems to be wanting, and 
 the author trusts that his attempt to supply the void will not prove 
 wholly unacceptable to the class of persons for whose use it is princi- 
 pally designed — the professional advisers of the great banking interest 
 of this country. The first duty, it is conceived, of any one who deals 
 with a subject of so great importance, and such general interest, is 
 to aim solely and entirely, to the exclusion of all other purposes, 
 at practical utility ; accordingly from his book the author has carefully 
 excluded all ambitious attempts at scientific disquisition: the endea- 
 vour has been not to speculate how the law might be improved, not to 
 lay down what it ought to be, but what it is ; so that every one, whether 
 concerned for a person carrying on the business of banking solely, or in 
 a common law partnership, whether a shareholder or director in a bank- 
 ing copartnership, under statute 7 Geo. IV., or in a joint stock company 
 under statute 7 and 8 of the Queen, might find here the law, so far as it 
 has hitherto been prescribed by statutory enactment, or developed, ascer- 
 tained and explained by judicial decisions, clearly, accurately, and use- 
 fully stated. In this view, the plan has been followed of placing before 
 the reader not merely statements of the dry points of law, which were 
 decided in the cases collected ; but, as a rule, a summary of the principal 
 facts, and occasionally of the arguments urged before the court, together 
 with the main grounds on which the judgment proceeded, are also pre- 
 sented. By this means, and by the endeavour to lay down no position 
 or principle unaccompanied by examples to illustrate its application and 
 effect, it has been hoped to provide facilities, in a compendious form, for 
 the solution of every question that can arise, provided such question, in 
 its nature, falls within any of the classes of questions which have already 
 passed into res judicatce. By this means, at any rate, it may be hoped 
 that a person who consults this work, in order to know what are his 
 rights or liabilities, and what the proper course of conduct in any given 
 January, 1857. — 2 
 
 b7'S\%
 
 j v - ! II i: LAW OF BANKING. 
 
 f oiroumstanoes, will be enabled readily to observe and to de- 
 irhether the principles and rules stated under the head to which 
 hi.- difficulty belongs, have been applied to, or deduced from, circum- 
 stances the same as, or analogous to, those of his particular ease, and 
 whether the reasons assigned by the court meet the difficulty and govern 
 
 the I 
 
 ' In i>rd< r to render the Treatise more widely available for every-day 
 reference, the rol< rtdons, cautions, &o., for the conduct of 
 
 bankers, which the author has thought it desirable to interpose, while 
 they have been immediately derived, in all cases, from the observations 
 of the judges in law and in equity, have been — as it is hoped will be 
 found — as much as possible expressed in the language of business, 
 divested of legal technicalities, and adapted for the probable require- 
 ments of practical men. 
 
 It may 1 bjeoted that the plan of this work is incomplete, foi not 
 
 separately and specifically, the subject of the law relating to 
 the Hank of England. The answer is, that law is spread over several 
 hundreds of statutes — the titles alone of these statutes fill about 200 
 - iif th«' statute book; — an adequate statement of 'it would have 
 occupied, even in a condensed form, a space sufficient to have probably 
 doubled, at the lowest estimate that could be formed, the bulk of this 
 volume ; while the whole of that additional matter would have been found 
 quite useless for the general purposes of those for whom the work is 
 designed, being only serviceable to such persons as might wish to ascer- 
 tain the relations of the Hank of England to the Government, in reaped 
 of the management and other details concerning the national debt, 
 N iw, on these subjects it would be impossible to present tin- 
 law in a Bhape at once compendious and useful; every one with expe- 
 rienoc in suoh matters knows, that in practice no result that is Batisfac- 
 iii be had, except by recourse to the words of the statutes them- 
 selves, viewed in connection as a whole. For these reasons, it has been 
 decided not to attempt dealing with this branch of the law relating to 
 tin- 1! ink of England ; what has been attempted on this head is to pre- 
 -• m a full view of tin- law, whether contained in statutory enactments 
 or in judicial decisions — in the first case in the very language of parlia- 
 ment -- as it relates to the monopoly of the Bank of England, in its bear- 
 upon the rights and liabilities of the banking interest throughout 
 the country, together with all such matters couueeted with government, 
 and hank. Stock, \c("| and the practice, on various points, of the 
 Hank of England, &C., as hankers and their customers an' entitled to 
 t they shall find information upon, in a work of this nature. 
 
 \ -mutuary vi.-w of the legislation respecting the Bank of England 
 and it- monopoly is not without it< interest, and will be found suffi- 
 cient!;. Useful a- an introduction t,, many of the subjects treated in the 
 following pages to justify insertion lure 
 
 • Seconal i and the regulations of the Stork Ex- 
 
 change Commit) Fenn on English n Funds, Ac, pp
 
 PREFACE. v 
 
 In 1694, parliament gave power to incorporate a body of persons as 
 The Governor and Company of the Bank of England, who were enabled 
 to purchase and retain lands, &c, and to aliene the same; but the cor- 
 poration was only to endure until the twofold condition should be com- 
 plied with, by the government, of giving a twelvemonths' notice of 
 dissolution, at any time after 1st August, 1705, and repaying the capital 
 borrowed from the bank. Their existence as a body politic has been 
 prolonged, their original powers and privileges being on most occasions 
 altered, and latterly limited, by successive statutes down to 1844, com- 
 monly known as the Bank Charter Act, under which it stands at present, 
 liable, according to that statute, to be put an end to at any time upon 
 twelvemonth's notice given after 1st August, 1855, and upon repayment 
 by parliament to the bank of the sum of £11,015, 100, the debt then 
 due from the public to the bank, &c, and upon payment to the bank of 
 all arrears of the sum of £100, 000 per annum (the " yearly fund"), and 
 also upon repayment of all principal and interest which shall be due to 
 the bank upon all such tallies, exchequer orders, exchequer bills, or 
 parliamentary funds, which the bank shall then have remaining in their 
 hands ; such cessation of their existence, powers, &c, to take place at 
 the expiration of the said notice. Any vote or resolution of the House 
 of Commons, signified under the hand of the speaker in writing, is suffi- 
 cient notice. Soon after the establishment of the bank, they obtained 
 an enactment " that no other bank or any corporation, society, fellow- 
 ship, or constitution, in the nature of a bank, should be erected, or 
 established, permitted, suffered, count enancedor allowed by act of Par- 
 liament, within this kingdom. (bj Ten years later was passed the enact- 
 ment, which, with limitations from time to time, has subsisted to our 
 own day, and which forbade any other body politic erected or to be 
 erected, or any other persons united or to be united in covenants or part- 
 nership exceeding six persons, in England, to borrow, owe, or take up 
 any money on their bills or notes payable at demand, or at any less time 
 than six months from the borrowing thereof.(c) In 1742, the privilege 
 was again solemnly recognized by Parliament, (d\ that no other bank 
 should be erected, established, or allowed by Parliament ; and that it 
 should not be lawful for any body politic, or for any other persons united 
 in covenants or partnership exceeding six persons, in England, to borrow, 
 owe or take up any money on their bills or notes payable at demand or 
 at any less time than six months from the borrowing. 
 
 In 1781, this enactment was repeated verbatim, (e\ as it was in 
 1800. (/) At length, in the year 1826, came a limitation of the bank's 
 monopoly to London and a district of sixty-five miles around it, by which 
 any body politic, erected for the purposes of banking, and any number 
 of persons united in covenants or partnership, although exceeding the 
 number of six, may carry on business as bankers in England, and make 
 and issue their bills or notes at any place or places in England exceed- 
 
 (4) 8 & 9 Will. & M. c. 20. (c) 7 Anne, c. 7, s. 61. 
 
 (d) 15 Geo. 2, c. 13, s. 5. (e) 21 Geo. 3, c. 60, s. 12. 
 
 (/) 39 & 40 Geo. 3, c. 28, s. 15.
 
 v , Q R AN T N HIE L A W F B A N K I X U. 
 
 ing sixty-five milee from London, made payable on demand, or other- 
 
 at some place or places specified on the same, and may borrow, owe 
 or take up any money on their bills or notes so made and issued at any 
 such place, &c, provided they have no house of business, as bankers, in 
 London, &c., &a : and the Bank of England was enabled to erect branch 
 banks in any part of England. (<j) In 1833, however, any body politic, 
 and any other persons united, <fcc, in partnership, though exceeding the 
 number of six, in business as bankers, were allowed to make bills or 
 promissory notes payable by an agent in London, or to draw on such 
 agent,(A) payable on demand, or otherwise, in London, and for any less 
 amount than £50, which they could not do before. Still, it was, the 
 same year, enacted, that no body politic, no society, company, or per- 
 sons in covenants or copartnerships, exceeding six persons, shall make 
 or issue in London, or within sixty-five miles thereof, any bill of ex- 
 change or promissory note, or engagement for the payment of money on 
 demand, or upon which any holder might obtain payment on demand ; 
 but any such body might carry on business within the said limits, pro- 
 vided they did not borrow, owe, or take up money on their bills or notes 
 payable on demand, or at any less time than six months from the bor- 
 rowing :(/') but then as a compensation, Bank of England notes were 
 made a legal tender anywhere but at the Bank of England or the branches. 
 In 1844, a new system was introduced, (/t) steps were taken towards 
 getting rid of the country bank circulation of notes, in time, by holding 
 out inducements to bankers to cease issuing, and by prohibiting bankers 
 who had once ceased from resuming the issue, and by prohibiting every 
 banker who was not issuing his own notes on 6th May, 1844, to issue for 
 the future ; it was also enacted, that any society or company, or any per- 
 
 in partnership, though exceeding six, in business as bankers, in 
 London or within sixty-five miles, may draw, accept, or indorse, bills of 
 exchange, not being payable to bearer on demand ; and in the same year, 
 the system of joint stock banking companies was established//) the sys- 
 tem of banking copartnerships having been set up in 1826. Prior to 
 is^i;. nowhere in her Majesty's dominions, at all events nowhere in 
 England, could more than six persons associate together for the purpose 
 ol carrying on the banking business. (m\ But there never was, appa- 
 rently, anything in the nature of legal restriction, to prevent private 
 
 - in London, not having more than six partners, from issuing their 
 own notes payable to bearer; and the historical fact is, that Goldsmith's 
 ootes, as private bank notes were then called, were issued by private 
 bankers in London for some years after the Bank of England was estab- 
 lished. 
 
 \\ "ith respect to those comparatively new modes of carrying on the 
 business of banking, the banking copartnerships, and joint stock bank- 
 
 ompanies, much attention has been paid, to place before the reader 
 the law relating to them in as clear a tight as possible; the subject of di- 
 
 (h) 3 & 4 Will. 4, c. 83, s. 2. 
 ■ 3. (fc) 7 & 8 Vict. c. 32. 
 
 (0 7 & 8 Vi.t. c i L3. („,) Lord Cranworth, V. C, 1 Sim. N. S. 234.
 
 CONTENTS. v jj 
 
 rectors' powers and liabilities, civil and criminal, the rights and liabili- 
 ties, and remedies of shareholders, as involved on the bankruptcy, or 
 winding up of these bodies, and also generally, it is hoped, will be found 
 explained in as satisfactory a manner as the present state of the law ad- 
 mits of. 
 
 The subject of colonial banks has not been omitted, and there is sub- 
 joined a Summary View of the Law relating to Savings' Banks. 
 
 An Index of matters, which no pains has been spared to render com- 
 plete, is annexed, for the purpose of rendering the volume generally ac- 
 cessible :— a Table of Cases decided, and another of Statutes, have been 
 added, for the convenience of professional persons, who are accustomed 
 to refer to law treatises by those means. 
 
 Middle Temple, 
 Nov. 18, 1856.
 
 TABLE OF CONTENTS. 
 
 i 
 
 The pages referred to are those between brackets, [ ] . 
 
 Table of Cases cited. 
 
 Statutes cited. 
 
 Chap. 
 
 I. The general outline of the Relations between Banker and Cus- 
 tomer, and the Principles and Rules of Law governing those rela- 
 tions, ........ 
 
 II. The Rules and Principles governing Cheques or Drafts on Bankers, 12 
 
 III. The Duties and Rights of Bankers in respect of Bills of Exchange 
 
 made payable at their Banking-houses, . . . .104 
 
 IV. The Duties of Bankers in respect of the Orders of their Customers, 115 
 
 V. The Obligations of Bankers giving Accountable Receipts, . 129 
 
 VI. The Rights and Liabilities, criminal and otherwise, of Bankers on 
 the Deposit with them of a Customer's Securities for safe custody 
 or other special purpose ; as also on the taking of Securities against 
 Loans or Advances made to Customers, .... 138 
 
 VII. The Rights and Remedies on Guarantees, Bonds, &c, given to 
 Bankers by third persons to secure Advances to Customers, and 
 when given to secure the Fidelity, &c, of Clerks, Officers, &c, . 220 
 
 VIII. The Principles upon which, on a Customer's Running-account, Pay- 
 ments made by him into the Bank are to be appropriated, . 278 
 
 IX. The Rules regulating the Lien which a Banker has upon Securities, 
 
 Goods, Shares, &c, of Customers, when placed in his hands, . 283 
 
 X. The Law as to Banking Partnerships constituted at Common Law, 
 and also as to the Rights, Remedies and Liabilities of Bankers, 
 in dealing with Firms as Customers, .... 291 
 
 XL The Rules, Principles and General Considerations on which the 
 conduct of Bankers is to be guided on the Bankruptcy of Cus- 
 tomers ; the Rights of Bankers, and the several modes of realiz- 
 ing them, &c, together with the Law relating to the Bankruptcy 
 of Bankers themselves, . . . . . .314
 
 j 1 THE LAW OF DAN KINO.. 
 
 XII Societies,* • an, l 
 
 iblie character, and of persons bearing a repre- 
 
 >f the latter to 
 lating to the Public 
 
 . . . 340 
 
 \I1I. ■• ■< m affording 
 
 odation by way of Dii . . • • 381 
 
 XIV. 1y relating to Country Banks, and their Bank 
 
 ■.■I governing transact Corresi indents, 
 
 : '■! . i . .ml in case of 
 
 Bankruptcy, >v.>.. ....... 399 
 
 X\'. and Enactments relating to Banking Copartnerships 
 
 : G . i. • . ■■.and to Shares and Bnareholdi 
 I \m ctors and other < Officers therein, and the Rights and Remedies 
 her with the subjects of the Bankruptcy and 
 Winding-up the affairs of these bodies, .... 15:'. 
 
 XVI. The Decisions and a summary oftfc Joint 
 
 k Banking Companies constituted under 1 \ 113, 
 
 . comprising the Right j of Customers and Share- 
 
 holders respectively, the Duties and Responsibilities, criminal and 
 
 -wise, of Directors, Managers and other Officers; and the 
 ts of the Bankruptcy and Winding-up the affairs of these 
 bodies, ........ 579 
 
 XVII. A Summary of the Law of Savings' Banks, chiefly as affects ordi- 
 nary Bankers becoming connected with these Institutions, . 61 1 
 
 Index ok Matti ....... 625
 
 TABLE OF CASES. 
 
 The pages referred to are those between brackets, [ ]. 
 
 Abbot v. Douglas, 19, 91, 406. 
 Abbott v. Rogers, 580. 
 
 ■ v. Stratton, 357. 
 
 Abraham v. Hannay, 556. 
 
 , R. v. 102. 
 
 Acraman v. Herniman, 235. 
 
 Adair, Clark v. 60. 
 
 Adams v. Claxton, 178, 210, 347. 
 
 , Noble v. 93. 
 
 Ade, Parker v. 108. 
 Albrecht, Duncuft v. 371, 491. 
 Alder v. Keigkley, 386. 
 Alderbury Union, Mills v. 276. 
 Alexander v. Barker, 607. 
 
 v. Burchfield, 50, 52, 56, 95, 
 
 97. 
 
 , Ex parte, 198. 
 
 , Hart v. 130, 303. 
 
 v. Mackenzie, 516. 
 
 v. Vaughan, 610. 
 
 Allcock, Watson, v. 235. 
 Allday, Green v. 18. 
 Allen v. Dundas, 40. 
 
 v. Edrnundson, 106. 
 
 , Hancom v. 375. 
 
 v. Reeves, 17. 
 
 v. Kemble, 436. 
 
 Allenby, Camidge v. 31, 33, 66, 409, 
 
 410, 414. 
 Alsager v. Currie, 335, 337, 382, 385. 
 Alston, M'Gahey v. 273. 
 Amory v. Mereweather, 63. 
 Ancher v. England, Bank of, 391. 
 Anderson, Brown v. 280. 
 
 , England, Bank of v. 5, 6, 
 
 439, 457, 459. 
 , Lowndes v. 404, 423. 
 
 v. Thornton, 265. 
 
 Anderton, Bradbury v. 7. 
 Angas's case, 492, 565. 
 , Ness v. 483, 492. 
 
 Anson v. Towgood, 367. 
 Appach, Ex parte, 345. 
 Appleton, Henderson v. 412. 
 
 v. Sweetapple, 408. 
 
 Archer v. Hudson, 206, 241. 
 , Ireland, Bank of v. 32, 
 
 383. 
 
 Arkwright, Ex parte, 179, 180. 
 
 Armitage v. Hamer, 461. 
 
 Armitstead, Ex parte re Dilworth, 141. 
 
 , Ex parte, 151, 153. 
 
 Armstrong v. Burnet, 490, 493. 
 
 , Ex parte, 179. 
 
 , Ness v. 403, 492. 
 
 Arthur, Jones v. 38. 
 Ashby, Tomkins v. 129. 
 
 , Vere v. 307. 
 
 Ashton y. Langdale, Ld. 496. 
 
 v. Dalton, 197, 284. 
 
 Atkin v. Barwick, 9. 
 
 Atkins, Ex parte, 139, 152, 169. 
 
 Atkinson, Ex parte, 314. 
 
 , Reg. v. 135, 268, 602. 
 
 Att. Gen., Casberd v. 201. 
 
 , Hodge, v. 192. 
 
 Attwood v. Banks, 308. 
 Atwood v. Crowdie, 164. 
 Aubert v. Walsh, 80. 
 Ault, Lyth v. 130. 
 Auriol v. Smith, 122, 360. 
 
 v. Thomas, 328. 
 
 Australasia, Bank of v. Breillat, 11, 525, 
 526, 538. 
 
 , Bank of v. Harding, 610. 
 
 Australia, Royal Bank of, Re, 530. 
 Aylesbury, Lady, Popharn v. 405, 406. 
 
 Backer, Price v. 233. 
 Badcock, Sadlers' Comp. v. 181. 
 Badnal v. Samuel, 232. 
 Bagge's case, 485. 
 Bailey, Cumming v. 324.
 
 QBAN1 OH I II I : LAV, OJ BAB B [NO. 
 
 — . W.iin v. I 
 
 per, 244. 
 
 1 14. 
 
 v. Charil 
 
 122. 
 
 , Palmer i 
 
 Baldwin, Cambridge, University <>i \. 
 
 
 
 Hull v. Morrcll. I 
 1 v. Hum 
 Pickard r. 
 Bankht i !. Be, 317. 
 IS:ink- .. 308. 
 
 . Bell v. 2 
 
 v. Colwell 
 
 . Bx parte, 
 
 
 
 Banner, ICac 
 
 Bantock, Bockley v. L94. 
 TreuteD v. 203. 
 
 parte, L92, 193. 
 
 '- v. : 
 
 v. Wainwrighl 
 
 Bardflley, Bradl< 
 Bard 
 
 - v. 114. 
 
 Hartr. Mason v. 
 
 .'.. Bl. 
 
 ■ ;. 509, 512, 
 
 . D 
 
 r, Alexander v. • 
 v. Bnttn 70, 480, 482, 
 
 v. IVirkcr. 264. 
 
 . Price v. 242, 252. 
 
 Barlow, Jordan i 
 Barned, Middleton v. 382. 
 
 :' mi 
 
 . Btarey v. 
 
 Barnett, Brandao \. 11, 168, 283, 284, 
 
 . Bretton v. 5. 
 
 . Bx parte, IT:-. L82, 206, 207. 
 
 BarnewaU v. Sutherland, 472, 176, 601. 
 Barrington, & ■ 
 
 " . L0. 
 
 . i Benley, I 
 
 . Wilson \. 
 
 H i r ' D T. 221. 
 
 . Wingfield v. 500. 
 
 parte, 262. 
 
 • 132. 
 
 Batson, Latimer v. 211. 
 
 v. Spearman, 227. 
 
 b v. White, 44. 
 
 •i v. Howell. 45. 
 
 Baym 
 Bazeley, B. 
 
 ■. . Crisford, 405. 
 Beaman, H 
 
 adeBborongh, Ld 
 imont, Blake r. I 
 
 in, Pott v. 328. 
 
 Bebb, Bx parte, 
 
 Beck v. Bobley, 175. 
 
 Bi ckington, Chapman v. 263. 
 
 ral. 427. 
 
 Beecb v. Cempe, 
 
 ie v. Levy, L9. 
 Belcher v. Campbell, 138, 144, 182. 
 
 v. Capper, 213. 
 
 , Ex parte, 317. 
 
 v. Jones, 86. 
 
 v. Lloyd, 335. 
 
 v. ParBons, 347. 
 
 . Sadler v. 171, 172. 
 
 Bell v. Banks, 236. 
 
 v. Buckley, 388. 
 
 v. Carey, 338. 
 
 , Dodgsoo v. 483, 492. 
 
 . Baton v. 341. 
 
 v. Fisk, 172. 
 
 v. Gardiner, 207. 
 
 , Glynn v. 359. 
 
 , Eolmes \. 207, 221. 
 
 , Horsley v. 341. 
 
 , Kirk r. 
 
 , Meux v. 185, 209. 
 
 , Thompson v. 6, 297, 298, 519. 
 
 v. Welch, 253. 
 
 Bellamy v. Majoribanks, 26, 31, 34, 58. 
 
 JO. 
 BeUasis, Brown v. 353. 
 
 B Mil. of. v. Pagan, 
 
 v. M'Cleod, 205, vy>. 
 
 , foung v. in. 208, 
 
 18 i. 
 Benjamin \ . England, Bank of, 12 L. 
 ■ tt, Bx parb '. 577, 
 
 , Mills v. 315, 324. 
 
 , Bicketl v. 31 1. 
 
 . Hdl, -on. v. 51, 58, 59. 
 
 . Whitewell v. 1 7. 
 
 Benson, Bx parte, l .">i . 
 
 v. Parry, 
 
 Bentham v. Chesterfield, Lord, 9 1. 
 Bentley, Bx parte, L96. 
 
 rd, [reland, Hank of, v. 328. 
 Berkeley, Scott < 
 Bernard -, 569, 570.
 
 TABLE OF CASES CITED. 
 
 Bernard, Coggs v. 10. 
 Bertram, Ness v. 483, 503. 
 Berwick, Hankey v. 108. 
 Bescoby v. Pack, 353. 
 Bevan v. Hill, 91. 
 v. Nunn, 85. 
 
 — , Pott v. 41. 
 
 Biddulph, Ex parte, 317. 
 
 Bigg, Re, 374. 
 
 Bignold, Ex parte, 17, 18, 19, 198. 
 
 Billing v. Devaux, 50, 95. 
 
 ■ v. Ries, 57. 
 
 Binney, Holmes v. 469. 
 Birch v. Corbyn, 367. 
 
 v. Ellames, 198. 
 
 , Harris v. 213. 
 
 Bird v. Bass, 380. 
 
 , Ex parte, 394. 
 
 , Fayle v. 105. 
 
 Birdwood, Raphael v. 324. 
 Birkbeck, Roper v. 112. 
 Birkett, Ex parte. 88. 
 Birkett, R. v. 357. 
 Bishop v. Chitty, 93. 
 
 , Church v. 111. 
 
 , Grave v. 315. 
 
 v. Jersey, Countess of, 297. 
 
 , Rufford v. 397. 
 
 Bittleston v. Cooke, 315, 594. 
 Blackburn, Shiells v. 10. 
 Blackett, Ridley v. 90. 
 Blackstone, Foster v. 209. 
 Blagden, Ex parte, 122. 
 Blair v. Bromley, 16. 
 
 v. Ormond, 357. 
 
 Blake v. Beaumont, 105. 
 
 v. White, 232. 
 
 Blakeley, Ex parte, 567. 
 Blakelock, Stevenson v. 290. 
 Bland, Ex parte, 594. 
 
 v. Layfield, 294. 
 
 Bleakley v. Smith, 39. 
 
 Bleasby v. Crossley, 83. 
 
 Blew v. "Wyatt, 130. 
 
 Blurton, Kirk v. 45. 
 
 Boardman v. Jackson, 608. 
 
 Boddington v. Castelli, 214, 215. 218. 
 
 v. Schlenker, 50, 51, 52. 
 
 Bodenham v. Hoskyns, 125. 
 
 v. Purchas, 75, 221, 279. 
 
 Boehm v. Sterling, 32, 53, 62, 97. 
 Boggs v. Morgan, 2. 
 Boldero, Lushington v. 323. 
 Bolingbroke's, Lord, Case, 289. 
 Bolland v. Bygrave, 290. 
 
 , Dougan v. 342. 
 
 , Ex parte, 121. 
 
 , Frost v. 342. 
 
 , Hume v. 358. 
 
 Bolton v. Puller, 139, 154, 160, 290. 
 Bonar v. Macdonald, 226, 272. 
 
 v. Mitchell, 435, 463, 464. 
 
 Bond, Clough v. 40, 375. 
 , Ex parte, 154, 167. 
 
 Bond v. Gibson, 27. 
 
 , Sims v. 46. 
 
 v. Warden, 15, 17, 53. 
 
 Bonser v. Cox, 240, 241. 
 
 Booth v. England, Bank of, 440. 
 
 , England, Bank of v. 459. 
 
 Bopart v. Hicks, 15. 
 Borrodaile v. Middleton, 14. 
 Bosanquet v. Corser, 267. 
 
 v. Dudman, 290. 
 
 , Ex parte, 214, 294. 
 
 , Ransford v. 483. 
 
 v. Shortridge, 463, 464, 465, 
 
 466, 485, 498, 546. 
 
 v. Woodford, 461, 462, 464, 
 
 479. 
 
 v. Wray, 479. 
 
 Boswell v. Smith, 81. 
 Boultbee v. Stubbs, 237, 238. 
 Bourne, Hawken v. 520. 
 
 , Hawtayne v. 520. 
 
 Bouser v. Colby, 197. 
 Bouverie, Vernon v. 29. 
 Bowden, Ex parte, 240. 
 Bower, Davidson v. 470, 471. 
 Bowes, Dickenson v. 413. 
 
 v. Howe, 407. 
 
 , Howe v. 413. 
 
 , Saunderson v. 413. 
 
 Bowhay, Ricketts v. 480, 482, 500, 503. 
 
 Bowles v. Orr, 4. 
 
 Bowness, Ex parte, 88. 
 
 Bowsher, Davis v. 288. 
 
 Boycott, Manley v. 77, 257. 
 
 Boyd v. Emmerson, 60. 
 
 Boydell v. Harkness, 106, 108. 
 
 Boylston, Langston v. 150. 
 
 Bozon v. Williams, 194. 
 
 Bradbury v. Anderton, 7. 
 
 Bradley v. Bardsley, 98. 
 
 , Chalmers v. 607. 
 
 v. Eyre, 504. 
 
 , Mason v. 113. 
 
 v. Urquhart, 504. 
 
 v. Warburg, 500, 503. 
 
 Bradshaw, Ex parte, 368. 
 
 , O'Connor v. 580. 
 
 Braithwaite, Shelton v. 108. 
 
 Brandao v. Barnett, 11, 168, 283, 284, 
 
 289, 520. 
 Brander v. Brander, 376. 
 Brasier v. Hudson, 190. 
 Breed v. Green, 136. 
 Breillat, Australasia, Bank of v. 11, 
 
 525, 526, 538. 
 Brembridge, Evans v. 231. 
 Brenchley, Ex parte, 523. 
 Breton v. Cope, 359. 
 Brettel v. Davis, 613. 
 
 v. Williams, 294. 
 
 Brettell, Clowes v. 500. 
 
 , Johnson v. 500. 
 
 Bretton v. Barnett, 5. 
 Brice v. Stokes, 349, 36b.
 
 XIV 
 
 GRANT ON THE LAW OF BANKING. 
 
 Bright v. Button, 566. 
 : v. Hampshire, 1 Lg. 
 
 Brine v. Ferrier, 103. 
 
 Brinley, Jones v. 353. 
 
 . K.ul of. v. Wilsinore, 93. 
 Bri-' Mian, 11. 
 
 British Insarance Comp., Walker v. 266. 
 BroadhurM, Jones v. 67, 175. 
 Broadwuo'i. Ex parte, 196. 
 Brocklehurst v. Jessop, 198. 
 Brogden. Waters v. 14. 
 Bromley, Blair v. 16. 
 
 "v. Holland, 357. 
 
 Brook, Crelin v. 577. 
 
 v. Stuart. 244. 
 
 v. Tomer, 405, 406. 
 
 Brooke v. Enderby, 225, 281. 
 Broughton v. Davies, 201. 
 
 , Jennings v. 552, 553. 
 
 v. Manchester Waterworks 
 
 Co. 457. 
 Brown v. Anderson, 280. 
 
 v. Bellasis, 353. 
 
 v. Davis, 63. 
 
 . Ex parte, 107, 169, 314, 547. 
 
 v. Harraden, 95. 
 
 , Harrison v. 472, 550. 
 
 , Janson and others v. Thomp- 
 son, 339. 
 
 v. Kewley, 321, 331. 
 
 . Moule v. 51. 
 
 Bruce v. Bruce, 412. 
 
 , Gibson v. 322. 
 
 Bruin, Metcalfe v. 263, 265. 
 BryBon v. Wylie, 142, 170. 
 d in. Edwards v. 463. 
 
 . K.\ parte, 163. 
 
 t. Findlay,386. 
 
 Buckle v. Mitchell, 197. 
 Buckley, Ex parti 
 Buffery, PreBcott v. 463, 582. 
 Bull v. Barker, 38. 
 Bullock v. Chapman, 583. 
 Bulteel v. Jarrold, 331. 
 Bnrbidge, Robinson v. 366. 
 
 ifield, Alexander v. 50. 52. 56, 95, 
 97. 
 
 v. Moore, 107. 113. 
 
 Burdiss, Carr v. 181. 
 Ex 1 
 
 Bnrlin I 192, 571. 
 
 Bnrmeder v. Crofton, 505. 
 Burmester v. Morris, 343, 599. 
 
 Burn v. Burn. 45, 
 
 I L22. 
 
 . K. v. 175. 
 
 Barnes r. Peun< ■ :. 557. 
 
 Burnet, Armstro 
 Barrell, Bamford r. ■-■-'. 326. 
 Burtoi L24, 17'.'. 
 
 , Bank, Ex parte, 163. 
 
 
 
 v. I 
 
 Bushell. Ex parte, 429. 
 Bosk's Case, 56 1. 
 
 . Pickering v. 519. 
 
 Bntchart v. Dresser, 189, 601. 
 
 Batcher, Sowerby v. 436. 
 
 Bute, Marquis of, Stuart v. 2, 405. 
 
 Butler, Oheetham v. 19. 
 
 Battery, Prescott v. 466. 
 
 Buttress. Barker v. 175, 470, 480, 482, 
 
 499, 50S, 550. 
 Bygrave, Bolland v. 290. 
 
 Caballero v. Slater, 254. 
 Cadell, Mace v. 211. 
 Caldecott, Ex parte, 286, 302. 
 
 Caldwell v. DaWBOn, 186. 
 Caliot v.Walker. 397, 607. 
 Calland V. Lloyd, 40, 133. 
 Calley v. Short, 120. 
 Calvert v. Baker. 114. 
 
 , Crellin v. 576. 
 
 , Gordon v. 227, 275. 
 
 Cambridge, University of, v. Baldwin, 
 
 276. 
 Camidge v. Allenby, 31, 33, 66, 409, 
 
 410, 414. 
 Campbell, Belcher v. 138, 144, 182. 
 
 , Joy v. 289, 349, 368. 
 
 , Itoche v. 385, 395, 435, 514. 
 
 Can v. Read, 40, 41. 
 Caiman, Smith v. 521. 
 Capper, Belcher v. 213. 
 
 , R. v. 90. 
 
 Carbis, Ex parte, 181. 
 Carey. Bell v. 338. 
 Carlon v. Ireland, 74, 391. 
 Carpenter, Kx parte, 303. 
 Carr v. Burdiss, 181. 
 
 v. Carr. 2. 
 
 v. Shaw, 435. 
 
 Carrick's < !ase, 566. 
 Carstairs v. Bates. 381. 
 
 v. Stein, 395. 
 
 Carter v. Flower, 66. 
 
 , Low, v. 35 1. 
 
 . Reg. v. 102, 430, 463. 
 
 Carver, Price v. 203. 
 
 Carvick v. Yickery, 41. 
 
 Oasberd r, Att.Gen., 201. 
 Casson, Shipton \ . 404. 
 Castell, Kx parte, .vj.;. 
 
 Hi, Boddington v. 214, 215, 218. 
 Castle, Kx parte, 211. 
 Castleman \ . Raj . 16. 
 Challen \. Sbippam, 349. 
 Chalmers v. Bradley . 1 
 Chambers, Dixon \ . L9. 
 
 , England Doe d. Bank of, v. 
 
 433. 
 
 v. Minchin, 352. 
 
 , Willct v. 26. 
 
 Chaplin, Clarke \. 130. 
 Chapman i , Be* kinton, 221, 263. 
 . Bullock v. 583.
 
 TABLE OF CASES CITED. 
 
 XT 
 
 Chapman v. Chapman, 194. 
 
 f Graham v. 181. 
 
 v. Hart, 90, 405. 
 
 v . Milvain, 471, 472, 478, G02. 
 
 , Reg. v. 270. 
 
 , Simpson v. 299. 
 
 v. Sutton, 254. 
 
 Charlemont, Earl of, Watson v. 353. 
 Charlton, Baker v. 300. 
 
 , Wise v. 257. 
 
 Chartres's Case, 564. 
 Chase, Humberstone v. 364. 
 Cheadle Savings' Bank, R. v. 617. 
 Cheetham v. Butler, 19. 
 Cheltenham Railw. Co. v. Daniel, 512. 
 Cheshire, Cross v. 311. 
 Chesneau, D'Arnay v. 218. 
 Chesterfield, Ld., Bentham v. 94. 
 Chettle, Reynolds v. 58. 
 Child, Ex parte, 420. 
 
 , Walmesley v. 429. 
 
 Chippendale, Ex parte, 313, 343, 520, 
 
 599. 
 Chisman, Sparrow v. 292. 
 Chissum v. Dewes, 199. 
 Chiswell, Stephenson v. 312. 
 Chitty, Bishop v. 93. 
 Cholmeley v. Darley, 257, 259. 
 Chorlton, Newton v. 226. 
 Christie, Ex parte, 230. 
 
 v. Peart, 470. 
 
 , Scotland, Bank of, v. 5, 225, 
 
 281. 
 
 , Watts v. 41, 89, 288. 
 
 Church v. Bishop, 111. 
 
 , Doe d. v. Pontifex, 39, 406. 
 
 Churchill, Fowler v. 366. 
 Clancarty, Ld., v. Latouche, 397. 
 Claridge v. Hoare, 268. 
 Clark v. Adair, 60. 
 
 , Davis v. 555. 
 
 , Fydell v. 382. 
 
 v. Newsom, 135. 
 
 , Reg. v. 432. 
 
 , Sands v. 114, 413. 
 
 Clarke v. Chaplin, 130. 
 
 , Ex parte, 420. 
 
 , Jones v. 227. 
 
 v. Shee, 405, 425. 
 
 Clarkes, Re, 230. 
 
 Claxton, Adams v. 178, 210, 347. 
 
 Clay, Porter v. 46. 
 
 Clayton's Case, 279, 296, 305. 
 
 v. Gresham, 376. 
 
 Clements, Foster v. 28. 
 Clifton, Fox v. 591. 
 Clode v. Bayley, 520. 
 Clogg, Pott v. 5. 
 Close v. Close, 252. 
 Clough v. Bond, 40, 375. 
 Clouter, Ex parte, 192. 
 Clowes v. Brettell, 500. 
 Clutterbuck, Heming v. 102. 
 Clutton, Ex parte, 172. 
 
 January, 1857. — 3 
 
 Coates, Partridge v. 75. 
 
 Cochrane, Eastern, &c, Railw. Co. Y- 
 
 263. 
 
 v. O'Brien, 137. 
 
 , Vivian v. 581. 
 
 Cockburn's Case, 543. 
 
 Cocks, Craufurd v. 5, 130, 131, 306. 
 
 Cocks v. Masterman, 111. 
 
 , Vacher v. 322. 
 
 Coggs v. Bernard, 10. 
 Colby, Bouser v. 197. 
 Cole, Ex parte, 61. 
 
 , Kearsley v. 242, 246. 
 
 Coles v. England, Bank of, 26, 358, 362. 
 Collingridge, Ellison v. 117. 
 Collins, Everett v. 79. 
 
 , Ex parte, 42, 324, 370. 
 
 v. Martin, 153, 154, 203. 
 
 Collinson v. Lister, 515, 603. 
 Colt v. Netterville, 353. 
 Colwell, Banks v. 63. 
 Compton, Stone v. 239. 
 Congreve, Douglas v. 353. 
 Connell, Graham v. 366, 486, 487. 
 
 , Hall v. 473. 
 
 , M'lntyre v. 486, 487, 488. 
 
 , Penkivil v. 551. 
 
 , Seddon v. 475. 
 
 Const v. Harris, 44, 512, 597. 
 Conwav, Corlett v. 59. 
 
 v. Nail, 88. 
 
 Cooke, Bittleston v. 315, 594. 
 
 v. Seeley, 46, 311. 
 
 , Simson v. 226. 
 
 Coombe, Ex parte, 200. 
 Coombes v. Mansfield, 212. 
 Cooper, Bain v. 244. 
 
 , Davidson v. 113, 114, 471. 
 
 , Tassell v. 5, 125. 
 
 , Thomas v. 397, 398. 
 
 Cope, Breton v. 359. 
 
 , Furness v. 331. 
 
 Copeland, Ex parte, 370. 
 
 , Ramford v. 458. 
 
 Copland, Toulmin v. 5, 281, 304, 305. 
 
 Corbyn, Birch v. 367. 
 
 Corlett v. Conway, 59. 
 
 Corney, Rothschild v. 62. 
 
 Corral, Beckwith v. 427. 
 
 Corser, Bosanquet v. 267. 
 
 Coventry, Evans v. 585, 586, 590, 591, 
 
 595. 
 
 , Earl of, Sheffield v. 353. 
 
 Courtier, Tiley v. 38. ' 
 Courtoy v. Vincent, 92. 
 Cox, Bonser v. 240, 241. 
 Cox, Godard v. 279. 
 
 v. Troy, 66, 112. 
 
 , Tyson v. 237. 
 
 Cowell, Ex parte, 196. 
 
 v. Simpson, 290. 
 
 Cowper v. Smith, 252. 
 Cowrie, Masterman v. 395. 
 Cramer v. Cramer, 369.
 
 GRANT ON THE LAW OF BANKING. 
 
 Crane, Peat t. 375. 
 
 Orauford , 130, 131, 306. 
 
 i. Smith v. Ill, 309. 
 
 . Wilson v. 249, 230, 265, 471. 
 
 Creed • ■ 17. 
 
 d, Reg v. 269. 
 Creighton v. Rankin, 232, 276. 
 Crellin v. Brook. 
 
 v. Calvert, 
 
 131, 133, 511. 
 Crickett, Harvey v. 401. 
 Crisford, Beales v. 405. 
 Crofton, Burmeder v. 505. 
 Oroke, Reg. v. 430. 
 Orooke, R. v. 357. 
 Crosbie, Fletcher v. 470. 
 
 . Cheshire, 311. 
 
 , Daniel v. 130, 304. 
 
 v. Law, 500. 
 
 CrossneM'.-; Case, 590. 
 
 v. Such, 369. 
 
 Crossley, Bleasby v. 83. 
 Atwood v. 164. 
 Crowe. Hawse v. 93. 
 
 her, R. v. 430. 
 
 , Wintle v. 45. 
 
 Cubitt, Gill v. 429. 
 Cndworth, Fox v. 404. 
 Cnllingworth v. Lloyd, 243. 
 CnlverweU, Murky v. 64, 103. 
 Cumberlege, Ware v. 581. 
 Camming v. Bailey, 32 L. 
 
 v. Prescott, 185. 
 
 Cunningham, Ex parte, 317. 
 
 Curri v. 335, 337, 382, 385. 
 
 , Rothschild v. 436. 
 
 , Small v. 233. 
 
 Curry, Reg. v. 102. 
 
 . 395. 
 Oust, Hope V. H. 
 
 Dalton, Ashton v. 197, 284. 
 
 , v. Midland Counties Railway 
 
 193. 
 i :. Lynch v. 181. 
 
 ! I i-ii Railw. Co. V. f)l 'J. 
 
 . v. I 
 
 I 
 
 D CI olmeley \ 
 
 eau, 2 18. 
 1 1 
 
 tford Barings' Hank. The 620. 
 
 ,(•11, Bmblin v. 1 14. 
 D 3ilva v. Fuller, i ■ 
 l ' iport v. Powell, 
 
 l 
 
 v. 231. 
 
 1 ) r. 24. 
 
 1 ; 7 1 . 
 
 I 13, 11 1. 471. 
 
 1 Bi i 
 
 v . M i , 
 
 Davis, Broughton v. 201. 
 
 , Brown v. 63. 
 
 , Macclesfield, Earl of v. 284. 
 
 , Gough v. 130, 305, 359. 
 
 l»a\ is v. Bowsher, 288. 
 , Brettel v. 613. 
 
 ^— — v Oliirlc 555 
 
 v. England, Bank of, 125, 359, 362, 
 
 371, 376. 
 
 , England, Bank of, v. 363. 
 
 , Husband v. 41, 42. 
 
 , Pearce v. 83. 
 
 v. Spurling, 351. 
 
 Davison, Kx parte, 407. 
 
 v. Farmer, 475, 506. 
 
 Dawson, Caldwell v. 186. 
 
 v. Lawes, 238. 
 
 Day. Hulkes v. 366. 
 Deacon v. Stodhart, 111. 
 
 , Williams v. 8. 
 
 Dean v. James, 179. 
 
 Dearie v. Hall, 3. 
 
 Dc Bergareche v. Pullin, 108. 
 
 De Bernales v. Fuller, 60, 110, 113. 
 
 De Bouchont v. Goldsmid, 371. 
 
 Decks v. Stanhope, 550, 551. 
 
 Deffell, Pennell v. 5, 281, 347. 
 
 Dehors v. Harriott, 63. 
 
 De la Chaumette v. England, Bank of, 
 
 406. 
 Delawar, Ex parte, 420. 
 Demainbray v. Metcalfe, 210. 
 Dc Moylens, Joyce v. 188, 202. 
 Denny, Flory v. 212, 594. 
 Dent, Muttyloll Seal v. 155, 386. 
 Derbyshire, &c, Railw. Comp., Reg. v. 
 
 479. 
 Derbyshire, &c, Railw. Comp., Scrrell 
 
 v. 32, 40, 48. 
 Derham, Fearenside v. 310. 
 Dessborough v. Harris, 186, 187, 218, 
 
 219. 
 De TaBtet V. Baring, 435. 
 Devaux, Billing v. 50, 95. 
 Deraynea v. Noble, 279, 607. 
 Devereux v. Kilkenny, &c, Railway Co. 
 
 r 
 
 Devisme, Nightingale v. 353. 
 
 Chi am v. 1 99. 
 Diamond, Nicholla v. 
 Dickenson v. Boti es, 1 13. 
 
 Dirk 120. 
 
 Digby, Howard \ 
 
 , Johnson v. 3 
 
 i implin v. 331. 
 DU worth, Kidson \. .''.48. 
 a \ . Chambers, 1 9. 
 
 126. 
 
 Dobbins, Taylor 
 Dobell v. Btevens, 352. 
 Dobinson, Es parte, 3 12, 
 lell \. 93. 
 ■ 190, 
 on V. Bell, 483, 492.
 
 TABLE OF CASES CITED. 
 
 XVll 
 
 Dodgson Case, 548, 566, 571. 
 v. Scott, 499, 501, 502, 504, 
 
 505, 506. 
 Dodwell, Turney v. 82. 
 Doidge, Melville v. 266. 
 Dominy, Thompson v. 190. 
 Dorchester, Ld., v. Effingham, Earl of, 
 
 346. 
 Dorrien, Kerrison v. 197. 
 
 Lucas v. 190, 194, 284. 
 
 Dotterill, Gordon v. 353. 
 Dougan v. Bolland, 342. 
 Douglas, Abbot v. 19, 91, 406. 
 
 v. Congreve, 353. 
 
 , Ex parte, 169. 
 
 Douglas v. Russell, 214. 
 Dowdall, Hallett v. 597. 
 Dowan v. Hailing, 62, 429. 
 Downes, Ld., Lindsay v. 275. 
 Drake, Rogers v. 19. 
 Draper, Rastell v. 23. 
 Dresser, Butchart v. 189, 601. 
 Drever v. Mandesley, 352. 
 Driver v. Burton, 45. 
 Dry v. Davey, 221, 264. 
 
 , Sheppard v. 45. 
 
 Dryden v. Frost, 198. 
 Duck, Ramsbottom v. 403. 
 Dudman, Bosanquet v. 290. 
 Dufaur v. Oxenden, 59. 
 Duff v. East India Comp., 46. 
 Duhamel, Steadman v. 17. 
 Dumas, Ex parte, 608. 
 Duncoft v. Albrecht, 371, 491. 
 Dundas, Allen v. 40. 
 Dunn, Steward v. 462, 464, 474. 
 Dunston, Perring v. 440, 457, 459. 
 Dupuy v. Truman, 608. 
 
 Eade, Stoveld v. 280. 
 Earle, Evans v. 272. 
 
 v. Oliver, 221. 
 
 Early, "Warrington v. 114. 
 
 East v. , 19. 
 
 East India Co., Duff v. 46. 
 
 , Gordon v. 179. 
 
 East of England Banking Co.'s Case, 
 
 574. 
 Eastern &c. Railw. Co. v. Cochrane, 263. 
 Eastman, Bristow v. 41. 
 Eaton v. Bell, 341. 
 Ede v. Knowles, 199. 
 Eden, Roberts v. 206. 
 
 , Selby v. 105. 
 
 Edge v. Worthington, 200. 
 Edmonds, Fenn v. 219. 
 Edmundson, Allen v. 106. 
 Edwards, Baillie v. 335. 
 
 v. Buchanan, 463. 
 
 , Ex parte, 166, 389. 
 
 , Frank v. 272. 
 
 v. Hall, 490. 
 
 v. Jevons, 254. 
 
 v. Newman, 418. 
 
 Edwards v. Scott, 181. 
 
 v. Vere, 129. 
 
 Effingham, Earl of Dorchester, Lord, v. 
 
 346. 
 Eggington, Simpson v. Ill, 508. 
 Ekins, Maclish v. 203. 
 Eliason, Parke v. 170, 330. 
 Ellames, Birch v. 198. 
 Ellis, Eyles v. 120. 
 
 v. Griffith, 477. 
 
 Ellison v. Collingridge, 117. 
 Elworthy, Teed v. 296. 
 Emblin v. Dartnell, 114. 
 Emery v. Richards, 119. 
 Emly v. Lye, 308. 
 Emmerson, Boyd v. 60. 
 Enderby, Brooke v. 225, 281. 
 England, Bank of, Ancher v. 391. 
 
 v. Anderson, 5, 6, 439, 
 
 457, 459. 
 
 , Benjamin v. 424. 
 
 v. Booth, 440, 459. 
 
 , Doe d. Bank of, v. Chambers, 
 
 433. 
 
 , Bank of, Coles v. 26, 358, 362. 
 
 , Davis v. 125, 359, 362, 371, 
 
 376. 
 
 * De la Chaumette v. 406. 
 
 , Ex parte, 379, 421. 
 
 , Foster v. 356, 359. 
 
 , Franklin v. 360. 
 
 , Green v. 371. 
 
 , Hartga v. 363. 
 
 , Heslop v. 359. 
 
 v. Johnson, 501, 503. 
 
 , Governor &c. of Bank of, v. 
 
 Newman, 382. 
 
 , Bank of, v. Parsons, 363, 364. 
 
 , Partridge v. 33, 361, 406. 
 
 , R. v. 362. 
 
 , Raphael v. 424, 425, 429. 
 
 , Richardson v. 304, 550. 
 
 , Sloman v. 42, 128, 354, 358. 
 
 , Solomons v. 423. 
 
 , Stracy v. 358. 
 
 , Sutton v. 362. 
 
 , Whitaker v. 49, 106 378. 
 
 , Willis v. 88, 432, 433, 458, 
 
 584. 
 Esdaile v. Maclean, 470. 
 
 v. Smith, 500, 505. 
 
 v. Trustwell, 500. 
 
 Evans v. Brembridge, 231. 
 
 v. Coventry, 585, 586, 590, 591. 
 
 595. 
 
 v. Earle, 272. 
 
 , Reg. v. 269, 514, 602. 
 
 Trustees, Ireland, Bank of v. 373. 
 
 Ward v. 36, 409. 
 
 v. Whyte, 410. 
 
 Everard v. Watson, 106. 
 Everett v. Collins, 79. 
 
 , Williams v. 7, 11, 116, 118. 
 
 Exon v. Russell, 114.
 
 XV111 
 
 GRANT ON THE LAW OF BANKING. 
 
 Ki parte Alexander, 198. 
 
 Appach, 345. 
 
 Arkwright, 179, 180. 
 
 Armitstead, 151, 
 
 - — re Dilworth, 141. 
 
 Armstrong, 17:». 
 
 Atkins, 139, 152, 169. 
 
 Atkinson, 314. 
 
 Baine, 288. 
 
 Baldwin, 333. 
 
 Banks. 
 
 Barclay, 192, 
 
 Barnett, 179, 182, 20G, 207. 
 
 Barwif 
 
 Bebb, 
 
 Belcher. 317. 
 
 Bennett, 543, 557, 559, 577, 587. 
 
 Benson, 151. 
 
 Bentley, 196. 
 
 Beresford, 541. 
 
 Biddulph, 317. 
 
 Bignold, 17, 18, 19, 198. 
 
 Bird, 394. 
 • Birkett, 88. 
 . Blagden, 122. 
 
 ■ Blakeley, 567. 
 . Bland, 594. 
 
 ■ Bolland, 121. 
 
 ■ Bond, 154, 167. 
 -Bosanquet, 214, 294. 
 
 - Bowden, 240. 
 
 - Bowness, 88. 
 
 - Bradshaw, 368. 
 
 - Brenchley, 523. 
 
 - Broadwood, 100. 
 
 - Brown, 167, 169, 314, 547. 
 
 - Buchanan, 163. 
 
 - Buckley, 45. 
 
 - Burdiss, 193. 
 
 - Burton, 124. 179. 
 Bank, 163. 
 
 Bushcll, 429. 
 Caldecott, 286, 302. 
 Carbis, 181. 
 
 ater, 303. 
 Castell, 
 Castle, 211. 
 
 ■ ChUd 
 
 ■ Chippendale, 313, 343, 520,599. 
 
 ■ Christie, 230. 
 
 - Clark 
 
 - Clouti r, i 
 
 - Clatton, 17^. 
 I 
 
 61. 
 
 - Coll.' 
 
 Cop< 
 
 ■ 1 7. 
 
 ;'>7. 
 120. 
 
 - Dobii 
 
 Ex parte Dobson, 190. 
 
 Douglas, 169. 
 
 Dumas, 152. 
 
 Edwards, 166, 389. 
 
 England, Hank of, 379, 421. 
 
 I 
 
 Parley, 204. 
 
 Field, 355. 
 
 Fleet, 620. 
 
 Fletcher, 198. 
 
 Ford, 192. 
 
 Frere, 386. 
 
 Froggatt, 161. 
 
 Gawan, 195. 
 
 Gifford, 231. 
 
 Gillett, 192, 37.".. 
 
 Glyn, 203. 
 
 Gordon, 420. 
 
 Gouthwaite, 456, 561, 562. 
 
 Graham, 327. 
 
 Gwyn, 395. 
 
 Hall, 314, 468, 485, 566, 568. 
 
 Hallifax, 194, 421. 
 
 Hanson, 310. 
 
 Hardy, 199. 
 
 Harris, 321, 344, 620. 
 
 Harrison, 185. 
 
 Harvey, 252. 
 
 Hawthorne, 470. 
 
 Ilaynes, 620. 
 
 Henderson, 547. 
 
 nenessey, 181, 183, 210. 
 
 Hernaman, 329. 
 
 Hilliard. 348. 
 
 Hippins, 319. 
 
 Hobhouse, 383. 
 
 Holland, 374. 
 
 Holmes, 164, 332. 
 
 Hooper, 200. 
 
 Hope, 228. 
 
 Hornby, 326, 332. 
 
 Hunt, "199. 
 
 Hunter, 42. 
 
 Imeson, 407. 
 
 Johnson, 330. 
 
 Jones, 328. 
 
 Kelsall, 216. 
 
 Kensington, 217. 
 
 Keys, 420. 
 
 Lacey, 378. 
 
 Lacon, 191. 
 
 Lancaster Canal Co. 1S5, 346. 
 
 I. 200. 
 
 Latta, 610. 
 
 Lavell. 375. 
 
 Law, 
 
 Leal. 312. 
 
 Leeds Bank, 154, 289. 
 
 Lewis, 314. 
 
 Littledale, 
 
 Littlejohn, 255. 
 
 Lloyd, 195. 
 
 M Qai 
 
 M'Turrk. 206, 207.
 
 TABLE OF CASES CITED. 
 
 5x parte Majoribanks, 181, 211. 
 
 Mansfield, Earl of, 561. 
 
 Martin, 193, 374, 379. 
 
 Masterman, 185. 
 
 Matheson, 370. 
 
 Mayer, 300. 
 
 Miles, 228. 
 
 Michell, 91. 
 
 Mitchell, 19, 315. 
 
 Morgan, 192. 
 
 Ness, 479. 
 
 Nettleship, 200. 
 
 Nicholas, 506. 
 
 Nunn, 183. 
 
 Nutting, 185. 
 
 Oakes, 217. 
 
 Orford, 321, 344. 
 
 Osborne, 179. 
 
 Oursell, 139. 
 
 Patch, 184. 
 
 Pauli, 156. 
 
 Pearce, 343. 
 
 Pease, 152, 154, 155, 162, 289. 
 
 Perry, 192. 
 
 Plant, 186, 287, 494. 
 
 Powell, 193. 
 
 Prescott, 334, 454, 467. 
 
 Price, 182, 188, 195, 207. 
 
 Ram, 375. 
 
 Randleson, 282, 608. 
 
 Ray, 621. 
 
 Richardson, 185, 353. 
 
 Riddell, 345, 621. 
 
 Rigby, 40. 
 
 Roberts, 382. 
 
 Robinson, 402. 
 
 Rodgers, 192. 
 
 Rogers, 420. 
 
 Rowton, 163. 
 
 Rufford, 315. 
 
 Tagart, 192. 
 
 Tanner, 183. 
 
 Taylor, 521, 594. 
 
 Tennyson, 179. 
 
 Thompson re Dilworth, 151. 
 
 Toulmin, 281. 
 
 Towgood, 154, 289, 382. 
 
 Tufnell, 200. 
 
 Tyson, 192. 
 
 Salkeld, 499. 
 
 Sandham, 306. 
 
 Sarjeant, 139, 141, 143, 155. 
 
 Scotland, Bank of, 380. 
 
 Sharp, 88, 211, 250, 280. 
 
 Sharpe, 326, 327. 
 
 Sillitoe, 522. 
 
 Simpson, 85, 353. 
 
 Skerratt, 317. 
 
 Smith, 168, 181, 191, 192, 200 
 
 217. 
 
 Snape, 326. 
 
 Solomons, 317. 
 
 Sparkes, 172, 323. 
 
 Sparrow, 594. 
 
 Ex parte Spencer, 185. 
 
 Staddon, 165, 419. 
 
 Stephens, 122. 
 
 Stevens, 181, 193. 
 
 Steward, 287. 
 
 Stokes, 228. 
 
 Stright, 185. 
 
 Stroud, 523. 
 
 Sturt, 153, 316. 
 
 Vere, 190. 
 
 Waithman, 181. 
 
 Wakefield Bank, 154, 162, 289. 
 
 Watkins, 181. 
 
 Whipham, 321, 344, 620. 
 
 Whitter, 382. 
 
 Whitworth, 261. 
 
 Wilkinson, 180. 
 
 Williams, 302. 
 
 Williamson, 610. 
 
 Willis, 262. 
 
 Wilson, 196, 310, 314. 
 
 Wood, 180, 183, 506. 
 
 Wylie, 317. 
 
 Wyndham, 314. 
 
 Eyles v. Ellis, 120. 
 Eyre, Bradley v. 504. 
 
 Ex parte, 123, 284. 
 
 Parrott v. 342. 
 
 Eyton, Pott v. 313. 
 
 Fagan, Bengal, Bank of, v. 205. 
 Fair v. M'lver, 335. 
 Faircloth v. Gurney, 406. 
 Fairlie v. Freeman, 347. 
 Faith v. Richmond, 45. 
 Fancourtv. Thorne, 257. 
 Farley, Ex parte, 204. 
 Farmer, Davison v. 475, 506. 
 Farrow, Leadbitter v. 436. 
 Farwell, Harris v. 318. 
 Fauntleroy, R. v. 432. 
 Fawcett v. Fearne, 211. 
 Fayle v. Bird, 105. 
 Fearenside v. Derham, 310. 
 Fearne, Fawcett v. 211. 
 Fector v. Phillpott, 201. 
 Fenn v. Edmonds, 219. 
 
 v. Harrison, 410. 
 
 , Winch v. 328, 395. 
 
 Fenton, Thomas v. 97. 
 
 , Trueman v. 67. 
 
 Fenwick's Case, 564. 
 
 , Ness v. 503. 
 
 , Scotland, Bank of, v. 500. 
 
 Fernandey v. Glynn, 66. 
 
 Fernley, Stainback v. 548. 
 
 Fernon, R. v. 622. 
 
 Ferrand, Smith v. 37, 83, 95. 
 
 Ferrier, Brine v. 103. 
 
 Ferris v. Mullins, 183. 
 
 Fetch, Knight v. 370. 
 
 Field, Ex parte, 355. 
 
 v. Lonsdale, 616. 
 
 v. Mackenzie, 501, 502, 503, 505.
 
 r, RANT 01 THE LAW OF BANKING. 
 
 Field \ •'• 
 
 ■ 
 
 Firth v. II 
 -, Shaw v. 
 
 Kill h \ 
 
 • raid, Lynch v. CI 7. 
 
 Fletcher r. I 
 
 
 
 , — v. Manning 
 
 v. Walker 
 
 Flint. B, v 
 
 Plowi 
 
 . - 
 
 Foley v. Hill. 2, 3 
 
 U, 46, 169, 525. 
 Ford. 
 
 ▼. Sheldon, 90. 
 
 - orterant v. G3. 
 [bam v. Willis, I 
 • ■ 
 i . I 
 
 t. Surtees, 418. 
 
 : v. Blackstone, 200. 
 v. ! Bank of, 356, 359. 
 
 :y v. 94. 
 
 v. MM. 
 
 , Strong v. 261. 
 
 v. V. 405. 
 
 Fowl bill, 366. 
 . W 
 
 Fox i 
 
 rth, 404. 
 
 v. Frith, 
 
 Prank r. I 172. 
 
 klin r. England, Hunk of, 360. 
 , Hull r. 
 
 , B 
 
 F ras or W. K'«t 1. 
 
 , Mather r. 
 
 y n Bman, 9 ilrtie r. 3 IT. 
 
 , Willis v. 331. 
 
 • 
 
 (13. 
 
 Frill 
 
 Vr< • )■ 
 
 , Dryden i 
 
 Fry, Bayi • 
 
 — , Stewarl v. 7. i 12. 
 
 Prahling • lift. 
 
 Puller, Da Bflva i 
 
 , I -113. 
 
 V I 
 
 , Hail I 
 
 , Roe v. 171. 
 
 v. .Smith, 112, 411. 
 
 Fumcss v. Cope, 331. 
 . v. Clark, 382. 
 
 Gabb, Matthi 
 
 356. 
 209. 
 
 v. Luttrell, 335. 
 
 Gallini v. Noble, 353. 
 
 Gamrc moll, 104. 
 
 Gandell, Bodick v. 27, 50, 83, 96, 116. 
 
 Gardiner, Bell r. 
 
 Gardner v. Lachlan, 179. 
 
 Garnett v. Woodcock, 106. 
 
 Garry v. Sharratt, 198. 
 
 Lde, Thorpi 
 Gaskell v. GaakeU, 118. 
 
 monda v. 607. 
 Gatrill, Wickham v. 268. 
 Gangain, Whitworth v. 201. 
 Gannt v. Taylor, 5, 40, 
 Gausses v. Morton. 357. 
 
 Kx parte, 196. 
 Gay v. Lander, 391. 
 
 . Bowel! v. 353. 
 Gent, Rhodes v. 109. 
 George. Tib bits v. 83, 181. 
 
 , Whitmash v. 267. 
 
 Gibb v. Mather, 106. 
 GibbinB, Tinimis v. 404, 410, 411, 412, 
 415. 
 
 n. Bond v. 2 7. 
 
 v. Brace, 322. 
 
 , Fuller v 
 
 v. Minet, 7, 9, 33, 39, 116, 118. 
 
 v. Mc 
 
 v. Overbuy, 182, 186, 188. 
 
 , Pentland r. 485. 
 
 Gifford, Kx parte, 231. 
 GilchriBt, !:■ g. r. 430. 
 
 ,. Perkins, 141, 143, 152, 153, 
 290. 
 
 , Thompson v. 139, 141, 147, 152. 
 
 , Threlfall v. 170. 
 
 Gill v. Cubitt, 429. 
 Gillan, Phene v. 
 Gillard v. Wise, 100. 
 Gillett, Kx parte, 192. 
 Gillel I (75. 
 
 < lingell, Barber v. 48. 
 Gladstone, Walsh v. I 
 GlahoL ■ '7 1. 
 
 431. 
 Glyni 122. 
 
 , Kx parte, 2 
 
 v. Il.rt. I. i 
 
 , Bhillibeer i 
 
 v. Bell, 
 
 , Pernandi 
 
 v. Loeke. I 
 
 Goddard r. Cox, 279. 
 Godefroy, Wilkin 
 Golde, Beg. \ , 1 45. 
 
 lid, De Boaehont v. 371.
 
 TABLE OF CASES CITED. 
 
 Goldsworthy, Smith v. 514. 
 
 Goodall, Barfoot v. 81. 
 
 Goodbody v. Foster, 94. 
 
 Goodman v. Harvey, 64. 
 
 Goodwin, London, &c, Railw. Co. v. 
 
 263. 
 Gordon v. Calvert, 227, 275. 
 
 v. Dotterill, 353. 
 
 , Ex parte, 420. 
 
 v. East India Co., 179. 
 
 , Parker v. 49, 104, 106. 
 
 , R. v. 359. 
 
 Gough v. Davies, 130, 305, 359. 
 
 v. Findon, 103. 
 
 Goupy v. Harden, 436. 
 Gouthwate's Case, 492, 567. 
 
 , Ex parte, 456, 561, 562. 
 
 Graham v. Chapman, 181. 
 
 v. Connell, 366, 486, 487. 
 
 , Ex parte, 327. 
 
 Grainger v. Slingsby, 377, 486. 
 Grant, Ingliss v. 610. 
 , Re, 548. 
 
 v. Vaughan, 26, 33, 39, 95. 
 
 Grave v. Bishop, 315. 
 
 Gray, Melland v. 347, 348. 
 
 , Ottley v. 186. 
 
 Greaves, Steward v. 462, 470, 508. 
 Green, Breed v. 136. 
 
 v. England, Bank of, 371. 
 
 , Samuel v. 32. 
 
 Greene v. Allday, 18. 
 Greenshield's Case, 490. 
 Greg, Moore v. 197. 
 Grellett, Spinder v. 114. 
 Gresham, Clayton v. 376. 
 Gressell, Stokes v. 16, 99. 
 Griffiths, Ellis v. 477. 
 
 , Matthews v. 387. 
 
 v. Owen, 50. 
 
 Grigby v. Oakes, 406, 408. 
 Groom, Price v. 194, 212. 
 Grote, Young v. 25, 372. 
 Grove, R. v. 270, 622. 
 Grover, Tidmarsh v. 107. 
 Gurney, Faircloth v. 406. 
 
 v. Womersley, 394. 
 
 Guthrie, Hewison v. 290. 
 
 Gwatkin v. Campbell, 385, 395, 514. 
 
 Gwyn, Ex parte, 395. 
 
 Hadow, Prescott v. 613. 
 Hague v. Dandeson, 495. 
 Haille v. Smith, 215. 
 Halifax, Ex parte, 194. 
 Hall's Case, 568. 
 
 v. Connell, 473. 
 
 -, Dearie v. 3. 
 
 , Edwards v. 490. 
 
 , Ex parte, 314, 468, 485, 566, 568. 
 
 v. Fuller, 26. ■ 
 
 , Vernon v. 331. 
 
 Hallett v. Dowdall, 591. 
 Hallewell, Hawker v. 594, 599. 
 
 Hallifax, Ex parte, 421. 
 Hailing, Down v. 62. 
 Halloway, Rogers v. 366. 
 Halstead v. Skelton, 105. 
 Hamer, Armitage v. 461. 
 Hamilton v. Watson, 233. 
 Hammersley v. Knowlys, 390. 
 
 v. Purling, 89. 
 
 Hammett v. Yea, 328, 387, 395. 
 Hammon, R. v. 269. 
 Hammond v. Neame, 367. 
 Hampshire, Brind v. 118. 
 Hancom v. Allen, 375. 
 Hankey v. Berwick, 108. 
 
 , Russell v. 90. 
 
 , Vernon v. 5, 67, 89, 324. 
 
 Hannay, Abraham v. 556. 
 Hansard v. Robinson, 422. 
 Hanson, Ex parte, 310. 
 
 , Vernon v. 68. 
 
 Harden, Goupy v. 436. 
 
 Harding, Australasia, Bank of v. 610. 
 
 Hardy, Ex parte, 199. 
 
 v. Woodroofe, 108. 
 
 Harkness, Boydell v. 106, 108. 
 Harley, Trent Navigation Co. v. 231. 
 Harman v. Fisher, 87. 
 Harper, Mountford v. 80. 
 Harraden, Brown v. 95. 
 Harries, In re, 82. 
 Harriott, Dehors v. 63. 
 Harris v. Birch, 213. 
 
 , Const v. 44, 512, 597. 
 
 , Dessborough v. 186, 187, 218,, 
 
 219. 
 
 , Ex parte, 321, 344, 620. 
 
 v. Farwell, 318. 
 
 , Firth v. 503. 
 
 , Sowerby v. 91. 
 
 Harrison v. Brown, 472, 550. 
 
 , Ex parte, 185. 
 
 , Fenn v. 410. 
 
 v. Jackson, 294. 
 
 v. Masselin, 368. 
 
 v. Tysan, 500. 
 
 Hart v. Alexander, 130, 303. 
 
 , Chapman v. 90, 405. 
 
 , Roche v. 348. 
 
 , Rose v. 334. 
 
 , Strong v. 37. 
 
 Hartga v. England, Bank of, 363. 
 Hartop v. Hoare, 178. 
 Harvey v. Crickett, 401. 
 
 , Ex parte, 252. 
 
 , Goodman v. 64. 
 
 , R. v. 358. 
 
 v. Scott, 462, 466, 501, 503. 
 
 504. 
 
 , Wing v. 184. 
 
 Harwood v. Law, 483. 
 Hatch v. Lee, 621. 
 Hawken v. Bourne, 520. 
 Hawker v. Hallewell, 594, 599. 
 Hawkins v. Whitten, 336, 420.
 
 GRANT OS THE LAW OF BANKING. 
 
 I 
 
 H . 
 i 
 H 
 
 
 
 
 
 I 
 
 
 
 I 
 I 
 I 412. 
 
 
 
 . Wilkinson v. 2 
 
 .10. 
 
 I 
 
 I 
 B 
 
 , |M:ir.| . 
 
 
 
 I 
 I 
 
 I 
 I 
 •' B'Morine, I 
 
 I 
 
 105. 
 
 inn, r. 
 
 
 
 % 
 
 » 
 
 I - 
 
 1 10. 
 I' 
 
 H 
 
 I' 
 
 I 
 
 
 
 I 
 
 ! 
 
 • 
 
 I! 
 
 ' • I, 42 1. 
 
 Holden, R. t. .'!. r .7, 429, 430. 
 
 ■ Sigil, 425. 
 Holland, 1' '■". 
 
 
 
 Holloi 224. 
 
 Holme v. Barry, 409. 
 Holme- /, 221, 230. 
 
 v. Binney, 
 
 i 
 
 !32. 
 
 Holroyd v. Whitehead, 109. 
 Huit, Lyon v. ! 
 
 , Walworth \ 
 
 Homan, Oven \ 
 
 • Bi |> urte, 200. 
 Hope, Bx parte, - 
 
 v. Oust, 44. 
 
 , Toung v. 182. 
 
 Hopkinson v. Roe, 360. 
 Hop] I ill. 
 
 Hornblower v. Proud, lTrt, 330. 
 Hornby, Bx parte 
 Horslej v. Hell, 341. 
 Horton, Langton v. 212. 
 Hoskyns, Bodenham v. 125. 
 Hotbam v. Sutton, 353. 
 Hongh \. May, 82. 
 
 v. Warr, 22T, 
 
 Hoolditch, .lames v. 413. 
 
 , Marsh v. 3 
 
 Hoult 
 
 Honaefield, Parker v. 197, 198. 
 
 ■ ft, Irvine \ 
 
 , Paynter v. 306. 
 
 Howard v. Digby, 607. 
 
 :il. 
 
 
 
 How* 107. 
 
 v. Bon B8, 1 13. 
 
 Howell, Bawden \ 
 v. Gayler, 
 
 v. Jones, 233. 
 
 Bowtfa v. ::i7. 
 
 Hon orth, Bamuell v. 
 Hudson. Archer \. 206, 2 ; I 
 . Brai bi n . 1 90. 
 
 Hughes, Kami v 
 
 v. Spooner 
 
 v. Btnbbe 
 
 , Taylor •■ 512 
 
 v. Thorpe, 
 
 1 1 ii 1 k • ■. D 
 
 Hull v. Franklin, I 
 
 Cl 
 
 Burntx i tone i I 
 Humble *. Mitchell, 491. 
 Hume v. Bolland 
 Hum ft 
 
 Hunt. Bi parte, l 99. 
 v. Peacock, 
 
 Hunter. Bx parte. 42. 
 
 Hurley, Reg, \. 101. 
 
 , Wedlake r. 7, lie. 
 
 Husband v. Daries, 41, 42.
 
 TABLE OF CASES CITED. 
 
 Hutchinson v. Hey worth, 118. 
 Hutton, Bright v. 566. 
 
 v. Ward, 94. 
 
 Huxley v. O'Connor, 129. 
 
 Imeson, Ex parte, 407. 
 Ingham, Simson v. 279, 280. 
 lngliss v. Grant, 610. 
 Inncs v. Stephenson, 41, 326, 349. 
 Ireland, Carlon v. 74, 391. 
 
 , Bank of, v. Archer, 32, 383. 
 
 v. Beresford, 238. 
 
 v. Evans's Trustees, 
 
 373. 
 Tronside, Paterson v. 477. 
 Irvine v. Houston, 376. 
 Isaac, Mayer v. 227. 
 Iveson, Other v. 38, 76, 84, 257. 
 
 Jacaud v. French, 313. 
 Jackson, boardman v. 609. 
 
 , Harrison v. 294. 
 
 , R. v. 100, 270. 
 
 , Richardson v. 38. 
 
 , Saunderson v. 39. 
 
 , Thorpe v. 76. 
 
 Jadis, Wilkins v. 106. 
 James, Dean v. 179. 
 
 v. Houlditch, 413. 
 
 , R. v. 463. 
 
 v. Rice, 398. 
 
 Jameson, Smith v. 41. 
 
 v. Swinton, 49. 
 
 Janson v. Thomas, 19, 29. 
 Jarrold, Bulteel v. 231. 
 Jefferies, Watts v. 92, 366. 
 Jenkins v. Creech, 17. 
 Jennings v. Broughton, 552, 553. 
 Jersey, Countess of, Bishop v. 297. 
 Jervis, Moore v. 251, 284. 
 Jessop, Brocklehurst v. 198. 
 Jevons, Edwards v. 254. 
 John, Lewis v. 203. 
 Johnson v. Brettell, 500. 
 
 v. Digby, 353. 
 
 Johnson, England, Bank of v. 501, 503. 
 Ex parte, 330. 
 Reg, v. 431. 
 Spiller v. 470. 
 Williamson v. 44. 
 v. Windle, 429. 
 
 Johnston, Mayor, 423. 
 
 , Reg. v. 101, 134. 
 
 Johnstone, Roach v. 108. 
 
 , Wilkinson v. 11. 
 
 Joliffe, R. v. 609. 
 
 Jombart v. Woollett, 152, 168. 
 
 Jones v. Arthur, 38. 
 
 v. Beach, 77. 
 
 , Belcher v. 86. 
 
 v. Brinley, 353. 
 
 v. Broadhurst, 67, 175. 
 
 v. Clarke, 227. 
 
 , Ex parte, 328. 
 
 Jones, Fitch v. 73. 
 
 , Howell v. 233. 
 
 v. Lewis, 347. 
 
 v. Mars, 295. 
 
 v. Maund, 5. 
 
 v. Powell, 359. 
 
 v. Ryde, 394, 411. 
 
 , Seller v. 226. 
 
 v. Starkey, 215. 
 
 Jordan v. Barlow, 33. 
 
 Whitbread v. 203. 
 
 Joy v. Campbell, 289, 349, 368. 
 Joyce v. De Moleyns, 188, 202. 
 Judge, Saunderson v. 106, 114. 
 Julian, Kitson v. 273. 
 
 Keable v. Payne, 16. 
 Keane, Perry v. 198. 
 
 v. Roberts, 351. 
 
 Kearney v. King, 23. 
 Kearsley v. Cole, 242, 246. 
 Keating, Marsh v. 121, 292, 373. 
 Keeves. Allen v. 17. 
 Keighley, Alder v. 386. 
 Kelley, Rogers v. 267. 
 Kelsall, Ex parte, 216. 
 
 , Wallace v. 42. 
 
 Kemble, Allen v. 436. 
 
 v. Mills, 66, 97. 
 
 Kempe, Beech v. 358. 
 Kendall v. Kendall, 353. 
 Kennaway v. Treleavan, 274. 
 Kensington, Ex parte, 217. 
 , Robertson v. 380. 
 
 Kerrison v. Dorrien, 197. 
 
 Kershaw, Fraser v. 403. 
 
 Kewley, Brown v. 321, 331. 
 
 Key, Heath v. 232. 
 
 Keys v. Williams, 194. 
 
 Kidson v. Dilworth, 348. 
 
 Kilkenny, &c, Railw. Co., Devereux y. 
 
 500. 
 Kilsby v. Williams, 60. 
 King, Kearney v. 23. 
 
 , Sprowle v. 23. 
 
 v. Walker, 145. 
 
 Kinnear, Reg. v. 517. 
 
 Kirby v. Marlborough, Duke of, 227. 
 
 Kirk v. Bell, 528. 
 
 v. Blurton, 45. 
 
 Kirton, Wren v. 347. 
 Kitson v. Julian, 273. 
 Kleight's Case, 492. 
 Knight v. Fetch, 370. 
 
 v. Plymouth, Earl of, 347. 
 
 Knowles, Ede v. 199. 
 Knowlys, Hammersley v. 390. 
 Kolm, Splitgerber v. 435. 
 Kymer v. Laurie, 49, 109. 
 
 Lacey, Ex parte, 378. 
 Lachlan, Gardner v. 179. 
 Lacon, Ex parte, 191. 
 Ladbroke, Rogerson v. 338, 390.
 
 XX1\ 
 
 GRANT ON THE LAW Of BANKING. 
 
 ! I 
 
 LS. 
 
 i L2. 
 
 . 
 
 i,21l. 
 
 . 1. v. 397. 
 
 . Kj ni. r v. -»•.'. 109. 
 
 • lldaker v. 
 
 , fa ; 
 
 , Ham 
 
 , Needham « 
 
 v. Thompson, 515. 
 
 <8. 
 
 . Dawson v. 238. 
 
 Park) r \. 231. 
 i. Poster v. 303. 
 
 \. I. 
 
 V. 1. 
 
 Layfield, London, Bank >>f, w. 
 
 . !.. Whitfield v. 
 21. 
 v. Lockharl 
 
 
 
 . Sadler r. ! 
 
 >, 73, 326. 
 
 . - 
 
 parte, 154, 
 
 \ . I' 
 
 , Gale v. 184, 209. 
 
 v. John, 
 
 
 
 Lilly v II 
 Lindgren v. Lin 
 Llnd 
 
 , M 7 7. 
 
 
 
 Lit 12. 
 
 Littli 
 
 Littlejohn 
 
 Livesey, Curti 
 
 — '- — . Callaad • 
 , Cullingworth v. i 
 
 . I 
 
 . North I 
 
 . :-, 80. 
 
 v. 392, 391. 
 - inley, 39. 
 Glynn v. 136. 
 Lockett, EL \. 108. 
 Lockhart, I 
 
 .. Probin v. 57 1. 
 10. 
 Loe, Wheatley v. 10. 
 
 r, Nuun v. 499, 505. 
 borough, Lord, Beardshaw v. 
 013. 
 London, &c Assurance Co., Hill v. 
 
 London Assurance Company, Nelson v. 
 
 London. Bank of, Liu bod i 
 . Mayor of, Wood r. ou3. 
 
 (ioodwin. 
 
 Longman v. Pole. 
 Lonsdale, Field \ 
 
 v. Martin, 177. 
 Low \ I 
 
 Anderson, 404, 423. 
 Lowther, Hertford v. 405. 
 Loj d v. Freshfield, 3. 
 
 . Barclay « 273. 
 
 v. Dorrien, 190, 194, 284. 
 
 Lnmley v. Palmei 
 
 Lund. Marion v. 500. 
 Lunn v. Thornton 
 Lnshington v. Boldero, 323. 
 Lnttrell, Gale r. 
 I.vall v. Biggins, 271. 
 Lydall, Bardwell v. ; 
 
 aly v. 308. 
 Lynch r. DahseU, 181. 
 
 v. Fitzgerald, »;17. 
 
 . . Haynes, 
 — — v. Holt, 108. 
 
 ght v. Walker, 277, 280. 
 ■ r. M'Dow< 11 v. 15. 
 Lytb v. Ault, 130. 
 
 Macbride v. Lindsay, 558, 577. 
 M'Callan, Mortimi 
 
 Macclesfield, Karl of, 284. 
 
 M'Cleod, Bengal, Bank of t. 205, 429. 
 Macdonald, Bonar r. 226, 272. 
 M'Dowall v. Lyster, 15, 17. 
 lell, 211. 
 
 • r. I>a\ id 
 M'lntvn- v. Oonn< 7. 488. 
 v. Miller, 470, 508. 
 
 \l Iv.r. Fair v. 3 
 
 MR. 
 
 M'Keay, li. r. I 
 
 Mackenzie, Alexander \. 516. 
 
 , Field v. 501, 508, 503, 505. 
 
 17 4. 
 
 Mackintosh v. II . 108. 
 
 ntherland, 538,540,651,554.
 
 TABLE OF CASES CITED. 
 
 XXV 
 
 Maclean, Esdaile v. 470. 
 Maclish v. Ekins, 203. 
 M'Mahon, Foster v. 607. 
 M'Morine, Hibblewhite v. 190. 
 M'Turck, Ex parte, 206, 207. 
 Majoribanks, Bellamy v. 26, 31, 34, 58, 
 69, 70. 
 
 , Ex parte, 181, 211. 
 
 , O'Connor v. 211, 284. 
 
 Malcolm v. Scott, 4, 10, 118, 121. 
 Manchester Waterworks Co., Broughton 
 
 v. 457. 
 Mandesley, Drever v. 352. 
 Manesty, Morris v. 366. 
 Manley v. Boycott, 77, 257. 
 Manners v. Rowley, 471. 
 Manning, Fletcher v. 84. 
 
 v. Purchell, 3. 
 
 v. Westerne, 280. 
 
 Manningford v. Toleman, 284. 
 Mansfield, Coombes v. 212. 
 
 , Earl of, Ex parte, 561. 
 
 , Strickland v. 15. 
 
 March, Sandilands v. 294. 
 Marchant, Parker v. 2, 354. 
 Marcus, Reg. v. 357. 
 Marion v. Lund, 500. 
 Marlborough, Dk. of, Kirby v. 227. 
 Mars, Jones v. 295. 
 Marsh v. Houlditch, 390. 
 
 v. Keating, 121, 292, 37*3. 
 
 , Stone v. 41, 349. 
 
 , Truscott v. 119. 
 
 Marshall, Forbes v. 45, 169, 525. 
 
 , Pinkerton v. 331. 
 
 Martin, Collins v. 154, 154, 203. 
 
 , Ex parte, 163, 374, 379. 
 
 , Lovell v. 177. 
 
 — v. Morgan, 18, 28. 
 
 Martyn, Dark v. 350. 
 Marzetti v. Williams, 5, 49. 
 Mason v. Barff, 383. 
 
 v. Bradley, 113. 
 
 , Hill v. 2. 
 
 Mason v. Pritchard, 227. 
 Masselin, Harrison v. 368. 
 Massey v. Banner, 347. 
 Masterman, Cocks v. 111. 
 
 v. Cowrie, 395. 
 
 , Ex parte, 185. 
 
 , Stevens v. 9. 
 
 Masters v. Baretto, 114. 
 Mather v. Fraser, 594. 
 
 , Gibb v. 106. 
 
 , Taylor v. 63. 
 
 Matheson, Ex parte, 370. 
 Mathew v. Sherwell, 67. 
 Matthews v. Gabb, 185. 
 
 v. Griffiths, 387. 
 
 v. Maude, 377. 
 
 , Railton v. 233. 
 
 Maude, Matthews v. 377. 
 Maund, Jones v. 5. 
 Mawer's Case, 573. 
 
 May, Hough v. 82. 
 
 , Robins v. 257. 
 
 Mayer, Ex parte, 300. 
 
 v. Isaac, 227. 
 
 Mayo's, Lady, Case, 363. 
 Mayor v. Johnson, 423. 
 Melland v. Gray, 347, 348. 
 Mellish v. Simeon, 435. 
 Melville v. Doidge, 266. 
 Mercer, Smith v. 104, 411. 
 Mereweather, Amory v. 63. 
 Metcalfe v. Bruin, 263, 265. 
 
 , Demainbray v. 210. 
 
 , R. v. 101. 
 
 , v. York, Archbishop of, 197. 
 
 Meux v. Bell, 185, 209. 
 
 Case, 532, 538. 
 
 Mitchell, Ex parte, 91. 
 Middleton v. Barned, 382. 
 
 , Borrodaile v. 14. 
 
 , Parsons v. 20, 116, 117. 
 
 Midland Counties Railw., Dalton v. 369, 
 
 493. 
 Mildenhall, R. v. 617. 
 Miles. Ex parte, 228. 
 Milford v. Milford, 306. 
 Miller, M'Intyre v. 470, 508. 
 
 v. Miller, 93. 
 
 v. Race, 33, 423, 424, 429. 
 
 Reg. v. 622. 
 
 v. Thompson, 517. 
 
 v. Woods, 198. 
 
 Mills v. Alderbury Union, 276. 
 
 v. Bennett, 325, 354. 
 
 , Kemble v. 66, 97. 
 
 , Leftley v. 65. 
 
 v. Oddy, 32, 83. 
 
 Milvain, Chapman v. 471, 472, 478, 602. 
 Minchin, Chambers v. 352. 
 Minet, Gibson v. 7, 9, 33, 39, 116, 118. 
 Mitchell, Bonar v. 435, 463, 464. 
 
 , Buckle v. 197. 
 
 , Ex parte, 19, 315. 
 
 , Humble v. 491. 
 
 , Norman v. 553, 554. 
 
 Moffat, R. v. 857. 
 Molineux, Neale v. 184. 
 Moore v. Barthrup, 32, 81, 89. 
 
 , Burchfield v. 107, 113. 
 
 v. Greg, 197. 
 
 v. Jervis, 251, 284. 
 
 v. Moore, 90. 
 
 v. Warren, 409. 
 
 , Wilson v. 371. 
 
 Morgan, Boggs v. 2. 
 
 Case, 597, 598. 
 
 , Ex parte, 192. 
 
 , Martin v. 18, 28. 
 
 Morley v. Culverwell, 64, 103. 
 Morrell, Ball v. 48. 
 Morris, Burn v. 422. 
 
 , Hewett v. 435. 
 
 v. Manesty, 366. 
 
 v. Wall, 406.
 
 XXVI 
 
 CHANT OH Till; I. W, OF BANKING. 
 
 M 
 
 - 1 J. 
 \ Brown, 51. 
 Ilonntford v. Harper, 80. 
 
 Mullin- 
 Murr.iv r. Pi 
 
 v. Pinker 
 
 , RumbaU i 
 
 Murrow v. Stoart, 
 
 , 
 
 Mutivlull Seal v . 
 r. Perigall. 
 
 Kail, I 88. 
 
 , Price v. •} 1 2. 
 
 i, Hammond v. 
 hi v. Lavi 
 v. London Assurance Co., 287. 
 
 ■ 
 
 v. 
 
 v. Bertram, 
 
 . I 
 
 v. Penwick, 
 
 rville, Coll 
 
 Hen in. in. Bdwai 
 
 : Bank 
 
 Of v 
 
 m, Clark i . 
 
 ■ 
 
 Parrj r. 11 
 Nigbtij 
 
 Williams \ 
 
 ;ru ick v. ; 
 
 1 D 
 
 , Galliai v. 
 
 , Vulliuniv v. 124. 
 
 
 
 Norili \ W 
 
 J. 
 
 . V. 
 
 . 
 
 1 13. 
 
 . 
 
 SOS. 
 
 Hatting, Ex parte, 185. 
 ii\ parte, '-'IT. 
 
 . I !08. 
 
 , Pemberton \ 
 
 < I'Brien, Cochrane v. 137. 
 
 . Bradshaw, 580. 
 
 , Huxl( 
 
 v. Majoribanks, 211, 284. 
 
 M 
 
 . Pollard v. 107, 335, 389. 
 
 
 
 Oldaker v. Lavender, : 
 
 (•liver, Hark- v. 2 
 
 , Polglass v. 29, 406. 
 
 , R. v. 431. 
 
 , Robson v. 31, 66, 414 
 
 Orford, Ej parte, 321, 
 
 < Irmond, Blair v. 
 
 < Irr, \'"'\\ Lea v. 4. 
 
 < >sborne, Bx parte, 1 19. 
 
 Other v. [vi 6, 84, 257. 
 
 Ottley v. Gray, 186. 
 Ourscll. Kx parte, 139. 
 
 urv. Gribson v. 182, 186, 188. 
 ( Iwen, (Jrillitlis v. 50. 
 v. Horaan, 233, 243. 
 
 < Izenden, Dnfanr v. 59. 
 
 Oxford Railw. Co., V7ard, Lord v. 15. 
 , Woodcock v. 226. 
 
 Tack, Beacoby v. 353. 
 
 584. 
 Palmer v. B 
 
 , Lomley i 
 
 , II. v. 100, 430. 
 
 I'anncll r. Woodroffe, 114. 
 1'ark v. Eliason, 170, 330. 
 Parker v. A.de, 108. 
 
 , Hark, r v. 264. 
 
 , Bull v. 38. 
 
 v. Gordon, 49, 104, 106. 
 
 v. Honsefield, 197, 198. 
 
 v. Lawrence, 231. 
 
 v. Merchant, 2 
 
 v. Bmith, 
 
 , Sparling v. 497. 
 
 v. Watson, 231, 235. 
 
 v. \\ 
 
 v. Paris, 376. 
 Parrott v. Byre, 342. 
 I'. urv. Benson \ . 
 
 v. Nicholson, 1 13. 
 
 Bi Ichi i \ . 347. 
 
 , England v. 363, 364. 
 
 v. Hiddleton, 20, 1 16, 117. 
 Partridge \ , Coat 
 v". Bank of. 33, 361. 
 
 Patch, Ei part . 184. 
 I'. iti rson v. ironside, 177. 
 I'.iuli. Bi parte, i 56. 
 Payne, Burton v. 75. 
 Payne v. Ceable, 16.
 
 TABLE OP CASES CITED. 
 
 XXVH 
 
 Paynter v. Houston, 306. 
 Peach, In re, 82. 
 Peacock v. Hunt, 374. 
 
 , Snow v. 64, 427. 
 
 Pearce v. Creswick, 131, 133, 511. 
 
 v. Davis, 83. 
 
 , Ex parte, 343. 
 
 Peart, Christie v. 470. 
 
 Pease, Ex parte, 152, 154, 155, 162, 289. 
 
 v. Hirst, 77, 216. 
 
 Peat v. Crane, 375. 
 Pedder v. Watts, 120. 
 Peel v. Tatlock, 271. 
 Pemberton v. Oakes, 221, 225. 
 Pendlebury v. Walker, 243. 
 Penkivell v. Connell, 551. 
 Pennell, Burnes v. 466, 557, 552. 
 
 v. Deffel, 5, 281, 347. 
 
 Pentland v. Gibson, 485. 
 
 Perfect v. Musgrave, 236. 
 
 Perigall, Myers v. 490, 496. 
 
 Perkins, Giles v. 141, 143, 152, 153, 290. 
 
 Perring v. Dunston, 440, 457, 459. 
 
 Perry, Ex parte, 192. 
 
 v. Keane, 198. 
 
 , Reg. v. 19. 
 
 Phene v. Gillan, 494. 
 Phillipson v. Tempest, 504. 
 Phillpot, Fector v. 201. 
 Phipps v. Tanner, 25. 
 Pickard v. Bankes, 404. 
 Pickering v. Busk, 519. 
 Piukett, Murray v. 496. 
 Picton, Shaw v. 608. 
 Pierson v. Pounteys, 23. 
 Pinkerton v. Marshall, 331. 
 Pinkett, Murray v. 285, 286. 
 
 v. Wright, 28'", 544. 
 
 Pinnel's Case, 279. 
 
 Pinto v. Santos, 118. 
 
 Piper, Sanderson v. 24. 
 
 Plant, Ex parte, 186, 287, 496. 
 
 Plasket, Willis, 353. 
 
 Plummer, Re, 240. 
 
 Plymouth, Earl of, Kuight v. 347. 
 
 Pocklington v. Sylvester, 50, 51. 
 
 Pole and Co., Longman v. 293. 
 
 Pole, Wookey v. 203. 
 
 Polglass v. Oliver, 29, 406. 
 
 Pollard v. Hemes, 434. 
 
 v. Ogden, 107, 335, 389. 
 
 Pollman, R. v. 128. 
 
 Pond v. Underwood, 40. 
 
 Pontifex, Church, Doe d., v. 39, 406. 
 
 Pooley, Rex v. 14. 
 
 Popham v. Aylesbury, Lady, 405, 406. 
 
 Porcher, Scott v. 116, 118. 
 
 Porter, Bailey v. 105, 106. 
 
 v. Clay, 46. 
 
 , Watts v. 3, 201. 
 
 Pothecary, Simpkin v. 66. 
 Pott v. Beavan, 328. 
 
 v. Bevan, 41. 
 
 v. Clegg, 5. 
 
 Pott v. Eyton, 313. 
 Poulson, Watson v. 32, 53, 55. 
 Poulton, Watson v. 18. 
 Pounteys, Pierson v. 23. 
 Powell, Davenport v. 359. 
 
 , Ex parte, 193. 
 
 , Jones v. 359. 
 
 , Russell v. 116. 
 
 Powles v. Page, 313, 525, 584. 
 Pratt, Sutherland v. 213. 
 Prendergrass, Davey v. 231. 
 Prescott v. Buffery, 463, 466, 582. 
 
 , Cumming v. 185. 
 
 , Ex parte, 334, 454, 467. 
 
 v. Hadow, 613. 
 
 v. Tyler, 192. 
 
 Price v. Barker, 233, 242, 252. 
 
 v. Carver, 203. 
 
 , Ex parte, 182, 188, 207. 
 
 v. Groom, 194, 195, 212. 
 
 v. Neale, 412. 
 
 , Wynne v. 494. 
 
 Pritchard, Mason v. 227. 
 
 , Re, 182. 
 
 Probin v. Locock, 474. 
 
 Prosser v. Rowe, 609. 
 
 Proud, Hornblower v. 170, 330. 
 
 Puller, Bolton v. 139, 154, 160, 290. 
 
 Pullin, De Bergareche v. 108. 
 
 Pulsford v. Richards, 553. 
 
 Purchas, Bodenham v. 75, 221, 279. 
 
 Purchell, Manning v. 3. 
 
 Purling, Hammersly v. 89. 
 
 Purr, Wheatley v. 134. 
 
 Putting v. Tucker, 358. 
 
 Pyne, Levy v. 48. 
 
 Raby, Sewell v. 118. 
 
 Race, Miller v. 33, 423, 424. 
 
 Raikes, Re, 183. 
 
 v. Todd, 253. 
 
 , Wynne v. 383. 
 
 Railton v. Matthews, 233. 
 
 Ram, Ex parte, 375. 
 
 Ramford v. Copeland, 458. 
 
 Ramsay, Mackersy v. 174. 
 
 Ramsbottom v. Duck, 403. 
 
 , Scholey v. 64. 
 
 , Tunson v. 210. 
 
 Randleson, Ex parte, 282, 608. 
 
 Rankin, Creightdn v. 232, 275. 
 
 Rann v. Hughes, 32. 
 
 Ransford v. Bosanquet, 483. 
 
 Raper v. Birkbeck, 112. 
 
 Raphael v. Birdwood, 324. 
 
 v. England, Bank of. 409, 424, 
 
 425, 429. 
 
 Rastell v. Draper, 23. 
 
 Ravenscroft, R. v. 102. 
 
 Rawlinson, Williams v. 221, 280. 
 
 Ray, Castleman v. 16. 
 
 , Ex parte, 621. 
 
 Re Australia, Royal Bank of, (Cock- 
 burn's Case,) 543.
 
 xxvni 
 
 GRANT ON THE LAW OF BANKING. 
 
 Bank of, ( l: 
 
 :0. 
 
 
 
 C Ml. 
 
 , (Walker's 
 
 541. 
 
 tlT. 
 
 — B 
 
 una. Union Bank of 
 
 — Grant, 
 
 l».i\ icon's 
 
 mi Banking Co 
 
 (Bernard's • 
 
 i ! ■ ■ 571. 
 
 (Glaholmi I 574. 
 
 (Hall'- I 
 
 (Hawthorn* I '■C3. 
 
 rHolm< I 573. 
 
 (Sai. 571. 
 
 (Strati 
 
 — Norwich Xai <;13. 
 
 — ]•■ 
 
 — Plnmmer, 
 
 — Pril 
 
 il British Bank. 
 
 — Bl 
 
 - x < 51, COO. 
 
 
 
 — . v - 
 
 — v . 
 
 — W.irvvi. k, fa. K.iilu . I 
 
 1 II. 
 
 v. Berringt 
 
 Wright v. • 
 
 2C8, C02. 
 v. Beaman, 
 
 
 
 v. Chaj 
 
 v. Clark, ■■ 
 
 I 
 
 
 
 v. Curry, l 
 
 \ 
 
 \ 
 
 v. I 
 
 I II. 
 
 \. Qolde, I 
 
 V II 
 
 ■. ; 1 1 1 . 
 
 \ 
 
 « 
 
 I 
 
 
 Reid 
 R 
 
 - v 
 
 V 
 
 V 
 
 V. 
 
 V. 
 
 V. 
 
 V. 
 
 - V. 
 
 V. 
 
 V. 
 
 v. Kiiincar, 517. 
 , Li •■. 430. 
 
 us, 357. 
 
 v. M 
 
 v. Perry, L9. 
 \. Rodway, 431. 
 
 v. Smith. 430. 
 v. Bnelling, 13. 
 
 22. 
 
 v. Taylor, 102. 
 
 v. Thorn, I 
 
 v. Thurborn 
 
 v. Tnrborville, 102. 
 
 v. Tnrpin, L02. 
 
 v. Vivian, 430. 
 
 v. Watts, 19, 75, 78. 
 
 v. Welch, 430. 
 
 v. Whitmarsh, 580. 
 
 v. Williams, 101. 
 
 v. \\ ilson, 55 l. 
 .. 185. 
 , Abraham, 
 . Bazeley, 2G8. 
 , Birkett, 357. 
 , Burn, 175. 
 . Capper, 90, 
 
 Cheadle Savings' Bank, G17. 
 . Crooki 
 
 . Crowther, 430. 
 . England, Bank of, 302. 
 , Pauntleroy, 
 , Fernon, 622. 
 . Flint, 
 
 l 
 
 on, 359. 
 I 
 Hammon, - 
 
 Hodg 
 
 Bolden, 357, 429, 430. 
 
 Jackson, 100. 
 
 163. 
 Joliffe, 609. 
 Lambton, I 
 
 t, 102. 
 
 Ife, 101. 
 Mildenhall, 617. 
 Moffat, 
 Oliver, 431. 
 Palmer, 
 
 LOO. 
 Pollman, i 
 
 ii. 
 
 roft, 102. 
 Sbephi rd, 102, 358. 
 
 • 131. 
 Story, 
 Sullen- 
 
 Button
 
 TABLE OF CASES CITED. 
 
 XXIX 
 
 R. v. Wait, 357. 
 
 — v. Waite, 268. 
 
 — v. Wall, 357. 
 
 — v. Walsh, 101, 431. 
 
 — v. White, 145. 
 
 — v. Willoughby, 102. 
 
 — v. Wylie, 430. 
 
 — v. Yates, 19, 100. 
 Reynell v. Spry, 552. 
 Reynolds v. Chettle, 58. 
 
 , Vaisey v. 2. 
 
 Rhodes v. Gent, 109. 
 Rice, James v. 398. 
 Rich, Uther v. 64. 
 Richards, Emery v. 119. 
 
 v. Heather, 295. 
 
 , Pulsford v. 553. 
 
 Richardson v. England, Bank of, 304, 
 
 550. 
 
 , Ex parte, 185, 353. 
 
 v. Jackson, 38. 
 
 Richmond, Faith v. 45. 
 
 Rickett v. Bennett, 311. 
 
 Ricketts v. Bowkay, 480, 482, 500, 503. 
 
 Riddell, Ex parte, 345, 621. 
 
 Ridge, Ruckford v. 56. 
 
 Ridley v. Blackett, 90. 
 
 Ries, Billing v. 577 
 
 Rigby, Ex parte, 40. 
 
 Roach v. Johnston, 108. 
 
 Robarts, Keane v. 351. 
 
 v. Tucker, 26, 58, 110. 
 
 Roberts, Barry v. 10. 
 
 v. Eden, 206. 
 
 , Ex parte, 382. 
 
 Robertson v. Kensington, 380. 
 
 v. Sheward, 469, 517. 
 
 Robey v. Howard, 311, 608. 
 Robins v. May, 257. 
 Robinson v. Burbidge, 366. 
 
 , Ex parte, 402. 
 
 , Hansard v. 422. 
 
 v. Hawksford, 50. 
 
 v. Hawksworth, 96. 
 
 v. Ward, 348. 
 
 v. Wood, 366. 
 
 Robley, Beck v. 175. 
 Robson v. Bennett, 51, 58, 59. 
 
 v. Oliver, 31, 66, 414. 
 
 Rocke v. Campbell, 435. 
 
 v. Hart, 348. 
 
 Rodgers, Ex parte, 192. 
 
 Rodickv. Gandell, 27, 50, 83, 96, 116. 
 
 Rodway, Reg. v. 431. 
 
 Roe v. Fuller, 471. 
 
 — , Hopkinson v. 360. 
 
 Rogers, Abbott v. 580. 
 
 v. Drake, 19. 
 
 , Ex parte, 420. 
 
 v. Halloway, 366. 
 
 v. Kelly, 267. 
 
 v. Langford, 409, 412. 
 
 , Spurraway v. 29. 
 
 v. Thomas, 353. 
 
 Rogers, Warwick v. 58, 75, 83, 96, 107, 
 
 113, 382. 
 Rogerson v. Ladbroko, 338, 390. 
 Rolin v. Steward, 29, 48, 49. 
 Rose v. Hart, 334. 
 Rossi, Novelli v. 113. 
 Rostron, Walker v. 7, 9, 116, 117, 118. 
 Rothschild v. Corney, 62. 
 
 v. Currie, 436. 
 
 , Hennings v. 33. 
 
 Rowe, Prosser v. 609. 
 
 v. Young, 104. 
 
 Rowle, Ryals v. 196. 
 
 Rowley, Manners v. 471. 
 
 Rowth v. Howell, 347. 
 
 Rowton, Ex parte, 163. 
 
 Royal British Bank v. TurquancJ ,599. 
 
 Ruckford v. Ridge, 56. 
 
 Ruddock's Case, 244. 
 
 Rufford v. Bishop, 397. 
 
 , Ex parte, 315. 
 
 Rumball v. Murray, 19. 
 Russell, Douglas v. 214. 
 
 , Exon v. 114. 
 
 v. Hankey, 90. 
 
 v. Powell, 116. 
 
 v. Russell, 194. 
 
 , Wright v. 263. 
 
 Ryals v. Rowle, 196. 
 Ryde, Jones v. 394, 411. 
 
 Sadler v. Belcher, 171, 172. 
 
 v. Lee, 292, 351. 
 
 Sadler's Case, 492, 572. 
 
 Saddlers' Co. v. Badcock, 181. 
 
 Saddler, Snow v. 427. 
 
 St. Alban's Bank, Re, 316. 
 
 St. Marylebone Banking Co., Re, 551, 
 
 556, 600. 
 St. Quintin, Walwyn v. 95. 
 Salkeld, Ex parte, 499. 
 Salway v. Salway, 44. 
 Samuel, Badnall v. 232. 
 
 v. Green, 32. 
 
 Samuell v. Howarth, 232. 
 Sanderson v. Bowes, 413. 
 
 v. Piper, 24. 
 
 Sanderson's Case, 548, 566, 571. 
 Sandham, Ex parte, 306. 
 Sandilands, Lloyd v. 80. 
 
 v. March, 294. 
 
 Sands v. Clarke, 114, 413. 
 
 Santos, Pinto v. 118. 
 
 Sarjeant, Ex parte, 139, 141, 143, 155. 
 
 Saunderson v, Jackson, 39. 
 
 v. Judge, 106, 114. 
 
 Savage, Darrach v. 36. 
 Sayer v. Wagstaff, 36, 82. 
 Schlenker, Boddington v. 50, 51, 52. 
 Scholey v. Ramsbottom, 64. 
 Schomoll, Gammon v. 104. 
 Schroeder, Fruhling v. 7, 118. 
 Scotland, Bank of, v. Christie, 5, 522. 
 , Ex parte, 380.
 
 GRANT ON THE LAW OF BANKING. 
 
 Scotland, Bank of, v. Fenwick, 500. 
 
 , Smith v. 
 
 
 
 v. Hit 
 
 . I| 504, 
 
 , 1 181. 
 
 v. Franklin 
 
 , II >r. 
 
 ::■•■.. 
 
 , Malcolm v. 1. 1". 118, 121. 
 
 v. Porcher, 116, l is 
 
 111. 
 ;. Eden, . 
 
 . '• ■•..!!. it. 32, 
 
 lilw. Co. 32, 
 48. 
 
 - 
 
 Sharp, Bx parte, B8, 211, 250, 280. 
 
 Sharratt, Carry v. 
 
 v. l>artnall, 608. 
 
 v. Pisher, I 
 
 . 
 
 v. Picton, G08. 
 
 fcc Uaihv. Co. \. Woodcock, 
 
 512. 
 
 : 90. 
 
 , v. Braitfa 
 
 Sheppard v. Drj 
 . well, Kath< 
 
 ".17. 
 i, 10. 
 Shillibeer v. CI. 
 Shippam, Cballen v. 
 
 12. 
 
 
 
 ■ 
 1 
 
 , CowelJ v. . 
 
 'on, 111.. "08. 
 
 
 
 121. 
 
 1 
 
 191, 192, 
 
 Bimson v. Ingham, 279, 280. 
 Binclair v. Wilson 
 
 m, Balstead v. 105. 
 Bkerratt, Bx parte, - * 1 7 - 
 
 Little \. 12. 
 Slater, Caballero \. 254. 
 Sleecfa 
 
 Grainger v. :;77, 486. 
 ■ T v. England, Bank of, 42, 128, 
 
 Small v. Curric, 233. 
 
 Smart i N 
 
 v. Btokes, i ,; - 
 
 Smith. A.uriol v. 122, 360. 
 
 , Bleaklej i 
 
 , Boswell \ 
 
 v. Cannan, 
 
 , Cowper v. 
 
 v. Craven, ill, 309. 
 
 , Esdaile r. 
 
 , Bx parte, 168, 181, 
 
 200, 217. 
 
 v. Ferrand, 37, 83, 95. 
 
 , Fuller v. 112, ill. 
 
 v. Cold- worthy, 514. 
 
 , Haille v. 215. 
 
 , Hill v. 338, 386. 
 
 v. Hodson, 334, 421. 
 
 v. Hull Glass Co. 591. 
 
 v. Jameson, 41. 
 
 v. Mercer, 109, 411. 
 
 , Parker v. 
 
 , Reg v. 430. 
 
 v. Scotland, Bank of, 233. 
 
 v. Smith, 
 
 v. Ward, 366. 
 
 , Williams v. 416. 
 
 v. Winter, 15 246, 248, 295. 
 
 , W lall v. 211. 
 
 Smyth's Settlement, He, 369. 
 
 Ex parte, 
 Snell 13. 
 
 Snow v. Leatham, 426. 
 
 v. Peacock, 64, 427. 
 
 v. Saddler, 
 
 Solomo ind, Hank of, 423. 
 
 , Ei parte, 317. 
 
 by v. Batcher, 436. 
 
 V. Han i 
 
 L72, 323, 
 Sparling v. Pari 
 Sparrow v. Chisman, ! 
 
 . 
 
 , Bi parte, 
 Spenser, K. v. 431. 
 
 on v. L80. 
 Spiller v. Job 
 
 v. 
 
 Spinier v. Spina 
 Spindler v. Grellett, 114. 
 
 Win, holt i 
 ■ v. kolm, I 
 
 ner, Hughes v. 143.
 
 TABLE OF CASES CITED. 
 
 Sprowle v. King, 23. 
 Spry, Reynell v. 552. 
 Spurling, Davis v. 351. 
 Spurraway v. Rogers, 29. 
 Staddon, Ex parte, 165, 419. 
 Stainback v. Fernley, 548. 
 Stanhope, Decks v. 550, 551. 
 Stanhope's Case, 542, 557. 
 Stanley, Lobb v. 39. 
 Staples, Napier v. 347. 
 Stapleton v. Stapleton, 129, 134. 
 Starey v. Barnes, 337. 
 Starkey, Jones v. 215. 
 Stead v. Thornton, 395. 
 Steadman v. Duhamel, 17. 
 Steele v. Hoe, 274. 
 
 , Taylor v. 129. 
 
 Steere, Witt v. 376. 
 Stein, Carstairs v. 395. 
 Stephens, Ex parte, 122. 
 Stephenson v. Chiswell, 312. 
 
 , Innes v. 41, 326, 349. 
 
 Sterling, Boehm v. 32, 97. 
 Stevens, Dobell v. 552. 
 
 , Ex parte, 181, 193. 
 
 v. Hill, 58, 60, 110. 
 
 v. Masterman, 9. 
 
 Stevenson v. Blakelock, 290. 
 Steward v. Dunn, 462, 464, 474. 
 
 , Ex parte, 287. 
 
 v. Greaves, 462, 470, 508. 
 
 , Rolin v. 29, 48, 49. 
 
 Stewart v. Fry, 7, 112. " 
 
 v. Lee, 68, 69, 73, 326. 
 
 Stickland v. M'Kean, 226. 
 
 v. Mansfield, 15. 
 
 Stirling, Boehm v. 53, 62. 
 Stodhart, Deacon v. 111. 
 Stokes, Brice v. 349, 368. 
 
 , Ex parte, 228. 
 
 v. Grissell, 16, 99. 
 
 , Smart v. 16. 
 
 Stone v. Compton, 239. 
 
 v. Marsh, 41, 349. 
 
 , Ogden v. 85. 
 
 Stones, Turner v. 408. 
 
 Story, R. v. 432. 
 
 Stoveld v. Eade, 280. 
 
 Stracy v. England, Bank of, 358. 
 
 Straffon's Case, 456, 565, 566. 
 
 Executors, Re, 484. 
 
 Strahan, Reg. v. 296. 
 Strange v. Lee, 221, 265. 
 
 v. Wigney, 428. 
 
 Strattcn, Abbott v. 357. 
 Stright, Ex parte, 185. 
 Strong v. Foster, 261. 
 
 v. Hart, 37. 
 
 , Hennell v. 492. 
 
 Stroud, Ex parte, 523. 
 Stuart, Brook v. 244. 
 
 v. Bute, Marquis of, 2, 405. 
 
 , Murrow v. 391. 
 
 Stubbs, Boultbee v. 237, 238. 
 
 January, 1857. — 4 
 
 Stubbs, Hughes v. 94. 
 
 Studley, Vane v. 35. 
 
 Sturt, Ex parte, 153, 316. 
 
 Sturtevant v. Forde, 63. 
 
 Styan, Re, 180, 182. 
 
 Such, Crossfield v. 369. 
 
 Sullens, R. v. 268. 
 
 Surman, Scott v. 139, 156. 
 
 Surtees, Foster v. 418. 
 
 Sutherland, Barnewall v. 472, 476, 601. 
 
 , Maclae v. 538, 540, 551, 554. 
 
 v. Pratt, 213. 
 
 , Wills v. 472. 
 
 Sutton, Chapman v. 254. 
 
 v. England, Bank of, 362. 
 
 , Hotham v. 353. 
 
 , R. v. 90. 
 
 v. Toomer, 65, 95, 404. 
 
 Swan v. Scotland, Bank of, 20. 
 Swann, Woodbridge v. 402. 
 Swinton, Jameson v. 49. 
 Sylvester, Pocklington v. 50, 51. 
 Symonds v. Gas Light, &c. Co., 607. 
 
 Taffs, Reg. v. 622. 
 Tagart, Ex parte, 192. 
 Tamplin v. Diggins, 331. 
 Tanner, Ex parte, 183. 
 
 , Phipps v. 25. 
 
 Tassell v. Cooper, 5, 125. 
 Tate v. Hilbert, 38, 50, 93. 
 Tatlock, Peel v. 271. 
 Taylor v. Dobbins, 39. 
 
 , Ex parte, 521, 594. 
 
 • , Gaunt v. 5, 40, 352. 
 
 v. Hughes, 44, 509, 512. 
 
 v. Mather, 63. 
 
 , Reg. v. 102. 
 
 v. Steele, 129. 
 
 v. Taylor, 2. 
 
 , Webb v. 474. 
 
 Teed v. Elworthy, 296. 
 
 , Hollond v. 224. 
 
 Tempest, Phillipson v. 504. 
 Tennyson, Ex parte, 179. 
 Thelusson, Vanderdonckt v. 114, 435. 
 Thomas, Auriol v. 328. 
 
 v. Cooper, 397, 398. 
 
 v. Fenton, 97. 
 
 , Janson v. 19, 29, 
 
 , Rogers v. 353. 
 
 Thomas's Case, 564. 
 
 Thompson v. Bell, 6, 297, 298, 519. 
 
 , Brown, Janson and others v. 
 
 339. 
 
 v. Dominy, 190. 
 
 , Ex parte Re Dil worth, 151. 
 
 v. Giles, 139, 141, 147, 152. 
 
 v. Heiferman, 93. 
 
 , Law v. 515. 
 
 , Miller v. 517. 
 
 v. Spieres, 180. 
 
 Thorn, Reg. v. 430. 
 Thorne, Fancourt v. 257.
 
 XXX1J 
 
 QRANT OK THE LAW OF BAHKING. 
 
 Thorn • 
 
 , Lunu I 
 
 _ 
 
 Tlu.: 
 
 
 
 
 
 v. T: 
 
 Threl&ll r. Giles, 171. 
 Thurborn. Ri 
 
 181. 
 Tidm I 
 
 Tiium I •!, 410, 111. 41 J. 
 
 v. \\ 
 
 an, Manningford v. 2 - 
 Tomkii 129. 
 
 Toolmio \ . I 
 , Bi parte, 
 
 , Kx parte, I 
 
 her v. Hinton, ;:■ 
 hi. Kennaway v. 27 1. 
 Trent Navij - v. Barley, 231. 
 
 Trenttell v. Barandon, 203. 
 
 L12. 
 Traeman v. Fenton, 67. 
 Tnunan, Dnpanj 
 
 tt v. Marsh, 1 19. 
 
 Tucker, Putl 
 
 
 -. 1 10. 
 
 TufheU, Kx parte, 
 
 i i. 210. 
 
 Tnrborrille, Reg. v. I 
 Turner. Bn 
 
 •. Haydon, 105, 109. 
 
 , Lister v. 197. 
 
 
 
 Tunic 
 
 Turpi) 102. 
 
 Turquand, Royal Brit Hunk v. 59 
 
 1 
 
 
 
 192. 
 
 rjdall v. WaHoa, 
 
 . Wnitlock v. 19. 
 
 Urquhart, Bradli 
 
 I 
 
 !-. 2. 
 '• • '■ ■ b Brewery, In • 
 
 ■11. v' 7. 1 19, 382, 412. 
 
 V 
 
 Vaughan, Alexander v. 610. 
 
 . Grant v. 20, 33, 39, 95. 
 
 Vere r. As) 
 
 , Edwards \. 129. 
 
 . Kx parte, 190. 
 
 Vernon v. Bouvei it 
 
 v. Hall, 331. 
 
 v. Hankey, 5, G7, 89, 
 
 v. Hanson, 
 
 Vickery, Garriek \. 41. 
 Vincent, Courtoy i 
 Vivian v. Cochrane, 581. 
 . ft j. v. 180. 
 
 VnUian 
 
 Wade, Bainbridge v. 253. 
 Wade'a Case, 24, 35. 
 
 ■ iff, Sayer 
 Wain v. Bailey, 432. 
 Wainwright, Barclay v. 377. 
 
 357. 
 Wait.-. K. V . 2G8. 
 Waithman, Kx parte, L8Lj 
 Wakefield Bank, Kx parte, 154, It;. 
 
 , N irtn v. -j . 
 
 Walker v. British Insurance Co. 2GG. 
 
 . Caliot v. 397, G07. 
 
 , Fletcher \ 
 
 , King v. 145. 
 
 , Lysaghl v. 277, 280. 
 
 . Pendleburj \ , 
 
 v. Rostron, 7, :>, 116, 117, lis. 
 
 , Wharton v. 96, 1 16. 
 
 . Zinck v. 330. 
 
 Wall, Morris v. 406. 
 
 , R, \. 
 
 Wallace v. Kelsall, 42. 
 
 . Wyatt v. 350. 
 
 Walmesley v. Child, 429. 
 Walsh, Aul 
 
 v. Gladstone, 102. 
 
 . R. \. 101, 431. 
 
 Walter'.-; Case. G 11. 
 Walton, UdaU v. 88. 
 Walworth \. Holt, 
 Walwyn v. St. Qointin, 
 
 Warburg, Bradley v. : , 503. 
 
 Ward \. Evans, 
 
 , Hutton v. 
 
 , I..!.. Oxford Railw. Co. v. 15. 
 
 , Robinson \ , 
 
 , Smith v. 31 
 
 l, Bond \. 15, i . 
 Ware \ . Cumbi ;'• 
 
 Waring, William- v. 1 1 1. 
 Watr. Hough v. 
 Warren. Moore » . 409. 
 
 . Will.y V, 
 
 Warrington v. Early, 1 14. 
 Warwick • I IT. 
 
 , fir.. Railw. Co., Re, 81* 
 
 v. Rogers 58, 75, 83, 96, 107, 
 
 113,
 
 TABLE OF CASES CITED. 
 
 XXX111 
 
 Waterford Railw. Co. v. Wolseley, 494, 
 
 592. 
 Waters v. Brogden, 14. 
 Watkins, Ex parte, 181. 
 Watson v. Allcock, 235. 
 
 v. Charlemont, Earl of, 353. 
 
 , Everard v. 106. 
 
 , Hamilton v. 233. 
 
 , Heywood v. 262. 
 
 , Parker v. 231. 
 
 , Parkers v. 235. 
 
 v. Poulson, 18, 32, 53, 55. 
 
 Watson's Case, 613. 
 
 Watts v. Christie, 4, 89, 288. 
 
 v. Jefferies, 92, 366. 
 
 , Pedder v. 120. 
 
 v. Porter, 3, 201. 
 
 , Reg. v. 19, 75, 78. 
 
 Waud, Young v. 181. 
 Way v. Bassett, 129, 132. 
 Webb v. Taylor, 474. 
 
 , Tyler v. 203. 
 
 Wedlake v. Hurley, 7, 116. 
 Welch, Bell v. 253. 
 
 v. Reg. 430. 
 
 West v. Reid, 185. 
 Westerne, Manning v. 280. 
 Westlake, Spiller v. 83. 
 Weston v. Barton, 221. 
 Wharton v. Walker, 96, 116. 
 Wheatley, Heward v. 482, 485. 
 
 v. Leo, 10. 
 
 v. Purr, 134. 
 
 Whiunay, North Western Railw. Co. v. 
 
 272. 
 Whipham, Ex parte, 321, 344, 620. 
 Whitaker v. England, Bank of, 49, 106, 
 
 378. 
 Whitall, Moyser v. 65, 95. 
 Whit bread v. Jordan, 203. 
 White, Baugh v. 44. 
 
 , Blake v. 232. 
 
 , R. v. 145. 
 
 Whitehead, Holroyd v. 109. 
 Whiteley, Woodford v. 422. 
 Whitfield v. Le Despencer, Lord, 422. 
 Whitlock v. Underwood, 19. 
 Whitmarsh, Reg. v. 580. 
 Whitnash v. George, 267. 
 Whitten, Hawkins v. 336, 420. 
 Whitter, Ex parte, 382. 
 Whitwell v. Bennett, 17. 
 Whitworth, Ex parte, 261. 
 
 v. Gaugain, 201. 
 
 Whyte, Evans v. 410. 
 Wickham v. Gatrill, 268. 
 Wienholt v. Spitta, 94. 
 Wigg, Henniker v. 260, 282. 
 Wigney, Strange v. 428. 
 Wilbey v. Warren, 38. 
 Wildman v. Wildman, 90, 353. 
 Wilkins, Bristed v. 366. 
 
 v. Jadis, 106. 
 
 Wilkinson, Ex parte, 180. 
 
 Wilkinson v. Godefroy, 93. 
 
 v. Henderson, 296. 
 
 v. Johnson, 11. 
 
 Willet v. Chambers, 26. 
 Williams, Bozon v. 194. 
 
 , Brettell v. 294. 
 
 v. Deacon, 8. 
 
 v. Everett, 7, 11, 116, 118. 
 
 , Ex parte, 302. 
 
 , Keys v. 194. 
 
 , Kilsby v. 60. 
 
 , Marzetti v. 5, 49. 
 
 , Morse v. 438. 
 
 v. Nixon, 365. 
 
 v. Rawlinson, 221, 280. 
 
 , Reg. v. 101. 
 
 v. Smith, 416. 
 
 v. Waring, 114. 
 
 , Wilmot v. 108. 
 
 Williamson, Ex parte, 610. 
 
 v. Johnson, 44. 
 
 Willis v. England, Bank of, 88, 432, 433, 
 
 458, 584. 
 
 , Ex parte, 262. 
 
 , Fordham v. 132. 
 
 v. Freeman, 331. 
 
 v. Plasket, 353. 
 
 , Vanderzee v. 190, 284. 
 
 Willoughby, Hay v. 484. 
 
 , R. v. 102. 
 
 Wilmot v. Williams, 108. 
 Wilsmore, Bristol, Earl of, v. 93. 
 Wilson v. Balfour, 178. 
 
 v. Barthrup, 45. 
 
 v. Craven, 249, 250, 265, 471. 
 
 , Ex parte, 196, 310, 314. 
 
 , Forster v. 335, 336, 405. 
 
 v. Hirst, 280. 
 
 v. Moore, 371. 
 
 , Reg. v. 554. 
 
 , Sinclair v. 209. 
 
 Wills v. Sutherland, 472. 
 Wiltshalge v. Davidge, 21. 
 Winch v. Fenn, 328, 395. 
 Windle, Johnson v. 429. 
 Wing v. Harvey, 184. 
 Wingfield v. Barton, 500. 
 Winter, Smith v. 45, 246, 248, 295. 
 Wintle v. Crowther, 45. 
 Wise v. Charlton, 257. 
 
 , Gillard v. 400. 
 
 , Parker v. 226. 
 
 Witt v. Steere, 376. 
 
 Woolseley, Waterford, &c. Railw. Co. v. 
 
 494, 592. 
 Womersley, Gurney v. 394. 
 Wood, Ex parte, 180, 183, 506. 
 
 v. London, Mayor of, 603. 
 
 , Robinson v. 366. 
 
 Woodall v. Smith, 211. 
 Woodbridge v. Swann, 402. 
 Woodcock, Garnett v. 106. 
 
 v. Oxford Railw. Co. 226. 
 
 ; Sheffield, &c. Railw. Co. v. 51 2.
 
 GRANT ON THE LAW 01 BANKING. 
 
 v. Whiteley, \-yi. 
 
 iflfe, Pannell \. 114. 
 Hardy v. 108. 
 Id v. 16, 1: 
 
 , France r. 
 
 , Miller t. 
 
 let, Jombari v. I 
 
 Wuollev. Van Wart. v. V. 110, 382 
 
 Worthiagton, Bdge v. 200. 
 Wray, Boaanqnet r. 479. 
 
 v. Kirton, 
 Wright v. I 
 
 . Pin] 
 
 v. Reed, 406. 
 
 v. Russell, 
 
 . Todd v. 470, 47 1, 4 7 7. 
 
 Wyan w. Fowler, 
 
 W'vatt. Blew v. 130. 
 
 Wyatl v. Hertford, Marq. of, 79. 
 
 — - v. Wallace, 350. 
 
 Wylie, Bryson v. 142, 170. 
 — - — -. K\ parte, 317. 
 
 . R. ■ 
 
 Wyndham, Ex parte. 314. 
 Wynne v. Price, 194. 
 — \. Raikes, 383. 
 
 LOO. 
 Ranunett v. 328, 387, 395. 
 York. Archbp. of, Metcalfe v. 197. 
 Young v. Bengal, Bank of, 144, 208, 
 
 v. Grote, 25, : 
 
 v. Hope, 182. 
 
 , Leake v. 521, 
 
 , Rowe v. 104. 
 
 v. Wand, 181. 
 
 Zick v. Walker, 152, 284, 330.
 
 TABLE OE STATUTES. 
 
 The pages referred to are those between brackets, [ ]. 
 
 27 Eliz. c. 4, 197 
 
 3 & 4 Ann. c. 9, 406, 435 
 
 s. 7, 36 
 
 8 Geo. I. c. 8, s. 43, 376 
 
 2 Geo. II. c. 25, 362 
 
 12 Geo. III. c. 72, 435 
 
 31 Geo. III. c. 25, s. 19, 97 
 
 39 & 40 Geo. III. c. 28, s. 15, 435 
 
 c. 107, 435 
 
 40 Geo. III. c. 36, 367 
 
 48 Geo. III. c. 88, s. 3, 21 
 
 c. 149, ss. 35, 36,37, 492 
 
 49 Geo. III. c. 118, 128 
 
 c. 126, s. 3, 128 
 
 52 Geo. III. c. 63, 144, 146 
 
 53 Geo. III. c. 184, s. 1, 
 55 Geo. III. c. 60, 
 
 c. 184, 
 
 s. 8, 
 s. 13 
 s. 18, 
 s. 19, 
 sched. 
 sched. p. 1, 
 
 72 
 
 374 
 
 20 
 
 98 
 
 17, 18, 39 
 
 407 
 
 60, 109 
 
 38 
 
 13, 16, 
 
 24, 186 
 
 S. 11, 21 
 
 498 
 
 357 
 
 104, 107, 114 
 
 s. 2, 59, 383 
 
 85 
 
 165, 385 
 
 123, 128 
 
 167, 169 
 
 c. 46, 6, 18, 265, 268, 
 
 291, 441, 444,468, 
 
 486,487, 488, 584, 
 
 593, 600, 602 
 
 c. 46, s. 1, 454 
 
 s. 4, 460 
 
 s. 5, 463 
 
 7 Geo. IV. c. 46, s. 6, 464 
 
 s. 7, 464 
 
 56 Geo. III. c. 68 
 
 57 Geo. III. c. 99 
 1 Geo. IV. c. 92, s. 3 
 1 & 2 Geo. IV. c. 78, 
 
 6 Geo. IV. c. 16, s. 3, 
 
 s. 50, 
 s. 56, 
 s. 72, 
 
 7 Geo. IV. c. 46, s. 8, 
 s. 9, 
 S. 10, 
 s. 11, 
 s. 12, 
 s. 13, 
 
 s. 14, 
 s. 15, 
 s. 16, 
 s. 17, 
 s. 18, 
 sched, 
 c. 67, 
 7 & 8 Geo. IV. c. 29, s. 
 
 464 
 
 467, 475, 510 
 
 508 
 
 478, 481 
 
 478 
 
 455, 480, 481, 
 
 482, 492, 561 
 
 510 
 
 458 
 
 509 
 
 510 
 
 510 
 
 B., 465 
 
 435, 463, 464 
 
 9 Geo. IV. c. 23, 
 
 1 
 
 5', 
 49, 
 
 50, 
 52, 
 53, 
 
 c. 49, s. 
 c. 73, s. 
 c. 92, s 
 
 1, 
 
 2, 
 
 3, 
 
 4, 
 
 5, 
 
 6, 
 
 7, 
 
 8, 
 ,9, 
 
 10, 
 •11, 
 ,12, 
 ,13, 
 ,14, 
 ,15, 
 .16, 
 
 15, 
 . 36, 
 
 2, 
 
 3, 
 
 4, 
 
 147 
 100 
 144, 148, 
 153 
 144, 146 
 147, 148 
 99 
 447 
 406, 438 
 446 
 446 
 447 
 447 
 447 
 447 
 448 
 449 
 449 
 450 
 456 
 452 
 452 
 452 
 452 
 14, 15, 16, 18 
 208 
 614 
 614 
 614
 
 
 .■KANT ON THE LAW OP DANK INC 
 
 614, 
 
 -. :. 619 
 
 62 a 
 
 s. 10, 
 B. 11. 
 
 618 
 618 
 
 616 
 
 615 
 
 8.43, 616 
 
 s. 46, 618 
 
 618 
 618 
 
 618 
 
 IV.\-lWill.IV.c.l3, 126 
 
 B. 10, 354 
 
 c. 47, s. 9, 288 
 
 c.66, s. 3,357,429 
 
 s. 4, 100 
 
 s. 5, 354 
 
 s. 6, 355 
 
 355 
 
 373 
 
 355 
 
 134 
 
 ■.Will. IV. r. li. ?.];.. 
 
 s. 2c JO, 621 
 614 
 c.83 
 
 s. 3, 440 
 
 22 
 44 5 Will. IV. c. 40, s. 12, 321 
 64 7 Will. H 616 
 
 I.IV.A 1 \ 
 
 601 
 -. l. 246, 468, 471, it:. 
 ■17. 
 
 i ' 
 
 :>1. 406 
 201 
 
 ■ 
 Yi.-t. (. 11,8. 8, 
 
 182 
 :. b. 1, 91 
 
 ill, 8. 2, 601 
 
 4 Virt. <. 14, 
 
 Virt. 
 
 50, 1. 1- 
 
 s. 2, 
 
 s. 3, 
 
 B. 88, 
 . B. 0, 
 
 441 
 442 
 
 442 
 355. 
 
 365 
 623 
 148 
 C. 71,8. 6, 623 
 
 47G, 478, 601 
 
 6 ft T Vi. t. c. 73, s. 21, 82 
 
 7 \ - Vict ■ 450, 509 
 
 -. 7. 406 
 
 461 
 s. 10, 439, 461 
 B. 11, 439 
 
 440 
 s. 13, 111, 510 
 B. 1 1. 441 
 
 8. 16, 141 
 
 B. 16, 445 
 
 4 42 
 B. 18, 443 
 
 s. 19, 442, 443 
 8. 20, 444 
 
 S. 21, 444,400,485,583 
 S. 22, 446 
 
 S. 23, 450 
 
 s. 24, 450 
 
 s. 26, 1 10 
 
 S. 28, 439 
 
 0. 83, 023 
 
 s. 1, 618 
 
 018 
 614, 615 
 617, 61 
 
 622 
 618 
 616 
 
 s. 3, 
 
 B. 10, 
 
 s. 12, 
 
 s. 14, 
 
 s. 15, 
 
 s. 18, 
 c. no, 
 s. 2, 
 S. 25, 
 
 .:. 111. 
 
 C. Ill 
 
 i 
 
 c. 113, 
 
 8.1, 
 
 617 
 
 617 
 619 
 014 
 
 487, 580 
 525 
 580 
 599 
 
 524, 613 
 599 
 600 
 
 600, 605 
 •177 
 
 i J. i I i 
 
 B. 1, 579 
 
 .-. 2, -187, 579, 584,586 
 
 .'.7!' 
 
 s. 4, 579, 586 
 
 ', 581 
 k"70 r.on 
 
 8.7, 
 8. 8, 
 
 8. 10, 
 
 B. 1 1, 
 
 8. 12, 
 
 8. 13, 
 
 DI'J, OBI 
 
 579, 589 
 
 580, 589 
 580, 589 
 
 580 
 580 
 580
 
 TABLE OF STATUTES. 
 
 xxxvn 
 
 7 & 8 Vict. C. 
 
 113, s. 14 
 
 
 
 580 
 
 12 & 13 Vict. 
 
 c. 106, s. 125, 
 
 167, 169 
 
 
 s. 15, 
 
 
 
 580 
 
 
 192 
 
 ,185,353 
 
 
 s. 16, 
 
 
 
 581 
 
 
 s. 133, 
 
 432 
 
 
 s. 17, 
 
 
 
 582 
 
 
 s. 139, 
 
 378 
 
 
 s. 18, 
 
 
 
 582 
 
 
 s. 164, 
 
 379 
 
 
 s. 19, 
 
 
 462, 
 
 582 
 
 
 s. 165, 
 
 88, 325, 
 
 
 s. 20, 
 
 
 462, 
 
 582 
 
 
 
 326 
 
 
 s. 21, 
 
 
 
 582 
 
 
 s. 107, 
 
 344 
 
 
 s. 22, 
 
 
 593 
 
 596 
 
 
 s. 171, 
 
 165 
 
 
 s. 23, 
 
 
 
 587 
 
 
 s. 177, 
 
 123 
 
 
 s. 24, 
 
 
 
 587 
 
 
 c. 108, 
 
 504, 599 
 
 t 
 
 s. 25, 
 
 
 
 588 
 
 
 8.1, 
 
 524 
 
 
 s. 26, 
 
 
 
 588 
 
 
 s. 14, 
 
 506 
 
 
 s. 27, 
 
 
 
 588 
 
 
 s. 30, 
 
 506 
 
 
 s. 28, 
 
 
 
 588 
 
 
 c. 126, s. 125, 
 
 185 
 
 
 s. 29, 
 
 
 
 589 
 
 13 & 14 Vict. 
 
 c. 60, s. 5, 
 
 368 
 
 
 s. 30, 
 
 
 
 589 
 
 
 s. 6, 
 
 368 
 
 
 s. 31, 
 
 
 591.5S 
 
 
 s. 22, 
 
 368 
 
 
 s. 32, 
 
 
 
 592 
 
 14 & 15 Vict 
 
 c. 99, s. 14, 
 
 359 
 
 
 s. 33, 
 
 
 
 592 
 
 
 c. 100, s. 8, 
 
 358, 429 
 
 
 s. 34, 
 
 
 
 592 
 
 
 s. 13, 
 
 270 
 
 
 s. 35, 
 
 
 
 592 
 
 15 & 16 Vict. 
 
 c. 55, s. 3, 
 
 369 
 
 
 s. 36, 
 
 
 
 592 
 
 
 s. 4, 
 
 369 
 
 
 s. 37, 
 
 
 
 592 
 
 
 s. 5, 
 
 369 
 
 
 s. 38, 
 
 
 
 592 
 
 
 s. 6, 
 
 369 
 
 
 s. 39, 
 
 
 
 592 
 
 
 c. 86, s. 48, 
 
 198 
 
 
 s. 40, 
 
 
 
 592 
 
 16 & 17 Vict. 
 
 c. 39, 
 
 14 
 
 
 s. 41, 
 
 
 
 592 
 
 
 c. 45, 
 
 616 
 
 
 s. 42, 
 
 
 
 592 
 
 
 c. 59, 
 
 98 
 
 
 s. 43, 
 
 
 593 
 
 596 
 
 
 c. 59, s. 3, 
 
 99 
 
 
 s. 47, 
 
 475 
 
 477, 
 
 487, 
 
 
 s. 4, 
 
 99 
 
 
 
 
 488, 
 
 580, 
 600 
 
 
 s. 19, 
 sched. 
 
 27, 116 
 99, 451 
 
 
 s. 48, 
 
 
 523 
 
 613 
 
 
 c. 99, s. 1, 
 
 135, 145 
 
 
 sched. . 
 
 A.. 
 
 
 581 
 
 
 s. 2, 
 
 135 
 
 
 ] 
 
 B. 
 
 
 581 
 
 
 s. 3, 
 
 135 
 
 
 
 "t 
 
 
 587 
 
 17 & 18 Vict 
 
 c. 36, 
 
 594 
 
 8 & 9 Vict. c. 
 
 16, s. 18, 
 
 • 
 
 185 
 
 190 
 
 
 c. 50, s. 2, 
 
 616 
 
 c. 
 
 27, s. 6, 
 
 
 
 623 
 
 
 c. 56, s. 8, 
 
 616 
 
 c. 
 
 62, 
 
 
 
 375 
 
 
 c. 83, s. 7, 
 
 17, 96, 99 
 
 c. 
 
 97, 
 
 
 
 360 
 
 
 s. 8, 
 
 96, 99 
 
 10 & 11 Vict. 
 
 c. 96, 
 
 
 
 43 
 
 
 s. 9, 
 
 21, 96 
 
 
 s. 1, 
 
 
 367 
 
 368 
 
 
 s. 10, 
 
 96 
 
 
 s. 2, 
 
 
 
 368 
 
 
 s. 11, 
 
 450 
 
 11 & 12 Vict 
 
 c. 45, 
 
 
 524 
 
 599 
 
 
 s. 12, 
 
 450 
 
 
 s. 3, 
 
 
 565 
 
 566 
 
 
 s. 13, 
 
 451 
 
 
 s. 5, 
 
 
 
 566 
 
 
 sched. 
 
 27 
 
 
 s. 6, 
 
 
 
 613 
 
 
 c. 90,338, 395, 396, 397,406 
 
 
 s. 14 
 
 
 
 551 
 
 
 c. 104, s. 180, 
 
 623 
 
 
 s. 50 
 
 
 
 574 
 
 
 c. 125, s. 28, 
 
 98 
 
 
 s. 58 
 
 
 
 551 
 
 18 &19 Vict. 
 
 c. 63, s. 32, 
 
 616 
 
 
 s. 73 
 
 
 
 551 
 
 
 s. 33, 
 
 616 
 
 
 s. 90 
 
 
 
 574 
 
 
 s. 36, 
 
 616 
 
 12 & 13 Vict. 
 
 c. 1, s. 4, 
 
 
 
 462 
 
 19 & 20 Vict 
 
 c. 20, 
 
 450 
 
 
 c. 71, 
 
 
 
 623 
 
 
 c. 47, 
 
 550, 580 
 
 
 c. 74, 
 
 
 367 
 
 , 368 
 
 
 s. 2, 
 
 524 
 
 
 s. 1, 
 
 
 4 
 
 2, 43 
 
 
 s. 83, 
 
 44 
 
 
 c. 106, s. 
 
 34, 
 
 
 44 
 
 
 c. 97, s. 3, 
 
 252, 254, 
 
 
 s. 
 
 65, 
 
 
 314 
 
 
 
 256, 274 
 
 
 s. 
 
 67, 
 
 
 521 
 
 
 s. 4, 2T 
 
 ,221,222 
 
 
 s. 
 
 77, 
 
 
 507 
 
 
 s. 6, 
 
 383 
 
 
 s. 
 
 78, 
 
 
 507 
 
 
 s. 7, 
 
 383 
 
 
 g. 
 
 87, 
 
 324 
 
 , 380 
 
 
 c. 100, s. 1, 
 
 593 
 
 
 s. 
 
 92, 
 
 
 469 
 
 
 s. 2, 
 
 593
 
 A TREATISE 
 
 THE LAW RELATING TO BANKERS. 
 
 CHAPTER I. 
 
 RELATION BETWEEN BANKER AND CUSTOMER. 
 
 The ordinary relation between banker and customer is this : the cus- 
 tomer opens an account with the banker by paying a sum of money into 
 the bank, the banker undertaking to hold himself liable for the payment 
 of a like sum to the customer's use, either paying interest on the money 
 or not, as the course of business of the bank or the special arrangements 
 between the banker and the individual customer may be, and also agree- 
 ing to honour or cash any cheques, or orders for the payment of any 
 sums of money, which the customer may send to him, during business 
 hours, to the extent of the sum deposited. 
 
 A less ordinary, but still a not uncommon, relation between banker 
 and customer is, that the banker makes advances to the customer or al- 
 lows him to overdraw his account, charging interest on the advances, 
 and in most cases requiring a deposit of securities, or obtaining the 
 guarantee of some third person, for the repayment of such advances, with 
 interest, &c. ; and whilst such accommodation continues the former rela- 
 tion of the parties is of course inverted. 
 
 But neither of these relations partakes of a fiduciary character, nor 
 bears analogy to the relation between principal *and factor or r-* 9 -, 
 agent, who is quasi trustee for the principal with respect to the L "* J 
 particular matter for which he was appointed factor or agent. 
 
 Money paid into a bank ceases altogether to be the money of the per- 
 son paying it in ; it is the money of the banker, who is bound to return 
 an equivalent by paying a similar sum to that deposited with him when 
 he is asked for it. (a) To all intents it is the money of the banker to do 
 as he pleases with ; though, it is true that, in a popular sense, it is spoken 
 of as "my money at my banker's ;" "my balance at my banker's;" and 
 
 (a) Foley v. Hill, 2 H. L. Cas. 36. 
 
 V
 
 • .KANT OB THE LAW OF B AN KING. 
 
 though do one ran doubt that in ordinary language << ready money" in- 
 clude* the speaker's balance at hifl banker's. Accordingly, many deci- 
 have been made construing phrases occurring in wills, of this de- 
 scription, to cany Bums Btandiug in a banker's books to the credit of the 
 ' »r. • 
 
 This, looking at all the tenna of a will, baa been held to be the extent 
 of a bequest of "all my ready money."(i) 
 
 - money at a banker's, placed to the trade account of a trader, has 
 been oonatrued to pass in hia will under "all my Btock in trade. "M 
 
 I > the balance in a testator's favour at hia banker's may be included 
 under the expression -all nay debts/' mid pass accordingly. (V) 
 Or the balance at a banker's may pass as "money in hand."(') 
 
 - tin balanoes at testator's banker's upon a current account, and also 
 upon a deposit account, where deposit uotes or vouchers were given by 
 the bank as a security for tin- money, the balance carrying interest and 
 considered as money at the disposal of the depositor, and as readily ac- 
 
 oesaible *by him as money in an ordinary account current, -were 
 LI -I both held to pass under " all my moneys. "(f) 
 
 But still the legal relation of banker and customer, in their ordinary 
 dealings in money, is purely ami simply that of debtor and creditor re- 
 dely. Money paid into a banker's is merely a common law debt, 
 and cannot be :_ r "t out again by means of a bill in equity, there being 
 nothing of a fiduciary character in the connection between the par- 
 Ami it seems tint the statute of limitation-, run- against this debt as 
 against any other simple contract debt, ami consequently bankers, with 
 whom money has been depositnl, might insist, it' there had never been 
 any payment into tie- account subsequently to the first deposit, and no 
 settlement with the customer, that they hail never promised to pay the 
 balance within bu years, &o, and that might be a good defence at 
 
 law.(A) 
 
 If bankers were trustees of momy of their customers in their hands 
 thifl mU8t follow, that notice to tin in of the drawer having assigned to 
 tin- payee of a cheque an interest in bo much of the drawer's money 
 would, of itself, Mn ' 1 tne bankers u> pay to the payee or bearer, and give 
 
 
 • r v. Ifarchant, l I'liill. Oh. P.. 351 
 
 . rt v. Karl of 1: 
 
 Ml. n. ; see 1 I'liill. Tail. 
 
 12 : supported l I'liill. :;• gs v. Mor- 
 
 afflrmed, Hill v. Mason, 2 Jac. .v vv 
 
 .lor, 1 .lur. l''l. 
 Maiming v. Purchell, 2 6m. A G. 292. 
 
 Poley v. Hill, 2 II. I. I A banker as a witness is hound to 
 
 ■ r what the balance of a party to b canse was on a given day, a.- the know- 
 
 ■ him in tie- nature of 8 Confidential or privileged coiinniini- 
 
 ■ .-1,1, 2 Oai 
 . . Hill, l I'hill. 101, i"">. It is ao breach or contract to pay interest 
 te.i, that tin- banker bad not regularly entered the interest in his 
 
 lire.] to lie in his hands tor eight years. Folej 
 
 v. Hill. 'j H l, i '■-. 10. 'I •■ which they charge inter* 
 
 auctioned by the courts, ''oily. 
 
 Pftrtre
 
 RELATION BETWEEN BANKER AND CUSTOMER. 4^ 
 
 the payee or bearer, on non-payment, a right of suit in equity or of action 
 at law against the bankers. (n*) But the laic is not so ; for it has been ex- 
 pressly decided that money deposited with bankers to be paid to a third 
 person is not money had and received to the use of that person until the 
 bankers have bound themselves *to pay it over.(&) The debt until r-^±-\ 
 then remains between them and the customer ; so that in case of L J 
 non-payment to his order the customer is the proper party to sue, and, 
 as will be seen, may recover substantial damages for the injury, always 
 assuming that his account at the time shows a sufficient balance in his 
 favour. The customer has also the right of ordering the banker to carry 
 his balance, or any part of it, to any other account kept with the banker 
 by any other person, and this may be effectually done either by a cheque or 
 order in writing or orally, though a formal mode is usually adopted. (?) 
 It is of the nature and essence of the transactions between banker and 
 customer that the latter, having a balance in his favour, shall be able to 
 command payment at sight, (m) 
 
 But although there is nothing in this ordinary relation to constitute 
 the banker a trustee, he may, of course, by agreement, take upon him- 
 self the character of agent, or make himself a trustee towards a cestui 
 que trust ; for example, if a customer deposits exchequer bills with a 
 banker, and he undertakes to receive the interest upon them, or under- 
 takes to negotiate or make sale of them, and to credit the customer's ac- 
 count with the proceeds of the sale, in this case it is obvious he is in the 
 position of trustee, and partly, at least, sustains a fiduciary character ; 
 but this service may or may not be appended to his employment of 
 banker ; his trade of banker is totally independent of it ; his trade of 
 banker consists of the general trade, to which the other is an accidental 
 addition, (n) 
 
 *So when the banker receives money to invest in stocks, or re- r5ic - -. 
 ceives orders to appropriate the customer's balance, or a specified L J 
 part of it, to any specified purpose, and assents, or does not repudiate 
 the orders, he is in the situation of a trustee or agent with reference to 
 that money, &c. 
 
 It might be supposed, indeed, to be a very simple and obvious con- 
 clusion to arrive at, and one that required the least possible investiga- 
 tion in order to satisfy all who turn their attention to such matters, that 
 the relation of banker and customer is the relation of debtor and creditor. 
 But this has not proved to be the case, and that notwithstanding it 
 is to be found laid down in times previous to the introduction of banking 
 
 (i) Dearie v. Hall, 3 Russ. 1 ; adopted, Watts v. Porter, 1 Jur. (N. S.) 133, Q. B. 
 See infra, 24, n. (x). 
 
 (k) Malcolm v. Scott, 5 Exch. 610; see 6 Hare, 570. 
 
 (1) Watts v. Christie, 11 Beav. 551 ; see 2 B. & A. 42. 
 
 (m) 11 Beav. 546. 
 
 (w) Per Lord Brougham in Foley v. Hill, 2 H. L. Cas. 44. But a bill for an ac- 
 count held to lie against a banker by his customer. See Bowles v. Orr, 1 Y. & 
 Coll. 464. All receipts given by bankers for money received, which shall entitle 
 or be intended to entitle the person paying the money or the bearer of such re- 
 ceipts to receive the like sum from any third person are chargeable with stamp 
 duty. See 3 Welsby and Beavan's Statutes, 1259.
 
 H i.KA.NI OH Till: LANS 01 BANKING. 
 
 this country, that generally it' money be delivered to be re-delivered, 
 
 fan] debt lies;(o) v. t the oourts have been under the necessity of 
 
 repeating that doctrine in banking cases almost more freqnently than any 
 
 other doctrine of the law i- to be found repeated. The principle must 
 
 dod be considered to be finally and irreTocably set at rest.(^>) 
 
 A- the right of the easterner is to draw out the whole of the sum he 
 
 site with til*- banker at any time when he Bhall so please, the ac- 
 
 oeptanoe by the banker of a bill drawn upon him by his customer against 
 
 mount of the balance in his favour, and made payable at a distant 
 
 is in effect a borrowing of the Bum until that day by the banker ; 
 
 f.>r tin customer, by drawing the bill, consents that that which is paya- 
 
 1.1.- immediately shall not be payable until the expiration of the bill, and 
 
 looeptanoe by a banker was held to be a borrowing or owing of 
 
 money upon a bill within the *meaning of the former Bank of 
 
 l °J England acts, 3 A I Will. IV. o. 98, and 7 Geo. IV. c. 46, which, 
 
 in certain circumstances, forbade Buch borrowing, ^c.(j) 
 
 Some bankers open what is called a deposit account with any customer 
 lesiree to deal in that manner; ( that is to say,) the customer de- 
 - a Bum, on which the banker pays interest as may be agreed, and 
 which may be entirely withdrawn at any time by the customer, without 
 notice, on presenting the receipt with his name indorsed on it, when the 
 principal, with interest upon it to the day of repayment, is handed to 
 him.(r) 
 
 uxors, as we have .-aid, are hound to obey the orders of their custo- 
 within the usual course of business; if they disobey diem they are 
 usible both for the delay and any consequence which directly ful- 
 the delay. Thus a house in America employ an agent in Birming- 
 ham to purchase and Bhip to them certain goods: on account of whioh 
 -•ml to him a bill drawn by One A. iii America on B. in London, 
 but without indorsing it. The agent directs his bankers to obtain B/s 
 tance of it ; 1!. refuses acceptance ; of which, however, the bankers 
 omit to give any notice until the bill is due, when they again present it 
 and it i- dishonoured. Before the bill arrived in this country A. had 
 me bankrupt, DOVer having had any funds in the hands of B. Then 
 
 damage done to the agent, but to what amount? Not to the 
 
 whole amount of the bill, because of the circumstance that the house in 
 
 ica, not having indorsed, were n< .t entitled to notice of dishonour 
 
 bill, and ^till remained liable to him for the price of the goods he 
 
 ■ nt out to them j also the drawer *as not entitled to notice, because 
 
 • 1 DO funds in the hand- of the drawee j therefore all that the agent 
 
 ■ 
 per Boiler, J., Vernon ▼. Hanker, 2 T. B. 121 ; per Grose, J., id. 124 ; 
 
 !90 Bank of Scotland v. Christie, 8 Ola. &F. 227 
 Deffi I De G M fcG Folej \. Hill. 2 11. L. Oas. 31. 
 
 • ! ', [land v. Anderson, i Scott, 1 18. 
 
 Bi i. . ll
 
 RELATION BETWEEN BANKER AND CUSTOMER. 43 
 
 was entitled to recover, as the circumstances of the case stood, was the 
 *dainage he had sustained by reason of his having been delayed p 7 , 
 in prosecuting his remedy against the drawer. (s) L J 
 
 In ordinary circumstances it is obvious the bankers might have become 
 liable for the whole amount of the bill, namely, if the American house 
 had indorsed, and the bill had been drawn against effects. 
 
 But it is only to their customer that, in the absence of any act of theirs, 
 they are responsible ; thus bankers receive bills from a foreign corres- 
 pondent with directions to pay the amount to the plaintiff : when he ap- 
 plies to them, they refuse ; afterwards the amount of the bills comes to 
 their hands. The plaintiff cannot sustain an action against them as for 
 money had and received to his use.(tf) 
 
 If, however, the bankers had assented to the order, and informed the 
 plaintiff that they held the money for him, he might, of course, have 
 sued theni.(w) 
 
 However, an order by a customer to his bankers to hold the customer's 
 money at the disposal of A. B., is revocable until actual appropriation or 
 payment of the money accordingly,^) or until a promise by the banker 
 to A. B. to make such payment.^) 
 
 We have already stated the duty of a banker to be to conform to the 
 orders of his customer, with respect to the money deposited by the cus- 
 tomer, so long as there is in his hands a balance in favour of the custo- 
 mer, and the orders relate to things which it is the usage and practice of 
 the particular bank, or of the bankers in the district, to do for their cus- 
 tomers, or which the bank has specially agreed with the customer to do 
 for him. Now, if the bankers perform such orders punctually, they will 
 often be exonerated from *loss in cases where it may be difficult, r*g-i 
 perhaps, to see any other ground for holding them irresponsible L J 
 except that the customer's orders have been faithfully and fully per- 
 formed without negligence or delay. 
 
 Much more, then, will they be irresponsible if, acting as the agents of 
 other bankers with whom a party has an account, they conform to the 
 orders of that party, though with him they have no account at all. 
 
 Thus, where A.'s broker, by his directions, was accustomed to pay 
 dividends into a banker's in London to A.'s credit in account with a 
 bank at Abingdon, where A. resided, and the London bankers had been 
 accustomed to act accordingly, accepting the payments, giving credit to 
 the Abingdon bank and advising them by post, &c, next day : and a 
 certain payment of this kind was made on 14th October, into the Lon- 
 don house by cheque, and they wrote to advise the Abingdon bank in 
 the usual way by the post of the 15th, on the morning of which day the 
 Abingdon bank stopped payment and never again opened the bank for 
 
 (*) Van Wort v. Woolley, 3 B. & C. 439. 
 
 (t) Williams v. Everett, 14 East, 582 ; Stewart v. Fry, 7 Taunt. 339 ; Wedlake 
 v. Hurley, 1 Cro. & J. 83. 
 
 (u) Fruhling v. Schroeder, 2 Bing. N. C. 77. 
 
 (x) Gibson v. Minet, Ry. & M. 68 ; S. C, 1 Car. & P. 247 ; 2 Bing. 7 ; see Brad- 
 bury v. Anderton, 1 C. M. & R. 486. 
 
 {jy) Lilly r. Hays, 5 A. & E. 548 ; see Walker v. Rostron, 9 M. & W. 411.
 
 44 BBAH1 ON Till: LAW <> f BANKtNCI 
 
 business, and on that day the Abingdon bankers wore indebted to the 
 I. i ' rge amount; the London honae received notice of 
 
 a the l"»th A., haa no claim against the London bank for 
 the j made; for the eonrae of business .-hows thai A. and the 
 
 rv bankeri agn i d that tin \ would aooounl to him for all earns so to 
 be paid into the London hooae as above, and thai the London house had 
 actually earried the money to their oredit.(z) 
 
 II. r. the ground ofdeeiaion Beema to be, thai the London bankers, by 
 
 the arrangement by which in effect tiny undertook t<> 
 
 comply with A.'s orders as to any money that might come to their hands 
 
 purporting to be paid in l>y bis authority and under directions from him 
 
 regarded his aooounl with the country bank, of which *con- 
 
 i ' J formity thecourse of dealing was evidence conclusive as not heing 
 
 met by counter j -r< >- >t". the London bankers were exonerated from liability 
 
 to li i in ; hut, possibly, if it could have been Bhown that they had not in 
 
 mot given credit for the money in account with the Abingdon bank 
 
 re it was reclaimed by A., the result would have been otherwise.(a) 
 
 It will be observed that A. was not a customer of the London hank; 
 
 but in another east-, where a person paid money into a London hank, 
 
 also ii' -t being a customer of the hank, in order that they might cause it 
 
 paid to him or his order, through their correspondent-, bankers in 
 
 a country town, on a certain day, and they received the money, but did 
 
 the money to be paid on the day, whereby the party -uttered 
 
 damage, &»., he was apparently considered to have a good cause of action 
 
 1 adon hank, on the ground that the receipt of the money 
 
 ! ■_' 1 consideration for an undertaking to the above effect, and 
 
 that they might be sued for the breach of their promise in that respect 
 bere the Loudon bankers, it is submitted, must either be considered 
 I dlees eras debtors in respect of the money paid inj but 
 it" tlu-y wen- the farmer, then it would have been a breach of their duty 
 if they had not remitted the identical coins or bank notes paid in — a 
 proposition which could hardly be maintained as against bankers, there- 
 it would .-eeiu that the party paying in, though not having a ruu- 
 aing account with them as s customer, must be considered as a oustomei 
 pro / iid the hanker- ;i< debtors to him jim tanto, and liable to 
 
 ' ly with hi- orders according tO the USUal relation of hanker and 
 
 r*ifii *Where A., not filling any peculiar character or capacity, re- 
 monej delivered to him by B., to be earried to a particular 
 
 '.'. .::. ... 401, 401, Exch. Ch.; Bee also 11 A. & E. 9 
 
 •in. hi. cited i Exch. 101, where Lord Abinger, C. B., 
 beld & a payment might be countermanded. Bet Atkin v. 
 
 : Walker v. Etostron, 9 M. & \V. 411, 
 • 2 Bing. 7. 
 Bbillibeer ▼. GHj i the declaration had in the 
 
 e alleged the pat tomer, bnl the allegation haying 
 
 ind the amended declaration wag demurred to. The 
 n turned to the plaintiff bj the bankers, who afterwards compromised 
 3. 1'.. Wlieatlev v. Loe (in error), Cro. J -case, 
 
 i as i it-. I b I .1.. i Balk.
 
 RELATION BETWEEN BANKER AND CUSTOMER. 45 
 
 place, and there to be paid to a particular person on account of B., and 
 A. takes the money, but afterwards omits to perform these directions, 
 and in answer to B.'s inquiries says that he has lost the money; it was 
 held, that an action for money had and received was maintainable by B. 
 on these facts merely, though it was objected, that he ought to have 
 brought a special action for the negligence, (c) 
 
 There seems, therefore, to be authority quite sufficient for the position 
 that any one who takes upon him to remit money and receives it, the 
 owner confiding that he will do so, has assumed a trust which he is 
 bound to perform, notwithstanding that he gains nothing by the trans- 
 action ;(<?) and certainly it has never been laid down that a banker stands 
 in such a situation as renders his liability, in such circumstances, less ex- 
 tensive than that of an ordinary person ; on the contrary, he may fairly 
 be considered, his business being to deal in money, and to facilitate the 
 transmission of money, to be in a situation or position in which skill is 
 implied, and therefore where an omission to use due skill, even on an 
 occasion of a gratuitous employment, is taken as gross negligence. (e) 
 
 With reference to the rights of a third person in such case, we may 
 observe in general, the rule is, money paid into a banker's to be paid to 
 a third person is not money had and received to his use by the bankers 
 until they have bound themselves to pay it over.(/) 
 
 *So that, although in general bankers are bound to comply .- #^ -■ 
 with the orders of their customers, yet they may refuse, and by L 
 that means, whatever liability to the customer they incur, they relieve 
 themselves from all responsibility to the person in whose favour the 
 order is made ;{g) or rather such responsibility does not arise before they 
 do something to admit it, as by agreeing to that effect with him. 
 
 The proposition has been laid down more than once, that it is part of 
 the duty of a banker to his customer to be acquainted with his customer's 
 handwriting ; it has even been said, as we shall see, that he is bound 
 not only to know his customer's handwriting, but also what is not his 
 customer's handwriting ; and there seems to be no doubt that it would 
 be in accordance with all the decisions in which the courts have defined 
 the duties of bankers, to hold that a banker is responsible to his cus- 
 tomer (or must bear the loss if any loss arises) for the consequences of his 
 mistakes or oversights in this respect. However, it has been intimated 
 in one case, where a bill of exchange, purporting to bear the indorse- 
 ment of a customer, but dishonoured, was paid by the banker for the 
 customer's honour, and he afterwards discovered the indorsement to be 
 forged, and have notice to the holder of the bill the same day on which 
 the payment was made, that the banker might perhaps recover from the 
 holder the money he had paid him. (A) However this may be, he could 
 
 (c) Barry v. Roberts, 3 A. & E. 118. 
 
 (d) Wheatley v. Loe (in error), Cro. Jac. 667 ; S. C, Palm. Rep. 381, cited by 
 Lord Holt in Coggs v. Bernard, 1 Salk. 26, and Barry v. Roberts, 3 A. & E. 118. 
 
 (e) Per Lord Loughborough, C. J., Shiells v. Blackburne, 1 H. Bla. 158. 
 
 (/) Malcolm v. Scott, 5 Exch. 610. Compare S. C, 6 Hare, 570, per Parke, B., 
 9 M. & W. 414, per cur., id. 421 ; see also 3 Mac. & G. 40, 51. 
 (g) Williams v. Everett, 14 East, 582. 
 (h) Wilkinson v. Johnston, 3 B. & C. 428, cited 9 B. & C. 906.
 
 . \NT "N THE LAW OF BANKING. 
 
 iint :it any rate, aooofdiag to the above rule, recover from the cus- 
 t.'iiur. 
 
 The nature of the bu-dm — of bankers has been laid down, by very 
 high authority, to be pari of the law merchant ; and it is to be judicially 
 notioed by Hbe oourte 
 
 [*12] *CHAPTER II. 
 
 I BBQUK8. 
 
 A i SSQU1 on a banker, ot as it is sometimes called, a banker's draft, 
 i- a written order l'<.r the payment "fa specified sum of money to a per- 
 9on oamed, or bearer. It i- directed to the banker, and is usually signed 
 by the person who draws it. and, out of whose moneys deposited with 
 tin- hanker, it is t<> be paid "ii presentment. Its legal effect is, in some 
 Blight degree, that "fan inland hill of exchange drawn on the banker, 
 ami payable to the bearer on demand ; in some respects, however, as will 
 be Bhown, it differs materially from such instrument. 
 
 Tin- form "fit. when unstamped, is usually the following: — 
 
 Jjondon, January 1, 1856. 
 
 SIi SB8B8. Holdfast & Co. — Pay to Abraham Newland, or bearer, the 
 sum of twenty pounds. 
 
 620, 0*. OaT. John Stiles. 
 
 No precise Gram of words is essential; any words that signify not a 
 precatory request, hut an order(a) t" pay a sum of money, will suffice, 
 provided the following points !»■ observed: — 
 
 1 . '/'/,.// //<■ jntp, r l„ din ctt -1 /" tic bank* rs by tin ir ]>r<>j>< r, or usual, 
 
 >ii/l> iiinl fir in. 
 
 '1. Tim' it In tint' 'I, viz., with tli^ /iiirni qf the ])laec where, and a 
 dayqftht month and year on or be/on which, tin cheque was drawn. 
 
 That It contain th- sum to f>i paid, which must not he under 20s. 
 r *n ~i *"*■ Thatitbi made pay abU tobearer.(V\ 
 " J .">. That it A- signed by the party drawing. 
 
 It that a oheqne, in any "ther language than the English, 
 
 would n"t be according t>> the usage of hankers in this country, and 
 there fo re a hanker might legally refuse to cash such a cheque. We 
 shall state the reasons for these several requisites in their order, toge- 
 ther with the principles and rules that have been laid down respecting 
 them, and mch illustrations and examples a- appear to conduce to the 
 full comprehension of the subject. 
 
 1 Am to tin A'li/n .->. — A cheque, being in fact an "pen letter nf request, 
 
 it is obvious, to be operative, bear upon it the name of the person 
 
 Per Lord Campbell in Bank of Australasia v. Breillatt, C Moo. P. C. 173, re- 
 • . v. Barnatt, 13 ''la. .v I'. 787. 
 Blackford, i Moo. & If. 171. 
 
 :. 38.
 
 CHEQUES. 47 
 
 who is requested, as well to indicate to the bearer where to present it 
 for payment, as to show the bankers who it is that is called upon to 
 cash the order. On the same grounds that a bill of exchange must 
 have an address according to the custom and usage of merchants, a 
 cheque ought to have one.(c) 
 
 If the bank is carried on under a firm, either the proper and full 
 style of the firm, or the style by which it is usually designated and 
 known, ought to be used. 
 
 No person but the person addressed could, after cashing the cheque, 
 have a right to recover from, or have allowed in account with, the 
 drawer, the sum so advanced, which would in fact be in the nature of a 
 gratuitous payment. 
 
 2. As to the Date. — The Stamp Act, 55 Geo. III. c. 184, Schedule, 
 part 1, exempts from all stamp duties, " all drafts or orders for the pay- 
 ment of any sum of money to the bearer on demand, and drawn upon 
 any banker or bankers *[or any person or persons acting as a ^ ^ . -. 
 bankerl(fZ) who shall reside or transact the business of a banker L J 
 within ten miles [altered to fifteen miles by 9 Geo. IV. c. 49, s. 15] of 
 the place where such drafts or orders shall be issued ; provided such 
 place shall be specified in such drafts or orders, and provided the same 
 shall bear date on or before the day on which the same shall be issued ; 
 and provided the same do not direct the payment to be made by bills or 
 promissory notes. "(d) 
 
 Hence the real place where the cheque is issued ought, in order to 
 save the stamp, to be in all cases stated on the face of it. Where an 
 unstamped cheque was dated at Llanelly, but it appeared to have been 
 drawn and issued at a country house called Trimsaran, four miles from 
 Llanelly, the court held it to be void and inadmissible in evidence, (e) 
 
 So, where a cheque was given and dated at Frome, and drawn on 
 London bankers, Lord Ellenborough said, "The cheque was void in 
 its creation. It is a mere blank. I have not legal optics to see its 
 existence. "(/) 
 
 Where the date was the following, — "Dorchester Old Bank; estab- 
 lished 1786," which words were in print, and there was no day of the 
 month and year marked on the cheque, as the time at which it was 
 issued, and the cheque was unstamped, and the objection was taken that 
 
 (c) Beames, Lex Merc. p. 563, pi. 3, edit. 1813 ; Com. Dig. Merchant, F. 5. But 
 a document may be an order for the payment of money within the enactments 
 against forgery without being addressed, if it can be shown by evidence to whom 
 it was intended to be addressed. Reg. v. Snelling, 23 L. J., M. C. 8 ; and see case 
 put by Jervis, C. J., S. C. 
 
 (d) This exemption is continued by the schedule of 16 & 17 Vict. c. 39, but that 
 schedule omits the words ''or any person or persons acting as a banker," and there- 
 fore confines the exemption to cheques drawn upon actual bankers ; cheques drawn 
 on a banker, payable to order on demand, appear to be subjected by that act to a 
 stamp duty of one penny. See sects. 3 & 4 and schedule. As to cancelling the 
 stamp, &c, before issuing, &c, sect. 4. Drafts payable to bearer or to order, at 
 any time otherwise than on demand, are to be stamped according to scale in sche- 
 dule to stat. IT & 18 Vict. c. 83. 
 
 (e) Waters v. Brogden, 1 Y. & J. 462 ; see R. v. Pooley, 3 B. & P. 312. 
 
 (/) Borrodaile v. Middleton, 2 Campb. 55 ; see Rex v. Pooley, 3 Bos. & P. 311, 
 decided when the limit was ten miles from the banking house. 
 January, 1857. — 5
 
 . A N I N I II B L A \S 1 1 T B A S K [KG 
 . -trvmi. lit WM v< .i.l 00 that acciint, because the place of issuing 
 
 aot sufficiently specified, the court decided tliat tin- above date 
 , sufficiently snowed t hat the cheque was issued at *Dorohaster 
 l ''-J (which was the case) as it had that word upon its face, and that 
 the other words did oo hurt.^ ) 
 
 When i oheque, being drawn by the finance committee of a railway 
 company, was headed with the statutory name of the railway company, 
 but was not dated as drawn at any place, it was held to bear no sufficient 
 indication of the place at which it was drawn to satisfy the Stamp Act, 
 and therefore, l>^-i mr unstamped, t> » be v<iid.(/) 
 A cheque drawn in this form: — 
 
 October 12, 1847. 
 ME88B& Kv\ii' A Co. Bankers, Abingdon — Payto Mr Hicks, or 
 bearer, one hundred and seventeen pounds seventeen shillii 
 
 6117, 17.-. Od Thomas Sharps. 
 
 I in >t to Bhow sufficiently the place were the same was 
 
 1, to satisfy the exemption in the stat. 9 Geo. IV. o. 4!), s. 15, so 
 
 that, being unstamped, it was inadmissible in evidence, for the defend- 
 
 !i an issue joined on hie plea of delivery to and acceptance by the 
 
 plaintiff of a banker's cheque in full satisfaction and discharge of the 
 
 debt claimed. (y) 
 
 The delivery of a cheque, without the place at which it was drawn 
 
 ted en it, does not amount to payment, unless stamped; and 
 
 fore, where the vendor of land had taken Buch a cheque ou account 
 
 of the purchase-money, but had not had cash f<>r it at the hanker-' before 
 
 topped payment, he was held in equity to have a lien on the estate 
 
 for the same.(A ) 
 
 The results OI what has been Mated are these; whenever a cheque is 
 
 I fifteen miles <>r upwards from the hanker'.- place <»f business it 
 mii-t be stamped. (t) 
 
 It must also be stamped although issued within the fifteen 
 
 ' J miles, unless all the three provisoes above mentioned are 
 
 thai is, unless it hears the name of the place where it was 
 
 •!. and the date of a day I'll cir before the day on which it was issued, 
 
 and do not direct the payment of the sum mentioned in it to be made 
 
 in bills or promissory notes.(&) 
 
 In what mode the fifteen miles arc to be measured has not been 
 dec; ; a late statute says the distance is to be fifteen miles 
 
 in a direct line from the hank. &c 
 
 | 
 i. : . W ' ompany, - De <;. M. k ('•. 160 
 
 Bopart v. li a. l. 
 
 . Wnr.i-ii. 1 Cell. .')83. 
 
 nder the traverse of the allegation that defend- 
 it i- nut to in- pleaded Bpecially. M'Dowell v. Lyster, 2 M 
 
 '■'■ 
 <.. o. III. < . 184, Bchedole, |>t. L;9& o. IV. c. 49, s. 15: see Stoker \ 
 l. .1 . 0. B. 141. 
 3cn • r ■. hi- eaaea ol reckoning of distances under statutes, Grant's Cor-
 
 CHEQUES. 40 
 
 Also, the person on whom the cheque is drawn must be an actual 
 banker : it will not suffice that the drawer treats him as his banker 
 pro hac vice, if in truth the drawee does not follow the business of a 
 banker, (nij 
 
 However, it has been decided that an unstamped cheque drawn beyond 
 the legal limit, though inadmissible in evidence to discharge the banker, 
 is admissible to prove the receipt of money by means of it, as part of 
 the res gestce.(n) 
 
 Again, an unstamped cheque, of a character to require a stamp, and 
 therefore void for want of one, might be given in evidence in such a 
 ease as the following : — In an action of debt, with plea of payment, the 
 plaintiff might prove his case by means of a document in which the 
 defendant had admitted the debt claimed, but went on to allege that he 
 had paid it by a cheque, &c, and would be allowed to use in evidence 
 the unstamped cheque to negative the alleged payment, (o) The produc- 
 tion of the cheque is here obviously allowed, not for the purpose of 
 enforcing it as a valid subsisting instrument valuable to the extent of 
 the sum for which it purports to be drawn, but as the means, and the 
 *only means, of establishing its nullity for want of a stamp ; and .- *yj-i 
 therefore the admission of it is in strict conformity with the L J 
 meaning of the stamp acts. 
 
 And now, by 17 & 18 Vict. c. 83, s. 7, every one is forbidden to 
 remit, or send, or receive in a payment, a cheque unstamped, to or at a 
 place beyond the distance of fifteen miles in a direct line from the bank 
 at which it is made payable, or in any manner to negotiate or circulate 
 the same, under a penalty of 50?. 
 
 Next, as to the day of the date. 
 
 The day mentioned may be any day before, or the day when, the 
 cheque was issued. The cheque must not be post-dated ;(jp) that is, it 
 must not bear date on a day after that on which it was in fact issued. 
 For it is enacted, that if any person shall make or issue any cheque or 
 draft on a banker, payable to bearer on demand, not duly stamped, and 
 not falling in every respect within the above exemption, the drawer shall 
 forfeit 100?. ; any person knowingly taking it, 20?. ; the banker know- 
 ingly paying it, 100?. ; and the banker shall not be allowed it in account 
 against the persons by whom or for whom it was drawn, or against any 
 person claiming under them respectively.^) 
 
 Therefore, unless it be duly stamped, a post-dated cheque is void, and 
 the parties concerned in giving, receiving and cashing it, are liable as 
 above under the circumstances there stated. This is the case, although 
 the post-dated cheque was not intended to be used until the day of the 
 
 (m) Castleman v. Ray, 2 Bos. & P. 383. 
 
 (n) Blair v. Bromley, 11 Jur. 617; see Keable v. Payne, 8 A. & E. 555. 
 
 (o) Smart v. Stokes, 6 M. & Gra. 911. 
 
 (p) Allen v. Keeves, 1 East, 435 ; Whitwell v. Bennett, 3 Bos. & P. 559. 
 
 (q) 55 Geo. III. c. 184, s. 13, which semb. first made illegal the post dating of 
 a cheque. The defence of post dating may be taken in an action on the cheque, 
 under the traverse of the making. Field v. Woods, 6 Dowl. 23. So^ that cheque 
 made more than fifteen miles, &c. M'Dowall v. Lyster, 2 M. & W. 52 - T Jenkins v. 
 Creech, 5 Dowl. 293.
 
 OR A H T R T II E I. A W FDA N K I X Q . 
 
 it i< void altogether, even against a bonajidi holder.(r) Tn 
 
 , *fact, in scaroely any instance, is a post-dated cheque intended 
 
 I it., I.,- used 1m fore the day of the date ; the object, in delivering 
 
 such an instrument, i- tn create a security till the day cm which the 
 
 cheque is available. 
 
 The following are illustrations of the above positions. 
 
 a post-dated cheque, knowing it t>< be so, and also know- 
 ing that the maker was insolvent, presents tn a banker, who heing 
 ignorant of these oircumstano* s, pays the cheque for the honour of the 
 drawer: the hanker recovered from the payee the whole amount of the 
 ehequi 
 The public officer ol a banking co-partnership under 7 <ieo. IV. c. 
 ;• - nil a promissory note of defendant's. A plea that the consi- 
 deration wa< cash paid by the plaintiff's hank on cheques made more 
 than fifteen mih-s from their place of business, &c, was held had. after 
 pleading over, for want of allegation that the cheques were payable to 
 bearer, and payable on demand, ot that the amount of any one of them 
 
 ""•(0 
 
 A cheque i- not issued till it is in the hands nf a third party entitled 
 to demand cash for it ; therefore where a person, having credit with a 
 hanker, received money from the agent nf the bank, and every week 
 that agent an unstamped cheque <>n the bank for the amount 
 advanced during the week, which the agent sent to the bank as a voucher 
 for himself, and this cheque was drawn more than the limited distance 
 from the hank, and post dated; it was held to come within the excep- 
 tion, this oot being an issuing within the meaning nf the statute. (m) 
 
 It must be proved that the hanker cashed the cheque, with the full 
 , knowledge that it was issued in the prohibited manner, *hefore 
 L ' -J le can be made liable to the above-mentioned penalty fnr know- 
 ingly paying 
 
 It will 1m- observed that the cheque is required, by the statute, to be 
 
 made payable tn bearer on demand; it does not however, follow that it 
 
 need contain the words "» rf< mand on the face nf it ; fnr if made payable 
 
 srer, that makes it in law payable on demand ;(y) hut a cheque ex- 
 
 ■•• '.. If. .-. W. ' 7 A. 4 K. Hi: Steadman 
 
 supporting Field v. Woods; Demi \. Warden, l foil. 
 Ex parte Bignold, l i 
 
 B. Moore, 635. [n Ponlton v. Watson, 15 Jnr. 1112, 
 ol void, and that it' a banker paj 
 without knowing "i the false date, the payment is pood. 
 
 . Iday, l '.. Geo. III. c. 18 i. -. 13 : 9 Geo. IV. 
 
 tl( !■!. II'' 
 
 Ex parte I Di In a caw which occurred before the statute, 
 
 ontrary t<> tie- usage ol London bankers tn pay a cheque be- 
 te, and tii- nker, who had so cashed a cheque that 
 pay tin- amount i<> tin- party who had lest the 
 Da Silvfl '■ . Puller, cited in Chitt. Bills. 148: and per Parke. B M 7 .M. A: 
 
 Whitlock v. rjndenrood, 2 V.. k <'. 157 : East v. . 2 Man. k R. 8. 
 
 11 not presume that a draft on a
 
 CHEQUES. 51 
 
 pressed to be payable "at sight" is not with the exemptions 5(2) nor is 
 a cheque not payable to bearer ;(«) and if payable to A. on demand, 
 without the words " or bearer," it is not payable to bearer.(i) 
 
 A cheque or draft on a banker does not, ex vi termini, mean an instru- 
 ment payable on demand. 
 
 There is no objection to dating a cheque on a Sunday,(c) though it is 
 needless to say, it must not be presented on a Sunday, as to do that 
 would not be in compliance with the general rule, that cheques are to be 
 presented in banking hours. 
 
 We may add, in further elucidation of this part of our subject, as 
 showing the complete invalidity of cheques issued and paid in defiance 
 of the statutes, the following case decided on a question arising out of 
 the Scottish system of *banking, under which what is called a f ;f . 9n -, 
 cash credit is opened at the bank, which gives the party in whose L " J 
 favour it is granted, the right of drawing cheques upon the bank to the 
 extent of the credit, he finding security. In the case in question the 
 customer of the bank drew upon them at a place beyond the limited dis- 
 tance (his cheques being falsely dated at a place within that distance ;) 
 the cheques were, also post-dated ; the House of Lords decided that the 
 bankers, being cognizant of the mode of drawing, could not recover from 
 the customer's surety upon his bond the amount paid upon these cheques, 
 no debt having been in law incurred by the customer to the banker.(c?) 
 
 A. signs an order on his bankers, directing them, out of the balance 
 due to him on the final arrangement of his account, to pay to B. a cer- 
 tain sum ; he delivers this order to B., and accompanies him to the bank. 
 The circumstance of the delivery to the payee rendered necessary a bill 
 stamp under 55 Geo. III. c. 184. (e) 
 
 3. The Cheque must contain the Sum to be paid, which must not be 
 under Twenty Shillings. — The relation between a banker and a person 
 who deposits money in his bank being simply that of a debtor to a credi- 
 tor, to the amount deposited, which, by the usage of bankers, the banker 
 is, at all times, bound to pay out again to the customer upon his cheques 
 under his hand, until the whole, minus the banker's commission, is ex- 
 hausted, provided the cheques are presented within banking hours : it 
 follows, that the payments cannot be required by the drawer of the 
 cheque to be made, in any other mode, than that in which an ordinary 
 debtor can be required to pay an ordinary debt, that is to say, in English 
 money only. The banker is not a bailee, who is bound to return in specie 
 
 banker is payable on demand. Abbott v. Douglas, 1 C. B. 491 ; see Rogers v. 
 Drake, 2 B. & B. 19 ; Ruuiball v. Murray, 3 T. R. 298 ; Ex parte Mitchell, 2 East, 
 140. if 1 > 
 
 (z) J' Anson v. Thomas, cited Byles, Bills, 42, reported 3 Dougl. 421. 
 
 (a) R. v. Yates, 1 Car. Crim. L. 273; S. C, Ry. & Mood. C. C. 170. A void 
 cheque may be subject of larceny. Reg. v. Perry, 1 C. & K. 725 ; see Reg. v. 
 Watts, 23 L. J. (N. S.) Mag. C. 56. So may a cancelled cheque. Reg. v. Watts, 
 2 Dears. C. C. 14. 
 
 (b) Cheethani v. Butler, 5 B. & Ad. 837 ; Dixon v. Chambers, 1 C. M. & R. 845. 
 
 (c) Begbie v. Levy, 1 Cro. & J. 180. 
 
 (d) Swan v. Bank of Scotland, 10 Bligh, N. S. 627; S. C, 3 Cla. & F. 610; the 
 reports differ somewhat. 
 
 (e) Parsons v. Middleton, 6 Hare. 261.
 
 -. . H i H B I- AAV OF IAN K INC. 
 
 - r other *form of money deposited, upon demand; 
 
 L ~ J therefore, although one thousand pounds have been deposited 
 
 with him in gold, In- i- not bound to return gold in paymeni of cheques 
 
 • it ; any cheque whioh may be presented will be duly 
 
 red by paying it in whatever form a legal tender of payment of a 
 
 the particular amount specified in the cheque, may be made. 
 
 \ m a cheque for less than twenty shillings i- absolutely void, and 
 
 itiatingsuoh instrument renders liable to a penalty of 
 
 . ; : is a statutory offence to utter a cheque on 
 
 which less than twenty shillings remains due.{ /) 
 
 Also, for a considerable period, an enactment stood on the statute book, 
 which made the drawing of a cheque for any sum under 51. illegal; but 
 this has hem altered, and there can be do doubt nowfa) that cheques 
 may be drawn for any sum above twenty shillings; though, perhaps, it 
 
 -till may be illegal to Utter a cheque upon a banker for a less sum than 
 .")/. when the drawer's account does col show a balance in his favour; 
 
 and ' old QOt be liable to the drawer for refusing to 
 
 -11. -h cheque. 
 Thru, for any Mini above twenty, and not exceeding forty shillings, a 
 r of payment of a cheque in Bilver would be good, because any 
 tender up to forty shillings made in silver is good/A) in ordinary cases of 
 debt 
 
 Al and up to and including 5?., L r <>ld appears to be 
 
 illy legal tender; for, as will be seen presently, it is only in case of 
 sums above bl. that Dank of England notes are at present a legal tender, 
 and a banker would be justified in paying cheques accordingly. 
 
 , , With reaped to Bums above •">/.. the following is the subsisting 
 
 "" J "law. :; \ 4 Will. IV. o. '- ,v . s. 6, — •• A tender of a note or notes 
 
 of the Governor and Company of the Hank <>t' England, expressed to be 
 
 le t" bearer on demand, shall be a legal tender to the amount expressed 
 
 in mch note <>r DOteS, and shall be taken to be valid BS a tender to BUoh 
 amount, for all sums abpve five pound-, on all occasions on which any 
 
 r of money may be legally made, so long as the Bank of England 
 
 shall continue to pay "ti demand their said notes in legal coin ; provided 
 always, that no Buoh note or cotes shall be deemed a legal tender of pay- 
 ment by the Governor and Company of the Bank of England, or any 
 branch bank ol the said Governor and Company; but the said Governor 
 and Company are not to become liable or be required to pay and satisfy at 
 ranch hank of the said Governor and Company, any note or m>t> lof 
 the Governor and Company not made specially payable at such branch 
 hank; but th>- .-aid Governor and Company shall be liable to pay and 
 the liauk of England in London, all notes of the said Governor 
 and Company, or of any branch thereof."' 
 Therefore a cheque for 100/. may be cashed at any bank, but the 
 f England, or one of its branch hank-, iii the following manner, 
 
 Geo. Ill ( :l) it k 16 Vict.c 83, s. fl. 
 
 tender of a debt in copper is not good beyond 
 l Bla. Com. 277 ; considering that fourpenny and three- 
 
 ■
 
 CHEQUES. 53 
 
 without the banker incurring liability, for refusing to honour the cheque, 
 or otherwise. He may pay 40s. in silver ; he may and must pay the 
 next 8/. in gold ; the remaining 95£. he may pay in gold or Bank of 
 England notes, "expressed to be payable to bearer on demand," which 
 therefore must not be made specially payable at a branch bank, it is 
 apprehended, but must be the ordinary Bank of England notes, payable 
 at the Bank of England in London, otherwise the payee of the cheque 
 might refuse them, and the drawer might recover damages in an action 
 against the banker, for refusing to honour his cheque. 
 
 A depositor's cheque must be paid at the Bank of England, or one of 
 its branch banks, in gold, for sums above 40s., if he chooses to insist 
 upon it, provided the whole amount ^demanded above 40s. can .-^ ,.„ -. 
 be expressed in gold coin ; thus, 21. 10s. can be paid with a half L ~ J 
 sovereign and 40s. in silver; 21. 5s., with a half sovereign and 35s. in 
 silver. 
 
 If the above be correct, it will follow that a customer who draws a 
 cheque for 100?. on his banker, or the bearer, can only demand 3/. of it 
 to be paid in gold ; and so of any cheque for a greater sum than 100 I. ; 
 and the same is obviously the case of any smaller sum down to bl., and 
 and so mutatis mutandis of sums under 51. and above 20s. The almost 
 uniformly practised custom of bankers to consult the pleasure of the 
 payee or bearer, as to how he wishes to have the cash paid over to him, is 
 merely a matter of courtesy, and in no respect, except as above mentioned, 
 obligatory on them. 
 
 A cheque must not be expressed in foreign money, as dollars, rupees, 
 francs, rubles, &c, both because it is no part of the banker's implied(i) 
 contract with his customer, or of his duty of debtor, to pay the debt in 
 any but the known and current money of England ; it is no part of his 
 implied contract to insure the customer that he shall always find lying 
 at the bank a sufficient number of the foreign coins, &c, to meet the 
 amount specified in the cheque, nor to procure them, whatever may be 
 the state of the exchanges, &c, and because it is not according to the 
 law merchant or the usage of bankers, that cheques should be drawn in 
 other terms than in the money of account of England, and because every 
 debt ought to be demanded in a known denomination of money. (k) 
 
 The money of account of England is expressed in pounds, shillings, 
 pence and farthings ; accordingly £. s. d. is taken in law to mean Eng- 
 lish money ; pounds, shillings, pence ; and not foreign money, as ex. gra. 
 livres, sous, deniers.(A 
 
 *By agreement between the drawer and banker, his cheque r ^ . -. 
 may direct payment to be made in bills of exchange or promis- L "" J 
 sory notes, but any cheque which does so is void, unless duly stamped, 
 by virtue of the proviso in the 55 Geo. III. c. 184, Schedule, part 1. 
 
 (i) Of course such a special contract may be made between the banker and a 
 customer or other person, but the order for such payment would not be, it is con- 
 ceived, a cheque in law. See Parker, R. 45. 
 
 (k) Rastell v. Draper, Yelv. 80 ; S. C, Moo. 775 ; Cro. Jac. 88. 
 
 (I) Per Abbott, C. J., Kearney v. King, 2 B. & A. 303 ; and see per cur. Sprowle 
 v. King, 1 B. & C. 18; Pierson v. Pounteys, Yelv. 135.
 
 QBAHT OH THE LAW nF BANKING. 
 
 I ' the other hand, ■ banker cannot discharge himself from liability 
 
 on • customer's cheque by tendering payment in any other money than 
 
 English current money, or in anj other form, denomination, or quantity 
 
 h denomination, than such as a tender of a debt may legally be 
 
 made in.i »< i 
 
 Formerly it was not anusual to add in bills and mercantile contraota 
 of :ill kinds in which money was mentioned, the words "lawful money 
 of the realm," or some term of that effect, ex. gra. the word sterling, 
 which means current money ;(n) but though these and all similar words 
 ■ ow usually omitted, yet cheques will not be intended to mean any 
 other than current money; and if the huh in the body differs from that 
 in the margin, the sum in the body is the sum which the banker ought 
 ■ (") 
 
 Hence, and from what has been just Btatod, a oheque in the body of 
 which the Bum was expressed only in figures, with the letters £. s. d. 
 [thus, £100 : 10s. 8rf.] could not legally be refused payment by a banker 
 having assets in his hands, and Buch a cheque, purporting to bear date 
 at a place in France, and properly stamped and duly presented, would be 
 valid and binding on all parties for the expressed amouut in English 
 mom 
 
 But t" prevent mistakes, and to render frauds less easy, the form given 
 
 . in which the sum is twice Btated, once in words, and a second 
 
 time in figures, with the above letters attach, d, is the one in general 
 
 ad ought always to be adopted. For although the Court would 
 
 prevent a merely obvious omission or slip from being turned to 
 
 t J the prejudice of any one connected with the cheque, as, forin- 
 
 . if a cheque were drawn for ■• twenty-live, seventeen shillings 
 
 and three pence/ 1 it would be held to mean twenty-five pounds sterling, 
 
 and seventeen shillings and three pence \( />) yet in case of a fraudulent 
 
 alteration of the cheque, it' the question which of the two innocent parties, 
 
 the drawer or the banker, i- to bear the loss, arises, it must be answered 
 
 by resolving the liability to be on that party whose conduct lias opened 
 
 tie- opportunity for the accomplishment of the fraudulent design; and 
 
 the loss must rest with one or the other accordingly. 
 
 The following instances may be useful: — 
 
 A customer of a hanker, on leaving home, intrusted to his wife several 
 
 blank forms of cheques, signed by himself, and desired her to lill them 
 
 up according to the exigency of his business. She filled up one with 
 the words, fifty-two pounds two shillings, beginning the word fifty with 
 a -mall letter in the middle of a line. The figures 52: 2 were also placed 
 ut a considerable distance to the right of the printed *.'. She gave the 
 cheque thus filled op to her husband's olerk, to get the money. He, 
 ting it. inserted the words three hundred before the word 
 fifty, ami the figure 3 between the printed £ and the figures 52 : 2, so 
 that it then appeared to be a oheque for £352, 2s. It was presented, 
 
 ■ . '■ I:, p 1 1 ; &; Oo l.itt. 2<M b. 
 Wiltahalgi • . i Leon. 41. 
 
 : on v. Piper, 5 Bing. N. < ' 
 Pbippt \. ; C.J
 
 CHEQUES. 55 
 
 and the bankers paid it. Held, that the improper mode of filling up 
 the cheque had invited the forgery, and therefore that the loss fell on 
 the customer, and not on the banker.^) Perhaps, however, it would 
 not be safe, according to later decisions, to rely on this decision as stat- 
 ing the law, except as applicable in precisely the same, or, at least, very 
 closely analogous circumstances. Thus, if the cheque had been originally 
 filled up, for fifty-two pounds two shillings, as well as signed, in the 
 customer's handwriting, the rest of the circumstances remaining the 
 same, it would *seem that, as bankers have been held, in general, .- ^q -i 
 to be presumed to know their customer's handwriting and what L ' J 
 is not his handwriting,(r) and to be liable, if they pay a cheque that is 
 not genuine, in all other respects, as well as the signature,(r) they would 
 have been bound to have taken notice that the words three hundred were 
 not in the customer's handwriting, and that they ought to have made 
 inquiries before cashing the instrument in those circumstances, and 
 therefore, not having done so, were responsible, (s) 
 
 And where bankers cashed a cheque of a customer which had been 
 altered, but not so as to be obviously perceptible, to a larger sum than 
 the customer drew it for, there it was held to be the conduct of the 
 banker, in not observing the alteration, that gave the means of accom- 
 plishing the fraud of the third party, and that, therefore, of the two 
 innocent parties, the banker and the drawer of the cheque, it was on the 
 former that the loss of the overplus beyond what the cheque was really 
 drawn for, ought to fall.(tf) And so, where there is no fraud, a corres- 
 ponding rule holds; the party whose conduct led to the loss must bear it. 
 
 As where a cheque has been casually lost out of the possession of a 
 persoD to whom it had been delivered in payment of a debt, and another 
 person, takes it bona fide for a full consideration, of these two innocent 
 parties the loss must fall upon the former ; and the latter, upon being 
 refused payment by the bankers, who had been ordered by the drawer, 
 after the loss, not to pay it, may recover the amount from the drawer ;(«) 
 and the same would be the case if the equities were equal; for melior 
 est conditio possidentis. (x) 
 
 (q) Young v. Grote, 4 Bing. 253. 
 
 (r) See per Pollock, C. B., Bellamy v. Majoribanks, 21 L. J., Exch. 73 ; and per 
 Bayley, J., Hall v. Fuller, 5 B. & C. 750; see Coles v. Bank of England, 10 A. &E. 
 449. 
 
 (s) See Robarts v. Tucker, 16 Q. B. 560, the principle of which case seems to 
 apply to cheques. 
 
 ft) Hall v. Fuller, 5 B. & C. 750. 
 
 (m) Grant v. Vaughan, 3 Burr. 1525, 1526; and see per Lord Kenyon, C. J., 3 
 T. R. 177, 182. 
 
 (x) Per Wilmot, J., S. C, 3 Burr. 1526 ; see also Willet v. Chambers, Cowp. 
 814 ; Bond v. Gibson, 1 Campb. 185. In equity the principle holds, that a creditor 
 may by an order on his debtor effectually assign his debt to a third person ; there- 
 fore, in all cases of valid cheques, it seems the bearer might recover in equity 
 against the banker if necessary. Rodick v. Gandell, 12 Beav. 325. Thus in cir- 
 cumstances such as the above, if Vaughan had become bankrupt after the present- 
 ment to and refusal by the bankers, then, upon showing that the bankers had as- 
 sets in their hands at the time of the presentment to satisfy the amount, it seems 
 they would have been liable in equity to Grant, for Vaughan had no right to order 
 them not to pay the cheque, at least that circumstance could be their only ground
 
 ANT N THE L A W F B A NKIXii. 
 
 A. -., Cheques made payabk to Order on Demand. — With 
 
 I rospeot to the subject of indorsed cheques, it has been enaoted(y) 
 
 ••that any draft or order drawn apon a banker tor a sum of money 
 
 order on demand, which shall, when presented for payment, 
 
 purport to be indorsed by the person bo whom the same shall be drawn 
 
 ile, shall be a sufficient authority to such hanker to pay the amount 
 
 of such <lrat"t <>r order to the bearer thereof; ami it shall not lie incum- 
 
 ■ II Mich hanker to prove that .<uch indorsement, or any subsequent 
 
 indorsement, was made by or under the direction or authority of the 
 
 i to whom the said draft or order was or is made payable, either by 
 
 [rawer or any indorser thereof." 
 
 Notwithstanding this statute, however, it would probably not be safe 
 
 for banker- to pay a cheque, purporting to be drawn by a customer and 
 
 I by the payee, without ascertaining the genuineness of 
 both signatures, if tlt> customer had "t tin" of presentment and pay- 
 
 in, a t no funds in tht ir hands} for it has been held in the analogous case 
 
 • if a bill, accepted by a OUStomer payable at his bankers', that they were 
 
 liable on paying the bill fur his honour, not having funds, and could not 
 
 r from the customer, not having taken means to ascertain the cor- 
 
 reotness of the acceptance *and indorsement.^) The statute 
 
 L- J does it appear to alter the principle of this decision as applica- 
 ble to cheques, as it turns on the circumstance that the bankers, in the 
 : funds of their customers, are nut bound to pay the bills, and 
 therefore, if tiny choose to do so, they act under peril of r> ing responsi- 
 ble, in ease the instrument turns out to be vitiated by fraud or forgery. 
 I ■ !i only be taken, it is submitted, to relieve bankers from 
 
 the necessity of ascertaining the genuineness (so as to be able to prove 
 it at the trial) of the payee's indorsement, and in cases where, inde- 
 pendent of any consideration of the indorsements, they would be bound 
 I the cheque. The statute maybe considered as saying, " if, given 
 the genuin the payee's indorsement. &c., yon would by the law, 
 
 and by the usage of bankers, be bound to pay, there you shall be 
 relieved from the necessity of proving the payee's indorsement, &c, and 
 shall be entitled to have the benefit of such a payment, on showing an 
 indorsement, purporting to be that of the payee." liut in the case 
 above stated, the bankers would not be bound bo pay a cheque, without 
 
 first having funds of the person purporting bo be drawer in their hands, 
 
 of defence. Bat however tail may be, it la conceived to be clear that in on ordi- 
 
 if the bearer of ■*■ cbeqae presenting to bankers having assets of the 
 
 • c iii their bands at the time, the bearer mighl in equity recover from them 
 
 the amoaot Thej woald also be liable at common law to the drawer if be bad 
 
 not Interfered to forbid them paying. 
 
 L9. Btai Stamp <>n cheques for 
 
 paynu than on demand, 17 k 18 Vict. c. 83, Sche- 
 
 dule. 
 
 Oampb. 17. Where tl honour of the drawer 
 
 to payee, who pi payment, knowing the maker to be al the time insol- 
 
 :; l the i beque to be post-dated, the bankers being ignorant of hoth circum- 
 
 ■ the obvious jastii e ol the case, recover back the 
 
 from the payee Who ba« cheated them OUt Of it Martin v. Morgan, 3 J. li.
 
 CHEQUES. 57 
 
 and without, secondly, being satisfied, and therefore able to show, that a 
 person purporting to be the drawer, and having funds in their hands, 
 actually drew the cheque presented and paid. In other words the statute 
 applies to cases of cheques, really drawn, by persons entitled to draw ; 
 for such only are drafts drawn for a sum of money, payable to order on 
 demand. 
 
 It may be also doubted, perhaps, whether in a case where the payee 
 of the cheque was also a customer of the bankers, and so they would be 
 presumed to know his handwriting, and what is not his handwriting, an 
 indorsement *purporting to be his, would be a sufficient autho- .- ^q -i 
 rity to them to pay the bearer, within the meaning of the statute, L " J 
 if such indorsement were shown to be not the payee's handwriting, but 
 a forgery. The statute does not apply, it will be observed, to drafts 
 drawn on a banker and made payable to order on demand, but to drafts 
 " for a sum of money payable to order on demand," and the sum in a 
 cheque, such as these above mentioned, is not payable (i. e. } such as it 
 is their duty to pay) to order on demand. (a) 
 
 The extent to which a party may insist that his cheque shall be cashed 
 in particular descriptions of money or currency, also the extent to which 
 bankers are bound to pay in particular denominations of coin, has been 
 stated above, but nothing that has been said must be understood to inva- 
 lidate the power, which the parties possess, of entering into any agree- 
 ment to make and receive the payment of cheques, by any descriptions 
 of valuable circulating medium that they choose, although such be not 
 recognized by law as money. 
 
 Thus, if the bearer of a cheque requests or does not object, at the time 
 of payment, to receive payment in country bank notes, the banker may 
 so cash the cheque, and the bearer cannot afterwards object that the 
 nates turned out to be worthless,(i) provided that all has been fair and 
 honest on the banker's part ; but if there has been any unfairness or fraud 
 practised by the banker, as if, when tendering them in payment, the 
 banker knew that the bank which issued the notes was in a failing con- 
 dition, there the notes, though not objected to at the time, would not be 
 a good payment,(c) and the banker would remain liable to the drawer to 
 the full amount of the cheque, and probably to damages for dishonouring 
 it;(d\ for his having induced or allowed the *bearer to take, as j-#on -i 
 payment of the cheque, that which he was aware it was doubtful, L c J 
 
 (a) Nevertheless there may be cases where "payable on demand" is the same 
 as " made payable on demand." See per Buller, J., Janson v. Thomas, 3 Dougl. 
 421. 
 
 (6) Polglass v. Oliver, 2 Cro. & J. 5 ; Vernon v. Bouverie, 2 Show. 296. 
 
 (c) Spurraway v. Bogers, 12 Mod. 517. 
 
 (d) In Bolin v. Steward, 14 C. B. 595, which was an action against bankers by 
 a trader having assets in their hands for dishonouring three cheques amounting in 
 the aggregate to 111Z. 13s., and no special damage was proved, the jury gave 500Z. 
 damages. The court in banc suggested that the parties might relieve them from 
 giving any ultimate opinion, but intimated they inclined to think the damages 
 very large, whereupon it was agreed by the parties to reduce to 200^., and the 
 judgment was entered up accordingly. When the payee sues the drawer, he must 
 prove notice to the drawer of the non-pavment. Treacher v. Hinton, 4 B. & A. 
 413.
 
 QRAN1 OM THE LAW OP BANKING. 
 
 at least, whether it oould ever be realiied a- money, was an injury to 
 
 the drawer, for which, though it might be considered not to wear exactly 
 
 me aspect as ■ dishonour by waj of declaration that the drawer had 
 
 - in his hand, still is prejudical to him, in this respect, thai he 
 
 is anneoeasarily and without any fault of his, obliged to pay the debt 
 
 again to the creditor to whom he delivered tin- cheque, as payment 
 
 of the debt between them; and the drawn- of a oheque has a right to re- 
 
 quire that hifi draft shall he promptly and effectually and bund fide 
 
 1 The ] lyee or bearer ha- no recourse againsl tin- banker, because 
 the effect of tin- oheque is onlj to d< rignate tin- hand to which the bauker 
 shall pay his debt to drawer, not to constitute the banker the debtor of 
 the party presenting the oheque. Therefore, in the case of a payee 
 having taken a cheque in payment, ami Bending hi- servant to present 
 
 beque, tin oh< que being paid by the banker as above, the payee 
 
 would he enabled, it would seem, to con U . apon the drawer for the amount, 
 
 on the ground that without fault, on his part, tin- original debt was still 
 
 undisoharg 9 . if the cheque had passed through several hands l>c- 
 
 fore arriving at the party who presented it, it Beems the bearer might 
 have recourse to the party from whom he received it, ami he to the party 
 
 who paid it to him. ami BO On till the payee ultimately would recover 
 from the drawer. On the other hand, the payee, it might perhaps be 
 ided, is the only person who is competent to sue the drawer, for 
 is ao original privily between the drawer and the mere 
 L J *bearer, and the circumstance that he direct- the banker to pay 
 the payee w bearer i- for the convenience of the payee, and cannot form 
 a ground for enlarging the drawer's original liability, which is in no wise 
 affected, it is apprehended, by circulating the oheque. 
 
 It i- true, in the case of a promissory note, payable to bearer on 
 ad, it has bet d said the bearer is a party to the note, and may sue 
 the maker on it, for the maker had expressly promised to pay the 
 but it may be questioned whether this doctrine extends be- 
 yond promissory note-, to which the statute gives the same ijualities of 
 .ability that belong to bills of exchange by the law T merchant ; but 
 neither a statute nor the law merchant enables the parties to a cheque 
 on a banker to annul the common law prohibition against assigning a 
 cho$t in iii tion. 
 
 N rert -.it was stated incidentally by the Court of Exchequer, in 
 
 of a very elaborate judgment, but without the point having 
 
 noticed iii the argument^ or being n< oessary to the decision, or in- 
 
 deed having much, if any, connection with the question decided, that 
 
 the holder of a oheque maj sue a drawer on aon-payment by the banker, 
 
 if he be holder for ralui | i But how< ■• c this ma) be, it is remarkable 
 
 that there \i no ease in which the bearer ha- recovered against the 
 
 draw* ■ iii circumstances whiofa brought the cheque within the 
 
 of bill- of exchange, and where it was Bued on as such, and 
 
 the eustom or law merchant was relied on. 
 
 .1.. Oamidge v. Alienor, 6 B. k 0. 373. cited per Patteson, J., 
 Oliver, 10 Q. 15. 713. 
 (/) Bee Bellamj r. Majoribanks, 21 L. J.. Exch, ::
 
 CHEQUES. 59 
 
 But the general opinion seems to be, that the bearer may always sue 
 the drawer of a cheque upon dishonour by the banker on a proper pre- 
 sentment ; and the ground seems to be, that the drawer promises every 
 bearer that the amount shall be paid on due presentment; it may also 
 be said, that the bearer takes the cheque in payment on the p ^ -, 
 faith *of the drawer's name, which faith the drawer expressly L ' *" J 
 invites, by making the instrument payable to bearer, and the books of 
 precedents contain forms accordingly ; but it is observable, that the point 
 has never been solemnly decided. (/) 
 
 (/•) See 2 Chit. Pleading, 100, (7th edit. ;) 1 Wentw. 373 ; Serle v. Norton, 9 M. 
 & W. 309; Watson v. Poulson, 15 Jur. 1111; Serrell v. Derbyshire, &c., Railway 
 Company, 19 L. J., C. B. 371. 
 
 In Boehm v. Sterling, 7 T. R. 426, an instrument was drawn on bankers and 
 made payable to Dobson or bearer, but was not delivered to Dobson, but to per- 
 sons under whom plaintiff claimed ; and there the plaintiff, being the holder sued 
 the drawer, and the instrument was treated as a bill of exchange, and therefore 
 not the general law which forbids, but the law merchant, which, in regard to bills 
 of exchange, sanctions, the assignment of a chose in action, was relied on. 
 
 In Samuel v. Green, 10 Q. B. 262, debt was brought by holder against drawer 
 on a cheque drawn, payable to Tucker or bearer, and the cheque was alleged to 
 have been delivered by drawer to plaintiff ; in fact, the cheque was handed to 
 Tucker, but without consideration, and merely that he might get money upon it 
 for the defendant, and he delivered it to plaintiff; Tucker therefore was to be 
 looked upon either as agent for plaintiff or for defendant, and in either case de- 
 livery to him was delivery to plaintiff, from whom a consideration moved to the 
 defendant. N. B. — Now, in case of a bill of exchange payable to bearer, there must 
 be a stamp to make it valid. 
 
 In an action by payee v. drawer, it is a good answer to show that there was no 
 consideration for drawing the cheque ; Mills v. Oddy, 3 Dowl. 722 ; and would it 
 not be equally so to show that there was no considerationbetween bearer and drawer, 
 otherwise the payee's servant sent with the cheque and refused payment might 
 recover to his own use. If it be urged that the defendant promises on the cheque 
 that his banker shall pay any one who presents it, it may be replied that he can- 
 not make such promise, for it is nudum pactum, by which he is not bound as re- 
 gards a mere bearer. Moore v. Barthrup, 2 Dowl. & R. 25, lays down that a 
 cheque is a mere chose in action, not assignable, and not recoverable by action [of 
 trover]. Except as above mentioned in this note there appears to be no case re- 
 ported in which a mere bearer has recovered against the drawer. 
 
 It is to be observed that the notion at one time entertained of nudum pactum not 
 applying to written or mercantile contracts has long been entirely exploded. Rann 
 v. Hughes, 7 T. R. 350, n. ; In Dom. Proc. per Ld. Kenyon, C. J., 1 East, 104 ; 
 Bank of Ireland v. Archer, 11 M. & W. 389. 
 
 If it be said "the practice is so," it may be answered, that can make no differ- 
 ence ; the real question is, "what is the law ?" Per Ld. Ellenborough, C. J., Glyn 
 v. Baker, 13 East, 513, 514. 
 
 Scott v. Franklin, 15 East, 428, is a peculiar case: there a customer whose ac- 
 count was overdrawn pays into his banker's on his running account, a cheque for 
 500Z. drawn in his favour by a third person. The bankers have a lien on such 
 cheque for the balance due to them. Therefore it was held, that on their bank- 
 ruptcy their assignees might sue the drawer, who, the report says, defended on 
 behalf of the customer, and recover not the amount of the cheque, which was 500Z., 
 but the amount of their lien, which was 141. 9s. 9d. Ld. Ellenborough treats the 
 cheque as a bill of exchange, payable to bearer, which was immediately due, and 
 says, if it passed to the bankers by the delivery at all, it passed a legal and not a 
 mere equitable lien. This, it is submitted, cannot be considered as an authority 
 for saying that bearer may recover against drawer upon a cheque as such. 
 
 Referring to the former part of this note, we may observe the lateness of the 
 period at which bills of exchange payable to bearer were considered to be within 
 the custom of merchants. So late as the year 1764, we find the recorder of Lon- 
 don denying there was any instance of any custom of merchants of a bill of ex-
 
 . I 1. A N I 1 1 N I II I I A W F B A X KING. 
 
 • Bat if the oheqae be cashed in forged Bank of England n< 
 
 L J the payment i.- a nullity; for it is only in valid hank notes that 
 
 lerean legally be made 'J h) and the law appears to be that, in strict- 
 
 the drawer might recover damages from the banker for dishonour- 
 
 ing his oheqae, although the banker were ignorant when he tendered 
 
 the bank notes that they were Bporious ; for the payee of the oheque may 
 
 certainly treat the debt due to him from the drawer as nnpaid, and may 
 
 t it from himj and consequently *the drawer may recover 
 
 L " J frmi the banker; according to the rule above slated, that when 
 
 ■ loss most fall upon one of two innoeeiit parties, the sufferer must be 
 
 the party whose conduct has most immediately led to it ; and here the 
 banker is guilty of laches and negligence in not ascertaining the genoine- 
 :' the bank notes before he tenders and passes them. 
 A- there i.- no privity between the bearer and the banker, and the 
 former is merely the hand into which the banker is directed by the 
 drawer to pay the debt which the banker owe- to him (the drawer,) and 
 the order of the drawer cannot Operate to make the banker debtor to the 
 
 r, of coarse the bearer eannot sue the banker for non-payment, un- 
 li -- in the nnusna] case of the banker's accepting the instrument. (i\ 
 
 1. hi what has been said it will be seen how great is the difference 
 
 in the situation of the payee of the cheque, when the payment is made 
 
 by tie' banker in notes of the Bank of England, and in notes of any 
 
 country bank: for a payment in spurious paper, purporting to be that of 
 
 Bank Of England, is a nullity, whether objected to or not at the 
 
 ; and the banker, upon the forgery being discovered, must pay over 
 again tin; sum which they purported to represent, provided the payee of 
 
 heqoe has not paid them away, and got value lor them, in the mean- 
 time ; and the reason is, beeause the payee is, prima facie bound, to take 
 sueh notes iii payment every where, but from the Bank of England or 
 it.- branches, and the legislature having made them a part of the currency, 
 
 change being made payable to bearer, Grant v. Vanghan, 3 Burr. 1517. in which 
 
 i L( 1 that Bach a bill was negotiable within the custom of mer- 
 chants. Hennii.. child, 12 J. B. Moore. .".::., :■:<;.• Bee 3 N. R. 183, 481, 
 per II' .ah. .J.: Gibson v. Mind, i E. Bla. 621, per Eyre, C. B. ; S. C, id. 606 ; Jor- 
 dan v. Harlow. :: Sal. 
 
 on Dill.-, \\ 200, ."-:, 62. Bnch hills arc only transferable by delivery 
 
 merely in virtue of tie iiant. hut no authority ha- ever .-aid that the law 
 
 leqnes. Bowever, the following passage in a jndgmenl of 
 
 leqner Chamber appears to state the law in accordance with the 
 
 tated in Uii.- note: — ••The instruments by which the alleged pay- 
 
 irden whereby the d< i Dank 
 
 '■""1* cash Lirected to pay the money to the plaintiff. It is clear 
 
 ■ instrument will not. by the general lav., give anj righl of action to 
 
 other than the plaintiff) who might become po it: and it 
 
 nfa nded in the argument at the bar that Bnch right of action existed by 
 
 eneral law; bntil ted that thi torn of merchants and 
 
 gave such a right of action, fcc, hut we arc of opinion 
 
 tli:it '•■ on." Partridge v. Hank of 
 
 ■ '.'. B. 424, u:., referring to Glyn v. Baker, 13 East, 509, 614, where a 
 
 •tine had been held with respe< I to India bonds. See Miller v. Race, 
 
 there; l i M. .v. W. 405, 407, per Parke B 
 per Littiedale, J.. Camidge v. Ailenby, i (85. 
 
 {') i' Majoribankt, -'l L. J.. Exch 11
 
 CHEQUES. 61 
 
 the genuineness of sucli notes is prima facie to be presumed, and if not, 
 the payee has no ready test by which it can be ascertained, or even an 
 approximation to proof be made, whether they are good notes or forged : 
 he is therefore prima facie obliged to take them, when tendered in pay- 
 ment. 
 
 Country Bank Notes. — With respect to country bank *notes .- „.or -, 
 the case is different, they form no part of the currency ; the L ' J 
 payee's choice of taking or refusing is absolutely free ; he is aware not 
 only that they may be forged, but (what is quite possible in this case,) 
 that the country bank may have stopped payment before they can be 
 presented. If therefore the payee elects to take them as cash, he must 
 be held to have chosen to bear either of the risks that attach to them, 
 and the banker, if he have made no improper representations to induce 
 the payee to receive them, and did not know at the time that he tendered 
 them in payment that for any reason they were worthless, or likely to be 
 so by the time they could be presented at the country bank for payment, 
 will be absolved from further liability. 
 
 Counterfeit Coin. — Similarly in case the banker innocently makes the 
 payment in bad coined money, the payee taking it in payment without 
 objection on the moment, that is before the transaction of the present- 
 ment and payment, can be considered as fairly at an end, cannot after- 
 wards complain, and must bear the loss, for he takes it at his peril ; and 
 having once recognized it as money, cannot afterwards be allowed to say 
 it is not so.(A-) This, which is the general rule applicable wherever a 
 debt is paid in coin, seems to rest on satisfactory grounds ; for there are 
 various and well known tests which may readily be applied for the pur- 
 pose of ascertaining the goodness of money, as weighing, ringing, &c. ; 
 and, moreover, it would obviously open a door to fraud, and endless con- 
 fusion and delay of business, if the payee of a debt were allowed to say 
 that " such and such coins were received in payment from the debtor 
 and were bad ; their account must be paid over again." In most instan- 
 ces, this would be to place the debtor, who would be without any means 
 of showing that the coins he paid with were other than those which the 
 creditor alleges to be forged, at the mercy of the latter. The principle, 
 therefore, that a loss *which must fall upon one of two innocent .- ^„ -. 
 parties, shall fall upon that one whose conduct has given rise to L ' -» 
 it, seems to apply here; and to show the propriety and justice of ruling 
 that the payee who might, but did not, apply some test, or take the ob- 
 jection at the proper time, is for ever concluded. If the banker, upon 
 the objection being made, should insist that the money is good, and re- 
 fuse to change it for other coins, the payee ought to request him to put 
 some private mark upon the money, and perhaps to place it in the hands 
 of some third person, until it could be assayed, or other decisive means 
 taken to ascertain its real value. 
 
 Payment by Bill of Exchange. — So the payment of a cheque may be 
 made, if the holder pleases, by a bill of exchange drawn by the banker. (I) 
 
 (k) Vane v. Studley, cited by Sir E. Coke in "Wade's case, 5 Rep. 115. 
 (I) Com. Dig. tit. Merchant, F. 17. So also, in like circumstances, the banker 
 may pay a cheque by his promissory note. Sayer v. Wagstaff, 5 Beav. 415.
 
 I . B A N T ON" THE LA W F B A N K I N G. 
 
 But under this bead man; points, some involving questions of much 
 
 . an- to be noticed. 
 
 1 [f the drawer of tin- oheque, Bending his Bervant to get it eashed, 
 
 orden • bim persuasion to take, instead of cash, the banker's bill 
 
 bange, that is, i bill of ezobange drawn or indorsed by the banker, 
 
 the drawei of the oheque will only be entitled to come upon the banker 
 
 for tli«' amount in ease of the bill not being paid at maturity, if he has 
 
 taken all due measures to obtain payment of the bill, by endeavouring to 
 
 get it son pted, &o. ; for it follows, from the legal relation between a 
 
 banker and a depositor of money with him, that the former is the debtor 
 
 Of the latter, and by the BXpiO Bfl Words of the statute -'J & 4 Anne, C. 9, 
 
 -; j •• it any person doth accept any inland bill of exchange fur and 
 _ in satisfaction of any former debt or sum of money formerly *due 
 -I unto him, the same Bhall be accounted and esteemed a full and 
 complete payment of such debt, if Buch person accepting of any such 
 bill for his debt doth not take his due course to obtain payment thereof 
 by endeavouring to get the same accepted and paid, \<\" If, therefore, 
 the drawer of the cheque takes all due steps for the above purposes, then 
 the loss, it' the bill is dishonoured at maturity, must fall not upon him 
 but upon the banker; if he neglects to take proper measures he must 
 
 bear the loss. 
 
 _'. In the case of the payee, however, the statute does not apply, 
 
 use there is no debt antecedent or otherwise between the banker 
 
 and him. he is only the hand appointed by the banker's creditor, who 
 
 draw- thecheque, to receive payment of the banker's debt to the drawer. 
 
 If, therefore, the payee chooses, on presenting the cheque, to take the 
 
 banker's bill of exchange instead of cash, and the bill is not paid, the 
 
 must bear the loss; he cannot have recourse to the drawer of the 
 
 cheque, for the drawer having given him the mean- of getting his debt 
 
 discharged in cash, cannot be in a worse position because the payee has 
 
 i lected to take something else;(») and he cannot come upon the banker, 
 
 rcised his option when he might have insisted on payment 
 
 in money, and there is no debt due from the banker to him, as the 
 
 cheque does not operate at common law to transfer a cho$t inaction; 
 
 the consequence is that in the absence of fraud in the banker, the payee 
 
 of the cheque bean tin- 1..--; and this must be the case independent of 
 any laches on hi- part, and whether he take- the due OOUrSC to get the 
 
 bill accepted, &o. or not. 
 
 The nine must be the case, although the oheque had circulated 
 
 through any number of hand- before getting into the possession of the 
 
 bearer, who ultimately presents it for payment; if he chooses, under 
 the circumstances above mentioned, to take in payment the banker's 
 
 me thing bad been mice] before the Btatute in Darracb v. Sa- 
 l Show. IBB. If tin- lenrant had no authority to take a lull of exchange in 
 raid be different, and the banker would be liable. AVard v. 
 Li. Barm. Bi 
 
 ■ 'fuel. 7 : I lit. Mi p bant, F. 17 ; Strong v. 
 
 Lbbott, Shipping, 419, (8th edit)
 
 CHEQUES. 63 
 
 bill, the drawer *and all the successive holders between the .- ^gg -i 
 drawer and the person presenting for payment are wholly dis- L ' J 
 charged, for none of them are consenting parties to the bearer's election 
 to take less than cash, and cannot therefore be liable for the conse- 
 quences : therefore, in the absence of fraud in the banker, the bearer 
 suffers the loss. 
 
 In none of these three cases can the drawer sue the banker for dis- 
 honouring his cheque, or otherwise. The general principle that an 
 objection to a tender must be made at the time of the tender, seems to 
 apply hcre,(o) and the banker is exonerated by showing that he paid the 
 cheque in a manner with which the bearer was satisfied. 
 
 So if the bearer requests it, or does not object at the time, the payment 
 may be effectually made, in the absence of fraud or concealment of facts, 
 in bank post bills. (p) 
 
 So, in like circumstances, payment may be made by another cheque 
 drawn by the banker, and the loss, if any, must fall on the taker.^) 
 
 4. The Cheque is usually made payahle to a person named or 
 hearer t — That the cheque be made payable to bearer is the essential 
 part of this head;(r) to be exempt from the stamp it must, as will be 
 seen by reference to the extract from the Schedule, part 1, of 55 Geo. 
 III. c. 184, given above,(s) be made payable to bearer : the statute says 
 nothing about the name of the intended payee being inserted; but by 
 the nearly universal practice as regards bankers' cheques, a name is 
 inserted, as of a person, in whose favour the cheque is drawn ; and the 
 convenience of this is obvious, for by inserting the name, or the word 
 "self," and then adding "or bearer," either the payee in person, or 
 any one to whom *he may deliver the cheque, is competent to r- ^oq -i 
 receive the cash for it, and the banker is bound to pay it in either L * J 
 case. 
 
 A cheque made payable to a person named, without the words " or 
 bearer," or words to the same effect, is not a cheque within the meaning 
 of this statute, and therefore cannot be paid by a banker, except under 
 the penalty above mentioned, and the additional punishment of incapa- 
 city to charge the drawer on account with the sum paid upon it,(£) 
 unless it be stamped. 
 
 Also, such cheque, without the words " or bearer," would be defec- 
 tive as regards the above statute, unless it contained the words " on 
 demand ;" because though a cheque made payable to bearer is, in legal 
 construction, payable on demand, a cheque made payable to a person 
 named, without more, is not payable on demand. (u\ 
 
 That it is not indispensable to name an individual person is shown by 
 
 (o) Richardson v. Jackson, 8 M. & W. 298 ; Bull v. Parker, 2 Dowl. N. S. 345. 
 (p) Tiley v. Courtier, cited per Bayley, J., 2 Cro. & J. 16. 
 (q) Jones v. Arthur, 8 Dowl. 442 ; Wilby v. Warren, cited 2 Cro. & J. 18, n. 
 (r) In Tate v. Hilberd, 2 Ves. Jun. 118, the form was "Pay to self or bearer 
 2001." So Other v. Iveson, 24 L. J., Ch. 654. 
 (s) Supra, 13, 14. 
 
 (t) Supra, 17, stat. 55 Geo. III. c. 184, s. 13; R. v. Yates, Moo. 0. C. 170. 
 (w) See Doe d. Church v. Pontifex, 9 C. B. 229. 
 
 January, 1857. — 6
 
 (I RANT ON Till: LAW OF BANKING. 
 
 this, that ■ oheque town thus, ■• Pay ship Fortune, or bearer," is a 
 valid instrument, and may be sued upon by bearer.(t>) 
 
 Ckequt mvttbeartki Drawer'* Signature. — Signature does 
 --irily mean subscription, or writing the full name at the foot 
 of the document; it' the name appear in any part <>t' the cheque, so as 
 t . show who it is that orden the payment, that will be sufficient to 
 authorise the bankers to pay, provided the handwriting be that of their 
 mer of the nam. stated. For the reason of requiring signature will 
 be thus satisfied ; for adequate means of identification by the haud- 
 writing will be afforded.) 
 
 Thus a cheque would l>e good which, instead of b< ing subscribed with 
 
 , .. the name of the drawn-, as in the form *above given, was 
 
 I -I expressed tlm^: — [, John Stiles, desire you to pay," &o. ; and 
 
 properly addressed, &o; or thus: "Mr. Stiles desires M< 
 Holdfast to pay," &o. ; tor in either case, being written by fche party 
 drawing, the oheque would contain sufficient means of identification. 
 
 An illiterate person must draw a cheque, by placing his mark, in the 
 usual place of writing a name and style, on a cheque, the body of the 
 I eing filled up in the usual manner, (y) 
 An infant cannot draw or sign a valid cheque; in other words, a 
 banker cashing the cheque of an infant, is not thereby discharged ; 
 for a person under age cannot draw a cheque, for he cannot give a legal 
 discharge . 
 
 / tecutort. — Executors, however numerous, are regarded in law as an 
 
 individual person; and therefore the acts of one of them, in respect of 
 
 Lmmistration of the effects, are deemed to be the acts of all. Hence 
 
 nt to one is payment to all; and it follows that if a number of 
 
 itors have a fund standing in their joint nam.- at a banker's, pay- 
 
 nn-nt of a cheque signed by one of the executors will discharge the 
 
 bankers as to all of them.(a) So it would be, although the executors 
 
 oting nnder a forged will.(6) 
 
 9 a payment to the oheque of any of several administrators, made 
 
 bona fide, would discharge the banker, although a will should afterwards 
 
 be found 
 
 - a payment to die cheque of a surviving administrator of several, 
 - the bankers : in a case where such survivor drew out a fund 
 absconded, the Ion was made to fall on the estate of the deceased 
 administrator.fd) 
 
 1528; and see Id. 1630, marg. ; per Eyre, 
 
 :. in I'.iin. Proc. 1 II. I'.l;i. ' 
 
 Jackson, 2 Bos. & P. 238 ; 
 
 574, where 1 1 1 «- christian name of the writer was not 
 
 r. Smith. 11 8im. 150; Parker v. Smith, I Coll. Ch. C. 608. 
 
 hire, -V' .. Railwaj Company, 19 L. J., C. B. 
 
 ■..1 v. Lloyd, 6 If. k W. 31. 
 Bigby. 19 Ve*. 462 ; Shi p. Tom I. I ;; Atk. 695 ; 
 
 .at v. Taylor. '.' liar. 
 
 ■ . Dtrodas, B T. i:. . 
 
 Underwood, :' Ld. Raym. 1210. 
 i. v Bond, J M.\. • m, 504. ,
 
 CHEQUES. 65 
 
 *With respect to the assignees of a bankrupt, payment to one of .- ^ -. 
 several has been held not to be good ;(e) there are, however, other L J 
 cases(/) in which such payment has been held valid to discharge the 
 debtor when made bond fide, and unless the other assignees have ex- 
 pressed their dissent. 
 
 It would seem, therefore, doubtful whether a banker would be dis- 
 charged by honouring a cheque signed by one of several assignees, in 
 ordinary circumstances. 
 
 An ao-ent has no authority, as such, to overdraw a banking account ; 
 but if he has done so, with the knowledge of his principal, that is evi- 
 dence from which the jury many infer authority. (gr) 
 
 Trustees. — In case of trustees in general, or any other body of persons 
 not being in partnership, having deposited money to their joint account 
 with bankers, the latter are, by the nature of the relation between banker 
 and customer, as regulated by the usage of banking, entitled to have 
 assurance that each of the trustees, or each of the body of persons, 
 assents to and authorizes the money being paid out, and therefore, in 
 such case, the law is that each trustee, or each of the body, must sign 
 the cheque,(A) or the bankers may refuse to pay it ; for they will not be 
 discharged if they do pay it, except where, subsequent to the deposit, 
 the drawer has become alone entitled to receive the money. (i) 
 
 In the case of several persons, not partners, having a joint deposit ac- 
 count with them, they could not plead in bar with effect, nor could they 
 even plead, it would appear, in abatement, that since the commencement 
 of the action they had paid the sum on the cheque of one of the plain- 
 tiffs j for, *though it is a general position, that a payment, or an .- ^ -. 
 accord and satisfaction, of the joint debt may take place between L '^ -> 
 one of several plaintiffs and the defendant, which the latter may set up 
 against the further maintenance of the action, that only holds where 
 there is nothing illegal in the transaction ; but, it seems, that the law 
 merchant prevents a payment on a cheque drawn by one of several, not 
 in partnership, from binding them so as to cancel so much of the joint 
 debt, and therefore that the payment having been made by the bankers, 
 in violation of the law and in their own wrong, cannot be so taken advan- 
 tage of; in other words, the bankers would be liable to pay the money 
 over again. (k) Nor, in the absence of fraud, could they recover from 
 the drawer of the cheque the sum they had paid him ; for a sum paid 
 with a full knowledge of the facts (knowledge of the law being imputed) 
 cannot be recovered back ; it is in such case a gratuitous donation. 
 
 "Where one of such trustees has absconded, so that his signature cannot 
 be obtained, equity will relieve by making an order that the bankers shall 
 
 (e) Can v. Read, 3 Atk. 695. 
 
 (/) Smith v. Jameson, 1 Esp. 114 ; Bristow v. Eastman, id. 174. 
 
 (ff) Pott v. Bevan, 1 Car. & K. 335. 
 
 (h) Innes v. Stephenson, 1 M. & Rob. 145 ; Husband v. Davis, 10 C. B. 640 ; 
 Stone v. Marsh, Ry. & M. 364 ; see Carvick v. Vickery, 2 Dougl. 653, n. 
 
 (i) Lee v. Stewart, M. & Malk. 160. 
 
 \k) Compare Wallace v. Kelsall, 7 M. & W. 242, with Husband v. Davis, 10 C. 
 B. 640.
 
 GRANT ON TIIE LAW OF BAHKINO. 
 
 pay the cheque of the remaining trustees ;(/) at least, this will be done 
 in bankruptcy in oase of assignees of bankrupts absconding or dying; 
 and bo in the case of other trnsteea of funds over which the court has 
 control j(m) and in such can the court would probably order, in proper 
 
 circumstances, the payment t ic alone, however aumerous the trusl 
 
 might be.(» ) 
 
 The above position, with respect to the relief in equity when the sig- 
 natures of all the persons (not partners.) to whose joint account money 
 is in the hands of bankers, has ♦been stated, in a work of au- 
 L J thority, in more genera] term-, as it' equity would assist, in all 
 where it was become impossible to obtain the full complement of 
 signatures ;(o) but there appears to be do decided case, furnishing any 
 ground to suppose that Buch interposition may be had, in any instances 
 hut those, where the fund i.s already, from Borne special oiroumstanoes, 
 under the control of the court; and the language of the legislature, in 
 the late "act for the further Belief of Trustees/' seems to Bhowthat 
 then- was do such general practice, even in favour of trustees, previous 
 tq 1849; for it empowers any equity judge, where moneys shall be 
 deposited with any banker on the account of any persons as tin 
 executors or administrators, or otherwise, to make rach order for the pay- 
 ment of Buch moneys to the major part of such trustees, &c. where for any 
 a the concurrence of the others cannot be had, &c. as to the said 
 judge shall seem meet, &o.(p\ 
 
 Although the following ease is but slightly connected with this part 
 of the subject, it may not unfitly be added at the close of the subject of 
 signature of cheques by trust 
 
 A receiver in chancery, in order to induce two persons to become his 
 sureties, arranges with them that the rents of the estate shall be paid to 
 a third person, and by him paid into a bank, to the joint account of the 
 two sureties, and that all cheques shall be in the handwriting of the 
 third person, and shall be Bigned by himself, the receiver. On the 
 failure of the hank, it was held by Lord Brougham, C, and his decree 
 was oonfirmed by the House of bonis, that the receiver and his sureties 
 were liable for the amount of the *fund, for that a trustee has do 
 L J authority to place a trust fund beyond his own control. (f) 
 
 Accountant- General. — How cheques are to be drawn. &c, by the 
 aeral in bankruptcy may be seen in L2 & L3 Vict. c. 106, 
 
 (/) Ex parte Hunter, 2 Rose, 363; 8. 0., 1 lieriv. 408 : see Slomau v. Hank of 
 Rngland, 14 Bim. 475. 
 
 Ch. C. !•-•: 
 Bhortbridge'i case, L2 iving funds in private 
 
 Vict. c. 74 ; Si- In. Smith's Chanc. Pract 1 L855), 1 10. 
 
 f the numerous works on chancery 
 I > 1- . . i'li role. 
 
 (/<) 12 A 13 Vii-i. e. 7 1. s. 1. Comparing this acl with the former Trustees Be- 
 lief Act, i'i .v. ll Vict. e. 96, which it oras passed t.> amend, it Beems difficult to 
 1 for it. If the court* of equity had already the general power of 
 ordering any funds standing in a bank, to thejoinl account of several, to be paid, 
 in proper circus 1 the cheque ofa Bingle one. 
 
 d/i Sahray w. Salway, J Buss, .v M. 216; La I>..m. Proc. uom. Baugh v. White, 
 
 lit)
 
 CHEQUES. 67 
 
 s. 34, and the rules and orders made in pursuance of that statute, Rs. 
 138, 139. 
 
 How cheques are to be signed, in cases of cheques on the Bank of 
 England or its branch banks, where a joint-stock company is being- 
 wound up, see 19 & 20 Vict. c. 47, s. 83. 
 
 Partners. — In the case of partners having a joint account with a 
 banker, — 
 
 " There is no doubt but that the act of every single partner, in a 
 transaction relating to the partnership, binds the others. "(r) 
 
 Therefore, in the absence of any special agreement, fixing the mode 
 in which cheques should be drawn upon the partnership fund, in his 
 hands, the banker would be bound to honour cheques drawn in any of 
 the modes following : — 
 
 1. A cheque bearing the signature of any one of the partners'. This 
 is allowed by the law merchant, and is in accordance with the usage of 
 bankers. 
 
 2. A cheque bearing the signatures of all or any number of the part- 
 ners: & fortiori of a proper majority acting bond jide.(s) 
 
 3. A cheque, bearing the name or style of the firm, in the handwriting 
 of any one of the partners. 
 
 4. A cheque signed by one of the partners, thus — "A., B. and Co., 
 per procuration of A."M 
 
 *5. A cheque signed by a partner, stating himself to sign for .- ^ . r -, 
 self and the rest of the partners. (?t) L -* 
 
 If the name of the firm be inaccurately stated, it would seem that 
 the banker ought not to cash the cheque without inquiry ; for such a 
 defect would probably be considered by a jury as sufficient to awaken 
 the suspicion of a prudent man, unless it were shown that such departure 
 from the proper style was habitual, on the part of the member of the 
 firm, in whose handwriting the cheque had the appearance of being 
 drawn, or unless it were agreed upon, between the banker and the part- 
 nership, that he should honour cheques so drawn. On the other hand, 
 without such inaccuracy having been usual, and in the absence of any 
 agreement, it would seem that a banker would be justified in refusing 
 payment, because it is probable the courts would hold such cheque not 
 to bind the partnership, if it were drawn by one partner without the 
 authority of the rest, express or clearly implied. (x) 
 
 (r) Per Lord Mansfield, C. J., Hope v. Cust, 1 East, 53 (cited) ; Collyer on Partn. 
 334. 
 
 (s) As to majority binding minority in partnership, see Const v. Harris, Turn. 
 & It. 516 ; Taylor v. Hughes, 2 Jo. & L. 24 ; In re Vale of Neath Brewery, 1 De G. 
 & S. m ; 1 Mac. & G. 240. 
 
 (t) Williamson v. Johnson, 1 B. & C. 149. It is not uncommon for clerks to be 
 empowered to draw cheques in the name of the firm, but the clerk in such case is 
 not liable on the cheque. See Wilson v. Barthrup, 2 M. & W. 866. Nor could he 
 therefore sue. Driver v. Burton, 17 Q. B. 989. 
 
 (u) Ex parte Buckley, 14 M. & W. 469. As to deed so executed, see Smith v. 
 Winter, 4 M. & W. 454 ; Burn v. Burn, 3 Ves. 573. 
 
 (x) See Kirk v. Blurton, 9 M. & W. 284 ; Sheppard v. Dry, reported Byles on Bills, 
 32, n. (6th edit.) ; per Tindal, C. J., Bawden v. Howell, 3 M. & Gra. 641 ; Coll. 
 Part. 268, 270 ; Wintle v. Crowther, 1 C. & Jer. 310. N. B.— The law as laid down
 
 63 GRANT "N THE LAW OF BANKING. 
 
 A question may arise, whether one partner could not bind the part- 
 ying the names of all the partners, though the style of 
 
 the firm did u<>t consist of those names. (//) and without special authority. 
 r -. So Btrong is the ruh — payment to one of several partners *of 
 L J a debt due to the partnership is payment to all, (z\ — that even 
 after a dissolution of partnership, of which the bankers have notice, 
 and though a person has been appointed by the joint assent of all the 
 partners, and with the knowledge of the bankers, to receive the debts of 
 the partnership, unless there be something in the notice which expressly 
 takes away the power of any one partner from receiving a <Kd>t due to 
 the partnership, the bankers may honour the cheque of anyone, and will 
 be discharged.) a ) 
 
 [f one of two partners opens an account with a bank in his own name, 
 this is not conclusive to show the account to be his solely ; the banker 
 may prove that the partner was acting as agent for the firm, in so open- 
 ing the account, but the mere fact of the money deposited being part- 
 nership property is not sufficient to show that, in an action by the other 
 partner tor dishonouring his cheque. (6) 
 
 What has been said respecting partners Bigning cheques relates only 
 t i persons who are known to the bankers to be members of the firm, and 
 not to partners who are not so known ; for a banker would not be bound 
 t i honour the cheque of a dormant partner, whom he was ignorant to be 
 jointly interested in the fund with the others, although he were satisfied 
 of the genuineness of the signature, and he could not, therefore, safely 
 <1" SO until he had tr< »t the authority of the firm.(c) 
 
 The name in the pass-book is not conclusive that the bankers con- 
 tracted with that person dUme.ld) 
 
 Where two houses of business are partners in a particular transaction 
 ami have a joint Bum to the account of the transaction in the hands of a 
 bank, payment of the cheque of one house, out of that fund, is payment 
 to botl 
 
 j-^,-1 poratton. — When a corporate body has a deposit at a 
 
 L -I banker's, it is in accordance with strict principles to lay down, 
 that the bankers would not, at common law, be discharged by payment 
 of a cheque that was not under the common seal, or signed by some 
 officer of the corporation, whose signature the bankers were authorized 
 lour, by authority expressly given, in an instrument under the 
 common Beal ; but in most cases of statutory corporations power is given 
 to three directors, or to a finance committee, or to other officers or pcr- 
 
 in Kirk v. Blnrton «;i- disputed by Martin, B., in Porbes \. Marshall, Eich., May 
 i Faith v. Richmond, 11 A. & !■;. 
 Pi : Maule, J., Norton \. Seymour, 3 C. B. 792. Bui Bemble, that the au- 
 thority of a partner is to use the name of the firm as :i signature, or to sign his 
 own ; tint that the common law forbids the signature of another person's name to 
 a document intended to have a legal effi I the signature bi "per 
 
 fTOCUTa 
 
 anon. 13 Mod. ; 16 : per Tindal, ('. J., 3 Moo. & P. 555 ; Imfr v. East India 
 
 ■ Man. k S. 156. (6) I 3eeley, 2 Bxch. 749. 
 
 B .. Cooke v. Beeli I Ezi ! 19. 
 Sin Bond, 5 B A ad, I (c) Coll. Part. 456.
 
 CHEQUES. 09 
 
 sons designated in the act, to draw and sign cheques, &c. In such 
 cases the cheques ought to bear the signature (and, where that is 
 required, the countersign) of all the parties designated. Thus, without 
 a special enactment, the signature to a cheque, of the chairman of the 
 finance committee of a railway or other incorporated company would not 
 be valid ; the committee not being a partnership nor a corporation, all 
 the members ought to sign j and in the absence of an agreement binding 
 on the corporation, that the bankers should honour cheques signed in 
 some other specified manner, they could not safely do so. Nor could the 
 payee recover against the corporation. Thus, where a statute gave 
 power to three directors to sign, &c. and the cheque, on which the com- 
 pany were sued, was in fact signed by three persons, who, it was proved, 
 were directors of the railway, but they did not state themselves to be 
 directors on the face of the cheque ; there, although it was countersigned 
 by a person who added the word secretary to his name, and who seems 
 to have been secretary to the company, and although the company had 
 funds in the bank, upon which the cheque purported to be drawn, and 
 it was impressed with a stamp containing the name of the corporation, 
 plaintiff failed. It is true, there were the strong circumstances that it 
 was intended to effect the payment of a sum of the company's money, to 
 a third party, in fraud of the company, and in violation of the special 
 act ; but it seems probable that in the absence of these latter facts, the 
 judgment would have *been the same, viz., that it was not a r ^ ft -, 
 cheque purporting to be a cheque of the company, and was not L -> 
 binding on them.(/) 
 
 It seems to be unsettled whether a cheque drawn in the above mode, 
 or in a mode having similar peculiarities, might or might not be good to 
 bind the corporation, if it were shown, which was not done in the above 
 case, that they had been in the habit of recognizing cheques, drawn in 
 exactly the same form ; but the better opinion seems to be that, however 
 this might be decided if the question came before the court clear of any 
 circumstances of fraud or dishonest intention, at any rate they would 
 not be bound by a cheque concocted as part of a dishonest transaction,^) 
 though it might, on the face of it, conform to the appearance of others, 
 to which it was their practice to give credit. 
 
 Having thus seen in what circumstances it is incumbent upon bankers 
 to cash cheques, next : — 
 
 As to refusal. — If a banker, having presented to him within banking 
 hours a cheque, bearing the genuine signature of a customer whose funds 
 in the bank at the time are sufficient to pay the amount drawn for, refuse 
 to pay, he is liable in substantial damages to the drawer -Jh) but it will 
 be a good answer to an action to recover damages, if the banker can 
 convince a jury that, although he had, in point of fact, funds of the 
 drawer's in his hands, at the time of presentment of the cheque, yet 
 
 (/) Serrell v. Derbyshire, &c, Railway Company, 19 L. J., C. B. 371. 
 
 (g) See S. C, per Cresswell, J., compared with observations of Maule and Tal- 
 fourd, Js. ; see Barber v. Gingell, 3 Esp. 60 : see also Levy v. Pyne, Car. & M. 453 ; 
 Ball v. Morrell, 12 A. & E. 745. 
 
 (h) Eolin v. Steward, 14 C. B. 595.
 
 70 
 
 ..I. A XT OX THE LAW OF BANKING. 
 
 . i.htuu.l.-lia.l not been paid in,longenongn,ton»vebeeninhi8«« 
 liable time, before the presentment What ia a reasonabl e turn 
 -, ntment most be ascertained by the jury, in each ease, by* 
 particular ninrnmntan as; • c. .<//•".. the gi aeral magnitudeand 
 •,-nt of *the business at the bank, the pressure of bnwnew at 
 J the tune, or oo the previous part of the day in question, &c., 
 
 V 
 
 ike judicial notice of what are banking houra in the city 
 
 adon.(/fc) What are banking houra in other part- of the metropolis, 
 
 and in provincial towns, nans* b proved in each ease in which the qnes- 
 
 ,ic> material. 
 
 Also it i- a defence to snob action, that the drawer's aaseta hare been 
 
 exhausted, bj the payment of bills accepted by him, payable at the bank- 
 
 ,,i.l it is not 11 asary for the bankers to show any special authority 
 
 or any further order, than that contained in such acceptances, to enable 
 I :\- the amounts due upon the bUls,(l) witliout giving a right of 
 action for dishonouring chequea presented subsequently. 
 
 The following caa /» | may Berve to illustrate the principles above laid 
 down. <>n a certain 'lay A. had Btanding in hid name at his bankers' a 
 balance of 69J. 16a, 6a?. About "in- o'clock the same day 40/. was paid 
 int . hie account ; a little after three o'clock, a cheque drawn by him was 
 !' :.r payment, the sum being %ll. 7«. 6d. A clerk, after re- 
 ferring to a hook, said there was not sufficient assets, but that the oheque 
 might probably go through the clearing house. The cheque was paid 
 foil, win- day. At the trial of an action, brought by A., against 
 
 tl,, bankers, no actual damage waa proved against the bankers; and 
 th< jury found Em the plaintiff, with nominal damages; but the court 
 
 QOW trial, on tin- ground that the plaintiff was entitled to real 
 dt-taiitial dam 
 Within what Tim* after it d,bytht Payee, a Cheque aught 
 
 /„ prenented for Payment. — Somewhat *different consider*. 
 ' J tion- arise in this respect, according to the character of the par> 
 • en whom, the question is raised. 
 1. .1- between the payee <nul tin drawer, the rule is, that the drawer 
 • discharged, that is, the paj •' lose his remedy against the 
 
 r. by rea* d of aon-presentnient within any prescribed time, short 
 ot -i\ yean after taking the eheque, unless the insolvency of the banker 
 taken place in the interval; that b. unless tie result of allowing 
 tl,,. payee to n ■ aid !><■ an actual loss to tin- drawer, who has done 
 
 nothing to oause the selection of him, as tin- one of the two parties, bav- 
 ins no concern in bringing about tie loss, on whom it is to fall. Be- 
 : , rtic-, therefore, it is only in oase of the intermediate in- 
 Boy of the banker that tie' cheque can become stale, (/<) all other 
 
 Wbil • England, <; Car. ,v !' 700; 8. C, l 0. M. k R 744 
 
 tti \ . William-, 1 B. A: A<1. 11 .V 
 
 i , trdon, T Be ' xat ion v. Swinton, 2 Taunt. 224. 
 
 ■ 
 
 i B. .v Ad. 418 • to Bolin v. Steward, 14 C. B. 59 
 rch&eld, 1 ' . B., (iritiiths v.
 
 CHEQUES. 71 
 
 circumstances remaining unaltered. Still the payee of the cheque must 
 bear in mind, that he may be put to much trouble and inconvenience, 
 by his neglect to present the cheque within a reasonable time, (which is 
 generally considered to mean within the banking hours of the day after 
 it is reeeived,(o)) because bankers in general understand it as a rule of 
 business not to pay old cheques without inquiry ; also a banker cannot 
 safely pay a cheque, the drawer of which has died, between the date of 
 delivering the cheque and its presentment, because his death operates to 
 withdraw the banker's authority to pay :(p) also, although the drawer 
 *be still living, his account may have been overdrawn, or he may ,- ^ -. 
 have ceased to have an account with the banker in the interval ; L 
 and, in either of the three last cases, the payee might be obliged to re- 
 sort to an action to recover the value. Again, the drawer might in the 
 interval have become bankrupt or insolvent, in neither of which cases 
 would it be probable that the payee would recover the full value. 
 
 On the other hand, although where the payee keeps the cheque, be- 
 yond a reasonable time, without presentment, and the bankers become 
 insolvent in the mean time, the drawer is discharged ; yet, if within 
 banking hours of the day after he receives the cheque, the payee pre- 
 sents it, and finds that the bankers have become insolvent, between his 
 receipt of the cheque and the carrying it for presentment, the drawer is 
 not discharged, and the payee may recover ; for here, though both par- 
 ties are innocent, yet it is just that the payee should be paid his debt, the 
 right to which he has done nothing to forfeit, since he has conformed to 
 the strictest rule that applies to any holder of a cheque, by presenting 
 in the course of the day after his receipt of it. (5) 
 
 2. When the person, who holds the cheque, is not the payee, but has re- 
 ceived the cheque from the payee or from some intermediate holder, and 
 upon the cheque being dishonoured seeks to recover from the person 
 from whom he received it, the rule is strict that he must present it with- 
 in banking hours, on the day following that on which he received it, at 
 the farthest, provided there are the ordinary means of doing so.(r) And 
 the holder of a cheque, whether payee or other holder, does not obtain 
 any more time by sending the cheque to his own bankers and presenting 
 through them ; but in all cases, to be safe, he must present within bank- 
 Owen, 13 M. & "W. 64. In Serle v. Norton, 2 M. & Rob. 401, the cheque was dated 
 19th March, and was presented 6th April following. See Robinson v. Hawksford, 
 9 Q. B. 52. 
 
 (0) Per Littledale, J., Boddington v. Schlenker, 4 B. & Ad. 752; Pocklington v. 
 Sylvester, reported Chit. Bills, 274, (6th edit.) 
 
 (p) Tate v. Hilbert, 2 Ves. jun. 118. The banker would be justified in paying 
 if, at the time, he had no knowledge of the death, S. 0. In case of non-payment 
 on ground of intervening death of drawer, the holder may have relief in equity 
 against the banker. Rodick v. Gandell, 12 Beav. 325 ; S. C, 1 De G. M. & G. 763. 
 N. B.— The death of the drawer of a bill of exchange has no effect to vary, in any 
 way, the rights and liabilities of the parties to the bill, Billing v. Devaux, 3 M. & 
 Gra. 571, 573, 574; which is another point in which bills of exchange differ from 
 cheques. 
 
 (q) Pocklington v. Sylvester, C. P., Hil. T., 57 Geo. III., reported Chit. Bills, 
 274, (6th edit.) ; Boddington v. Schlenker, 4 B. & Ad. 752. 
 
 (r) Moule v. Brown, 4 Bing. N. C. 268 ; Robson v. Bennett, 2 Taunt. 388.
 
 72 
 
 ,,KANT ON THE LAW OF BAN KINO. 
 
 ing hoars, of the day next after the day, of the delivery of *the 
 " 1 oheque to him, whether he presents it himself or by a servant, 
 .,r through his bankers.(«) There is, of course, aothing to prevent the 
 drawer agreeing with the payee to extend the time for presentment, by 
 his assent, either express ox implied.^) On the other hand, Hie payee, 
 by transmitting a cheque on another bank to his own bankers, has not 
 lese time to present it in than he would have had if he had kept it and 
 U himself; and although the bankers do not send it to the 
 clearing house the same day, the drawer ia not disoharged.(f) 
 
 Notwithstanding what has been Btated above, from the decided au- 
 thorities, founded on oases which have already come before the courts, 
 there can 1"- no doubt that the drawer would not be discharged, if the 
 oould Bhow, that although he had exceeded a reasonable time in 
 iting the cheque, still at ao time between the delivery to him of 
 the cheque and the Btopping of the bank, had the drawer assets in the 
 hanker.-' hands to oover the amount of the oheque; or if he oould show, 
 that from the distance from the bankers' at which he received the oheque, 
 or the lateness of the hour or other circumstances, he oould not have pre- 
 sented the oheque so as to anticipate the stopping of the bank, even 
 though he had actually exceeded the prescribed period of the banking 
 - of the next day, &o. The payee does not lose his right to recover, 
 - been already observed, by the stoppage of the bank within the 
 ribed period, provided his presentment, though subsequent to the 
 stoppage, is within the period. Also, if it could be Bhown, that the hank 
 had Btopped, to the drawer's knowledge, at the time of his delivery to 
 the payee of the oheque, probably no actual presentment need be proved, 
 
 i. r to render the drawer liable. So the drawer would he held liable, 
 if it could be proved that he had reduced his account with the hanker, 
 
 below the amount of the oheque, before the closing of *the hank, 
 I ''" 1 on the day after his delivery of the cheque, or perhaps at any 
 time before presentment.^) 
 
 Whether the plea of the Statute of Limitations would he a good answer 
 
 to an action by the payee against the drawer has never been decided; 
 but it seems thai such defence, in case of a cheque, presented more than 
 six rears after delivery to the payee, might perhaps be taken under the 
 plea of the Btat ate. 
 
 A- - ime guide with respect to presentment of cheques on provincial 
 hanker-, the following case may possibly be usefully detailed. 
 
 A oheque for 1,3742. was given on the 20th of April, in payment for 
 
 tate, to A . at Lutterworth, drawn on the Lutterworth hank. It 
 
 received, by the payee, after banking hours. A. lived three miles 
 
 from Lutterworth, and he handed the cheque to 15., to be carried to 
 
 by, and placed to B.'fi account with the Rugby bank. Hugh) is six 
 miles from Lutterworth. On the arrival of the oheque at Rugby, the 
 hank had closed, but the cheque was deposited, with one of the partners 
 
 , . under v. Burchfield, 7 If. A Gra. L061. 
 (() Boddington v. Bchlenki r, I B. A Ad. 752. 
 
 , Btirl '«.'. v T. R. 129. Bo if he had in thi meantime ordered the 
 do! to pay. v\ it 15 Jur. mi.
 
 CHEQUES. 73 
 
 of that bank, for the night, and in the morning of the 21st of April, it 
 was paid into the bank, and on the same day was transmitted, by post 
 as the most advisable mode, to the Lutterworth bank, with orders to send 
 the amount to London. The Lutterworth bankers received it early on 
 the 22nd, and at half-past one, P. M. on that day, they stopped payment, 
 without having cashed the cheque. A Court of Equity held that the 
 deposit of the cheque, with the Rugby bankers, was a reasonable and 
 proper course, on the part of A., and consequently, that the presentment 
 to the Lutterworth bank, was in time to prevent the cheque from be- 
 coming his cheque, and that the debt was still due to him. The Rugby 
 bankers, it was considered, had the whole of the 22nd to present the 
 cheque in.(«) Here looking to the ^various circumstances, it p*^-? 
 might well be considered that the payee did not receive the L J 
 cheque until the 21st, for he did not receive it, so as to make it available, 
 until that day, and he was entitled to pay it into his bankers, or to send 
 it, with the intention that it should be deposited, in the bank at Rugby, 
 for the night : as it would not there be exposed to many risks, which it 
 might have been liable to, in his own house ; and then the bankers at 
 Rugby had the whole of the next day, after their receipt of it, to present 
 it in. Also, it will be observed, that the case falls within the first of the 
 above rules ; for supposing that the payee did not present the cheque, 
 within the next day, after that on which he received it, still the stoppage 
 of the bank did not occur, in the interval between the receipt of the 
 cheque and the presentment, and consequently the drawer remained 
 liable. This decision may, therefore, be rested on this latter principle, 
 independently of the peculiar circumstances of the case. But probably 
 the proper meaning of the strict rule, as to presentment by the bearer, is 
 that the period of — " the day after the receipt of the cheque by the 
 bearer" — only begins to run from the day, on which it was first possible 
 for him to have presented the cheque; so that if a person receives a 
 cheque too late for presentment to-day, under no circumstances can he 
 have less than the whole of to-morrow and the next day, for presentment; 
 in other words, that "day" means " day available for presentment;" other- 
 wise a person who received a cheque on a Sunday, dated on that day, 
 would only have the whole of Monday, to present it in ; and a person 
 who received a cheque, after banking hours, on a Saturday, must bear 
 the loss, if the banking house did not open on Monday. It would seem 
 reasonable, however, to consider that he first received the cheque, in 
 each case, on Monday before banking hours commenced, and that he had 
 therefore, the whole of Monday and Tuesday to present it in ; and so if 
 any other acknowledged public holiday intervened. To hold otherwise 
 would either materially interfere with the convenience of the system 
 *of payment by cheques, or would lead parties into incurring r ^ r -i 
 the risks of giving and taking post-dated cheques. (cc) •- l -I 
 
 The following is a case of the same class as the one last detailed : — 
 
 («) Bond v. Warden, 1 Coll. Ch. C. 583. 
 
 (z) It has been observed from the bench, that a man who drawn a cheque on a 
 Sunday, usually dates it for the Monday. Per Alderson, B., Watson v. Poulson, 
 15 Jur. 1112.
 
 - j QS ANT ON THE LAW OF BANKING. 
 
 On the 5th April defendant paid to the plaintiffs, who were bankers, 
 a cheque drawn on the Maidstone bank j it was given to the plaintiffs at 
 D6 of the Tunbridge market, and they gave their own bank notes 
 hange; they received it. at Tunbridge, Borne time before the post 
 . on the 5th. Plaintiffs kepi it all the 5th and 6th, but seat it to 
 Maidstone, by the carrier, on the morning of the 7th ; the carrier reached 
 Maidstone at nine o'clock on the 7th, but the Maidstone bank did not 
 open on that day. [f the oheque had been sent by the post, of the 6th, 
 it would have reached Maidstone an hour earlier. At the trial Gibbs, 
 C. J., said, "the plaintiffs cannot reooverj they have been guilty of 
 Uohee : I will nut say that it was not their duty to have sent off the 
 cheque by the poet of the 5th, but the extreme time, up to which they 
 were justified in keeping it, was till the post of the 6th. It does not 
 matter when the carrier arrived; they must suffer for their negli- 
 gence. '\.//) 
 
 The extreme time here mentioned, it will be observed, is limited in 
 accordance with the latter part of the second rule, by which the bearer 
 or holder of the cheque must present, in the banking hours of the day, 
 after that on which, he received it, if there are the ordinary means of 
 doing w. In the above case the judge seems to have declined saying 
 expressly, that, considering the hurry of a market day, the bank was 
 bound to have sent the cheque, by the post of the 5th, (though, on the 
 other hand, he would not lay down that it was not their duty,) so as to 
 have presented on the 6th ; but, as they did not take the means of the 
 post of the 6th, of making what may be called an inchoate presentment 
 *on the day after they received it, the loss arising from the stop- 
 L ° } -I page of the Maidstone bank, in the interval between the receipt 
 and presentment, fell upon them. 
 
 We -hall detail another case of this class. 
 
 The plaintiffs were bankers at Aylesbury. At noon, 13th June, they 
 discounted for the defendant a cheque that he had received in payment, 
 for cattle, from some salesmen in Smithfield, London. It was drawn, 
 in his favour, on Smith and Co., bankers, London. The post for Lon- 
 don left Aylesbury at <i p. m., but plaintiffs did not send off the cheque 
 by that day's post, but by a coach which started at 8 A. M., of the 14th. 
 Th- oheque was inclosed to Praed and Co., bankers, Fleet-street, who 
 received it between three ami Pour o'clock the same day. They presented 
 
 it at Smith's about 1 1 A. M., on the 15th. The answer was, - No effects 
 — must See the drawers." The action was for money hail and received to 
 recover tie- Bum of .'Jim/, paid by the plaintiffs on the cheque to the de- 
 fendant, and they had a verdict. (.-.) Here the defendant, choosing to 
 discount the <dic.jue in the country, wa.s considered to have assented to 
 that being done which was the usual and necessary course to procure 
 payment of the cheque ;(") and it appears to be the invariable usage, in 
 the city of London, for hankers not to present cheques, paid in by their 
 customers, until the day following that on which they are received, un- 
 
 (v) Beaching w. , Holt, N. P. Rep. 315. 
 
 B ickford v. Ridge, 2 Uampb. 537. 
 
 Alexander v. Burchfield, 7 M. k Gra. 1061, 1066
 
 CHEQUES. 75 
 
 less drawn on bankers eastward of Temple Bar, being members of the 
 Clearing House, in which case they are exchanged the same day.(«) 
 
 The following case may properly find a place here, though it is less 
 closely connected with this part of our subject. 
 
 On the 17th November, A. asked B. to give him change for a cheque 
 for 10^. 10s., drawn by C. on W. and Co., bankers, in whose hands C. 
 had funds sufficient to cover the amount. B. gave the change, and 
 kept the cheque till the 21st November, when he paid it into his bankers. 
 ( )n 23rd *November, W. and Co., stopped payment, without .- ^ -. 
 having cashed the cheque. On the evening of that day B. told •- ' J 
 A. that the cheque had been returned, not telling him that W. and Co. 
 had stopped, which A. did not know. A. gave B. bl. and an I. 0. U. 
 for bl. 10s., and took back the cheque. Held, that the suppression of the 
 fact by B. that W. and Co. had stopped, &c, amounted to such a fraud 
 on A. as entitled him to recover the 5/. as money had and received, and 
 that to entitle him to do so it was not necessary that he should have 
 given or tendered back the cheque to B., Lord Denman, C. J., saying 
 the cheque was not returned, in the ordinary sense of the word.(i) 
 
 The Presentment must in general be made, not only within banking 
 hours, but at the banking-house, of the bankers, on whom the cheque is 
 drawn. But the institution called the Clearing House, and the practice 
 of using it, which is now very general, though not universal, among the 
 bankers of the metropolis, has introduced a small divergence from the 
 rule, which it may be worth while to notice. 
 
 The Clearing Rouse is a large room fitted with drawers : each banker, 
 using the house, has one of these, marked with his name or firm. In 
 the morning, and at half-past three o'clock in the afternoon of each week 
 day, a clerk from each banker, using the house, attends, bringing with 
 him the cheques on other banks that have been paid into his bank since 
 last clearing ; these he deposits in the drawers of the respective banks on 
 which they are drawn ; he then credits their accounts separately, with 
 the different amounts of the cheques they have placed in hjs drawer, as 
 against his bank. Balances are then struck from all the accounts, and 
 the claims between the various banks transferred from one to another, 
 until they are so wound up and mutually cancelled, that each clerk has 
 only to settle, in cash, with two or three *others, and thus, by r^co -i 
 means of comparatively small sums in money, the balances are L l J 
 immediately paid. "When cheques are paid into a bank after clearing- 
 time, (c) they are sent to the respective houses on which they are drawn, 
 when, if the bankers intend to pay them, they are " marked," which is 
 understood, as an engagement that they will be passed or paid, at the 
 Clearing House next day,(c?) and that they have priority before the 
 cheques which come in, on that day.(e) 
 
 (a) Alexander v. Burchfield, 7 M. & Gra. 1061, 1066. 
 
 (b) Billing v. Ries, Car. & M. 26. (c) See 4 B. & Ad. 754. 
 
 (d) M'Culloch, Commerc. Diet. voc. Clearing House; see 4 B. & Ad. 753 ; War- 
 wick v.Rogers, 5 M. & Gra. 348; Robarts v. Tucker, 16 Q. B. 570 ; Bellamy v. 
 Majoribanks, 7 Exch. 389. 
 
 (e) Robson v. Bennett, 2 Taunt. 388 ; Stevens v. Hill, 5 Esp. 247.
 
 — , , i.KANT ON THE LAW OF BANKING. 
 
 I'm this praotioe, as above detailed, it is obvious that a large portion 
 of thf cheques which are paid into banks in London by customers, in 
 order that the amounts may be carried to their accounts as money, are 
 never presented by such banker-, as bearers, at the banking bouses, on 
 which thtv arc drawn ; but that, instead, is established the practice of 
 placing them in the drawers, at the Clearing Bouse, belonging to the 
 latter bank-. In other words, they arc presented to the clerks <>f the 
 latter, who attend at the Clearing House j and such presentment has 
 been held to be Bumoient.(/) 
 
 The following case illustrates both branches of the practice. On 
 September 11, between one and tun o'clock, the plaintiff received from 
 the defendant a cheque on the defendant's bankers, Bloxam & Co.j the 
 plaintiff lodged the cheque at bis bankers', Messrs. Harrison, a few 
 minutes after four, aud they presented it between live and six to 
 Blozam & Co., who marked it for payment. The practice was proved to 
 i above stated. On the L2th Harrison's clerk took the cheque to 
 the Clearing House, but no one attended on behalf of Bloxam &, Co., 
 who bad stopped payment at nine that morning. The cheque was there- 
 fore treated as dishonoured. The plaintiff, in going with the cheque to 
 Harrison's, passed Bloxam's banking house. The court held the marking 
 
 to be similar to the accepting *of a bill ; for it was an admission 
 L l J of assets, rendering the banker liable to pay, and the same thing 
 as if the banker had written on the cheque, " We will pay this to-morrow 
 at the Clearing House." Thus, the presenting it at that place is equi- 
 valent to presenting it at the banking house, and there was consequently 
 no laches in the plaintiff or his banker, and the plaintiff had judgment 
 -t the defendant. (7) It will be observed that the court term the 
 marking "to be similar to the accepting of a bill, &O." Now, however, 
 the Btatute 1 & 2 Geo. IV. c. 78, s. 2, passed subsequently to the above 
 decision, enacts, that no acceptance of any inland bill of exchange shall 
 ifficient to charge any person, unless such acceptance he, in writing, 
 on such bill. At the date of the above decision the law had been held 
 to be, that a verbal acceptance of a bill of exchange was binding. (A) 
 Hence that decision must not be taken as extending, at the present day, 
 t" make any marking an acceptance according to the requirements of 
 tin- statute of Geo. IV.; such marking only, as amounts to a writing, will 
 
 Signature is not essential to acceptance of a bill under that 
 
 Btatute ; but if the word ,!<;■,/,/<,/ lie written on the bill, it is a question 
 for the jury whether the word was intended as a definitive acceptance, or 
 
 whether it was to be subsequently completed by signature.(i) This haa 
 
 been ruled with respect to a bill of exchange. And, probably, if it were 
 
 proved that a banker had deliberately marked a cheque by the word 
 
 • pted," OT 6V( n 1>\ the letter A., or by his initials, or by the initials 
 
 (/) Reynolds v. Ohettle, ■: Campb. 596. 
 
 Robson \. Bennett, 2 Taunt. 388. That cancelling is similar to acceptance. 
 
 hut compare p. 66. 
 Lumlej \. Palmer, Stra. LOOOj Rep. temp. Hardw. 74, S. C. 
 Dofani v. 1 • Mm., a. k. 90 : per Parke, B., Gorlett v. Conway, 5 If. 
 
 k W.
 
 CHEQUES. 77 
 
 of the names composing the firm, and it were shown to be the usage or 
 practice of the firm to pay cheques so marked, the bearer could recover 
 against the banker, who, after such marking, with the knowledge of the 
 bearer, refused to pay. 
 
 If the bearer banks with the same bankers on whom the ^ ^hq -. 
 *cheque is drawn, no promise to pay can be implied from the L J 
 bankers receiving the cheque without observation, and keeping it till the 
 following day; for prim & facie they will be taken to have received it as 
 agents to the bearer, (/r) At least they will be so, where they had no 
 funds of drawer's, in their hands, at the time. 
 
 But in a case where A. and B. severally kept accounts, at the same 
 bank, and A. pays in a cheque, in his favour, drawn by B., who was, at 
 the time, considerably indebted to the bank, and the bankers received 
 the cheque without observation, and on the same day received moneys 
 on account of B., and paid cheques drawn by him, and on the next day 
 received moneys on his account, but in each case appropriated those 
 moneys to other claims upon B., and they had written to A. saying that 
 they had not carried the cheque to his credit, but would retain it, by 
 them, in the hope of its being provided for, and promised B. that they 
 would pay it when they had funds ; it was held, A. might recover from 
 the bankers the amount of the cheque, in an action for money had and 
 received, (A the bankers having had funds of B's in their hands subse- 
 quently to the receipt of the cheque, sufficient to have paid it, but for 
 their appropriation of them to other claims on him. 
 
 The cancelling above spoken of, seems to have been understood by 
 the witnesses in the different cases, and by the courts, as meaning mark- 
 ing as for payment; but by statute 55 Geo. III. c. 184, s. 19, it is im- 
 perative on every banker who pays a cheque, to cancel it, under a penalty 
 of 50^. ; this sort of cancelling means crossing with lines. 
 
 The following case may properly close this part of the subject: — 
 
 Three customers of bank A. draw three several cheques *upon r *(>->-, 
 it, and pay them away to creditors ; all the three having, at the L J 
 time, considerably overdrawn their respective accounts. These cheques 
 came into the hands of another bank B., who mark them as paid, (in 
 other words cancel them,) and enter the amounts to the debit of the 
 drawers severally. B. remit to A. the cheques, inclosed in a printed 
 circular, desiring the amount of them to be paid to the London corres- 
 pondents of B. However, notwithstanding this circular, the practice 
 between the two banks is, to pay one another's cheques, so far as circum- 
 stances permit, by remittances of notes of the bankers sending the 
 cheques, directed to these bankers, the understanding being, however, 
 that the cheques should be paid on the day on which they are received, 
 or on the day following, either by such remittances, or by remittances 
 according to the circular. A. gave B. credit on their books for the 
 amount of the cheques, but stopped payment three days after receiving 
 
 (k) Boyd v. Emmerson, 2 A. & E. 184; see Kilsby v. Williams, 5 B. & A. 816; 
 Clark v. Adair, cor. Lord Mansfield, cited 4 T. R. 343 ; Stevens v. Hill, 5 Esq. 247 '; 
 De Bernales v. Fuller, 14 East, 590, n. (a), 598. 
 
 (I) Kilsby v. Williams, 5 B. & A. 815.
 
 78 GRANT ON THE LAW OF BANKING. 
 
 tin in, and without havibg made any payment or remittance in reepeet 
 
 of them, knowing, at the time, of receiving the cheques, that their bank* 
 
 rupt v was inevitable. The dates were as follows: — On 14th July the 
 
 cheques were Bent to A., who got them on the L5th (as it seems in the 
 
 morning;) through that day and the L6th, they went on doing business 
 
 is usual; they never opened after the 16th. It seemed indisputable, 
 
 that if the largest of the three oheques had been presented on that day, 
 
 for payment over the oounter, they would have paid it, 
 
 ise the drawer had given them security, sufficient to cover all he 
 
 was previously in their debt, ji/h.< the amount of that cheque. The 
 
 of the firm A. obtain payment, from the customers, of the full 
 
 ■mount of the cheques. Held, that B. were entitled to payment, in 
 
 full, of the amount) nut of the bankrupts' estate, and that A. ought 
 either t<> have remitted tin' money on the L5th or 16th to B., or to the 
 I. i .n correspondents of 13., or have returned the cheques to B.(»i) 
 r *•.)-! *Stak Cheqtu — It i.- well settled, and maybe regarded as 
 
 L "J a fixed rule, that the indorsee of an ordinary bill, or note, takes 
 it with the equities that attach to it, in the hands of the person, from 
 whom he received it ; but whether the bearer of a cheque is affected by 
 the same rule, seems to have been laid down, with some variation, at 
 different times. 
 
 In a case where a cheque for 50/. was casually lost by the payee, and 
 it was tendered, five days after its date, in payment for goods at a shop, 
 and tin- shopkeeper took it and gave change out of it, and next day pre- 
 sented the cheque and received cash fur it, and a verdict was found for 
 the payee, in an action for money had and received against the shop- 
 keeper; the court treated cheques as, on the same touting in this respect, 
 a- hill- and notes, holding that the person tendering the cheque, not 
 having any title, could not transfer a title, (n) But in a later case, where 
 the cheque had been fraudulently obtained from the drawer, and a 
 trading firm, to whom it was handed, six days after date, had given cash 
 for it, and afterward- presented it and received the amount at the 
 banker's, the drawer jailed to recover against the trading firm, in an 
 action for money had ami received, and it was said not to be true, as a 
 matter of law. that a party taking a cheque overdue has it with the 
 lame title, ami no other, a- the person from whom he receives it, though 
 the rule, it was allowed, was certainly so with respect to bills of exchange 
 ami promissory ootes./o) 
 
 The rule i- -aid. in a Work of great authority. ( /-) to be generally 
 
 applicable to oheques on bankers, but that it nil] not apply to oheques 
 which appear to have been issued long after their date. There i- an 
 obvious distinction betwei n a bill or note having a fixed day for pay- 
 
 (»! • Cole, 3 M. D. & D. 39, 197, per Knight Bruce, V. C. 
 
 Down v. Hailing, A B. i or. Abbott, 0. .J.. Bayley, Holroyd, Js. 
 
 Rothschild I I II, per Lord Tenterden, 0. J., Little- 
 dale, J. 
 
 Bills, cap. v. p. 3, citing Boehm \. Sterling, 7 T. R. 423, where the 
 
 : eh.-. |ucs, that i 1 ties are the Bame, as with regard 
 to billa of exchan
 
 CHEQUES. 79 
 
 snent, which is taken *when over due, and a cheque found in - ^ -. 
 circulation long after its date; in the first case, suspicion of L -» 
 necessity attaches; in the latter, suspicion may or may not justly arise, 
 according to circumstances; whether it does, is for the jury to say; 
 the staleness of a cheque may be a ground on which they may infer 
 fraud ; but there does not seem to be any rule of law which points out, 
 any given degree of staleness, as evidence conclusive on that point, (g) 
 
 So gross negligence may be considered, by the jury, to be shown in 
 the circumstances under which a person takes a stale cheque as cash ; 
 viz. negligence of the duty, which those circumstances imposed upon 
 him, of inquiring into the connection between the bearer and the par- 
 ties named on the cheque, and if he has been guilty of such negligence, . 
 they may consider him to have been a fraudulent taker ; but no rule of 
 law, it would appear, lays down, with respect to such a cheque, what 
 has been formerly laid down, in the case of a party taking a promissory 
 note after the date at which it was made payable in the body of it ; that 
 the taking it, after it was due, is a suspicious circumstance, from which 
 the law infers that the taker had knowledge, of some infirmity in the 
 title of the holder, and therefore takes it, subject to all the objections to 
 which it was liable, in the hands of the person from whom he took it.(r) 
 On the contrary, it is now definitively settled, that if a man take honestly 
 an instrument made payable to bearer, he has a good title to it, with 
 whatever degree of negligence he may have acted that is consistent with 
 the idea of his honesty; his negligence may have been gross; the jury 
 may thence infer his fraud ; thus the proposition becomes altered, and 
 of course the fraudulent taker of a cheque acquires no title. Still gross 
 negligence only would not be held, by a court, at the present .- ^ . -. 
 *day, to be a sufficient answer, where the taker had given consi- L J 
 deration. Gross negligence may be evidence of mala fides, but it is not 
 the same thing, (s) 
 
 Still there may be such gross negligence as to render bankers liable, 
 without any imputation of fraud or mala fides; thus, where a customer's 
 eheque was presented, which had evidently been torn in pieces, and 
 pasted together again, the bankers having paid the cheque, were held 
 liable to the drawer. Here the negligence consisted, apparently, in want 
 of inquiry, to see whether the drawer had not revoked the cheque, which 
 its appearance indicated he had done. (2) 
 
 The rules and practice with respect to the limits of time, beyond 
 which, in certain cases, presentment of a cheque ought not to be made, 
 have been stated ; it remains to observe,* on the other hand, that 
 bankers are not justified in paying a cheque which is presented to them, 
 be/ore the day on which it purports to have been drawn, or bears date, 
 
 (q) See Dehors v. Harriott, 1 Show. 164; Brown v. Davies, 3 T. R. 80; Taylor 
 v. Mather, id. 83, n.; Sturtevant v. Forde, 4 Sc. N. R. 670 ; Banks v. Colwell, cited 
 3 T. R. 81 ; per Parke, B., 9 M. & W. 17, 18. 
 
 M Amory v. Mereweather, 2 B. & C. 578. 
 
 (a) Goodman v. Harvey, 4 A. & E. 870 ; Uther v. Rich, 10 A. & E. 784 ; Byles 
 on Bills, 126, (6th edit.) These cases seem to overrule Snow v. Peacock, 2 Car. & 
 P. 221. 
 
 (t) Scholey v. Ramsbottom, 2 Campb. 485. 
 
 January, 1857. — 7
 
 - 
 
 QBAN1 OH THE LAW OF BANKING. 
 
 loing they render themselves liable to the penalty of 1007., 
 sed by the Stamp Act, as above Btated,(u) for paying a post-dated 
 cheque; but besides, in circumstances, they may be liable to pay ovei 
 the amount of tin- cheque, ex. gra., if it have been lost by the 
 . the banker must repay him, it being out of the usual course of 
 banking business, to cash oheques, before the day of the date ;(.<■) at least 
 •!. banker would be liable to do so, if the payee could show that he 
 the cheque, not knowing thai it was post dated; otherwise, being 
 Ldden by the Stamp Act (passed Bince the decision last referred to, 
 whioh dates a. d. 177<'>,) under a penalty, to take Buch a cheque know- 
 ingly, be would *not be able to reeover. The banker, however, 
 I ie besides, prevented by the express words of the statute, from 
 allowed the amount of the cheque in account with the drawer, &c 
 • I . the other band do days of grace are allowed on presentment of a 
 cheque.(y) 
 
 Cheques drawn, by the Treasury, on the Bank of England, are not 
 payable after three o'clock r. M.(z) and they usually bear a memoran- 
 dum, to this effect, printed at the top of the paper on which they are 
 draw n. 
 
 A cheque of the ordinary kind is strictly payable, or at least intended 
 
 to be paid, immediately on demand; and this appears to be universally 
 
 . with the exception of cheques drawn on bankers in the city of 
 
 L radon, where the usage of trade establishes the rule, that a cheque may 
 
 bained by the banker, on whom it is drawn, until five o'clock p. >i. 
 
 of the day on which it is presented, and if there be no assets, it may 
 
 then be returned to the person presenting it, and that too, although it 
 
 have been, in the first instance, by mistake cancelled, as intended to be 
 
 honoured. Thus, where plaintiff paid into the bank of Y. & Co. a cheque 
 
 drawn upon defendant's house, and Y.'s clerk took it to the Clearing 
 
 B - to be paid, and put it into defendant's drawer, and received it back 
 
 five o'clock cancelled, but with memorandum, cancelled by mis- 
 
 i\ written under, and it was proved that several cheques, drawn by 
 
 person, had been paid, on that day, but that wdien the cheque 
 
 in question came ill, the clerk who received it immediately cancelled it, 
 
 thinking it was to be paid, but finding, in a few minutes, that no more 
 
 ..*' such cheques were to 1"- paid, wrote the memorandum above men- 
 
 d. and it was returned to V.'s clerk accordingly. Held that, not- 
 
 standing the cancelling, the defendant, according to tin- usage proved 
 
 trial, had until five o'clock to return it, and that, having 
 
 I SO returned it, this amounted to a refusal to pay. (A) This case 
 
 (u) Supra, p. IT. 
 
 Da Silva v. Fuller. MS.. Ghitt. Hill-. 148, (6th edit.,) cited per Parke, B., 
 
 Culverwell, 7 If. .v W. it- : Bee Marin-, 31, (4th edit.) Quaere, liow the 
 
 n tonaible to the pay 1 1 ■ Bayley, Bills, 
 
 edit.) The doctrine applies where the bearer is a mere agent of the 
 
 i wlio has countermanded. 
 
 '!.. erv. Whitaii. 8 B. .v 0. 409; Button v. Toomer, 7 B. & C. 416. 
 
 Will. IV. e. 16, -. 21. 
 
 ( -■ ■ per Bnller, J., Leftley \. Mill-, i T. It. 175. 
 
 Fernandey v. Glynn, 1 Campb. i: r >- n.j Bee Turner v. Mead, Stra. 116; Bay- 
 . Bank of England, Bl
 
 CHEQUES. 81 
 
 shows that cancelling does not operate like acceptance, for it was further 
 said, in the case, that had it been a bill of exchauge sent for acceptance 
 and accepted, no change of circumstances could have altered that fact.M 
 
 Also knowledge of the bankruptcy or stoppage, of the banker, on 
 whom the cheque is drawn, seems to be a dispensation with present- 
 ment,^/) and as a banker paying a cheque without a stamp, where a 
 stamp is requisite, is expressly prohibited from being allowed the amount 
 in account with the drawer, and is also made liable to a penalty, it would 
 seem that the payee, who inadvertently takes such a cheque, might re- 
 cover against the drawer (without showing that he had presented) on the 
 original consideration ; for it would be idle to require him to show, as 
 the condition of his recovering on the consideration, that he had pre- 
 sented the cheque to a person who was forbidden by law to cash, he him- 
 self being also forbidden to receive the cash for it. 
 
 When proceeding on the cheque itself the payee may sue the drawer, 
 either in assumpsit or debt,(e) and in general it is necessary to show 
 notice, to defendant, of nonpayment by the bankers,(/) but such want 
 of notice is excused by stating and proving, that the bankers had no 
 assets of the defendant's, and that defendant had sustained no damage 
 for want of notice ;{ij\ the latter, however, of these allegations seems not 
 to be essential//*) but this is not quite clear, *for there are de- r *p~-i 
 cisions which point both ways ;(i) it is therefore safer to retain it. L J 
 
 Bankruptcy. — Bankruptcy of the drawer has been already intimated 
 to be a good ground of refusal, by the bankers, to honour his cheques. 
 In fact bankers stand, in no different position, as regards the laws of 
 bankruptcy, from any other of the subjects; and, therefore, they are 
 liable, like all other persons who pay money to a bankrupt, after know- 
 ledge of an act of bankruptcy, to be obliged to pay it over again, to the 
 assignees. Hence, if a banker, after knowledge of an act of bankruptcy 
 committed by a customer, nevertheless honours his cheques, the banker 
 will be liable to repay the money to the bankrupt's. assignees; for know- 
 ing of the act of bankruptcy, the bankers have imputed to them the know- 
 ledge of the legal consequence of the act, which is, to render the party 
 no longer a free agent, and deprive him of the right to dispose of his 
 property ;(&) they are taken to know that they were not bound to pay his 
 cheques in such circumstances, and that, by doing so, they were aiding 
 in defrauding the creditors. 
 
 The only remedy of the assignees seems to be the above, against the 
 bankers ; they cannot sue the creditor to whom the cheque was delivered 
 
 (c) Fernandey v. Glynn, 1 Campb. 426, n. In this case, as has been observed, 
 Cox v. Troy, 5 B. & A. 479, per Holroyd, J., the cheque was not in reality can- 
 celled by mistake, but with the intention to pay it : but circumstances leading the 
 bankers to change their minds, the drawer only was liable. 
 
 (d) Camidge v. Allenby, 6 B. & C. 373, as explained, Robson v. Oliver, 10 Q. B. 
 704. 
 
 (e) Simpkin v. Pothecary, 5 Exch. 253. 
 
 (/) Treacher v. Hinton, 4 B. & A. 413. (g) Kemble v. Mills, 9 Dowl. 446. 
 
 (h) Carter v. Flower, 16 M. & W. 750 ; see 9 Q. B. 52. 
 
 (i) Trueman v. Fenton, 5 D. & L. 28 ; Jones v. Broadhurst, 9 C. B. 190. 
 
 (k) Vernon v. Hankey, 2 T. R. 119.
 
 GEANT OS THE LAW OF BANKING. 
 
 :in,l the money paid on it. he not knowing of any act of bankruptcy. (/) 
 Nor is it a valid excuse, for the banker, that he pays to a creditor who 
 does lift know of the aet of bankruptcy, bo whom, therefore, a direct 
 payment by the trader would stand good.(m) At all events, if the 
 assignees recover from the bankers the amount of a cheque, paid to a 
 creditor of the trader, in the above circumstances, they cannot also re- 
 cover it from the creditor, *though the creditor, when he received 
 I the money, knew of the act of bankruptcy, (n) 
 
 Crossed Cheques. — In the metropolis, and in many other places, it is 
 a common practice for a person drawing a cheque, to write across the 
 cheque the name of a banker, ordinarily the banker of the party in whose 
 favour it is drawn. The into ntion of this is, to advertize the bankers upon 
 whom the cheque is drawn, thai tiny are to cash the cinque only to or in 
 favour of the hanker, whose name BO appears written across the instru- 
 ment ; its legal effect we shall discover presently ; the reason for adopting 
 the precaution is to prevent its being paid to a wrongful bearer, ex. gra., 
 mie who has found it, or got possession of it by fraud, &c, or felony. 
 
 If, however, a cheque so crossed is handed on to another person as 
 bearer, there is no objection it seems to his erasing the name of the 
 b anker that he finds upon it, provided he substitutes the name of another 
 banker.(o) 
 
 Again, it is not unusual to write across the cheque and Co., 
 
 leaving a blank space on the left hand side of the word and, in order 
 that it may be filled with the name of the banker, through whom the 
 payee, or anyone to whom he may pass the cheque, intends that the 
 cheque Bhould be presented ; and when bo crossed, as in the former case, 
 the bankers on whom the cheque is drawn have been in the habit, in 
 London and other places, of refusing cash for the cheque, if it were pre- 
 sented otherwise than through the banker : and so if the blank were not 
 filled up, the practice has been, that it was only paid when presented 
 througb >"//" banker. 
 
 Qtering upon the inquiry of what is the effect, as regards the 
 I negotiability, of a cheque which has been thus treated, it will be de- 
 sirable to Btate that such crossing *has not the effect of affecting 
 L '" J the bankers whose name is written across it, and into whose bank 
 it \b paid, with knowledge that the Sum mentioned in it, is the money of the 
 pay'-, in all circumstances. Thus, when I '. drew a (die.nn' on his banker, 
 payable to A. and 1>.. assignees of P., and crossed it with the name of a 
 banker, with whom they had an account as assignees: 15., who had a 
 private account with the same bankers, paid in the cheque to that 
 account ; the court held, that the bankers were justified in applying it 
 to that account, because, according to the usage of trade and of bankers, 
 the crossing with the name of the payee's bankers, was no notification 
 
 to them that tin money W8S the money of the payee.(p) 
 
 Kathewv. Bherwell, 2 Taunt 439 ; B. 0., l Rose, lis. This case shows 
 th.it ;i paid cheque i- of do value. 
 
 Vernon \. Hankey, 2 T. II. 1 17. 
 
 m v. Hankey, 2 T. R. 287. Stewart v. Lee, M. & Malk. 168 
 
 • . . i.. e, M. ft tfalk. 168.
 
 CHEQUES. 83 
 
 It had been very solemnly decided that the crossing of a cheque 
 payable to bearer with the name of a banker, whether made by the 
 drawer or the bearer, does not restrict the negotiability of the cheque to 
 such banker or to a banker only ; but in law it operates as a mere 
 memorandum, that the holder is to present it for payment though some 
 banker. Such crossing being made for the protection of the owner of 
 the cheque, the payment of a crossed cheque, otherwise than through 
 a banker, would be strong evidence of negligence, in case the person 
 presenting proved not to be the lawful owner of it. If it was doubly 
 crossed, that afforded no additional evidence against the banker, in an 
 action by the drawer for money lent to hiru.(g') 
 
 There was, it was held, no obligation on a banker on whom a cheque 
 is drawn, arising either from usage or otherwise, (in the absence of a 
 special usage or a special agreement to that effect,) to pay a cheque only 
 through the banker, with whose name they find it crossed in their 
 customer's handwriting ; consequently they were not liable to an action 
 at the suit of the drawer, as for a violation of duty, if they pay it other- 
 wise, although the drawer may have been in ^consequence of .- ^-q -, 
 such payment by them, subject to a loss, at least in a case, where L J 
 the drawer gives opportunity to the fraud upon him, by making the 
 cheque payable to a person who was never intended to take the money 
 for himself, but was in truth a mere servant, to carry the cheque to the 
 bank, with whose name the drawer had crossed the cheque, the payee 
 having struck out that name, and crossed the cheque with the names of 
 his own bankers, to whom the cheque was cashed, and from whom he 
 obtained the proceeds. (r) 
 
 In such an action by the drawer, the jury had found that there was 
 such a usage of bankers in the metropolis, as gave rise to a duty of the 
 above nature, viz., a duty not to pay through other hands than into and 
 through the hands of the bankers, whose name was written across the 
 cheque by the drawer, but the court, on the ground that the evidence 
 given at the trial, in support of the alleged usage, was not satisfactory, 
 set aside the verdict for the plaintiff, and ordered a new trial. (s) The 
 question is of so much importance to bankers, and persons who draw or 
 receive cheques upon bankers, that it seems desirable to state at some 
 length the reasoning of the court in delivering judgment. It should be 
 observed, that the drawer had crossed the cheque with the words 
 u Bank of England for the account of the Accountant- General." 
 
 "Payment by cheques, (the court observed,) has now almost entirely 
 superseded all other modes of payment in large, and is in very general 
 use in smaller money transactions ; and the practice of crossing them 
 with the names of bankers, the effect of which is the question in the 
 present case, is also in very general use, and occurs in very many instances 
 
 (q) Bellamy v. Majoribanks, 7 Excb. 389. 
 
 (r) Bellamy v. Majoribanks, 7 Excb. 389. In that case the bank to whom the 
 
 drawer intended that the cheque should be carried by the person named as payee 
 
 • was the Bank of England, whose habit was proved to be, and to be well known 
 
 among the London Bankers, to reject all payments by cheques not drawn upon the 
 
 Bank of England itself. The drawer seems to have been aware of their rule. 
 
 (*) Bellamy v. Majoribanks, 7 Exch. 389.
 
 v j Q BANT ON THE LA W I" B A X K I R G. 
 
 r*-i -i eTe, y day, n0 * u,l l v '" London, but in Beveral *other parts of 
 i- ' J the kingdom, [t therefor* — ms to us to be of great importance 
 that the effect of these oroasingi should be rightly understood." 
 
 • • The plaintiffs first oontended that the erossing of the cheque to the 
 • Hank of England/ in the manner in which it was crossed, absolutely 
 restricted the negotiability of the instrument, and rendered it payable to 
 the Hank of England alone, and even to the account mentioned, namely, 
 •the Accountant-General,' ami to no other person; and that a binding 
 :i or usage to that effect was proved. We arc of opinion no such 
 nr custom was proved. Without going the length of saying that 
 there was no evidence to go to the jury of the existence of such a custom, 
 we think that the weight of evidence was against it. A custom, such 
 as that alleged in the first oount, would be binding and obligatory on all 
 Dgaged in a certain trade, because long and universally acted 
 upon by all persons in such trade, who may, therefore, reasonably be 
 presumed t<> have made their contracts upon the faith of it. The custom 
 alleged could only be proved by a long, well-known, acknowledged and 
 universal usage and practice among bankers to act in accordance with it. 
 Bo far from this being the case, many witnesses called from the different 
 London banking houses by the plaintiffs, and all called by the defend- 
 ant-, denied its existence. That there was any special usage between 
 the plaintiffs and Messrs. Coutts, which would, of course, govern their 
 ictions, was never once suggested. The banking business in London 
 is not in very many hands, and all the witnesses on both sides were per- 
 sons of unimpeachable integrity and veracity, and it seems to us quite 
 absurd to suppose that there could be any custom creating such a duty 
 as that alleged in the first count, and absolute and binding by reason of 
 long and universal usage on all the bankers in the metropolis, without 
 those gentlemen being well acquainted with it. The verdict was, there- 
 fore, npon this point, unsupported by the evidence." 
 .-*_.-,-, *" We are also of opinion that such a custom, if proved to have 
 ~ -I existed in fact, would be incapable of being supported in point 
 of law. The crossing a cheque could not operate as an indorsement to 
 B banker, whose name is used, because it was not written with any intent 
 to transfer the property in the cheque to him, and it wants the essential 
 part of an indorsement, the delivery of the instrument to the indorsee. 
 And we think that it cannot be well supposed that the usage is to be 
 considered a< equivalent to the direction by the holder or drawer to the 
 drawee, not to pay to the bearer, but to a particular person only — for 
 then the cheque would be altered in a manner which would take it out 
 ol the exemption of the Stamp Act, 53 Geo. III. c. 184, sohed. 1, which 
 
 applies to cheques payable to bearer Only, and the bankers, to whom it 
 
 addressed, could not be bound to pay to the person named. We 
 
 berefore, of opinion that the crossing the cheque, with the name of 
 
 a bank.-r, could not have the effect of restricting its negotiability to such 
 
 a banker only. To hold it to have this effect, would be, to render the 
 
 instrument no longer a cheque/' 
 
 •■ * the ( fleet of crossing a cheque is not. in our opinion, to restrain 
 ability of the cheque, it will be lit to consider what it probably
 
 CHEQUES. 85 
 
 is, that the attention of the jury may be directed to that question on the 
 new trial. It was agreed, on all hands, that the practice of Grossing 
 cheques originated at the Clearing House ; the clerks of the different 
 bankers which do business there, having been accustomed to write 
 across the cheques the names of their employers, so as to enable the 
 Clearing House clerks to make up the account. It was quite clear that 
 this had nothing whatever to do with the restriction of the negotiability, 
 for at the time when this was done, the cheques were in the course of 
 payment there, on presentation for payment, and all their negotiability 
 was at an end. The establishment of the Clearing House is compara- 
 tively modern, and was within the memory of several of the witnesses. 
 It afterwards became a common ^practice to cross cheques which .- ^ -. 
 were not intended to go through the Clearing House at all, with "- 
 
 the names of a banker, or with the words " & Co.," leaving the 
 
 rest in blank, and a custom or usage has certainly sprung up in regard 
 to this also. All the witnesses agreed as to the fact of the existence of 
 such a custom, and we think that the great preponderance of evidence 
 on both sides tended to show the custom to be that which is reported to 
 have been stated by some of the jury in the case of Stewart v. Lee,(t) 
 namely, that, when a cheque is crossed, bankers generally refuse to pay 
 it to any one except a banker, and if they do pay it to a person not a 
 banker, they consider that they do it at their peril, in the event of the 
 party to whom the payment is made not being entitled to receive it ; 
 that the object is to secure the payment, not to any particular banker, 
 but to a banker, in order that it may be easily traced, for whose use the 
 money was received ; and that it was not intended thereby at all to 
 restrict the circulation or negotiability of the cheque, but merely to 
 compel the holder to present it through a quarter of known respectability 
 and credit. We are strongly inclined to think, on a full inquiry, the 
 usage will turn out to be no more than this ; and, considering the custom 
 in this point of view, the crossing is a mere memorandum on the face 
 of the cheque, and forms no part of the instrument itself, and in no way 
 alters its effect.(w) There can be no doubt that such a usage is highly 
 beneficial to the public." 
 
 The law was held to be, that, however general be the practice of crossing 
 
 cheques with the form " & Co.," or with the name of a banker, the 
 
 negotiability of a cheque payable to bearer was not thereby affected, so 
 that any one who took such cheque, and bona fide gave value for it, was 
 entitled to the money he got for it, through his bankers, from the bankers 
 on whom it was drawn. Hence, if a person who *had received ,- ^ . -. 
 a cheque, crossed as above, in payment of debt, sent it, by his L J 
 clerk, to pay into his bankers', but the clerk, instead of doing so, got the 
 amount from A. B., then, if A. B. acts bona fide, he is not liable to re- 
 pay to the clerk's master the sum he gets, through his bankers, for the 
 cheque, (x) 
 
 (t) Moo. & M. 158. 
 
 (u) See Fitch J. Jones, 24 L. J., Q. B. 293, where effect of a memorandum on a 
 promissory note was considered. 
 
 (x) Carlon v. Ireland, 25 L. J., Q. B. 113. The origin of crossing cheques is
 
 ..LANT ON THE L.WV OF BANKING. 
 
 Booh baying been adjudged to be die law on this subject, a statu* 
 has been lately passed to altei it ; we have Btated the law as it was, be- 
 cause it is always indispensable to the clear understanding of a new role, 
 ceding an old one, to be accurately informed of the terms ut* the old 
 
 one The statute(y) is as follows : Whereas doubts have arisen as to 
 
 bligations of bankers with respect to cross-written drafts : and where- 
 as it would conduce to the ease of commerce, the security of property, 
 and tli«' prevention of crime, if drawers or holders of drafts on bankers, 
 payable to bearer, or to order on demand, were enabled effectually to di- 
 rect the payment of the same, to be made only, to or through some 
 banker: be it therefore enacted, &c. : 
 
 • •I. In every case where a draft on any hanker, made payable to bearer 
 or to order on demand, bears across its face an addition, in written or 
 stamped letters, of tie' name of any hanker, or of the words 'and com- 
 pany,' in full or abbreviated, either of such additions shall have the 
 of a direction to tie' bankers, upon whom such draft is made, that 
 t! l( ' .-aine is to be paid only, to or through some banker, and the same 
 -hall he payable only, to or through some banker. 
 
 •• II. In the construction of this act, the word 'banker' shall include 
 any person or persons, or corporation, or joint stock, or* other company, 
 acting as a hanker or bankers." 
 
 <:,-/,,,/ Cheque. — Let us next consider what is the proper mode of 
 disposing of a cheque after it has been cashed. 
 
 Fir-t. as has been pointed out, the banker must cancel it; *but 
 
 J is the hanker, or the drawer, entitled to the possession of it? We 
 
 seen that when a cheque is dishonoured, it is "returned" in the 
 
 technical phrase, with "no effects/' or some words to that effect, marked 
 
 upon it :(-. ) and this is the import of the word returned, as understood»in 
 
 this connection, among hankers and traders. When the banker hands 
 
 to tie- customer tie' cheque he has drawn, after it has been cashed, 
 
 this restoration i> not known as a « return" of the cheque. In fact, how- 
 such restoration always takes place; the bankers' duty being to re- 
 the cheque, after cashing it, to the customer who has drawn it upon 
 
 him. A banker has no more right to a cheque, which he has honoured, 
 
 than the payee of a hill of exchange has to the hill when paid. It i.-. 
 
 always considered that the cheque is the property of the drawer when 
 
 paid,(o) and before tie' cheque is handed hack to the drawer it. is con- 
 
 ■ I t.. ]•<■ iii lii.- possession j the banker, /or this purpose, being bis 
 •. tie- possession of the banker is therefore his possession ;(&) and 
 
 fore where the drawer is one of the parties to an action, a notice to 
 
 en the practice of the clerks nt tie- clearing house to write on the 
 eheqne th<- name of tin- bank that deposited it in tie- dray er at tin' clearing hoosi 
 !li-t. Banking, 2 L6. 
 • • .v 20 v., i. c. 25, (Roy. \--. 23rd June, l«5G.) 
 Warwick \ M. .v Gra. 348, 3 I!'. 
 
 Per Wilde, 0. J., 2 Den. Cr. Cas. 2 1 : Beg. v. Watts, \\ lure it was shown to 
 tin 1- . .j civn'.- banking-house to return the cheques to the customers 
 
 I'!, j:'. Bee ease where they were returned quarterly, Bodenham v. Pur- 
 B a \ 41, 42. 
 • Ml. .at. c. J.. Partridge K<. £; M. ICG.
 
 CHEQUES. 87 
 
 produce, is all that is necessary, to get the paid cheque before the 
 court, (c) 
 
 This is the rule with respect to all cheques drawn in the usual mode ; 
 that is, drawn by a customer, who has deposited funds in the bankers' 
 hands, and draws against such funds. 
 
 There may, however, be instances, but it probably may be alleged to 
 be seldom that they occur in practice, where a cheque is drawn, with the 
 intention that it should remain in the bankers' hands, after he has paid 
 out the amount of it, as a kind of security for the repayment, on which he 
 may be able, if necessary, to proceed against the customer. Such a case 
 is the following : Two brothers, A. and B., applied to *a banker r-*^ -, 
 for a loan of 500?. ; the banker agreed to lend the money, pro- >- -• 
 vided a third brother, C, would join them in giviug security for the ad- 
 vance; C. agrees to this; and, in pursuance of such arrangement, A., B. 
 aud C. sign a cheque in this form, "Pay selves or bearer £500. A. B. 
 C," and on delivery of this cheque to the bank, 500?. was paid out to 
 them. C. dies, leaving A. and B. his executors. The banker sues A. 
 and B. as such executors, for the amount due to him, in respect of prin- 
 cipal and interest, on the cheque. The result is judgment by default, 
 and execution, under which 28?. 5s. is levied on the goods of C The 
 widow of C, shortly after his death, deposited with the banker, the title 
 deeds of certain real estate of C, as security for the amount due on the 
 cheque. A. and B. were both in distressed circumstances at this time, 
 and possessed of no property whatever, and unable to pay what was due. 
 Then a bill is filed in equity, by the banker, for an account of what was 
 due, for principal and interest, against A. and B., praying that an account 
 of the personal estate of C. might be taken, and if that should be found 
 insufficient, &c, then that the real estate, or a competent part of it, should 
 be sold, and the debt paid out of the proceeds. For the banker it was 
 contended that the liability created by borrowing the 500?. was joint and 
 several, and consequently that the defendants, as executors, were liable 
 to pay the sum due ; but the court held that the banker was not entitled 
 to the relief claimed, and that such a cheque only showed a joint debt, 
 aud not a joint and several debt, if the case was put on the footing of the 
 cheque itself, without reference to the consideration whether C. were a 
 surety or not. The court also expressed a clear opinion that if an action 
 had been brought in the lifetime of C. ; against him alone, or against 
 either A. or B., it could not have been maintained, without breaking- 
 down the distinction between a joint debt and a joint and several debt.(fZ) 
 The *banker was obviously ill-advised ; he takes a security which, r .,._- -, 
 as against the party to whom he gives credit, is practically una- L -» 
 vailable ; he ought to have taken a joint and several bond, or a joint and 
 several promissory note, (e\ or C.'s guarantee, on either of which he might 
 
 (c) Burton v. Payne, 2 Car. & P. 520. 
 
 (d) Other v. Iveson, 24 L. J., Ch. 654, (Kindersley, V. C.;) S. C, 3 Drew. 177. 
 The position in Thorpe v. Jackson, 2 Y. & C. 553, that a joint loan creates, in 
 equity, a joint and several debt, was denied in Jones v. Beach, 2 De G. M. & G. 
 886, (Lords Justices, assisted by Maule, J.,) and also by Kindersley, V. C, in the 
 case stated above. 
 
 See Pease v. Hirst, 10 B. & C. 122 ; Manley v. Boycott, 22 L. J., Q. B. 265,
 
 £g GRANT OH THE LAW OF BANKING. 
 
 Ikiw : I judgment, which (the proper Bteps haying been taken,) 
 
 would have bound the real property of C, and bo the principal, int. rest 
 and oostB might have been realised. 
 
 It i served that when a joint and Beveral instrument is taken, 
 
 by hanker-, a- a security fur a loan to a customer, who is one of the 
 parties to the instrument, the other or others executing it as sureties, it 
 may he well (ami probably the practice 18 often so) that the hankers 
 should expressly warn the latter parties, that they will be treated and 
 considered, in all respects, as principals, in regard to liability on the 
 instruments/) Such a course i- desirable, because it would preclude 
 any prospect, in case the bankers were driven to sue such surety on the 
 instrument, of a successful defence being made, by him, on the ground 
 that he delivered the instrument to them, as surety merely, and that 
 they agreed to receive it. from him, as surety merely. Without such 
 precaution there are circumstances in which such an answer to an action 
 might, perhaps, be available ;(/) if the precaution is taken no circum- 
 stances can he imagined, in which it is at all probable, that such defence 
 could succeed. (/) 
 
 Reverting, then, to the subject of the right of the drawer to have sent 
 back to him. by the hankers, all cheques drawn by him, on them, which 
 they have paid, we come to inquire into the reason and object of the 
 rule. Now the reason of the rule is immediately seen, when we come to 
 r +- , -, consider that *the cheque, hearing the tokens of having been 
 L '' -I cashed, by the hanker, affords evidence, when produced, of the 
 money, for which it is drawn, having been paid, according to the require- 
 ment of the drawer, by the drawee; it i-. therefore, the drawer'.- proof, 
 or voucher, of the payment of the debt, due to the payee of the cheque. 
 "When the drawer draws, on his own account, against his own moneys 
 deposited with the bankers, the cheque, in its cancelled Btate, is his 
 evidence, against the payee, that the debt has been discharged. When 
 the drawer draws on a fund, in the hanker'-, which he is specially em- 
 powered, in respect of some office, or situation which he holds, to draw 
 upon, it i- hi- voucher, as against his constituents, to whom the fund 
 belongs, that their debt to the payee has been duly discharged. In 
 either case equally, the cheque, or the piece of paper, is the property of 
 the drawer. Tim.- in the latter case, if a person steals the cashed cheque 
 he may he indicted for the larceny of the piece of paper, and it is proper 
 and essentia] to lay the property in the drawer of the cheque, as shown 
 on the face of the instrument itself; and this is so though the drawers 
 of the cheque are the directors of an unincorporated company, and the 
 money drawn against is the money of the body of shareholders of the 
 company, and the person indicted is one of the shareholders and filled a 
 situation under the com]. any, which made him the servant of the 
 director.-. (yj There the defendant had, probably, forged the cheque, 
 
 wbicfa case ihowi that it is no defence, by a party to a joint aim Beveral promis- 
 sory note, m show, that he signed merely as Burety, and without consideration for 
 
 making tie- at 
 
 Si i pi r enriam, 22 L. -I.. Q. B. 208. 
 (<j) Beg. v. Watt.-, 2 Den. Cro. 0. 1 1. 22.
 
 CHEQUES. 89 
 
 and had appropriated the proceeds to his own use, and from that circum- 
 stance, and as the cheque had already heen cashed when he stole it, the 
 court held he could not be convicted, on a count charging the larceny of 
 " an order for the payment of money," which is the proper mode of de- 
 scribing a cheque in indictments. 
 
 A creditor, it has been observed, may always object to a cheque when 
 offered as payment ; but the decisions have gone further than that, for if 
 a creditor is offered in payment *of his debt, either cash or a ^ ^ -. 
 cheque upon a banker, from the agent of the debtor, who offers L J 
 the payment, and the creditor prefers the cheque and it is dishonoured, 
 this, of itself, does not discharge the debtor, although the agent fails 
 with a balance of the principal's, in his hands, to a larger amount.(/t) 
 
 Where, however, a creditor takes a cheque drawn by an agent of the 
 debtor, on his (the agent's) own bankers, in payment of a debt, due to 
 the creditor, from the debtor, (that he does so being unknown to the 
 debtor,) and also gives a receipt to the agent, as for the money due from 
 the principal, in consequence of which the principal deals differently 
 with the agent, on the faith of such receipt, the principal is discharged, 
 although the cheque is afterwards dishonoured, the agent becoming in- 
 solvent. It is otherwise, however, if the principal do not show that he 
 was injured, by means of such false voucher and the omission of the cre- 
 ditor to inform him of the truth in due time.(^) 
 
 In this case we may perceive the presence of the principle, that where 
 there is a loss and the question arises on which of two innocent parties 
 is it to fall, the answer is, on that one of the two whose conduct has 
 contributed to bring about the loss : but, in order to make the principle 
 applicable, obviously it must first be shown, that a loss has actually 
 occurred, and this would not be shown, in the above case, unless the 
 principal proved that, on the agent's passing his accounts, he had had 
 credit given him, as for the payment of this debt, on the ground of the 
 receipt proving that it was discharged. If it were shown, however, it 
 would manifestly be unjust that the principal should be obliged to pay 
 the money over again. 
 
 Cheques as Evidence. — Where the plaintiff was tenant, and the de- 
 fendant land steward, of a proprietor of land, and *the defendant .- ^ -. 
 had received, from a railway company, a sum of money, to be L -" 
 handed over to the plaintiff, as compensation for injury done to his tem- 
 porary interest, as tenant, by the company's works, and the defendant 
 had drawn a cheque, for 15?., upon his bankers, in favour of the plaintiff, 
 which the plaintiff had presented to the bankers, and got the cash for, 
 from them ; but there was no evidence that the cheque had been de- 
 livered, by the defendant, to the plaintiff: held, notwithstanding this, 
 that the cheque, upon being produced by the defendant, in a cancelled 
 state, was evidence of the payment to the plaintiff of the 15?. (&) Here, 
 it will be observed, there was independent evidence to establish the fact 
 of money being due, from the defendant, to the plaintiff : without a con- 
 
 (h) Everett v. Collins, 2 Campb. 515. 
 
 (t) Wyatt v. Marquis of Hertford, 3 East, 147. 
 
 (k) Mountford v. Harper, 16 M. & W. 825.
 
 GRANT ON THE LAW uF BANKING. 
 
 sideration for delivering the oheque, and the circumstances undei which 
 it i* delivered, arc shown, the proof of the delivery and payment of a 
 cheque, to a party, is not sufficient to prove a debtj(l) so that to produce 
 a oheque, drawn by the defendant, is not an admissible mode of enforc- 
 ing against him an alleged debt, due to the plaintiff. But the produc- 
 E a cancelled cheque, after it has been shown aliunde, that there 
 was due from the drawer a debt to the plaintiff, before the date of the 
 delivery to him of the oheque drawn in his favour, is always evidence 
 of payment, without explicitly tracing the oheque from the drawer to 
 the ]■ 
 
 Another instance of the value of cancelled cheques, as evidence, is the 
 following: — On a certain day A. had a claim, toa certain amount, on B., 
 
 ('. aiel I'., partners. Many months afterward-. II. BignS a cheque for a 
 larger sum, in the name of himself and ('. and D., which was proved to 
 have passed through A/a hands, and to have been appropriated by him. 
 In an action by A/s executors, against the partners, for the original 
 
 r* fii -\ °hdm, it was held that the cheque *vrs& primd facii evidence of 
 
 payment ', hut there being other circumstances, from which a 
 
 loan i'<>r its amount might be inferred, it was left to the jury, whether 
 
 the cheque represented a loan from B. alone, or from the partnership. (m\ 
 
 It may be convenient to add here some further instances in which 
 cheques are available in evidence. 
 
 Many bankers are in the habit of supplying their customers with 
 printed forms, in blank, of cheques, which is convenient for the custo- 
 mers, as saving time and trouble, and is also useful for both partii 
 increasing the difficulty of forging or alterim: cheques. It is also not 
 unusual, upon a change in the firm of a banking house, which adopts this 
 practice, to alter the printed form of the cheque accordingly, andtosup- 
 ply to their customers the altered form, in order that it may be used by 
 them, for the future, instead of the old one. Such alteration in the name 
 and Btyle of the firm, when made in the printed form supplied, has been 
 held, at Nisi Prius, to constitute a sufficient notification of the change, 
 to a customer to whom the altered form has been delivered, and who has 
 uaed it in drawing chequee.(n) 
 
 The Bank of England require their customers to use the engraved 
 forms of cheques, which they supply, otherwise they refuse the 
 chequ< 
 
 A oheque has been shown, upon the authority of various decisions, to 
 Imiasible, when cancelled, as evidence of payment, the existence of 
 tin- debt, ami other oircumstancea relating to the giving of the cheque, 
 being prei iously shown ; but it i< not, therefore, to be concluded that the 
 drawing of a oheque in favour of a creditor by the debtor, and the de- 
 livery ofil i" the farmer, operate p, ,- .-,. &g payment, for a cheque is not 
 money. (y,j oor IS it a legal tender; the creditor may always object to it 
 
 (/) Auhcrt v. Walsh, j Taunt ... Bandilands, Gow. It. 15, as cor- 
 
 • I. per Alderson, B., L6 If. h W. 
 ■ il v. Bmith, <■ Car. A P 
 
 I ampb. 117. (o) See >; <";ir. k P. 730. 
 
 irtbrup, 1 B. & C 0.
 
 CHEQUES. 91 
 
 as payment, and if he has *done so, when it was delivered to r- ^^ -. 
 him, he may sue for the original debt, although he retains the L "-I 
 cheque. (5) 
 
 It lias, on various occasions, been made a question, at what period an 
 attorney's bill of costs and charges was paid, in consequence of the en- 
 actment G & 7 Vict. c. 73, s. 21, restricting applications to tax such 
 bills, to be made within twelve months after payment; and where bills 
 of exchange or promissory notes having some time to run have been 
 given in payment, the twelve months have been held to commence from 
 the time when the bills or notes were honoured, not from the time they 
 were given, unless they were treated, by the parties, as payment when 
 given :(>•) and the same would, in all probability, be held in case of a 
 cheque, if ever the delay of the payee to present it for payment should 
 have made the interval, between the delivery of the cheque to him and 
 the cashing it, wide enough to make it worth while to raise the question. 
 But, as every consideration that can be imagined would, in such case, 
 operate to accelerate the presentment of the cheque, it is very unlikely 
 that in practice the case should arise. 
 
 "With respect to the Statute of Limitations, it has been held, that when 
 a bill of exchange or promissory note has been given, in part payment of 
 a debt, in such circumstances as to raise the implication of a promise to 
 pay the balance, the defence of the Statute of Limitations is answered, as 
 from the time of such delivery of the negotiable security, whatever after- 
 wards becomes of it.(.s) The question in the case deciding the above 
 was, whether a bill of exchange, drawn by the plaintiff, and accepted by 
 the defendant in part payment of an antecedent debt, was sufficient to 
 take the case out of the statute, and the court determined that it was, 
 and upon principles and reasoning which seem to apply equally, to part 
 ^payment, by a cheque, although a cheque is not properly a ne- r ^^q -1 
 gotiable security,^) but is always understood to be an order for L -I 
 speedy, if not an immediate, payment of inoney.(tt) 
 
 "Where, however, a purchaser, at a sale, gives a cheque for the amount 
 of the deposit required by the conditions of sale, he may resist an action, 
 on the cheque, on any grounds which would have enabled him to re- 
 cover, at law, the deposit, if made in money, (v) 
 
 Again, to establish a petitioning creditor's debt, it is not enough to 
 show that a cheque was drawn by him, in favour of the trader, before 
 the bankruptcy ; it must be proved that the amount of the cheque was 
 paid by the petitioning creditor's bankers. (jA It seems, upon principles 
 recognized in the courts of equity, that the payee, or bearer, of a cheque 
 is the equitable assignee of a chose in action ; that is, of the debt due, 
 by the banker, to the drawer, and therefore that he might prove against 
 
 (q) Hough v. May, 4 A. & E. 954. 
 
 (r) Saver v. Wagstaff, 5 Beav. 415 ; In re Harries, 13 M. & W. 3 ; see In re Peach, 
 2 D. & L. 36. 
 
 (a) Turney v. Dodwell, 23 L. J., Q. B. 137. 
 
 It) See 13 M. & W. 64. («) Smith v. Ferrand, 1 B. & C. 19. 
 
 (v) Per Parke, B., in Mills v. Oddy, 6 Car. & P. 735 ; see Spiller v. Westlake, 2 
 B. & Ad. 155. 
 
 (x) Bleasby v. Crossley, 3 Bing. 430.
 
 GRANT ON THE LAW OF BANKING. 
 
 (he creditor in respect of the cheque, if unpaid on presentation, the 
 banker having funds.(y) And ae the men drawing of a oheque, on his 
 bankers, by A. in favour of B., is oot per Be evidence of a loan of so 
 much from A. to lb, neither is a oheque drawn by B. on his bankers in 
 favour of A., without proof that it was presented and paid, evidence of 
 debt, fox money lenl by A. to B.(a) 
 
 Also, as we haw Been, the ordinary relation of customer and banker, 
 is that of creditor and debtor respectively, consequently, where a banker 
 is the petitioning creditor, the production of cancelled cheques, drawn 
 on him by the trader, *before the bankruptcy, is prima facie evi- 
 L ■" J denoe of a payment of a debt, due from the banker, to the custo- 
 aot of a loan made by the banker to him, nor can such effect of this 
 evidence be countervailed, and the existence of a loan established, so as 
 to constitute a petitioning creditor's debt, without the clearest proof that 
 the trader's account, with the bank, was overdrawn at the time the 
 cheques were honoured.(a) It does not appear to have been contended 
 in this case, that the circumstance of the banker having retained, in his 
 own hands, these cashed cheques, contrary to the practice in the case of 
 cheques drawn in ordinary circumstances, and the trader's submitting to 
 bankers doing so, in contravention of what would have been his 
 right, if the cheques had been drawn in the ordinary course, was evi- 
 dence to show a loan from the banker. The banker, in that case, would 
 have a right to retain the cheques, because to part with them would be, 
 to put beyond his control, the only conclusive evidence he might have 
 
 of the Loan, beyond the entries, in his own 1 ks corresponding with the 
 
 cheques, which would be perhaps "pen to the objection, that to let them 
 in would be, to allow the making of evidence in a man's own favour. 
 
 In all oases Of loans to Customers, BOme security, independent of 
 cheques of the character of those just mentioned, ought, if possible, to 
 to be taken by the banker. 
 
 Bankruptcy. — Again, with respect to the operation of a cheque as 
 constituting an act of bankruptcy, where a firm, having formed the reso- 
 lution to Btop payments, on the same day draws cheques on their bank- 
 i rs, in favour of certain creditors, (one of whom was their solicitor, who 
 had not senl in his bill,) without any pressure, and giving these creditors 
 
 time to carry their cheques to the bank, and gi t oash for them, in about 
 
 half an hour after drawing and delivering *the cheques, Bends 
 L J word to the bankers, to pay oo more cheques, &o. on account of 
 
 the firm; it w;i- held, in equity, that this was the transfer of a debt, due 
 
 from the bankers, to the linn; that is, that it was a transfer of money, 
 and BO WBS within 6 Geo. IV. 0. L6, B. 8, wlii< h makes any fraudulent 
 
 transfer, or delivery, of any of the trader's goods and chattels, with in- 
 
 (,,) Bee Etodick v. GandelL, 12 Bear. 325 ; 1 De (;., M. & (;. 7C3. See Bylcson 
 
 Bills, 17, and note- (g). To give an action al Law the debtor most consent to the 
 
 anient. Ti G • L. h B, 115; Warwick i i M. tc Gra. 
 
 v. Davis, 1 M. .v Bol 
 ■ In r v. Manning, 12 M. <v \V. 579, where the cheques were retained by 
 inker, M in Other v. ipra, p. 1<J, OS the banker's evidences of a 
 
 loan.
 
 CHEQUES. 93 
 
 tent to defeat or delay creditors, an act of bankruptcy ; for that money 
 might well be considered to come within the meaning of "goods" in 
 that section ;(&) and such a transaction would probably be considered, at 
 the present day, to be a fraudulent preference, under the circumstances, 
 and not to be protected by the 133rd section of the Bankrupt Act of 
 1849, but to fall within the proviso of that section, and to be invalid as 
 " a payment." 
 
 Insolvency. — The like would also, it seems probable, be held to be 
 the operation of a cheque, under the Insolvent Debtors' Act, 1 & 2 
 Vict. c. 110, s. 59, namely, that it was a transfer of money or property 
 within the terms of that enactment, if the party were found to be in 
 insolvent circumstances, &c. at the time of drawing and delivering the 
 cheque, (c) 
 
 The following transaction was held, in the circumstances, not to 
 amount to a fraudulent preference. 
 
 A. & Co. are bankers, in an embarrassed condition, and about to stop 
 payment. B., who is father-in-law of A., has a private account with the 
 bank ; he is also one of the managing directors of an assurance company, 
 who also bank with A. & Co. 
 
 A. mentions the embarrassed state of the bank to B.'s son, telling 
 him the bank would shortly stop payment; and it *was then i-^op-i 
 agreed, between them, that B.'s private balance, amounting to L J 
 about 2,000?. should be drawn out ; but A. desired that B. would not 
 give any information, of the matter, to a certain shareholder of the com- 
 pany, as he, A., did not wish the directors to know anything about it. 
 In consequence of this information, B.'s private account was drawn out 
 the following day, which was Monday. In the evening of that day A. 
 saw B., and informed him of the state of the house, and that they could 
 not go on beyond Wednesday then next. B. in consequence filled up a 
 cheque, for the amount of the company's account, (about 8,000?.) and 
 sent his son, with it, to another of the directors, by whom it was signed, 
 and on the following morning presented and cashed. On the Wednesday 
 A. & Co. stopped payment, and became bankrupts. In an action, by 
 their assignees, against the secretary of the assurance company, to 
 recover the above sum, as paid by way of fraudulent preference, the jury 
 on the above facts, found that it never was the intention of the bank- 
 rupts, (none of whom, but A., knew of the communication,) that B. 
 should draw out the company's balance, but only his own ; and found a 
 verdict for the defendant; and the court held there was no fraudulent 
 preference, and nothing more than an ordinary payment on a cheque. (c?) 
 
 In this case the fraudulent preference seems, in truth, to have con- 
 sisted in the communication to B. ; and if the assignees had sued B., 
 
 (b) Ex parte Simpson, De G., Bank Rep. 9, per Knight Bruce, V. C, differing 
 from a dictum of Tindal, C. J., in the previous case of Bevan v. Nunn, 9 Bing. 112, 
 to the effect that payment of a debt, to a creditor, by way of preference, is not an 
 act of bankruptcy under 6 Geo. IV. c. 16, s. 3. This opinion, it appears, that the 
 chief justice still retained, at the time of the decision of Ex parte Simpson. See 
 De G., Bank Rep. 27 ; and see Anon., 2 Show. 133. 
 
 (c) See Ogden v. Stone, 11 M. & M. 494. 
 
 (d) Belcher v. Jones, 2 M. & W. 258.
 
 [>[ SB A ST OB THE LAW OF BANKING. 
 
 they would probably have recovered the 2,000?., which he drew out in 
 P Mich information; but the curt considered it to be 
 carrying the doctrine of fraudulent preference too far. to lav down that. 
 notwithstanding a man's declared intention contradicting any design of 
 fraudulent preference, if, in consequence of any act of his, any other 
 ;i obtains a preference, //at will render the transaction fraudulent: 
 r ^ -,_ -. they considered that *no previous decisions warranted them in so 
 L ' J deciding. Perhaps, however, it is to be regretted that a new 
 trial was not granted in that case, bo that it might have been seen 
 whether a second jury would have been convinced, that a banker who 
 communicates to the son qf a director of a company, that the bank is 
 about to stop, and then tells the Father the Bame, really intends the 
 matter to remain a secret from the directors, although he may declare 
 he dee-. The case appears to open the way to indirect modes of effect- 
 ing fraudulent preferences, by Beeming to pronounce that nothing but a 
 direct transaction between the bankrupt and the creditor preferred, can 
 form such a preference. 
 
 It is well known that the legal aspect of a preference is not altered, 
 by the fact, that the creditor preferred may have the strongest claims 
 upon the gratitude of the firm. Thus, where a person on tin- 6th July, 
 to win 'in a bank already owed 1,300/., paid in a sum of 7,000/. to his 
 account, which he had borrowed in order td help them, telling them he 
 Bhould nut draw the money out until the Friday following; then, at five 
 i mii the morning of the 9th, one of the linn encloses two promis- 
 Borynotes,his own separate property, to the amount of L7,2022. 18s. b/., 
 to the creditor, and absconds to France, before the letter reaches it< des- 
 tination, and is made bankrupt ; the assignees were held entitled to 
 r the notes in trov< r, the transaction being a manifest fraudulent 
 
 and a void transaction for want of the creditor's assent. 
 and because an act of bankruptcy intervened before the notes reached 
 him. The absconding partner owed more, to the linn, than the amount 
 
 of the t'.Vo Hot,-. 
 
 Another class of ca» a, very materially affecting the interests of bankers, 
 with reference to the proof of debts under bankruptcy proceedings, ai 
 on the question, of the banker's knowledge, of an act of bankruptcy, 
 previously committed, to his cashing a cheque of the bankrupt. 
 , r>~m A bankrupt, after an act of bankruptcy, of which the bankers 
 I J have notice, though that is not the act of bankruptcy on which 
 the Hat was founded, draws, upon them, various cheques, in favour of 
 d creditor-, which cheques are cashed bj the bankers; thej cannot 
 prove for the amounts Of them.fY) 
 
 Tie ■ id « notice of an act of bankruptcy/' it must be observed, 
 
 has been con-true. 1 to mean a general notice of an accomplished act of 
 
 Barman v. Fisher, Cowp. 1 17. 
 
 i:-. parte Sharp, 3 If. D. & D. 490; Bee L2 .v L3 Vict. c. 106, b. 166; Bam- 
 . Burrell, 2 B. & P. 1. Bi parte Sharp BhowB the law, in thi ri pect, to be 
 different from what had been formerly decided on similar facts. Ej parte Bow- 
 I m. .v. Sel. it:-: S. i'.. 2 Ro e, 261 Ex parte Birkett, per Ld. Bldon - 
 M. a W. -Ml.
 
 CHEQUES. 95 
 
 bankruptcy ;(#) but the act must be complete; notice that something is 
 going on, out of which perhaps an act of bankruptcy may result, is not 
 sufficient ;(Ji\ and notice of an act of bankruptcy given to the Bank of 
 England, in London, is notice to their branch banks, at all events, from 
 the time, when information of it might be transmitted to the branches. (?) 
 The time, here mentioned, probably means, time in the ordinary course 
 of post ; at least, before the invention of electric telegraphs, it has been 
 held, that in cases of notice of dishonour, and similar cases, it was 
 enough to transmit the information in course of post ; and at present it 
 remains undecided, the question never having arisen before the courts, 
 whether the bank would be bound to send word by telegraph. 
 
 The case, first mentioned, of a trader drawing cheques on his bankers, 
 after an act of bankruptcy, was, where his account was overdrawn, at 
 the time ; and it has been, before mentioned, that if bankers, knowing 
 of an act of bankruptcy of a customer having funds in their hands, 
 honour his cheques, they are liable to the assignees of the customer, on 
 his becoming bankrupt, for the amount they have paid out *to .- ^q -, 
 such orders ;(&) it was even held formerly, though such would L c J 
 not probably be now held, that bankers paying a customer's cheques, 
 after an act of bankruptcy on his part, not known to them, would be 
 liable, to the assignees, for the amount. (?) 
 
 Bankers stopping Payment. — As to the operation of a cheque drawn 
 after stoppage of payment by bankers, where A. and B., partners, had a 
 joint account with bankers ; A. had also a separate account. On 22nd 
 April the bankers announce a suspension of payment, and that they 
 could not answer any more cheques. At that time A. and B. were in- 
 debted, on the joint account, 333?. to the bank, but the bank was 
 indebted to A., on his separate account, 478?. After this no cash pay- 
 ments were made by the bank. On 25th May, A. assigns the balance of 
 478?., due to him, to the joint account of A. and B., and gives a written 
 notice to the bankers of such assignment, and A. and B. jointly require 
 the bankers to place such balance to their joint account. This was not 
 complied with. On the 30th May an act of bankruptcy was committed 
 by the bankers, on which the fiat issued on the 31st. A court of chancery 
 considered A. and B. to have no right to set off the two debts, their con- 
 duct showing, that though they knew they could not obtain payment of 
 a cheque, they had attempted to have the full benefit of a cheque. (m) 
 
 Perhaps, however, the transfer of a cheque drawn, not by but in favour 
 of. the trader, into the possession of a creditor, might come under a 
 different construction, for a cheque, as we have seen before, (n) is a chose 
 in action ; and it has been held, on the highest authority, that the 
 words » goods and chattels" will not pass a chose in action, when used 
 
 {g) Udall v. Walton, 14 M. & W. 254. 
 
 (A) Conway v. Nail, 1 C. B. 643 ; explained 14 M. & W. 258, 259. 
 
 \i) Willis v. Bank of England, 4 A. & E. 21. 
 
 \k) See Supra, pp. 66, 67. Vernon v. Hankey, 2 T. R. 113. 
 
 \l) Hammersley v. Purling, 3 Ves. 757. 
 
 (m) Watts v. Christie, 11 Beav. 546. 
 
 (n) Moore v. Barthrup, 2 Dowl. & R. 25. 
 
 January, 1857. — 8
 
 <.KANT <»N Til E 1..W, 01 BANKING 
 
 ._ in *a will ; and as a will i> to have a libera] construction, to 
 
 -I earn- into effect the intention of the testator, and the bankrupt 
 
 : Dal in their operation, and therefore to be construed Btrictly, 
 
 ms, & fortiori } that those words, when found there, cannot be taken 
 
 i i extend to cheques of this kind , 
 
 So, has lx en solemnly decided that, Btock and money in the funds 
 • pass under the wc.rd- bona el cataUa felonumJp) nor has the 
 grantee the debts due to the felons,($) and consequently not cheques, 
 which are orders for the payment of debts ; hut the grantee, under such 
 •. ! .:.- been held to take the ready money of the felon.fr) 
 Cheques as Money. — By the oaageol trade cheques have been, in some 
 considered as money. For instance, by the usage of banking, if a 
 hill was sent up. to a London banker, from a country correspondent, to 
 ated for payment, the London hanker was thought to be justified 
 cheque in payment for it. though the cheque be dishon- 
 oured, atur he has given up the bill ;(*) but it may be doubted whether 
 this usage would be considered, at the present day, to be a reasonable 
 us . . 30 as to protect the London banker. 
 Another ease in which a cheque has been regarded as payment is the 
 wing. A cheque given for stock sold is lost hy the vendor in truing 
 hi me : the purchaser is immediately apprised of this, hut refuses to pay 
 tl.i price of the stock without an indi mnity. Four months after this the 
 , , . -. bankers on whom the cheque was drawn fail, with sufficient 
 J nmiiey of the drawer's in their hands to cover it. Held that, 
 t these circumstances, an action would nut lie hy the vendor fur the 
 price. (<) 
 
 li a cheque ha- been given as the consideration <d an annuity, it might, 
 
 formerly, be Btatedas money, provided the cash lor it bad been received, 
 
 h\ thi- grantor, previous to the execution of the deed;(u) hut, if not 
 
 • ■I previously, the cheque must have been Bet forth.(x) 
 
 Cheques belonging to a person, against whose effects any writ of fieri 
 
 facias ma\ have been Bued out of anj superior or inferior court, may now 
 
 and must he seized bj tin Bheriff, hy virtue of 1 & 2 Vict. e. 110, b. 12, 
 
 hut the Btatute makes a distinction between cheques, ami money or hank 
 
 •h ot which it empowers ami orders the Bheriff to Beise,) in this 
 
 - that monej and bank notes shall be given up to the 
 
 judgmenl creditor, hut the sheriff is to hold cheques, &c., as a security, 
 
 lor the Mini direct) d bj the wril to he levied, ami is enabled kosue upon 
 
 them, ami the payment hy the part] liable on Buch cheque, with or 
 
 C pman v. Hart, 1 V( " \. Moore,] Bro. C C. 127; Bee 
 
 - • ..I..,,. L2 Rep. 1. 
 
 Wildman v. Wildman, 9 v. .117. 
 ~ ton : R. 276; -• • Com. D O.j Vin. Abr. Prerog. 
 
 I.. . . pL 1. 
 on., 2 Show. 133 j l Win-. Bannd. 275, i Vin. Abr. 450: Anon., 
 
 j Hawk. P. r. 
 Russell v. Hankey, 6 T. R. 12 ; Ridley v. Blackett, Peak Cas. 62. 
 
 (i Bevan v. Hill, 2 Campb 381. Ex parte Michel], 2 East, li 
 
 ii irris, ■) T. R, ;:•;. and dow 
 • bed.
 
 CHEQUE s. 97 
 
 without suit, or the recovery and levying execution against the party so 
 liable, is to discharge such party from his liability on the cheque, and 
 then the sheriff is to pay over the money, so recovered, to the judgment 
 creditor, &c, provided that no sheriff shall be bound to sue upon such 
 cheque, unless the judgment creditor shall enter into an indemnity bond 
 with two sureties, &c. This enactment has been amended, and the 
 powers given by it somewhat enlarged, by 3 & 4 Vict. c. 82, s. 1. 
 
 The following decisions, under the combined operation of these statutes 
 may be usefully brought to the reader's attention. 
 
 A judgment creditor, finding that a sum of money was about to be 
 paid out, in a cause in Chancery, to his debtor, ^applied to the r ,,.„„ -, 
 court to order that the sheriff might be at liberty to seize, in the L L J J 
 hands of the accountant-general in Chancery, a cheque by means of 
 which the sum was to be paid out ; it was held that the cheque was 
 liable, by virtue of the above statute, to seizure ; it was also held that, 
 inasmuch as the cheque was in the hands of the accountant-general of 
 the court, the application was proper;^) that is, that it would not have 
 been proper, for the sheriff, to seize, without being authorized by an 
 order of the court. 
 
 In another case, subsequent to this, it was said that a cheque of the 
 accountant-general in favour of A., but not delivered out, is not A.'s 
 property, so as to be liable to seizure ; and leave to seize was refused, 
 the case being, it was said, distinguishable from the last-mentioned case, 
 by the circumstance that the cheque had been delivered out, by the 
 accountant-general, in the former case, which was not so in the latter ; 
 a stop order was accordingly granted, restraining the accountant-gene- 
 ral, from parting with the cheque, out of his possession. (z) It may be 
 observed, with respect to the distinction taken between the two cases, 
 that, in the first case, the cheque had been delivered out, but had been 
 replaced in the accountant-general's hands, so that, the property in it 
 having passed to the creditor, the accountant-general held it as agent 
 for the creditor, and the possession of the agent being the possession of 
 the principal, it might be seized, in the hands of the one, on the same 
 grounds, that it might be seized, in the hands of the other. 
 
 A cheque may have been treated, throughout a transaction as money, 
 by all the parties, in which case none of them can turn round and insist 
 upon any right that he might have derived, out of the cheque, considered 
 as an order for the payment of money. Thus, if, in such circumstances, 
 a cheque were deposited, with a person, to abide a certain event, r ^qo -i 
 it *would be no breach of the stakeholder's duty, to get the >- -■ 
 cheque cashed, before the occurrence of the event. (a\ 
 
 Where there has been any fraud, on the party giving the cheque, then, 
 although the creditor, at the time, took the cheque as payment, it will 
 not be considered as money ; thus, if A. gives B., in payment for goods, 
 
 {y) Watts v. Jefferies, 3 Mac. & G. 422. 
 
 (z) Courtoy v. Vincent, 15 Beav. 486. 
 
 (a) Wilkinson v. Godefroy, 9 A. & E. 536. Semble, keeping the cheque until a 
 reasonable time for presenting and getting cask for it has elapsed, is evidence that 
 the holder so treats it. Bishop v. Chitty. Stra. 1195.
 
 \ N I 1 1 X 1 II I 1. A W 1 1 P 1! A M K INh. 
 
 i cheque which A. has do reasonable ground bo expect will be paid, no 
 rty in the goods paaaee to A..(6), and ]>. may sue iu trover, or he 
 m:tv affirm the contract, and rae for the price of the goods. (i) 
 
 A oheque drawn by A., in favour of 15. as a gift, cannot, according 
 bo tin- general principle that there must be a consideration for an under- 
 taking aot under seal, be enforced by B. in an action against A. Nor 
 • •:in a cheque be bhe subject of a donatio mortis causd, at least unless 
 the ] ' ; t cashed, before the drawer's death, or after his death, 
 
 but before tin- banker has ootice of the death. (c) Negotiable instruments, 
 which are commonly treated as money, may constitute, as money may, a 
 donatio mo,-//* causd, hut cheques, not being so treated, cannot be 
 so considered in bhis reap « t ; moreover, a cheque being a mere chose in 
 action f cannot he a ih, n <iti<, mortis causd fur that reason. (</) It is to be 
 red also, a- essential to the validity of a <l<>n<it<<, mortis causd, that 
 tin- money, or the subject of the gift shall be actually handed over, at 
 the time, at which the alleged donation is stated to have been made ;M 
 but a cheque is not money, nor is the piece of paper the subject of 
 r* <U 1 *^ 1C " l ^> so tnat ' m eitber view, a cheque fails to conform to 
 L ' J this requirement of a good donatio mortis causd.lf\ 
 
 When a cheque is handed to a person, on a condition, and the money 
 t by him, for the cheque, but the condition is not performed, the 
 . may be recovered back by the drawer. (o\ 
 
 A banker has no right to debit the customer, who draws the cheque, 
 from the date at which it is drawn; he is bound to make the entry, as of 
 tin' date, when the cheque was cashed. (A) 
 
 When a cheque is dishonoured and bhe payee sues the drawer upon it, 
 and recovers, the cheque may he, it appears, referred to bhe master t. 
 compute principal and interest due,(i) as may be done in case of a bill 
 of exchange or note; but, as in the case of such instruments, probably it 
 would be Indispensable, for that purpose, that the cheque should be pro- 
 
 dnoed at the trial. (/•) 
 
 Cheques <n- not Bills. — Cheques, it ha- be< d Baid, are nearly on the 
 -am.- footing as hills of exchange, but there i- much vagueness in this 
 Statement ; and the points of difference seem to he more numerous than 
 'he points of resemblance. Cheques are not accepted ; bhey pass by de- 
 livery without indorsement : they are not within the custom of merchants 
 with respect to bills of exchange ; they are not governed by bhe custom 
 
 of merchant- or the law merchant, as adopted into the law of England, 
 
 (b) i : -t M . Ill: Noble v. Adam-. T Taunt. 59 : Karl of Bris- 
 
 tol v. Wilsmore, l I:, .v 0. 5] i. 
 
 Tab .J. Ill; Reddell v. D ir. :i'i; 10 Sim. 241. 
 
 id) Miller v. .Miller. :: I*. \\ • -..n v. Lawson, 1 1'. Win.-. 111. 
 
 (e) Thompson v. Befferman, i I'm. ,\. v. Lunn \. Thornton, 1 C. B. 
 
 381. n. 
 
 Stnbbs, i Bare 
 Wicnlmlt v. Spitta, 3 Cam] 2 M. & Qra. 295. 
 
 l/,i Goodbody per Ld. Lyndhm tnbr. Snm. Ass. 1831, < 
 
 Bylee on Bills, 18, 
 
 Bentbam v. Ld. Chesterfield, 5 Bcott, 117. 
 (A:) Ilutton v. Ward, 15 Q. B. J
 
 • CHEQUES. 99 
 
 but by the common and statute law of the laud. The courts, on various 
 occasions, have pointed out differences and discrepancies between the 
 rules and principles applicable to cheques, and those applicable -y. Q r -. 
 *to bills of exchange. Thus, it has been observed, that no days L l J 
 of grace are allowed with respect to cheques, which are always to be 
 cashed speedily, if not immediately ;(Z) also, as has been stated already, 
 the owner of a cheque does not obtain, on a cheque, any. move time, .for 
 presentment by employing a banker to make ?t, while \n -the'case. of 5a 
 bill of exchange, by the custom of merchants, ' the holder obtains a 
 day more, for giving notice of dishonour,, by presenting it through a 
 banker, than if he presented the b.iil .himself ; (m) also, the fieatfvjof the 
 drawer of a cheque rescinds the banker's authority to •pay* it'; the death 
 of the drawer of a bill of exchange has no operation, 10 .diminish or alter, 
 the nature of the responsibilitieg of the other parties -to it.(w) 
 
 Again, where the indorsee of ;a bill oji exchange sues the acceptor of 
 a bill, accepted payable at a banker's, it is not necessary, to enable him 
 to recover, that he should prove that the acceptor has had notice of the 
 non-payment at the banker's; but in the case of a cheque, if the payee 
 sues the drawer, it is necessary to give notice to the drawer, of the non- 
 payment, at the banker's. (o) An instrument, calling on A. to pay so 
 many pounds, on account of B., to C, and accepted by A. and indorsed 
 to D., payable at E.'s bank, differs from a cheque, and cannot be sued 
 on as such ; it is a bill of exchange (_p) We have seen, when discussing 
 the subject of the London Clearing House used by bankers, how cheques, 
 presented at the banking house, too late for payment *to-day, r ^ Q „ -. 
 are marked for payment at the Clearing House, to-morrow, such L * -I 
 marking having the effect of an acceptance by the usage ; but no usage 
 can countervail the effect of an Act of Parliament ; and by statute, 
 acceptance of all inland bills of exchange must be in writing. Now a 
 mere mark, unaccompanied by any words signifying recognition or accept- 
 ance of the order, could not be looked on as a compliance with the enact- 
 ment ; and in this respect, therefore, cheques differ from bills. The 
 Statutes of Limitations run against the contractor's liability, in all 
 casesfy) of bills of exchange, from maturity ; it does not appear to be 
 considered that the drawer of a cheque would be justified, by the mere 
 circumstance of the payee's refraining from presenting it, for any num- 
 ber of years, in ordering his banker to refuse payment when it should be 
 presented, (r) 
 
 (I) Smith v. Ferrand, 7 B. & C. 19; see Grant v. Vaughan, 3 Burr. 1517. As 
 to days of grace, Moyser v. Whitall, 9 B. & C. 409 ; Sutton v. Toomer, 7 B. & C. 
 416. It was not until upwards of eighty years had elapsed after the date of 3 & 
 4 Anne, c. 9, puttiug promissory notes on the same footing as bills of exchange, 
 that the courts, after some oscillation, finally decided days of grace to be allowa- 
 ble, on promissory notes, as well as on bills of exchange. Brown v. Harraden, 4 
 T. R. 148, a. d. 1791. (m) Alexander v. Burchfield, 7 M. & Gra. 1060. 
 
 (n) Billing v. Devaux, 3 M. & Gra. 571, 572, 573. 
 
 (o) Treacher v. Hinton, 4 B. & Ad. 413 ; see Walwyn v. St. Quintin, 1 B. & P. 
 652. (p) Treacher v. Hinton, 4 B. & Ad. 413. 
 
 (q) See several points of difference pointed out by Tindal, C. J., and Maule, J., 
 Warwick v. Rogers, 5 M. & Gra. 363. 
 
 (r) See diet, per Patteson, J., Robinson v. Hawkesworth, 9 Q. B. 56.
 
 100 QBANT OB THE LAW OF BANKING. 
 
 A bill of exohange [being an inland bill,) payable on demand, must 
 have it< appropriate stamp to be valid; a oheqne (the requirements of 
 the statutes being observed) i< exempt. (*) 
 
 At law, there are many easi i which establish, that no action fur money 
 
 ha<l and received will lie. against a banker, in respect of funds, which 
 
 baa ordered him t>> pay, to any person, at the suit of the 
 
 person, ji, vihose favour the order is made, onless the banker lias assented 
 
 nii.iiui'u-ated his consent to tin- plaintiff ;(<) in equity, 
 
 . in cider upon .win'_' money, or holding funds belong- 
 
 . •- 1 the drawer, operates aq an equitable assignment of such debt or 
 
 raoney,(u) jHtid the assignee mi:_h,\ it seems, in equity, j>roceed against 
 
 r. The law merchant does this with respect to bills 
 
 ' J of exchange*. 
 
 \ cheque i- not doe' before payment te demanded, and in this respect 
 differs from all such lull.- itf-ex^hange .1- are payable on :i fixed day.(x) 
 In one respect, there appeana to- be no difference between a bill of 
 exchange and a cheque, a- regards pleading : namely, that in an action 
 by indorsee against drawer of the one, or by payee against drawer of the 
 other, defendant may equally allege, as a -round why non-payment has 
 not been notified, to the drawer, before action, that the plaintiff has 
 sustained no damage by reason of such want of notice.)//) 
 
 S imp* on Cheques. — By 31 Geo. 3, c. 25, s. 10, no bill of exchange, 
 
 promissory note, or other note, draft, or order, nor any receipt, discharge, 
 
 acquittanoe, note, memorandum, or writing aforesaid, liable to the 
 
 duties by this act imposed, or any of them, shall be pleaded or given in 
 
 aoe in any court, or admitted in any court to be good, useful, or 
 
 available in law or equity, unless the vellum, parchment, or paper, on 
 
 which such bill of exohange, promissory note, or other note, draft, or 
 
 order, receipt, discharge, acquittance, note, memorandum, or writing, as 
 
 - iid. shall be engrossed, printed, written, or made, shaU be stamped 
 
 or marked with a lawful stamp or mark, to denote the rate or duty as by 
 
 this ait is directed, or some higher rate or duty in this act contained; 
 
 and it -hall nut 1,.' lawful fur the said commissioners or their officers, to 
 
 -tamp or mark any vellum, parchment, or paper, with any stamp or mark 
 
 directed to be used or provided by virtue of this act, at any time after 
 
 any bill of exchange, promissory note, or other note, draft, or order, or 
 
 ■ ipt, discharge, or acquittance, *except as herein is other- 
 
 J wise provided, shall be engrossed, written, or printed thereon, 
 
 under any pretence whatever; anything in this act contained, or any 
 
 law or statute to the contrary thereof notwithstanding. 
 
 ''hi set appear to be interfered with, by the pro- 
 
 ed. ; 17 A 18 Vict. c. 83. SB. 7, 8, 9, 10 : see to- 
 ll. .V. Gra. .".71 : Wharton v. Walker, 4 B. & C. 163; 
 
 i: ;. *. Q De <;. If. I I 
 
 1 ■ •'•• ■'• ■- I ■■' ' ■ 8t< rling, 7 T. R. 430 ; Alexander v. Burch- 
 
 :|>ra. 
 
 I 'owl. 4 L. 28; Eemble r. Mills, 1 M k Gra 757- S
 
 CHEQUES. 101 
 
 visions of the late statute 16 & 17 Vict. c. 59, repealing certain stamp 
 duties, &c, and amending the laws relating to stamp duties. 
 
 The 55 Geo. III. c. 184, s. 8, refers to the former statute of Geo. 
 TIL, and incorporates these provisions.^) 
 
 Hence it would almost appear, that, as the above enactment makes 
 cheques unstamped to be invalid, the payee of a cheque, like the payee 
 of a bill, which is unstamped, cannot recover upon it, and it seems also 
 as though the case were not within the Common Law Procedure Act, 
 1854, which makes provision for the stamping at the trial of unstamped 
 documents produced in evidence, (a) because the stamp acts appear to 
 make void all such cheques, &c, as have not the proper stamp affixed 
 to them, before anything be written or printed, on the paper intended 
 for the cheque. In other words, cheques, which, from the circumstances 
 in which they are drawn, (?>) require stamps to give them validity, cannot 
 be made available, in evidence, by complying with the requirements of 
 the Common Law Procedure Act, 1854. 
 
 A late statute introduced some alterations, with respect to stamps on 
 drafts or orders on bankers, in cases where they were already required 
 to be stamped : for, retaining the exemption from stamp duty of all 
 drafts or orders on bankers for the payment of money to the bearer on 
 demand, it imposed a stamp duty of one penny on all drafts or orders 
 payable to order on demand, and on letters of credit, permitting such 
 duties to be denoted, either by stamp impressed *on the paper, pgg-i 
 or by an adhesive stamp, and directing the person signing, or L " J 
 making, the draft or order, to cancel or obliterate such adhesive stamp, 
 by writing thereon his name or the initial letters of his name, under a 
 penalty of 10/. (c) 
 
 Another statute, reciting the law to be that " certain drafts or orders 
 for the payment of any sum of money to the bearer on demand, drawn 
 upon any banker or person acting as a banker, residing or transacting 
 the business of a banker, within fifteen miles of the place, where such 
 drafts or orders are issued, are exempted from all stamp duty," to pre- 
 vent the negotiating or circulating these drafts, &c. beyond the fifteen 
 miles, prohibits, under penalty of 50?., such draft or order being sent to 
 any place beyond that distance, "in a direct line from" ((7) the bank or 
 place, at which the same is made payable : or being received, in payment, 
 or as a security, or being otherwise negotiated or circulated, at any place, 
 beyond the said distance. (e) There is nothing, however, to prevent any 
 one, who may receive such draft or order, at any place, within the 
 fifteen miles, which has been lawfully issued without a stamp, from 
 affixing an adhesive stamp and cancelling it, as before, so as to remit or 
 send the draft or order beyond the distance, &c. ; in which case it may 
 
 (z) Field v. Woods, 10 B. & C. 114 ; Smart v. Nokes, 7 Scott, N. R. 794. 
 
 (a) 17 & 18 Vict. c. 125, s. 28. 
 
 (b) See Bradley v. Bardsley, 14 M. & W. 876. 
 
 (c) 16 & 17 Vict. c. 59, ss. 3, 4, and sched. 
 
 (d) I. e., measured along a horizontal plane. Stokes v. Grissell, 23 L. J.. C. B. 
 141 ; see Grant on Corporations, 388, 389, n. (/). 
 
 (e) 17 & 18 Vict. c. 83, ss. 7, 8.
 
 ol.A.Nl OK Tlii: LAW OF BAN KIN'. 
 
 ■ 1 and negotiated beyond the distance, notwithstanding the 
 
 . naetiiiciit-.(' ) 
 
 .1- rime* <m<l >>//'■ nc< i in relation to cheques, it is an offence 
 
 under the statute 7 a v Geo. IV- <•. 29, b. 53, [though perhaps not at 
 
 ion law, unless, at any rate, the defendant be charged with using 
 
 -. &c. in order to accomplish the deceit^/")] for a person to 
 
 what purports to be his cheque upon hie banker, in payment for 
 
 when in truth he has no account with the banker *nainedj 
 
 -I this is a false pretence under that statute. (y) So, where the 
 
 barged with falsely pretending that a post-dated cheque, 
 
 drawn by himself, was a good and genuine order for l'.V., and of the 
 
 value of 25?., whereby he obtained a watch and chain, and the jury found 
 
 • th<- completion of the transaction — of the Bale and delivery 
 
 of tin- watch and chain, by the prosecutor, to the prisoner — he repre- 
 
 i. t" the prosecutor, that he had an account with the bankers on 
 
 whom the cheque was drawn, and that In- had a right to draw the cheque, 
 
 _h he postponed the date fur his own convenience, all which was 
 
 .uid that he represented that the cheque would be paid, on or after 
 • the date, hut he had in reality no funds to pay it, the prisoner 
 wa- held to be properly convicted. (Zi) 
 
 A cheque was made payable to D. Francis Jones fnot saying " to 
 
 order," nor adding the words "or to bearer"] by a person living in 
 
 and enclosed in a letter directed to Kennington, Surrey. 
 
 A person was indicted under 7 & 8 Geo. IV. c. 29, s. 5, which makes 
 
 it a felony --i" steal (amongst other things) any order, or other security 
 
 whatsoever, for money, or of payment of money," for larceny of the 
 
 above-mentioned instrument, which turned out to be on unstamped 
 
 - contended, on hi- behalf, that this instrument, being 
 
 le to D, Francis Jones alone, was not of any value to the prisoner, 
 
 uay other person than I». Francis Jones, and was not an available 
 
 it) ; the judges held that tlii- cheque, having been drawn, at Brecon, 
 
 upon Messrs. Childs' bank in London, without a stamp, was not a valua- 
 
 curity, within the above enactment, because it would be a breach 
 
 I lw for the bankers to pay it.( C\ 
 
 < )n the indietmenl of a person, for uttering a forged cheque, it is not 
 
 . , necessary to call the supposed maker to disprove an ^authority 
 
 1 I from him to an) other person to sign in his name; it is sufficient 
 
 jprove tie- handwriting. (&) 
 
 In ■_-■ neral a cheque may 1m- described as a valuable security of the 
 
 value of, A.'., without mentioning the name of the banker on whom it is 
 
 drawn 
 The defendant, a stock broker, received from the prosecutor a cheque 
 
 (/) R. v. Lara, C T. R. 565 
 I: \ .1.1. 1 
 
 H \. Parker, 2 M Cri. k If. 298. 
 
 R | v •■ - | v To. 
 
 v. Hurley, '.' H. I What not larcem- of a cheque, Reg. v 
 
 : I.. .1. iN. E " 
 I., j i Beat*, ■-' Mood I I
 
 CHEQUES. 103 
 
 upon liis banker, to purchase exchequer bills for hiui ; the defendant 
 cashed the cheque and absconded with the money. Upon an indictment 
 for stealing the cheque and the proceeds of it, it was holden to be no 
 larceny, although the jury found, that before he received the cheque, 
 the defendant had formed the intention of converting the money to his 
 own use ; not of the cheque, because the defendant had used no fraud 
 or contrivance to induce the prosecutor to give it to him ; and because, 
 being the prosecutor's own cheque, and of no value in his hands, it could 
 not be called his goods and chattels ; nor of the proceeds of the cheque, 
 because the prosecutor never had possession of them, except by the hands 
 of the defendant, (m) 
 
 But where the prosecutors gave to the defendant, who was occasionally 
 employed as their clerk, a cheque payable to a creditor, to be delivered 
 by him to the creditor, and the defendant appropriated it to his own use, 
 this was holden by the judges to be a larceny of the cheque. (n) 
 
 A person may be indicted for forging a cheque as " an order for the 
 payment of money" under 11 Geo. IV. & 1 Will. IV. c. 66, s. 4. If 
 the charge, in the indictment, be for forging a warrant or order, proof 
 of a document which is a warrant but not an order for the payment of 
 money, will not support the indictment, according to one ruling ; but 
 another case has been decided to the contrary, (o) 
 
 *A cheque on a banker (although it be post dated, (p)) is a r*i n^-i 
 warrant and order, for the payment of money, within the above- L ""J 
 mentioned statute, (c/) 
 
 Where an instrument, is in any respect, incomplete, and therefore not 
 operative, as where the practice was, for a majority of the officers of a 
 parish, to draw cheques on the treasurer of a union ; and one of their 
 blank cheques, filled up for £1 : 3s. 6c?., had a note at the bottom, — 
 " Unless this cheque is signed by a majority of the parish officers, it will 
 not be cashed." This cheque was signed, by one of the officers while it 
 was for £1 : 3s. 6c7. ; it was then altered to £3 : 3s. 6c?., and when cashed, 
 by the treasurer, had the signatures of a majority of the officers to it : it 
 was held, that if the cheque was fraudulently altered, when it had only 
 one signature to it, this was no forgery, (r) 
 
 A cheque on a banker, in a fictitious name, or in the name of a person 
 who never kept cash, with the banker, is a warrant or order, within the 
 meaning of the act, for it imports, upon the face of it, to be an order, by 
 
 (m) R. V. Walsh, R. & R. 215. 
 
 («,) 1 Mood. Grim. C. 433, R. v. Metcalfe ; Reg. v. Heath, 2 id. 33. 
 
 (o) Compare Reg. v. Williams, 2 Car. & K. 51, with Reg. v. Williams, 2 Den. C. 
 C. 61. Filling a form of cheque, already signed, with blanks left in it for the sum, 
 &c, is forgery. Flower v. Shaw, 2 Car. & K. 7 03. 
 
 (p) Reg. v. Taylor, 1 Car. & K. 213 
 
 (q) R. v. Willoughby, 2 East, P. C. 944 ; R. v. Shepherd, id. What not proper 
 averment and description of an order for the payment of money, R. v. Ravenscroft, 
 R. & R. 161 ; Reg. v. Curry, 2 Mood. C. C. 218 ; see Reg. v. Turborville, 4 Cox, 
 Crim. Cas. 13. A. draws a bill on B., on whom he has no right to draw, in order 
 to induce bankers to honour his cheque, which they do : A. held not guilty of 
 cheating them. R. v. Wavell, 1 Mood. C. C. 224. 
 
 (r) Reg. v. Turpin, 2 C. & K. 820.
 
 104 <;raxt OR TUT. LAW OF BANKING. 
 
 •i person having authority to make it.(s) So, a draft forged in the name 
 of a person who does keep sash with the banker, ie an order within the 
 net, whatever be the Btate of h\< account at the time.(<) 
 
 Will. — A oheqne may be admitted to probate, as a paper, of a testa- 
 mentary character./!*) 
 
 r+1 , collation of a cheqyu is imperative on the banker, upon 
 
 L 'J payment thereof; and any banker, who shall refuse or neglect to 
 oanoel the same, is made liable to a penalty of &0l.(x\ 
 
 Cancellation of the Btamp, we have seen, is obligatory under a like 
 penalty, upon the person issuing or negotiating a cheque, stamped with 
 an adhesive stamp.) y) 
 
 [*104] 'CHAPTEB TIL 
 
 BILLS oF EXCHANGE PAYABLE AT BANK] 
 
 We will next pass to the consideration of the duties of bankers, and 
 their liabilities and rights, as regards bills of exchange, made payable at 
 their banking houses. 
 
 Formerly, it was fur a long time, much disputed whether a bill of ex- 
 change drawn generally, but accepted payable at a particular place named 
 «.n it, ought to be presented at that place, in order to show a cause of 
 action by the holder against the acceptor. At length this doubt was Bet 
 at rest by a derision of the House of Lords, which declared the law to 
 be, that an acceptance, payable at a specified place, was a qualified 
 . which imposed upon the plaintiff, in an action against the 
 acceptor, the necessity of Btating and proving presentment at that place, 
 in order to recover on the bill.(^) The legislature, however, thought 
 this part of the law required Borne alteration, and accordingly the statute 
 1 & 2 I '• i. IV. e. 7 V . wa- passed, enacting, that an acceptance payable, 
 on the face of it, at a particular place, shall bo considered to be a gene- 
 ra] acceptance, unless it be expressed to he payable there only, ami not 
 otherww ",• elsewhere. It is of little avail, therefore, that an acceptor, 
 Wishing to have his hill paid by his banker-, states on the bill that he 
 I . ■-, accepts it. to be paid at hi> bankers, unless he adds the words 
 
 ''J "and not otherwise," or the word 'b'-'V') The statute, *it 
 
 (*) '■ '>i ■ r>. v. Abraham, 2 East, 1'. ('. 941. 
 
 rter, l Den. 0. 0. ';">: i <'. & K. 1 n. 
 
 tone, i I'liill. I'..|. i;. 294 ; Beming v. Clutterbuck, 1 Bli. (X. 
 rine v. Ferrier, 7 Sim. Gongh v. Findon, 7 Exch. 48; Barthol- 
 
 ■. . Henley, 3 Pbillim. 31 7. 
 
 1 HI. c. i-i. -. 19 : - v. Cnlverwell, 7 M. & W. 174. 
 
 i ing, 2 Bro. fcB — Bligh. 391. 
 
 Nicholls, 7 Dowl. 551. A person, who takes a qualified acccpt- 
 ■ '.-■ .lr:uvor : tor non constal thai in- vi ill assent to 
 me qnalifii -V. 509. Tin- holdi r of a bill may refu
 
 BILLS OF EXCHANGE PAYABLE AT BANKER'S. 105 
 
 is to be observed, only mentions acceptances ; it has been decided tbat a 
 drawer cannot render the bill payable only at a particular place, by stating 
 it to be so, in the body of the instrument, so that a bill made by the 
 drawer, payable at a particular place, is nevertheless accepted generally, 
 unless the acceptor accepts it in the above terms, saying, that it shall be 
 paid at that place only, and not otherwise or elsewhere. (c) 
 
 Since the statute there are three different modes (as to two of them, 
 however, differing chiefly in form,) in which a bill may be accepted; 1, 
 generally; 2, payable at a banker's named; 3, payable at a particular 
 banker's only, or not otherwise or elsewhere. (cZ) Now, if the drawee 
 accepts generally, there can be no doubt he undertakes generally to pay 
 the bill, at maturity, when presented to himself; if he accepts in the 
 second form, then the holder has the option either of presenting, to the 
 acceptor himself, or at the banker's specified, and that within banking 
 hours ; for in that case the acceptor's undertaking is to pay the bill, at 
 maturity, on its being presented in either way ; if the acceptor adopts 
 the third mode, then, of course, he excludes the holder, from any other 
 mode of presentment, than to the banker named, and that within bank- 
 ing hours, (e) Hence, in suing an acceptor of a bill accepted, payable at 
 a banker's, in the second mode, it is not necessary to allege or prove 
 presentment there, (e) In suing the drawer, however, the case is dif- 
 ferent; for, in respect to such action, it seems still to be necessary, if the 
 bill be accepted, and be accepted payable at a banker's named *by r#i06~l 
 the acceptor, to allege and prove presentment there ; ( /) so if L 
 made payable in the body at a banker's, and accepted generally ;(/) and 
 if the bill be drawn, payable at a particular place, then to charge the 
 drawer, it is necessary to show a presentment at that place ; for such 
 must have been the case before the statute, and the statute was not in- 
 tended to alter, and has not altered, the liability of drawers of bills of 
 exchange : it is confined in its operation to the case of acceptance 
 alone. (</) 
 
 If a bill of exchange be accepted, payable at a banker's, three months 
 after date, and, in the course of business, is indorsed to the bankers, 
 they, on suing the indorser, have no need to show that they presented 
 
 take a special acceptance at a banker's. Per Lawrence, J., and see Le Blanc, J., 
 Parker v. Gordon, 7 East, 385 ; see Gammon v. Schmoll, 5 Taunt. 353. 
 
 (c) Selby v. Eden, 3 Bing. 611 ; Fayle v. Bird, 6 B. & C. 531. 
 
 (d) It Will suffice to accept payable at such a bank, "and not other-wise,' with- 
 out adding "only." Higgins v. Nichols, 7 Dowl. 551. 
 
 (e) Halstead v. Skelton, 5 Q. B. 92 ; S. C, 2 Dowl. (N. S.) 79 ; Bailey v. Porter, 
 14 M. & W. 44. There is no objection, in declaring against an acceptor, to a state- 
 ment that the bill is accepted, payable at a particular banker's, though, in fact, 
 the acceptance be in the second form. Blake v. Beaumont, 4 M. & Gra. 7 ; S. C., 
 1 Dowl. (N. S.) 697 ; see 21 Vin. Abr. 463, 464. But in such case, as the acceptor 
 engages to have funds, at the bank, to meet the bill, if it is not paid he is not, in 
 general, entitled to notice of dishonour. Turner v. Haydon, 4 B. & C. 1. That 
 the presentment must be made within banking hours, see Parker v. Gordon, 7 
 East, 385 ; Whitaker v. Bank of England, 1 C. M. & R. 744 ; Wilkins v. Jadis, 2 B. 
 & Ad. 188 ; may be made after, if the bank be not shut, or if any one be left to say 
 if there are no orders. Garnett v. "Woodcock, 6 M. & Selw. 44. 
 
 (f) Gibb v. Mather, 8 Bing. 214; S. C, 2 Cro. & J. 254. 
 
 (g) See Boydell v. Harkness, 3 C. B. 168 : S. C., 4 Dowl. & L. 179.
 
 106 Hfl OH Tin: law OF BAH KIN 6. 
 
 ; t >r ; for, as the bankers, :it whose house the bill was to be 
 paid, were themselves the holders of it. it was a sufficient demand, for 
 
 tin-in to turn tt. their 1 k.-, and ascertain the statu of the acceptor's 
 
 .■it. with tin-in, and a sufficient refusal, to find that he bad do effects 
 in tlu-ir hands \(h i and a letter written on the day, when the bill became 
 due, to the defendant, on behalf of the banker,-, Btating tbe acceptor's 
 bill t<> be unpaid, and requesting the defendant's immediate attention to 
 it. is Buffioienl notice of dishonour. (h) 
 
 r liselv the same has been laid down, as the law with respect to a 
 promissory note, stated by the maker, in a memorandum, to be payable 
 at a banker's, to whom it beeaine indorsed iii the course of business, and 
 who Bued the indorser.(t) 
 
 r*i ( ,--i The drawer of a bill of exchange, accepted generally, f*subse- 
 L -I quentlyto the passing of the statute 1 & 2 Geo. IV. o. 78,) 
 added the words '-payable at R. & Co.'s bankers, London," without the 
 knowledge of the acceptor, and then indorsed it for valuable considera- 
 tion, the bill being overdue, and the indorsee privy to the alteration. 
 The acceptor was held to be discharged; notwithstanding the argument 
 which was pressed, that, since the statute, this was only a general accept- 
 ance, and that no demand was necessary against the acceptor, and that, 
 consequently, in an action by the indorsee against the acceptor, it was 
 not p issible to contend that lie was prejudiced. (&) 
 
 A bill is accepted payable at a bank, which is also that of the 
 drawer; the drawer discounts it with them, and indorses to them ; they 
 rediscount, and, on maturity, pay it, without indicating to the holder 
 whetb t they pay as indorsers, or a- agents for the acceptor. The ac- 
 ceptor's account being overdrawn, the bank give notice of dishonour to 
 
 the drawer, and he is debited with the amount. It was held, they had 
 a right to pay tin; bill as indorsers, taking time to inquire, if they Would 
 honour the bill or not.(/) 
 
 Again, when- a drawer, after getting a bill accepted, payable at a 
 hanker'.-, kept the hill by him for some year.-, during which period the 
 bankers became bankrupt, and then having erased their names, and sub- 
 stituted the name of another banker, without the knowledge of the 
 
 acceptor, indorsed the bill, it was decided thai the acceptor was dis- 
 charged, the alteration being considered to be materiaL(m) 
 
 The effect of returning a bill accepted, payable at the acceptor's bank, 
 
 to tie- indorsee's bankers, at the Clearing House, with "order- not to 
 
 written on it, and "cancelled b\ mistake" also, is to disable the 
 
 i'" 1 " 1 linst the banker., as for money had and n- 
 
 (*) ' IM.4W.44. Aa to the latter point, see Allen T.Edmund- 
 
 . IEj Bti rard r. Watson, r: L. .J., Q. B. 222. 
 
 S&troderson v. Judge, 'J II. Bla, 509. 
 
 Burchfield v. Moore, 23 L. J., 0. 
 B. 261. 
 
 P .1! ird v. I I 
 
 I idmarsfa v. Ororer, l M. & Seta 
 (n) Warwick <
 
 BILLS OF EXCHANGE PAYABLE AT BANKER'S. 107 
 
 *If a bill be accepted, payable at a particular town, present- r-^-inn-, 
 inent, it is said, at all the banking bouses in the town is suffi- L J 
 cient.(o) 
 
 If a bill be accepted, payable at a particular place, the acceptance, as 
 before shown, is general ; it is, therefore, needless to state any thing 
 about the place in declaring against the drawer; such presentment, as 
 the form of acceptance requires, being only matter of evidence ; it is 
 also, in some cases, objectionable, to state the special acceptance, for if the 
 special acceptance be stated, then, on suing the drawer or indorser, it 
 may become necessary to state such presentment as the acceptance 
 requires, and the omission to do so might be taken advantage of; though 
 it would not, perhaps, be available after verdict,(p) in all cases. 
 
 If a bill is made, payable at a particular bank, by the acceptor, then, 
 in an action by indorser against drawer, it is not necessary to allege a 
 presentment to the acceptor at the bank ; it has been decided to be 
 enough to aver the presentment to have been made there. (a) 
 
 It has been stated that the effect of acceptance at a named bank, is to 
 give the holder the option of presenting, either at the bank, or to the 
 acceptor himself ;(>•) it is a further effect of such acceptance, (or, perhaps, 
 is only another mode of stating the same thing,) that if the holder pre- 
 sents at the bank, and is refused payment, he may sue the other parties 
 to the bill, without any other presentment. (s\ But the acceptor, having 
 funds to meet the bill in the banker's hands, is, nevertheless, not appa- 
 rently exonerated, if they fail, after *the maturity of the bill, r ^ nQ -, 
 but before it has been presented, M although the holder is in L J 
 default. 
 
 A person who accepts a bill, payable at his bankers', is held thereby 
 to give authority to the bankers, to apply to the payment of it, any funds 
 of his, in their hands, and there is no necessity for them, to have any 
 other or more specific authorization, than the terms of the acceptance 
 itself. (») But from what has already been laid clown, to the effect that 
 bankers are bound to know the handwriting of their customer, and what 
 is not his handwtiting, it is manifest they would not be exonerated if 
 they paid the bill, and it turned out that the acceptance was forged. (xj 
 
 (o) Hardy v. Woodroofe, 2 Stark. 319. 
 
 (p) Lyon v. Holt, 5 M. & W. 250 ; Parker v. Ade, 1 Dowl. 643 ; see Wilmot v. 
 Williams, 7 M. & Gra. 1017 ; Boydell v. Harkness, 3 C. B. 168; S. (J., 4 Dowl. & 
 L. 179. 
 
 (q) Shelton v. Braithwaite, 8 M. & W. 252 ; see S. C, as to notice of dis- 
 honour. 
 
 (r) De Bergareche v. Pullin, 11 J. B. Moore, 350; Roach v. Johnston, 4 Jur. 
 956. 
 
 (s) Mackintosh v. Haydon, Ry. & M. 362; Hankey v. Berwick, 4 Bing. 135. 
 
 (t) Rhodes v. Gent, 5 B. & A. 246 ; Turner v. Haydon, 4 B. & C. 1, qu. tam. 
 
 (m) Kymer v. Laurie, 18 L. J., Q. B. 218. If the customer afterwards commits 
 an act of bankruptcy, and then repays them the difference between the amount of 
 the bill and his assets with them, such payment is not protected, Holroyd v. White- 
 head, 5 Taunt. 440 ; S. C, 2 Rose, 145, and the bankers cannot sue on the bill, for 
 it is functus officio, by the law merchant, when once paid by the acceptor, and 
 also may not be reissued, by the express provision of 55 Geo. III. c. 184, s. 19, 
 under a penalty of 502. 
 
 (x) Smith v. Mercer, 6 Taunt. 76 ; S. C, 1 Marsh. 453.
 
 10{j GRANT OS TIM". LAW OJ BANKING. 
 
 '. to whom payable. — But to whom does the acceptor authorize and 
 
 order hia bankers to pay? I- it to the lawful holder, or to whom, that 
 
 the law merchant justifies the banker in paying the amount? The 
 
 answer is the banker waa justified in paying, not merely to a lawful 
 
 holder, but to any one who ran give him a lawful discharge, according 
 
 to the law merchant. Therefore a banker paying a bill, accepted by a 
 
 w, but bearing an indorsement, purporting to be in the 
 
 handwriting of the payee, but being, in tact, a forgery, and being 
 
 ted, after this and other indorsements, had been made ou the bill, 
 
 and presented at the clearing house by a banking firm, who were 
 
 indorsees, was aot, it has been held, justified, by reason of such forged 
 
 .. n indorsement, in paying to the holder, or indorsee, *who could 
 
 L -I not give a legal discharge, and consequently the hanker could 
 
 ■ the account of the acceptor, with the sum paid, but must 
 
 If bear the loss.fv) Now, however, the law appears to be altered 
 
 by Btatute,(z) bo that a banker is safe iii paying a bill, which purports to 
 
 be indorsed by the payee. 
 
 If, when a person accepts a bill, payable at a banker's, his acoounl 
 with them is in such a state, as nut to be adequate to pay the whole 
 amount, for which the bill is accepted, it appears doubtful whether the 
 law enables the bankers, if they pay the whole amount, to recover from 
 the customer the difference between the amount of his moneys in their 
 hands, and the sum in the bill.(a) It clearly, however, does not affect 
 the question, of the authority, that the customer did not intend the bill 
 paid; the drawer having become bankrupt. (a) Nor is the relative 
 in of the bankers, to the customer, affected by the circumstance, 
 that after the payment they endeavoured to get back the money, treating 
 payment made by mistake, or that they had subsequently honoured 
 16, drawn by him upon them. (a) 
 A banki r, receiving a Bum for the express purpose of taking up a bill, 
 payable at his bank, without objection at the time, cannot apply 
 discharge the amount, by which the customer paying in the money, 
 has overdrawn his account, nor ought he to pay cheques, drawn subse- 
 quently to the bill, before he pays it (A) 
 
 BUI when paid. — Next, when i* a bill made payable at a banker's 
 said to 1"' paid? Now, in all cases of a contract to pay money, that can 
 only properly be called payment, which is payment according to, and in 
 r*im *'''' * Q8e "''' ''"' * , '" l,,r; "' t f{pb) s " that payment, by a Btranger, 
 L -I does not discharge the party contracting to pay, unless made, by 
 jtranger, as hie agent, and with hia prior authority or subsequent 
 ratification. Eence, payment, by a Btranger, of the amount of a bill of 
 inge, t" tie- hanker-, at whose house it was made payable by the 
 
 . icker v. Robarts, L6 Q. B. 560, ba em ., 17 Vict. <■. :,w ) s. 10. 
 
 a L7 Vi't. c. 59, B. 1:'. (") Bee note («), ante, ]>. 109. 
 
 De Bernalet v. Puller, 1 1 Bast, 590, a. : •■ of army ami navy agents. 
 
 . ; ' U ". Esp. 
 
 :. ginton, 24 L. J., Bxch. ::::: Church v. Bishop, - Yes. sen. 
 Hopper's 1 L10; Smith \ Craven, 1 Cro. a: J. 500: see Cro. Eliz.
 
 BILLS OF EXCHANGE PAYABLE AT BANKER'S. 109 
 
 acceptance, under an arrangement with thern, whereby the person paying 
 obtained possession of the bill, for a collateral purpose of his own, is not 
 a payment of the bill by the acceptor. (c) 
 
 Caution as to paying. — The facts and the decision upon them, about 
 to be stated, furnish proof, if any be required, of the extreme caution 
 which bankers are bound, in order to protect themselves, to exercise, 
 in the payment of bills accepted by customers, payable at their banking 
 house. 
 
 A bill, purporting to be accepted by a customer, payable at his bankers', 
 was presented to them and paid. The bankers, on the following day, 
 discovered the acceptance to be a forgery, and demanded back the money, 
 from the holder, to whom they had paid it ; but it was laid down by the 
 court, that the holder was entitled to know, on the day on which the 
 bill became due, whether it was honoured or dishonoured, and that, no 
 notice of the forgery having been given him, on the day the bill became 
 due, the bank could not recover. Moreover, the court expressly abstained 
 from pronouncing any opinion whether, if notice of the forgery had been 
 given, to the party, to whom payment had been made, at a later period 
 of the day, on which the payment was made, so as to enable him to send 
 notice to the prior parties on that day, the bank would have been entitled 
 to recover. (d) 
 
 * Where a bank only discounts, for a third party, a bill, pur- r ^ .. „-. 
 porting to be accepted by a customer, it is different, it seems : L "'J 
 and, upon finding out the forgery, (it has been held,) the banker may 
 recover from the third person. (d\ 
 
 Cancellation. — A bill of exchange was accepted, payable at Ladbroke's, 
 with a direction written on it, in case of need to apply at Boldero's. 
 The bill was dishonoured at Ladbroke's, and thereupon brought to 
 Boldero's. He, thinking it had been made payable at his house, under 
 that mistake, cancelled the acceptance, but presently observed his 
 mistake, and wrote under it these words, — cancelled by mistake, and 
 signed his initials. Nevertheless, he paid the bill, for the honour of the 
 plaintiffs, whose indorsement was on the bill : they were held entitled to 
 recover, upon the bill, against a prior indorserj(e) so that the mistake 
 did not render the bill a nullity between those parties to it. 
 
 As a cancellation, by a mistake, of an acceptance, does not bind ; so 
 as is well known, an acceptance may be retracted, provided it have not 
 previously been communicated to the holder of the bill, although the 
 acceptance were not originally given by mistake, but with the intention 
 of really paying the bill at maturity. (f\ 
 
 Protested Bill. — A customer of a bank, upon whom a bill has been 
 drawn, payable at the banker's, remits money to them, to meet and take 
 up the bill, two days after it became due ; the bankers, on tendering the 
 money to the holder of the bill, find it has been sent back to the indorser 
 protested for non-acceptance; they are not liable to the holder, if, on 
 
 (c) Deacon v. Stodhart, 2 M. & Gra. 317. 
 
 \d) Cocks v. Masterman, 9 B. & C. 902, 908. 
 
 \d) Fuller v. Smith, 1 Car. & P. 197. ' (e) Raper v. Birkbeck, 15 East, 17. 
 
 (/) Cox v. Troy, 5 B. & A. 474.
 
 UU \ THE LAW OP BANKING. 
 
 1 K1V :. | fresh orders from die customer not to pay the bill, they 
 
 . when ii is presented subsequently by the holder.^) 
 'Money paid in, by ■ customer, expressly for the purpose of 
 
 I J paying a bill, accepted by him, and lying at the bank for pay- 
 ment, is money paid and received to the use of the owner of the bill, and 
 oannot be applied to the general account of the customer.(A) 
 
 /,'. - tcdtop '//• — Even it' a banker, at whose house a bill is accepted 
 payable, by mistake, (not under circumstances Bhowing want of due care,) 
 cancel the acceptance and refuse to pay the bill, he does not necessarily 
 render himself liable to the holder, In an action on the cast-, orother- 
 ; for instance, he will not be liable, it' he have no effects of the 
 acceptor's to meet the l>ill.(/) 
 
 /.\ fused to ta&t . — The holder of a bill maj as has already been 
 
 stated, to take an acceptance payable at a banker's ; on the Other hand, 
 
 the acceptor may refuse to pay a bill, which, after a general acceptance 
 by him. has been, without his consent, altered bo as to appear to be pay- 
 able at a banker's, but he oannot avail himself of this defence, on the 
 traverse of the acceptance, in an action by the indorsee, such alteration 
 not rendering a new Btamp necessary,^') but it must be specially 
 pleaded. (A;) The ground is, that the contract is, by the alteration, made 
 a different one, from that into which he entered.(Z) But it docs not 
 appear that Buob an alteration of the bill, as an acceptance, by mistake, 
 ex. .-//•".. as iii the last paragraph, operates to affect, in any way, the 
 liabilities of the other parties to the bill, both because such is not, it is 
 believed, the usage of merchants, and because such alteration dot's not, 
 in in fact, vary the contract *into which the other parties enter, 
 J with respect to the bill; for the liability, which they originally 
 undertook, was to pay the bill, in case the drawee did not, and the refusal 
 j.t merely ascertains and announces, that he will not make himself 
 liable to pay. It is, therefore, submitted, thai such alteration is not a 
 materia] alteration, such as to destroy the validity of the instrument in 
 i<,h,, within the meaning of the principle, as applied to deeds, and nego- 
 tiable and other instruments of contract. (m) 
 
 Promissory Notes. — Promissory notes, it must be observed, are not 
 within the above-mentioned statute, 1 \- 1 Geo. IV. o. 78 \ the conse- 
 quenoe i-. to make it necessary, in suing on a promissory note, made 
 
 le, in tin- body of it, at a bank, to aver in the declaration, and to 
 
 at the trial, presentment at the bank,(n) ami, in this n Bpect, there 
 distinction between notes which are negotiable and those which are 
 
 • (") 
 
 . !• r. 1 I East, 590, n. : sec 12 M. ,v \\ . 
 
 . ; ■ B. .v A«l. 751 : Warwick v. Rogers, 5 M. & Gra. 340, 352. 
 
 m v. Bradley, 1 1 M. .v \\ . 594. 
 
 i '-v. I. ,v I.. 641 j 9ee Dai Ldson v. Cooper, 
 
 I I M. a (i) Burchfield v. Moore, 2 I L. J., Q. B. 261. 
 
 I .M. ,v W. 117; see 
 per, 11 M. S 
 in v. Dartnell, 12 M. & ■ Vanderdonckt v. Thelueson, 19 L. J., 
 
 nda \. dark, e ('. B. 761. 
 G lett, 1 Bz( le
 
 ORDERS ON BANKERS. HI 
 
 Where, however, the place of payment is not mentioned in the hody 
 of the note, but merely in a memorandum, then it is no part of the con- 
 tract that the note should be payable at the bank, &c, and it is not 
 necessary to allege it to be so,(p) and so presentment there is not neces- 
 sary;^) and in such case, an averment that the note was payable at the 
 bank, is not only not necessary, but, if made, will be a fatal misdescrip- 
 tion of the instrument, (r) 
 
 CHAPTER IV. [*H5] 
 
 ORDERS ON BANKERS. 
 
 One of the duties of bankers towards their customers is, in general, 
 to obey the orders, written or oral, of their customers, with respect to 
 the accounts, of the customers, with them. Some decisions have been 
 made, on written orders of this nature, which may usefully be stated. 
 
 A customer writes to his bankers thus : — 
 
 Waterford, July 8, 1822. 
 
 I request you to hold me 400/. from my private account to the disposal 
 of J. Mintern & Co. 
 
 Messrs. Minet & Stride. Wm. Gibson. 
 
 The customer delivered this order to one of Minterns' house, the 8th 
 July, when there was in the bankers' hands, a balance of 400/. in his 
 favour; the order was not delivered to the bankers until about the 13th 
 July ; on receiving it, one of the bankers wrote, on the debit side of the 
 customer's account, " N. B. By Mr. Gibson's (the customer's) letter of 
 9th of July, 1822, 400/. is to be held at the disposal of Messrs. J. Min- 
 tern and Co." On the 19th March, 1823, the customer countermanded 
 the order ; the bankers communicated this to J. Mintern and Co., and 
 asked their direction. Mintern and Co., who also banked with the same 
 bankers, wrote to them, to place the 400/. to the credit of their account. 
 The bankers did so, and then informed the customer, that they had trans- 
 ferred the money to Minterns. Nevertheless, it was held, that they were 
 wrong in doing so, for that the countermand was good, inasmuch as, at 
 the time it was given, no payment, and no appropriation, *had r>n -. ... 
 been made;(a) the jury finding that the order was executory, L J 
 and had not been acted upon. (a) 
 
 Nearly the same thing, in effect, had already been decided, in a case 
 
 (p) Saunderson v. Judge, 2 H. Bla. 510 ; Masters v. Baretto, 19 L. J., C. B. 50 ; 
 per Lord Campbell, C. J., Warrington v. Early, 23 L. J., Q. B. 48. 
 
 (?) Williams v.' Waring, 10 B. & C. 2. 
 
 (r) Exon v. Russell, 4 M. & Selw. 505, compare Pannell v. Woodroffe, reported 
 in Chitty on Bills, 254, (6th edit.) 
 
 (a) Gibson v. Minet, 1 Car. & P. 247 : S. C, 9 J. B. Moo. 31 ; 2 Bing. 7 ; the 
 memorandum on the account did not amount to an assent. See Wedlake v. Hur- 
 ley, 1 Cro. & J. 83. 
 
 January, 1857. — 9
 
 H L » Q KANT ON THE LAW OB BANKING. 
 
 wl,, : reoeivea a letter from his debtor, Btating, that he has re- 
 
 mitted bills to bis bankers, out of which the debt is to be paid. The 
 banki ise to indorse the bills away, or otherwise to act on the 
 
 instructions they have received, and it is considered, that the property 
 in the bills, and their produce, -till continues in the remitter.^ The 
 bankers got the proceeds of the bills when due, but, from the first, had 
 refused to hold them on the specified terms; and the money, so held, 
 msidered to have been money had and received to the use of the 
 remitter generally. Thej never became the agents <<f the creditor; had 
 nted to hold the money, to the use of the creditor, they 
 could not have retracted,(6) for then there would have been an appro- 
 priation irrevocable, except by the consent of all parties. (c) In equity, 
 ■ r, it seems, that there may be a good assignment of a debt, due 
 to the assignor, from a third party, without the assent of the third 
 party, (e?) In the above case, it will be observed, the bankers never be- 
 came debtors to the remitter on the proposed terms. On the other hand, 
 i* the bankers had paid the money to the third party, such payment 
 ! have been good, at least, if they had acquiesced in the order; and 
 they would have been discharged as against their customer. (e) 
 
 In circumstances, it seems, such orders on bankers might assume the 
 character of bills, and require stamps, (/) and it would appear, that they 
 r^-i-i--. might be obligatory, though the *word pay were not used, if 
 J equivalent words, such as "credit in cash," were used.(y) 
 Such an order need not be in writing, as has been before stated; 
 and therefore, if a man held a bill of exchange, of which another was 
 tie- acceptor, and both were to go together to a banker, who had money 
 of tie acceptor's deposited with him, and it was agreed, amongst them, 
 the banker should hold that money until the bill of exchange 
 Bhould he satisfied, and, if not satisfied, that he should pay the bill 
 out of that money, that would constitute a good consideration, and 
 the arrangement could not lie altered afterwards, except by the cou- 
 >■ n; "1 all parties. (&) The assent of the banker, to the order, is a re- 
 c< gnition that the customer's account with him is in such a state, as to 
 show that he is debtor to the customer, and therefore bound, accord- 
 fche usage of bankers and to the law, to conform to such orders, as 
 le ma\ receive from the customer, respecting the disposition of the debt; 
 hut if the account is not in that state, but he is in advance to the cus- 
 r, tin- latter has no right to call upon the hanker, to make a further 
 advance, and the banker has, in such case, the option whether he will 
 .: to th.- order, if given, and he will be perfectly justified in repudi- 
 ating it.(i) 
 
 • n. l| Bast, 598 : see Si "it v. I'ordicr. :; Meriv. 852; Pai - 
 . Mi. Mil-ton, 6 Hare, 261. 
 W a i M. ••. W. 111. 
 
 ' 'i.lcll. 12 Beav. 325; 8. 0., 1 De <:. M. .v <: 
 \\ barton v. Walker, 
 
 ■veil. 1 i M. ,v W. -lis. 
 • ■a v. Collingridge, 19 I. .1 <'. B. 268 
 Lkei ■ . Roatron, 8 M. .v W. 121. 
 
 nil.- 1 Everett 14 E
 
 ORDERS ON BANKERS. 113 
 
 Also it is quite clear, that such au order, when made iu writing, does 
 not require a stamp, either as a hill of exchange or as an agreement, pro- 
 vided the order embodies nothing more than a mere direction to hold or 
 pay over money to the party nained,(&) and provided the order be not, 
 previously to its coming to their hands, delivered to the payee : in case 
 of such delivery to the payee, who delivers it to the bankers, a bill stamp 
 is necessary. (7) 
 
 * Order to distribute, &c. — An order by a person depositing a r*-Qg-i 
 sum of money at a banker's, that it shall be distributed, in <- J 
 named sums, between certain named persons, does not make the bankers 
 liable to those persons, or any of them ; they are only responsible, for 
 the sum deposited, to the depositor; although they are aware of the 
 destination of the money. (m) Such an order remains revocable, by the 
 party giving it, until the occurrence of one of two events, — the payment 
 over, by the bankers, to the persons for whom the sum was deposited ; 
 or the making of some binding engagement by the bankers with them, 
 which gives the latter a right of action against the former.(w) For in- 
 stance, had the bankers stated, to those persons, that they held the money 
 for them, having assented to the order of their customer, that would have 
 rendered them liable to the persons for whom they held the money,(o) 
 for their assent could not be retracted, (o) 
 
 So where my debtor places money in the hands of his banker to be 
 paid over to me, on the happening of a certain event, and the banker 
 assents, I cannot sue the banker until the happening of the event, and 
 only then (as it seems) if he has, besides assenting, conveyed to me notice 
 of his assent. (jo) 
 
 Banker as Stakeholder. — But when money is placed in the hands of 
 a banker, as stakeholder, then, like all other stakeholders, his authority, 
 on the one hand, is irrevocable,^) and neither party can recover the 
 money until the *event has occurred,(V) provided the object of p-Qcn 
 depositing the stake be a lawful one ;(f) and, on the other hand, L J 
 the party who, by the issue of the event, is declared to be entitled to 
 the stake, may thereon sue the banker for it. Thus, when A. obtained, 
 from the Crown, the use of a piece of land, at a rent, to erect galleries, 
 &c, on, to view a coronation, &c, and underlet part of it to B., on the 
 same terms, and his proportion of the rent was paid by B. to A., but was 
 afterwards deposited in the hands of A.'s bankers, on condition, that if 
 no coronation took place, and A. was remitted the rent by the crown 
 accordingly, B. was to have returned, to him, the sum so deposited. The 
 
 (k) Walker v. Rostron, 9 M. & W. 413. 
 
 (I) Parsons v. Middleton, 6 Hare, 261. 
 
 (m) Pinto v. Santos, 5 Taunt. 447. As to operation of order from a customer 
 to constitute a trust, Gaskell v. Gaskell, 2 Y. & J. 510. 
 
 (n) Gibson v. Minet, 2 Bing. 7 ; Williams v. Everett, 14 East, 592 ; Scott v. Por- 
 cker, 3 Meriv. 652 ; Lillv v. Hays, 5 A. & E. 548 ; per Parke, B., Brind v. Hamp- 
 shire, 1 M. & W. 372; Malcolm v. Scott, 5 Exch. 601 ; Sewell v. Raby, 6 M. & \\ . 
 25 ; Hutchinson v. Hey worth, 9 A. & E. 375. 
 
 (o) Fruhling v. Schroeder, 2 Bing. N. C. 77 ; Walker v. Rostron, 9 M. & W. 411, 
 421. 
 
 (p) See cases in last two notes. (q) See 2 M. & W. 372, 373. 
 
 (r) Emery v. Richards, 14 M. & W. 728.
 
 H4 GRANT OH THE LAW OF BANKING. 
 
 coronation took place, but in consequence of the speculation proving on- 
 profitable, the runt was remitted to A., who refused to return the money 
 paid liim by 1>. The Court held, that I!, was entitled to recover, from 
 
 the banker-, the BUUJ de] 
 
 Order t<> obtain Acceptance. — It' a person delivers a bill of exchange, 
 to his ban] I accepted for him (he being payee,) and acceptance 
 
 is refused, but they omit to communicate the circumstance to any one, 
 the depositor has a right of action against them, and may recover damages, 
 in proportion to the injury, he can show he has suffered. (?) 
 
 ler to transfer, &c. — We next investigate the effect of an order 
 given bv a customer to his bankers, directing them to transfer a sum of 
 money, from his account, to. the credit of another person, who also banks 
 with them. 
 
 A is debtor to 15. A. desires his bankers, who were indebted to him 
 largely, to place to the credit of 13., who was indebted to them, a sum of 
 money (for tr ■ • ■ • < 1 - sold,) so as to make the same as a bill of exchange at 
 .. one month, which *the bankers consented to do, but only con- 
 J sidered it as a payment to be made at a future day. Such a 
 transaction does not amount to a payment; and where the bankers be- 
 oome bankrupt before the day, on which the credit would expire, it is 
 held that A. is not discharged by such inchoate payment. (h) 
 
 <>,■</■/• to place to Credit, &c. — So, where A. pays in money, to be 
 
 placed to the credit of B., upon a condition ; the money in the meantime 
 
 ad, in the bankers' books, in the name of A., it is at his risk, ami 
 
 the loss i- his, if the bankers fail, before the condition is complied with. 
 
 though 1>. had written to desire it to be paid in generally. (x) 
 
 In a case where A., in October, desires 1!. to pay his rent, then due 
 
 . into A.'s bankers, and, by mistake, the money is not then paid. 
 
 I. at 1!., having also an account at the same bank, orders the amount to 
 
 I..- transferred to the credit of A., which was done on Thursday, the 8th 
 
 ber. 1!. next day writes to A. mentioning this. A., living at a 
 
 distance, does not receive information till Sunday, 11th December; the 
 
 bankers having failed Saturday. LOtb December. This was held to be a 
 
 sufficient paym m by 1!-, although, at the time of the transfer, B/s 
 
 rerdrawn by900Z.,and he had no general directions to pay 
 
 his rent into the bank.(y) 
 
 /. /• /•> hold at Disposal, <t >c. — Where a customer orders his banker 
 to hold money of his, at the disposal of A., to whom the customer writes 
 word of what he has done, and the banker advisee A. accordingly, of the 
 
 ipl of tl rder, and of his having registered it, but declines to accept 
 
 bills for any part of the amount. Btating that he i.~ in advance to tin- cus- 
 
 ._-_ toi . adding however that Bhould remittances come ^forward 
 
 I to enable him to meet the wishes of the customer, he would lose 
 
 do time in advising A. This was held to fall short of an absolute con- 
 
 k it. 71 -j. 
 
 A art v. \\ 
 
 (*) Call -.-.,. 1. 148. (y) Eyles ▼. Ellis, 4 Bing. 112.
 
 ORDERS ON BANKERS. 115 
 
 tract with A., and, therefore, it would be held that A., neither at law(z) 
 nor in equity,(a) had any remedy against the banker. 
 
 Order to invest, &c— Although there is nothing of a fiduciary 
 character in the ordinary relations between banker and customer, who 
 are, in those circumstances, simply debtor and creditor; the latter having 
 the right to call for his money, or any part of it, immediately; yet if the 
 dealings between them go beyond this point, in any way, and the banker 
 is employed by the customer to make investments for him, or otherwise 
 to manage his monetary transactions, then the banker is, in that respect, 
 the agent of the customer, and is bound to observe complete good faith 
 in the performance of the customer's orders. Consequently, any fraud 
 in the banker's dealings will be considered culpable in a high degree, 
 and will be severely animadverted on and punished by the courts. 
 
 The well-known case of Fauntleroy's fraud has been already stated, 
 in which the partners were held to be affected with knowledge of frau- 
 dulent entries made by him in the books, which entries they had in fact 
 never seen.(&) 
 
 Another case is the following, which it has been admitted to be diffi- 
 cult to support, except upon the sole ground of the fraud : A. gives 
 orders to her bankers to invest, a certain sum in their hands, for her in 
 the Navy Annuities, which they state to her that they have done, con- 
 trary to the truth: afterwards A., as surety, joins B. in a promissory 
 note given to them; the bankers become bankrupts, and Lord Eldon 
 held, on the ground of the fraud, that the money due, in *respect r* 12 21 
 of the sum ordered to be invested should be set off against the L ""J 
 debt for which A. had become surety, and that the assignees should be 
 restrained from suing either A. or B. in respect of the note.(c) Such 
 false representation by bankers has been said to be indictable as a con- 
 spiracy.^) 
 
 So with respect to securities deposited with them, as exchequer bills, 
 certificates of shares, coupons, bonds, debentures, either for safe custody, 
 or with the intention that they shall receive the interest or dividends, 
 &c. ;(e) and it is their duty scrupulously to perform the orders of their 
 customers touching the disposition of these deposits. 
 
 Persons depositing securities with bankers ought to reflect that, in 
 most cases, they have not, and cannot have, any other guarantee for the 
 safety of their deeds, &c. than the integrity of the partners individually. 
 The following case exemplifies this. A customer of a banking firm, 
 whose practice it was to receive deposits, at their banking house, of boxes 
 of securities belonging to their customers, for safe custody, lent part of 
 the securities contained in his box to the firm, upon an undertaking to 
 replace them in three months, or sooner if required, and he afterwards 
 
 (z) Malcolm v. Scott, 5 Exch. 601. 
 (a) S. C, 2 Mac. & G. 601; see 6 Hare, 570. 
 
 (6) Supra, p. 44, and see Marsh v. Keating, 1 Mont. & A. 605 ; Ex parte Bolland, 
 Mont. & M'A. 315. 
 
 (c) Ex parte Stephens, 11 Ves. 24 ; see Ex parte Blagden, 2 Rose, 249 ; b. 0., let 
 Ves. 467. 
 
 (d) Auriol v. Smith, 18 Ves. 203. 
 
 (e) See instance Glyn v. Baker, 13 East, 509.
 
 116 8B A N T N THE LAW OF B A N K IHG. 
 
 lent "tlicr pari of such securities to A., one of the partners in the firm, 
 
 on h\- own separate account, other securities being, on both occasions, 
 
 sited by the respective borrowers, according to agreements, in pledge 
 
 for those which were borrowed. After the expiration of three months, 
 
 from the time of the first loan, the firm, with the consent of the customer, 
 
 sited other securities in the box in exchange for those first pledged, 
 
 afterwards became bankrupt, when it appeared that the customer 
 
 had been regularly credited, in the 1 ks of the Brm, with interest on 
 
 all the securities borrowed, hnt that A. had. without the knowledge either 
 r*i->-n of bis copartners or the customer, abstracted *the securities 
 L J pledged by himself upon the Becond loan, and had applied the 
 
 proceeds to his own individual ti- 
 ll Id, 1-t. that the value of the securities, lent to the firm, was not 
 i contingent debt within the 6 Geo. IV. c. 16, -. d that, as 
 
 there had been rw ihnuin.l for their replacement before the bankruptcy, 
 the customer had no proveable debt in respect thereof, either against the 
 joint estate or any of the Beparate estai 
 
 2nd. That the firm was not responsible for the abstraction, by A., of 
 
 !Uliti< a pledged upon the second loan, although the key of the box, 
 
 :1 as the box itself, was left in the custody of the firm, inasmuch 
 
 did not appear that the firm had any authority to open the box or 
 
 its contents j and, consequently, that the customer had no 
 
 right of proof, in respect of the second loan, against the joint estate, 
 
 hut only against the separate estate of A. 
 
 And, - mfJr , even if the firm had been chargeable for the abstraction, 
 on the ground of negligence, the claim would have been only a claim 
 tor unliquidated damages, and, therefore, not proveable against the joint 
 iff) 
 
 toll,, wing case (which illustrates the principle that a partnership 
 creditor has a right to receive payment of his debt, out of the assets of 
 a <1< ceased partner, to the full amount of his demand, against the original 
 firm, and that although the demand may arise from a fraud to which the 
 deceased was ,,,, party. )(/<) may also he usefully cited her,-, to exemplify 
 the duties which hankers owe to their clients, and the retribution which 
 tails on the violation of them, reaching often to those who are, in no 
 way. guilty of the crime or fraud in question. 
 
 Certain stock W8S transferred to a partner in a banking house, by way 
 
 iUlity, for money borrowed of the firm by a customer. The debt 
 
 , |24"i W9t subsequently discharged, hut *byconsent, the stock was DO t 
 
 -• retransferred. The stock was afterwards fraudulently dsiposed of. 
 
 Then one of the partners died, and, after his decease, the remaining 
 
 n became bankrupt. Lord Eldon held the creditor entitle. 1 to 
 
 have the remaining stock transferred to him, to receive the residue of 
 
 • if possible, out of the estate of the bankrupt partners, and to 
 
 • the de-eased partners estate for the deficiency, (t) As was 
 
 177. 
 
 r - i I'l'ill- Oh. i: Oldakerv. Layender, 5 Sim. 2 
 
 ' ■ ■
 
 ORDERS ON BANKERS. H7 
 
 observed by Lord Eldon, and as the principle appears to be indisputably 
 established, " the deceased partner's estate must remain liable, in equity, 
 until the debts which affected him, at the time of bis death, have been 
 fully discharged. "(i) 
 
 In such cases of misapplication of stock, the creditor may elect either 
 to consider the proceeds of the stock as a debt due from the deceased 
 partner's estate, or to have the stock specifically replaced. (k\ 
 
 Trust Funds. — Again, where a trustee, under a will, permits a trust 
 fund, as the moneys are from time to time realized, to be paid into the 
 hands of bankers who have knowledge of the trust, and one of the firm, 
 without the assent of the trustee, deals with a portion of the fund by 
 investing it on mortgage; there, though the bankers were held not to be 
 jointly and severally liable in the character of trustees, but only under 
 a liability as between banker and customer, yet, on the bankruptcy of 
 the bankers, the trustee could only prove, against their joint estate, for 
 such balance as was in their hands at the time of the bankruptcy; and 
 it seems to be undecided whether the sum laid out on mortgage is to be 
 considered as in their hands, at the time of the bankruptcy, although the 
 mortgage itself must enure for the benefit of the cestui qui trust. (I) 
 
 Bankers also are treated in some degree as having a fiduciary rH<19 „-. 
 Character, as regards the payment of cheques, so as to be liable L ""J 
 if they honour a cheque, which, they have the means of knowing, is 
 drawn in fraud of the depositor of the fund out of which they pay it. 
 Thus where the receiver of an estate has a private account, and then 
 opens another account, in the name of the estate, in circumstances to 
 affect the bank with knowledge, that the sums placed to that account, 
 belong to the owner of the estate, and then draws a cheque on the estate 
 account and pays it into his private account, the bank is liable for the 
 amount to the owner of the estate. (m\ 
 
 On the other hand, if a customer pays in a cheque to his account, the 
 bankers cannot refuse to give him credit for it, merely because it has 
 been improperly received, (n\ 
 
 One of two trustees of a sum of stock, sold it out under a power of 
 attorney, to which he had forged the signature of his co-trustee, and 
 sometime afterwards absconded : 
 
 Held, that the Bank of England was compellable, in a Court oj 
 Equity, to reinvest the stock in the name of the other trustee. 
 
 "The liability of the bank is constituted," said the Vice-Chancellor 
 of England (Shadwell,) « by the act of the 11 Geo. IV. & 1 Will. IV. c. 
 13, by which the four per cents, were converted into three-and-a-half per 
 cents. First of all, certain enactments were made, which had the effect 
 of giving an option to the different proprietors of the four per cents., 
 either to accept the same amount of stock in the three-and-a-half per 
 cents., or to be paid off. The act then provided that the dividends of 
 the newly-created stock should be payable at the Bank of England, and 
 
 (i) Vulliamy v. Noble, 3 Meriv. 593. (k) Baring's case, 1 Meriv. 611. 
 
 (I) Ex parte Burton, 3 M. D. & De G. 3G4. 
 
 (m) Bodenham v. Hoskyns, 2 De G. M. & G. 903. 
 
 (a) Tassell v. Cooper, 9 C. B. 509, 526.
 
 IJv ., k\.\l ON THE LAW OF BAN KIN-:. 
 
 that the -urns for tin- payment of them Bhould be issued and paid out of 
 the Consolidated Fund. I notice that, with reference only to that 
 singular ground] on which the Court of King's Bench rested their judg- 
 ment, in the case of Davii v. Th Bank of EnolandJtA when it was 
 heard in error \ namely, that, inasmuch *as the declaration did 
 I '"''J not allege that the requisite funds, for payment of the dividends, 
 had been Bupplied to the bank by the government, there was no liability 
 on the part of the hank. Now, it Beems to me, that every court of law 
 
 OUght to take it for -ranted that that whieli the legislature says shall he 
 
 done, ha- he'ii done; hut. however, tie' court of error was satisfied to 
 get rid of any difficulty, in that case, by making that objection." 
 
 • • Tie' 10th Bection of the act provides that books shall he kept by tin' 
 hank, in which the names of the proprietors of the new stock shall appear. 
 . the loth section, a- I understand it. has made it the duty of the 
 nor and Company of the Bank of England to keep an account, in 
 books to be provided for that purpose, which shall show every transfer 
 and assignment, which is made, by parties appearing to be interested in 
 • »ck in question. They arc made, if 1 may use the expression, the 
 parliamentary book-keepers of this fund ; and it is a duty which they 
 owe to all the persons who may he interested in the fund, so to keep the 
 account a- that it may distinctly appear, at all times, what transfers and 
 omenta have been made. And my opinion is, that if, at any time, 
 there has been stock Btanding in the name of A., and afterwards that 
 stock did not appear (no matter from what cause) to be standing in his 
 name. A. would prima facie, have a right to say, ' bet the account stand 
 a- it <lid on a given day.' If it can be shown that A. himself has trans- 
 ferred the stock, that is an answer; hut the hank account ought to be 
 .vitli regard to every individual who ever appeared as a stock pro- 
 prietor, iii such a manner a- to show what the account really is." 
 
 ■• If that b< SO, it follows, as a matter of course, that relief may be bad 
 in equity, because the plaintiff in equity has to allege against tin' hank, 
 
 ■ Sou are hound, by law, to he my book-keeper in respect of my stock, 
 and to Bhow nie the true account of it; and if I can show that, upon a 
 
 day, Stock Stood in my name, and now show that it does not stand 
 
 ■ , ,_-. "in my name, and 1 have not authorized the transfer of it, you 
 I J are responsible to me: that is to say, you must make the account 
 
 OUght to have b1 1.' " 
 
 "This appears to me to he the true view of the case; and, according 
 t . that view, there would he a direct right in every person who was in- 
 ked in tie [uestion, to file a hill against the Bank of Eng- 
 land, to have any error, occasioned by the hank, corrected. It is observ- 
 able, that an action gives a remedy cirouitOUBly only, because all that 
 can bi ' d by an action is a certain Mini of money, which may or 
 may not he sufficient to buy a fund to replace the Btockj and it seem- to 
 t the true view of the case i- that which I have taken, and which 
 
 m< d from the provisions of the act of Parliament." 
 
 \nd I further think that the view which I have taken is a COmplefr 
 ind 5 Barn, .v C
 
 ORDERS ON BANKERS. HO 
 
 answer to the argument that, where the account stands in the names of 
 two, they are joint tenants, and each of them may transfer a moiety of 
 the fund. The unsoundness of that argument is apparent from this, 
 that, if it be the right of the joint tenant to transfer a moiety of the fund, 
 he may, (supposing the amount of it to be 4,000/'.) first transfer 500/. 
 Then 500/. will remain in the names of himself and his co-tenant, and 
 he may transfer a moiety of that 500/. ; and so he may go on, transferring 
 moiety after moiety, until the remainder will be less than any assignable 
 quantity. Virtually, he will have the power to transfer the whole ; and 
 that will be the result of the doctrine that a joint tenant of a fund has a 
 right to transfer a moiety of it. In my opinion, however, it is apparent, 
 from the plain language of the act of Parliament, that the transfers 
 were to be made, by the parties, in whose names the stock, which was to 
 be made the subject of transfer, stood." 
 
 " In this particular case, the very view of the law which I take was 
 adopted by the Bank of England ; for no transfer was made, except on 
 the production of that which was, apparently, an authority of the two 
 joint tenants ; but it turned *out not to be the authority of the m 9S1 
 two ; and my opinion upon the statute is that, therefore, it was a L d J 
 nullity: and the bank, having authorized a transfer which they ought 
 not to have sanctioned, are themselves now liable, in a Court of Equity, 
 to restore, to the parties complainant, the stock as it stood immediately 
 before the transfer."^) 
 
 Illegal Orders of Customer. — Bankers are not unfrequently liable to 
 be made responsible, for the objects of those who lodge sums with them, 
 to be retained and paid over on a given event. Thus, a banker, who 
 permits a sum of money to be paid into his bank, for the purpose of 
 being paid over, for corruptly procuring an appointment under govern- 
 ment, may be indicted, for a conspiracy, along with those who are to 
 procure the appointment and to receive the money, (o) 
 
 The same principle would seem to apply in case of money in like 
 manner placed with a banker as stakeholder, as it were, to be paid over, 
 after an election,, for the purpose of bribery. 
 
 So, wherever bankers receive money, and agree to hold it to be paid 
 over for any purpose forbidden by the law, it seems they would be alike 
 liable, for, in such case, an individual stakeholder would be liable, if 
 fixed with a knowledge of the illegal purpose, and bankers are in no dif- 
 ferent situation from any other individual ; they are not, like carriers, 
 innkeepers, &c. obliged to serve all customers, and therefore in some 
 respects protected by the law ; it is at their option whether they will 
 open an account, or allow money destined for an illegal object, to be paid 
 in, on an open account. 
 
 (p) Sloman v. Bank of England, 14 Sim. 475, 485. 
 
 (q) R. v. Pollman, 2 Campb. 233. This is at common law. See also 49 Geo. 
 III. c. 126, s. 3, and 49 Geo. III. c. 118.
 
 320 RANT OK THE LAW OF BANKING. 
 
 [*129] OH A PTER V. 
 
 Arnn tfTABLE BSCHPTS, ETC. 
 
 Thk subject of accountable receipts, given by bankers, is one of some 
 
 importance, bat one of which the development, by means of judicial de- 
 
 . does 00I appear to be in proportion to what one might desire; in 
 
 other words, hut few '|iiestions on, or relating to, the subject have been 
 
 presented to the Courts for decision. 
 
 When a person deposits money, with a banker, without intending that 
 it Bhould be called for, from time to time, by cheques, it is sometimes 
 the practice, for bankers, to contract to pay interest on the moneys thus 
 lent to them, and to give an accountable receipt, — that is, a memorandum 
 of the receipt of the principal, an acknowledgment that they are account- 
 able for it on demand, and a promise to pay interest upon it, during the 
 time it remains, in their hands ;(a) but the latter clause is not always, or 
 necessarily, a part of the instrument. 
 
 The reader will remember that bankers are not liable to pay interest 
 on money deposited with them, in the absence of express contract to do 
 
 An acknowledgment in this form — 
 
 « Mr. T. has left in my hands 200?. 
 
 «J. A." 
 not require a stamp to make it evidence ;(<•) and generally, it is en- 
 r#1 0^-. acted, that "receipts given fur money deposited *in any bank, 
 L J or in the hands of any banker, to be. accounted for, whether with 
 interest or not," are exempt from stamp duty, " provided the same be 
 not expressed to be received of, or by the hands of, any other than the 
 : to whom the same is to be accounted for."(d\ 
 ('/i'i,<:/> of Firm. — A person depositing money at a banker's, and 
 taking their accountable receipt, does not, by continuing to leave his 
 money in the bank, after a dissolution of the original linn, and the con- 
 stituting of a new one, consisting of some of the old members and of 
 other persons, discharge the former partners who have gone out, although 
 ceives interest regularly from the new linn, and gives no notice, and 
 continues to transact business, with them, in the common course, and 
 that for a |" riod of four years, until they become insolvent. Such foots 
 ar<- not sufficient to enable a jury, to com,: to the conclusion, that he did 
 
 '•'•" metimes it i- stated expressly not to bear 
 
 d Btapleton \. Btapleton, l I >\m. L86, 187. 
 
 !'.. a: 0. .'•!! : Me Taylor v. Steele, 1G M. k W. CG5 ; 
 
 Oar. .v P. 204. 
 
 A it Vict. <■. 59, schedule. Acknowledgment by banker of receipt of 
 
 t, by allotted of ■hares, does not require stamp. Clarke v. Chaplin, 1 Exch. 
 
 i
 
 ACCOUNTABLE RECEIPTS, ETC. 121 
 
 discharge the outgoing members of the firm,(e), and assent to transfer the 
 credit to the new firm, though he had made fresh deposits with them 
 and received fresh accountable receipts from them.(e) Of course, the 
 outgoing partners are not liable to the customer, beyond the amount due 
 to him, at the time of their retirement ; on the other hand, the incom- 
 ing partners are not liable, for debts incurred previously to their joining 
 the firm : so that a customer, suing for the balance of his account, is 
 liable to be nonsuited, upon its being shown that one or more of the de- 
 fendants was not in the firm, at the time, when the cause of action ac- 
 crued^/) 
 
 *In the case in which this general principle was recognized, m qi , 
 as the Statute of Limitations would have been a bar to a fresh L ' J 
 action, the court — upon affidavits which showed that the defendants had 
 never, during some negotiations, which extended over several years, respect- 
 ing the subject-matter of the action, raised any question as to their being 
 the proper parties to be sued, and had averred in a bill filed by them 
 against the plaintiff, after pleading and before trial, that the liabilities of 
 the preceding firm had been transferred to the defendants, — set aside the 
 nonsuit, and gave the plaintiff leave to amend the declaration by striking 
 out the two defendants, who had been erroneously sued, (although it 
 appeared upon the bill,) who were the members of the firm when the 
 cause of action accrued. (/) 
 
 If bankers give an accountable receipt to A., the usual course of deal- 
 ing being, to pay interest on the amount mentioned in their receipts, and 
 A. dies, and pending a contest, for the administration of his estate, the 
 accountable receipt comes to the hands of a stranger, who fraudulently 
 gets payment from the bankers, and the receipt is returned to them and 
 cancelled, the administrator of A. may recover, in equity, against the 
 bankers, the principal and interest due upon the receipt, as well as the 
 costs of the proceedings. (#) 
 
 Partnership and Bankruptcy . — A. deposits moneys with B., C. and 
 D., who are partners in banking, carrying on business under that firm, 
 and receives from them promissory notes, in which they promise to pay 
 him the amounts, three months after sight respectively, with interest. 
 In September, 1831, A. dies. In March, 1837, B. dies, having ap- 
 pointed C. and X. his executors. C. and D. continue the banking busi- 
 ness, in the same firm as before, till 1842, and interest is regularly paid, 
 on the promissory notes, by the firm until that time. In May, 1842, the 
 customers of the bank *are invited to transfer their accounts to r ^.-. q9n 
 the Isle of Wight Joint-Stock Banking Company. In December, L J 
 1843, C. and D. become bankrupts. In the same month, the executors 
 of A. file their bill in equity, against the executors of B. and the devisees 
 
 (e) Gough v. Davies, 4 Price, 200; Daniel v. Cross, 3 Ves. 277; see Blew v. 
 Wyatt, 5 Car. & P. 397. See as to evidence, to show knowledge of retirement 
 from banking firm and intention to credit new firm. Hart v. Alexander, 2 M. & 
 W. 484. It might, in some cases, be found in practice more desirable for the cus- 
 tomer to transfer the credit to the new firm, as regards the question of enforcing 
 the responsibility. Lyth v. Ault, 21 L. J., Exch. 217. 
 
 (/) Craufurd v. Cocks, 6 Exch. 290. {g) Pearce v. Cresswick, 2 Hare, 286.
 
 !_._> GRANT OH THE LAW OF BANKING. 
 
 under his will, for payment of the amounts of the promissory notes, out 
 of the personalty, or real estate of B. The acta of the surviving partners 
 were held not to have the effect of taking the debt, upon the notes, 
 out of the operation of the Statute of Limitations, as against the real or 
 persona] estate of the deceased partner; for that acts done by one of the 
 surviving partners, who was executor of the deceased partner, — which 
 the Bun Lving partners, as such, were bound to do, — could uot prima 
 facie be considered to have been done in the character of executor. The 
 notes were dated respectively — "J 1st -January, 1826, -2nd January, 1831; 
 28th February, l^.'i"); the last being received, by the executors of A.. 
 for moneys deposited by them, on that date.(A) This case is obviously 
 will deserving of notice, as regards the effect of the Statute of Limita- 
 tions. 
 
 A., to whom the Sheffield and Rotherhain Bank was indebted, takes 
 accountable receipts for the sums due from the bank. 
 
 The course of dealing was, that as long as the sums, for which these 
 receipts were given, remained in the bankers' hands, the receipts were 
 returned to the bank once a year to be cancelled, when the interest, for 
 the past year, was cither paid or allowed in account, and fresh receipts, 
 in plan' of the cancelled ones, were given. 
 
 A. died, and, pending a contest for the administration of his ©statu . 
 the above-mentioned accountable receipts came into the hands of a 
 Btrangi r, who, by a fraud, obtained payment of the Bums due upon them; 
 the receipts were returned; and they were afterwards cancelled by tear- 
 ing off the signature at the foot. 
 
 r*"mi The administrator of A. was held, there being nothing to *show 
 L °' -I that the receipts were transferable BO as to entitle the holder to 
 demand paymenl of the sums represented by them, to be in a position 
 to maintain a suit in equity, against the bank, for payment of those 
 rami 
 
 II. t. . it i- to be observed, the mode in which payment was obtained 
 was this: — The receipts were presented at the Worksop Branch of the 
 Nottinghamshire Bank, with an indorsement purporting to be that 
 of A., and it being unknown to the manager, &c., of that branch that 
 A. was dead, the money was paid and the receipt- given up; their 
 
 ac int iras, in the course of business, charged by the Nottingh a mshire 
 
 to their London bankers, to whom the receipts were remitted; 
 
 shortly afterwards the Sheffield and Kotherham Bank direct the same 
 
 London bank* credit to the Nottinghamshire Bank for the 
 
 amount, and the receipts were delivered up, to the Sheffield and Rothcr- 
 ham Hank, who were, therefore, wholly innocent. (/) 
 
 Infancy. — Bankers cannot, at common law, as it seems, bind them- 
 
 . an accountable receipt, for money deposited with them, given 
 
 on behalf of an infant. (/•) But, in equity, bankers may enter into 
 did accountable receipt, or promissory note having the same effect as 
 an accountable receipt, with a trustee for an infant. Thus, where 
 banki ra made a promissory note in the following form : — 
 
 (h) v. Fordham r. Willis, 10 Hare, 217. 
 
 < iriek, 2 Ham, 286. (k) CaUand v. Lloyd, 6 M. & W. 2G.
 
 ACCOUNTABLE RECEIPTS, ETC. 123 
 
 Fourteen days after sight, I promise to pay to Mrs. H. 0., trustee for 
 J. R. W., or order, 2000?. with interest at two and a half per cent. 
 For 0. B. M. and Hanbury. 
 
 (Signed) Daniel Hanbury. 
 
 and the account was kept in the name of Mrs. H. 0., as trustee for the 
 above-named person, an infant, these acts were held to be complete to 
 constitute her a trustee for the infant ; and the bankers were held to have 
 done rightly, at *her death, in paying over the money to her exe- p^, „.-. 
 cutor, since, as representing Mrs. H. 0., the trust devolved upon L J 
 him.(») 
 
 Where, however, money was transferred in the books of bankers, by 
 order of a customer, to the account of certain persons, of whom the cus- 
 tomer was one, but there was nothing to show that the others had ever 
 had notice, and there was some evidence that the transfer had been 
 ordered with the fraudulent intent of evading legacy duty,(o) and that he 
 had shown an intention to exercise acts of ownership over the fund ; 
 there, although the interest, allowed by the bank, had been duly carried 
 to the credit of the account, it was held, that this was a declaration of 
 trust which was imperfect; that it might have been revoked, in which 
 case the trustees could not have recovered from the bankers, on the one 
 hand, and the bankers on the other, could not have refused to pay to the 
 customer, (p) 
 
 But where one of the partners, in a banking firm, opened an account 
 with the firm, in his wife's name, for the education of certain infant 
 children, and caused an accountable receipt to be signed, by the other 
 partner, on behalf of the firm, purporting to be for 800?., received from 
 the wife for the education of the children, and caused that sum to be 
 placed to the credit of the account so opened in the wife's name, and his 
 private account to be debited with the same, the transaction was consid- 
 ered to embody a complete and irrevocable declaration of trust in favour 
 of the children. (j) 
 
 Alteration. — Altering the sum, for which an accountable receipt is 
 given, is altering in a material part, and indictable as forgery, M 
 
 By 11 Geo. IV. and 1 Will. IV. c. 66, s. 10, it is felony *to r*^-, 
 forge an accountable receipt, whether for goods or money, or for L -I 
 any note, bill, or other security, for payment of money ; and the same 
 of altering, and of offering, uttering, disposing of, or putting off, know- 
 ing the same to be forged or altered, any such accountable receipt, with 
 intent to defraud any person whatsoever. (s) 
 
 Operation of Ace. Rec. — Where it was the practice of a bank to treat 
 such receipt, with the depositor's name thereon, as an order for the pay- 
 
 (w) Wheatley v. Purr, 1 Keen, 551; see Stapleton v. Stapleton, 14 Sim. 186; 
 and see 1 Phill. 55. 
 
 (o) See Holliday v. Atkinson, 5 B. & C. 531. 
 
 \p) Gaskell v. Gaskell, 2 Y. & J. 510. 
 
 (q) Stapleton v. Stapleton, 14 Sim. 186. 
 
 (r) Reg. v. Johnston, 5 Cox, C. C. 133. 
 
 (s) As to the punishment, see that stat. and sect, and 16 & 17 Vict. c. 90, ss. 1, 
 2,3.
 
 \2\ ..KANT OS THE LAW 01 LAN KIN (J. 
 
 meat of the money deposited, and interest, upon the receipt being pre- 
 l to them, and the defendant took the reoeipt to the bank, and] 
 
 hating written the depositor's name thereon, delivered it to the bankers, 
 
 who }>aiJ him the principal and interest due thereon ; it was held, that 
 ub properly oonvioted, nnder an indictment framed npon sect. 3 of 
 
 the above statute, as for a forgery of an order for the payment of 
 
 A scrip certificate in a railway company, is neither " an accountable 
 receipt," nor "an acquittance or receipt," within the meaning of sect. 
 10, of the above Btatute, and therefore the forgery of such document is 
 nut a felony, but a misdemeanor only.(«) 
 
 " Oiu '» Account a-ttJt one's Bank* r, is a mode of Bpeaking very com- 
 monly used ; and on that ground it seems desirable to ascertain, if pos- 
 sible, the legal effect of the term. Now, the correct application of the 
 
 phrase is made, only when it is used of an immediate account, on which 
 a person can draw : and it is not justly applicable in a case where a per- 
 son, having an immediate account with a provincial bank, which has fur 
 spondents and agents a banking house in London, speaks of having 
 pMQftn :,u account with the *latter house; and, if he orders his debtors 
 L J to pay in moneys to the latter house, and the former stops pay- 
 ment, the accounts between the houses being unsettled, he cannot recover 
 the moneys from the latter. Also, the debtors having paid in the moneys 
 in obedience to a letter from the creditor, ordering them to pay in "for 
 our account," and having no directions of a more specific nature, will be 
 held to be discharged. (cc) 
 
 Deposit /»'"■' ipts may be given by bankers, in such a way as to cause 
 a double liability; as, for instance, took place under the following cir- 
 cumstances. 
 
 John O'Brien, father of Daniel O'Brien and Catherine Callaghan, 
 lodged a -urn of 150?. in a bank, upon a deposit receipt, in his own name. 
 Upon Daniel's producing the receipt sometime afterwards, and demand- 
 ing the interest, he was refused, the bank paying only to the depositor 
 in person; John, upon this, used, for some time, to come, along with 
 Daniel, and receive the interest, &c, taking the fresh receipt in his 
 (John's) name, on each occasion. Afterwards he obtained permission, 
 that Daniel should receive payments upon producing the receipt, indorsed 
 ' .• •' hn. Then Daniel, by his directions, pays an additional sum of 51. 
 into the Lank, and obtains a new deposit receipt for the whole amount 
 then in the hands of the bank, being L35?., but in the name of Catherine 
 ii. (afterwards Callaghan,) Daniel telling the manager that his 
 t'atlnr intended I ■'>■>/. to be the portion of his daughter Catherine, but 
 desired to retain a control over it during his life, and that he wished the 
 deposit receipt should be drawn in hex name. In a few days afterwards, 
 John O'Brien died, Daniel took out administration, testamento <ninexo, 
 and, as administrator, claimed the ):;;,/. Shortly after, Catherine mar- 
 ad she and her husband demanded payment of this money. Both 
 
 . Atkin=on, far. .t M. 325. .See 1 Oar. & K. 151. 
 I") ' 131. 
 
 Green, Huh. N. l\ K. 2
 
 DEPOSITS OF SECURITIES. 125 
 
 Daniel and Catherine, with her husband, commenced ^actions m „ 
 against the bankers, who filed a bill of interpleader against both; L J 
 but the bill was dismissed, this not being the case of a double demand 
 for one duty, but a case in which there may be two liabilities; and a 
 mere pretext of conflicting claims will not support a bill of interpleader; 
 the court is bound to see that there is a question to be tried. Here the 
 transaction created a debt from the bank to Catherine, in consequence of 
 the mode of dealing adopted by the bank ; they were not at liberty to 
 resist her demand, or to treat the case as one of interpleader, because 
 John's representative, who made the last deposit, and took the new re- 
 ceipt, chose to rescind the whole transaction. It is quite consistent with 
 this view, that John's representative may still be able to recover against 
 the bank ; but it is their own fault, if they created a new liability in 
 themselves, without obtaining a sufficient discharge from the orignal title 
 to the money in their hands. (y\ 
 
 The bank, in the above case, applied for the bill of interpleader ; but 
 it was pointed out, by the court, that in so doing, they asked it to destroy 
 their own mode of dealing : for, if the cancellation of the old receipt, 
 and the issuing of the new receipt, did not create a liability to the person 
 named on the new receipt, the bankers' system of deposit receipts was 
 defective. 
 
 CHAPTER VI. [*138] 
 
 DEPOSITS OP SECURITIES. 
 
 We will next trace the rules of law which regulate the obligations 
 and rights of bankers, with respect to bills of exchange, and other 
 securities, deposited with them by their customers and others. Questions 
 of this nature commonly arise between the customer, or other depositor, 
 on the one hand, and the assignees of the bankers, upon their bankruptcy, 
 on the other. 
 
 Deposits for specified Purposes. — The primary or general rule is, that 
 when a banker is employed as an agent, with whom undue bills are 
 deposited by the customer, in order that the banker may receive the 
 proceeds, when the bills become due, or for any other specific purpose,(a) 
 and the banker becomes bankrupt, having the bills, intrusted to him, 
 remaining in specie in his hands, they continue the property of the 
 customer, and do not pass to the assignees, and he may reclaim them in 
 specie from the assignees. 
 
 But, on the other hand, if bills of exchange are remitted to the 
 banker, on the general account, between him and the customer, and are 
 not distinguished from the cash items of the account, they cannot be 
 reclaimed by the customer from the assignees. In other words, if the 
 
 (y) Cochrane v. O'Brien, 2 Jo. & L. 388, per Sugden, C, Irel. 
 (a) Belcher v. Campbell, 8 Q. B. 11.
 
 120 i.KANT OS THE LAW vV BANKING. 
 
 relation of principal :m<l agent was the relation of the customer and the 
 banker, with respect to the bills at the time of the latter*s bankruptcy, 
 the customer may recover in trover from the assignees; if the relation 
 had passed into that of debtor and creditor at the time of the bankruptcy, 
 
 then the customer *has no such right of action against the at 
 L ° l J aees,(&) although the customer might, of course, have sued the 
 banker, for the amount of the bills, as soon as they were entered as cash 
 to the- customer's credit, and the books of the banker would have been 
 evidence against him on this point. 
 
 Thi> general rule, that bills deposited or remitted, for the purpose of 
 the banker's receiving the proceeds when due, continue the property of 
 the customer, if, at the time of the bankruptcy, they remain in specie in 
 the hands of the banker, will be applied in all cases, where there is no 
 bargain between the customer and the banker, that, as soon as the bills 
 reached the banker, the property in them should be changed] and such 
 bargain cannot be inferred, from circumstances which fail to show any 
 consideration for the customer's assent, as it would be unreasonable in 
 the banker to ask, and imprudent in the customer to accede, to such 
 terms, in the absence of a consideration. 
 
 In one ease, (which has been fully confirmed,) the course of dealing 
 between the customer and the bank, and the usage of the banking trade 
 throughout the county (of Lancaster,) was shown to be in accordance 
 with the following tacts: — 
 
 The account, in the case in question, was kept in this form in the 
 paas book, or banking 1 k. 
 
 A. B. [the customer,) in account with ('. 1». (the banker.) 
 
 Dr. 
 
 
 
 Or. 
 
 L821. 
 
 e s. d. 
 
 1821. 
 
 C 8. '/. 
 
 July 4.— To Hank. 
 
 80 
 
 July 1. — 15y Balance, 
 
 1,300 
 
 « 5. — To draft, 
 
 LOO 
 
 « 2.— By Bills, 
 
 75T) 
 
 _ '■■ At the end of every half-year, an account was sent in to the 
 -I customer from the banker. In the account of Christmas, 1821, 
 
 and also in the pass-1 k, a bill for 689?. I'.**., (one of those in question, 
 
 in an action of trover, brought by the customer, against the assignees of 
 the bankrupt banker.) was included, being one of several bills, paid in 
 i,n the 10th December, 1821, and it formed part of the cash balance of 
 911/. -•• •"''/., therein Mated to be due to the customer. When the 
 
 mens paid bills into the bank, the above usage was, that (provided 
 the banker approved of the bills,) they were never written short, but 
 
 ent' red on On day they wen paid in, both in the pass-1 k, and in the 
 
 books of the bank, to the credit of the customer, in the form above 
 
 i ; and after 8UCD entry, the customer was at liberty to draw to the 
 
 full amount appearing to hi- credit, by cheques on the bank. Bills 
 
 {/,) Be I'.-, parte OureeU, Ambler, 237 j Kx parte Sarjeant, 1 Rose, 163, which 
 
 of the above role of law to the Beveral t icts of those cases. The 
 
 i tablished by Scott \. Barman, Willc.-. 400; Bolton v. Puller, 1 B. 
 
 '■ M 22; confirmed in Ex parte Atkins, 3 M. 
 
 I K 103.
 
 DEPOSITS OF SECURITIES. 127 
 
 disapproved of were not so entered, but were sometimes returned, some- 
 times deposited till due. All bills so entered, whether made specially 
 payable to the customer, or not, were indorsed by him, or if, for any 
 private reasons, lie did not wish his name to appear on the bills, a letter 
 was given to the bank, acknowledging himself to be equally liable, as if 
 he had indorsed. An interest account was kept, not in the pass-book, 
 but in the books of the bank, in which the customer was debited with 
 interest, on each cash payment to him, from the date of the payment; 
 and on each payment in bills, from the period when the bills were due 
 and paid, and, on the other hand, he had credit for interest, from the 
 date of each cash payment by him, and from the period when each bill, 
 paid in by him, became due, and was paid. As the accounts were 
 balanced half-yearly, if a bill was paid in, which did not become due 
 before the end of the half-year, the customer was debited with the 
 interest up to the time when the bill was due. The balance only of the 
 interest was entered in the pass-book, and this was the usual mode of 
 keeping an interest account. If only the undue bills paid in by the 
 ^customer were taken out of his account, in this case, as made r^-1^-1-1 
 up to the 31st December, 1821, the customer's account would, L J 
 at that date, appear to be overdrawn ; but some of the payments made, 
 by the banker to the customer, were made in bills payable at future times, 
 and some of them were also undue on 31st December, 1821, and if all 
 the undue bills, on both sides, had been taken out of the account, the 
 customer would have been made creditor, on that account. 
 
 At the period of the bankruptcy, the cash balance was in favour of the 
 customer, exclusive of the bills in question. It was proved to be the 
 constant usage, and course of dealing, of this bank and of others in the 
 •county of Lancaster, to use bills, so paid in, by paying them away to 
 their customers as they thought fit. 
 
 No direct proof was given that the customer, in this case, was acquainted 
 with this practice, and the customer never received any thing, in this 
 case, from the banker but cash, notes and bills, drawn by the banker 
 upon his London agents, (c) 
 
 On these facts and the usage above stated, it was contended, that a 
 bargain or contract between the customer and banker was to be inferred, 
 to the effect that bills so deposited by the former were to become the 
 property of the banker, upon reaching his hands. But the court con- 
 sidered that, though it appeared to be the practice to carry the amount 
 of the bills to the cash column of the account, the bills were entered, not 
 as cash, but as bills, (d\ and that, although the amount was so carried to 
 the cash column, it did not follow *that the customer assented to p^ ^ 9 -. 
 their being considered as cash. That merely amounted to an L "J 
 
 (c) Thompson v. Giles, 2 B. & C. 422. The usage of bankers was again stated 
 to prevail in Lancashire to the above effect, in the case of Ex parte Arniitstead, in 
 re Dilworth & Co., bankers in Lancaster; cor. Ld. Lyndhurst, C, 1827, 1828, re- 
 ported 2 Gly. & J. 319. 
 
 (d) Thompson v. Giles, 2 B. & C. 431, 432. Even if they had been entered as 
 cash, that would have admitted of explanation ; Giles v. Perkins, 9 East, 12 ; and 
 the customer, even in that case, might be shown to be entitled to the bills. Ex 
 parte Sarjeant, 1 Rose, 153, per Bayley, J., 2 B. & C. 430. 
 
 January, 1857. — 10
 
 128 GRANI OS THE LAW OF BANKING. 
 
 undertaking on the part of the bank to answer cheques in advance, to 
 the amount of the bills so entered. By indorsing the bill.- paid in, or 
 hv _'i\ iiiL r :i guarantee, when he did not choose to indorse, the customer 
 might enable the hanker to negotiate tin- hills, and, in such case, a bond 
 bolder might hare aright t<> retain them. But the banker could 
 only )>•• justified in negotiating them, when that was rendered a reason- 
 able course, by the -tut.' of the customer's account. The custom or usage 
 of banker- in Lancashire was stated to be, it will be observed, to use 
 bills paid in by their customers; but it was not stated to be the usage 
 that the bankers should so nse the bills, as their own, without reference 
 r., tin condition of tin customer's account. 
 
 On the whole of the ease, it was concluded, that there was no founda- 
 tion lor supposing a bargain to have been made, enabling the banker to 
 as his own. bill- deposited with him;(</) and the customer recovered 
 ills from the assigneefi 
 This decision, it will be observed, is in accordance with the general 
 n : — if a customer put bills into his banker's hands, although that 
 him a right to expect that his cheques will be honoured to the 
 amount of the bills paid in; still they remain his property, subject to 
 any lien the banker may have on them, to the extent of his advances. (V) 
 Ordt r and Disposition. — Hills in such circumstances are not in the 
 i rder and disposition of the banker, within the Bankrupt Laws; for a 
 hanker, in this relation to his customer, is a factor for money, within 
 the m< aning of the exception of factor in those laws;(/) and it is well 
 known *that bankers receive bills as factors, or agents, to get 
 I J payment of them when due.(/) 
 
 EnU ring Bills as Cash. — The entry as cash in the banker's books of 
 
 BUoh bills, would not, of itself, change the property;^) for a banker's 
 
 hook.- cannot be evidence for him. though tiny may lie against him ; and 
 
 tie assent of the customer to the bills being considered as cash, must lie 
 
 proved in -ucli ease ; the onus of proving it being on the banker ;(/<) also, 
 
 it i- hard to -appose that, by entering the full amount in the cash column 
 
 of the account, the banker intended to debit himself presently, with the 
 
 whole sum, to be received in future, on the bills. In order to change 
 
 tie property, it must be shown that the banker bought the bills, or what 
 
 i- in general the same thin-, discounted them; then the customer might 
 
 immediately sued the banker for the price which the banker had 
 
 for the hill-, hut -till retained in his hands; and if the 
 
 merdid not indorse the hills, and they were afterwards dishonoured, 
 
 the banker would have no remedy against him.(t) 
 
 I the] I k in the above ease, it will be observed, the bills were 
 
 (rf, - •/;. precedi 
 
 \e) Per Holroyd, J., 2 I'., h 0. 431, 433. 
 
 (/) J B. kC. 431, l ::;. per Lord Kldon, C, 1 Rose, 239, 253; Bryson v. Wylie, 
 
 Bullet, J.. ■ a. 
 
 (g) i.i.i- t. ivrkin-. 9 Bast, L2 j Bughes v. Spooner, per Best, J., at Nisi Prins, 
 confirmed, per Holroyd, J., id. 431. 
 K\ parte Sarjeant, l Boee, 163, per Ld. Eldon, C. ; see 2 B. & C. 430, 433. 
 (i) Per Holroyd, J., J B. & <'. I
 
 DEPOSITS OP SECURITIES. 129 
 
 entered at the full amount, which does not tend to show that they were 
 discounted ; nor do the entries in the interest account tend that way. If 
 it had been intended that the bills should become the property of the 
 banker, they would have been entered as cash, deducting the discount. 
 
 Property in Bills not due. — It will be observed, to follow as a conse- 
 quence of the rule above stated, tbat when the property in bills not due, 
 paid in to a banker's remains in *the customer, if, by any acci- r*i44-i 
 dent, they are destroyed, without the default of the banker, the L -< 
 loss does not fall upon him, but upon the customer. (?') 
 
 This, and all other consequences of the rule follow, and the rule itself 
 prevails equally, where the bills are deposited for any other specific pur- 
 pose, as well as that of receiving the amount when due.(£) 
 
 There is no doubt, however, that bills may he paid in, under circum- 
 stances, furnishing evidence of a transfer of the property in them, from 
 the customer to the banker ; that is a question of fact, to be determined 
 by a jury, upon the whole of the circumstances in evidence. (i) 
 
 Liability of Bankers criminally. — Finally, it may be observed, on 
 the above discussed case, that a pretty clear opinion was expressed, by 
 two out of three learned judges, who decided it, to the effect, that a 
 banker, (notwithstanding tbat it was the usage of the county of Lancaster 
 amongst bankers,) who negotiated bills intrusted to his care, in the 
 manner stated, knowing himself to be on the eve of bankruptcy, would 
 run great hazard of incurring the penalties enacted in 52 Geo. III. 0. 63, 
 a statute passed to prevent the embezzlement of securities for money, &c, 
 deposited for safe custody, or for any special purpose, with bankers, &o.(l\ 
 That statute is now repealed ; but provisions are substituted by 7 & 8 
 Geo. IV. c. 29, ss. 49,. 50, by which bankers may, in certain circum- 
 stances, render themselves liable to transportation, by misapplying secu- 
 rities intrusted to them. 
 
 This enactment(?)i) is as follows : — 
 
 " And for the punishment of agents intrusted with property, be it 
 enacted : that if any money, or security for the ^payment of p-^g-i 
 money, shall be intrusted to any banker, merchant, broker, L 
 attorney, or other agent, with any direction in writing, to apply such 
 money, or any part thereof, or the proceeds, or any part of the proceeds, 
 of such security, for any purpose specified in such direction,(n) and he 
 shall, in violation of good faith, and contrary to the purpose so specified, 
 in anywise convert to his own use or benefit such money, security, or 
 proceeds, or any part thereof respectively, every such offender shall be 
 guilty of a misdemeanour, and being convicted thereof, shall be liable, 
 at the discretion of the court, to be transported beyond the seas for any 
 
 (i) Per Best, J., 2 B. & C. 433. A similar opinion by the Judicial Committee of 
 P. C, Young y. Bank of Bengal, 1 Deac. 681. 
 
 (k) Belcher v. Campbell, 8 Q. B. 11. 
 
 (1) See 2 B. & C. 427, 434. 
 
 (to) 1 & 8 Geo. IV. c. 29, s. 49. 
 
 (n) Both in the case of money and of a security for money, there must be a 
 written direction, and it must be so alleged in the indictment. Reg. v. Golde, 2 
 Moo. & R. 425.
 
 [30 OBANI OH THE LAW i'F RANKING. 
 
 rmn not exceeding fourteen years, nor lessfo) than seven years, or to 
 suffer Buch other punishment, by fine or imprisonment, or by both, as 
 the oonrl shall award." 
 
 •• Ami it' any chattel, or valuable Becnrity, <>r any power of attorney, 
 tor the sale or transfer of any Bhare, or interest, in any public stock, or 
 fdnd, whether of this THngdom,(p) or of Great Britain, or of Ireland, or 
 of any foreign state, or in any fund of any body corporate, company, or 
 society, shall be intrusted to any banker, merchant, broker, attorney, or 
 other agent, for safe custody, or for any special purpose, without any 
 authority to Bell, negotiate, transfer, or pledge, and he shall, in violation 
 of g 1 faith, and contrary to the object and purpose for which such 
 
 chattel, Becnrity, or power of attorney, Bhall have been intrusted to him, 
 sell, negotiate, transfer, pledge, or in any manner convert, to his own 
 use, or benefit, such chattel or security, or the proceeds of the same, or 
 any part thereof, or the share, or interest, in the stock, or fund, to which 
 r*1J.P"l Su<-M power of attorney shall *rclate, or any part thereof, every 
 L -I such offender shall be guilty of a misdemeanour, and, being con- 
 victed thereof, shall be liable, at the discretion of the court, to any of 
 the punishments which the court may award, as hereinbefore last 
 mentioned." 
 
 Now, it will be observed, that, although in the first branch of the 
 section, a written direction is required, as an essential, to render the 
 party liable to the punishments therein mentioned, there is no such 
 requirement in the second branch of it, which is nearly a re-enactment, 
 in fewer and more comprehensive words, of the first section of the statute 
 52 Geo. III. e. 63, already referred to, except that it does not, as that 
 statute does, make it an ingredient in the offence, that it shall lie com- 
 mittal. " with intent to defraud the owner or owners of any such instru- 
 ment or security, or the person or persons depositing the same," &c. : 
 so that, to the latter branch of the clause, the expression of opinion, 
 mentioned above/5) seems to apply, at present ; and it may, therefore, 
 be proper to point out tie' hazard which bankers incur, who so negotiate 
 hill- deposited with them, as in that case: also, it is clear, that in case 
 of -mh negotiation being held to be, in itself, a misdemeanour, under the 
 last-mentioned branch of the clause, — that is, where there is no 
 written direction, — it would be no excuse to show, that what the defend- 
 in t- did, was according to the usage of bankers, in the district, or county, 
 in which they carried On business. Nor would any other excuse avail, 
 unless they could bring the case within the meaning of the subjoined 
 provisoes, "r eith< r of them, as follows: — 
 
 ■ Provided always/r) that nothing hereinbefore contained, relating to 
 
 all affect any trustei . in Or Under any instrument whatever, or 
 
 any mortgage of any property, real or personal, in respect of any act, 
 
 EL v. White, I Car. A ■■, evidence. Transportation for less 
 
 than fi n abolished, 16 A ] 7 \ i< i i 
 
 . the anion with Scotland there is no longer a kingdom of Eng- 
 land. Per Wile. - \. Walker, i W. Bla. 287 ; -<, l Bla. 0. 96; 1 A. & E. 
 
 • I 
 ' • p. L29. : & 8 Geo. IV. c. 29, s. 50.
 
 DEPOSITS OF SECURITIES. 131 
 
 done by *such trustee or mortgagee, in relation to the property m,., 
 comprised in, or affected by, any such trust or mortgage ; nor «- J 
 shall restrain any banker, merchant, broker, attorney, or other agent, 
 from receiving any money which shall be, or become, actually due or 
 payable upon or by virtue of any valuable security, according to the 
 tenor and effect thereof, in such manner as he might have done if this 
 act had not been passed ;(s\ nor from selling, transferring, or otherwise 
 disposing of, any securities or effects in his possession, upon which he 
 shall have any lien, claim, or demand, entitling him by law so to do, 
 unless such sale, transfer, or other disposal, shall extend to a greater 
 number or part of such securities or effects than shall be requisite for 
 satisfying such lien, claim or demand." 
 
 It is further provided, M as follows : — 
 
 " Provided always, that nothing in this act contained, nor any pro- 
 ceeding, conviction or judgment, to be had or taken thereupon against 
 any banker, merchant, broker, factor, attorney, or other agent as afore- 
 said, shall prevent, lessen, or impeach any remedy at law or in equity, 
 which any party, aggrieved by any such offence, might or would have 
 had if this act had not been passed ; but, nevertheless, the conviction of 
 any such offender shall not be received in evidence, in any action at law 
 or suit in equity, against him ; and no banker, merchant, broker, factor, 
 or other agent as aforesaid, shall be liable to be convicted by any evidence 
 whatever as an offender against this act, in respect of any act done by 
 him, if he shall, at any time previously to his being indicted for such 
 offence, have disclosed such act on oath, in consequence of any com- 
 pulsory process of any court of law or equity, in any action, suit or pro- 
 ceeding, which shall have been bona fide instituted by any party aggrieved, 
 or if he shall have disclosed the same in any *examination or r^-ijon 
 deposition before any commissioners of bankrupt. "(t£) L -• 
 
 In a case of great importance and notoriety, in which certain bankers, 
 Strahan, Paul, and Bates, had fraudulently disposed of a number of 
 Danish bonds, which had been deposited with them, for safe custody, 
 and for the purpose of receiving the dividends upon them, for the use of 
 their customer, who had deposited them, it was attempted to take advan- 
 tage of this proviso, in the above section, by the bankers becoming 
 bankrupts, and, after they had been arrested and imprisoned on the 
 criminal charge, making a voluntary declaration, in the Court of Bank- 
 ruptcy, as to the misappropriation of the securities ; but the attempt 
 failed; a conviction was obtained, and sentence passed. 
 
 The prisoners, William Strahan, Sir John Dean Paul, baronet, and 
 Robert Makin Bates, were indicted at the Central Criminal Court,(w) on 
 the statute 7 & 8 Geo. IV. c. 29, s. 49, for that they, being bankers and 
 agents to John Griffith, clerk, and being intrusted by him with certain 
 
 (s) See Thompson v. Giles, 2 B. & C. 422, and 7 & 8 Geo. IV. c. 29, s. 1. 
 
 (t) 7 & 8 Geo. IV. c. 29, s. 52. 
 
 («) 7 & 8 Geo. IV. c. 29, s. 52 ; and see 5 & 6 Vict. c. 39, s. 6 ; and the case of" 
 Eeg. v. Strahan, Paul and Bates, Centr. Crim. Crt. 1855. 
 
 (m) The trial took place Oct. 26 and Oct. 27, 1855, cor. Alderson, B.. Martin B., 
 Willes, J. Sessions Paper, 1854-1855, (Moon, Mayor,) p. 695.
 
 |32 LANT OS THE LAW OF BANKING. 
 
 bonds (set out in the indictment) for safe custody, without any authority 
 to pledge <>r make away with them, in violation of good faith, did sell 
 and convert the same to their own nse and benefit. 
 
 There were other counts for negotiating, transferring, and pledging 
 the name, and for a conspiracy, respectively. 
 
 The prisoners having pleaded not guilty, application was made on their 
 behalf for permission to plead double, by adding a special plea, alleging 
 the met of the prisoners having made the disclosure above mentioned, 
 with a view of availing themselves of the 52nd section of the statute 
 above Bet outj but the application being considered as resting on no 
 authority, and made only to the discretion of the court, *was 
 I -I refused; and, as evidence was afterwards admitted, for the pur- 
 
 pose of bringing before the court the steps which had been taken, by 
 the prisoners, in this matter, it may perhaps be now regarded as settled 
 that, in future, any banker, in like circumstances, may avail himself of 
 t defence similar to this, to the criminal charge, under Not guilty, if at 
 all ; and that it is not necessary to plead it specially. 
 
 It was proved that the prisoners had sold certain Danish bonds, and 
 transferred others belonging to Dr. Griffith, a customer, who had depo- 
 Bited them with the prisoners, as his bankers and agents, for safe custody, 
 and in order that they might obtain, for him, the dividends, as they fell 
 due, and that he had never given them any authority to pawn or sell the 
 same, or any part of them, and that he had never overdrawn his account 
 with them. 
 
 Por the defence it was proved, that on the 17th June, 1855, one 
 
 Montague .John Tatham filed a petition for adjudication, in bankruptcy, 
 
 against the prisoners ; that they were adjudged bankrupts the same day, 
 
 and surrendered on the 12th ; that tiny made a statement concerning 
 
 the disposal of the securities in question, without examination, and not 
 
 in pursuance of any order of the sitting commissioner; and that they 
 
 made this declaration, for the general purpose of assisting the creditors, 
 
 and for the special purpose of making a disclosure under the above- 
 
 iih ntioned statute; that they were then questioned, by the solicitor for 
 
 the fiat, as to the truth of the statement, and each answered (affirming 
 
 ;:l, •• v.-.." The commissioner had, previously to this, refused an 
 
 application made by counsel, on behalf of the prisoners, to be permitted 
 
 unine them, with reference to the statement, as to the disposal of 
 
 the securities, saying, " If any creditor applies for the bankrupts to be 
 
 examined, he can do so; hut, upon the hankrupt's own application, I 
 
 it."' 
 
 Tin' prisoner! were convicted on the first and third counts, and 
 
 need to fourteen years' transportation. 
 
 prien-i ibility of Banker* in Equity. — The following cases show 
 
 J how far bankers are liable, in equity, as to deposits. 
 
 A banker receives a deposit of a parcel, sealed, containing certain 
 
 American loan certificates, of the alleged value of lo,ii(io/., for the pur- 
 
 ife custody, from a jn rson, who, goon after, is imprisoned under 
 
 civil pp..-,.., being a partner in a trading firm, which had failed: he 
 
 demand the deposit; the hanker refuses to re-delivcr it under
 
 DEPOSITS OF SECURITIES. 133 
 
 the circumstances, and is then served with attachments out of the Mayor's 
 Court by the creditors of the trading firm. The banker is subsequently 
 sued in trover by the depositor, and held to bail. It was considered 
 that he was entitled to relief in equity, upon a bill of interpleader, but 
 that he need not have come there, as at law he would have been dis- 
 charged — (at that time) — on common bail, upon bringing the deposit 
 into court ; and proceedings in the action would have been staid, till the 
 attachments were disposed of, by the depositor, in the name of the 
 banker ; Lord Loughborough, C, saying, it would be a very rash act in 
 any one to pay money to a man, subject to the bankrupt laws, who was 
 in prison at the time ; that he thought the banker had a right of action 
 against the depositor, on the ground of the holding him to bail; (a) that 
 it being known that a person lying two months in prison is subject to 
 the bankrupt laws, and, therefore, that a payment made in the meantime 
 is bad, it is unjust to expect the bankers to trust him, and take upon 
 themselves — without a consideration — the risk of deciding that there was 
 no foundation for his arrest, (x) 
 
 In a subsequent case, arising on the bankruptcy of another firm, of 
 Lancaster bankers, in which also the custom or usage of banking there 
 was proved to be, substantially, as above stated, it was decided, that, 
 where certain short bills drawn before, but not payable till after, the 
 bankruptcy took *place,(y) had been deposited with the bankers, p^-i 
 and by them negotiated with their correspondents in London, L J 
 before the bankruptcy, the proprietor was entitled to be indemnified, by 
 the London bankers, from the surplus security which they had taken, 
 from the Lancaster bank (being title deeds,) after satisfying their own 
 lien on those securities. It ought to be stated that the London bankers 
 had given credit, to the Lancaster bank, for the amount of the bills, in 
 reduction of their claims upon the Lancaster bank ; also the balance of 
 account, between the customer, who was owner of the bills, and the 
 Lancaster bank, had always been in his favour, (z) 
 
 The result of this decision is to show that, notwithstanding the usage, 
 Dilworth & Co., the bankers, had no right to dispose of the bills, as they 
 did, by transmitting them to the London bankers, and that although 
 bills deposited, in like circumstances, had been, in the half-yearly 
 accounts, sent to the customer, since the commencement of his account 
 with the bank in 1822, considered as cash without objection on his part, 
 that did not amount to a permission to discount or negotiate.^) 
 
 In a second case, arising on the bankruptcy of the same firm of Dil- 
 worth & Co., of Lancaster, it was ruled, that a customer was not entitled 
 to recover short bills, in the hands of his bankers, on their bankruptcy, 
 where the habit of dealing between the parties was such, as to warrant 
 an inference, that they mutually considered and treated such bills as 
 cash. The bills in question were indorsed by the customer generally, 
 and paid into the bank, and indorsed by the bankers to their London cor- 
 
 (z) Langston v. Boylston, 2 Ves. jun. 101, 109. 
 
 (y) See Mont. & M'A. 108, n. Date of bankruptcy, Feb. 13, 1826. 1 Dea. & G. 
 411 ; as to usage, see sup. 140-142. 
 
 (z) Ex parte Armitstead, 2 Gly. & J. 371, 379.
 
 j . G IB ANT OX THE LAW OF BANKING. 
 
 respondent These bilk were drawn previous to, but were not due until 
 after, the bankruptcy.^/) 
 
 - Short BUlt — Entt ring short — Liability of Banker. — The 
 
 l J terms "short bills/' sod "entering bills short," are very fre- 
 .(ii. nth- met with, in eases relating t.> the law of bankers, being technical 
 expressions, osed amongst persons engaged in banking: it is desirable, 
 therefore, before proceeding farther, t.> state the meaning that is attached 
 to the words. 
 
 When, up. .n the receipt from a customer, of an undue bill, the banker 
 not carry the amount direi try i" the former's credit, as for a pay- 
 in. nt .4' bo much cash, into his account, but notes down the receipt of 
 the bill, in the customer's account, with its amount, and the time when 
 due, in a previous column of the same page, lie (the banker) is said to 
 •• enter thuse bills short. "(A) Ami the bills, when so entered, are coni- 
 m. nily said to be " short bills. "(c) Though, whether they will be con- 
 si. 1. -re. 1 si. by the courts, does not depend upon the particular mode in 
 which they are entered, but upon the dealings between the parties, and 
 tli. circumstances. Such bills, in the absence of special agreement 
 1' tween the parties, to the contrary, or habits of dealing, from which 
 Buch agreement may be inferred, are considered in the nature of a 
 deposit ; the property in them is not changed ; on the bankruptcy of the 
 banker, with them in his hands, they may be recovered. (d) 
 
 On the subject of short bills, it may be proper to add, to what fell from 
 the court in the Lancaster cases, respecting the hazard which a banker 
 run-, win. has intrusted to him any valuable security for safe custody, 
 or t'nr any other special purpose, without authority to negotiate, transfer, 
 i.r pledge, and, nevertheless, in violation of good faith, and contrary to 
 . | ,-, the object of the trust, he takes upon him to *transfer, pledge, 
 L J or in any manner convert such security: that a banker, appro- 
 priating short bills to his own purposes and use, would probably be 
 indictable, for embezzlement, under 7 & 8 Geo. IV. c. 29, s. 49; at all 
 events, a banker, who has pledged a short bill of a customer, will be 
 refused hi- certificate of discharge on his baukruptcy.(e) 
 
 In some other oases, it has appeared to be the usage of some country 
 banking houses, to enter undue hills, that are deposited, to the credit of 
 the customer, giving him either cash for them, or liberty t.. draw for the 
 aiiniiiiit opon tic bank, the customer always indorsing the bills. The 
 ce of I,,, n. inn bankers i- t" enter a- above j'i-t Btated. The differ- 
 between the effeol of the two mi di - i- this: the London banker, if 
 tie- oustomer'e account be overdrawn, has a lien on the bill deposited 
 
 En re Dilworth, 4c, Mont. A M A. 102; see also Bx 
 
 Benson, in re DH worth, 4c, l Deac. ,\ 135, and Bee thi observations on 
 
 the practice of tl lire bankers, in the judgments in Thompson v. Giles, 2 
 
 Giles r. Perkins, » East 13. 
 re] K\ parte Pease, i Rose, 232, per Ld. Bldon, C. 
 
 \d) Bx parte Dumas, 1 Atk. 233 : 8. «'.. 2 Vi • n. 582 : Zinck v. Walker, 2 W. 
 
 t). a D. O. 103 : Jombart v. Woollett, 2 My. a 0. 
 
 -utrt. 4 De ('< k S. 19 ; and see 1 Fonbl. R. 84, 113.
 
 DEPOSITS OF SECURITIES. 135 
 
 with him, though not indorsed. The country banker, who, under this 
 practice, always takes the bill indorsed, has not only a lien upon it, if 
 the customer's account be overdrawn, but has also his legal remedy upon 
 the bill by the indorsement. It is to be observed, however, that under 
 neither system does any lien accrue to the banker, until the customer's 
 account be overdrawn. Moreover, if, at the time of the country banker's 
 bankruptcy, the customer's balance be in his favour, he has a right to 
 recover, in specie, all such bills of his, as are in the banker's hands,(/) or 
 have been pledged by the banker, to a third person. [g) 
 
 With respect, however, to the policy of depositing bills, indorsed by 
 the party depositing, the following considerations must be attended to : — 
 
 Whether a bill is to be considered as intended to be discounted or de- 
 posited, does not depend on whether it is indorsed, but on the question 
 whether it was the intention to *make an absolute transfer, giving ^-. -A-, 
 full power to go against all parties to the bill ; or merely to enable L J 
 the person with whom it is deposited, to receive the amount from the 
 other parties. Indorsement, however, is prima facie evidence of the 
 former. (/A 
 
 The clearly settled rule is, that, if indorsed bills are deposited with a 
 banker, and they are by him negotiated to a third person, though the 
 purpose for which they are deposited be ever so cruelly disappointed, by 
 his becoming bankrupt, the original owner, who deposited or remitted 
 them to the banker, who fails, can have no claim to recover them in 
 trover against such third person ;(i\ and, moreover, he can only come in 
 as general creditor of the bankers. (&) 
 
 Lord Eldon more than once observed, when sitting in bankruptcy, than 
 it ought to be generally known, that if bills indorsed are remitted to 
 bankers, they may dispose of them effectually, though contrary to the 
 faith of the understanding between the parties, and the remitters can 
 only come in as general creditors on the bankruptcy. (&) 
 
 Permission to discount, given by the customer, for the purpose of re- 
 ducing the balance, when the banker shall be in advance, is a circum- 
 stance controlling his absolute authority over the indorsed bills of his 
 customer. (£) 
 
 It is to be remembered also, that, as on the one hand, writing bills 
 short, is only evidence,(m) to be rebutted by proof of the intentions of, 
 or actual bargains or contracts between, the customer and banker ; so, 
 on the other hand, the circumstance of the bills not having been written 
 short, amounts to nothing, to show they were taken as cash, " unless 
 there be a concurrence manifested at the time, or to be *inferred, r#i 55-1 
 from the habits of dealing between the parties, that they were to L J 
 
 (/) Giles v. Perkins, 9 East, 12, 14. The presumption has been said to be that 
 bills deposited with a banker are short bills. Ex parte Annitstead, 2 Gly. & J. 
 371 ; see 1 Rose, 243, 254; 5 T. R. 494. 
 
 (g) Collins v. Martin, 1 B. & P. 648. 
 
 (A) Ex parte Towgood, 19 Ves. 229. 
 
 (i) Per Cur., Bolton v. Puller, 1 B. & P. 546. Collins v. Martin, id. 648. 
 
 (k) Per Ld. Eldon, C. ; Ex parte Pease, 1 Rose, 238 ; Ex parte Wakefield Bank, 
 id. 246 ; see Ex parte Bond, 1 M. D. & D. G. 15. 
 
 (I) Ex parte Leeds Bank, 1 Rose, 254. (m) Ex parte Pease, 1 Rose, 239.
 
 13G .KANT ON THE LAW OF BANKING. 
 
 be considered as oa&h.'Yn) ELenoe, in a case where sueli bills were 
 
 entered, liills and ea-li together, in the running account, without distinc- 
 tion, iii the absence of evidence to show aliunde that they were mutually 
 considered as cash, Lord Bldon appears to have thought, that the cus- 
 tomer was entitled to the bills, ou the bankruptcy of the banker, (o) 
 
 Again, if there be a letter accompanying the remittance of bills, and 
 giving directions as to how they shall be dealt with, that is evidence of 
 intention, which cannot be got rid of by the subsequent unauthorized 
 aet of the hanker in entering the hills short ;( p\ for the books of a banker 
 not communicated to those dealing with him, are not evidence for 
 him, though he may be evidence for them.(;>) 
 
 Bills remitted for Sale, dfce. — So, whenever liills of exchange are re- 
 mitted for sale, and the proceeds are directed to be applied to a specific 
 purpose, the property in the bills remains in the remitter, until the pur- 
 pose, for which they were remitted, is satisfied ; and, moreover, the value 
 of the bills maybe recovered in indebitatus assumpsit, from the pur- 
 chaser of the bills, who had notice of the purpose for which they were 
 remitted, and of the misapplication of the proceeds by the agent. The 
 bills, in the case in which the above doctrine was recognized, were not 
 indorsed, (y) 
 
 A case of the sale of bills, by a factor, is precisely the same in prin- 
 ciple, and must be dependent on the same rules of law, as a sale of a 
 bill by a banker ; and may, therefore, here be cited in illustration of the 
 foregoing Btatments, and as elucidating this part of the law of banking. 
 r*i ?p-i A foreign merchant remits bills to his factor, in London, *with 
 -I directions to sell them, advising him, at the same time, of his 
 intention to draw for the proceeds. The factor receives the bills, and 
 Bells them, hut, before the receipt of the purchase-money, becomes bank- 
 nipt, and dishonours the merchant's drafts for the amount of the bills. 
 The sale in London, of foreign hills of exchange, usually (the report 
 states ) takes place on foreign post-days, and it is the custom of merchants, 
 not to pay the purchase-money, until the foreign post-day, next after the 
 day of sale. In this ease the bills were remitted on the 21st March, on 
 the - v th tiny were Bold, and the price, according to the above custom, 
 would have been payable on the 31st: on the 30th, the factor Btopped 
 payment : on the 20th April following the fiat issued. Here the mer- 
 chant, and not the assignees of the factor, were held to he entitled to the 
 
 proceeds of these bills, notwithstanding the bills had been indorsed, both 
 
 by the principal and the factor, and were sold by the factor in his own 
 name. The factor did not receive a del credere commission, nor did he 
 take upon himself any liability, in case of nonpayment of the purchase- 
 money, in respect of such bills, but was accustomed, on such sales, to in- 
 form the principal of the names of the purchasers, (r) 
 
 '■ r I..]. Bldon, C. Bi parte Sarjeant, l Rose, 154. 
 
 K\ parte Sarjeant, i Rose, L64, commented on by Bayley, J., 2 B. & C. 430. 
 i . ; ■ ■ Peace LB 
 
 Miittvloll Seal v. Dent. - Ifoo. P. 0. 3 I '■>. 
 
 nil, 8 Deac. L69 The judgment was rested on Scott v. Surman,
 
 DEPOSITS OF SECURITIES. 137 
 
 The following are the facts of a case of celebrity, the judgment in 
 which lays down principles that have always been considered fundamen- 
 tal in this branch of the law. 
 
 John Bolton was a merchant at Liverpool ; John Forbes and Daniel 
 Gregory, for some years, and until they became bankrupt, were co-part- 
 ners, and carried on business as merchants in London, under the firm of 
 Burton, Forbes, and Gregory. On the 1st of May, 1774, Forbes and 
 Gregory entered into partnership with one Charles Caldwell and one 
 Thomas Smith, in the trade and business of bankers, to be carried on at 
 Liverpool, under the firm of Charles Caldwell & Co., and so continued to 
 trade until *that house became bankrupt. The house at Liver- r^-^i 
 pool had dealings and transactions with Forbes and Gregory, «- J 
 carrying on business as merchants, under the firm of Burton, Forbes 
 and Gregory, in London, and between the two houses in Liverpool and 
 London there was an open account current. Bolton, for some years, 
 and until the house at Liverpool became bankrupt, employed that house 
 as his bankers ; and they used to procure bills, which had been accepted 
 by him, payable at the house in London, to be there paid when they fell 
 due. Those payments, when made, were carried by the house in London 
 to their account with the house at Liverpool, and by the house at Liver- 
 pool to their account with Bolton. In the banking account between 
 Bolton and the house at Liverpool, Bolton was made debtor for cash re- 
 ceived of them, and for bills accepted by him, payable at the house in 
 London ; and was credited in such account for all bills and cash paid by 
 him into the said house. An interest account was kept between Bolton 
 and the house at Liverpool, which was balanced every three months ; and 
 the latter was also allowed a profit on the said account of one quarter 
 per cent, on bills and cash paid, either by them or by the house in Lon- 
 don, on their account, for the use of Bolton. Bills having been accepted 
 by Bolton to the amount of 19,702?., payable at the house in London, he 
 on the 28th February, 1793, proposed to the house at Liverpool, that 
 they should procure the same to be paid as they fell due by the house in 
 London, and that to enable the house at Liverpool to provide for such 
 payments, he should deliver to them certain other bills of exchange, 
 whereof those mentioned in the declaration were parcel, with his indorse- 
 ment thereon ; to this proposal the house at Liverpool agreed. In pur- 
 suance of this agreement, Bolton on the 1st of March, 1793, and on 
 other days between that day and the 16th of March, in the same year, 
 delivered to the house at Liverpool several bills of exchange, amounting 
 in the whole to the sum of 11,583?. 2s. 9d. * Among these was p-^g-i 
 the bill for 4,000?. mentioned in the declaration. On the 16th L J 
 of March, 1793, he delivered to the same house other bills, with a cheque 
 on that house (which they received as cash,) to the amount of 912?. Is. ; 
 among these was the bill for 398?. 18s. 2>d., also mentioned in the decla- 
 ration. All these bills were the property of Bolton, and duly indorsed 
 by him ; the bill for 4,000?. having also, previously to the delivery, been 
 accepted by him. On the 4th of March, 1793, the bills accepted by 
 Bolton, payable at the house in London, were, by the house at Liver- 
 pool, entered on the debit side of the account between them and Bolton;
 
 [38 GRANT OH THE LAW OF BANKING. 
 
 ami the bills delivered by Bolton to the house at Liverpool were, by 
 them, carried to his credit in the same account, at the times when they 
 
 !■ spectively delivered. On the « K 1 tit si«K- «.»f the books of the house 
 at Liverpool it appeared that Bolton's acceptances, amounting to 19, 702J, 
 
 In./., were entered thus: — 'March 4th, 55 acceptances due in 
 April, 19,702J. 138. I"-/. :" ami on the credit side, the bills delivered to 
 the house by Bolton were entered, some with the date of their delivery, 
 and the .lay nn which they were to tall due, and BOme with the former 
 only. On the 2nd <>t' March, 1703, the house at Liverpool remitted the 
 above-mentioned hill for 4,000Z., together with other bills, to the amount 
 in the wlmle nt' oii.iiuii/. ami upwards, to the house in London, to be car- 
 ried to the account of the house at Liverpool ; and on the 16th of March, 
 they remitted the above-mentioned bill tor :;'.is/. L8s. Bd. } together with 
 other bills, amounting in the whole to S.oiin/. ami upwards, to be carried 
 to the same account. This last bill for 398?. 18*. ■">'/., Mas received by 
 the bouse in London on the L8th of March, 1793. Some of the bills de- 
 livered by Bolton to the house at Liverpool were negotiated by them, 
 and the value received to their own use. On the 28th of February, 
 1793, and from thence till the bankruptcy of the house at Liverpool, the 
 house iu London was largely in advance to the house at Liverpool. On 
 . . the lilt h of 31 arch, 1793, the house in London became insolvent 
 
 ' ' -I and on the 18th of the same month, a commission of bankruptcy 
 issued against them, under which the present defendants were assignees. 
 On the Bame day the house at Liverpool also became bankrupt, and a 
 joint commission of the same date issued against Charles Caldwell, 
 Thomas Smith, John Forbes, and Daniel Gregory, as partner- in the 
 banking-house at Liverpool. The house at Liverpool, at the time of 
 their bankruptcy, was indebted to Bolton iu the sum of 2,000/. and up- 
 wards ; and none of that parcel of bills, amounting to 19,7022. L3s. lOif. 
 accepted by Bolton, payable at the house in Loudon, were paid either by 
 that house or by the house at Liverpool, but were paid by Bolton him- 
 self. The defendants possessed themselves of the two bills iu question, 
 wignees of Forbes and Gregory, and refused to deliver them on de- 
 mand. 
 
 On these fact- Bolton brought an action of trover against the assign. <- 
 of Forbes ami Gregory, to recover the bill for 4,000/., ami also the 
 bill for B98J. gg. :;./.. but failed; after much deliberation, the court 
 laying down the principles — 1. Bills in the hands of a banker, in the 
 
 : of a bankruptcy, are to be delivered up, subject only to the lien, 
 which the banker maj have upon them, for the balance of his account; 
 — 2. If indorsed bills are deposited with a banker, and are by him 
 negotiated to a third person, though the purpose, for which they were 
 deposited, should !"• ever so cruelly disappointed, by his becoming bank- 
 rupt, the original owner can have no claim to recover them in trover 
 against such third person ; held tin- true nature of the transaction to be 
 this— that Bolton paid into his bankers' hands these bills, on his general 
 
 int, for a particular purpose, viz., that the bankers might he enabled 
 t" provide for the payment of his acceptances in London. They were to 
 be 'halt with as tin- bankers thought fit to deal with them; to be nego-
 
 DEPOSITS OF SECURITIES. 139 
 
 tiated if they thought fit; to be discounted *at Liverpool if they r^-iprv-i 
 pleased, or remitted to whom they pleased, and were necessarily L J 
 to be converted into money, in order to be means effectual to the purpose 
 of the deposit. Forbes and Gregory were parties capable of requiring a 
 property in these bills, as capable as any third party; and must, there- 
 fore, be considered as third parties, with whom these bills had been 
 negotiated. Therefore the case belongs to the second class of cases men- 
 tioned above, and Bolton could not recover against the assignees, who 
 stood in the same position as Forbes and Gregory themselves. (.s) 
 
 The following is a case of the deposit of a bill of exchange with 
 bankers, by a person who was not a customer or person having an account 
 with them. 
 
 A. deposits with bankers, at Sheffield, a bill of exchange, dated 
 Madras, October 19, 1842, drawn upon Fletcher & Co., London, payable 
 at thirty days' sight, which had been remitted to A., indorsed to his 
 order. On the 12th December, 1842, A. inquired at the bank, at 
 Sheffield, how he was to procure payment of the bill, and was informed 
 by a clerk that the bill must be sent up to London, and remain there till 
 it was paid. The clerk told A. to indorse the bill, and call again on 
 16th January, 1843, at the bank, when he might expect to receive the 
 amount of the bill. The bank made no advance on the bill, but indorsed 
 it especially to their London agents, in whose hands it was when they 
 (the Sheffield bankers) became bankrupt, the fiat issuing on 16th January, 
 1843. The amount of the bill was received, by the London agents, on 
 the 18th of that month, and was placed by them to the bankrupts' credit. 
 On these facts the decision was, that the proceeds of the bill, after satis- 
 fying the lien of the London bankers, for any balance that might be due 
 to them from the Sheffield bank, must be paid to A. ; and if there were 
 other depositors of bills, under similar circumstances, according to the 
 rule in bankruptcy, the proceeds *of all the bills were to be r*iRi"i 
 distributed rateably among them, without any preference of one L -I 
 over the other. (t\ 
 
 Relation of Banker and Country Correspondent. — Having thus dis- 
 cussed the relations, rights, and liabilities, of customer and banker, 
 depositing bills with the latter and having touched upon a case, of the 
 same kind, between a banker and a stranger; it remains to notice what 
 are the relations, in similar circumstances, when dealings between the 
 banker in the country, and his London correspondents, are added to the 
 former simple relation of banker and customer. Now here, notwith- 
 standing the general rule, that indorsed bills of exchange, deposited by 
 the customer with his banker, are at the absolute disposal of the banker, 
 and though the customer, on the bankruptcy of the banker, may recover 
 in specie such of them as remain in the banker's hands, subject to the 
 banker's lien in respect of advances, though he cannot follow the pro- 
 ceeds if they have been converted, yet this absolute property, of the 
 banker, in the bills, may be qualified by circumstances. 
 
 (s) Bolton v. Puller, 1 B. & P. 539. 
 
 (t) Ex parte Froggatt, 3 M. D. & D. G. 322.
 
 140 GRANT ON THE LAW OF BANKING. 
 
 Thus, it I customer deposits indorsed bills with his country banker, 
 to obtain payment on them, and the banker remits them to the London 
 bank, who are hi.- correspondents, bo receive and pay bills, and as such 
 agents have an allowance from him for so doing, and then the London 
 bank becomes bankrupt, with the bills remaining undue in his hands; 
 the assignees, upon receiving the proceeds of the bills, must pay them 
 over to the country bank, subject to the lieu of the London bankers, 
 for anything remaining due from the country bank to them upon the 
 contract between them; the London bankers being the paid agents of the 
 country bank, for this purpose, of getting bills paid, and remitting the 
 proceeds, and their power over the bills being limited to that purpose. 
 
 The same would be the case it the London banker, in the 
 L "J ^annual account between him and his correspondent in the 
 country, there being no proof of agency, had entered the bills as the 
 property of the correspondent. In the former case, he would be consi- 
 dered as the factor of the country banker ; in the latter, there is raised 
 an express declaration of trust. (h) 
 
 Such, then, are the relations of country banker and correspondent, in 
 case of the bankruptcy of the London correspondent. The result to the 
 customer remains to be inquired into. 
 
 Now, it manifestly would be unjust, that the customer should be 
 affected, by the bankruptcy of an agent, whom he has no voice in select- 
 ing, or by the state of the accounts between his banker and that agent ; 
 therefore, although the country banker receives the proceeds of the bills, 
 minvt tin' Bum requisite tij satisfy the London banker's lien for advances 
 (if any,) and to indemnify the estate against acceptances or other engage- 
 iii' nt-. which the London banker is under at the time of the bankruptcy, 
 «'ii account of the country bank, a sum equal to the whole amount of 
 the proceeds of the bills must be paid by the country banker to the 
 customer, (subject of course to the state of the customer's account ;) 
 for 90 "iily ran his contract with, or duty to his customer, be performed. 
 
 So, in another case, where bills were remitted by a country bank to 
 their correspondents in London, and stood, at the bankruptcy of the 
 latter, entered -hurt, not being then due, it was ordered, on petition of 
 the country bank, that the bills should be delivered up to them by the 
 Dees. The country hankers, in this instance, were not creditors of 
 th^ London hankers when this petition was first presented, the cash 
 balance being against them, hut had Binoe become bo, turning the balance 
 r*ii"n ln ''"'''' favour, by taking up the acceptances *given by the 
 ' J London honse on their aocount.(x) The country hankers must 
 have accounted to the customer, who deposited the hills with them, for 
 
 the entile proceeds Of them. 
 
 The following ifl a case of bills deposited by country bankers with their 
 London hanker-, on which the London bankers had a lien, and on which 
 they were, therefore, held entitled to recover against the acceptor, (who 
 
 ('/) F.v parte Pease, 1 & Si parte Wakefield Bank, id. 243; see per 
 
 Bayley, .).. 2 I;, .<c <'. 429, 430. 
 
 (x) Ex parte Etowton, 1 Bote, 15; so Ex parte Buchanan, 1 Rose, 280; Ex parte 
 Burton Bank, '.' id. 102.
 
 DEPOSITS OF SECURITIES. 141 
 
 stood in the character of surety for the country bank,) by virtue of the 
 lien. 
 
 A banking house at Abingdon, being indebted to their London cor- 
 respondents, are urged by them to send them up any bills they could 
 procure. Accordingly they sent up two bills for account, which had 
 been accepted by A. for their accommodation, and which became due 
 respectively 19th March and 19th April, 1814, each of them being dated 
 13th December, 1813. The balance of the cash account, on each of the 
 two first-mentioned dates, was considerably in favour of the country 
 bankers. There were also periods subsequent to those dates, when the 
 general account was in favour of the Abingdon bankers, but they after- 
 wards failed, being, at that time, indebted to the London bankers, in a 
 sum exceeding the principal and interest of the bills. The court at Nisi 
 Prius, held the meaning of the expression " for account," to be for the 
 then floating account; and it was remarked, " There was a period when 
 the lien, on the bills, of the London bankers, ceased to attach, and when 
 the bills might have been redeemed ; but they were not reclaimed, and 
 by allowing them to remain, in the hands of the London bankers, their 
 lien revested when, upon fresh advances made, the balance turned in 
 favour of the London bankers." The action was brought by the London 
 bankers against the acceptor, in virtue of their lien, and by way of 
 enforcing and realizing it ; and there having been a verdict *in -j,-. ^ .-, 
 their favour, the court in banc, confirmed the verdict.^) L -J 
 
 The following is a case, which may fitly have a place here, in connec- 
 tion with the subjects above discussed, and with the last case. A. accepts 
 four bills for the accommodation of B. B. indorses, and deposits them 
 with his bankers, as a collateral security for his floating balance with 
 them. B. becomes bankrupt, when the bankers proved, for a balance 
 greatly exceeding the amount of the bills, exhibiting in their proof these 
 four bills, among others, as securities, then held by them, and they after- 
 wards received a dividend, of two shillings in the pound, on the amount 
 of their proof. The bills were subsequently paid in full by A. : and it 
 was held, that the bankers were bound to refund to A. the dividend of 
 two shillings on the amount of the bills, (s) 
 
 The decision on the following facts, illustrates the relation of country 
 banker and London correspondent, when the former deposits with the 
 latter, a security, by way of pledge. 
 
 A customer gives his promissory note to his bankers, to secure repay- 
 ment of advances. They become bankrupt, but, at that time, the 
 customer holds bank notes of their bank to a greater amount than his 
 promissory note, which, he had all along reason to believe, was still in 
 the possession of the banker. In fact they had deposited it, by way of 
 pledge, with their London correspondents. The London bankers enforce 
 the payment of it from the customer of the country bank, the maker of 
 the note ; but the securities, in the hands of the London bank, were 
 altogether more than sufficient to cover what was due to them from the 
 bankrupts, and the surplus is returned to the assignees. 
 
 (y) Atwood v. Crowdie, 1 Stark. N. Pri. R. 483. 
 (z) Ex parte Holmes, 4 Deac. 82.
 
 ] 12 GRANT ON THE LAW OF BANKING. 
 
 Held, that as tin- customer might have Bel off the aotea he held against 
 the bill in the hands of the bankrupts, he *was entitled to recover 
 
 [ 1 " l) J h~ amount from tin' assignees. The promissory note was payable 
 on demand, with interest The oase is singular in its circumstances. It 
 is obvious, that the customer, thinking that hi- promissory note was still 
 in the hands of the hank, and therefore takin- their notes, in the way of 
 business, which he might not have continued to do, if he had known 
 that they had parted with his promissory note, was put in a different 
 situation, by their conduct. In a certain sense, too, the property in the 
 promissory note had never left the bankrupts ; they had only parted with 
 the possession of it by way of pledge; then the question would be, whether 
 the case did not come strictly within the terms of the class of mutual 
 credit in -tat. 6 Geo. IV. c. L6, s. 50, (now replaced by 1- & 13 Vict. c. 
 106, s. 171,) though the ultimate decision did nut depend wholly on that 
 question. (a) 
 
 Bills deposited by Strangers. — Several of tin' example.-, cited above, 
 have been eases where short bills have been deposited by customers; it 
 being the law, as above stated, that bills are considered short, not merely 
 from the fact of their being entered so, but from a consideration of the 
 habits of dealing between the parties, and all the circumstances. 
 
 The following is an instance of a decision, upon facts somewhat 
 different ; where, viz., the bills were not short bills, and the party depo- 
 siting was not a customer. A person deposit- with bankers two bills, 
 (one for 600/., and the other for 400/.,) indorsed by him; it being agreed 
 that he Bhould draw for the amount of 1,000?., the bankers refusing to 
 discount them; he, in fact, only draws to the amount of 65?., and the 
 
 bankers employ a broker to discount the bills j and then become bank- 
 rupt, in Less than three weeks, after the bills had been deposited with 
 them. It was not the usage of the bank to treat any bills paid in, by a 
 customer, as short bills; but to consider all those paid in by *any 
 L J 'J one, a- the property of the hank, and to be paid in on the cus- 
 tomer's general account ; and in keeping their accounts, they had not, 
 like many oilier bankers, a cash column and a bill column, in their 
 books, but it was their practice to blend both bills and cash ; these were 
 entered a- bills. There was no cash balance, in favour of the person 
 who paid in these bills, at the time of the bankruptcy, and no evidence 
 of any other banking account in his name, but that on the bills. It was 
 part of the above agreement for his drawing, &c., that he was not to draw 
 ..at the amount of the 100?. bill until the 600?. bill was paid, lie was 
 held to be entitled, on the bankruptcy, to the proceeds of the bills. (6) 
 
 Sere, it i- evident, the property in the bills had never passed from 
 the depositor; he was led to consider that the bankers would not buy 
 them j their discounting them aft. rwards was without his knowledge; he 
 
 would have been entitle, 1 to the bill-, if tiny had remained in specie, in 
 the hand- of the bank, i -. 
 
 East India Bills. — Hitherto the tacts, in the various cases cited, have 
 
 (a) Ex parte Staddon, 3 If. D. ft l». Q. 256. 
 Ej parte Edwards, 2 II. D. *D. G
 
 DEPOSITS OP SECURITIES. 143 
 
 arisen respecting ordinary bills of exchange ; the following was the case, 
 of a deposit of East India bills, for safe custody, &c. 
 
 On 6th July, 1836, A. B. deposits with her bankers at Carlisle, for 
 safe custody, certain East India bills, specially indorsed by her, with 
 instructions to receive the amount when due; the indorsement being 
 made merely for the protection of the property. East India bills, in 
 general, are negotiable in the market, like common bills of exchange, 
 and would, therefore, in the ordinary course, be only deemed securities. 
 The balance of A. B.'s account, exclusive of the amount of the bills, was 
 then in her favour, and continued so up to the bankruptcy of the bankers. 
 They charged discount on the bills, in their account with her, and she 
 might *have drawn on them for the amount of them, it being p^.,., 
 the custom, of the bankers of Carlisle, to consider ordinary bills, •- J 
 so deposited, as cash. The fiat issued 23rd November, 1836. The 
 bankers paid away the bills to a creditor, with whom the assignees after- 
 wards settled an account, charging him with the amount of the bills, and 
 receiving from him the balance due to the estate. Here the bankers 
 acted in express violation of the directions under which the bills were 
 deposited, and A. B. was held to be entitled to be reimbursed the whole 
 amount of the bills from the assignees. It would not have made, it 
 appears, any difference, if she had overdrawn her account. These East 
 India bills were drawn (or signed by order of the Governor in Council of 
 Bombay,) on the Court of Directors of the East India Company, and 
 were on account of the principal of the Bengal Six per Cent. Reinittable 
 Loan of 1822 and 1823, payable 18th January, 1837, so that they never 
 were intended, by the parties to them, to be considered in the light of 
 common bills of exchange. (c\ 
 
 The reason why it would not have made any difference, in this case, 
 if the account had been overdrawn, at the time the bankers disposed of 
 the bills, appears to be this : — Where bills, &c, are remitted to a person, 
 for a specific purpose, he is bound to perform that purpose, or return the 
 securities; if he receives the amount contrary to the directions of the 
 remitter, he cannot apply it to the payment of his own debt ; therefore, 
 if the account of A. B. had been overdrawn, it would not have been an 
 excuse for the bankers to say, they had sold or discounted the bills, or 
 paid them away, and carried the amount to the customer's account, and 
 applied it in reduction of her debt to them.(tZ) 
 
 *Bank Post Bills. — So, if a person goes to his banker, and 
 says, here are 10007., in Bank of England notes, get me a bank 
 post bill for them ; the banker cannot receive them silently, as though 
 acquiescing in the object of the customer, and then set up his lien and 
 apply them in reduction of the balance, against the customer, on his 
 account, (e) 
 
 (c) Ex parte Bond, 1 M. D. & D. G. 10. 
 
 (d) Ex parte Brown, 3 Deac. 91, per Erskine, (J. J., which case also recognizes 
 the principle that bills remitted, clothed with a trust, are not within the reputed 
 ownership clause, 6 Geo. IV. c. 16, s. 72, now replaced by 12 & 13 Vict. c. 106, s. 
 125 ; so 1 T. R. 623 ; 1 Sch. & L. 328. 
 
 (e) See observations by Ld. Lyndhurst, C, and Ld. Brougham, Brandao v. Bar- 
 nett, 12 Cla. & F. 802. 
 
 January, 1857. — 11 
 
 [*168]
 
 14 4 R AN I OH THE LAW OF B A N KIN 
 
 Then, such expressions, used in the Utters of remitters of bills or 
 otherwise, as, thai thej expected the banker « to do the needful,"(/) Of 
 «to cover as in due time,"fo) <1" cot enlarge the powers of the banker, 
 or constitute a special contract, authorising him to deal with the bills as 
 his own, nr relieve him from tin obligation of retaining the bills till due, 
 if remitted to receive payment of them. 
 
 So where a bank post bill bad been remitted, by a customer to his 
 bankers, with a letter desiring them to place it to bis credit, and to send 
 him a receipt, and credit bad been given him, in bis account, for the 
 amount of the bill, and a receipt given him, in the same way, as if it 
 had been a cash payment ; the bank post bill, as is mostly the case for 
 the sake of security, when bills are sent into the country, was unaccepted. 
 Now, in such case, if the customer had drawn a cheque upon the bankers 
 for a Bum exceeding his balance, supposing the bank post bill, lor which 
 be had credit in the bankers' books, were not reckoned, and the bankers 
 bad refused to honour the cheque in respect of that deficiency, it seems 
 probable that an action, such as it has been already shown a cu>toiner, 
 who has an undoubted balance in his favour, may maintain in general, 
 on refusal to pay his cheque, could not have been supported ', for the 
 bankers might have answered truly, that an unaccepted bill, though of 
 r*ir«-. the Bank of England, payable seven days after sight, is, *for 
 ' '' J manv purposes, not equivalent to cash ; and in fact, their duty 
 had been pi rformed by transmitting the paper to London, for acceptance, 
 and raising the money upon it within a reasonable time. It was appa- 
 rently, though with hesitation, concluded, therefore, that the bank post 
 bill had never become vested, as property, in the bankers; in other 
 word-, it was never in the character of cash between these parties; the 
 ordinary relation of banker and customer remaining between them not 
 regulated or qualified, by any particular agreement, express, or to be 
 inferred from circumstances or habits of dealing. The customer, there- 
 fore, was entitle,] to the proceeds as against the assignees.^ 
 
 Debentures. — So where debentures for tontine annuities were deposited 
 with bankers, and their assignees claimed a lien on them, and one of 
 the banker- bad received the dividends upon the debentures; it was 
 held, that the deposit was in the nature of a trust, and the debentures 
 not. therefore, in the Older and disposition of the bankers at the 
 time of their bankruptcy. (<) 
 
 Bankruptcy — Reputed Ownership.' — -Mention has been made(/.-j of 
 the position thai bills of exchange, remitti d to a bank' r, clothed with a 
 tru-t. do nol pass to the assignees, upon the bankruptcy of the banker, 
 as they would do it' they were, in such case, within the doctrine of 
 reputed ownership ;(^) but, nevertheless, in all other circumstances, bills 
 
 Ei parte Smith, Back Jombart \. Woollett, 2 My. & C. 389. 
 
 (A) Ex parte Atkins, 3 M. D. A D. G ] ■ doubt as to what 
 
 i -i the precise character of bank post bills. In Forbes r. Marshal], im L. J. (N. S.) 
 Kx. 305, 308, the] «ere considered by Polloi k 0. B., and Alderson, B., to be bills 
 ichange; by Martin. B., to t>e promissory w I . id. 309. 
 
 (ii I looglas, 3 Dea. & 0. 310. 
 
 (k) Bee rap. j>. 142; Bi parte Brown, 3 Deac. 91. 
 (/) G Geo. IV. c. 1C. 3. 72 ; now replaced by 1 2 K 13 Viet. c. IOC. s. 125.
 
 DEPOSITS OF SECURITIES. 145 
 
 of exchange, placed in the hands of a banker, will so pass. For instance, 
 if A., who has had no previous * dealings with a banker, in the ^.-^ 
 country, applies to him to give him a bill, on London, for three L -» 
 bills of exchange, of which the applicant is holder, and the banker does 
 so, and the bill given by the banker is afterwards dishonoured, this 
 transaction is a complete exchange of securities, and trover will not lie 
 at the suit of A. for the three bills ; and, even if the exchange had 
 not been absolute and complete, the banker having become bankrupt, 
 and the three bills having come to the hands of the assignees, must be 
 considered as goods and chattels, in the order and disposition of the 
 bankrupt, at the time of his bankruptcy, within the meaning of the 
 bankrupt law. For the bills were indorsed to the bankers, who had the 
 power of disposing of them, and, in like manner, A. had a similar power 
 over the bill handed to him in exchange ; and the former, being nego- 
 tiable securities, and having remained in the hands of the bankrupts 
 until the bankruptcy, seem necessarily to have been held within the 
 doctrine. The case was held to be quite distinguishable from that of 
 bills deposited by a customer clothed with a trust, for trust property is 
 always considered not to be within the principle of the bankrupt law in 
 this respect. (m) 
 
 But it is not only when bills of exchange or other securities are depo- 
 sited, for a specific purpose, with bankers, that the property remains in 
 the depositor ; there is another class of cases, where money, paid into a 
 bank, may, under certain circumstances, remain the property of the 
 party paying in, and be, therefore, recoverable, on bankruptcy, from the 
 assignees. 
 
 Thus, where a person had deposited, after banking hours, a large 
 sum of money with the manager of a provincial bank, at the banking 
 house, the manager knowing that the *bank was on the eve of [-#-171-1 
 stopping, though no resolution to that effect had been, in form, L J 
 come to by the bankers, and he had placed the money in a place by itself, 
 separate from the funds of the bank, and the bank never after that day 
 opened for business; it was held, at Nisi Prius, by Lord Tenterden, C. 
 J., that the depositor was entitled to recover from the assignees. (?i) 
 
 So where it was the usage of a banking house, that money, paid in 
 after banking hours, should be put into a separate place of deposite, and 
 entered in a counter book, but not carried to the customer's account till 
 the next day ; and a customer paid in a 5007. Bank of England note 
 after banking hours, and the banker, having before resolved not to re- 
 open for business, placed the note in a separate place, and next morning 
 stopped payment and became bankrupt, the customer recovered from the 
 assignees, the bank note being held to remain his property. 
 
 It may be further observed, that the usage was for the customer to be 
 considered to be entitled to draw upon money so paid in, at the opening 
 of the bank, on the following morning. The " counter book" was a book 
 
 (to) Hornblower v. Proud, 2 B. & A. 327 ; see Bryson v. Wylie, 1 B. & P. 83, n. ; 
 and see instance of a somewhat like transaction, but not amounting to an exchange, 
 where the result was different ; Parke v. Eliason, 1 East, 544. 
 
 (n) Threlfall v. Giles, (Lancaster Summer Ass. 1822,) cited 2 M. & Rob. 492.
 
 14| GRANT OS T1IK LAW OF BANKING. 
 
 in which an entry was made of all moneys paid in to the bank, as the 
 same was paid in, and wan always resorted to, to ascertain whether money 
 has been paid in by a customer, daring the day, before a cheque of such 
 customer was dishonoured. The bank note was not entered in any other 
 book of the bank, nor was it in any way carried to the account of the 
 
 customer, or entered in his pass 1 k, and never was mixed with the 
 
 te of the house, (o) 
 
 \ Bum of money, consisting partly of Hank of England notes and 
 country bank notes, partly of oheques on country bankers, and partly of 
 coin, was, after banking hours on a Saturday evening, placed in the 
 hands of the manage* of *the bank, at the banking house, where 
 L -I he resided, and he gave a receipt, with the word* "to be accounted 
 ,/• mand," for the Bame, data d as of the following Monday; they 
 were not entered in any of the bank books by the manager, or in any 
 way mixed with the bank moneys, but were placed, by the manager, 
 in a bag, in which there was nothing else. The bank never opened 
 again for business. The partners in it were afterwards made bank- 
 rupts : the money bo deposited was held, in bankruptcy, to pass to the 
 
 ; B.(jp) In this case, however, the manager was in the habit of 
 
 ing deposits after banking hours, and the customers, from whom 
 the above-mentioned deposit was received, were in the habit of making 
 deposits after the bank had closed, and such deposits had always been 
 treated, by both parties, as if they had been regularly made. One of 
 the partners had already resolved to commit an act of bankruptcy, and, 
 on the same evening of Saturday, did commit an inchoate act, unknown 
 to the other and remaining partner; the firm did not become bankrupt 
 until the Monday. 
 
 If money be remitted to, or deposited with a banker, by a customer 
 for the Bpecial purpose of paying certain bills, accepted by the customer, 
 and about to become duo, and the bankers, without making any commu- 
 nication to the customer, dishonour the bills, the balance on the cus- 
 tomer's account being against him at the time, and the customer after- 
 wards become bankrupt, and bis assignees bring an action against the 
 bank< I- for the injury caused to the bankrupt by their conduct, and ob- 
 tain a verdict for a sum equal to the amount due on the bills : it will be 
 held, in bankruptcy, that they are entitled to retain this sum against the 
 
 holders of the billB, Who Wilt. hoWeVef, be alloWed to pl'oVe.(r/) 
 
 :i Before passing from the subject of remitting of bills, &C, it 
 
 I '"-I may be desirable to reverl to the subject of the relations, in this 
 respect, between bankers and their correspondents. 
 
 Relation of Bank* r and Correspond* nt. — Various occasions occur for 
 
 observing the frequency, in questions of banking law, with which the 
 
 principle is applicable bj which the incidence of a loss is determinable, 
 
 qui -lion is, which of two parti) 8, A', ho are both equally iuuo- 
 
 (o) Sadler r. Batcher, 2 If. 4 Bob. I 
 
 I : Glutton, I Fonbl. R. 167 ; see Sadler v. Belcher, 2 H. & Rob. 489, 
 
 difference between th< that, in the latter, the determination to 
 
 mil an act of bankruptcy had been taken, by all the partners, before the monej 
 paid in : moreov< r, no receipt was given 
 Bx parte S] I onbl. 51.
 
 DEPOSITS OF SECURITIES. 147 
 
 cent of fraud, or crime, in the transaction, must bear a loss. This prin- 
 ciple is particularly deserving of attention in questions arising on deal- 
 ings of a customer with his bankers, who are obliged, in order to com- 
 plete the intended transaction, to employ the agency of their correspon- 
 dents — other banking houses, carrying on business at a distance. 
 
 Thus, if A. employs his bankers to perform some duty for him, which 
 can only be brought to a conclusion in some place at a distance, whether 
 in this country or in foreign parts, so that it becomes necessary that his 
 bankers should employ the agency of persons acting in that place, and a 
 loss ensues from the conduct of the agents, whether direct or interme- 
 diate, who are so employed, and the question arises whether A. or the 
 bankers are to bear that loss, in all such cases it is the bankers who 
 must suffer; for, of the two, they are the parties whose conduct has 
 led to the loss ; for it was they who chose the agents, or who chose 
 the correspondents who selected the actual agents ; it is their act, 
 therefore, which has led to the occurrences which have caused the loss, 
 and that loss, as between themselves and A., they must be liable for; 
 in other words, A. has a right of action against them, and will, in a 
 court of law, be compensated for the injury he has sustained. The 
 bankers, however, will have a right of recourse against their correspon- 
 dent, by whose laches or default, either primarily or through the default 
 of any one whom the latter may have intrusted with the business, the 
 bankers have incurred the loss. 
 
 *The following case well illustrates this position : — p,.-. _ .-. 
 
 A customer of a bank sends orders to his bankers to obtain, L -1 
 for him, payment of a bill of exchange, drawn by him on a person in 
 Calcutta ; the bankers accept the employment, and write him word that 
 they had done so, promising to credit him for the amount of the bill 
 when received. In the usual course, they transmit the bill to their cor- 
 respondents in London, by whom it is forwarded to the house of A., in 
 Calcutta, to get payment; it is paid into A.'s, immediately after which 
 they fail. The customer, having been advised, by his banker, that the 
 bill was paid, they were held to be his agents to obtain payment, and it 
 was also decided that ipso facto, upon payment being made, they became 
 liable to him for the amount received; and that any loss which might arise 
 from the conduct of the bankers' sub-agents, between whom and him- 
 self no privity was established, must fall on the bankers. (?•) And the 
 case was said not to be distinguishable from the case of a customer, of a 
 bank in London, sending them a bill, or cheque, with orders to get pay- 
 ment, and their clearing-house clerk, instead of returning with the 
 balance, absconds ; in which ease the bankers would clearly be liable, to 
 the customer, for the amount of the bill.(s) 
 
 Also, the state of the accounts, between the customer's bankers, and 
 any of the correspondents they may employ in the transaction, can make 
 no difference. 
 
 Hence, in all cases where a customer desires his bankers to obtain 
 
 (r) Mackersy v. Ramsay, 9 Cla. & F. 818. 
 (5) Per Ld. Lyndhurst, C, id. 848.
 
 G K A S T OB THE I- A W F B A N K I N G. 
 
 payment of a bill for him, and they do not refuse, or if a stranger makes 
 ime request, and they agree to perform it, they are liable for the 
 amount of the bill, whether, after remitting it to their correspondents, to 
 get the payment, its amount is returned to them or not, provided, in the 
 latter case, the cause is the default of their cm-respondents. 
 
 'Another transaction, between a bans: in the country and its 
 J town correspondent, may here be mentioned, though no definite 
 n -iilt was arrived at. 
 
 \ bill of exchange, for 4001., had been drawn by Cooke and Co., 
 bankers at Sunderland, on Bruce and Co., bankers in London, (but had 
 not been accepted by them.) payable at forty days, in favour of Herring, 
 and by him it was indorsed generally to Hum. in satisfaction of a debt, 
 and by him indorsed, before it was duo, t<> Cooke and Co., in exchange 
 tm- a draft for 1,080/., being the amount of that bill and certain others, 
 Burn being to a much larger amount indebted to them. Cooke and Co., 
 instead of cancelling the bill for 400/., remitted it, on the day of its date, 
 but not indorsed by them, to Bruce and Co., their correspondents, it 
 being their usage so to remit bills for the purpose of being written off. 
 This bill, however, was not remitted direct in the usual manner, but 
 sent, under cover, to one Alexander, a bill broker, through the medium 
 of Simpson, a partner in the house of Bruce and Co. (the object being 
 to save postage, as Simpson was an M. P.) Alexander was directed, by 
 < Jooke and Co., to get the bill discounted, and pay the proceeds to Bruce 
 and Co., for their account. At that time, the sheriff was in possession 
 of the shop and all the property of Bruce and Co., under an extent 
 against them, and on the arrival there of the parcel containing the letter 
 (which was not sealed) and the hill, the officer opened the parcel, and 
 took possession of the enclosure. 
 
 On these facts, it was doubted whether the banking house of Bruce 
 and Co., had such a property as would support the affirmative of an 
 issue, that Hum was indebted to the banking house in the amount of 
 the bill.(f) 
 
 Another consideration is to be mentioned, for the purpose of showing, 
 that whatever may at first sight appear to be the case, there is, in truth, 
 
 . _ . when the subject is correctly investigated, no hardship upon the 
 
 'J banker implied in the operation of the principle above men- 
 
 tioned, in rach circumstances as those of the last case. The banker 
 
 voluntarily assumes a character, in which he holds himself out to the 
 
 world a- ready to transact certain well-known olasses of monetary busi- 
 
 for all wlm choose to employ him, in consideration of reward. In 
 
 iharaoti r he must be taken to have calculated the risk of losses 
 
 which he may imur, in course ofhis business, from the imprudence, the 
 
 carelessness, the defaults, or the misfortunes of tlmse whom necessarily, 
 
 from the nature of that business, he musl often employ in the conduct 
 
 of it. and with whose characters, capacities, and positions in life, he often 
 cannot necessarily have any but the slightest, and most imperfect means 
 
 . Hex v. Born, B Price, 173 j tee Beck v. Bobley, l H. B .89. note; and on 
 r ■ •• Jonei v. Broailhur-t. 9 C. B. L86.
 
 DEPOSITS OF SECURITIES. 149 
 
 of acquaintance. He must be taken to have calculated his risks, and 
 calculated also the rate of reward, at which he will encounter those risks 
 accordingly. If he has not done so, and if he fails to require such an 
 amount of reward in his transaction of the business of his employers, as 
 is in fair proportion to the degree of risk with which the business is 
 attended, he fails to observe that degree of vigilance, in providing for 
 his own interests, which the law demands, before it lends its aid to a 
 sufferer. The banker is not a gratuitous agent ; he cannot allege to his 
 employer; — I reap no advantage from the performance of your business; 
 I have performed it with the same degree of zeal and caution, that I 
 should have exerted in my own; and, therefore, I cannot be responsible 
 for the results ; but being paid, he must be content to take the known 
 risks, and must abide by the results, whatever they may be. 
 
 The following is a case, equally consonant with justice : — 
 
 A customer of a bank accepts a bill, payable at the bank ; the bill was 
 drawn in favour of one A., and was casually lost by him. The banker 
 has notice of the loss, but, nevertheless, afterwards discounts the bill, 
 and afterwards debits *the customer with the amount of the bill, r^^n-i 
 writes a discharge on it, and hands it to the customer as his L -• 
 voucher. These acts are several acts of conversion by the banker, and 
 A. may recover in trover, without any previous demand against the 
 banker.(w) 
 
 Stock, &c, of Customers — Bankruptcy. — Cases of fraudulent dis- 
 posal, by bankers, of stock, &c, belonging to customers, sometimes 
 occur, in which they have attempted to repair the injury done to the 
 customers, by substituting securities of their own, in place of those with 
 which they have improperly dealt, but such attempts are, for the most 
 part, wholly ineffectual, in case of bankruptcy, as against the assignees. 
 
 Thus, where a customer of a bank was owner of 16,000?. Navy Five 
 per Cent. Stock, which stood in the name of one of the partners of the 
 bank ; and the partner sold out the whole of the stock, and applied the 
 proceeds to the purposes of the banking house ; at the same time enclos- 
 ing in an envelope certain bonds belonging to the house, together with 
 a memorandum to this effect — Borrowed and received of J. Balfour, Esq., 
 (the customer,) 16,000?. Navy Five per Cents., which we promise to 
 replace ; and we have deposited with him, as collateral securities, these 
 bonds of the Earl of Oxford and Mortimer, and others, which we promise 
 to assign when required, — and sealing up the bonds, and writing on the 
 envelope, "The property of J. Balfour, Esq." This packet was deposited 
 in an iron chest, among securities belonging to other customers. In the 
 evening of the day before the bank stopped payment, this packet was 
 sent to the customer, who then first learnt that the stock had been sold. 
 But it was held, that as the possession of the bonds had never been out 
 of the bankers till the very eve of the bankruptcy, when the bankrupts 
 
 could not give a ^preference, the customer had no lien on the 
 bonds, but must give them up to the assignees. (a;) 
 
 [*178] 
 
 (u) Lovell v. Martin, 4 Taunt. 799. 
 
 (x) Wilson v. Balfour, 2 Campb. 580; see Adams v. Claxton, G Yes. 230, 231, 
 per Sir W. Grant, M. R.
 
 GRANT N T II 1. I. A W I B A N K I N (J. 
 
 Tith to Goods, dec. — Generally, a- to the deposit of goods by way of 
 security, the banker is bound, at common law. to take care that the 
 
 m depositing i- entitled to the goods; otherwise the banker may at 
 an\ time be called upon to surrender T 1 j * ■ goods, or the value of them, to 
 their real owner 'JtA and a person, though he come into possession of 
 goods properly, nevertheless duo not always take or retain the right to 
 dispose of them; thus, if a person !"• intrusted with jewels in a bag 
 
 I. tc he ki pt safely for the use of the real owner, he becomes pos-' 
 Bossor mala tide, by breaking the Beals ; he has no right to the property, 
 and lie cannot transfer to the bankers more right than he has himself. 
 
 Deposits of securities against Advances, dec — Having observed what 
 is the .fleet of depositing securities with a banker for safe custody, or 
 ue Bpecific purpose, nut giving any property in them to the bankers, 
 in eases which, for the most part, have arisen, where the customer's 
 account with the bank has been in his favour, let us proceed to investi- 
 gate the effect of depositing securities, &o., when the balance is against 
 him. and when the object of the deposit is to save harmless the bankers 
 against their advances to the customer. 
 
 The following case may, perhaps, be fitly selected for leading notice, 
 a- being a transaction between two banks, and as containing an important 
 principle for ascertaining when such securities are to be held to be in 
 tiie order and disposition of bankers, in the event of their bankruptcy. 
 r*l~<n * Policies of Insurance. — A., being a banker at Manchester, 
 L "J had become mortgagee of certain policies of life assurance, the 
 various insurance offices interested haying notice of the fact. He applies 
 to 1!.. a hanker at Wirksworth, for a loan of money, offering to deposit 
 them and other securities, \c. This was agreed to, and the deposit was 
 made. &o., but do notice \& given to any of the several insurance offices 
 interested. In bucI case these securities, notwithstanding they were in 
 fact handed over to 1>.. remain, on the bankruptcy of A., in the order 
 and disposition of A. ; the title to them docs not pass to B., no notice 
 bavin- been given to the insurance offices of the transfer, and A. con- 
 tinuing to pay the premiums on the policies for six months after that 
 transfer, so as to hold himself out as owner, (which was part of the 
 circumstani 
 
 Tin- general principle involved is now well established, viz., when a 
 
 debt, due to a trader, i- assigned by him, it remains, notwithstanding 
 rocb assignment, in bis order and disposition, in the event of bankruptcy, 
 
 if nothing more is done tO give publicity to the assignment, than the 
 
 mere delivery of the instrument creating the debt.(«) 
 
 With respect to the question, to whom shall notice be given ? The 
 genera] rule is this -No notice of assignment of a debt can be necessary 
 to any party, from whom the trader is not to receive payment, or who 
 
 Hartop v. ffonre, 3 Atl 
 
 i:. parte Armstrong, 8 M D. ft D. <;. 148; lb parte Tennyson, Mont, k Rli. 
 rdon 7. Bast India Co., 1 T. EL 237 j K\ parte Arkwright, 3 M. D. k D, 
 
 (;. L43 ; sec- Ex parte Burnett. De <; Bank. K 194 j Dean \. James l A. & E 
 809.
 
 DEPOSITS OF SECURITIES. 151 
 
 docs not hold any property at the order or disposition of the tra- 
 der, (a) 
 
 It does not appear to be intended to make any distinction as to the 
 matter of notice of assignment, between persons acting for themselves, 
 and persons acting as executors and trustees : if, as has been stated 
 authoritatively, (b) the reason *why notice to one trustee has been pqgQ-i 
 held sufficient, is because nothing less than inquiry of all the L -I 
 trustees would satisfy a prudent inquirer ; that reason seems to apply 
 equally, or, perhaps, it is more accurate to say, it applies much more 
 strongly, in the case of executors, where each may give acquittances, 
 and pay and receive, on account of the estate, and where, although it is 
 often found that one only takes an active part, yet there is nothing to 
 prevent any of the others, at any time, effectually interfering in the 
 management of the estate. 
 
 Further, it seems, that if notice had been given to one trustee, who 
 dies without having communicated it to the others, and no new notice 
 had been given to the surviving trustees, before the bankruptcy of the 
 assignor, or depositor, it seems probable that the property would be held 
 to be within the order and disposition of the bankrupt, for in such case, 
 inquiry of all the trustees would not have led the inquirer to the know- 
 ledge of the assignment. (c) 
 
 In the above-mentioned Manchester case (as it has been in other cases,) 
 it was contended, in respect of one of the policies deposited, that being 
 made in the Equitable Assurance Office — a company, which is a mutual 
 assurance company, where each person insuring is a shareholder, and 
 member of the company, and therefore a partner, a formal notice of 
 deposit was not necessary in such case, because notice to one partner was 
 notice to all the company ; but the vice-chancellor nevertheless held 
 himself bound, under all the circumstances of the case as stated, to 
 make no distinction between the policy in this company and the others. (d) 
 
 It is to be remembered, however, that on a deposit of a policy of 
 assurance, by way of equitable mortgage, the onus *does not lie r*-^gjn 
 on the mortgagee to show, that notice of the deposit was given L J 
 to the office, before the bankruptcy, but with the assignees to show, that 
 it was not;(e) and where a bankrupt, being one of the directors of a 
 life assurance office, deposits a policy, made in that office, with his 
 bankers, one of the bankers being also one of the auditors of the assu- 
 rance office, it was considered that, in these facts, there was sufficient 
 
 (a) Gardner v. Lachlan, 4 My. & C. 132, per Ld. Cottenham, C. See further as 
 to notice on assignment of debts, Ex parte Burton, 1 Gly. & J. 207; Ex parte Os- 
 borne, id. 207. 
 
 (b) Per Wigram, V. C, 1 Hare, 96, 97. 
 
 (c) Per Wigram, V. C, 1 Hare, 97, and see the remarks there ; and per Sir E. 
 Sugden, C, rel., 1 Connor & L. 562, that the same principle holds in case of death 
 of executor. 
 
 (d) Ex parte Arkwright, 3 M. D. & De G. 143 ; see Ex parte Wood, 3 M. D. & 
 De G. 315 ; Re Styan, 2 M. D. & De G. 219, 213 ; Thompson v. Spieres, 13 Sim. 
 469 ; Ex parte Wilkinson, id. 475. 
 
 (e) Ex parte Stevens, 4 Dea. & Ch. 117 ; Edwards v. Scott, 1 M. & Gra. 962; 
 Tibbits v. George, 5 A. & E. 107; see Ex parte Smith, 2 M. D. & De G. 219 ; Ex 
 parte Majoribanks, De G., Bank. R. 477. What not sufficient notice ; Ex parte 
 Carbis, 4 Dea. & Ch. 354.
 
 152 GRANT ON THE LAW OF BANKING. 
 
 notice, to tlii' office, of the transfer of the bankrupt's interest in the 
 policy, to prevent th<- assignees claiming the policy, as being in the 
 reputed ownership of the bankrupt, at the time of the bankruptcy^/) 
 This decision, however, has been disapproved by Sir E. Sugden, C.,(#) 
 and would hardly be followed at the present day. 
 
 Policies of insurance against loss or damage by fire are Dot, in their 
 nature, assignable, nor can the interest in them 1m- transferred without 
 the express consent of the office. (/<) 
 
 There is no objection to depositing, as a valid security, a policy of 
 marine insurance, if the proper Bteps are taken. 
 
 If a manufacturer, being indebted to his bankers, assigns to them his 
 leasehold premises, with all his stock in trade, utensils, and effects, and 
 also a policy of insurance, as security for advances made, or to be made, 
 with a power of sale, and a proviso that he shall retain possession until 
 default, but the assignment does not comprise all the trader's property; 
 the execution of this deed, being bona fide, does not constitute an act of 
 bankruptcy.^ 
 
 r*"m-n *When a mortgagee of a policy of life assurance deposit- it 
 ■- -■ with his bankers by way of sub-mortgage, and gives notice of the 
 sub-mortgage to the insurance office, it is not necessary that he should 
 give notice also to the original mortgagor, in order to take the securities 
 out of the principle of reputed ownership, on the bankruptcy of the 
 depositor. (JA 
 
 If a trader deposits a policy of insurance with his bankers to secure 
 ^ Boating balance; signs a memorandum of the objects of the deposit, 
 and notice i- .riven of it to the insurance office, and afterwards he takes 
 a partner, and opens a fresh account, with the hank, in the name of the 
 linn, and the policy remains in the bank, and is treated as a security for 
 the floating balance due from the firm, but of this change in the object 
 of the security, no memorandum is signed, nor any notice given to the 
 office, the policy is nevertheless not in the order and disposition of the 
 depositor on his subsequent bankruptcy, because the prior notice, render- 
 ing it impossible to deal with the policy, without making inquiries, 
 effectually prevents that result.(A-) 
 
 A life policy is deposited by the bankrupt before an act of bankruptcy, 
 
 (/) Bx [.arte Waitliman, 4 Dea. k Ch. 412 ; E.\ paid- Watkins, 2 M. & A. 348. 
 Beneasey, l Connor & L. B. 562. Generally knowledge is Buffi- 
 - 'nut notice, Tibbits v. <;Vorge, 5 A. & E. 107 : Smith v. Smith, 2 Cro. .v If. 231. 
 (h) Lynch v. DalzelL 4 Hro. P. C. 431 ; Saddlers' Company \. Badcock, i' At], 
 
 ' 
 (i) Carr v. Hurdis?, i c. m. <fc U. 443. See the principle of Buch assignment* 
 discussed, Graham v. Chapman, 'Jl L. J., C. B. it:;: Xbungv, Wand, 22 L J 
 Bxch 
 
 (£) Ex parte Barneti D< G. Bank. R. 194. See there the form of memorandum 
 in such case. At Law it has been rnled thai of a bankrupt cannot re- 
 
 cover in tro\<r a policy of insurance effected by the bankrupts and deposited as 
 although no notice had been given to the office. Gibson v. Overbury, 7 
 '.v. 555; fsee per Knight Brace, V. 0., in Bi parte Pri ■'-. :: M. l>. & D. G. 
 bn( the Court of Exchequer, in Gibson \. Overbury, fully admitted the au- 
 thority of the cases cited above on this subject, a the doctrine of notice : 
 and they held that tie ... r tie. debt due upon the policy from 
 
 the office. So Belcher v. Campbell, « Q. B. 12.
 
 DEPOSITS OF SECURITIES. 153 
 
 notice of the deposit not being given till after such act, and not till 
 seven years after the deposit (but before fiat,) but it not appearing that 
 the depositor knew of such act, the notice was held sufficient to give the 
 depositor a good title, as against the assignees, inasmuch as the whole 
 was bona fide, and the transaction was fully completed before the fiat. 
 That question arose under 2 & 3 Vict. c. 29.(£) 
 
 *In general, it is a rule, with respect to agreements for equi- p,„„, 
 table mortgages, that the circumstances must be such as to relieve L -* 
 from all suspicion of collusion or fraud, otherwise a sale of the property 
 will not be decreed. (m) 
 
 The notice of deposit, given to an insurance company, need not be in 
 writing. (V) 
 
 Where no bankruptcy intervenes, the necessity does not arise, of notice 
 of the transfer or assignment being given to the office, but the mere de- 
 posit of the policy, it being the intention, at the time, to give the bankers 
 a lien, will suffice to constitute them equitable mortgagees, although 
 there be no memorandum of deposit, and even although there be a memo- 
 randum of deposit relating to other policies of insurance, and deposited 
 at the time, but not comprising those in question. (o) 
 
 As regards the proper person to give notice of transfer to, in order to 
 bind an insurance company, the following may be laid down. 
 
 All risks as to whether notice has been properly given to the insurance 
 company will be avoided, in all probability, by acting on the suggested 
 rule,(p) to give notice to the officer representing the company, which, in 
 case of an incorporated company, would be the head or chairman, or the 
 directors, or the secretary, according to the terms of the charter, or in- 
 corporating statute; in case of a joint-stock company, would be the 
 public officer of the company, or secretary, or agent of the company, 
 according to the terms of the deed of settlement, and to the usual prac- 
 tice of the company. 
 
 [*184] 
 
 In a case where it was proved that the company had authorized 
 *their agents to receive notices of assignments of policies, and 
 agreed that notices to those agents should be as valid as if served on the 
 company : it was held, that knowledge of an assignment obtained by one 
 of their agents, not in the shape of a communication to the company, but 
 as attorney for the assignor and assignee, was sufficient. (g) Where 
 notice is necessary, it makes no difference, that the particular company 
 have a rule dispensing with such notice. (r) 
 
 [I) In re Styan, 2 M. D. & D. G. 219 ; see Young v. Hope, 2 Ex. 105 ; Re Pritch- 
 ard, 1 Fonbl. R. 238. 
 
 (m) Ex parte Nunn, 1 Deac. 611. 
 
 (re) Re Raikes, 4 Dea. & C. 412 ; Ex parte Tanner, 1 Bank, and Insolv.Rep. 156 ; 
 Ferris v. Mullins, 2 De G. & Sm. 386. 
 
 (o) See Ferris v. Mullins, 2 De G. & Sm. 378. 
 
 (p) Per Sir E. Sugden, C, Ir., Ex parte Henessey, 1 Connor & L. 563 ; S. C, 2 
 Dru. & War. 555. If a bankrupt is assignee of a chose in action, and does not 
 give notice of the assignment, his assignee must. Ex parte Wood, 3 M. D. & D. 
 
 \q) Gale v. Lewis, 9 Q. B. 730 ; see Wing v. Harvey, 18 Jur. 394; S. C, 23 L. 
 J. (N. S.) Ch. 511 ; S. C, 5 De G. M. & G. 252. 
 (r) Ex parte Patch, 7 Jur. 820.
 
 1 ;, [ G K A N I U X TUE L A W F li A N K I X b. 
 
 Ii is v. ty materia] for bankers to ascertain, that die deposit of a policy 
 .if insurance is made, in all respects, in a proper and unobjectionable 
 manner; it' it is not, the deposit may bo ineffectual, as a security; at 
 
 least, without an application to the Court of Chancery. 
 
 Thus, a certain banking house advances to A. 2502., on two promis- 
 sory nnti-, ami the security of an insurance on his own life for 1,000/., 
 which he deposited with them. Now, this policy hail already been 
 assigned bj deed to a third pei>on, 1!., who had negligently left the 
 Instrument in the hands of A. Then J>. die-, ami his executor pays the 
 premiums, as B. had been in the habit of doing, up to the death of A., 
 when the executor brings detinue against the bankers for the policy, and 
 recovers ; the bankers not being aide to make out their allegation, that 
 B. had fraudulently intended to leave, in the hands of A., the policy, in 
 order that A. might have the means of borrowing money of some one, 
 and to cheat some one, by so doing.(.sj Notice of the assignment had 
 been duly given to the insurance office, but it seems, that, in the usual 
 course of business, the insurance office would have refused to answer any 
 inquiries that the bankers might have made on this point. The decision 
 was at Nisi Prius, but possibly in equity the bankers would be relieved. 
 r*i«"i *When the customer, by indenture, assigned to the bankers a 
 J number of shares in a life assurance company, then standing, in 
 the name of the customer, in the books of the company, subject to re- 
 demption, on payment of a sum therein mentioned, and with a power of 
 Bale and covenant for further assurance. The bankers gave the usual 
 notice, to the company, of this indenture and the transfer; an entry 
 thereof was made in the company's ledger, the indenture of assignment 
 having been prepared in the office of a firm, who were the company's 
 solicitors. The company afterwards refused to recognize this transfer, 
 because it had not been made with the formalities required in the deed 
 of settlement of the company, of which the assignor was a director, and 
 they never removed the name of the assignor from their books, in which 
 these shares -till Stood, in Ids name, when he became bankrupt. It 
 was held, that the notice was sufficient, and that the circumstances suffi- 
 ciently show 7 ed the bankrupt not to be the reputed owner of the shares, 
 at the time of the bankruptcy. (t) 
 
 So, where a director of an insuranoe companj executed an assignment 
 
 of hi- Bhares, a- a security, to a person who gave notioe to the insurance 
 
 company, though not until some time after the assignment, it was held, 
 that the notice having been given before the act of bankruptcy, the 
 -hare- wire not in the order and disposition of the bankrupt, within the 
 Bankrupt A.cl (12 \ 13 Vict. o. 106, b. L25,) and that the assignee of 
 them had a g I equitable mortgage.(u) 
 
 (t) Neale \. Ifolineux, •_' Oar, & K. 672. 
 
 Hi Bj parte Hasterman, 2 M. .v A. 209; thai then- woe in this case no collusion 
 
 or fraud, and do tment, distinguishes ii I'mm Lx parte Lancaster 
 
 Canal Company, l Deac. k Ch. 411 j sei aare in a gas company, Ex parte 
 
 acer, ■■■ M. k A. 607. 
 
 i»/, Bi parte Little lali'. 24 I.. .1. fV S.) Bankr. :•. (.me of t he Lords Justices 
 
 donbting;) see Camming v. I'm .,,tt. 2 v. ,v Col. Ex. Eq. It. 488. As to what has 
 
 idered sufficient notice, Ex parte Btright, 2 Dca. & C. 314; Smith v.
 
 DEPOSITS OF SECURITIES. 155 
 
 *The obvious mode to avoid all questions is, for the bankers, p^, ~ fi -. 
 in all cases of deposits of policies, or shares, to take care to give L J 
 notice immediately, and to see, in the latter case, in addition, that the 
 proper transfer is completed, according to the terms of the statute, or 
 deed of settlement, under which the company is constituted. 
 
 Shares in a banking company were, by the deed of settlement, to be 
 subject to a lien on behalf of the company, when the proprietor of them 
 became debtor to the company ; in such case (the proviso being indorsed 
 on the certificates of the shares,) the latter are not in the order and dis- 
 position of the proprietor, at the time of his bankruptcy, (a?) 
 
 In the case of an assignment of a policy of insurance, it is not essen- 
 tial that the assignment should contain a declaration, that the receipts 
 of the bankers shall be sufficient discharges to the insurance company ; 
 for that they shall be so, is necessarily implied, from the nature of the 
 transaction. (y) On the other hand, in the case of a mere equitable mort- 
 ' gage, by deposit of the policy, although the assignees of a bankrupt de- 
 positor cannot recover back the policy, from the bankers, by means of an 
 action at law, yet if they have claimed the debt in time, they may, on 
 its being paid to them by the company, give a valid discharge to the 
 company ;(z) and thus the bankers would be left without remedy, and so 
 would find their security worthless. 
 
 It is hardly necessary to observe, that in either case, whether of bank- 
 ruptcy or insolvency, the residue (if any) of the sum received by the 
 bankers, after the debt is satisfied, *must be paid over to the ^-. S7 -. 
 assignees, or provisional assignee, and this will be enforced in L -I 
 equity. 
 
 Circumstances, sometimes, arise out of assignments, to bankers, of 
 policies of life insurance, in which difficult questions as to interpleader 
 have to be settled. Now, it would lead too deeply into technicalities, to 
 pursue this subject from the beginning; we will, therefore, state the 
 principal facts, and the essence of the judgment in the last case, which 
 has occurred previously to the publication of this work, leaving it to the 
 reader to refer to the reports of the case itself, which will put him on 
 the path of the prior decisions relative to the matter, and so enable him 
 to discover whatever has been decided on the subject. 
 
 A. insured B.'s life, in the Atlas Assurance Company, for 3,000?., 
 payable to A. on the death of B. Immediately afterwards, A. assigned 
 the policy to his bankers, as security for a loan or advance (which was 
 
 Smith, 2 Cro. & M. 231 ; Meux v. Bell, 1 Hare, 73 ; Matthews v. Gahb, 15 Sim. 51 ; 
 West v. Reid, 2 Hare, 249. What sufficient notice of deposit of railway shares, Ex 
 parte Harrison, 3 Deac. 185 ; Ex parte Nutting, 2 M. D. & De G. 302 ; 8 & 9 Vict. c. 
 16, s. 18 ; Ex parte Richardson, 3 Deac. 496. 
 
 (x) Ex parte Plant, 4 Deac. & C. 164. 
 
 (y) Per Ld. Cranworth, C, Dessborough v. Harris, 3 Eq. R. 1058. There was, 
 in that case, the usual power of attorney enabling the mortgagee to give receipts; 
 S. C, id. 1061 ; and see Glynn v. Locke, 3 Dru. & War. 11 ; Ottley v. Gray, 16 L. 
 J. (N. S.) Ch. 512. 
 
 (z) Gibson v. Overbury, 7 M. & W. 562. An assignment of a policy of insurance 
 as security for a debt, with a proviso for redemption on payment, is a mortgage 
 within 55 Geo. III. c. 184; Sched. pt. 1, and therefore requires an ad valorem 
 stamp. Caldwell v. Dawson, 5 Exch. 1.
 
 150 GRANT ON THE LAW OF BANKING. 
 
 ■Ia n secured by a mortgage of real property.) Notice was given to the 
 company of the assignment. A., subsequently, took the benefit of the 
 Insolvent Act, and all his property vested in the provisional assignee, 
 Then B. dies, and the company, Borne time afterwards, file a bill of inter- 
 pleader in equity, alleging that A., and the pn visional assignee, disputed 
 the right of the bankers to receive the 3,000/., and that the bankers had 
 commenced an action against the company, in the name of A. It 
 appeared that the provisional assignee refused his consent to the bankers 
 receiving the money, refusing also to release the company, but otherwise 
 offered no opposition, not disputing their right to the policy, and the 
 moneys payable thereunder, but merely leaving them to make out their 
 claim. Lord Cranworth, C., decided the company to have no right to 
 call upon A., and the bankers, or the provisional assignee, to interplead,^/) 
 and dismissed the bill, with costs, as against the bankers and the pro- 
 visional assignee. A strong opinion was also expressed, that A. had no 
 r*l««T Dene fi c 'i a l interest *in the question, all his beneficial right of re- 
 L c J demption having passed to the provisional assignee. 
 
 The result of the above statements, which have been made with a view 
 of placing before the reader the application of the rules governing depo- 
 sits of securities, and chiefly of policies of insurance, to varied combina- 
 tions of facts, is to show the great importance, to bankers, of providing 
 that every transaction of this kind is fully completed, both, in other 
 respects, and by giving notice to the insurers and others, so as to take 
 the ease out of the order and disposition clause, in case of bankruptcy, 
 Ac. For, although where the policy has been actually handed over, and 
 is in the hands of the bankers, as a security, for the repayment of a pre- 
 viously existing debt, the assignees cannot recover the document in 
 trover, and the bankers' lien upon it is said to remain although no notice 
 has been given of the deposit to the insurers, yet practically such lien, it 
 would seem, must be of little value ; for the assignees may, notwith- 
 standing, give a discharge to the office for the debts, due upon the 
 policy, to which the bankrupt was entitled. (/A 
 
 Shares. — As to the effect of depositing railway, or other joint-stock 
 company's, shares with a bank, by way of security, for advances. 
 
 A. and B. were partners in business as Bharebrokers, and were also in 
 the habit of buying and Belling shares in partnership; they dissolved 
 partnership on the 11th of October, 1844, of which their bankers, with 
 whom the) had opened an account nil the 14th of August, 1844, had 
 notice. A.. wh<> was the partner that attended to this portion of the 
 business, had, previously to the dissolution, contracted to purchae 
 comber of Bcrip Bhares, in various railways, on account of the firm. 
 After the dissolution, he deposited some scrip certificates ofthe.se shares 
 o with the bank ; they had m.t been paid for at that time, and he 
 -1 obtained from the bank an advance of money, on the security of 
 them, f,,r the purpose of paying the purchase-money, and he signed an 
 authority to the bank, in the name of the firm, empowering them to sell 
 
 (a) Desshorouyh v. Harris, '! Eq. EL 1058. 
 
 ', on v. Oveibiirv. 7 M. ,\; \V. 561, 562 : see Joyce v. De Moleyns, 2 J. & L. 
 i irte Price, 3 M. 1>. fc D. <;. r>9l.
 
 DEPOSITS OF SECURITIES. 157 
 
 the shares, if the money were not advanced, within a certain time. B. 
 then institutes a suit in Chancery, against A. and the bankers, praying 
 a declaration that B. was not bound or affected by the deposit of the 
 shares, on account of the firm, or by any of the dealings and transac- 
 tions which took place with the bank, after the dissolution of the partner- 
 ship, &c. 
 
 The court, however, held, that, looking to the nature of the trade, 
 which was that of buying and selling j that the shares were not like land 
 or property, to be retained and used by the firm ; that the debt, in respect 
 of the shares, was, from its nature, one which must be immediately due ; 
 that A. was authorized, by B., to purchase the shares; that his only 
 alternative was to complete the purchase, by paying for the shares, or to 
 resell; he had authority, notwithstanding the dissolution, to do the 
 former, by raising money as he did, and to empower the bankers to sell, 
 in default of repayment. (c) 
 
 The customer, in a case where the Liverpool Albion Bank were the 
 bankers, to secure an advance made to him, deposits certificates of shares 
 in a railway company, (which shares, by the provisions of the railway 
 act, could only be transferred, by an instrument, of a prescribed form,) 
 together with all instruments of transfer, in the prescribed form, except 
 that the blank, for the transferee's name, was left unfilled. The bank 
 gave notice of their lien to the secretary of the railway company. It was 
 held, although the private act, constituting the company, expressly 
 excluded persons, claiming by any other title than the mode pointed out 
 in the statute, (which had not been, in all respects, complied with 
 *here,) from any part or share in the profits of the undertaking, p-^Q-i 
 that the bank had a lien on the shares, and that, having paid L J 
 certain calls in respect of them, they were entitled to add these sums to 
 the amount already advanced, and that their lien extended as a security 
 for the whole amount. (cZ) 
 
 Dock Warrants. — A deposit of dock warrants, duly indorsed, is a 
 good security ; for the property in the goods passes by the delivery of 
 the warrants, which empower the holder to obtain actual possession of 
 the goods. (e) So bills of lading, expressed to be made out to the order 
 of the shipper or his assigns, transfer the ownership, so as to enable to 
 take into possession ; but not so as to bring an action. (/) 
 
 It is, perhaps, hardly necessary to state, that a deposit, expressly made, 
 as a security for a specific portion only of a general balance, precludes 
 the admissibility of any inference, that it was intended, as a security, for 
 the whole of the general balance. [g) 
 
 When securities are assigned to A. and B., bankers and copartners, 
 for moneys to be advanced by them, or either of them, to the assignor, 
 
 (c) Butchart v. Dresser, 10 Hare, 453 ; affirmed, 4 De G. M. & G. 542. 
 
 (d) Ex parte Dobson, 2 M. D. & D. G. 685 ; see 8 & 9 Vict. c. 16, s. 18. See 
 as to invalidity of deed executed in blank, Hibblewhite v. M'Morine, 6 M. & W. 
 215. 
 
 (e) Lucas v. Dorrien, 1 J. B. Moo. 29. 
 
 (/") Thompson v. Dominy, 14 M. & W. 403. 
 
 (g) Vanderzee v. Willes, 3 Bro. Ch. C. 21 ; see Ex parte Vere, 4 Deac. & C. 
 321.
 
 158 ('.RANT ON THE LAW 01 BANKING. 
 
 and A survives !>., it has been decided that, as the security was made 
 to the two jointly, A. could give a sufficient discharge, for the whole 
 aim mnt, due on the security. (/<) 
 
 TtiU Deeds. — With respect bo the deposit of title deeds, it is desirable 
 be the principal results of bhe decisions, many of which teud to 
 show, that hankers have acted at tiimsiii such cases, as though 
 L l J they were inopet consilii, and have suffered accordingly. 
 
 Two trader-, in partnership, having had, for many years, an account 
 with a bank, deposit with them certain title deeds of an estate, belong- 
 ing to one of the partners separately, as a security, for the balance which 
 might be due to the bank, from bhe firm, from time bo time, upon the 
 account current. No written memorandum was, at that time, made of 
 the object of the deposit, but afterwards, upon a further advance by the 
 bank, the owner of the title deeds signed a letter, or memorandum, 
 stating the deposit to be for securing that, as well as future, advances. 
 The banking tirm had some changes made in its members after the 
 deposit was made, and, in point of fact, all the advances made by the 
 hanking firm, with whom the deposit was made, had been paid off by the 
 traders ; but fresh advances were made by the new banking firm, who 
 continued to hold the deeds ; it was, nevertheless, held that the security 
 was a continuing security, and that the banking firm was equitable mort- 
 ee of the estate bo the amount of their advances. (/) 
 
 As between the bank and the general creditors of the bankrupt, who 
 has deposited title deeds with them before bankruptcy, the bank has the 
 priority ami the best title; although bhe deeds deposited were old di 
 not including bhe conveyance from the depositor's vendor, but the inten- 
 tion of the deposit undoubtedly being to create a lienj that is, the bank 
 are equitable mortgagees against bhe general ereditors.(&) 
 
 Title deeds of a Leasehold estate are deposited with hanker-, byway of 
 equitable mortgage, for securing the balance of a customer's running 
 account. Be is then convicted of felony. The Court of Exchequer in 
 Equity had no jurisdiction, as the legal estate is in the crown, to decree 
 a ude of the i state, nor any power to compel a conveyance, by the crown, 
 r*iQ9i °^ tu ' J '' '- 1 ' estate, hut only to declare the hank, as equitable 
 L J mortgagees, entitled bo held possession afthe property, until bhe 
 crown should think lit to redeem the mortgage//) 
 
 A Bale would be decreed, m a case, where the orown had only an 
 egvitablt interest.(m) 
 
 it is to be observed, that the deposit must be made at such a time, 
 and iii Bucb circumstances, as to be free from suspicion, otherwise bhe 
 hank will not be allowed tlie advantage of bhe character of equitable 
 
 . 9 Sim. 1. 
 i EEi p Smith, 'J K. i». .v De <:. 314. 
 Bj parte [aeon, l Bank. A in-. i:. L07. 
 
 Bodge v. An. c. a.. :; JT.A 0. Ex. 342. A- to time Brum which the equitable 
 - entitled to the produce of the mortgaged estate, Bj parte Smith, 3 M. 
 D. .v i.\ parte, Tagart, De Qt. Bank. Jt. 631; Ex parte 
 
 Barclay, 5 De G. U t G. W3j 12 k 13 Vi.i. c. 106. ; . L26. 
 
 (m) Prescott v. Tyler, 1 Jur. 470 ; see 3 Y. k ('. Exch. 346; Ex parte Tyson, 1 
 Jnr. 472.
 
 DEPOSITS OF SECURITIES. 159 
 
 mortgagee; thus, where the deposit of a lease was made on the lGth of 
 April, and the fiat in bankruptcy issued on the 2nd of May, the petition 
 of the equitable mortgagee was refused with costs :(n\ and there must 
 be an actual deposit to constitute an equitable mortgagee ; an order on a 
 third party to deposit a lease when executed is not sufficient. (o\ Also, 
 the deposit ought always to be accompanied by a written memorandum 
 of the object and purpose for which it is made, among other reasons, 
 with a view to costs ;hi) though this last consideration is now less 
 important perhaps than it was a short time ago. At any rate, as regards 
 costs, the decision will be adverse to the equitable mortgagee where a 
 written memorandum has been lost, so far as regards the costs occasioned 
 by such loss. (2) 
 
 In general, however, assignees of a bankrupt are entitled to apply to 
 the court, for directions, in cases of equitable mortgage, and therefore, 
 even in a clear case, where the assignees are requested by the bankers, 
 who hold an equitable ^mortgage, to consent to a sale of the pro- r^-i qT 
 perty, without putting the bankers to the expense of petitioning, L J 
 the assignees will have the costs of the proceeding out of the mortgaged 
 estate. lr\ And it has lately been intimated by the Court of Appeal in 
 Chancery, that the previous practice as to costs, namely, that an equi- 
 table mortgagee, by a mere deposit, paid the costs of the petition, but 
 that a memorandum entitled him to his costs out of the proceeds of the 
 sale of the mortgage, was incorrect ; and in the case before the court, 
 which was an appeal by an equitable mortgagee, from a decision of a 
 commissioner, which the court reversed, they ordered the petitioners' 
 costs of appeal to be paid out of the estate, and all other costs to be 
 added to their security. (s) 
 
 The prudence and propriety, with a view to preventing disputes, and 
 removing all ground for question and litigation, has been pointed out, of 
 always taking a memorandum of the object and purpose for which the 
 deposit was made, and numerous instances have occurred, in which 
 much delay, in realizing the securities, would have been saved to bankers, 
 if their advisers had been duly alive to these considerations ; and although 
 it has lately been held, as already pointed out, that the former practice, 
 which made a difference between the costs of the usual order for sale, &c, 
 when there was a memorandum of deposit, and when there was none, is 
 no longer to be observed, yet that alteration does not weaken the force 
 of the above considerations, or make it prudent to neglect to take the 
 course recommended on these grounds. For it has been laid down, that, 
 
 (n) Ex parte Morgan, 1 M. D. & De G. 116 ; see also Ex parte Gillet, 3 M. D. & 
 De G. 458; Ex parte Clouter, 3 M. D. & De G. 167. 
 
 (0) Ex parte Perry, 3 M. D. & De G. 252. 
 
 {p) Ex parte Rogers, 3 M. D. & De G. 297 ; Ex parte Ford, id. 457; Ex parte 
 Gillet, 3 M. D. & De G. 458 ; see De G. Rep. 194. 
 
 (q) Ex parte Rogers, 3 M. D. & De G. 297 ; but see now Ex parte Barclay, 5 De 
 G. M. & G. 417. 
 
 (r) Ex parte Stevens, 3 M. D. & De G. 317. As to form of order in case of 
 bankers being equitable sub-mortgagees, see Ex parte Powell, De G. R. 405 ; Ex 
 parte Burdiss, id. 406, n. 
 
 (s) Ex parte Barclay, 5 De G., M. & G. 417. 
 
 January, 1857. — 12
 
 Q BANT ON THE LAW OF BANKING. 
 
 in doubtful oases, where then' is no memorandum, the court Leansagaiaet 
 
 considering the deposit as securing antecedent debts.(t*) At the same 
 
 time, it is not meant to Buggest, that a deposit, without a written memo- 
 
 randum, is invalid; that notion is inconsistent with the *dootrine 
 
 I J of the .nun-; for it is held, that a written memorandum of 
 deposit is not essential ; and that there may be a valid deposit in equity 
 without a word, at least, when tin- possession of the securities cannot !><• 
 accounted for in any other way. the holder being a stranger to the title 
 and to thedeeds.(u) What is indispensably necessary is, that the bankers 
 
 should have actual possession of the securities.).') An instance will 
 show this more clearly than mere assertion can do. 
 
 A memorandum of deposit of securities is handed to a hanker, stat- 
 in- that a policy of insurance, on the life of the depositor, had been 
 deposited with the banker; hut. in fact, the deposit is never actually 
 made, and the policy remains in the hands of the depositor, and i- 
 found in his chest at the time of his bankruptcy. What then is the 
 result? The transaction is wholly illusory, as regards the hankers; 
 for the court held, that the property in the policy passed to the assignees 
 of the bankrupt, and consequently the only resource for the bankers 
 would he to come in, among the general creditors, and prove their debt.(y) 
 
 < >n the other hand, an agreement to give a mortgage, and the delivery 
 of title deeds for the purpose of having the agreement carried into effect, 
 constitutes an equitable mortgage ;(z) but the mere casual possession of 
 
 title deeds. (-/j does not. 
 
 A trader deposits certain leases of premises, accompanying the deposit 
 with a memorandum, statin- that the depositees were to be equitable 
 ., mortgagees of the Leases, and premises, *and fixtures, and appur- 
 J tenances, as security for a debt. The trader continues in posses- 
 sion of the premises, &c., comprised within the memorandum, and becomes 
 bankrupt. 
 
 The depositees petition in bankruptcy for the realization of their secu- 
 rity. The leases, and trade and other fixtures and fittings up, are sold 
 under an order. The Lord Chancellor decided, on appeal from the com- 
 missioner, that the depositees were entitled to the proceeds of the whole, 
 without excepting the trade fixtures, which he held not to be in the 
 order and disposition of the trader, bo as to pass to the assignees within 
 12 & 13 Vict. o. L06, s. L25, and the costs of the petition were ordered 
 to be added to the security of the depositees.^ 
 
 A person deposits with his bankers the title deeds relating to certain 
 
 (/) Bj parte Martin, i Deac. & C. 457. 
 
 Bozos '•'• William-. 3 Y. & J. L50 : Bee l I V. -. 606 ; IT id. 230; 19 id. 258; 
 Chapman v. <'Ii.ipiii.ui, 20 L. J. (N. S.) Chanc. 465 ; see however Lucas v. Dorrien, 
 l .). II. Moo. 29. 
 i/) It has been gravely doubted whether goods, in the possession of third par- 
 ,ii be jaid to be in the possession, order and disposition of the bankrupt at 
 all. Per Rolfe, B., Price v. Groom, 2 Exch. 547. 
 i... parte Halifax, 2 M. D. k De G. 544. 
 
 Bockley v. Bantock, i Buss. 141 j Keys v. Williams, 3 V. k Col. Ex. Bq. 55. 
 ' Dorrien, 1 J. B. Moo. 29; Bussel v. Russel, 1 Bro. Ch. 0. 269; see 
 
 •7. 
 
 1.- parte Gawan, 26 L. J-. Hank. Cases, 1.
 
 DEPOSITS OF SECURITIES. 1G1 
 
 steam-mills, cottages, land, buildings, and machinery, of which he was 
 possessed, for an estate in fee simple. The original memorandum of de- 
 posit was not forthcoming, but a draft of it was proved, and it purported 
 to be made for securing to the bank all moneys then owing to them by 
 the depositor, and which should in future be advanced to him by them, 
 together with bankers' commission, and all other usual charges, and also 
 all balances which should, at any time, be due from the depositor on his 
 banking account, together with interest for the same, after the rate of 5/. 
 per cent, per annum. After the date of the deposit, the depositor 
 erected buildings for crushing bones, and also for crushing oil seeds, 
 with the necessary machinery and steam-engine, all affixed to the free- 
 hold. This was held to be an equitable mortgage, giving a lien on the 
 fixtures, whether erected before or after the time of the deposit, and in- 
 cluding those that were removable as between landlord and tenant, (cj 
 
 A similar deposit of a lease would operate as an equitable mortgage of 
 all fixtures, although erected for the purposes *of trade, and there- r *-| Q p-i 
 fore removable as between landlord and tenant ; and although L J 
 the fixtures are not specified in the lease, or in the memorandum of de- 
 posit.^/) 
 
 In cases of equitable mortgages, by manufacturers, questions some- 
 times arise as to the passing, under the deed, of the machinery, &c. The 
 following cases exemplify the principle that has been adopted for the 
 decision of such questions. 
 
 A customer of a bank, being owner as well as occupier of a freehold 
 cotton mill, executed to the banker a mortgage in this form : viz., the 
 customer, by indenture, " demised and assigned unto the banker certain 
 plots of land, factories, mills, warehouses, erections, and buildings, 
 together with the steam-engines, and also all and singular other the 
 movable and fixed machinery and steam pipes then in, upon, about, and 
 belonging to the said steam-mills and premises, or occupied or used there- 
 with, to hold to the said banker, &c, for 900 years, for securing the re- 
 payment of the moneys then owing from the customer to the banker, or 
 thereafter to become due, not exceeding in the whole 5,000^., with inter- 
 est at hi. per cent. •" with a power to the banker to sell and dispose of 
 the premises, for better realizing and securing the said principal moneys 
 and interest. 
 
 The mortgagor continued in possession of the mill, &c, up to the time 
 of his bankruptcy. In this case, not being one in which a tenant had 
 put up the machinery, &c, but the case of an owner, who had himself 
 erected all the works, it was considered that all such parts of the ma- 
 chinery as were legally attached to the freehold, passed with the freehold 
 to the mortgagee, and were not goods and chattels going to the assignees 
 of the bankrupt, (e) 
 
 (c) Ex parte Price, 2 M. D. & De G. 518 ; Ex parte Lloyd, 3 Deac. & C. 765. 
 
 (d) Ex parte Broadwood, 1 M. D. & De G. 631; Ex parte Cowell, 17 L. J. (N. 
 S.) Bank. 16; Ex parte Bentley, 2 M. D. & De G. 591. As to utensils not fixed, it 
 has been held that a lease of a house with movable chattels is no lease of the 
 chattels, but a gift of them during the term, per Burnett, J., Ryals v. Rowle, cited 
 Report, 9 Bli. (N. S.) 390. 
 
 (e) Ex parte Wilson, 4 Deac. & C. 143 ; see 25 L, J., Q. B. 281.
 
 ],;•> RANT ON THE LAW OF BANKING. 
 
 *An equitable mortgagee, by deposit, is not, in general, as 
 L J snch, entitled to demand a legal mortgage to be made tohim,(/) 
 unless there is a contract that one ahall 1"' made ;(//) in that case, the 
 bankers will be considered, in equity, to be purchasers tor good conside- 
 ration within 27 Eliz. o. 1. in reaped of the balance due to them, against 
 a prior voluntary settlement. (A) Nevertheless, at law, the trustees of 
 the settlement may recover the deeds, in trover, from the bankcrs.(<) 
 
 A deposit of title deeds, prima facie creates an equitable mortgage 
 upon the whole property comprised in them; and further, where the 
 memorandum of deposit stated it to have been made, with the object, 
 that tin- deeds should remain in possession of the depositee, till such 
 time as the depositor's account, due to the depositee, did not exceed the 
 sum of 100?., at which time they were to be restored to the depositor, 
 free of expense, and the depositor died indebted to the depositee in 274?., 
 it was decided that the lien extended to the whole 274/. (7) 
 
 An equitable mortgagee, by deposit, of a lease, is not bound, at th>- 
 suit ,,///,, lessor, t<> take a legal assignment of the lease, nor is he liable 
 to the covenants of the lease. (/.) for there is no privity between him and 
 the lessor, until he has made himself legal assignee; and so to hold, 
 • ■ would effectually prevent anybody from ever taking a deposit of a lease, 
 as a security tor a sum of money, for no man in his senses would take a 
 deposit of a lease, if he were thereby to render himself liable to the cove- 
 nants of the lease. "(fy 
 
 What an equitable mortgagee is entitled to, at the hands *of 
 
 L J the court, is either a foreclosure, or a sale, at his option,(?) but, 
 
 neral, the mortgagor may have allowed him six months' time, in 
 
 Which to redeem the deposited deeds. (»l) 
 
 If the hanker having such equitable mortgage, by deposit of the title 
 deeds, of an estate in fee, enter into receipt of the rents of the mortg 
 estate, Buch rec< ipt amounts to a payment, prima facie, either of the 
 principal or interest of the debt, as the case may be, so as to take the 
 oul of the Statute of Limitations; and therefore, where the mort- 
 gagor was dead, it was considered, in such a case, that the hankers had 
 probably a righi to have the estate sold, the proceeds to be applied in 
 
 (/) Parker v. Housefield, 2 My. k K. 419; Metcalfe \. Archbp. of Fork, 1 My. & 
 1 edit.) -' i 1 '-a- v. Mitchell, is Yes. loo, com- 
 
 I nrith 5 Dare, 291. 
 Seton, Decrees, (2nd edit.) 213. 
 Lister v. I ee 11 M. & W. 531. 
 
 Cerrison v. Dorrien, 9 Bing. 76. 
 \ ton v. Dalton, - ''ell. 1:. 565 ; and 1 interest. 
 
 Ho< . dreg, - Phill. 7 1 7. Semb. mere equitable charge of leasel 
 erty, without change of pot 1 forfeiture, under ;i clause against 
 
 assignment Bo
 
 DEPOSITS OF SECURITIES. 103 
 
 payment of the debt, and to come in, as general creditors, for the bal- 
 ance.^) 
 
 It is to be borne in mind, however, that if a banker being equitable 
 mortgagee of land, takes upon him to assume the right of taking posses- 
 sion, without applying to a court of equity for leave or direction to do so, 
 aDd unreasonably and unnecessarily for the purpose of defending any 
 right given him by his mortgage, defends an action at law brought 
 against him, in consequence of his so acting, and is unsuccessful in his 
 defence, he will not be allowed the costs out of the mortgaged estate.(o) 
 In general, an equitable mortgagee is not entitled to the rents and profits 
 prior to the date of the order of sale.(p) 
 
 *An equitable mortgage may be established by means of r*igcn 
 written documents, coupled with parol evidence, against a prior *- 
 voluntary settlement, (q) but an equitable mortgagee will not be preferred 
 to a subsequent legal mortgagee, who has no notice of the equitable 
 mortgage, and the onus lies upon the former, claiming a priority, to prove 
 that the latter had such notice. (V) 
 
 In reference to questions respecting freehold or leasehold security, it 
 may be well to point out, that the deposit of the lease of a house, or of 
 deeds of conveyance of a house and furniture to the depositor, does not, 
 by any means, necessarily extend to charge the furniture in the house. 
 
 Thus, where A. deposits with B., as security for a debt, certain deeds 
 of lease and release, by which a freehold house at Bognor, and the fur- 
 niture therein, were conveyed and assigned to A., and the memorandum 
 of deposit was « Herewith I hand you the title deeds of my Bognor es- 
 tate, to be held by you, &c. ;" these words were decided not to extend to 
 the furniture, which, under them, did not pass to B., nor did any inter- 
 est in the furniture. If it had been the intention that the furniture 
 should be included in the security, B. ought to have taken care that A. 
 so expressed his memorandum of deposit, as to include the furniture, and 
 that a schedule was added enumerating the different articles. (s) 
 
 It seems, however, that when a lease of a house is deposited, on the 
 sale of the lease and goodwill of a business, established in it, the deposi- 
 tee is entitled to the whole of the price, whether it be considered to 
 arise from the goodwill, or from the value of the lease, independently of 
 the good-will. (?) 
 
 A parol agreement, that when a lease shall be granted, &c, it shall be 
 deposited, as security, for a sum advanced, *does not constitute r*9()0"l 
 an equitable mortgage, (m) though an agreement to mortgage real L J 
 
 (n) Brocklehurst v. Jessop, 7 Sim. 438 ; see Seton, Decrees, (2nd edit.) 188, 211, 
 
 To) Dryden v. Frost, 3 My. & C. 670 ; see Ex parte Fletcher, Mont. E. 454. 
 
 (p) Per Ld. Eldon, C, Ex parte Alexander, 2 Gly. & J. 275; Ex parte Bignold, 
 4 Dea. & C. 259 ; see Ex parte Cocks, 3 Dea. & Ch. 8. As to sale, see 2 Dea. & C. 
 60, 61, 59. As to insolvency, Garry v. Sharratt, 10 B. & C. 718. 
 
 (g) Ede v. Knowles, 2 Y. & Col. Ch. R. 172. 
 
 (r) Ex parte Hardy, 2 Dea. & C. 393. 
 
 (s) Ex parte Hunt, I M. D. & De G. 139. 
 
 (t) Chissum v. Dewes, 5 Russ. 29. Decree for sale of lease, Setou, Decrees, 
 (2nd edit.) 212. 
 
 (u) Ex parte Coombe, 4 Mad. 249.
 
 ] '1 chant OS THE law OF BANKING*. 
 
 estate, followed ap ly a sul>st'.|tn-rit deposit of title-deeds of the estate, 
 will amount, in equity, to a mortgage, and will be effectual from the date 
 of th<' agreement. (a | 
 
 [f a mortgagee, tor a term of 500 years, deposits with a banker the 
 mortgage deed, as security for 8002., and interest, and afterwards pur- 
 chases, of the mortgagor, the equity of redemption, there being no me- 
 morandum of deposit, and afterwards becomes bankrupt, &c., the whole 
 of the bankrupt's interest in the property must be sold, and the assignees 
 must join in the conveyance to the purchaser, (y) 
 
 When the deposited documents arc title-deeds, which have been de- 
 posited with the customer by a third party, with a written memorandum 
 of the object of their deposit with him, it is not necessary, to constitute 
 a valid and equitable sub-mortgage to a banker, that the original memo- 
 randum should also be deposited. (2) 
 
 A memorandum, in writing, of deposit, which states the deposit to be, 
 for the purpose of securing any sum or sums of money which may be 
 advanced by the banker, does not necessarily prevent the Becurity from 
 applying to past advances,^) and if a specific sum be mentioned in it, 
 the amount may be increased by a subsequent verbal agreement. U>) 
 
 A banking house, in consideration of an existing debt, and of a further 
 advance of money to a customer, obtained from him a deposit of all the 
 title-deeds of certain freehold and copyhold lands of which he was seised, 
 with a written memorandum, signed by him, regularly charging the lands 
 ■ ., M i-i *with payment of the whole debt and interest. Other creditors 
 I subsequently recovered judgment against him, and, under 1 & '2 
 Vict. c. 110, s. 13, sued out elegits, under which the sheriff delivered to 
 them the whole of the land. The bankers, having filed a bill in chan- 
 cery, praying thai tiny might be declared to have an equitable mori 
 upon the land, and to be entitled to priority over the elegits and judg- 
 ments, had their prayer granted, theri having been no laches on their 
 part, and their title being perfected before the judgments were re- 
 overed.(c) 
 
 The hankers, it may be observed, having perfected their title as equi- 
 table mortgagees, must have been preferred to the judgment creditors in 
 this ease, independently of the statute. (c) 
 
 indeed, Buch perfected equitable mortgage will prevail, even against 
 an extent at the suit of the crown. (<l) except where the mortgagor is an 
 accountant to the orown.(e) 
 
 \ deed of conveyance of the legal estate in fee, in the impropriate 
 tithes of Balcolman, mis deposited by way of equitable mortgage with a 
 
 Edge v. Worthington, 1 Cox, Oh. Cae. 211. 
 v. Ei parte Tufiiell, 1 Dea. A Oh. 29. 
 
 I nith, 2 M. D. h De 0. 587. (a) Ibid. 
 
 Ei parte Nettleahip, 2 If. D. & De <;. 124 : Ei parte Langston, 1 Rose, 26. 
 i ■•■ - nol hold ofe legal mortgage. Ei parte Sooper, 2 Rose, 328. 
 (c) Whitwortb r. Gaugain, 3 Hare, 416; affirmed, I Phill. It. 728, and 
 ■• v. Porter, 3 B. k B. 7 1:: .- lee 25 L. .) , Ch. 54 1. 
 ' ■ rd v. An. ecu., <; Price, -ill: confirmed, Watts v. Porter, 3 E. & B. 
 
 10 Fector v. Phillpott, L2 Price, 197. 
 Broughton v. Daviea, 1 Price, 216.
 
 DEPOSITS OP SECURITIES. 105 
 
 bank, in consideration of an advance of money by a person who was heir- 
 at-law and administrator, with the will annexed, to the grantee of the 
 conveyance, who was deceased, and who, by his will, devised all bis 
 right, title, and interest, in the tithes of Kilcolman, (he being, at the 
 time of making his will, only equitable mortgagee of the same,) to A. B. 
 The administrator made the deposit without the knowledge of A. B., 
 who, from the time of the death, had been in possession of the said 
 tithes, and had frequently applied to the administrator for the deed, but 
 could not obtain it. The bank, two years later, filed a bill against the 
 administrator for a sale, &c, and final decree for sale was pronounced. 
 
 *In such circumstances, the bankers being purchasers for r*ar\n-\ 
 valuable consideration, without notice of the will of the testator, L ~ W J 
 or of the title of any person claiming under it, will be protected in 
 equity ; and it makes no difference, that the person, really entitled to the 
 tithes, may have trover for the deeds in a court of law, and must suc- 
 ceed there. Hence, they can make no practical use of the deeds ; and 
 they cannot maintain possession of them, against the true owner of the 
 tithes, who, as such, is entitled to the deeds ; but, in equity, they have 
 the right to say, that they ought not to be compelled to deliver them up, 
 as they obtained them bona fide, and without notice. (/) 
 
 Where the bankers take a mortgage as security, the principal point to 
 be considered is, that the lands, &c, meant to be charged, shall be pre- 
 cisely specified or designated. It is true that the intent to give a gene- 
 ral charge upon all the property, &c, of the mortgagor, may be explained 
 aliunde, but the shortest, the safest, and the least troublesome and ex- 
 pensive, mode of effecting an arrangement of this kind is, to have care 
 taken, that the mortgage deed is made as complete as possible within it- 
 self, so as to require no subsequent propping up. The following case 
 seems to be in point to show this. 
 
 Articles of agreement, under seal, were entered into by a banker, in 
 the country, in order to secure a bank in London, the correspondents of 
 the former, for advances, with the latter, reciting that the country banker 
 had agreed to give the latter a mortgage on his freehold estates at Iver, 
 subject to the charge affecting the same, and the country banker agreed 
 to execute a mortgage of all his estate and interest in the lands, tene- 
 ments, and hereditaments, at or near Iver. Part of the property, at 
 Iver, was mortgaged to a third person, and a part also was copyhold. It 
 was held, that, notwithstanding the recital, the security extended to the 
 property at Iver which was not subject to any previous *charge, r^no-i 
 and, also, to the copyholds ; and, also, that the intention to give L J 
 a general charge, on all the property, might be explained by other writ- 
 ten memoranda of agreement ; and the London bankers were declared to 
 be equitable mortgagees until the amount due, in respect of their secu- 
 rity, should be realized. (g\ 
 
 (/) Joyce v. De Moleyns, 2 Jo. & L. 374. 
 
 \g) Ex parte Glyn, 1 M. D. & De G. 29. An equitable mortgage may be made 
 by deposit of copy of court roll. Lewis v. John, 9 Sim. 366 ; Whitbread v. Jordan, 
 1 Y. & Coll. Ex. Eq. 303 ; Tyler v. Webb, 6 Beav. 552 ; see Decree, Price v. Carver, 
 3 My. & C. 157, 163.
 
 [66 GRANT ON THE LAW OF BAN KIN'. 
 
 Exchequer Bills. — Where A. deposited an exchequer bill (with the 
 payee's name in blank) with 1!., in order that he might Bel] it, but B . 
 instead of doing so, places it in the hands of his bankers, who advance 
 him money to the amount of its value 3 15., having become bankrupt, it 
 was held, by the majority of the Court of King's Bench, that A. had no 
 right of action, against the bankers, to recover the bill, because tin 
 property in exchequer bills passes by delivery.(A) It will be observed, 
 it was the negligence of A., in not filling up the blank with his own 
 name, that rendered it impossible, for the bankers, to know or suspect 
 that 1>. was not dealing properly with the document; if A. had so 
 marked the bill, and the bankers had taken it, without any injury, per- 
 haps the n -ult might have been different. Mr. Justice Bayley, however, 
 differed from the rest of the court, and considered that exchequer bills 
 were not on the same footing as bills of exchange, and, therefore, not 
 within the law and custom of merchants, as applicable to bills of 
 exchange, but that they were to be taken to be goods and chattels, and 
 subject, therefore, to the rule that the pawnor of goods cannot, in general, 
 
 n/w-i COnveya better title than he ^possesses, and that the bankers 
 L ~ J were guilty of negligence in not ascertaining B.'s right to dis- 
 pose of the instrument. 
 
 Deeds, relating to a trust estate, were deposited, for safe custody, at a 
 bankers', in a tin box, marked « New's Trust." One of the ostitis qw 
 trust, „t afterwards opens an account with the bank, and, on its appearing 
 that his account was overdrawn, makes a parol agreement, with the 
 bankers, that they might hold the deeds, so far as they related to his 
 inter* -t in the estate, as a Becurity lor his current account. Afterwards, 
 ;: deed of partition being executed between the customer and the other 
 persons interested with him in the estate, he signs a memorandum, stat- 
 ing that he has deposited the (beds therein described, u as a collateral 
 security for any advances you may make on my behalf." The deeds 
 described in the memorandum were those already in the possession of 
 the bank; the deed of partition was not deposited; but the whole cir- 
 cumstances showing, that the intention was to secure the bankers against 
 as well as future advances, to be gathered from various conversa- 
 tions held by the customer with one of the partners, and with one of 
 the clerks of the firm; it was decided, that such was the effect of the 
 
 deposit, and that the bankers were equitable 1 tgagees of the estates 
 
 held in severalty bj the customer, and that the security extended to 
 advances made as well before a- after the date of the memorandum. {%) 
 Promissory Notes. — For persons having pecuniary connections with 
 tie Bast [ndies, the following decisions may be serviceable, as showing 
 the relation- between them and banks in Calcutta, \c., which they may 
 
 constitute their agents, in oertain 01 
 
 (/,) Wookey v. Pole, 1 B. & A. 1 : Form of Excheq. Bill, id. •_'. Vaw Mils do 
 - without assignment. Maclish v. Skins, Saver. 1;. 7:1; < t -c .1 j;.' ,t A 13 
 80 in case of bills of exchange, indorsed in blank ami pledged, the real owner can- 
 Collini v. .Martin. 1 ];. ,v I'. 648; Treuttell v. Barandon. 1 J. B. 
 
 (0 Ex parte Farley, 1 If. D. k De G. C83.
 
 DEPOSITS OF SECURITIES. 1G7 
 
 The payee of some promissory notes of the East India Company, by 
 power of attorney, authorized his agents at Calcutta, a firm of bankers, 
 to "sell, indorse, and assign" the notes, which were transferable by 
 indorsement, and payable *to bearer. The agents, in their r*o(\&-\ 
 character of bankers, borrowed money of the Bank of Bengal, L 
 offering as a security, these promissory notes. The Bank of Bengal 
 made the advance, the agents indorsing the notes, and purporting to 
 make the indorsement, as attorney for their principal ; they deposited 
 the notes with the Bank of Bengal, by way of collateral security for 
 their personal liability, at the same time authorizing the Bank of Bengal, 
 in default of payment, to sell the notes, in reimbursement of their 
 advance. The agents afterwards became insolvent, and default having 
 been made in payment, the Bank of Bengal sold the notes and realized 
 the amount of their loan. The indorsement of the notes, by the bank, 
 was considered, by the judicial committee of the privy council, to be 
 within the scope of their authority, given them as agents of the payee, 
 by the power of attorney ; and, consequently, the payee could not recover 
 in detinue, against the Bank of Bengal. (7-) 
 
 A banker having made advances to A., takes his promissory note for 
 400/., payable on demand, with lawful interest, as a security for the 
 advances. The banker subsecpiently indorses the note to B.,.as a security 
 for money placed in his hands by B. Some time afterwards, A. and the 
 banker settle their accounts, and A. pays the balance, but neglects to 
 ask for the note, which is not delivered up to him. Then the note 
 passes backwards and forwards several times, between the banker and 
 B., during all which time the former was indebted to the latter in more 
 than 400/.; the banker, on one of these occasions, telling B. that it 
 must not be negotiated, as he should want it when he settled accounts 
 with A. When this communication took place did not appear exactly, 
 but it was before the last time the note was deposited with B. ; and it 
 was held to be decisive to show that *it was not negotiated to r*2061 
 B., but only deposited with him as a pledge. It was held, L 
 therefore, that B. (or his assignees on his bankruptcy) could not, after 
 the settlement of accounts between A. and the banker, without a redeli- 
 very of the note to A., recover on it against A. (7) 
 
 Where bankers take the security of a joint and several promissory 
 note, signed by the customer and another person as surety, for a floating 
 balance, in their account with the customer, due to them, the surety is 
 held to be released, by the bankers' crediting the customer with the full 
 amount of the note, without advancing the money at the tinie.(m) 
 
 Bonds, Bills, &c— Again, where a trader deposits, with his bankers, 
 a bond for the payment of a sum of money, with interest, given by X. 
 to Y. ; certain bills of exchange drawn by Y. and accepted by X. (as 
 security, for the payment of which, the bond had been given;) and a 
 mortgage of the bond and bills by Y. to the trader, it was decided that, 
 
 (k) Bank of Bengal v. Macleod, 5 Moo. Indian App. 0. 1 ; 7 Moo. P. C. 35 ; S. 
 P., Bank of Bengal v. Fagan, 5 Moo. Indian App. C. 27 ; 7 Moo. P. C. 61. See in- 
 fra, 207. » 
 
 (I) Roberts v. Eden, 1 B. & P. 398. (m) Archer v. Hudson, 7 Beav. 551.
 
 GRANT OX THE LAW OF BANKING. 
 
 had been already settled by former decisions, that bills of exchange, 
 when deposited, did not require notice to be given to the debtor, to take 
 tlinu out of the operation <>t' the bankrupt laws, as to order and disposi- 
 tion ; so a bond which was given to secure the payment of bills of 
 exchange, for the benefit of the holders, did nut, under these circum- 
 Btanoes, require notice to be given to the obligor. (71) 
 
 In a former case, however, notice was held t" be necessary to give 
 validity to a deposit of a warrant of attorney, which was expressed to be 
 execute] to secure payment of bills of exchange, one of which was 
 deposited as part of the security. But, in that case, the deposited bill 
 had not been indorsed, and there was only an equitable right in the 
 r*on-"i ctepositee *to have his security completed, by the indorsement 
 L 'J of the bill.(o) 
 
 A deposit, by way of mortgage, of a land order of the New Zealand 
 Land Company, is good, although no notice be given to the company of 
 the deposit. (p\ 
 
 A banker, taking security from a customer, by a bond executed by 
 the customer, and A., as his surety, conditioned for the payment of 
 all sums already (at the delivery of the bond) advanced, or thereafter 
 to be advanced, by the banker to the customer, does not necessarily 
 lose his right of suing the customer, as on a simple contract, for the 
 balance of the customer's account, at any time after the making and 
 accepting of the bond. In other words, the simple contract debt is 
 not merged in the specialty, (7) at least when the balance is due to a 
 banking copartnership, and the bond is given to two persons, manag- 
 ing dire, tors of the company, for the time being, especially if it appear 
 that the bond was, in truth, neither given nor taken, with any intention 
 of being applied to cover more than a specific sum, whilst the balance 
 might become larger than that sum, so that the bond was clearly intended 
 • ollateral security only. 
 
 Where a person gives a promissory note to a bank, it being made by 
 him in their favour, with the intention thereby to satisfy a liability from 
 which he was discharged at law, but in ignorance of the facts constitut- 
 ing Buch discharge, there the bank cannot enforce the note, although the 
 drawer had the means of knowing the facts, (r) 
 
 A trading firm in Calcutta, having borrowed a Bum of money from the 
 Hank of Bengal, deposited Bast India Company's paper with the bank, 
 to a greater amount, as collateral security, accompanied with a written 
 authorization, to the bank, in case of default of repayment of the loan, 
 r*9fis 1 '•'' :i - m '" '' ;| . V - '" M '" ''"' East [ndia Company's paper, for the 
 L J reimbusement of the Bald bank, rendering to the firm the sur- 
 plus. Before default, the firm are declared insolvi nts, under !) Geo. IV. 
 c. 73, the Indian Insolvent Debtors A.ct, by the 86th section of which, 
 
 (n) K\ parte Barnett, !>.• <;. Bank. R. 203 : see Ex parte M'Turck, 2 Deac. 58. 
 ■ ) Ej parte Price, :: If. l». k De G 
 
 Ei parte Barnett, De <i. Bank. Rep. 203 ; -<•■■ Ei parte M'Tnrck, 2 Dea< 
 
 Bell, ■': If. .v Gra. 213; and aeeS. C., 3 Scott, N.R. 419. The mer- 
 ger, t<> i><- taken advantage <>f. ought to oavi 1 een specially pleaded. 
 Bell v. Gardiner, 4 M. k Gra. u.
 
 DEPOSITS OF SECURITIES. 109 
 
 (similar to 6 Geo. IV. c. 16, s. 56,) when mutual credit has been given 
 by the insolvent, and any other person, one debt, or demand, may be set 
 off against the other, and all such debts as might be proved, under a 
 commission of bankruptcy, in England, might be proved in the same 
 manner, under the Indian Insolvent Act. 
 
 At the time of the adjudication of insolvency, the bank were also 
 holders, for value, of two promissory notes of the same firm, which they 
 had discounted for them, previously to the transaction of the loan, and 
 the deposit, &c. When the time, for the repayment of tbe loan, ex- 
 pired, the bank sold the company's paper, the proceeds of which, after 
 satisfying the principal and interest due upon the loan, produced a con- 
 siderable surplus. In an action by the assignees, against the bank, to 
 recover the surplus, it was held, that the bank could not set off the 
 amount of the promissory notes, which were then due and unpaid, and 
 that the case did not come within the clause of mutual credit, in the 
 Bankrupt Act. 
 
 The case is important, because the court held it to be manifest, that it 
 was to be dealt with, and disposed of, exactly as if it had arisen, in a 
 proceeding in a bankruptcy, under the English Act.(s) It is to be ob- 
 served, that the bank gave credit, to the firm, for the amount of the 
 notes, but there was no corresponding credit given, by the firm, to them; 
 it was, therefore, uncertain whether there would be any money coming 
 to the firm or not; and if the assignees had redeemed the company's 
 paper, there would not have been any : the credit was all on one side. 
 
 *If a trader has securities bailed to him, in order, that by de- r*209I 
 positing them, he may get credit with the bank of A., he is not L ^ J 
 authorized, after having redeemed them, from the bank of A., again to 
 deposit them, in order to obtain credit with the bank of B., although the 
 securities had been indorsed to him. 
 
 When a trader deposits securities, in his possession, for the purpose of 
 obtaining credit, and does so without the knowledge of the owner of the 
 securities, he is not to be considered, if he redeems them, to have given 
 fraudulent preference to the owner. (t) 
 
 Marriage Settlements. — In a case where a person had assigned his 
 life interest, under his marriage settlement, in stock, standing in the 
 names of the three trustees of the settlement, to A., and shortly after- 
 wards A. had communicated the fact to one of the trustees, who, how- 
 ever, was not the acting trustee, and the communication was not made 
 with any intention of giving validity to the assignment, and A. had 
 several subsequent communications with him on the subject, it was held, 
 that the object with which the communication was made was immaterial, 
 and that notice to one trustee was notice to all. (if ) If the trustee has 
 actual knowledge, at the time the transaction takes place, the principle 
 of law may be taken to he,(y) that what a man knows for one purpose he 
 
 (s) Young v. Bank of Bengal, 1 Moo. P. C. 150, more fully, 1 Deac. 622. 
 (t) Sinclair v. Wilson, 24 L. J., Ch. 537. 
 
 \u) Smith v. Smith, 2 Cro. & M. 231 ; Meux v. Bell, 1 Hare, ,3 ; see per Lord 
 Langdale, M. R., 2 Keen, 53. . 
 
 (i<) See 1 Hare, 88. Notice to the solicitors of trustees is good notice to tnem.
 
 170 QBANI OH THE LAW OP BANKING. 
 
 knows for all j and you do not inquire whether he learnt it in one oha- 
 c or in another, (v) 
 
 But, in the ease of exeoutore, notice to one is not, in all cases, notice 
 t i all, though the others, in poini of fact, never "'heard of any 
 L ~ J dealings ;it all ;("') at least, when the transaction is between the 
 acting executor and his Bon, the father being an interested party, aud 
 there being no ground to presume that the fact was communicated to the 
 other-, each of whom had separate authority to receive and pay. (to) 
 
 G ■ Is. — A pledge of jewels is made, as security for a debt, at the 
 time of the pledge, existing. The customer, afterwards, borrows other 
 sums upon a general account, aud then insisted upon his right of re- 
 deeming the jewels, on payment of the first debt only. It was held that 
 he must pay the whole; hut it was admitted, that if there had been hond 
 creditor-, or in case of a bankruptcy, the pledge could have been retained 
 only for the first sum, aud the hankers, in such case, must have come in, 
 under the jiat, for the remainder. (x) 
 
 ] Jankers advance a sum of money to the wife of a person absent in 
 India, on the security of a chest of plate, deposited with them, and on 
 the guarantee of a customer. This sum was repaid to the hank. After- 
 wards they advance another sum, with the consent of the guarantor, the 
 plate -till remaining in the keeping of the hankers; the wife had autho- 
 rity to pledge the plate, in case of emergency, and the customer himself 
 id the second loan. Then the husband dies intestate, and his admin- 
 istrators sue the hankers for the recovery of the chest of plate; but the 
 plea of the hankers, that they held it in virtue of the customer's lien on it, 
 and by his re.in.--t, was a good answer; for that, under the above cir- 
 cumstances, the bank might be taken to have made the second advance 
 on the credit of the customer, who, consequently, had a lien on the chest 
 r*°111 °^ l'' aU '- ^though "there was no previous arrangement or oon- 
 L -I tract with him.(//j 
 
 If the security offered be g Is, the banker ought to bear in mind the 
 
 imprudence of entering into such transaction by way of half measures; 
 the transaction ought to he made complete, or not entertained at all; it 
 ought, for the' bankers' safety, to he left on such a footing, as will hear 
 legal scrutiny, or it ought never to he taken in hand. To make such 
 transactions valid, there ought to be a hill of -ale, executed by the debtor, 
 
 under which actual possession of the goods ought to he taken and re- 
 tained. The following case illustrates this. 
 
 A trader, being in advance with his bankers, gave them a receipt for 
 
 10,000/., purporting to he the purohase-m tyofthe furniture, fixtures, 
 
 plate, effects, &c., in his dwelling-house, but no possession of the 
 
 was given, at that time, and no hill of salt iited. More than a 
 
 FoBter v. Blackstone, 1 My. <v K. 297 ; S. ('., nom. diver-,.. 9 l;li. (N. S.) 375, 370; 
 Bee also Gale v. Lewis, '■< Q. B. 7 1_. 
 preceding note. 
 Tun-, .n \. Ramabottom, 2 Bta e l Bare, 96, 97; per Sir B. Sug- 
 
 1 . [re., Ei parte Benessy, ] Connor fc L. R. 662; 8. .. 2 Dru. k Wax. 555. 
 Demainbray v. Metcalfe, Prec. Oh. 419; 8. <'.. 2 Vera. 691, as explained in 
 A,i;iin, v. Olaxton, 8 Vc-. 229, per Mr W. Grant, M. ];. 
 l anoi r. Majoribanks, 7 Jur. B34, «'. i;
 
 DEPOSITS OF SECURITIES. 171 
 
 year afterwards, the bankers sent a person, to whom possession was given, 
 by the trader's delivering him a chair, on behalf of the bankers' posses- 
 sion, of all his furniture and effects, in and about the premises, and on 
 the same day, the trader filed a declaration of insolvency, and sued out a 
 fiat in bankruptcy against himself. It was contended, that this delivery 
 of possession was an act of fraudulent preference. The court considered 
 otherwise, but left, undecided, the question as to the effect of the joint 
 possession of the trader's servants, and the person sent by the bankers, 
 of the goods, &c, in the trader's house, seeming to think the trader 
 oufht to have left the house, and relinquished the physical dominion of 
 the whole to that person, (2) otherwise no one could know that *the r-^o-i 9-1 
 latter was in possession, or that the goods were not in the order L "" ""J 
 and disposition, &c, of the bankrupt, at the time, &c. 
 
 The result of this is, therefore, that the safe mode for a banker to adopt, 
 who wishes to secure himself, in respect of advances to a customer, in a 
 similar manner, is to take a bill of sale of the goods, &c, and insist upon 
 having full possession given up to him. 
 
 Goods, &c, at Sea. — A banker may also safely take an assignment, 
 by way of mortgage, of a ship and cargo, while the ship is on her voyage, 
 which will operate, in equity, to assign as well the future cargo, as that, 
 if any, which existed at the time of the assignment, and if notice be sent 
 to the master of the vessel, and the master deliver up possession of the 
 ship and cargo, shortly after her return from the voyage, the equitable 
 title of the banker will be considered to be complete, and not to be de- 
 feated by a judgment creditor of the assignor, who afterwards sued out 
 a writ of execution, and proceeded to take the ship and cargo in execu- 
 tion, (a) If an equitable mortgage, not registered, is taken, it must be 
 remembered that it will be postponed to a subsequent registered mort- 
 gage, though the subsequent mortgagee had notice of the prior equitable 
 mortgage, (i) 
 
 If bankers take, from a consignee of goods, in consideration of ad- 
 vances, the security of a bill of lading, (indorsed generally to bearer,) 
 and of a policy of insurance on ship and goods, effected by the consignee, 
 in pursuance of an agreement with the bankers, both deposited with 
 them, and they pay the premium to the insurance company, the insur- 
 ance *being, in fact, effected to secure them, they may sue in r*213"l 
 their own names, upon the policy for the loss or damage incurred ; L J 
 if, on the other hand, the consignee had, in the first instance, insured 
 
 (2) Ex parte Majoribanks, De G. Bank. R. 477, referring to Mace v. Cadell, 
 Cowp. 232 ; Latimer v. Batson, 4 B. & C. 652 ; Woodall v. Smith, 1 Campb. 333 ; 
 see also Ex parte Castle, 3 M. D. & De G. 117 ; Fawcett v. Fearne, 6 Q. B. 20 ; Ex 
 parte Sharp, 3 M. D. & De G. 490, 494. Where the original owner, in pursuance 
 of an agreement which was (it is stated) notorious in the neighbourhood, remained 
 in possession of the furniture, &c, in the house, and became bankrupt whilst so 
 remaining, it was held not to be a possession by the bankrupt within the statute 
 21 Jac. 1, c. 19, s. 11 ; Muller v. Moss, 1 Mau. & S. 335 ; S. C, 2 Rose, 99 ; see also 
 Price v. Groom. 2 Exch. 542. A mortgage of chattels may be without deed, Flory 
 v. Denny, 21 L. J. (N. S.) Exch. 224. 
 
 (a) Langton v. Horton, 1 Hare, 549. 
 
 (b) Coombes v. Mansfield, 3 Drewry, 193.
 
 172 GRANT OK THE LAW OF BANKING. 
 
 the Bhip and goods, not in the capacity of agent for the bankers, but in 
 the ordinary waj of business, and then had agreed for the deposit of the 
 bill of lading, and the policy, with them, the action could only have been 
 brought in the name of the consignee.(c) 
 
 The next case we shall cite is a case of a mortgage, by deed, of ship 
 and freight, &o. 
 
 < >in- of two partners, whose firm had an account with a bank, obtained 
 discount of a promissory note, made by the firm, from the bank, on an 
 agreement for a mortgage of shares, belonging to the firm, in certain 
 ships, and their freight, and of the policies of insurance effected by the 
 firm on the shares. A mortgage deed was prepared accordingly, pur- 
 porting to be made by both partners, but it was, iu fact, executed by the 
 one only, the other refusing. At the time of the execution of it, one of 
 the ships was lust, but the fact was unknown to the parties. The secu- 
 rity was held to be binding on the firm, notwithstanding the execution 
 by one partner only, and to pa-- the insurance money, although the deed 
 was cot registered according to the shipping acts. The deed purported 
 to be for securing the balance of the account current. Notice was given, 
 by the bank, to the underwriters, previously to any act of bankruptcy. 
 The case was considered to be distinguished from those, in which the 
 courts have laid down or acted on the rule, that one partner cannot bind 
 copartners by deed, by the circumstance that there was, in this case, a 
 previous contract, by or on behalf of the firm, to execute the mortgage, 
 r*-?in which was a "transaction, within the authority of the partner, to 
 L -I bind the firm, by means of.(d\ 
 
 1 Jut it is unquestionable, that many difficulties and niceties involve 
 this Bubject ; and moreover, probably in no case, where it can possibly 
 be avoided, ought a banker to attach any great value to the assignment, 
 as a security, of a marine insurant 
 
 The following case is somewhat peculiar, but may properly be Stated 
 here, with a view to further illustrating the position of bankers, as re- 
 gards questions relating to security on goods on board ship. 
 
 Brown, a merchant, at Liverpool, had a banking account with Smiths, 
 Sons & Co., bankers iu London, who also carried on the business of mer- 
 chants, under the firm of Smiths and Atkinson, in London, and it was 
 agreed that, for the purpose of securing advances, which Smiths, Sons 
 
 & Co. might make to Brown iii answering his drafts, &c., Brown should 
 remit them good bills of exchange, should lodge a credit with two houses 
 at Hamburgh, against goods consigned to those houses, to a certain 
 amount, of which Smiths, Sons a. Co. Bhould avail themselves, &c., and 
 
 also as a collateral security, that BroWD Bhould Consign, to the house of 
 
 Smiths and Atkinson, certain goods on sale for their account; and ac- 
 
 (r) Sutherland v. Pratt. \2 M. .1- \V. 16. E tamp, Harris v. Birch, 9 M 
 
 .•c \v. 591. When tin' liill- of lading had been banded over before, but not in- 
 r, the bankruptcy, planation of the decisions given, Bel- 
 
 cher v. Capper, i II. a I 
 t<i) Ex parte Bosanquet, De G. Bank. B. 432. Bee ae to assignment of shaces 
 
 ihip, Douglas v. Russell, 4 Sim. 5 
 (t) .See Boddington v. Oastelli, 23 L. J. (N. 8.) Q. B. 32.
 
 DEPOSITS OP SECURITIES. 173 
 
 cordingly Brown remitted to Smiths and Atkinson the invoice of a cargo 
 and bill of lading, indorsed in blank. But the ship, in which the cargo 
 was loaded, was prevented leaving Liverpool, by an embargo. Some- 
 time afterwards, Brown became bankrupt, the balance of accounts being 
 in favour of Smiths, Sons & Co., and the cargo was delivered, by the 
 captain of the ship, to the assignees. It was held, that the indorsement 
 and remittance of the bill of lading, to Smiths and Atkinson, in accord- 
 ance with the *previous agreement of the parties, changed the r*9i 5-1 
 property in the goods, which were to remain in their hands, L 
 clothed with the trust expressed in the agreement, and that Smiths and 
 Atkinson might, therefore, maintain trover against the captain, to re- 
 cover the value of the cargo. (/) 
 
 As there is no doubt that a person may give an effectual security upon 
 property of his at sea, before it has come to hand, so he may also pledge 
 a policy of marine insurance with another person, or with bankers, and 
 they, if due notice have been given to the underwriters or insurance 
 company, will be entitled to receive the principal sum insured, upon 
 the event insured against happening. The cases cited below show this. 
 The following facts are detailed, for the purpose of showing an instance 
 of a defective deposit of this class. 
 
 A. opens an account with a bank, the arrangement being, that he 
 should be allowed to overdraw to a certain amount, but that, if he over- 
 drew beyond that amount, he should find security ; eventually he over- 
 drew beyond the specified amount, without finding security ; the bank 
 pressed for payment of the whole, or at least a portion, of the balance. 
 A., in reply by letter, stated that the arrival of the ship Tagus, which 
 was daily expected, would enable him to adjust the account, and inclosed 
 a policy of insurance on the cargo of the Tagus, indorsed payable to 
 the manager of the bank, the indorsement being signed by A. The bill 
 of lading was not deposited, and when the bankers applied for it, A. 
 stated his inability to part with it, acknowledging that he was in insolvent 
 circumstances, and could not, in duty to other creditors, part with the 
 possession of any of their assets. On these facts, it was held that the 
 letter and indorsement of policy did not create such a specific charge or 
 lien on the cargo, as would entitle the bank to priority over general 
 creditors. (#) 
 
 *This case turned entirely on the expressions used in the r*216~| 
 letter. 
 
 Change of Firm. — The question may frequently arise, in practical 
 banking, as to the effect, of a change of firm, upon a security, deposited 
 with the bank, before the alteration. The following case will tend to 
 explain, the position of the bank, in such circumstances. 
 
 A. deposits with a bank, by way of security, for advances, a joint and 
 
 ( f) Haille v. Smith, 1 B. & P. 563. 
 
 (ff) Jones v. Starkey, 16 Jur. Ch. 510 ; see also Castelli v. Boddmgton, 22 L. J. 
 (N. S.) Q. B. 5 ; S. C, in error, 23 id. Q. B. 31. A person may give a valid secu- 
 rity on merchandise at sea belonging to him, although at the time he is in igno- 
 rance of the particulars of which it consists, Ex parte Kelsall, De G. Bank. R. 
 352.
 
 174 Q R A NT ° N T n E L A w ( ' F B A N K l - x (; - 
 
 1 promissory note, made payable to order mi demand, with interest, 
 whereby A. & I>. promised to pay, on demand, Pease and others, and 
 l;. II. or order, 300?., with interest. A. paya interest regularly. At 
 one time ho had a balance, in the bankers' hands, exceeding the amount 
 of the note. After the note is deposited the linn changes. Held by 
 the court — 
 
 1. The imt.' being a continuing Beourity, inasmuch as it is made 
 payable to order, might he indorsed, notwithstanding the change in the 
 banking firm. 
 
 2. The note not having been indorsed, the original payees, being 
 a partnership, or the survivors of them, were the proper parties to sue 
 upon it. 
 
 :;. The note was not discharged, by the fact <>t* A.'.s having at one 
 time, since the deposit of it, in the bankers' hands, a balance exceeding 
 its amount. 
 
 4. Payment within six years, of interest, by A., took the note out of 
 the operation of the Statute of Limitations as to B.(Ji\ 
 
 Whenever, therefore, bankers take a security of this kind, it is indis- 
 pensable for their security, either that they indorse *the note 
 L ~ J within the six years from its date, or that they put it in Buit 
 within that time, or that they take care that the interest is regularly 
 paid upon it, in order to make it effectual as a security, and guard theni- 
 seh es against loss. 
 
 "Where a customer deposited title deeds of copyhold estate with his 
 bankers, the deposit being agreed to b> urity, not only for a sum 
 
 already advanced by the bankers to him, but also for any other sum- of 
 money which might be afterwards advanced by the linn. Afterwards, 
 one of the linn dies, and another person is afterwards added to the linn, 
 . thing else remaining the same as before, in the relations of the 
 
 customer to the firm. About six years elapse, when a fiat in bankruptcy 
 inst the depositor, and it becomes a question whether the 
 deposit enures to the benefit of the new T firm : but it was held that it 
 did; for that the circumstances amounted to a tacit acknowledgment, 
 that tin' deeds were deposited, with the new firm, on the same terms, as 
 they had been with the old one.(t) It may, probably, now be laid down 
 with confidence, that the continuance of the suue modes of dealing 
 with the new firm, as with the "Id, and the continuance of the deposit 
 in the hand- of the new linn, will be construed into a tacit recognition 
 by the depositor, that the new hold the deeds for the like object and 
 purpose a- the old one did, and Maud in the smio relation to him. 
 Nevertheless, in practice, it is desirable for bankers, in order to avoidall 
 
 tionB, as to whether a sufficient period has elapsed, to enable the 
 court to gay thai the intention of the depositor was clearly manifested, 
 
 (h) I 5 Han. & i:y. B8; S. •'.. L0 B. & •'. 122. It seems probable 
 
 •■. bad called it i >< iii the linker-; to apply A.'.- balance, when it was 
 to tie- discharge of tin- note, they wonld have been bound to do so, see 
 per Bayley, .1.. 5 Man. & R. 92. 
 
 i:.\ parte Kensington, .' \'< -. & B. 79, 83; E\ parte Oakes, '_' M. D. & De G. 
 parte Smith. 2 M. D. a: De G. 314; see L9 k 20 Vict. c. 07, s. 4.
 
 DEPOSITS OF SECURITIES. 1;;, 
 
 and to make it quite certain that he was aware of the change, &c, to 
 have a fresh memorandum of deposit made, purporting to secure the 
 new firm. 
 
 To close this subject, we may mention some considerations, arising 
 out of the proportion, which the value of the security taken, bears to the 
 debt which it is taken to secure. 
 
 *At law, the general principle has been laid down, with respect p,, 9 -. „.. 
 to insolvency, that if the debt to be secured was less than the debt L J 
 assigned, and there was nothing more than a simple assignment of the 
 debt, as a security, in such case, the assignees of the insolvent would 
 have an immediate interest in the sum to be recovered, from which, 
 benefit to the creditors might result, and they would not have been bound 
 to refund, to the equitable assignee of the debt, all they had recovered ; 
 and this being the test, at law, of the right of the assignees to sue, or 
 not, for the debt, the right of action, in such circumstances, would vest 
 in them. (A') 
 
 Again, if the debt assigned be equal to the debt, to secure which it is 
 assigned, i. e., equal at the time of assignment, this does not necessarily 
 make any difference ; for if the debt secured be subsequently, and before 
 the debt assigned has been recovered, reduced by payment or by the 
 realization of other securities, there would be a surplus, applicable to 
 the payment of the insolvent's general creditors, and the possibility of 
 that surplus would vest the title to recover the debt in the insolvent's 
 assignees. Uc\ 
 
 And the same seems to be the rule, at law, if the debt assigned, by 
 way of security, were greater than the debt to be secured; i. e., greater 
 at the time of assignment. In this case, also, as in the others, the right 
 of action, for the debt, vests in the assignees.^) 
 
 In equity, there appears to be no difference whatever with regard to 
 the above points, whether the assignment is of a policy, the sum insured, 
 whereby, is equal to, or less than the sum for which it is taken as a 
 security, or partial security, by the bankers, or whether it is of a policy 
 for a sum exceeding that due by the assignor to the bankers, so that it 
 is, in fact, an assignment by way of mortgage; in either case their 
 receipts will be discharges to the insurance office; in ^neither p^oian 
 case can there be any interpleader. If, however, the mortgagor, L " l J 
 after the date of the assignment of the policy, by way of mortgage, as 
 security, satisfied the bankers, and gave notice to the insurance company 
 that he had done so, so that the mortgage was no longer in force ; in 
 such a case, the company, other things remaining the same, might have 
 a right to have the relative rights and claims of all parties adjusted, by 
 the court, on interpleader. (l\ 
 
 Perhaps, also, if notice be served by a provisional assignee of an insol- 
 vent, upon the insurance company, not to pay to the bank, and he pro- 
 
 (Jc) D'Arnay v. Chesneau, 13 M. & W. 809, 810 ; compare Dessborough v. Harris, 
 3 Eq. R. 1058 ; and see also per Pollock, C. B., Boddington v. Castelli, 23 L. J. 
 (N. H.) Q. B. 33, as to possibility of surplus vesting right of action. 
 
 (I) Dessborough v. Harris, 3 Eq. R. 1058 ; 1 Jur. (N. S.) 98G, overruling Fenn v. 
 Edmonds, 5 Hare, 314. 
 
 February, 1857. — 13
 
 176 GRANT <>N THE LAW OF BANKING. 
 
 ceeds to take active steps to enforce his claim to the proceeds of the 
 policy, it might be held, thai the company were entitled to the same ad- 
 justment, effected in the same way. 
 
 [*220] "CHAPTER VII. 
 
 GUARANTEES, BONDS, ETC. GIVEN TO BANKERS. 
 
 As to guarantees, or bonds, &c., given by third parties to bankers, to 
 secure their advances to customers, &C., it may be useful to examine 
 various decisions, in order to perceive and note the grounds of the law 
 on which they have rested, and the duties and rights of bankers arising 
 out of the principles they lay down. 
 
 A., a customer of a bank, having overdrawn his account, upwards of 
 10,000/., 13. and others execute a bond to the bankers to secure, gua- 
 rantee, and indemnify the latter for any sums, which, for ten years, they 
 might advance to A. on bills drawn by him, or made payable at their 
 house, and on all cheques, notes, orders, and other engagements of A., 
 not exceeding the sum of 5,0U0/. in the whole, together with interest on 
 the said sums, kc. This bond was not to affect a prior security given 
 by A. to the bankers; but the bankers gave no notice to B. or to the 
 other obligors, that A. was indebted to them, in the above sum, at the 
 time of executing the bond. The bankers continued to make advances 
 in A., who afterwards became bankrupt, and in the final close of accounts, 
 he was indebted to them upwards of 10,000/. After the ezecntii 
 the bond, he had paid in sums considerably exceeding 5,000/. ; he saw 
 the accounts every fortnight, and received vouchers halt-yearly, and knew 
 how the different payments were applied, but never made any objection, 
 or gave any directions, as to their application. 
 
 J>. was held to be liable to the extent of 5,000/., but one of the learned 
 judges gave his assent, with great reluctance, thinking it far from clear 
 that the sureties, on executing the bond, did doI intend that any fresh 
 n payments, made by A., "should go to the new account, leaving 
 L ~" J the bankers to their remedy, on the former bond, for the reduction 
 of the old account. (") 
 
 Chang\ of Firm. — A guarantee, given by a person to secure a bank- 
 ing copartnership, consisting of several members, all and every sums or 
 sum of money which might become due to tlu ///, from a certain customer, 
 for money advaniid to him, &C., upon any bill-, &C., made payable at 
 
 Williams v. Rawlinson, ?> Bing. 71 : and Bee S. <".. as to Btamp, "Wlicn the 
 mer and another person join in a bond conditioned tor the payment of all 
 sums advanced or to be advanced to the customer, the bankers may nevertheless 
 c tor the balance, as on a debt by Bimple contract, there being no 
 merger, the parties to the bond not being those between whom the original lia- 
 bility arose. Holmes v. Bell, :: M. & Gra. 220.
 
 GUARANTEES, BONDS, ETC., GIVEN TO BANKERS. 177 
 
 the banking house of the copartnership, does not bind the obligor, 
 after the death of one of the partners, nor cover future advances made, 
 after such death, and the taking in of another partner; and the customer 
 who, at the time of the death, was indebted to the house, having after- 
 wards paid off the balance incurred previously to the death, the obligor 
 was wholly discharged. (&) 
 
 There is no doubt, however, that a guarantee may be drawn, in such 
 terms, as will serve as a continuing indemnity to the house, whatever be 
 the change of partners ; but then that must plainly appear from the lan- 
 guage used ;(c) the courts, both of equity (c?) and common law(e) appear to 
 lean against increasing the liability of a guarantor to a banking firm in 
 this respect. This principle of construction, *narrowing the lia- r*ooo-\ 
 bility of a surety, applies quite as strongly, from the nature of L J 
 it, when the advances to be secured are to be made to a firm ; for it is 
 obviously an assumption to conclude, that a party guarantees advances to 
 A., B. and C. 
 
 And since the decisions, which established this principle, the legisla- 
 ture appears to have ratified and confirmed it, by enacting, as fol- 
 lows : — (/) 
 
 " No promise to answer for the debt, default, or miscarriage of another, 
 made to a firm, consisting of two or more persons, or to a single person, 
 trading under the name of a firm, and no promise to answer for the debt, 
 default, or miscarriage of a firm, consisting of two or more persons, or of 
 a single person, trading under the name of a firm, shall be binding on 
 the person making such promise, in respect of any thing done or omitted 
 to be done, after a change shall have taken place in any one or more of 
 the persons constituting the firm, or in the person trading under the 
 name of a firm, unless the intention of the parties, that such promise 
 shall contiue to be binding, notwithstanding such change, shall appear, 
 either by express stipulation, or by necessary implication, from the 
 nature of the firm, or otherwise." 
 
 Since this statute, therefore, guarantees of this sort may either ex- 
 pressly stipulate for the continuance of the undertaking, (when the in- 
 tention is that it should continue,) notwithstanding changes in the firm ; 
 or if the parties choose to take, upon themselves, the risk of determining 
 that the firm is of such a nature, as necessarily to imply the continuance 
 of the guarantee, notwithstanding the change, &c, they may do so, and 
 need not insert an express provision to that effect ; and so they need not 
 insert an express provision, if they choose to incur the risk of proving 
 
 (b) Strange v. Lee, 3 East, 484 ; and see ace. Weston v. Barton, 4 Taunt. 67 - 
 where larger words were used, see Bodenkam v. Purchas, 2 B. & A. 39 ; Dry v. Da- 
 vey, 10 A. & E. 30. 
 
 (c) See form in Earle v. Oliver, 2 Excb. 71, 72, and stat. 19 & 20 Vict. c. 97, s. 
 4, infra, p. 222. 
 
 (d) Pemberton v. Oakes, 4 Russ. 154; see 3 Q. B. 721, 722. 
 
 (e) Cbapman v. Beckinton, 3 Q. B. 703 ; see 6 id. 526. A counter promise by 
 the customer, even when made after fiat and before certificate in bankruptcy, that 
 if the surety be called upon to pay the sum guaranteed, the customer, when able, 
 will repay it, may be supported. See Earle v. Oliver, 2 Exch. 71. 
 
 (/) 19 & 20 Vict. c. 97, s. 4.
 
 17- GBANT ON THE LAW OF BANKING. 
 
 aliunde, this to have been the intention; but it is manifestly the safe 
 r*99Q~i aUL ^ most *convenient oourse, in all cases, to insert an express 
 -I stipulation fur the continuance of the instrument, notwithstand- 
 ing any change, &c. 
 
 The following examples of decisions on this subject will be useful. 
 
 One Teed, gave to a banking-house a guarantee, ou behalf of a firm, 
 expressed as follows : — 
 
 « I hereby agree to guarantee to you the repayment of any bills you 
 may honour, to be drawn upon your house by the firm of Canuthers & 
 Co., of Manchester, distillers, and any advances you may make for the 
 said firm of Canuthers & Co. from time to time, not exceeding the sum 
 
 • v J'00/. This guarantee to extend to any current amount or ultimate 
 balance not exceeding the sum of 8,000/. and interest, and to continue 
 in force for one year from the date hereof. 
 
 " Thomas Teed." 
 
 This was dated, London, June 29, 1839. 
 
 < me of the firm of Carnitines & Co., having retired from business, a 
 second guarantee was given, thus expressed : — 
 
 » Notwithstanding Mr. John Carruthers has retired from the part- 
 nership of Carruthers & Co., of Manchester, distillers, and which business 
 is QOW carried on by Mr. Frederick F. Carruthers, under the said firm, 
 <m his own account, I do hereby agree, in consideration of your giving 
 credit t<> and honouring the drafts of the said linn of Carruthers & Co., 
 to continue the guarantee given by me to your house for the sum of 
 s, in mi/, fur and on behalf of the said P. F. Carruthers alone, upon the 
 same terms, condition and period as expressed in the guarantee given by 
 your house, when the said John Carruthers was a partner in the 
 said business. This guarantee for the said F. F. Carruthers to extend to 
 any current amount or ultimate balance not exceeding, as to my liability, 
 the sum of 8,000/. and interest, and only to continue in force for the 
 • ■ period as mentioned in my former guarantee. 
 
 « Thomas Teed." 
 
 This Was dated, London, 27th .January, 1840. 
 
 During the year, to which the latter guarantee was limited, various 
 payments were made by the bankers to the firm, and four bills of 
 exchange, of differenl dates, amounting, together, to the sum of l,975Z. 
 were drawn by ' !arruthers& Co., payable at the banking-house, and accepted 
 by the hankers. < )n March 1 1. 1840, after the acceptance of the four 
 bills, and before any of them were due. one of the partners in the bank- 
 r ooA-i ing-house died, there being, at thai time, a balance ""(exclusive 
 I — \ of the tour bills) of 124?. 10*. 7d. due from the bank to Carru- 
 thers & < !o. on their account. 
 
 After the death of tfie partner in the hank, the same course of business 
 was continued between the bank and the firm ; but on June 15, 1840, 
 Teed gave the hank notice that he withdrew his guarantee. On Julj 
 l. r >, 1840, the firm of Carruthers .V Co. became bankrupt.
 
 GUARANTEES, BONDS, ETC., GIVEN TO BANKERS. 179 
 
 The following points were decided on these facts : — 
 
 1. That the guarantee ceased, upon the death of the partuer in the 
 bank, within the period for which the guarantee extended. 
 
 2. That bills, accepted by the bank, before the death of the partner, 
 were within the guarantee, though they were not payable until after 
 that event. 
 
 3. That the amount guaranteed could not be increased by any act of 
 the remaining partners, after the death, and the customer; although 
 such amount might be diminished by such act. 
 
 4. That, in the construction of the particular terms used in this 
 guarantee, it could not be held that the amount guaranteed, in respect of 
 the bills honoured by the bank, was to be reduced, by the balance due 
 to the customer from the bank, when the guarantee ceased, such balance 
 having been afterwards paid, in the course of business, between the 
 bank, after the death of the partner, and the customer. fy) 
 
 Where three persons carried on business, as partners in banking, the 
 partnership being to expire 19th February, 1807, according to the articles, 
 dated 5th January, 1792, which empowered one of the firm, in case of 
 his death during the term, to becpueath his share, in the partnership, in 
 favour of his wife and children. That partner died, 26th March, 1802, 
 having becpieathed his share, &c, to executors, in trust, &c, accordingly. 
 The business continued to be carried on under the same firm as before ; 
 and the executors interfered in the management, and shared in the 
 profits. Before *the death, a customer and two other persons, r;j . 99 --. 
 of the one part, and the members of the banking partnership, L -1 
 of the other part, executed an indenture, dated 4th January, 1802, by 
 which the parties of the first part did jointly and severally covenant to 
 pay to the bankers, the survivors, or survivor, of them, &c, upon demand, 
 all sums of money not exceeding 20,000?. in the whole, which then 
 were, or should at any time thereafter, before and until 19th February, 
 1807, become due and owing from the customer to the parties of the 
 second part, or to the survivors, or survivor, of them, &c, either for 
 principal money then already lent and advanced, or thereafter, within 
 the time aforesaid, to be lent and advanced, or for interest then due or 
 to become due thereon, or for money then already paid or lent, or there- 
 after, within the time aforesaid, to be paid or lent, &c. 
 
 At the time of the death, the balance against the customer was upwards 
 of 14,000/.; after the death, the customer continued his dealings with 
 the bank, as before, and, within a few weeks after, paid in more than 
 14,000/., but within the same period, drew out a larger sum. These 
 subsequent dealings were entered in the same account current with the 
 preceding dealings, under the same heading, &c. 
 
 In February, 1806, the customer stopped payment, being indebted to 
 the bank in upwards of 19,000/. 
 
 Here it was held, that the banking partnership, which carried on 
 business after the death of one of the partners above mentioned, was a 
 new partnership; and, therefore, that the surety's covenant did not 
 
 (g) Holland v. Teed, 7 Hare, 50.
 
 180 GRANT ON THE LAW OF BANKING. 
 
 i xtend to cover sums advanced b}' such new partnership; and, that the 
 balance due to the bank by the customer, at the time of the death, must 
 osidered to have been discharge d, by the subsequent payments made 
 by him to the bank.f//) 
 
 r*99fii *Varianct in Agreement, — The general rule is, that any 
 L -I variance in the agreement, to -which the surety has subscribed, 
 which is made without the surety's knowledge or consent, which may 
 prejudice him, or which may amount to a substitution of a new agree- 
 ment for a former agreement, even though the original agreement may, 
 notwithstanding such variance, be substantially performed, will discharge 
 the Burety.(t) 
 
 Thus, a bond given to secure certain bankers, in London, against all 
 debts that might be incurred by a firm of bankers, in the country, their 
 correspondents, and executed by the two persons composing that firm, 
 and a third person, as their surety, whereby the three jointly and severally 
 hound themselves to repay, &c, such sums as should be advanced by the 
 London bankers, to meet bills, etc., drawn by the said two persons, " or 
 < Lther of them," was held not to extend to bills, kc, drawn, by one of 
 the two, after the death of the other.(Z-) 
 
 But, if a bond be given to bankers, to secure them against further 
 advances, so that these further sums, together with those already advanced, 
 should not exceed, 5,000?.; and, notwithstanding, the bankers advance 
 to a greater amount; that will not be construed to operate as vacating 
 the obligation; for the contract is not to be taken as a prohibition of all 
 subsequent advances, but only as a qualification of the surety's liability ;(/) 
 express and clear provisions ought to have been introduced to effect that 
 object :(/) and in an action (by the assignees of two of the firm of bankers, 
 to whom the bond was given,) on it, to say that, after the making of it, 
 the partnership, to whom it was given, was dissolved, and a new part- 
 nership entered into by the two and a third person, and the balance due 
 to the old firm was transferred to the new one, is a bad plea; and the 
 Burety is liable to the assignees.(l) 
 
 , .,.,--, * Continuing Guarantee. — If the guarantee, reciting, in the 
 L 'J condition, an agreement by the bankers to discount bills of ex- 
 change, and otherwise pay, lend and advance to the customer, if he 
 should have occasion, any sums of money not exceeding, at any one or 
 more time or times, 200/. in the whole, undertakes to pay to the said A., 
 B. and C. (the banker-,) " and all and every other person or persons who 
 
 (h) I' ■• Oakea, 4 Ruas. 154. Bee, in case of incoming partner, Brooke 
 
 v. Enderby, 2 Bro. x II. To: and when- tit*- security was given by a banking firm, 
 and oik- of the partners dies, Bank of Set In ml v. Christie, 6 Cla. & F. 214. 
 (/) Bonar v. Macdonald, :: II Lds. 226; set Btewarl \. M'Kean, L0 Exch.675: 
 in v. Chorlton, 'J Drew. 333, 339 j Woo I ixford Railway Company, 1 
 
 I 521. 
 
 (/.■) Simson v. Cooke, 1 Bing. 452. 
 
 Seller r. .lone-. 16 M. .v \V. Ill'; Parker v. Wise, 6 M. k Selw. 247, 250; 
 nea v. Clarke, 3 Q. B. 194. There nee,] not be, in a guarantee, a clause re-
 
 GUARANTEES, BONDS, ETC., GIVEN TO BANKERS. 181 
 
 shall or may become partner or partners with them in the said banking 
 business, or any or either of them, or other the firm of the said house for 
 the time being, &c, all and every such sum and sums of money, not ex- 
 ceeding the sum of 2001. as aforesaid, as the said A., B. and C., or any 
 or either of them, or any future partner or partners of the said firm, or 
 other the firm of the house for the time being, should advance or pay," 
 &c, this is a continuing guarantee to any future firm, and not merely 
 limited to the first occasion on which the advances reached 200/., but ex- 
 tended to future advances. (m) 
 
 In this respect — that is, in respect of the amount — the courts do not 
 lean towards the side of the guarantor; for, when the question is whether 
 the guarantee is qualified or continuing, and the construction, that it is 
 a continuing one, can be put upon the words, it will be.(ra) 
 
 There may be, however, a guarantee on which the surety or guarantor 
 shall only be liable to the given amount once j so that, if 200/. have been 
 advanced, and 200/. paid off, he is no longer liable for any thing, (o) 
 
 In a continuing limited guarantee, given to the National *Pro- r*2281 
 vincial Bank, there was a proviso, that, if the creditors received L *" "" J 
 a dividend, from any estate of the principal, (the customer,) it should not 
 be taken in discharge of the guarantee, but that the creditors should be 
 entitled to recover, on the guarantee, to the full extent of the limit, not- 
 withstanding. 
 
 On the bankruptcy of the principal, the creditors proved, and, before 
 receiving any dividend, obtained payment, from the guarantors, to the 
 extent of the limit. 
 
 The guarantors were considered not to be entitled to stand in the place 
 of the creditors, as to so much of the proof as was equal to their pay- 
 ment, the creditors not having yet, at the time of the application, been 
 paid in full.(p) 
 
 In a case where merchants procured accommodation from their bankers, 
 on entering, with sureties, into a covenant to pay the floating balance due 
 from time to time, up to a certain limited amount, subject to a proviso 
 that, in the event of the merchants' bankruptcy, and in the event of the 
 amount due, at that time, exceeding the fixed limit, any dividends re- 
 ceived, under the bankruptcy, should be applied exclusively in payment 
 of the excess, without the sureties being entitled to any part of the divi- 
 dends, until the whole of such excess was paid. Some of the sureties 
 obtain a counter security, in respect of their liability, &c, without notice 
 to the bankers. The merchants fail, being indebted to the bankers be- 
 yond the fixed limit ; the latter receive dividends on the whole debt, 
 and recover the amount secured, from the sureties : the bankers were 
 held to be entitled to retain the whole sum so received, although two of 
 the sureties prove, under their counter security, and, in effect, are paid 
 in full out of the bankrupts' estate. (j) 
 
 (m) Batson v. Spearman, 9 A. & E. 298. 
 
 (n) See Mayer v. Isaac, 6 M. & W. 612 ; see also 12 East, 228, and the judgments 
 in Hitchcock v. Hunifrey, 6 Sc. N. R. 540. 
 
 (o) Kirby v Duke of Marlborough, 2 M. & Selw. 22. 
 
 (p) Ex parte Miles, De G. Bank. R. 623. ...... * *• , 
 
 \q) Ex parte Hope, 3 De G. M. & G. 720. In general, in the absence of stipula-
 
 182 OBANT ON THE LAW OF BANKING. 
 
 r*99Q~\ '^ "- 1 ' '"' — Bankers take ; i bond, entered into jointly and seve- 
 L ""' J rally by four partners, and two Bureties for them, payable imme- 
 diately, to Beenre the payment of all such nuns of money as, upon the 
 balance of any account current, between the partners and the hank, shall, 
 from time to time, he due by the partners, to the extent of 1,0007. The 
 bankers signed separate judgments (having also taken a warrant to eon- 
 judgment) against the obligors: hut it was, nevertheless, held that, 
 on the bankruptcy of the partners, they were not bound to prove, on the 
 separate judgments, against each of the bankrupts, hut that they might 
 prove against the joint estate, for any balance that might be due within 
 l,0oii/.' 
 
 The bond here was not taken, it will be observed, for any existing 
 simple contract debt; if it had, there would have been a merger in the 
 bond : and then the bond debt would have merged in the judgment. 
 
 So, where the original contract is a joint one, and the creditors take a 
 joint and several bond from the debtors, and then enter a joint judg- 
 ment on the bond, there is a merger of the bond ; and there could be no 
 right to prove against the separate estate. 
 
 But the difficulty, in respect of the above firstly mentioned bond, is, 
 that it is not the joint obligation of the bankrupts alone, but of them and 
 two other persons, who must be presumed to be alive ; and the rule is 
 clearly established, that you cannot prove against the bankrupts, if the 
 surety be alive and solvent. 
 
 It is to he observed, the bank was the creditor, but, in fact, the bond 
 was given to two persons, as trustees for them, it was, therefore, a col- 
 lateral security, and did not meige the joint simple contract; it is a bond 
 from the six to the two, conditioned to be void, upon payment, by the 
 four to the two.(V) 
 
 A joint-stock banking co-partnership took a joint and several bond, 
 , .,., (| -. given to two trustees for them, from Beveral *pereons, viz., the 
 L J four members of a trading firm, and two other persons, purport- 
 ing to secure, to the bank, all and every such sum of money as, upon 
 the balance of any account current, which then was, or at any time or 
 times thereafter should be open between the trading firm and the bank, 
 at any of the establishments of the bank, Bhould from time to time be 
 due, and owing from, or by the trading firm, their executors, &o., 
 ther with all discount, postage, and commission, according to the 
 and course of business; but, nevertheless, to the extent only of 
 1,000/., principal money, exclusive of interest and oosts, in case such 
 
 balance should ex< d that Bum. The bank was to be at liberty to recover 
 
 that sum, though accounts had been settled between the parties, and 
 balances had been paid before the hank proceeded on the security; and 
 there was ■ warrant of attorney, for entering up judgment, on the bond, 
 in order the better to secure the advances which Bhould be made. The 
 bank entered up bu several judgments against the obligors of the bond, 
 
 tion to the contrary, a surety paying ti ntitled to all the securities held 
 
 by the creditor as against die debtor] Bee I De Q. Bank. It. 623 . 
 
 and cases cited. 
 
 inks, 2 Jo. & L. 212.
 
 GUARANTEES, BONDS, ETC., GIVEN TO BANKERS. 183 
 
 and the traders having became bankrupt, the question was, whether for 
 the balance of the account, as it stood, at the date of the bankruptcy, 
 the bank was at liberty to prove against the joint estate of the traders, as 
 for a simple contract debt; and it was decided that the bank might do 
 so, the original liability not being merged, or barred by the bond, or 
 judgments, for the bond was not conditioned, for any payment, to be 
 made by the six persons to the two persons to whom the security is given, 
 but was a bond, from the six to the two, conditioned to be void, upon 
 payment, by the four to the bank, and was therefore only further and 
 collateral security. (s) 
 
 Time given to Principal. — It may be laid down, apparently without 
 qualification, that where a joint and several bond is taken, by way of 
 security, that time, or indulgence, *has been given by parol to p 2 31"l 
 the principal debtor, is no answer, at law, on the part of an ob- L 
 ligor, who has executed the bond as surety ;(t) the remedy, if any, is to 
 be sought in equity, (-u) 
 
 Where, however, there has been an absolute release, by the obligee, to 
 one of two joint and several obligors, both are discharged; also, if the 
 obligee releases to one obligor, and the other, in consideration of the 
 forbearance, undertakes to pay the debt, the debt, nevertheless, is abso- 
 lutely discharged, (x) 
 
 Such a transaction as the following may be mentioned, as one that 
 affords a warning to bankers, taking securities, for advances. 
 
 If A. is persuaded to execute covenants, for repayment of a loan, to a 
 borrower from the bank, in the expectation and on the faith that B. will 
 also execute it and become a co-surety, jointly and severally responsible 
 with himself and the borrower, and B. never, in fact, executes the deed, 
 but the money is, in fact, advanced, and no notice of B.'s failure to 
 execute is given to A., until the principal debtor has made default and 
 become insolvent, A., in equity, is discharged from all liability, and will 
 have the bond given up to him to be cancelled. (y) 
 
 In fact, a principal point with regard to guarantees, taken by bankers, 
 which it behoves them to attend to, is that "giving time," as it is called, 
 to the principal debtor, without assent of the surety, discharges the 
 surety ; that is, if the principal is indulged, with more time, in which 
 to discharge his debt, than is according to the known course of dealing 
 between the parties, or the legal obligation of the debtor in the circum- 
 stances, then, provided that indulgence *does not arise out^ of r* 2 32"l 
 mere inactivity on the creditor's part, but arises out of a binding L " 
 contract, which prevents the creditor from being in a condition to sue, 
 for- a given period; that lets off, or discharges the surety, and relieves 
 
 ($) In re Clarkes, 2 Jo. & L. 212 ; compare Ex parte Christie, 2 Deac. & C. 155 ; 
 Holmes v. Bell, 3 Scott, N. R. 479. 
 
 (t) Davey v Prendergrass, 5 B. & A. 187 ; Bulteel v. Jarrold, 8 Price, 467 ; Trent 
 Navigation Company v. Harley, 10 East, 34. 
 
 (u) Parker v. Watson, 8 Exch. 410. 
 
 (x) Parker v. Lawrence, Hob. 70; Co. Litt. 232, n. (26). 
 
 {y) Evans v. Brembridge, 25 L. J., Ch. 102, overruling Ex parte Gifford, 6 Yes. 
 805.
 
 L84 GRANT OX THE LAW OF BANKING. 
 
 him from all liability to the hanker, to whom he has guaranteed his 
 principal, (c) 
 
 W. Jones gives the following guarantee, to a hank, on behalf of 
 Henry Bowers : — 
 
 Henry Bower's Mill Account. 
 
 "Please to open an account with, and honour the cheques of, Mr. H. 
 Bowers on 'mill account,' for whom I will be responsible. 
 
 « Carmarthen,) January 4, 1825. W. Jones." 
 
 W. Jones was an attorney, and the professional adviser of the bankers, 
 and, at the time, had a banking account with them. The bankers, upon 
 receiving the above document, opened an account with Bowers, and made 
 various advances to him up to February, 1827, when they ceased to 
 advance to him. It was the course of business, of the banking house, 
 occasionally to take the acceptances of their customers, for the balance 
 appearing to be due, on the face of their accounts, which were termed 
 covers ; and the same was also shown to be the practice of a neighbour- 
 ing bank. Jones was proved to have sometimes been consulted by the 
 bankers, as their professional adviser, with respect to these acceptances : 
 but it was not proved that he had personally any knowledge of the prac- 
 tice to require these bills, as covers, for overdrawn accounts. 
 
 In February, 1828, without Jones's knowledge, or consent, the bankers 
 took Bowers's acceptance, at three months, for 846/. 14s. Id., the 
 amount of their balance against him ; and this bill was carried to the 
 credit of his account, but was dishonoured, at maturity. 
 r*ooQ-i I' 1 1832, the bankers became bankrupt, and in an action, *by 
 L J their assignees, against Jones, commenced in 1*83, it was 
 adjudged, that the bankers, by taking the above acceptance, had given 
 time to Bowers, the principal, and thereby had discharged Jones, the 
 guarantor or surety. (a) 
 
 It is not necessary, for the bankers, who are taking the guarantee, to 
 make any statements how the account has been kept ; whether the 
 customer has been in the habit of overdrawing; whether he was punctual 
 in his dealings ; whether he performed his promises in an honourable 
 manner; unless questions be particularly put, by tlu surety, to gain 
 info nihil,'*, ,i on then points, on all which, it is material for him, not to 
 be in the dark; if questions are put, the bankers must, of course, 
 answer correctly; otherwise, it would probably be found, that the 
 guarantee would be ineffectual.(a) 
 
 A guarantee was given by a person to the Craven Bank, to secure all 
 
 (z) Samuel] v. Howorth, 2 Merir. '-'78: confirmed. Creighton v. Rankin, 7 Cla. 
 & P. 346 Heath v. Key, l JT. 4J. 434; Bee Blake v. Wnite, l Y. & Col. Ex. Bq. 
 423; BadnaU v. Samuel, 3 Price, 534, 535. 
 
 (a) Howell v. Jon< 9,1 0. M. Ac R. 07 : see Small v. Carrie, 2 Drew. 102, 114. To 
 Impeach a guarantee, on the ground of concealmenl of material facts, such con- 
 ii nt must lif Bhown to be fraudulent, North British Insurance Company v. 
 Lloyd. LOEzch. iailton \. Matthews, LO Ola. & F. 934 ; Hamilton v. 
 
 Watson, 12 Ola. & P. 100; Smith v. Hank of Scotland, 1 Dow. 272; ami per Al- 
 i. B., 10 Exch. 529; Owen r. Human. :; Mac. & G. 378; Price v. Barker, 4 E. 
 ft B. 760.
 
 GUARANTEES, BONDS, ETC., GIVEN TO BANKERS. 1S5 
 
 sums then due, or which might hecome due, from a customer, to the 
 extent of 1,000/., providing, that if the guarantor should give notice, in 
 writing, to the bank, determining the guarantee, he should be liable 
 only to the extent aforesaid, for the amount due, at the time of giving 
 notice, but not for any money advanced, or liability incurred, by the 
 bank, subsequent to such notice. 
 
 The date of this instrument was 14th February, 1850. 
 
 The customer, subsequently, when the balance against him reached 
 1,000/., and on a further advance, by the bank, of 300/., executed a 
 warrant of attorney to confess judgment for 2,600/., subject to a defea- 
 sance, on payment of the floating balance of his account, not exceeding 
 1,300/., and with a proviso that the guarantee, given as above mentioned, 
 should not, in any manner, be prejudiced, or affected, by the warrant 
 of attorney. 
 
 *The date of this instrument was 19th March, 1851, and con- r*9g_n 
 temporaneously an agreement was signed, by the customer, the L J 
 guarantor and the bankers, whereby it was agreed that the memorandum 
 of guarantee of 14th February, 1850, should not be, in any manner, 
 prejudiced, or affected, by the execution of the warrant of attorney, or 
 by any judgment to be entered up, and execution issued thereon, and 
 that all moneys recovered, under the warrant of attorney, should be first 
 applied in reduction of the balance of the banking account, of the 
 customer, remaining due at the time of levying the execution, before 
 the memorandum of 14th February, 1850, should be capable of being 
 performed, or satisfied, by the guarantors, either wholly, or in part, to 
 the end and intent that the guarantee should remain effectual to the 
 extent of 1,000/., after judgment should have been entered up on the 
 warrant of attorney, and execution levied in pursuance thereof, and the 
 proceeds of such execution placed to the credit of the customer's account. 
 And it was further agreed, " that for the privilege, or protection, of the 
 guarantor, in addition to the proviso contained in the memorandum of 
 14th February, 1850, for discharging him from continuing his responsi- 
 bility, on his giving notice, to the bank, or his desire to be so discharged, 
 the bank should, on being required to do so, in writing, by the guarantor, 
 although such requisition should, in nowise, be necessary as between 
 the bank and the customer, enter up judgment on the warrant of attorney, 
 and levy execution against the goods and chattels of the customer, as 
 soon as practicable, and apply the proceeds of such execution, in reduc- 
 tion of the balance of the customer's account. 
 
 The warrant of attorney was not filed pursuant to the stat. 12 & 13 
 Vict. c. 106, s. 136. 
 
 On 24th March, 1851, judgment was entered up on it. 
 
 On 25th August, 1851, the guarantor, by notice, in writing, required 
 the bank to levy execution ; this was done, and goods sold under it, to 
 the amount of the debt, due from *the customer to the bank. r* 2 35~| 
 Shortly after the customer became bankrupt, and the assignees L 
 recovered back, from the bank, the amount levied under the execution, 
 by reason of the omission to file the warrant of attorney, or a copy of it, 
 according to the provisions of the above statute. The bank then proved
 
 18G GRANT OX THE LAW OF BANKING. 
 
 under the bankruptcy, and having received two dividends, of 7«. 6<f. and 
 Bd. in the pound respectively, on their debt, they brought an action, 
 against the guarantor, on the guarantee; but it was held, by the lords 
 justices in equity, that the agreement to issue execution was valid and 
 binding, but that, hy tit,- omission to file the warrant of attorney, tire 
 guarantor was discharged; the guarantor, however, having pleaded to 
 the action, and then filed a bill, to Staj proceedings in that action, and 
 so put the bank to unnecessary costs, could only have a stay of pro- 
 ceedings, on the terms, of paying the costs at law, subsequent to the 
 declaration. (l\ 
 
 A customer, having overdrawn his account with his bankers, on their 
 requiring security from him, deposits with them certain title deeds, and 
 prevails ou A. to join him, as surety, in a promissory note for 400/., 
 payable in twelve months, to the bankers. Soon after that note became 
 due, the customer and A. gave the bankers another jo hit note at twelve 
 months, dated 14th April, 1813, in exchange for the note, which had 
 become due, and the customer still kept a running account with the 
 bank, and, in the course of that twelve montbs, paid in very large sums. 
 In January, 1815, the customer entered into a composition deed with 
 his creditors, whereby bis debts were compounded for ten shillings in 
 the pound. The last note was stated to have been given, with an express 
 understanding, that the surety would not be answerable for a longer 
 period than the twelve months. Between the giving of the note and the 
 date of the composition deed, the surety never had any application, made 
 r* 9 3Gl to * n * m > respecting the note; but, in 1816, a person, to whom 
 L "" -I the promissory note had been indorsed, for the first time, 
 demanded payment of the surety, who took no notice of the application. 
 Several months afterwards, the note having been returned to the bankers, 
 tiny sued the customer: and the court held, that he was wt discharged) 
 for that the onus lay on him to take care that the note was satisfied ; that 
 his situation had not been changed to his prejudice; that the composi- 
 tion was for his advantage, to the extent of ten shillings in the pound, 
 as much as if the bankers had received so much from him in part pay- 
 ment, and that the time that had elapsed, and the want of earlier notice, 
 made no difference. (c) 
 
 A promissory note is made jointly by A. and B., to secure, to a bank, 
 the payment of advances made, by them to A., to the extent of 250J. 
 The note was made payable at one mouth. After it became due, and 
 without the privity of l>., it was agreed, between A., and the bankers, 
 that A. should execute a warrant of attorney to a third person, as trustee 
 for the bank, to secure the amount of the note, and of a further advance, 
 made by the bank, to A. 
 
 In such case, the note does not merge in the warrant of attorney. (J) 
 
 Also, the acceptance, by the hank, of the fresh security, without any 
 
 Watson v. Mlcock, 4 Do G-. M. k ('.. 242 : Bee Acraman v. Herniman, 20 L. 
 .1.. Q. I'.. •':■"..".: gee also Parker \. Watson, 8 Bxch. 104. 
 
 P( rfe< i \. Musgrave, <; Price, ill : in this case, Reee v. Barrington was cited 
 for defendant ; see inf. 243. 
 ('/) 15.11 v. Banks, 3 If. & Gra. 2a8.
 
 GUARANTEES, BONDS, ETC., GIVEN TO BANKERS. 187 
 
 binding engagement by tlieni to give time to A., does not discharge the 
 surety B.(r?) 
 
 Here, it will be observed, the warrant of attorney was not between the 
 same parties as the original liability. 
 
 On April 25, 1803, a customer, together with another person, executes 
 a joint and several bond, to his bankers, to secure to them the repayment 
 of the sum of 1,000/., (advanced by them to the customer,) with interest, 
 on the 25th April, 1804. 
 
 *At the date of the bond, the customer's account with the [-#997-1 
 bank, exclusive of the above sum, advanced, showed a balance L J 
 in his favour ; he also paid money, into the banking house, after that 
 date, and before 25th April, 1804. At the end of 1804, the customer's 
 account, independent of the 1,000?., (which was not repaid,) was over- 
 drawn. In January, 1807, a settlement of accounts took place, between 
 the customer and the bankers, when 2,259?. was found to be due from 
 him to them, the whole of the 1,000/. secured upon the bond, being 
 treated, on occasion of this settlement, as a debt remaining due from 
 him. 
 
 The bankers then agreed to give him time for payment, on his giving 
 security, for the whole balance ; and on January 23, 1807, he executed 
 a warrant of attorney to the bankers, to confess judgment against him, 
 for the payment of the 2,259?. by instalments, several of which he paid, 
 but became bankrupt before the whole was discharged, a sum of 1,100?. 
 remaining still due. 
 
 It was proved, that the surety was privy to the above-mentioned settle- 
 ment of accounts, and to the facts respecting the warrant of attorney. 
 
 On these facts, it was considered, the surety was not discharged, by 
 the time given to the customer, and that the bond was no£ discharged, 
 by the payments made by the customer, before it became due, &c, for 
 these were to be considered as made on, and applicable to, the banking 
 account, and the bankers, being entitled to hold the bond and warrant 
 of attorney, as distinct securities. (e) 
 
 But where bankers took a bond, from a customer and his surety, by 
 which it was stipulated that the surety was to be liable, only to the extent 
 of 6,000?., if upon the account that amount should be due, and subse- 
 quently, the balance of the customer's account appearing to be 9,500?. 
 against him, the customer gave the banker a mortgage for 4,000?., and 
 it *was agreed, between them, that the residue should be paid r^si 
 by instalments ; and the customer, also, gave a warrant of attorney L J 
 to confess judgment for the residue, expressly without prejudice to any 
 other securities held by the hankers, for the said sum, or any part of it: 
 there it was said, that it may, in many cases, be a very rational provision, 
 that the principal shall have time, provided he can have it without pre- 
 judice to the remedy against the surety, which, though worth nothing 
 at present, may, in a years's time, be very valuable, and the creditor 
 
 (d) Bell v. Banks, 3 M. & Gra. 258. 
 
 (e) Tyson v. Cox, Turn. & R. 395 ; and see S. C, as to counter indemnity to 
 surety ; and see Boultbee v. Stubbs, 18 Ves. 20.
 
 188 GRANT ON Till: LAW OF BANKING. 
 
 nrny. very reasonably, ruean to secure the benefit of that contingency; 
 but the bankers were, nevertheless, restrained from suing the Buiety.ff) 
 
 Where parties are acting by virtue of an act of parliament, to which 
 every one must be considered as subscribing, and tbere are provisions, 
 opposed to the supposition that those to whom the guarantee is given 
 have the power of delaying to put in suit the instrument, against the 
 surety, upon a breach occurring, and they do, nevertheless, lie by and 
 indulge the principal, though not by means of a binding contract, still 
 the surety will be absolved. (//) 
 
 How to take Guarantee. — It is indispensable, in order that bankers 
 should obtain the benefit of the securities tiny take, for them to act, not 
 merely with perfect openness and candour, but with vigilance and cir- 
 cumspection. Many suppressions and unintentional misrepresentations 
 carry with them the effect of fraud, both at law and equity, and, in con- 
 sequence, will invalidate transactions otherwise unquestionable; much 
 more has wilful concealment of facts, obviously material for the surety 
 to know, previously to his entering into the contract, the effect of fraud, 
 that is to say, it will vitiate the whole transaction, as regards the bankers' 
 p. 9 oqi *power of recovery from the surety. The following case supplies 
 L -I an instance of the former proposition. 
 
 Certain bankers advanced 2,000^. to A., upon the security of an in- 
 denture of mortgage to them, of certain property of A., and also of a 
 joint and several promissory note of the same date as the deed, in which 
 a third party joined with A. as surety. At the time of this advance, A. 
 who had long been a customer, owed them 800J., and it was arranged, 
 between him and the bankers, that this sum should be deducted from 
 the 2,600Z., but neither by the recital in the mortgage deed, nor other- 
 wise, was the surety apprised that such was the case, and that recital, 
 moreover, expressly, but falsely, stated, that the entire interest in a 
 1,500A policy of insurance, already deposited with the bankers, would 
 be available, as collateral security, for the 2, GOO/., inasmuch as the 800/. 
 had been repaid to the bankers. The mortgage deed was prepared by 
 the bankers' solicitor, and read over in his office, to the surety and A., 
 previously to its execution, and to the surety's signature, of the promis- 
 sory note. The circumstances were held to constitute such a fraud in 
 law, as released the surety,(//) although it was not suggested, at the bar, 
 that any intentional fraud was imputable to the bankers personally. 
 
 The following is a case in which the neglect of the bankers operated 
 to release the surety. 
 
 Richard Cox was a banker, in co-partnership with Messrs. Morrell, 
 under the firm of Cox and Morrell. He was also engaged in collieries, 
 with one DavieS, under the linn of Cox and Davies. 
 
 Cox and Morrell were in advance to Cox and I>avics. 
 
 Richard Cox, having applied to hi- partners for a further advance, it 
 
 (/) Bonltbee v. Btubbs, 1 - Ves. 20 : Bee 1 E. & B. 773, and C Dow, 238. See 
 
 • terms of n the action, Dawson \. L-awes, l Cay, 299. 
 
 (g) Bank of [reland v. Beresford, 8 D 
 
 1 uij.ton, 5 Bing. X. 0. l i-' | see .: B. & 0. 606 ; 3 T. R. 001.
 
 GUARANTEES, BONDS, ETC., GIVEN TO BANKERS. 189 
 
 was agreed they should advance a further sum, upon his brother John 
 Cox, becoming security for the repayment of 3,000?. 
 
 *John agreed, as surety for Richard, to execute a joint and [-#94^-1 
 several bond to James and John Morrell, for the sum of 3,000?., L -J 
 upon having a counter bond, for the like sum, from Cox and Davies, to 
 indemnify him. 
 
 A joint and several bond was executed by John, but not by Richard ; 
 the counter bond was given by Cox and Bavies, and further advances 
 were made by the bank. 
 
 Sometime after this, Richard ceased to be a partner in the bank. 
 The bankers were considered to have released the surety, by neglect- 
 ing to obtain the bond, from the principal debtor, Richard Cox. 
 
 John Cox also joined with Richard in signing promissory notes to Cox 
 and Morrell, each of which was expressed to be for value received, by a 
 draft, at the three months's date, to enable Richard to meet some bills. 
 
 John signs, as surety merely, and becomes liable upon the words of 
 the notes, on a contract, whereby Cox and Morrell were to advance the 
 money, upon three months' credit. But the advances of money were 
 actually made, not by drafts at three months, but directly, in cash, within 
 that time, and in such a way as to give the bankers, upon each advance, 
 an immediate demand against the principal debtor. Thus, the right of 
 the creditor was rendered materially diiferent, as against the principal, 
 from what it was. intended to be, by the surety. 
 
 Therefore, in this case also, they released the surety ; and it makes 
 no difference, that they voluntarily forbear, to demand payment, during 
 the three months. (?) 
 
 Another instance of a release of surety, by the bankers 7 conduct, is the 
 following. 
 
 A surety joined, with a customer, in a joint and several promissory 
 note for 500/., payable to the bankers, on demand, with interest. This 
 note was made about 1st January, 1838, *and handed to the poii-i 
 bankers, but was not, at that time, entered in their books ; and »- J 
 it was not until 9th December, 1841, that the 500?. was placed to the 
 credit of the customer's account; on that day it was so placed, but as of 
 the date, 12th November, 1841, at which date, the balance appearing 
 against the customer was about 96?. 
 
 In 1843, the customer became insolvent, being indebted to the bank, 
 in a sum exceeding 500?. 
 
 It appeared in evidence, that the contract was, that the promissory 
 note should be deposited, as a security, for the amount due, from the 
 customer, on the open account; it was kept among the securities of the 
 bank, in the first instance, but subsequently, as above stated, was entered 
 in the books of the bank, and in the customer's pass book. Now, these 
 latter proceedings evidently altered the position of the surety ; they were 
 not according to the contract, but an entire violation of it ; instead of 
 
 (i) Bonser v. Cox, 4 Beav. 379; S. C, 6 Bear. 110; see In re Plummer. 1 Phill. 
 56 ; Ex parte Bowden, 1 Deac. & Chit. 135.
 
 LOO GKAXT OH TIIE LAW OF BANKING. 
 
 being liable for a floating balance merely, the rarely was made at once 
 liable for the whole 5U0/. This was a release of the surety. (/,•) 
 
 The following is a case, in which the Bteps, taken by the bank, were 
 considered notto have released the surety. 
 
 A. and 1>. enter into a joint and several bond to guarantee a baukiug 
 company, which bond, reciting that B. had requested the company to 
 aeeept and discount notes, drafts and bills of exchange for him, and also 
 to bud and advance to him such sums of money as he might require to 
 carry on his business, and also to keep a cash and running account with 
 him, iVc., declared the condition to be, that if either A. or B. should 
 pay, to the company such sums as should become due, on the above 
 respects, the bond was to be void. 
 
 Sometime after the execution of the bond, the company, by deed, " re- 
 mised, released and for ever discharged the customer, B., of and from all 
 pKMo-i manner of action, causes of action, *suits, debts, dues, sum and 
 L ~ ~J and sums of money, claims and demands whatsoever, at law and 
 in equity,'' with proviso " that nothing in the deed contained should 
 prevent the company from suing or prosecuting any person who is, jointly 
 or severally, bound with B. in any bond," &c, and stating it to be under- 
 stood and agreed that the deed should not ©perate or be pleaded in bar, 
 or as a release. 
 
 This deed was executed, without the knowledge or consent of A., the 
 surety. 
 
 .Nevertheless, the deed was held not to operate to discharge A.; to 
 operate not as a release, but merely as a covenant not to sue B., the cus- 
 tomer; and that A. was liable, in regard to breaches, accruing before 
 the execution of the deed.(/) 
 
 Again, an arrangement with the customer, by which the bankers 
 intend to secure themselves, may, if unknown, or withheld from the 
 knowledge of the guarantor, frequently defeat the object of the guarantee 
 altogether. Thus, if a banking company agree, upon receiving the guar- 
 antee of a particular person, they will advance a certain sum, for the 
 purpose of securing, to the creditors of a trader, a composition of ten 
 shillings in the pound, and of enabling the trader to carry on his busi- 
 ness, and at the same time, being themselves creditors of the trader, 
 enter into a Becret arrangement with him and others, purporting to secure 
 to themselves repayment of the difference between the composition and 
 the full amount of his debt to them, that is a fraud, upon the guarantor 
 and upon the creditors, who execute the composition deed releasing the 
 trailer on the faith of the ostensible agreement, and the guarantee will 
 be se< aside in equity. 
 
 If, in such case, there be several guarantors, and on the construction 
 r*oi^i of the term- of the memorandum of guarantee, there is no right 
 L J of contribution among them, any one of them *may sustain a 
 
 (A;) Archer v. Hudson, T Beav. 551, 564 : affirmed Ld. Cbanc. 15 L.J. (N. S.) 
 Ch. 211; see Bonsi r r. Cox, 6 Beav. 110. 
 
 Price v. Barker, l K. .v I!. 760, where a great number of cases are reviewed. 
 to Burety recovering from principal, Kearsley v. <.'<>le. 16 m. & \\. 128; ;m j 
 see 4 II. Lds. 1011.
 
 GUARANTEES, BONDS, ETC., GIVEN TO BANKERS. 191 
 
 bill in equity, to set aside the guarantee for fraud, without joining the 
 concurrent guarantors, (m) 
 
 And, although there might be no fraudulent concealment of the 
 arrangement between the bank and the customer, yet, on grounds of 
 public policy, the banker would be prevented from retaining his secu- 
 rity, in addition to the amount of the composition, upon the customer's 
 original debt to him.(nj 
 
 Bankers, in taking guarantees, ought to be careful to observe the prin- 
 ciple which has been laid down by the House of Lords, which is this — 
 although a creditor may not, in every case, be bound to inquire into 
 the circumstances under which a third person becomes surety to him, 
 he is so, when the dealings, between the parties, are such as to lead to 
 suspicion of fraud. (o) 
 
 It does not, however, follow from anything said above, that in no 
 circumstances can a banker give time to a principal, in case of gua- 
 rantee, from a third party ; on the contrary, it is a general rule that a 
 creditor may give time to a principal debtor, without prejudicing his 
 right against the surety, provided he expressly reserves such right; 
 circumstances, however, may prevent that rule from having effect,(j?) 
 and hence it is always perilous, though, perhaps, not unusual, for 
 bankers to indulge a customer, in such circumstances, with a little 
 delay; it ought never to be done, without first ascertaining, that the 
 circumstances are such, as to make it a safe course to adopt, without 
 endangering their claims upon the surety. 
 
 Compositions, &c. with Creditors. — Compositions with creditors fre- 
 quently give occasion to consider, whether a bank, by becoming a party 
 to the deed of composition, may *not release a guarantor of r^j^-i 
 advances, made by them, to the debtor. The following case is L -I 
 an illustration of this : — 
 
 A. executes a deed to a joint stock banking copartnership, by which 
 he covenants to guarantee the bank from all loss or damage, &c. that 
 might arise, &c. to them, on the account of a firm of B. & Co., with them. 
 
 When the bank sues A. on this covenant, he pleads that one H., 
 then being a member, partner and shareholder in the said banking 
 copartnership, and being also duly authorized by the banking copartner- 
 ship, had, after the debt had become due to them, from B. & Co., for 
 himself and for the said copartnership, executed, &c. the composition 
 deed, acquitting the said B. & Co. from all actions, claims and demands 
 which he, H., and the said banking copartnership then had, or might 
 have, by reason of the debt then due to the said banking copartnership, 
 and that the said deed was made with the privity and consent of the 
 said defendant A., and therefore he was discharged of all liability on 
 the guarantee ; but it appeared that H. executed the deed in his own 
 name only, and that, at the time of his execution of it, there was a 
 
 (m) Pendlebury v. Walker, 4 Y. & Coll. Ex. Eq. 424. 
 
 (n) Cullingworth v. Lloyd, 2 Beav. 385 ; see Rees v. Berrington, 2 Ves. jun. 543 ; 
 Lee v. Lockhart, 3 My. & C. 316. 
 
 (o) Owen v. Homan, 4 H. Lds. 997, 1034. 
 (p) Owen v. Homan, 4 H. Lds. 997. 
 
 February, 1857. — 14
 
 192 1 1 B A N T ON THE LAW OF B A X K I X G. 
 
 separate debt due from B. to him, which accounted for his execution of 
 it, and that the banking company, never having themselves executed, 01 
 authorized any one to execute for them, tin- deed of composition and 
 release, had not acquitted the principal, B. & Co., of the debt, and, 
 consequently, had retained their rights against the guarantor, and were 
 entitled to recover upon his covenant. (o) 
 
 Now, here, if H. had been a member of an ordinary banking part- 
 nership, and there had been no separate debt, due from 13., to him, it 
 would have been different, because one member of a common law part- 
 nership may release a debt due to the partnership, M and by so doing 
 bar his copartners from recovering it, and in such case the guarantor, 
 .. *under the circumstances alleged, viz., that the release WM 
 L J made with his privity and assent, would have been absolved : 
 but. perhaps, if there had been a separate debt, the release by H., even 
 in ease of an ordinary partnership, would have imported a release of 
 that debt only.(.s) 
 
 In the ensuing case a guarantee was given, by deed, to the banking 
 company, under somewhat similar circumstances. 
 
 A. becomes surety, by a deed of guarantee, to the banking company, 
 called the "Commercial Bank of England," for the repayment, to the 
 amount of 5007., of advances made, and to be made, by the company, 
 to B. Sometime afterwards B. assigns, by deed, all his property, in 
 trust for the benefit of his creditors, the banking company being parties 
 to the deed, which contained a covenant, by the creditors, not to sue B., 
 lur any debts then owing by him to them, subject to a proviso, that any 
 creditor having any specific lien or security, for his demand, might 
 execute the deed without prejudice to the same security, &c. 
 
 A. was afterwards called upon, by the bank, to pay on his guarantee 
 the 500/. with interest, which he paid, and afterwards brought an action, 
 against B., to recover back the money, as being paid to his use. 
 
 Now, the plaintiff A. had executed the deed of assignment, B. being 
 separately indebted to him, and the fact of his having done so, was held 
 to I"' evidence, of his assent to the reserve of remedies, contained in the 
 proviso. Therefore, the abstract question in the case was, " what is the 
 effect of a discharge with a reserve of remedies consented to by the 
 surety V It was considered, as settled, that a reserve of remedies, 
 without such consent prevents the discharge of a surety, which would 
 otherwise be tin' result, of a composition with, or giving time to, a 
 debtor, by a binding instrument. Then, that such consent has not the 
 ■ of discharging the surety a- to the creditor, was considered to bo 
 char; indeed, it was said t" afford an additional reason against the 
 
 discharge. 
 
 , *Then, in this case, as there was no stipulation that the surety 
 L J should stand in tie creditor's place, (in which case, perhaps, he 
 might have been prevented, at least in equity, from recovering over 
 
 (y) Bain v. Cooper, M. k W. 701. 
 
 (/•j See Ruddock's case, 6 Rep. 26 j and compare Brook v. Stuart, 'J A. & E. 
 854. 
 
 (*) See per Ld. Abinger, C. B., 9 M. i: W. 707.
 
 GUARANTEES, BONDS, ETC., GIVEN TO BANKERS. 193 
 
 against the principal,) and nothing more than the single act of assent, 
 above mentioned ; it was held, clearly, that the surety was entitled to 
 recover against the defendant, the sum he had paid, on the guarantee, 
 to the bank.(tf) 
 
 The following is another case, arising upon arrangement with credi- 
 tors : — 
 
 A customer, as security for advances made him, by his bankers, 
 indorses, to them, promissory notes, made by B. Before the notes are 
 due, A. stops payment, and a deed was executed by him and several of his 
 creditors, among whom were the bankers, whereby his aifairs were placed 
 in the hands of inspectors, and the creditors, parties to the deed, agreed 
 not to call for, or compel, payment of their respective debts, due from 
 him, for three years. After the execution of this deed, and whilst the 
 notes were still running, B. assented, in writing, to the creditors execut- 
 ing the deed, and giving time to A., without prejudice to their claims 
 on B. This had the effect of reviving the liability of B., in favour of 
 the bank (and the other creditors,) although the assent of B. was given, 
 after the execution of the deed, which had taken place, in the first 
 instance, without the privity of B. ; for it was sufficient that the assent 
 to the forbearance should be given, at any time, before the notes became 
 due.(w) 
 
 Now, probably, in this instance, the bankers would have been better 
 advised, to have obtained the assent of B., to their execution of the 
 deed beforehand; for, in such case, B. would, probably, have been 
 advised, that there was no room whatever for contesting the bankers' 
 claim. 
 
 *A further question was mooted in this case, whether a deed „,,,„ 
 could be executed effectually, so as to bind the banking house, L -I 
 by one of the partners signing " for self and partners," but it became 
 unnecessary, for the court, to pronounce any opinion on the point; but 
 it is certainly, in general, most hazardous for bankers, in partnership, to 
 execute deeds, in any other mode, than by each partner sealing and de- 
 livering the deed, as his act and deed ; for, in general, the law is, that 
 one partner has no authority, to bind the partnership, by deed, and, 
 unless he were authorized, by a power of attorney, executed by each of 
 the others, or by separate powers of attorney, to do so, his execution 
 would be inoperative, in any case, where it was necessary to show a deed 
 executed by the partnership. 
 
 In equity, it is quite clear, that a person, having a valid security for 
 his debt, but having been induced, by his debtor, to execute an instru- 
 ment, legally affecting such security, under a representation that such 
 would not be the effect, and a promise that it should not, is not, upon 
 the application, to a court of equity, of the debtor, to be deprived of such 
 original security. (x) 
 
 (t) Kearsley v. Cole, 16 M. & W. 128. It makes no difference that A. was him- 
 self, at the date of the guarantee and since, a member of the banking copartner- 
 ship ; S. C. ; see 1 & 2 Vict. c. 96, s. 1. 
 
 (u) Smith v. Winter, 4 M. & W. 454. 
 
 (x) Lee v. Lockhart, 3 My. & C. 316.
 
 194 GRANT ON TUE LAW OF BANKING. 
 
 At law, when a customer, and another person, as his surety, sign a 
 joint and several promissory note, payable to the bankers, to secure 
 them, &e., and they afterwards execute a composition deed, whereby, in 
 consideration of four shillings in the pound, the bankers and other credi- 
 tors release the customer, from the payment, of the debts respectively set 
 opposite their names; and the amount of the promissory note was set 
 opposite the bankers' names; the deed also containing an express clause, 
 that it should not operate to invalidate, prejudice, or affect any bonds, 
 bills, notes, or other securities, &c, joint or several, &c., as to the claim 
 against any such surety, the deed was clearly held not to release the 
 r* 9 481 suret J > there being no fraud on the other creditors, *since the 
 L " J clause appearing on the face of the deed, all who executed the 
 deed must be taken to be aware of, and agree to, the reservation of the 
 rights against sureties. (y) 
 
 < lases of composition with creditors frequently occur, in which the 
 interests of bankers, upon guarantees, are deeply concerned, and the 
 form in which such guarantees are expressed ought always to be such, 
 that the bankers shall be secured of a priority of repayments of advances, 
 &c, over the creditors, under the composition deed. For this purpose, 
 it is necessary that the guarantee should not be made conditional to 
 repay, on failure of the traders to repay, but absolute. An illustration 
 will be found, in the following case, in which the bankers sued the 
 trustees, under the composition deed, to recover the amount of their 
 advances, &c. 
 
 Carr and Co., being insolvent, compounded with their creditors, by 
 agreeing to pay them a composition of seven shillings and sixpence in 
 the pound, at three instalments, and execute a conveyance of their real 
 and personal estate to certain trustees, — the defendants in the action, — 
 in trust, to permit them, C. and Co., to carry on the business, subject to 
 the control of the defendants, and to pay thereout, to the creditors, the 
 said three instalments; and, in case of full payment thereof, to reconvey 
 and reassign the estate to C. and Co., but, upon default of such payment, 
 then in trust to sell, and, after deducting, out of the proceeds, interest, 
 costs, and amount of mortgages, &c, to divide the remainder amongst 
 themselves and the other creditors. 
 
 C. and Co. continued, accordingly, to carry on the business, and 
 r*24xn opened an account with a banking company, from *whom they 
 J obtained Iar-e .chances. The bank applied to, and obtained 
 from, the defendants, the following guarantee: — 
 
 "C. and Co., having assigned over all their real and personal estate to 
 
 us, in trust, for securing a composition of .-even shillings and sixpence 
 
 in the pound, to their several creditors executing such deed, and it being 
 
 ary to open a banking account, for the purpose of carrying on the 
 
 said trade, in order thai the stock and goods on hand may be wrought 
 
 North v. Wakefield, 13 Q. B. 636. A- to t he mode of executing such a deed 
 
 inking copartnership, see Smith v. Winter, 1 If. k \V. 457. It would be 
 
 thai one of the partners shonld execute it "for self and partners," id. 460, 
 
 C, as to revival of liability of sup pleading reservation of remedy. 
 
 against surety, in such case, Davidson v. M'Gregor. 8 M. .v \V. 755.
 
 GUARANTEES, BONDS, ETC., GIVEN TO BANKERS. 195 
 
 up and converted into money, for the purpose of paying such dividends ; 
 and you having, at our request, consented to open a banking account, 
 on the credit of the names of the said C. and Co., or of any person or 
 persons, for the time being, carrying on that concern; we do hereby 
 promise and engage, that any sum or sums of money to become due to 
 you, or to the said banking company, in respect of such account, shall, 
 in the first instance, be paid to you out of the net proceeds of the said 
 trust estate, so far as the same will extend to pay." 
 
 Further advances were made, by the bank, to C and Co., subsequent 
 to this guarantee. 
 
 The defendants, subsequently, sold the property of C. and Co., under 
 the provisions of the composition deed, and the proceeds were insufficient, 
 to pay the creditors, the composition of seven shillings and sixpence in 
 the pound. 
 
 Held, that the meaning of the guarantee was not that the defendants 
 should be liable, to the bank, only out of the proceeds realized, from the 
 estate of C. and Co., after payment of the composition of seven shillings 
 and sixpence, to the creditors, but that they were liable, in the first in- 
 stance, to repay, out of the proceeds, the whole amount of the advances, 
 made by the bank, to C. and Co., as well before as after the guarantee^) 
 and the guarantee was held to extend to advances made before it was 
 given, notwithstanding the objection was pressed upon the court, that 
 the recital, stating it *to have become necessary to open an ac- r*2501 
 count, &c, pointed only to future advances.^) L J 
 
 Bankruptcy. — Where bankers, with knowledge of an act of bank- 
 ruptcy committed by their customer, took a guarantee from a surety, to 
 secure, to the extent of bOl, all sums then, or thereafter to become, due 
 from the customer, the surety having no notice of the act of bankruptcy, 
 and the surety, afterwards, paid to them the full sum for which he was 
 guarantor, without specifying whether it was to be applied to a certain 
 portion of the bankers' claim (which was held not to be provable under 
 the fiat,) or to the other portion, which was provable, the court con- 
 sidered that this payment ought to go in reduction of that part which 
 was provable. For want of notice of the act of bankruptcy, which con- 
 sisted in making over all the customer's property, to the bankers, by 
 means of a bill of sale, the surety was considered not to be, either when 
 the guarantee was given, or when payment was made upon it, on equal 
 terms with the bankers : and, therefore, if the payment was held to be 
 applicable to that portion of the bankers' claim which arose after the act 
 of bankruptcy, so that the payment could not be made the subject of 
 proof against the bankrupt's estate, justice would not be done as between 
 the bankers and the guarantor, and the payment was held to be appli- 
 cable to the discharge of a part of the claim which was provable against 
 the estate, viz., to the part of it which was incurred previously to the 
 act of bankruptcy, (a) 
 
 (z) Wilson v. Craven, 8M.&W. 584, 595. 
 
 (a) Ex parte Sharp, 3 M. D. & De G. 490. 504, where the V. Chanc. seems to 
 have considered the facts to amount to fraudulent concealment by the bankers. 
 See North British Insurance Company v. Lloyd, 10 Excb. 521, 533. See Supra, 
 P- 233.
 
 196 OBANT ON TnE LAW OF BANKING. 
 
 Trusts. — There are cases in which a tru-t prevails over a security given 
 r*.)-i-i tM ■ hanker, so as to oust the hankers of *remedy upon the secu- 
 L -I rity, although the bankers had no knowledge of the trust. 
 
 Tims, if an executor and trustee, under a will, lends a sum of money, 
 i)f which he is trustee, to a third party, on the promissory note of that 
 party, made payable to the executor only, and afterwards becoming em- 
 barrassed, indorses the note to his banker, (who is also the banker of the 
 maker of the promissory note,) as security for advances, the banker 
 having no knowledge of the trust, then, as the banker acquires only an 
 equitable title to the note, and therefore no better title to it, or to the 
 money secured by it, than the executor could confer, consequently he 
 acquires no title at all, as against the persons, for whom the executor 
 was trustee. (J) 
 
 Also a right of set-off may override the banker's claim for security. 
 Thus, if the above promissory note had been given, by the maker, for 
 money lent by the executor, in his own right, and the maker had after- 
 wards become a creditor of the executor, for goods sold to him in his 
 own right, the set-off of the maker must have taken precedence of the 
 banker's claim upon the note. (b) 
 
 In the first case, subject to the trust; in the second, to the set-off; 
 the banker has a lien on the moneys of the maker of the note, in his 
 hands, which may be effectual, as far as it goes, to discharge the debt 
 on the promissory note, which had been assigned to him.(i) 
 
 A father and son gave a joint and several promissory note, to secure 
 a balance due, from the son, to the bank. Soon afterwards, the son 
 assigned all his property to trustees, for the benefit of his creditors, who 
 were expressed to be parties to the assignment, and to be named in a 
 schedule, and the deed purported to contain an absolute release of the 
 debts, without any reservation of rights against sureties. One of the 
 trustees was a partner in the banking house, and the deed was executed 
 by him and the other trustees, but not by any other creditor. It was 
 r*>-->-| a ^ so executed by the son, *with the privity and concurrence of 
 L "' -I the father. The son was adjudicated a bankrupt, upon the exe- 
 cution of the deed, as an act of bankruptcy. 
 
 Held that, even assuming the father to have joined in the promissory 
 note, as surety merely, and the partner in the bank to have executed the 
 deed as creditor, and not merely as trustee, the father was not released, 
 there being do reason to think, but every consideration pointing the 
 other way, that any one intended, or anticipated, the partner's execution 
 of the deed having thai effect. 
 
 It *.a~ also recognized, as a general rule, that b Burety, who has con- 
 enrred in, or ratified, an arrangement between the creditor and the prin- 
 cipal debtor, cannot claim to he discharged lathe effect of that arrange- 
 ment, though, in some cases, it may be necessary that a reservation of 
 rights against the mn ty, Bhould appear on the Face of the composition 
 dccd.f' ) 
 
 2 Coll. Ch. I 
 (<•) Ex parte Harvey, 4 De GL, M. & G. 881 : see Price v. Barker, 4 E. & B. 169.
 
 GUARANTEES, BONDS, ETC., GIVEN TO BANKERS. 197 
 
 Consideration, previous to 1856. — Another principal point to bo 
 observed, with regard to guarantees, (not made under seal and delivered 
 as deeds,\ is, that a good consideration must appear on the face of the 
 guarantee, or must be capable of being discovered from the words con- 
 strued, where they are ambiguous, (d} by the aid of the circumstances in 
 which the guarantee was given, if given before July 29, 1856 ; otherwise 
 the bankers cannot take advantage of it. 
 
 The following instances may serve to throw light on this head, as 
 regards guarantees given before the above date.(e) 
 
 "We, the undersigned, hereby indemnify the National Provincial 
 Banking Company, to the extent of 1,000?., advanced, *or to be |-*9kq-i 
 advanced to A. B., by the said company; but the said indemnity L J 
 to cease when the said A. B. shall have paid in the said sum of 1,000?., 
 to the credit of his account" — was a form of what was intended to be, 
 the guarantee of a customer's account. 
 
 At the date of this instrument, A. B. had overdrawn, to the amount 
 of 1,400?. Now, but for this fact, the words, " advanced, or to be ad- 
 vanced," might have fairly admitted of the construction, that future, as 
 well as past advances, were in the intention of the parties ; the docu- 
 ment, however, does not, on the face of it, show that any one contem- 
 plated a security for future advances, to the extent of 1,000?.; it binds 
 the sureties to pay 1,000?., part of 1,400?. already advanced; it does 
 not, on the face of it, import that it is to attach upon future advances ; 
 future advances are not necessary to make it attach^ the full amount of 
 it is absorbed in the debt already due. The guarantors, probably, did 
 not know how the account stood at the time. If less than 1,000?. had 
 been due, at that time, the guarantee might have admitted of the con- 
 struction, that it impliedly contemplated future advances, inasmuch as 
 it could not, otherwise, operate to the full extent intended ; but when it 
 appears that, at the time of giving the guarantee, more than 1,000?. has 
 been already advanced — an existing debt to which the guarantee can be 
 at once applied — the meaning of the guarantee is, to guarantee the 
 existing debt of A. B., whether future advances are made or not.(/) 
 
 With reference to somewhat similar circumstances, the decision was 
 diiferent, turning, as questions respecting guarantees are apt to turn, on 
 points, which seem at first sight, to involve mere subtleties ; on a closer 
 inspection, there will, however, mostly be discovered substantial varia- 
 tions. 
 
 *On the 7th of August, 1838, two persons signed a parol r^.-n 
 agreement in the following terms, by way of guarantee to A. and L 
 and B., bankers, in partnership. 
 
 "In consideration of advances made and to be made by A. and B., 
 
 As to surety's right to be indemnified by principal, Close v. Close, 4 De G., M. k 
 G. 176. A guarantee may be so framed that the release of the principal shall not 
 be a release of the surety. Cowper v. Smith, 4 M. & W. 519. 
 
 (d) See per Parke, B., 1 Exch. 158 ; per Ld. Campbell, C. J., 20 L. J., Q. B. 9. 
 
 (e) See 19 & 20 Vict. c. 97, s. 3. 
 
 (/) Bell v. Welch, 9 C. B. 154. See a similar bad form, Raikes v. Todd, 8 A. 
 & E. 846 ; and per Cresswell, J., 2 C. B. 638, 643 ; and Tindal, C. J., id. 642 ; Maule, 
 J., id. 643 ; and see Bainbridge v. Wade, 16 Q. B. 89.
 
 198 GKANT ON TIIK LAW OF BANKING. 
 
 bankers, or by any otber persons of whom their firm may, from time to 
 time consist, in the way of loan, payments, discount, or otherwise, to G. 
 F., we jointly and severally hereby guarantee the said A. and B. the 
 repayment of the said advances, and indemnify them against any loss, 
 by reason of such advances; our liability not to exceed the sum of 
 1,000/. This guarantee to be a continuing guarantee, and to be a secu- 
 rity to the said A. and B. to the extent of 1,000/., as aforesaid, for the 
 whole of any balance which may, from time to time, or at any time, 
 become due to the said A. and B., or to the persons, for the time being 
 constituting the firm of the said banking house." 
 
 At the date of the guarantee, G. F., who was an old customer of the 
 bank, owed them a balance of 1,685/. 10s. 10</. ; after that date, various 
 other sums were advanced to him. 
 
 Held, that the guarantee disclosed a sufficient consideration to pay 
 past, as well as future advances ; some advances having, in fact, been 
 made subsequent to the date of the guarantee, and the circumstance of 
 the bankers not binding themselves, by the terms of the instrument, to 
 make advances, being of no consequence, since the advances actually 
 were made in pursuance of the instrument, (g) 
 
 This decision took place, it is material to observe, before 19 & 20 Vict, 
 c. 97, s. 3, was passed. 
 
 The following was the form of the guarantee, in another case, which 
 also occurred before the alteration of the law by 19 & 20 Vict. c. 97, 
 s. 3. 
 
 r*oc'i "We hereby become bound to guarantee to you, as *cashier, 
 L -I &c, and as acting for behoof of the Aberdeen Banking Com- 
 pany, all current obligations and engagements in your hands, to which 
 J. S. may be a party, and also all his future obligations and engage- 
 ments that may come into your hands, as cashier aforesaid, or into the 
 hands of your successors in office, in the course of business. This gua- 
 rantee, however, to be limited to the sum of 1,000/. ; such to be a stand- 
 ing guarantee, and in force, until recalled by us." 
 
 This was sent, in form of a letter, addressed to the cashier of the 
 Aberdeen Banking Company, and signed by a trading firm. 
 
 On the faith of this instrument, the bank discounted, for J. S., several 
 bills of exchange, to the amount of 998/. 10s. bd., all which bills were 
 dishonoured, and no part of the amount paid to the bank, with the ex- 
 ception of 50/. j so, on the whole, the balance on this account, against 
 J. S., was 948/. 10s. bd. 
 
 J. S. had a banking account, with the bank, wholly distinct from the 
 former account, which was confined to discount transactions; and at the 
 time when a fiat of bankruptcy issued against the guarantors' firm, the 
 banking account showed a balance of 106/. in favour of J. S. 
 
 The bank was held entitled to prove, for the difference between the 
 
 ,i Chapman v. .Sutton, 2 C. B. 634. "In consideration of giving credit," held 
 ufficiently to nhowpast as well as futi 
 0. B. 437. Consideration by nccessa 
 M0 ; (ilyn v. Hertcl, 2 J. B. Moo. 134. 
 
 \'J I *^lltt|Mli«Hl V. UUUWIlj 4 \J. 11. \J<t1. All ' I ' I 1 I ' 1 ' 1 .1 1 I i HI Ul ^IVllJ^ I II Ult, 
 
 sufficiently to nhowpast as well as future credit to be meant. Kdwards v. Jevons, 
 8 C. B. 437. Consideration by necessary implication, Caballero v. Slater, 14 C. B.
 
 GUARANTEES, BONDS, ETC., GIVEN TO BANKERS. 199 
 
 two accounts, it being considered that the mention of the future obliga- 
 tions and engagements implied a consideration, (/t) 
 
 The above is the law, with respect to guarantees given previously to 
 29th July, 1856 ; such guarantees, unless made under seal, and also de- 
 livered as deeds, must contain the consideration expressed on the face of 
 them, &c, as above laid down, in order to be valid and effectual, wben 
 proceedings are to be taken on them. 
 
 With respect to instruments, of this kind, made since that r^orp-i 
 *date, the law has been altered ; and it now is not necessary that *- J 
 any statement of the consideration should appear in such undertakings 
 by simple contract, any more than in deeds, provided such undertakings 
 be » in writing, and signed by the party to be charged therewith, or 
 some other person by him thereunto lawfully authorized. "(i) 
 
 Promissory Note as Guarantee. — A guarantee is sometimes given, in 
 the form of a promissory note, signed by the guarantor; but in such case 
 the instrument will often be found to operate as an agreement, and must 
 consequently be stamped accordingly, in order to be made effectual. 
 
 Thus, if two persons, as guarantors or sureties for a customer of a 
 bank, sign, along with the customer, an instrument in such form as the 
 following : — 
 
 " We jointly and severally promise to pay the sum of 100?. to the 
 Lincoln and Lindsay Banking Company, or their order, on demand, 
 with interest." 
 
 And on the back of the document there is this indorsement, signed by 
 the same parties : — 
 
 " The within note is given for securing floating advances, from the 
 said hanking company, to the customer, with interest, from the respective 
 times when such advances have been or may be made, together with com- 
 mission, stamps, postages, &c, and all usual charges and disbursements, 
 not exceeding in the whole, at any one time, the sum of 1001." 
 
 Then, in an action by the bank, against one of the two sureties on the 
 note, to which there was a plea of the Statute of Limitations ; and pay- 
 ments were shown to have been made, by the customer, in reduction of 
 the balance due on the banking account, within six years, before action. 
 Held, that in order to point the payments to the note, it was essential to 
 the plaintiff's case, to take notice of the indorsement, in order to show 
 the note to be a security for the floating balance ; for which purpose it 
 was an agreement, and being *above the value of 201., required r*257~| 
 an agreement stamp, to be admissible in evidence. (/) Not having L 
 such stamp, it could not be taken advantage of. 
 
 It will be seen that the bankers, in this case, were ill-advised in two 
 respects. 
 
 (h) Ex parte Littlejohn, 3 M. D. & De G. 182 ; see S. 0., as to stamp ; see form, 3 
 M. D. & De G. 490; and another form and observations of judges, 5 C. B. 810, 
 816. 
 
 (i) 19 & 20 Vict. c. 97, s. 3. 
 
 (/) Cholmeley v. Darley, 14 M. & W. 344 ; see per Coleridge, J., 22 L. J. (N. b.) 
 Q. B 267. What not a promissory note but a guarantee, see cases, 1 M. & W. 
 410; 2 M. & Gra. 644; and see 10 A. & E. 98 ; 11 id. 213; 4 Bing. N. C.423; 5 
 Bing. N. C. 156.
 
 200 GRANT ON THE LAW OF BANKING. 
 
 1. They ought to have insisted thai the document should be stamped, 
 when given. 
 
 '2. They ought to have brought the action sooner; it, in fact, having 
 been brought about eight years after the cause of action might have 
 arisen. 
 
 If the security or guarantee taken be in the form of a joint and seve- 
 ral promissory note, payable to the bankers on demand, and signed by 
 the customer, and the guarantor, for a given sum; then, when the guar- 
 antor is sued, on this note, for the sum mentioned in it, to allege that 
 the defendant made the note as the surety, and for the accommodation 
 of the customer, with the knowledge of the bankers, and thai after the 
 note became due, and payment had been demanded of the customer, the 
 bankers being holders, without the consent or leave of the defendant, 
 agreed to give time to the customer, is wholly ineffectual as an answer 
 to the action, there being no specific agreement, on the part of the 
 bankers, to take the note, from the defendant, as a surety only; and it 
 was left a doubt whether, if there had been, at the time of the making 
 of the note, such a specific agreement entered into, the surety would have 
 been discharged, by time given to the customer.(&) 
 
 Probably it is not unusual, and it is prudent, for bankers, on taking a 
 r*9 R i<ri n0 * e °^ ^' s kind, to point out to the surety that, *though he 
 L J signs only as surety, he will be treated, in all respects, as a prin- 
 cipal, if need be ; and in no case, ought they to receive such a note, or 
 agree to receive it from him as surety lest it should be held that in such 
 case he was discharged, by reason of time being given to the customer. 
 
 There is another consideration relative to a joint and several promis- 
 sory note, of this nature, given for the above object. 
 
 In cases of banking copartnerships, A:c., such notes are not unusually 
 made payable to trustees, of the banking company, or their order, on de- 
 mand. 
 
 But in case of an indorsement of the above kind, that is to say if the 
 note bears a memorandum to the above effect, the question arises, what, 
 if the note be indorsed over, by the payees, will the indorsee be able to 
 recover? The answer must be, that it is quite uncertain, and must de- 
 pend upon the state of the account, at the date of the indorsement. This 
 Bhows thai such an instrument could hardly be regarded as negotiable. 
 In fact, with such indorsement, even if properly stamped, the document 
 is imt a promissory note, and cannot be declared on 1>\ the payees, as 
 snch, but inii-t be treated as an agreement. The payees would be non- 
 snited, if they declared upon it, as a promissory note.(Z) 
 
 It is not uncommon for joint stock banks to take a joini and Beveral 
 promissory oote, Bigned by the customer and other parties, the latter of 
 whom are intended to be sureties for the former, in order to secure anj 
 balance, that may become due, to the bank, on his account with them, 
 
 or to secure advances made by them to him. 
 
 (k) Manley y. Boycott, 2 E. & B. 16. Bee case of a joint security, Other v. Ive- 
 son, 3 Drew. 177. A promissory note containing, in body of it, a memorandum of 
 deposit of title-deeds, as collateral security, will require a mortgage -tamp. Wise 
 
 v. Charlton, i A. & E. 786 ; see Robins r. Slay, 1 1 A. <<c E. 213; Fan irt v. Th 
 
 9 Q. B (0 1 1 M. ft W. 317 : Bee per Coleridge, J., 22 L. J., Q. B. 267.
 
 GUARANTEES, BONDS, ETC., GIVEN TO BANKERS. 201 
 
 Now, in the first place, it is very material that the persons having the 
 management of the business, or of the accounts of the bank, should be 
 satisfied that there is nothing, in their deed of settlement, to prohibit any 
 arrangement of this nature. Many deeds of settlement contain stringent 
 provisions, to prevent the funds of the company being advanced, r*2591 
 or *risked upon merely personal security. In such case, if the L 
 promissory note turned out to be unproductive, the directors would pro- 
 bably, indeed, almost certainly, be held liable to make good the amount 
 lost. 
 
 Secondly, in case the promissory note should be indorsed with a 
 memorandum, to the effect that the within note is given, for securing 
 floating balances, of the customer, not exceeding, &c, in whole the amount 
 of the note, it is often material, in order to defeat a plea of the Statute 
 of Limitations, (as by showing that payments, that have been made by 
 the customer in the interval, had reference to the promissory note,) that 
 the indorsed memorandum should bear an agreement stamp ; indeed, no 
 such note ought to be taken, with such indorsement, if the amount of 
 the note is above 20/., except the indorsement bears the proper stamp. (m) 
 To secure an advance of 1,000?., from a banking copartnership, made 
 to a person who was not, at the time, a customer of that concern, but 
 who wanted the money for the purpose of paying off a debt, owing to 
 another banking copartnership, of which he had been a customer, the 
 banking company, first mentioned, agreed to advance, upon several other 
 persons joining him in a bond, which was entered into accordingly, and 
 the money advanced ; and the borrower opened an account and became 
 a customer of the banking company. 
 
 It cannot be held, in such case, to be invariably the rule that all pay- 
 ments made subsequently to giving the bond, by the borrower, to the 
 bank, is to be applied in immediate and final liquidation of the 1,000?., 
 or that if the borrower, after the giving of the bond, on a long course of 
 transactions, be, for a time, in advance to the bank, the bond is thereby 
 satisfied. 
 
 It may be, in default of express stipulation, to be inferred, from the 
 conduct and language of the parties, after the execution *of r*260"l 
 the bond, that the intention was for the bond to stand as a con- L 
 tinuing security, in which case the rule of application of payments would 
 not apply. (») 
 
 The bond was considered to have been given, to secure the banking 
 company, from advances which they might make, from time to time, 
 and consequently had not been discharged. 
 
 In truth, such a bond ought never to leave it a question, on the terms 
 of it, with what intention it was given. Trustees, or others interested 
 for banking copartnerships, ought, therefore, to be careful in ascertaining 
 that the bond has words expressing the meaning of the parties, both by 
 positive and negative clauses. _ # 
 
 A., being a customer of a bank, prevails upon B. to join him in a 
 
 (to) Cholmeley v. Darley, 14 M. & W. 344. 
 (») Henniker v. Wigg, 4 Q. B. 792.
 
 202 GRANT OX THE LAW OF BANKING. 
 
 promissory note for 15C7. to secure his balance; this he sends to the 
 bank, with a letter, stating that he had p>t B. to join, with him, in the 
 note. The note is never entered, in the booksof the bank, to A.'s debit 
 When it became due, there was a balance against A., but, within a few 
 days afterwards, there was a balance of 250/. in his favour. On these 
 facts, it ma contended, in an action against 13., by the bank, that the 
 note must be taken to have been paid, or that, as B. had signed only as 
 surety, and without consideration for making the note, and as the bank 
 had accepted the note on that understanding and knowledge, and had 
 given time to A., the principal, without B.'s knowledge, therefore B. 
 was discharged. 
 
 But it was held, that the facts did not support either of these defences, 
 for that where two persons give a joint and several promissory note, for 
 the debt of one, it is necessary, in order to give the other the rights of 
 a surety, as against the creditor, to show that he was only a surety, that 
 the creditor knew it, and accepted him as such ; and that mere inactivity, 
 forbearance or lying by, does not amount to giving time, and that rcfrain- 
 r* - ?m * n » fr° m appropriating the balance of *A.'s account, in payment 
 L J of the note, did not discharge B. from his liability. (o) 
 
 The note was never entered to the debit of A., and the bankers were 
 not bound to pay it ; although if the payment had been made, to the 
 principal, it would have availed for the benefit of the surety, and it has 
 been said that it would entirely alter the position of bankers, if it were 
 to be considered that because, after they take a joint and several promis- 
 sory note, they have a balance, in their hands, belonging to one of the 
 parties to the note, the other should be discharged, if he turned out to 
 be a surety.(o) 
 
 A joint and several promissory note is made to a banker, by a customer 
 and his surety, to secure advances, made by the banker. The customer 
 afterwards pays into the bank generally sums, exceeding the amount of 
 the advances, but also draws out to a still larger amount, and becomes 
 bankrupt. In such case the surety is liable, for he cannot insist that 
 the payments should be appropriated, in discharge of the sum secured 
 by the note.(p) 
 
 A. and B., being partners, got permission, from their bankers, to 
 overdraw their account, on B. giving, to the bankers, his promissory note 
 for 2,000/. as a security, A. giving to B. his (A.'s) promissory note for 
 1,000/., being half the liability incurred. B. indorses this note, and 
 pays it into his account with the bankers, who were, in fact, ignorant of 
 the circumstances under which he took the note. When the account 
 was overdrawn by 1,3002., and after the termination of the partnership 
 of A. and B., the bankers sued A. on the promissory note for 1,000/., 
 and it was held that they were entitled to do so; for, although the effect 
 would be, in the first instance, to cause A. to pay, to them, more than 
 one moiety of the 1,300/., yet, it was observed, that he might call upon 
 
 (o) Strong v. Foster, 25 L. J., C. B. 100, 110. 
 
 Ex parte Whitwortli. 2 M. D. ft Dfl <J. 164; see Strong v. Foster, 25 L. J., 
 Cli.. 106.
 
 GUARANTEES, BONDS, ETC., GIVEN TO BANKERS. 203 
 
 ]}. to pay back his proportion. It would have been the same, „,„„« 
 *in all respects, apparently, if the bank had known of the cir- L J 
 cumstances, in which the promissory note was given, to B.(y) 
 
 Joint and several Covenant. — If a joint and several covenant is 
 entered into, by a principal and his surety, that the principal shall repay 
 a sum advanced, by three instalments, with interest, on three specified 
 days, and one instalment is duly paid, but before the second is paid, the 
 surety becomes bankrupt; the creditor may prove, against the bankrupt's 
 estate, in respect of the amount of the two unpaid instalments, and 
 interest, as upon a contingent liability, under 12 & 13 Vict. c. 106, 
 s. 178.(V) 
 
 It will be observed, that here there is a measure of the liability ; it 
 cannot exceed a certain sum ; and this decision, being upon appeal to 
 the lords justices, must rule all future cases, in which the liability can 
 be ascertained, and which are not cases of merely unliquidated damages. 
 
 Good Conduct of Clerks. — With respect to guarantees for the good 
 conduct of clerks, of bankers, a point which has already been adverted 
 to, namely, whether the guarantee, that is taken, is in such a shape as 
 to stand good, in case of a change, in the members of the banking house, 
 arises more frequently in cases of guarantees for the fidelity of clerks, 
 &c, than in those of guarantees for the repayment of advances to 
 customers, and therefore requires to be more fully developed. 
 
 In considering this subject, the courts are chiefly guided, by the 
 intention of the parties. This is mostly discoverable only from the 
 expressions, they have used, in the instrument of guarantee. In other 
 words, it is most important, for the security of bankers, that the words 
 used shall clearly and *undeniably demonstrate the intention, ^ „„-. 
 that the guarantor, whether he undertakes, for the good conduct L J 
 of the clerk, during a limited or undefined period of time, should be 
 bound to the hanking house, not to the persons who may be members of 
 the establishment, at the date of the guarantee ; because, in case the 
 guarantor is only bound, in the latter way, upon any change in the part- 
 nership, by death, by retirement, or by taking in fresh partners, the new 
 partnership might find themselves unable to enforce the obligation. 
 
 The following is an illustration of what has just been said, as to the 
 effect of change of partnership. 
 
 A guarantor executes a bond, whereby he undertakes, to A., for the 
 fidelity of a clerk, so long as he should continue in A.'s service as clerk. 
 A. takes a partner, and brings an action on the bond, and assigns, as a 
 breach, that the clerk had received money, on account of the partnership, 
 and had not paid it over, to the partners, but A. was not permitted to 
 recover, the court saying that when A. took a partner, there was an end 
 of the obligation ; that the condition was confined to A. alone, and the 
 breach assigned was not within the condition, and there was nothing to 
 show, the guarantor to have intended, to be bound, for the clerk's fidelity 
 to any other person than A.(.s) 
 
 (q) Heywood v. Watson, 4 Bing. 496. 
 
 (r) Ex parte Barwis, 25 L. J., Bank. Cas. 10 ; Ex parte Willis, 4 Exch. 530. 
 
 (*) Wright v. Russell, 3 Wils. 530 ; S. C, 2 W. Bla. 934, see sup. pp. 221, 222.
 
 204 GRANT ON THE LAW OF BANKING. 
 
 This decision, it is true, has been questioned by some judges,^) but 
 the principles on which it is founded do Dot appear, cither expressly or 
 r*or_n * m pliedly, t0 have been decided *to be inapplicable to cases, 
 L J where the facts were tantamount, and the terms of the guarantee 
 equivalent. («) 
 
 In connection with this class of cases, may be here mentioned one 
 which, though it can, in general, only be applicable, in instances where, 
 a banking house is conducted, by a single person, without partners. 
 
 If a bond be taken that a clerk shall serve faithfully, and account for 
 all money, bills, notes, &C. which he shall receive, &c. to the banker, 
 and his executors, administrators and assigns, it does not make the surety 
 liable for money, &c. received by the clerk in the service of the execu- 
 tors, &c. who continue the business, and retain him, in the same employ- 
 ment.^:) This case turned upon the intention, which was held to be, to 
 guarantee the service to the testator, and no longer, and must be con- 
 sidered with reference, to the statutory enactment (passed since its date,) 
 mentioned above. (^) 
 
 In a case, where a bond was given, to guarantee to a company, not 
 incorporated, the faithful services of a clerk, and the bond was made to 
 and with trustees on behalf of the body, the court held, construing the 
 instrument with regard to the obvious intention of the parties, that it 
 might be sued upon by the trustees, at any time, during the continuance, 
 in the service of the actual body of persons, carrying on the same busi- 
 ness, under the same name, notwithstanding any intermediate change of 
 the original holders of the shares, either by death or transfer.(z) 
 r*9r„ So where a joint stock banking company had been established, 
 L J *uuder stat. 7 Geo. IV. c. 4G, and a guarantee was given it, 
 and then, upon a considerable accession of proprietors and capital, and 
 an increase in the number of directors, the company took another name, 
 it not being shown to differ, in its constitution, from the former bank, 
 the bank remaining the same, though with a different name : it was held, 
 that its public officer might sue and recover upon the guarantee given 
 to the former establishment. (") 
 
 Another point to be considered is, that a guarantee, for the faithful 
 services of a clerk, given at a time when his employment comprises a 
 certain routine of duties, will not extend to cover other, or additional, 
 
 (l) Ex. gra. in Barclay v. Lucas, 3 Doogl. 32; S. 0., 1 T. B. 291, n. ; see 1 
 b. 292 j bul Barclay v. Lucas baa nol escaped without much question 
 the note al the end of the report in 3 Dougl. 321. Howi < i Chapman v. Beck- 
 3 Q. II. 722, recognizes the principle of it. and the Bame seems to be the 
 ground of decision in Metcalfe v. Bruin, 12 Bast, 400; Wilson v. Graven, 8 M.& W. 
 .\/,., thai the bank was the Bame all along. So in other cases, London, &c., 
 Railway Company v. Goodwin, 3 Exch. 331; Eastern, ice, Railway Company v. 
 ne, 23 L. J., Bxch. 61. 
 <u) Bee Dry \. Davey, L0 A. & B. 30. 
 
 (x) Barker v. Parker, l T. I:. 287: '"it compare per Lord Ellenborough, C. J., 
 E t. 490; Lord Mansfield, 0. J., 1 T. K. 295, distinguishes Bar- 
 clay \. Lucas, by observing thai there the Bame trade was carried on, by the 
 original masters, in the same manner, ami the only difference was. the introduc- 
 tion of a new partner. 3ee Bupra, J>. 222. 
 (z) Metcalfe V. Bruin, 12 East, 400; see J. B. Moo. 109, 110; see supra, p. 222. 
 (a) Wilson v. Craven, 8 M. & W. 584.
 
 GUARANTEES, BONDS, ETC., GIVEN TO BANKERS. 205 
 
 duties that may be imposed on, or accepted by, him; thus, if a clerk to 
 a bank, for whose good conduct, as clerk, a guarantee has been given, is 
 made manager, and it be shown, conclusively, that he ceased to be clerk 
 when he became manager, so that no breach of the bond could have 
 happened after he became manager, that will be an answer to an action, 
 by the bankers, on the bond, against the surety, founded on misconduct 
 as manager ;(b} at least, this would, in all probability, be ruled in any 
 case where the guarantee did not expressly engage for his performance 
 of his duties as clerk, or in any other capacity. (b\ 
 
 It is scarcely necessary to observe that the conduct, which amounts to 
 a default, on the part of the clerk, and which renders the^surety liable, 
 upon his undertaking, must be some act or omission, some malfeasance 
 or nonfeasance, within the scope of the duties appertaining to the situa- 
 tion he fills. 
 
 A clerk of a provincial bank (in Devonshire,) who was sent by the 
 manager, at the request of a customer, to his residence, about eleven 
 miles from the bank, in order to receive a large sum of money, to be 
 placed to the customer's account with the bank, and who, casually, on 
 his way back, lost the money out of his pocket, was held to have received 
 *the money, in the course of his employment, as clerk, and, i-^pp-i 
 although the jury found it not to be the custom of bankers, in L J 
 that part of the country, to send for their customers' money, as aboVe 
 stated, a surety, who had guaranteed the bank that the clerk " should 
 well and faithfully serve them, as a clerk, and should not cancel, obli- 
 terate, spoil, destroy, waste, embezzle, spend, or make away with, any of 
 the books, papers, writings, stamps, cash, bills of exchange, promissory 
 notes, or other property of the bank, or of any of the customers, &c, 
 which should be deposited in his hands, or intrusted to his custody or 
 possession, or come to his care, custody or possession," was held to be 
 responsible to the extent of the moneys lost.(c) 
 
 The same would be the decision in case of the payment of a cheque, 
 or the receipt of money, after banking hours, or of sending the clerk to 
 London, on a sudden emergency, to obtain funds, or the like.(d) 
 
 The fact of a clerk having received into his personal possession a sum 
 of money, and having lost it, is strong evidence of negligence ; but it 
 would have been an answer to the action above referred to, to have shown 
 that the loss had been occasioned by robbery, before the clerk could have 
 got back to the bank, and without his default, (e) 
 
 Evidence. — In cases of guarantees, or securities of any kind, taken 
 for the good behaviour of clerks, it is material to bear in mind that 
 whatever is evidence available against the principal, is available against 
 the surety. 
 
 Thus, where bankers sued the obligor of a bond, given for the fidelity 
 
 (b) Anderson v. Thornton, 3 Q. B. 271, where see the terms of the engagement ; 
 and see supra, p. 222. 
 
 (c) Melville v. Doidge, 6 C. B. 450 ; S. C, it was found to be the custom, for 
 London bankers, to send about, in all directions, for their customers' money. 
 
 (d) See 6 C. B. 454. 
 
 (e) See Walker v. British Insurance Society, 21 L. J. (N. S.) Q. B. 257.
 
 206 GRANT ON THE LAW OF BANK INC. 
 
 df a clerk, &o., entries of receipts of money, by the clerk, in the books, 
 r*->fj--i kept by him, in discharge of his duty *as clerk to them, were 
 L ~ J held to be, after his death, evidence, against the surety, of the 
 fact of his having received the moneys therein mentioned,(/) it being 
 part of his guaranteed duty to keep those books. 
 
 The reason for taking such security, is not only the obvious one, that 
 in case of any embezzlement by the clerk, the banker may have the 
 means of protecting himself against tin- loss thereby caused, but also 
 that he may have the same protection, in case of any loss arising from 
 the merely careless or thoughtless inattention to his duty, of the clerk, 
 in which case, without such security, the loss must ultimately fall on the 
 banker, assuming the clerk to be unable to make it good.(y) 
 
 But where a fraudulent scheme has been concocted, between a cus- 
 tomer of the bankers and their servant, the object of which is to impose 
 upon them, and, in pursuance of this scheme, a cheque has been drawn 
 by A., payable to the customer, or bearer, and by the customer indorsed 
 to the bankers, and by their servant carried to the customer's credit, in 
 order to cause the bankers to think that that account was not overdrawn 
 on a given day, with the understanding that, after that day the cheque 
 should be returned to the customer ; there no loss shall be suffered by 
 the bankers, but they may sue the maker of the cheque upon it, though 
 he was not shown to have been acquainted with this arrangement, the 
 bankers themselves being no way privy to it.(/t) 
 
 Embezzlement. — In a case where a clerk to a bank misappropriated 
 funds that came to his hands, as clerk, and died before the fraud was 
 discovered, without a will, leaving considerable personalty, which was 
 placed by his widow in the custody of the bankers, and she took out let- 
 ters of administration, and commenced proceedings against them to 
 r*' > 681 rccovcr * tne property, it was held to be no answer to a bill filed 
 L -I by them for an injunction and administration of the estate, to 
 say that the bill alleging a felony, no civil remedy lay in respect 
 thereof. (A 
 
 If a clerk commits an embezzlement on the bank, and his father, in 
 order to cover his defalcations, transfers stock into the name of the 
 banker, this is a composition of a felony to prevent a prosecution, and 
 it seems that the value of the stock cannot be recovered, nor will the 
 stock be ordered to be transferred. (/•) 
 
 A clerk of a banking copartnership, under 7 Geo. IV. c. 4G, may be 
 convicted of embezzling the moneys of the company, though he is a 
 shareholder or partner in such company. (/) 
 
 A well-known principle of the common law frequently governs cases 
 of misconduct, as regards the mode of proceeding criminally against 
 bankers' clerks, and may properly be stated here. It is this: — When 
 goods, which a master has never been in possession of, are delivered by 
 
 (/) Whitnash v. George, 8 B. & C. 558 
 
 Iff) Rogers v. Kelly, 2 Campb, 123. 
 
 (A) Bosanqael r. Corsqr, 8 M. .v \v. 142. 
 
 (t) Wickham v. GatrilL, 2 Sma. k G. 353. (k) Claridge v. Iloare, 14 Ves. 59. 
 
 (0 Reg. v. Atkinson, Car. & M. 525.
 
 GUARANTEES, BONDS, ETC., GIVEN TO BANKERS. 207 
 
 a third person to a servant, for the master's use, and the servant, instead 
 of delivering them to his master, by depositing them in his house, or the 
 like, converts them to his own use, this, at common law, is no larceny ;(m) 
 thus, if a banker's clerk receive money at the counter, and, instead of 
 putting it into the proper drawer, &c, purloin it, he is not guilty of lar- 
 ceny^?*) or, if he receive a bond for the purpose of being deposited in 
 the bank, and instead of so doing, take possession of it for his own pur- 
 poses, he is not guilty of larceny. (o) So, where a servant was sent to 
 get change for a bank note, which he got, but absconded with the 
 change, it was holden no larceny, (p) 
 
 *But, where a clerk and cashier of a bank made false entries 
 in the books, to the credit of a customer, then obtained the cus- L " J 
 tomer's cheque for the sum thus falsely placed to his credit, and paid the 
 amount of the cheque to himself, by bank notes, this was considered by 
 the judges to be a larceny of the notes; for they were originally in the 
 possession of the master. (§) So it is larceny, if a cheque, drawn by the 
 master on his banker, be delivered by him to his servant, to carry to 
 another person, or to buy goods with, and the servant apply it to his 
 own use; this is larceny of the cheque. M 
 
 With respect to the prosecution of clerks, &c, for embezzlement, it 
 may be often material to investigate the facts, in particular cases, with 
 reference to the principles following : — 
 
 Embezzlement necessarily involves, in the idea of it, secrecy and con- 
 cealment. If, therefore, instead of denying the appropriation, the pri- 
 soner, in rendering his account, admits the appropriation, alleging a 
 right in himself, &c, his offence is not embezzlement, (s) So, where a 
 clerk's duty was to enter all such moneys as he should receive, &c, in a 
 book, and remit the amount weekly, &c, and he was found to have made 
 entries regularly, but with respect to three particular sums, not to have 
 remitted them, this was held to be matter of account, not felony. (tf) 
 
 On the other hand, it has been held that, where it was the duty of a 
 servant to account every evening for, and pay over all moneys received 
 by him for his master during the day, and he received three several 
 sums, on different days, and omitted to account for or pay them over, 
 though without ever denying the receipt of them, or ever delivering any 
 account in writing, in which they were omitted, the wilful omis- .-.,.,,_„-. 
 sion *was equivalent to a denial of the receipt, and the servant L -< 
 was found guilty of embezzlement. (w) 
 
 It was the duty of the cashier of a bank to receive cash, and enter 
 the amount so received in a book ; and at the close of the business of 
 the day to see that the cash in hand agreed with the sums entered in 
 this book, and to strike a balance, and to put the cash received either in 
 
 m) 2 East, P. C. 568. 
 
 n) R. v. Bazeley, 2 Leach, 835. (o) R. v. Waite, 1 Leach, 28. 
 
 p) R. v. Sullens, 1 Mood. C. C. 129. 
 
 q) R. v. Hammon, R. & Ry. 221; 4 Taunt. 304, S. C. 
 
 r) Reg. v. Heath, 2 Mood. C. C. 33 ; Reg. v. Beaman, C. & Mar. 595. 
 
 s) Reg. v. Norman, Car. & M. 501 ; see Reg. v. Evans, infra. 
 
 t) R. v. Hodgson, 3 Car. & P. 422 ; Reg. v. Creed, 1 Car. & K. 63. 
 
 u) Reg. v. Jackson, 1 Car. & K. 384. 
 
 February, 1857. — 15
 
 208 GRANT ON THE LAW OF BANKING 
 
 a drawer in the counter, or in :i box, of both of which he had the key. 
 It was part of his duty to pay money, as well as to receive it. On a 
 certain day. the cash in the book at the close of business, appeared to 
 be 1,762?., which sum the clerk carried forward, as in due course ought 
 to have been done. At the close of bnainesa on the next day, the clerk, 
 after crediting himself with money paid by hiui, and debiting himself 
 with cash received, made the balance in the book 1,3092., and that sum 
 he ought to have had in one or other of the above-mentioned places. It 
 was found, however, that there was only 345/., leaving a deficiency of 
 9642. The clerk never denied that he was short. The judge at the 
 trial directed the jury that, if the clerk took the money from the posses- 
 sion of his employers, the offence would be larceny; but if he took 
 money paid to him on account of his employers, before it reached the 
 possession of the employers, that would be embezzlement; and the 
 jury — there being counts for larceny as well as for embezzlement — (x\ 
 found him guilty of embezzlement, and not guilty of larceny. (y\ 
 
 Discharge of Guarantor. — The guarantor, for " the true and faithful 
 discharge of the trusts which the bankers, his employers, might repose 
 in A. 13., acting as cashier, or superintending clerk, in their banking 
 p-^.-jw,-, house," (which A. B., *three years after the date of the gua- 
 L J rantee, is found to have embezzled a sum of 1,292?. 8s. 6c?.,) is 
 not discharged by the circumstance of the bankers never having given 
 actual notice of A. B.'s misconduct, either to the guarantor or to other 
 parties, who had also guaranteed A. B.'s conduct, until three yean more 
 had elapsed; at least, if it be shown that the guarantor knew of the tad 
 from other sources, it not appearing that the hankers concealed it from 
 him industriously. 
 
 Nor is the guarantor, in such case, discharged, though it appear that 
 the bankers have given credit, in their books, for the above amount, to 
 A. B., entering it as a private loan, with a view to conceal, the real state 
 of the ease, from the other clerks, and so to preserve the credit of the 
 house from suffering. 
 
 The facts were left to the jury, in an action by the bankers on the 
 guarantee, to say, upon consideration of them, whether the hankers, by 
 so doing, had waived the guarantee and exonerated the guarantor; and 
 the jury found for them. (2) 
 
 In case of a guarantee of this kind, the contract of a guarantor is not 
 like that of the parties to a bill, who air only secondarily liable, and to 
 whom iioi'kc musi be given, of the default of the party primarily liable, 
 in order to charge them ; lor tin- guarantor's contract is no! that lie will 
 make up any deficiency, if A. 1!. 'lot.- not, but he IS hound absolutely to 
 
 pay for A. B.'s deficiency.(a) 
 
 (x) See now 11 .v 1:. Vict. <■. loo. s. 1::. 
 
 • . 7 Car. a: 1'. 636 : 1 ompare l:< g. v. Chapman, 1 Car. & K. 119. 
 (z) Peel v. Tatlock, I B. .v I'. 419. A- to declaring on :i guarantee to bankers, 
 5 M. .v W. 563; 1 M. .v Gra. u ; 5 Q. B. - I. Evidence, 1 Exch. 154. 
 (a) Per Beath, J., 1 15. & P. \n. Bowever, a plea thai A. 1'.. has paid, ami 1 In 
 1 epted, in satisfaction of all damages, &c., relating to it. a certain 
 lay he a good plea as to 30 much. Lyall v. Biggins, 4 Q. IJ. 528.
 
 GUARANTEES, BONDS, ETC., GIVEN TO BANKERS. 209 
 
 On the other hand, as we have seen,(/j) any variance in the agreement 
 to which the surety has subscribed, which is made without his knowledge 
 or consent, which may prejudice him, or which may amount to a substi- 
 tution of a new *agreement for a former agreement, even though r ^ 979 -i 
 the original agreement may, notwithstanding such variance, be L J 
 substantially performed, will discharge the surety. 
 
 This is the rule ; and it may be illustrated by the example following : 
 where a surety guaranteed the faithful and honest conduct of a clerk, 
 who was paid by salary, and his employers, sometime afterwards, changed 
 this part of their arrangement with him, and paid him by means of a 
 commission, which amounted to more than his former salary ; it was held, 
 that the surety was discharged by reason of the alteration. (c\ So, where 
 A. becomes guarantor of the good conduct of a clerk in a bank ; the clerk 
 is, subsequently, appointed to a better situation, in a branch of the bank, 
 and A. extends his guarantee to the conduct in this new situation. The 
 clerk, afterwards, undertakes, on having his salary raised, to become 
 liable to one-fourth of the losses on discounts, and then allows a customer 
 to over draw, whereby the bank suffers loss. A. was held not to be liable, 
 for this loss, to the bank, though it was within the terms of his original 
 guarantee, because the fresh arrangement, made without his knowledge, 
 was a discharge. (d} 
 
 Change of Firm. — The following decision illustrates, still further, the 
 position already stated, that, when, from the terms of the guarantee, it 
 can be seen that the intention was to secure the good conduct of the 
 clerk, while serving the banking house, whether the same persons who 
 constituted the partnership remained in it or not, the obligation will be 
 treated as a continuing one, as regards the changes in the body. 
 
 The bond recited that the plaintiffs had agreed to take *one [-#973-] 
 Jones into their service, and employ, as a clerk, in their shop L -» 
 and counting house, &c, and that the guarantor had agreed to become 
 security for his fidelity j and the condition was, that if Jones should 
 faithfully aecount for, and pay to the plaintiffs, all sums of money, &c, 
 in the service of the plaintiffs, and did not embezzle, &c, then the con- 
 dition to be void. 
 
 The plaintiffs, in the action, were the members of the banking house 
 at the time that the bond was given, and to whom the guarantor was 
 bound ; but it appeared that, some time after that date, the plaintiffs had 
 taken a fresh partner, and it was after this change, in the partnership, 
 that th« clerk's default took place. The breach assigned was, that, after 
 the addition to the partnership, Jones continued in their service, and 
 received a certain sum of money, three quarters of which he received on 
 account of the plaintiffs, and did not pay over, &c. 
 
 It is to be observed, that the concern appears to have consisted origi- 
 
 (b) Supra, p. 180. 
 
 (c) North Western Railway Company v. Whinray, 10 Exch. 77 ; sec Evans v. 
 Earle, id. 1. When the condition of the bond did not contain any stipulation that 
 the same salary should be continued, either express or implied, the guarantor 
 would not be discharged by reduction of salary. Frank v. Edwards, 8 Exch. 214 ; 
 explained, 10 Exch. 81, 82. 
 
 (d) Bonar v. Macdonald, 3 H. Lds. 226.
 
 L'10 GRANT OX THE LAW OF BANKING. 
 
 nally of the throe plaintiffs, the whole Dumber of partners! being four, 
 taking in the new one; hence the plaintiffs allege, that three parte 
 
 of the money, received on account of the house, belonged to them. 
 
 The court held the intention of the parties to the guarantee to be, a 
 - icurity to tht house, so that no change of partners would discharge the 
 guarantor;(e) and it was observed that, in houses with many clerks, the 
 inconvenience of demanding fresh security from each, upon every change 
 of partners, would be enormous. (f\ 
 
 Banker*, lour to talc- gnornntx . — It was, in all cases, desirable that 
 bankers, in taking a guarantee of this description, should insist upon a 
 r*->~.n ^ond being executed by the guarantor, *as by that means all ques- 
 L J tions were got rid of, respecting the sufficiency of the statement 
 of the consideration, in the writing purporting to be a guarantee, to 
 support the document as such. The numerous cases which have been 
 c intested in the courts, on this ground, in cases of guarantees by simple 
 contract, and the oftentimes conflicting decisions which have been pro- 
 nounced, on instruments, very nearly approaching to identity of signifi- 
 cation, in their terms, showed this very satisfactorily, and rendered it 
 most unsafe for bankers to rely on merely written, not sealed and 
 delivered, guarantees. 
 
 With respect, however, to all guarantees given since 29th July, 185G, 
 the stat. 19 & 20 Vict. c. 97, s. 3, dispensing with the necessity for 
 the statement of consideration in such cases, provided the undertaking 
 be " in writing, and signed by the party to be charged therewith, or 
 some other person, by him, thereunto lawfully authorized," makes such 
 precaution useless. Some of the more immediately useful cases, as con- 
 taining principles which may be found still applicable to banking pur- 
 poses, in this respect, are already indicated in this work.(y) 
 
 Liability of Executor of Ghtarantor. — A clerk, to secure his ein- 
 -, &c, joins, with two sureties, in executing a joint and several 
 bond to bis employers. The period of the clerk's service was undeter- 
 mined ; but either party might determine it at his option ; the bond was 
 to extend over the period of his continuance in the service. 
 
 One of the sureties soon afterwards dies, and his executrix gives 
 notice, to the employers, that she should not consider herself liable on 
 the bond. 
 
 Bis employers, in consequence, obtain from the clerk, the bond of a 
 fresh surety. 
 
 r*o-.--i *Then the surviving surety dies, and then the new surety; 
 L ~ J and lastly, the clerk, four yean and a half after the first-men- 
 tione<l death of the surety, himself dies; and deficiencies are thereupon 
 
 Barclay v. Lucas. 1 T. It. 291, n. ; S. C, 3 Dougl. 321 ; Theob. Princ. & Surety, 
 ee supra, p. 222. 
 Bee also li'Gahey v. Alston, 1 M. ft W. 389, 8. I'. See, when surety is 
 onlv liable for a limited period, as to pleading, ^c, EitSOD v. Julian, 4 E. & B. 
 
 (y) Bee Kennaway v. Treleayan, 5 M. ft \V. 498; and sec 4 Q. B. 531; 1 C. B. 
 p< r Brie, J.. Steele v. Hoe. 19 L. J. | v B.) Q. B. 93; 3 Q. B. 333, and sup. 
 pp. 252-265.
 
 GUARANTEES, BONDS, ETC., GIVEN TO BANKERS. 211 
 
 discovered in his accounts, principally in respect of sums received by 
 him after the date of the bond of the fresh security. 
 
 Under these circumstances, the executrix was held to have no right to 
 restrain the firm from suing her on the bond, the firm never having re- 
 leased her, as executrix, or given her any intimation that they did not 
 consider her liable ;(/t) for the rule of law is this — sureties of this de- 
 scription are not discharged from their obligations, unless the contract 
 between them and the obligees, is varied by a positive contract between 
 the obligees and the principal, without notice to the surety, (i) and it is 
 the duty of the surety to see that the principal performs his obligations, 
 
 &C.(i) 
 
 Bankers finding Sureties, &c. — We may close the subject of guaran- 
 tees, by adverting to the cases in which bankers may be required to find 
 sureties upon their appointment as treasurers, &c, to public bodies. 
 
 A., B., & Co., enter into a joint and several bond, for the faithful 
 performance, by A., of his duties as treasurer of a poor law union, in re- 
 ceiving, &c, moneys, &c. A. and another person were bankers, and A. 
 had, in fact, never been in the exclusive receipt of the moneys of the 
 union, which were paid into the bank; the overseers of the parishes, 
 constituting the union, having been directed, by the board of guardians, 
 in their printed contribution warrants, " to pay to Messrs. Brodie & 
 Co.," and the cheques, drawn by the board, requiring A. and his part- 
 ner to pay, &c. 
 
 *The court held it to be an established principle, that for mo- r^. 7 -p-i 
 neys paid to two or more parties, the surety for one is not liable, L J 
 and therefore, that if a person is surety for another, for the due account- 
 ing for moneys received by him, the receipt of moneys by that person, 
 and his partner, is not the same as the receipt by him alone, because the 
 surety may be willing to be accountable for one individual, but not for 
 him and his partner, and a payment to one partner is a payment to both. 
 Here the board drew cheques on the banking firm, treating them as their 
 joint treasurers, and from that it was inferred that they agreed to the 
 moneys being paid into the bank, to their credit, just as any other 
 customer. Hence, when the bank failed, with a balance due to the 
 union in its hands, the sureties of A. were held not to be liable, and a 
 sum equal to the above balance having been paid, to the board of guar- 
 dians, by one of them, under a mistake of facts, was held to be recovera- 
 ble back again. (k\ 
 
 If the guarantee had been for the good behaviour of the partners, and 
 that they and the survivor, and survivors, of them should account for, 
 &c, all moneys paid to them, or either of them, or any person thereafter 
 in partnership with them, &c, the retirement of one of the partners 
 would have released the surety. (?) 
 
 (h) Gordon v. Calvert, 2 Sim. 235 ; S. C, affirmed, 4 Russ. 581; see Hough v. 
 Warr, 1 Car. & P. 151. 
 
 (i) Creighton v. Rankin, 7 Cla. & F. 325. The neglect of the bankers, in leav- 
 ing in hands of the clerk, a larger sum than the surety had stipulated should be 
 left, &c, &c, makes no difference. S. C. ; see Lindsay v. Lord Downes, 2 Ir. Eq. 
 R. 307 ; see 1 id. 448, 450, n. (k) Mills v. Alderbury Union, 3 Exch. 590. 
 
 (Z) University of Cambridge v. Baldwin, 5 M. & W. 580.
 
 212 GRANT ON THE LAW OF BANKING. 
 
 Reviewing the subject of this ohapter, the truth seems to be, that a 
 guarantee is extremely difficult to frame with sufficieut circumstantiality 
 to embrace every case that may arise ; ami it is impossible to lay down a 
 general form which shall serve on every occasion, or even perhaps a form 
 which shall serve for any other than the objects which the framer had in 
 his mind at the time of constructing it. Very little more can be said for 
 the purpose of guidance, except that each case is to rest upon its own 
 circumstances ; the practitioner being left to glean from the mass of de- 
 
 j-^., | cisions, the *proper mode of moulding the language, so as to 
 
 L J adapt it to the purposes he has to meet. 
 
 As regards evidence of the liability of the guarantor in these cases, we 
 may point out — 
 
 1. That an account delivered by his clerk, cashier, &c, charging him- 
 self, is evidence against the clerk's surety. 
 
 2. That in case such account is made out by the clerk, and he con- 
 tinues to receive payments on account of the banker, and subsequently 
 pays in moneys, or takes credit for salary or disbursements, those pay- 
 ments, &c, are not necessarily to be first applied to extinguish the pre- 
 vious balance, when the subsequent receipts are equal to the payments, 
 &c, in amount. (?>i) 
 
 [*278] *CHAPTER VIII. 
 
 APPROPRIATION OF PAYMENTS. 
 
 A question has very often arisen, where a customer has a running 
 account with a bank, the balance' of which is sometimes for him, ami at 
 ether times against him, how are the payments by the bankers to be ap- 
 plied ? 
 
 Thus, in case of a banking partnership, where one partner dies, and 
 the customer goes on dealing as before with the bank, there being no 
 new account, nor any settlement made, and then the banking house be- 
 comes bankrupt, the account at the death of the partner being about 
 1,7' Mi/, in the customer's favour, but being, afterwards and before the 
 bankruptcy, reduced by payments made by the bankers on his account, 
 to about 450?. in bis favour; but again showing a balance for him ex- 
 ceeding the former amount "f 1,700/., at the time of the bankruptcy; 
 
 are the payments made subsequently to the partner's death, by the sur- 
 vivors, to be applied in reduction of tin balance due to the customer at 
 that period, so as to discbarge the estate of the deceased pro tanto, or are 
 the)' to be considered as exclusively parts of the dealings between the 
 Burvivors and the customer ? 
 
 Now this question has been settled, once for all, by Sir W. Grant, M 
 R., in a decision which has been universally followed and acted upon in 
 way. 
 
 (m) Lysaght v. Walker, 5 Bli. X. Cas. 1.
 
 APPROPRIATION OF PAYMENTS. 213 
 
 The case of a banking account, where all the sums paid in form one 
 blended fund, the parts of which have no longer any distinct existence, 
 gives no room for any other appropriation than that which arises from 
 the order in which the receipts and payments take place, and are carried 
 into the account. Presumably it is the sum first paid in that is first paid 
 out : it is the first item on the debit side of the ^account, that is p^-o-i 
 discharged, or reduced, by the first item on the credit side. L J 
 
 Indeed, this is the principle, on which all accounts current, and 
 especially cash accounts, are settled ; and any other mode, (as the 
 Master of the Kolls shows,) would lead to extravagantly unreasonable 
 results, (a) 
 
 If the customer intended that this usual mode of dealing shall be 
 altered, or departed from, in any way, it is incumbent on him to signify 
 his intention, to that effect, to the bankers; but if he receives his 
 account as drawn out, as one unbroken running account, and makes no 
 objection to it then it being the usage in the banking trade, to consider 
 silence, on receiving an account made out, to signify the customer's 
 acquiescence, in the correctness of the account in all respects, he cannot 
 afterwards raise any objections. (or) 
 
 The case is strengthened if the customer draws cheques upon the bank, 
 after the death, where there is no fund to answer those cheques, except 
 the balance due to him, at the time of the death; for that is treating 
 such balance, as the fund out of which his cheques, notwithstanding the 
 death, were to be paid ; and thus he furnishes distinct evidence, beyond 
 the inference derivable from the nature of the dealings, and mode of 
 keeping the account, that he gave express authority, that this balance was 
 to be applied to the cashing of his cheques, in the order, in which they 
 were presented. (a) 
 
 There is no difference between the courts of law and the courts of 
 equity, on this question of appropriation ; both adopt the same principle 
 as the ground of their decisions ;(b) and the rule is carried into effect, 
 even where it operates to *the prejudice of a surety; even in pcogQl 
 that case, the earlier items of the account will be those, to which L " J 
 the earlier payments, are to be regarded, as appropriated, (c) 
 
 Distinct Accounts. — It is necessary, however, to keep in mind, that 
 where there are distinct accounts kept, and the customer is overdrawn 
 and makes a general payment, without specifically appropriating it at 
 the time, and there is no course of dealing, or other circumstances, 
 showing clearly how he must have intended to appropriate the pay- 
 
 («) Clayton's ease, 1 Meriv. 608-610, 611. See 4 Russ. 468; 3 Moo. & S. 175. 
 The customer has a right to resort, for payment, of what is due to him, out of the 
 estate of the deceased partner, to that estate, without regard to the state of the ac- 
 count, as between the deceased and the surviving partners. Devaynes v. Noble, 2 
 Russ. & M. 495. 
 
 (b) Bodenham v. Purchas, 2 B. & A. 45. See Simson v. Ingham, 2 B. & C. 72 ; 
 Anon. Cro. Eliz. 68 ; Goddard v. Cox, 2 Stra. 1194 ; Bull. N. P. 174 ; Pinnel's case, 
 5 Rep. 117. 
 
 (c) Williams v. Rawlinson, 3 Bing. 71. See Ex parte Sharp, 3 Mont. D. & D. G. 
 490, where the bankers knew of the customer's act of bankruptcy before they took 
 the security, the guarantor being ignorant of it.
 
 2U ,: R A.NI ON T II E L A W F B A X K INC. 
 
 ment,(<2) rtAod is nut a case within the rak we have been stating, which 
 applies (inly in case of a running anbroken account: that is a case in 
 which the hanker may apply the payment to which account he plea-. 
 and he is not bound to d<> it instantly, hut may take a reasonable tim 
 < hi the other hand, if the customer owes the banker, on several accounts, 
 and pays in money, he the customer, has a right to say at t/n time, to 
 which debt the payment shall he applied, (e) 
 
 Partnership. — Surviving partners in a bank, may on the death of a 
 partner, object to continue an account with a customer, as one unbroken 
 account; and it is no proof that they have elected to treat it," as a con- 
 tinuance of the old account, to show entries in the bank books to that 
 effect, if they were not, at the time communicated to the customer.(e) 
 
 The same principle applies when the partnership expires : thus, 
 Brooke, a lieutenant-colonel in the army, employ- one Gilpin, as army 
 r*-->sn agent and banker, to receive his pay and *allowauces, and also 
 L ~ c -I dividends on his stock, and other moneys on his account, and 
 from time to time, to make payments to him or his order, for which pur- 
 pose he was in the habit of drawing on Gilpin, who from time to time, 
 sent in his account, to the employer. 
 
 Brooke continued to employ Gilpin, in this way, from some time be- 
 fore the year 1807, down to the year 1819, when Gilpin became bank- 
 rupt ; no rest was being made, or balance struck in the account after 1st 
 July, 1816; and during the whole period of the account, there was 
 always a considerable balance due to Brooke. 
 
 OnlMth September, 1SI)7, Gilpin entered into partnership for a period 
 often years, with one Enderby, but the business continued to be trans- 
 acted in the name of Gilpin alone, and Brooke had no notice or know- 
 of the partnership until after the bankruptcy of Gilpin ; and the 
 receipts and payments prior and subsequent to 24th September, 1817, 
 when the partnership expired formed part of one general account. 
 
 Then on Brooke bringing an action against Enderby and Gilpin, to 
 recover the balance due to him at the expiration of the partnership, it 
 tras held that (Gilpin having pleaded his bankruptcy,) Enderby was en- 
 titled to consider any sums paid by Gilpin after the expiration of the 
 partnership, as being paid in reduction of the balance, then due to 
 Brooke, and might take credit for them, without giving credit to Brooke, 
 for any sums received after the expiration of the partnership, by Gilpin 
 on account of Brooke. (/") 
 
 The rule is quite settle. 1. On the one hand moneys drawn out on a 
 hanking account, are to be applied to the earlier items on the opposite 
 side of the account. By every payment which he makes the banker dis- 
 charges so much of the debt which he first contracted/^) On the other 
 
 (>/) See wii-., n v. Hirst, 4 B. ft A-l. 766; Stoveld v. Bade, t Bing. 154; Lysnght 
 
 v. Walker, 5 Mi. \. ('a-. 1 : BrOWD v. Ami. r.-.m. 2 Men. 1'. C. 245. 
 
 : tn, i B. ft 0. 72, 15. Entry in the customer's books notevi- 
 
 fthe appropriation by him. Manning v. \\'< terne, 2 Vera. 606. 
 
 (/) Brooke v. Enderby, 2 Bro. ft B. Tonlmln v. 
 
 Copland, 2 Cla. ft I-'. 6 I Scotland v. Christie, 8 Cla. & F. 227, 
 
 ■ I ted l Meriv. 
 
 i<j) Pennell v. Deffel, i De <:. M. * ,; - 391. The rub tether the
 
 LIEN. 215 
 
 hand ; *moneys paid in by the customer, go in discharge of any r*ocoi 
 debt which may be due on the account from him to the banker, L J 
 at the time of his paying in the money ; applying in like manner, any 
 part payment to the discharge of the earlier debt. 
 
 It is equally certain, however, that a particular mode of dealing, and 
 more especially any stipulation between the parties may entirely vary the 
 case. Thus if a bond were given by several persons, including a cus- 
 tomer, to secure bankers against advances which they might from time 
 to time make, to the extent of 1,000?., to the customer : that would show 
 that the amount of it was not to be brought into the account, as one of 
 the items, but that it was to be a continuing security, so that although 
 between the date of the bond and the failure and bankruptcy of the cus- 
 tomer, the balance in his favour had been larger than the amount due 
 upon the bond, for principal and interest, that circumstance does not 
 show that the sum in the bond is to be taken as paid oif ;{Ji\ and the 
 same might be the case, though the bond were not so worded, but if the 
 conduct and expressions of the parties were such as to show that a con- 
 tinuing guarantee was contemplated. (7t) 
 
 Legal Items. — If there be a running account between the customer 
 and the bankers, and the bankers make large advances to him, part 
 of these advances arising out of illegal and part out of legal transac- 
 tions, and the customer, from time to time deposits bills and makes pay- 
 ments, without any specific appropriation, or any settlement of- the 
 account ; it will be held that the payments must be applied to the reduc- 
 tion of the earlier items of the account, and the legal, and not the illegal 
 part of the demand. (A 
 
 *CHAPTEK IX. [*283] 
 
 LIEN. 
 
 With respect to questions of lien, the following may be stated, as, 
 for the most part, indisputable propositions : — 
 
 The general lien of bankers is part of the law merchant, to be judicially 
 noticed, like other parts of that law. (a) 
 
 Securities for Special Purposes. — A banker's lien does not attach, on 
 securities, placed in his hands for a special purpose, ex. gra., where 
 exchequer bills are deposited, in order that he may receive the interest 
 on them, and get them exchanged for fresh bills ; for such special pur- 
 pose is inconsistent with the notion of a general lien, inasmuch as the 
 bankers undertake to do, what is usual for bankers to do, as regards the 
 
 account is kept with the customer, as regards his own money, or that of a cestui 
 que trust ; S. C. 
 
 (h) Henniker v. Wigg, 4 Q. B. 792. 
 
 (i) Ex parte Randleson, 2 Deac. & C. 534 ; Wright v. Laing, 3 B. & C. 1G5. 
 
 (a) Brandao v. Barnett, 12 Cla. & F. 787, 802, 806, 808, 810.
 
 216 GRANT UN THE LAW OF BANKING. 
 
 exchequer bills ; in other words, they agree to return the bills, (or to do 
 
 what is equivalent to returning them,) as b i as the particular thing, 
 
 for which the bills hare been intrusted t" them, has been performed 
 Now, an undertaking to return a thing, by a given day or hour, is mani- 
 festly inconsistent with the claim of a genera] lien on the thing, by the 
 party undertaking. It is acoording to the same principle, that if a 
 customer goes to his banker, requesting him to get a bank post bill, for 
 the purpose of transmitting into the country 1,000/.. which he hands 
 over to him in bank notes, the banker, unless he expressly states that 
 he receives the notes, only subject to his lien, lias no right to retain, or 
 apply them, to any ether purpose than that tor which he receives them. 
 ... But, unless there be an express contract, or circumstances 
 L ~ -I ^showing an implied contract, inconsistent with the principle of 
 lien, bankers have a general lien on all securities deposited with them, 
 (/*• bankers, by their customers. (a) 
 
 Plate. — Accordingly, bankers have no lien, for the balance of their 
 account, against a customer, on his plate, deposited in his chest, with 
 them, for safe custody.(i) 
 
 Trust Deeds. — Xor can bankers carry into effect any lien, which they 
 may prima facie have, upon securities deposited with them, which are, 
 in fact, trust deeds. Thus, if a customer deposits title deeds, as a 
 security for advances, and the property comprised in the deeds is subject 
 to a. trust, in breach of which the deposit is made, then, although the 
 bankers have no notice of the trust, it must prevail, against their fien.(c) 
 
 Mistake. — Xor has a banker any lien on securities, by mistake, or 
 casually', left at the bank, upon the occasion of an application to him, to 
 advance money on them, which he had refused to doj(t?) and if a 
 customer has deposited securities, with his bankers, to indemnify them, 
 to the extent of 1,000/., then advanced by them, and afterwards becomes 
 indebted to them, in an additional sum of 500?., on his running account 
 with them, they have no lien on these securities, beyond the 1,000/., 
 and interest. (< ) 
 
 r*.->or-\ Shares. — Again, in such a case as the following, tin; ^bankers 
 L J have no lien. A., one of the trustees of a fund, holds certain 
 shares, in a banking company, in his own right, and deals with, and 
 purchases shares therein, to a considerable extent. A portion of the 
 trust fund is invested, in shares, in A/a name. There was no distin- 
 guishing mark, by which the individual shares could be traced, the whole 
 being in tin? nature of capital, expressed by terms of quantity. A. then 
 
 agrees to assign a certain number of the shares, standing in his name, 
 to the banking company, a- Beouritj for repayment of advances, which 
 
 (a) Sec note fa , previous | 
 
 Sec argu. K\ parte Eyre, l Phill. Oh. B. 235 ; also 1 '-' Ola. & F. 794, 797; 
 P<r Lord Campbell, Brand ao v. Harnett, 1^ (la. .v. F. 809; and see O'Connor v. 
 Majoribanks, I M. .v Gra. 435. A- to right t.. in peel contents of chest of heir 
 loom-, fcc., Karl of Macclesfield \. Davies, 3 Vea. & \'>. L6. 
 
 Kanningford v. Toleman, 1 Coll. Ch. K. 670. See Moore v. Jervis. 2 Coll. 
 Ch. K. 60. 
 
 Lm b i . Dorrien, 7 Taunt. 279. 
 
 v. Willi--. 3 Hie. Oh. 0. 21 : Zinck v. Walker. J W. Bla. 1154; 
 gee A.-hton v. Dalton, 'J Coll. Clia. K.
 
 LIEN. 217 
 
 had been made to him, by them : but no formal transfer was ever made. 
 A. then becomes bankrupt, not having in his ownership, at the time, 
 a sufficient number of shares, to satisfy the trust, and also to execute the 
 agreed assignment, to the banking company. 
 
 Here the banking company have no lien, on any of the shares, which 
 A. had held in trust; and though the shares held in trust, being origi- 
 nally purchased with trust money, possibly might have been dealt with, 
 by sale and repurchase ; the trustee must still be considered as holding, 
 for the purposes of the trust, the same number of shares out of a larger 
 number, which stood in his name at the time of the bankruptcy : and 
 of the two equities, that of the cestuis que trustent, and that of the bank- 
 ing company, — no actual assignment of the shares having been made, 
 pursuant to the agreement, — the former prevails, following the same rule 
 in this, as we have seen adopted in other instances, and the cestuis que 
 trustent are not bound to give notice of the trusts to the bank.(/) 
 
 On the other hand, as regards any shares in which A. was beneficially 
 interested, the agreement to assign would give the banking company an 
 equitable lien upou them as security, *so far as they would pr^g-i 
 extend for advances to A., as against A.'s assignees on his bank- L J 
 ruptcy.(^) 
 
 Nor can it be successfully argued, that, in case of a shareholder of a 
 banking company, being a joint stock company, the shares are the sub- 
 ject of lien, in favour of the banking company, on the ground that the 
 shareholder being a partner, then, in case he is indebted for advances, 
 or might be found to be indebted, upon winding up and balancing the 
 accounts, the bank have a right to retain the shares in order to secure 
 themselves. (A) Even in the case of a common partnership, such a 
 doctrine is to be taken with very great allowance; because, in such 
 case, there must be a winding-up and dissolution, before you can tell 
 what one partner owes to another. But the very object of a joint stock 
 bank is, to enable persons to enter and quit the concern, without the 
 necessity of a winding-up or dissolution, and when you cannot tell how 
 the account may stand between the parties :(h) and, therefore, in the 
 absence of special provision in the deed of settlement, one of the share- 
 holders borrowing of the bank, is put in the same position as any other 
 customer. (Ji) 
 
 It appears not to be disputed, that the right which, by the deed of 
 settlement, the directors of a joint stock banking company may have, 
 of objecting to the transfer of shares cannot be exercised, for the pur- 
 pose of exacting payment of a debt due to the bank, from the shareholder, 
 whose shares are proposed to be transferred. (V) 
 
 ( /) Murray v. Pinkett, 12 Cla. & F. 764 ; the certificates of the shares were in- 
 dorsed, "160 Irish Provincial Bank Share Certificates ; name, John Wright, Esq., 
 in trust for J. Johnson," id. 779. See 2 Hare, 127, 132. 
 
 (g) Murray v. Pinkett, 12 Cla. & F. 780, 781. See S. C, 2 Hare, 120, 127, 129. 
 The shares held on trust could not pass to the assignees ; see 12 Cla. & F. 782. 
 
 (h) 12 C. & F. 783, 784; see 2 Hare, 120, 130, 131. 
 
 (i) Pinkett v. Wright, 2 Hare, 120; Ex parte Caldecott, 2 M. D. & D. U. 388, 
 per Lyndhurst, C.
 
 21S SB ANT ON THE LAW OF BANKING. 
 
 In the following case, from somewhat different facts, a different con- 
 clusion was drawn. 
 
 One of the provisions of the settlement died of a hanking company, 
 was, that the company should have a lien on the shares of such proprie- 
 r*987i ^ ors > a * were ( -' ustulnr1 *"' and indebted *to the bank, and that do 
 L J share should be transferred, without the consent of the directors. 
 An abstract of these rules was indorsed on the certificate of each share. 
 
 In such a company the Bhares of indebted customers do not pass to the 
 assignees of the customers, on their bankruptcy, so as to defeat the lien 
 of the bank. (A-) 
 
 In case, however, there had been no rule requiring the order of the 
 directors for the effectual transfer of shares, and no stipulation for lien, 
 <S:c., so that an owner would have had unrestrained power of disposing of 
 his shares; there the shares would have been considered to be in the or- 
 der and disposition of the owner at the time of his bankruptcy, and to 
 pass to his assignees accordingly. (/) 
 
 Trust Moneys. — But a transaction, such as the following, gives a suffi- 
 cient lien. 
 
 The trustees of a trust fund have an account with the East of England 
 Joint Stock Banking Company, as such trustees. One of the cestuis que 
 trustent has a private account with them, which is much overdrawn ; 
 upon their agreeing not to press for the reduction of the balance against 
 him, he offers to give them a lien on the moneys coming to him in re- 
 spect to his share of the trust fund : and to this they agree. Accord- 
 ingly, he addresses a letter to one of the trustees, authorizing and re- 
 qnesting him to pay, to the credit of his (the cestui que trust's} account 
 with the bank, such sums as might be awarded to him out of the trust 
 fund. This was held to give the bankers a valid lien upon the proceeds 
 of the fund, and being intended, by both parties, at the time it was given 
 and received, to be irrevocable, must be considered in equity to be so to 
 all intents and purposes. (m\ 
 
 j-^oqq-i *Bit/s of Exchange. — So if a customer lodges undue bills of 
 L , 6 -I exchange in the hands of his banker at Bristol, and draws upon 
 them for any money he wants, in advance, the banker charging no in- 
 terest on these advances, but selecting out of the bills such as were near- 
 est in amount to the sum advanced and discounting these, debiting the 
 customer with the amount of such discount, in his account, but without 
 any special agreement to that effect; then there is nothing in these cir- 
 cumstance to invalidate the banker's right of lien, for his balance, on 
 all other bills placed in his hands by the Gustomer,(n) besides those that 
 he discounts; and it seems to be universally true, that a customer can- 
 not get back paper gecurities, in his banker's hands, without paying the 
 
 (!;) Ex parte Plant, 4 Deac. k 0. 160. 
 
 (/) Nelson v. London Assurance Company, 2 Sim. & S. 292; see 4 Deac. & C. 
 166. 
 
 (m) Eh parte Steward, 3 M. I». >v D. G. 265. 
 
 (n) Iii-,:- 7. Bowsher, 5 T. R. 188. Tie- seems to have been the general d 
 of bankers, a< Bri tol, about the year 1794 ; but the court disclaimed decidii 
 the particular local a
 
 LIEN. 
 
 219 
 
 balance against him, unless there be some special contract between the 
 banker and the customer. 
 
 Title Deeds. — A., being entitled to one-third part of some freehold 
 property, in his own right, and to another third part as heir at law to 
 his brother, deposits the title deeds of the property with his bankers, as 
 security for advances. The personal property of the deceased brother, 
 who was a trader subject to the bankrupt laws, was insufficient to dis- 
 charge his debts, and therefore his third of the property became, by 
 virtue of a statute then in force, 11 Geo. IV. and 1 Will. IV. c. 47, s. 
 9, assets for the payment of his debts. 
 
 Nevertheless, it was held, that the banker's lien extended over both 
 thirds of the property, in preference to any claims of the creditors of A.'s 
 brother, (o) 
 
 Partnerships. — Bankers have no lien on the deposit of a partner, on 
 his separate account, for a balance due to the bank from the firm.(p) 
 
 * Exchequer Bills. — The rule is so strong, as regards the lien r-^noq-i 
 on securities, which come into the bankers' hands, without being L ^ J 
 appropriated to any special purpose, or intrusted to them for safe cus- 
 tody, or the like, that it attaches on bills and notes payable bearer, or on 
 exchequer bills which pass by delivery, although the customer deposit- 
 ing them were not the real owner, and had no authority to saddle the 
 property in them with a lien. (2) 
 
 Promissory Notes. — On the other hand, if I deliver promissory notes 
 to a person to get discounted for me, and he carries them to his banker 
 for that purpose, but the banker insists upon placing the notes to 
 the credit of the customer, whose account shows at the time a balance 
 against him, the banker will be obliged, in ecpiity, to account to me.(r) 
 
 If bills of exchange be deposited, indorsed, with the bankers, they 
 have the absolute power of disposing of them; if the bankers become 
 bankrupt, although the customer may recover such of the bills as re- 
 main in specie, subject to the bankers' lien, for the balance of his ac- 
 count, yet he cannot follow the proceeds that may have been converted 
 to the bankers' use.(s) 
 
 Realizing Lien. — Little has been decided to illustrate how the law 
 provides that the banker is to realize and make productive his lien on 
 securities, &c. 
 
 In case of any negotiable security, which comes to his hands on ac- 
 count of a customer to whom the banker is in advance, he has, as has 
 been said, a lien or power of detention ; and in order to make such 
 
 power productive, he may *put the negotiable instrument in suit,(/) 
 
 [*290] 
 
 (0) Ex parte Baine, 1 M. D. & D. G. 492. 
 
 (p) Watts v. Christie, 11 Beav. 546. 
 
 (q) Barnett v. Brandao, 6 M. & Gra. 630. 
 
 (r) See Lord Bolingbroke's case, stated by Lord Redesdale, G, Irel., in Joy v. 
 Campbell, 1 Sch. & L. 346. 
 
 (s) Ex parte Pease, 1 Rose, 232 ; Ex parte "Wakefield Bank, id. 243 ; see 19 Ves. 
 25, S. C. It is considered a discreditable thing for bankers to carry into the mar- 
 ket bills which are specially indorsed, id. 251 ; and see Ex parte Leeds bank, id. 
 254; Ex parte Twogood, 19 Ves. 229. 
 
 (t) Bolland v. Bygrave, Ry. & M. 271 ; Bosanquet v. Dudman, 1 Stark. R. 1.
 
 220 .RANT ON THE LAW OF BANKING. 
 
 and recover upon it so niuch as will coyer the balance due to him from 
 the customer- («) 
 
 But, instead of advancing their remedy, bankers will destroy their 
 right of lien, if after lien has been established they take a security, 
 which is payable nt <> <Ii*ttmt day, for the debt.(x) 
 
 [*291] CHAPTER X. 
 
 PARTNERSHIPS AT COMMON LAW. 
 
 Many ijuc-tions arise in banking transactions, which arc governed by 
 the rules relative to partnerships, which prevail at common law. We 
 shall at present consider, as well such questions as seem to be of import- 
 ance to private banks, carrying on business in partnership, or under a 
 firm, as such as usually arise in the business of, and as are of import- 
 ance to bankers, of whatever class, who deal with firms of partners, as 
 customers. 
 
 Cases respecting copartnerships in banking, under 7 Geo. IV. c. 46, 
 as they stand upon different and special grounds, have been treated 
 apart ; and the same has been done with respect to joint stock banking 
 companies. 
 
 Bankruptcy. — Three persons carry on business as bankers, in partner- 
 ship, being interested in the concern in definite, but unequal proportions. 
 The firm becomes bankrupt, but eventually both the joint and separate 
 debte arc paid in full, with interest. In order to accomplish this, how- 
 ever, the assignees sell real estates of one of the firm, to a large value, 
 and on the whole, he contributes to the losses of the firm, upwards of 
 16,000?. beyond bis proportionate share. Part of the estates were sold 
 in bis lifetime; part were contracted to be sold, but were not actually 
 sold, at the time of his death ; the remainder were sold after his death, 
 and a surplus remained in the hands of the assignees. He died intes- 
 tate ; and his heir at law took out letters of administration. 
 
 Sir John Leach, M. 11., held the real estate sold, or contracted to be 
 
 nnn-i sold, in the lifetime of the deceased partner, : must, at bis death, 
 L "' J be considered as converted into personalty : but the real estate, 
 which was unsold and uncontracted for at the death, descended to the 
 heir, subject to the charges created bv the bankrupt laws; and the sur- 
 plus moneys in the hands of the assignees, in the amount of the pro- 
 duce of the property sold since the death, belonged to the heir, with 
 interest, (a) 
 
 (m) Scott v. Franklin, l.". I. The li' d is only, at most, co-extensive with 
 
 ilance due, per Byre, 0. J., Bolton v. Puller, 1 Bos. & P. 546; see Giles v. 
 Perkins, 9 Bast, L2. 
 
 (/) Cowell v. Simpson, 1G Ves. 278; SewisOD v. Guthrie, 3 Scott, R. 311: see 
 
 •axon v. Blakelock, 1 Man. & S. 535. 
 (a) Banks v. Scott, 5 Madd. 493.
 
 PARTNE11SHIPS AT COMMON LAW. 221 
 
 Acts of. single Partners. — One of the partners in a bank causes stock, 
 belonging to a customer of the bank to be sold out, by means of a power 
 of attorney, which he forges. The proceeds of the stock were paid to 
 the account of the banking firm at the house of the bank's agents, and 
 were appropriated by the partner, who was afterwards found guilty of 
 other forgeries, and hanged. His partners were in fact ignorant of the 
 fraud, but might have known it by the exertion of common diligence. 
 The customer was held to have an action against the partners for the 
 amount. (b\ 
 
 Also, in such a case, Courts of Equity, for the protection of those 
 who deal with partnerships, impute knowledge, and hold the firm to be 
 individually liable, (c) 
 
 So it has been laid down, that if one partner in a banking house col- 
 lude with a member of a trading firm, in a transaction connected with 
 the business of the bank, the banking firm are liable to the trading firm 
 for any damages which the latter may have suffered by reason of such 
 transactions. The plaintiffs, Longman & Co., booksellers, &c, banked 
 with Pole & Co. On a certain day, Hurst, a partner in the plaintiff's 
 house, sent cash to the bank, in order to take up three bills of exchange, 
 accepted by him in the name of the firm, and coming due next day. 
 The bills were taken up, but, by Hurst's order, were not entered in the 
 books of Longman & Co. About the same period, it ^appeared r * 9cm 
 in evidence, Downes, a partner in the bank, told one of the L J 
 clerks that a bill of Longman's would come in on such a day, which 
 was to be paid, and given over to him (Downes,) and that he was to 
 debit Hurst with it in the note hook, in which private transactions were 
 entered, so that it might not go into the ledger. Downes soon after- 
 wards gave a similar direction, respecting another bill of the same kind ; 
 and these bills were entered into the note book accordingly, and the cash 
 payments were entered in the same book to Hurst's credit, and conse- 
 quently, no trace of these transactions appeared, either in the pass book 
 of the bankers, or in the cheque book of Longman & Co. Hurst after- 
 wards retired from the partnership, receiving the full amount of his 
 capital, and became bankrupt. Longman & Co. were subsequently 
 obliged to pay bills accepted by him in the name of the firm, to a very 
 large amount. An action was considered to be clearly maintainable by 
 Longman & Co. against Pole & Co., in respect of the damages arising 
 to the former, out of the collusion of one of the latter firm with 
 Hurst, (d) 
 
 Where one of several partners in a banking-house drew a bill in his 
 own name upon a third party, who accepted it, upon condition that the 
 drawer should provide for it when due, the firm were adjudged to be 
 bound by this act of the partner, and they were not allowed to sue the 
 acceptor ; for the partner, not having performed the condition on which 
 the acceptor accepted, could not have done so, and they could not be in 
 a better position than he was.(e) 
 
 (b) March v. Keating, 2 Cla. & P. 250. (c) Sadler v. Lee, 6 Beav. 324. 
 
 (d) Longman v. Pole, Danson & L. 126 ; S. C, Moo. & M. 223. 
 (<?) Sparrow v. Chisman, 9 B. & C. 241.
 
 222 CRANT ON THE LAW OF BANKING. 
 
 One of Beveral partners, on reoeiving twenty shillings from a person, 
 hands to him a ticket in the Double Exchange Lottery, undertaking to 
 
 pay over to him whatever benefit should turn up uu it; the ticket oomes 
 up a £40 benefit \ the partner refuses to pay over; the firm are held to 
 
 a- ... he liable ; the transaction being in the ih> n usual course of *busi- 
 L ~ l J ness, and there having been no disclaimer of the partner's act. (f\ 
 This decision turns on the principle of law by which all the firm are 
 made responsible for the particular undertakings or contracts of each. 
 relating to business transacted by the linn; and this is the ease, even 
 where the business, so transacted, is out of the regular course of the 
 bankers' business, the circumstances being such as to bring the under- 
 taking or contract within the scope of the authority of the partner, who 
 undertakes or contracts. (y) Thus, where a customer of A. and B., who 
 were in partnership, as navy agents, employed them to purchase an 
 annuity fur him; but A., unknown to 15., guaranteed the punctual pay- 
 ment of the annuity : it was held that B. was bound by the engagement 
 of A., since both were acquainted with the fact of the purchase of the 
 annuity, although it was out of the regular course of the business of the 
 firm, [g) 
 
 It has long been understood to be an absolute rule, that one partner 
 has not power to bind the partnership by deed, in the absence of autho- 
 rity^//] and as it may, and does sometimes become a question, in cases of 
 deeds of composition with creditors, and other cases, how far a deed, 
 executed by one, in the name of the firm, is binding on the partnership, 
 it maybe desirable to remind the reader of several points relative to this 
 question. 
 
 1. At law, the above rule seems to remain unshaken. 
 
 2. In equity, it has been held in one cast, that one partner, having 
 always authority to contract by simple contract, on behalf of the firm, 
 may so contract, that the firm shall execute a deed, &c, and that if that 
 one execute the deed, then, though the other partners expressly refuse, 
 the obligee may prove in bankruptcy against the joint estate, (i) 
 r*-">-"-| *3. Also it has been held in equity, that a deed commencing 
 L " J "Know all, &e., that we, Mayne and Co., of, &c., are held and 
 firmly bound," &c. ; and of which the condition was such, "that if the 
 above bounden Mayne & Co., their heir-, executors, or administrators, 
 shall and rln well and truly," <.Y.c. ; and which was executed, by one of 
 the firm only, but he executed with the privity of the other partners, 
 who weir all present at the execution, (/.-) — bound the partnership. 
 
 (/) v. Layfield, Balk. 292 : Bee I Stark. 11. 88. 
 
 (a) Sandilande \. March, 2 B. ,v A. B79j Bee Brettel v. Williams, 4 Exch. C25; 
 and gee 3 B. Ld 
 
 (h) Harrison v. Jackson, 1 T. K. 207. 
 
 (i) Ex parte Bosanquet, De <i. Hank. R. 432. 
 
 (k) Hum v. Burn, 3 Ves. 573 : Bee I Meriv. 720, and Jones \ . Mars, 2 Camp. 305. 
 The question, whether the execution, al the banking-house, by one of the partners, 
 thus, •■ For -'11' and partners, B. Q-, Smith," there being no ei Ldence of any express 
 ■ or die 'Hi of the rest of the firm, bound the firm, the deed thus executed 
 being a deed of inspectorship between a d< btor and his creditors, so as to operate 
 charge a surely, aro?e. bul m& aol de< ided, in Smith v. Winter, 4 M. & W. 
 454.
 
 PARTNERSHIPS AT COMMON LAW. 223 
 
 One of several partners in a banking house dies; a customer, two 
 months after the death, having notice thereof, draws a cheque, on the 
 house, in the name of the old firm, which was paid to the bearer ; no 
 other receipts or payments took place, until the bankruptcy of the 
 partnership, nine months after the death, under which the customer 
 proved for the balance remaining due to her, and received dividends 
 thereon, which* reduced the debt to £21G; the question was, whether, 
 for this amount, the deceased's estate was liable. 
 
 Now, a partnership contract, being inform only joint, is held to pro- 
 duce only a joint obligation, which consequently attaches exclusively 
 upon the survivors. (I) By the mercantile law, that is, according to the 
 prevalent ideas of obligations and rights, governing the commercial law 
 of Europe, a partnership contract is several as well as joint. (inj As to 
 equity, the doctrine laid down formerly seems to have been, that the 
 creditors of the firm had no claim against the estate of the deceased 
 partner, except when the surviving partners were, at the time, or subse- 
 quently ^became, insolvent or bankrupt. (») But this view has r#2Q«-i 
 long been departed from. It is now held in equity, that part- L " J 
 nership debts are joint and several ;(o) and in a suit by a creditor of the 
 firm, against the representatives of a deceased partner, and the surviving 
 partner, the creditor is entitled to satisfaction out of the assets of the 
 deceased partner, though it be not proved, that the surviving partner 
 was insolvent ;(o\ and there being no difference in principle, between a 
 banking partnership at common law, and any other partnership, and no 
 new contract arising from the customer leaving the money in the bank, 
 after the death, the customer was held entitled to receive the balance 
 above mentioned, from the deceased's separate estate. (?) 
 
 Under the circumstances already mentioned, it was laid down also, 
 that the partnership having wrongfully sold some exchequer bills, de- 
 posited with them, in the lifetime of the deceased partner, and presuma- 
 bly with his privity, the transactions being entered in the books, and the 
 death of the partner not taking place until five months afterwards, and 
 the produce being applied to the use of the house, the amount became 
 a partnership debt, accruing from the moment they were sold without 
 the consent of the creditor, and interest was allowed at hi. per cent., 
 from the time of the sale. The question, whether or not the individual 
 partners were privy to the sale, was regarded as immaterial. (5) 
 
 So in the same case, it was held that creditors, in respect of stock, 
 standing in the partnership name, which was sold in breach of trust, and 
 
 (I) Sleech's case, 1 Meriv. 564; Story, Partnersh. s. 361 ; Richards v. Heather, 
 1 B. & A. 29. 
 
 (m) Colly. Partn. 404, 2nd edit. ; compare cases, n. (I), supra. 
 
 (n) Colly. Partnersh., 404-408, 2nd edit. ; Story, Partnersh. s. 362. 
 
 (0) Wilkinson v. Henderson, 1 My. & K. 581. If a customer has dealt with a 
 banking house, under the firm of J. Teed, T. Teed & Co., then J. Teed alone can- 
 not, at law, sue for a balance, though T. Teed be a minor. Teed v. Elworthy, 14 
 East, 210. 
 
 (q) Clayton's case, 1 Meriv. 579, 580 ; see Reg. v. Strahan, supra, 148. 
 
 February, 1857. — 16
 
 224 <i R A N T ON THE LAW OF BANKING. 
 
 tlu- proceeds applied to the ose of the house, were entitled as against tin 
 estate of the deceased partner, either to regard the amount as a debt, or 
 
 r*-?o-i tn have : t '"' st «"'k specifically replaced, at their option; and the 
 L "" '-I same would he ruled it' the stuck stood in the name of one part- 
 ner only, and was sold by him only, the proceeds going as hefore, to the 
 use of the house. (r) 
 
 So in tin- same case, it was held that exchequer hills, having heen de- 
 posited by a customer, under an agreement to return them, or other hills 
 in lieu of them, when paid off by the government, and the bills were 
 <o\d, some in the lifetime of the deceased, and others after his death, the 
 deceased's estate was not liable in respect of the amount of the latter 
 debt.(N) 
 
 A lady having an account with a banking house, consisting of several 
 partners, was advised by one of thejn to dispose of certain Dutch bonds, 
 of which she was possessed, and to place the proceeds on better security; 
 he suggested also that the money should be lent to his son. In this plan 
 the lady acquiesced, in consequence of the great confidence she had in 
 the firm, and gave the partner a cheque upon the bank, for the money, 
 payable to a third person named, or bearer, and received a promissory 
 note for repayment, with a guarantee from the partner, who afterwards 
 d'M-onded, and the security proved worthless. 
 
 On the lady filing a bill in equity againsl the remaining partners, it 
 held that they wore not liable for the loss, because the transaction 
 was not within the scope of a banker's businesB, and was not recom- 
 mended or sanctioned by the other partners/*) 
 
 In the following case, where the person obtaining the money was sole 
 manager, not partner, a court of law decided differently. The wife of 
 a person resident abroad, herself resident in England, had a "deposit 
 account" with a joint stock bank; the arrangement being, that a eusto- 
 r*?Q«i mer > nav i n S sucn an account, never drew cheques, but the bank 
 L -* J *gave ><a deposit receipt," when the money was lodged, and the 
 customer might, at any time on presenting the receipt, with his name 
 indorsed on it, obtain his principal ami interest, up to the day of repay- 
 ment. The manager represented to her, that the bank had an equitable 
 mortgage on Borne houses, <V'-., subject to a mortgage for 4002., and ad- 
 . ised her to purchase the houses for 5952. ; 4002. to be paid in disci 
 
 of the i tgage, 1952. to the bank. Eer accounts with the bank 
 
 showed 7752. in her favour at that time. < Hit of this, the adviser being 
 manager of a branch hank, where none of the members of the company 
 resided, drew oul of the bank 5952., by presenting the deposit receipts 
 indorsed, \<-., ,-it the counter, s fresh d< i". -it receipt for L802., the bal- 
 ance remaining due for principal and interest, being handed to the cus- 
 tomer. The manager absconded with the money. 
 
 When the customer sued the bank, although it was urged that t 1 * I - 
 transaction was Dot within the Boope of banking business, and that the 
 
 »e, l Meriv. 611, 612. Hoolton'e case, l Meriv. GI6. 
 
 Bishop v. Countess of Jersey, 2 Drewry, 143 j 8. C, 23 L. J., Chanc. 483 ; 
 I bompson v. Bell, in Bxch. 11.
 
 PARTNERSHIPS AT COMMON LAW. 225 
 
 manager was not authorized to sell property of the bank, the jury found 
 the manager to have intended to make the plaintiff believe, and that she 
 did believe him to be acting as agent to the bank, and the court, there- 
 fore, held the bank to be responsible for the money. (q) 
 
 A testator was member of a partnership, at will, in a bank ; there 
 being no provision entitling the executor of a deceased partner to an 
 interest in the good -will of the concern. It was stated that the credit, 
 in which the bank was, at the time of the death, was so good, from the 
 well-known wealth of its members, that it was unnecessary that the part- 
 ners should retain, at the banking house, any considerable surplus of 
 assets, above the liabilities; and in fact the whole assets of the partner- 
 ship, then and for some time previously, exceeded the liabilities by a 
 small amount. The bank was a bank of issue, as well as of deposit ; and 
 the *profits of the partnership arose from the employment, at in- r* 9 ng-i 
 terest, by way of loans, to customers, on overdrawn accounts, and «- -I 
 otherwise, and investment in other modes, of moneys placed in their 
 hands, by way of deposit, and of the amount of their notes in circula- 
 tion. 
 
 Each of the partners was entitled to one-third of the assets of the 
 partnership, and liable to the payment of one-third of the liabilities 
 thereof. 
 
 The testator's share in the assets at his death, was much exceeded by 
 the balance of his account as a customer with the bank, and due from 
 him to the concern. After his death, the surviving partners admitted 
 into the firm his son and executor ; but they did not admit him as exe- 
 cutor, and the business continued to be carried on as before the death, 
 without any separation or appropriation of the partnership assets, as they 
 stood at the death. 
 
 In a suit against the executor for the administration of the testator's 
 estate, the Court of Chancery held him not to be accountable to the tes- 
 tator's estate for the profits which he had received as a partner; in fact, 
 deciding that the good-will in the bank, placed in the circumstances 
 above detailed, having, in fact, no capital, and the testator having died 
 indebted to the bank, was worth nothing, (r) 
 
 After the testator's death, a number of notes of the old firm were re- 
 issued. By the notes so re-issued, however, it is not to be assumed that 
 the testator's estate would have been bound ; most probably it would not; 
 on the other hand, it is probable these notes obtained currency, in some 
 degree, from the use of the testator's name upon them. 
 
 The case was said, by Lord Justice Turner, to involve questions of 
 very great importance, (which the court on that occasion were not called 
 on to decide,) as to what is to *be considered as capital of an out- i-^qq-i 
 going partner, with reference to a banking concern. (s) 
 
 Partnerships in other Firms. — A question sometimes arises when 
 several partnerships are carried on under the same name, but having, in 
 
 (q) Thompson v. Bell, 10 Exch. 11. . 
 
 \r) Simpson v. Chapman, 4 De G. M. & G. 154 ; the delay in making the claim 
 was, in some degree, relied on by the court, 
 (s) 4 De G. M. & G. 169, 170.
 
 226 ('.RANT ON THE LAW OF BAN KIN & 
 
 •'ict. separate businesses and concerns ; and bills drawn under the name 
 of the firm, common to them all, but in whioh, for sonic of the purposes 
 :ill of the partners of the Beyers] partnerships are not members, arc dis- 
 oounted by the bankers; then against whom are the bankers to proceed 
 in case of dishonour ''. 
 
 Now, if a linn of A. & Co. trades in the above manner, and the part- 
 aership name and style or firm appears pledged to a bill, all the partners, 
 whoever they may be, and whether known or secret partners, will be 
 bound, supposing the case to be free of facts operating to impeach the 
 title of the party who seeks to charge them.(£) This is a well-established 
 law. Bence, where a bill was drawn in the name of " James King & 
 Co.," and an indorsee sued on it, a person who was a partner in that 
 firm, and it also appeared that there were other partnerships carried on 
 under the firm of " James King & Co.," in which the other drawers of 
 the bill were coucerned, but in which the defendant had no share there; 
 although he offered to show the bill to have been drawn, not on account 
 of the partnership in which he was concerned, but on account of one of 
 the others, and that he knew nothing of it, he was considered to be liable on 
 the bill ; for he had traded with the other partners, under that firm, and 
 persons taking bills under it had a right to look to him for payment, 
 although they had taken without his knowledge. The defendant was sued 
 alone, because the other partners had become bankrupt. (h) 
 ... , . , liven if the several partnerships do not trade, generally, *under 
 J one name, but conduct a particular business, apart from their 
 general trade, in respect of which they negotiate bills under one name, 
 which is that of one of the firms and not of all the firms collectively, the 
 jame holds good. 
 
 Thus, in the instance of a Scotch case, which was finally disposed of 
 in the Eouse of Lords. Hugh Mathie & Co. carried on trade as a part- 
 nership at Greenock. Another branch of trade was conducted by Mathie 
 and Fleming, between that place and Nassau, New Providence; Fleming 
 having no share in the partnership of II. Mathie & Co. The Nassau 
 trade was carried on at (ireenock by Hugh .Mathie & Co. ; at Nassau, by 
 one Home; and at London, by Fleming A: Co. Mathie kept separate ac- 
 counts for the concern. 
 
 Certain bills had been discounted at the branch of the Bank of Scot- 
 land, in Greenock, subscribed II. Mathie & Co., and no explanation was 
 required or given at the times of the discounts. 
 
 II. Mathie A: Co. failed, and the agent of the hank, on the ground of 
 his having given credit to Fleming, as included in the firm, made his 
 demand on Fleming. A proof was taken, and the Court of Session was 
 satisfied that Fleming was not a general partner with II. Mathie & Co., 
 hut that hills, having formerly heen discounted under that firm for the 
 ise of the Nassau concern, and sanctioned by Fleming, a credit was 
 raised, entitling bill-holders to rely on his credit, and he was accordingly 
 held to he liable; and the House of Lords confirmed the general princi- 
 
 (t) Bet 1 I'm. <fc J. 318. 
 
 (w) Baker v. Charlton, 1 Peakc, 111 ; see Ex parte Mayor, De G. Bank. R. 632.
 
 PARTNERSHIPS AT COMMON LAW. 227 
 
 pie of the decision ; which seems to be that where several partner- 
 ships, consisting of different individuals, carry on business under the 
 same firm, and enter into negotiable securities under the same signature, 
 the holder of such securities has a right to select which of those part- 
 nerships he chooses for his debtors, though he cannot take all the part- 
 nerships as his debtors. (a:) 
 
 *Two, of three partners, are members of a joint stock bank- p . 9 -, 
 ing company. A joint fiat in bankruptcy issues against their L "J 
 firm, which is jointly indebted, at that time, to the banking company ; 
 which, though itself insolvent, was held entitled to prove against the 
 joint estate of the three partners ;(#) and so it would have been if the 
 firm had consisted of a single member of the banking copartnership.^) 
 
 Two of the partners, carrying on business as the Horseley Coal and 
 Iron Company, also carry on trade — distinctly from the former — as 
 bankers. They are not the ordinary bankers of the company. They 
 lend to the company several sums of money at interest, without security, 
 under circumstances leading to the inference, that the advances would 
 not have been made unless the bankers had been partners in the com- 
 pany. 
 
 On the bankruptcy of the company, it was held (in the absence of evi- 
 dence, except such as the nature of the transaction itself furnished, to 
 show that the character of a banking transaction belonged to it,) that 
 these advances were not made by the bankers in their character of bank- 
 ers, and were not, therefore, dealings between trade and trade, entitling 
 them to prove against the estate of the company, (a) The conclusion 
 that these were not in the nature of banking transactions, does not rest 
 on their unusual and improvident character; that could not deprive them 
 of the nature of banking transactions, if it could be shown aliunde, that 
 they were so. (a) However, it cannot be said, that every thing which a 
 banker does, with money or bills, is a dealing in the trade of a banker, 
 because it is a dealing with money ; although it is true that it is the trade 
 of a banker to deal in and with money. 
 
 *Libel — Bankers, in partnership, may join in maintaining an pgQg-. 
 action for a libel against them, in respect of their business, and L J 
 touching their credit, without disclosing the ratios, or shares, in which 
 each of them is interested in the concern ; for there cannot be, it would 
 appear, any separate damage; the business injured is the joint business; 
 and the libel only affects the partners through their business ; then the 
 defendant has nothing to do with their respective proportions of interest 
 in the business ; it is nothing to him how the compensation they may 
 recover, will be divided among them. 
 
 It was also held, that to say of a banker that he has suspended pay- 
 ment, is actionable; for it is saying that he cannot pay his debts; and a 
 
 lx) See Colly. Partnersh. 271, 272. 
 
 (y) Ex parte Law, 1 M. D. & D. G. 16. 
 
 (2) Ex parte Caldecott, 2 M. D. & D. G. 368. 
 
 (a) Ex parte Williams, 3 M. D. & D. G. 433, 446.
 
 •_;_> URANT ON THE LAW OF BANKING. 
 
 temporary inability to pay debts, is insolveneyj and such action is main- 
 tainable, without Betting out or showing special damage. (6) 
 
 Dissolution. — A linn of partners in banking, agree to dissolve; and a 
 
 dc.d i> prepared and executed, by which two of the firm retire, and the 
 other two members of it stay in the business, taking the concern in its 
 actual state, and covenanting to indemnify the retiring partners against 
 all liabilities. The dissolution ami retirement of the partners took place 
 a- though the partnership was Bolvenl ; hut in law, the concern itself not 
 equal, with its own assets, to the payment of its own engagements, 
 the partnership was insolvent at this time, although the partners might 
 have separate property sufficient to pay the joint debts, and the retiring 
 partners must be taken to have known this; but, nevertheless, either of 
 them having been obliged to pay debts, whioh the continuing partners 
 had indemnified them against, would be entitled to prove for the amount 
 so paid, under aflol against the remaining partners. (c) 
 r*'^n_n * Change of firm. — We may mention here a principle of the 
 L J law r of partnerships, which it is very material for members of 
 banking copartnerships, at common law, to bear in mind, in order, in 
 case of a change, by retirement or death, in the firm, that the position 
 of the retiring partners may be properly secured. 
 
 The principle is thus laid down. If a creditor receive interest from 
 the new firm, for a debt due from the old one, this is not, necessarily au 
 adoption by him of the new firm, as his sole debtors. 
 
 Thus, if the change be occasioned by death, and the creditor of the 
 old firm receive- interest for his debt from the new firm, it is quite 
 char, this fact, by itself, will not discharge the estate of the deceased 
 partner.!'/) 
 
 If the change be occasioned by the retirement of a partner, the same 
 holds good. The following case is an instance in proof: — 
 
 A customer of a bank, consisting of three partners, has a considerable 
 balance in his favour, for which he holds the accountable receipts of the 
 firm. Then one of them retires, and the balance of the customer's 
 account is brought forward into the concerns of the new firm, without, 
 however, consulting the customer; but he knew of the dissolution, and 
 continued to deposit money in the bank, after the new partnership com- 
 menccil business; for which new deposits he had the accountable receipts 
 of the new firm sent to him from time to time; and each time that a 
 balance was struck, the interest upon the whole Bum, as well that part of 
 it which iras deposited before, as that part which was deposited after the 
 new partnership began, was calculated, as npon one aggregate sum with- 
 out distinction, and he applied for and received at various times, several 
 
 Bums of BUch interest from the nen firm, calculated as just mentioned. 
 . ..,,--. Then the mw firm became bankrupt : and upon the customer 
 L J suing the retired partner, for the amount of the balance due at 
 
 </,) Eorster v. Lawson, 3 Bing. 452. 
 
 (c) i I ter, Mont. A M'A. 1. Evidenci of change in firm of In 
 
 bank, Bar! v. Alexander. 2 .M. «v W. 484. 
 
 Daniel v. Cross, to account by representatives of deceased 
 
 survivors, Bee Richardson \. Bank of England, 4 .My. & C. 1G5 ; 
 Tonlmin v. Copland, 3 V & Col. Exch
 
 PARTNERSHIPS ATCOMMON LAW. 229 
 
 the retirement, these circumstances were held not to constitute sufficient 
 evidence of the customer's assent, to transfer the credit from the old 
 firm to the new, and so adopt, as his debtors, the new firm, to the release 
 and discharge of the old.(e) 
 
 If, upon a change of the members, the balances of the customers of 
 the old partnership be transferred from the books of the old firm to those 
 of the new firm, without any special agreement as to the -manner in which 
 payments made by the customers were to be applied, but under a general 
 understanding amongst themselves, that the new house was to be respon- 
 sible for the debts due from the old : the new house cannot appropriate 
 payments made by customers since the change, in their own favour, but 
 will be bound to apply them in liquidation of the balances due from the 
 old firm.f/) 
 
 When a partnership is dissolved by the death of a partner, the 
 accounts of the partnership may be taken in equity, in a suit by the 
 survivors against his executors, or vice versa ; or even in a suit against 
 the executors by the separate creditors of the deceased. 
 
 A., a partner in a banking-house, and also in business separately as a 
 trader, dies, and in a suit by his separate creditors against his executors, 
 the bankers claimed to prove the balance due to them from A. ; and they 
 were held to be entitled to do so, although, as the partnership included 
 A., they could not have sued him at law, in his separate capacity; and 
 the reason is, because, when an account is decreed, the equitable credit- 
 ors have a right to be satisfied, *and no distribution of assets r*QAp-i 
 can take place, until the accounts of all the creditors, of every L J 
 description, have been gone into.(^) 
 
 A corresponding principle applies also, when the firm is changed by 
 admitting new partners : and in such case also, it has been decided, that 
 if a banking firm make payments for a customer, professedly, and as far 
 as they were aware, with his authority : these payments being made to 
 a person who was then acting as the customer's solicitor; but, in truth, 
 these payments were made without authority; and they are debited to 
 the customer in his account, and then the firm takes new partners, and 
 the balance of the account is carried forward into the books of the new 
 firm, but the old account is not closed, nor a new account opened, with 
 the new firm ; — the new firm is not liable to the customer for the amount 
 of such payments, unless there have been an agreement between the two 
 firms and the customer, that the new firm shall take upon themselves the 
 actual liabilities of the old firm.(/i) 
 
 (e) Gough v. Davies, 4 Price, 200. The retiring partner ought to have ob- 
 tained a formal release from the customer; see also 6 Exch. 287, and 15 M. & W. 
 444. 
 
 (/) Toulmin v. Copland, 3 Y. & Col. Exch. 625, thus applying the principle of 
 Clayton's case to cash accounts between partners themselves. S. C, 7 Cla. & F. 
 375. This was a case of navy agents. ^ 
 
 (g) Paynter v. Houston, 3 Meriv. 302 ; see Milford v. Milford, M'Clel. & Y. 150. 
 As to proof of partnership between bank and a colliery, 5 Ves. 308, 309, 696 ; 5 
 Hare, 388. 
 
 (h) Craufurd v. Cocks, 6 Exch. 287. As to presuming that new firm adopt debts 
 of old, Ex parte Sandham, 4 Deac. & C. 818.
 
 230 (; RANT OX THE LAW OF I: A X K I X G. 
 
 Firms at Oust&men, — With respect to dealings by banks with part- 
 nerships, as customers, it seems desirable to state here some of the cases 
 
 if common occurrence, in the hopes that they maybe found available for 
 the guidance of banks in the management of their business. 
 
 Ashby and Rowland earn- on business as partners, having an account 
 with a bank in their own names. They then take one Shaw into part- 
 nership, without, however, giving notice to the bank, or altering the title 
 of their account, and without making any rest in the account. The 
 transactions at the banking-house were with Rowland personally. The 
 . ... _-, bankers never had notice that Shaw had been or was a *partner, 
 L J until the dissolution of the partnership, when notice, signed by 
 Ashby and Shaw, was sent them, that Rowland having withdrawn from 
 the firm, no transaction to which he wa^ a party, could be recognized by 
 them. Before Shaw became partner, Rowland had indorsed a bill of 
 exchange, in the partnership name of Ashby & Rowland, to the bankers, 
 who discounted it, and placed it to the credit of the account. After 
 Shaw became partner, and before the dissolution, Rowland indorsed two 
 other bills in a similar manner, which were discounted, &c, as before. 
 The balance of the account at the time of the dissolution, was £60 5s. 
 •'!</.. against the partnership. The proceeds of all the three bills were 
 intended to be devoted by Rowland to other than partnership purposes, 
 but of this the bankers had no knowledge, and nothing appeared that 
 could have raised their suspicions of it. The question was, how far 
 Shaw was liable to the bankers on these bills, and it was decided that 
 he was not liable on the bill, which was indorsed and discounted before 
 he came into the firm, but he was liable on the two other bills; for it 
 trae Enid that each partner might have limited the authority of his co- 
 partners to bind him, by giving notice to the bankers; he was also held 
 liable upon so much of the cash balance as became due after the day on 
 which he became a partner.^') 
 
 A firm of partners agree that one of the partners shall retire, the as- 
 sets being transferred to the continuing partners, who shall take upon 
 themselves the liabilities, and that the bankers of the firm, (whose ac- 
 count is overdrawn,) shall release the retiring partner. The bankers 
 sign a memorandum, acceding to this arrangement. They cannot after- 
 wards make the retiring partner a bankrupt, on the ground of this debt; 
 for the partner having, by the agreement, to which the bankers were 
 parties, been induced to give up his share in the partnership property, 
 and to denude himself of the means of payment of the debt, it is contrary 
 I *3081 "" ( 'l"' t . v tMat ''"A' *should be allowed to proceed as if they had 
 J never caused him bo to act; and they will be restrained, by in- 
 junction, from so proceeding. (&) 
 
 One of* two partners draw- bills of exchange, in his own name, which 
 he gets discounted by a banker, through the same agent who obtained 
 Prom the banker the discount of other bills drawn in the partnership 
 firm. The banker made no distinction between the bills, conceiving they 
 irere all drawn on the partnership account. The partners resided at 
 
 (i'j V.rr- v. A-hl.y. 10 B. & C. 288. (k) Attwood v. Banks, 2 Beav. 192.
 
 PARTNERSHIPS AT COMMON LAW. 231 
 
 Warminster, the banker carried on business at Salisbury, and was not 
 acquainted with them. The proceeds were remitted, by the above-men- 
 tioned agent, and paid to the partnership account, and applied to the 
 partnership use. But this circumstance was held to make no difference; 
 the only party liable, for the bills, drawn by the one partner, was that 
 partner; the bills, considering the transaction as a discount, were his 
 only ; the partners, as such, had never said or done anything to induce 
 the banker to believe it to be a partnership concern, and to lend his mo- 
 ney on that account ; and, in the absence of any express contract be- 
 tween the parties, it was treated as a mere discount of the bills ; the 
 money advanced being advanced solely on the security of the parties 
 whose names were on the bills, and as a matter of discount, not as a loan, 
 to the partnership. The banker never considered himself as lending 
 money to them on the security of the bills, as he had never made any 
 entry in his books, charging them as his debtors. His discounting the 
 bills amounted, therefore, to a purchase of them.(?) 
 
 If a single joint speculation be set on foot, between A., B. and C, 
 who are not general partners, and each is to contribute his third part, 
 not of the capital, for no joint fund is raised for the speculation, but of 
 the expenses ; and A. was always ready with his advances, and paid his 
 proportions when called upon, A. is not liable to the bankers *of r *qncn 
 B., (who were also the bankers of the joint speculation,) for mo- L J 
 neys advanced by them on the individual credit of B., without the 
 knowledge of A., though such moneys were applied, in payment of bills 
 accepted, payable at the house of their London correspondents, and drawn 
 upon B., in the course of the transactions belonging to the joint specu- 
 lation. (iti\ 
 
 In cases like this, the bankers, when the real relation between the 
 parties is known to them, (which was not the case in the above instance,) 
 ought, for their own security, to ascertain, and to be satisfied, that, in 
 paying bills, &c, they are advancing money, not only for the use of all, 
 but also with the knowledge, and at the instance of all, otherwise all 
 will not be liable to repay the money; for the bankers will not be able 
 to represent themselves as having been deluded, by the prospect of hav- 
 ing a joint, or partnership security; nor will they be able to say, "we 
 relieved you from a liability, by the payments we made, and have, there- 
 fore, a right to look to you for repayment ;" for one person cannot pay 
 the debt of another, and by that means make the other his debtor, un- 
 less the payment be made at the request of the other, (m) 
 
 Articles of partnership were entered into between A., and three other 
 persons, by which A. had power, if he died before the termination of the 
 partnership, to bequeath a part of his share to one of his sons, &c. A. 
 died, having bequeathed this part to such of his sons as his wife should 
 appoint, and making his wife, and two of the partners, executors. 
 
 During A.'s lifetime, the partnership borrowed money of their bank- 
 ers, and deposited, as security, the title deeds of real estate belonging to 
 
 f 
 
 (I) Emly v. Lye, 15 East, 1, 11, 13. 
 (»n) Smith v. Craven, 1 Cro. & J., 500.
 
 ..KANT ON TUt LAW uF BAN KIN... 
 the partnership. At A.'.- .Lath, a large amount was due to the bank : 
 
 \ ,'fi sons were minora; tike banking account was continued without alter- 
 
 atioo ; A.'- capital was continued in the concern of the partnership, 
 
 ., . .. which sometime afterwards became bankrupt, being greatly in 
 
 -I advance with the bank. However, the amount which they had 
 
 paid in. since A."s death, exceeded the sum due to the bank, from A. and 
 his partners, at that time, and it was considered, therefore, to be clear, 
 that this discharged tbe lien, of the bank, on the estate of the firm above 
 mentioned, and operated as payment of the balance, due to them, at the 
 death of A.., against whose estate, therefore, they retained no claim what* 
 ever.(n) The effect of the arrangement entered into, at A.'s death, by 
 the surviving partner and the bank, being interpreted to be, that the ac- 
 count should go on, as it had gone on before, not between the bank and 
 the surviving partners, but between the bank and the new firm : the re- 
 sult was, the bank took the new firm as their debtors, and the new firm 
 had paid off and discharged, the whole of the debt, that was due by 
 A.M 
 
 Where a partnership keep an account with a banker, and a new part- 
 ner comes into the firm, he cannot transfer, a part of the assets of the 
 old firm, to his separate account, without the authority of the firm, so as 
 to discharge the banker.(o) 
 
 A partnership, consisting of A. and B., trading under that name and 
 style, is largely indebted to their bankers; 13. dies, and A. continues the 
 business, under the same name and style, and afterwards indorses seve- 
 ral bills of exchange to the bankers, in the partnership name and style ; 
 A. then becomes bankrupt : the bankers were allowed to prove for the 
 amount of these bills, against the separate estate of A., notwithstanding 
 it was urged, that the circumstances furnished an inference, that the bills 
 were indorsed, in respect of a partnership transaction^//) 
 
 Another partnership, consisting of two persons, Cross and Cheshire, 
 had a joint account, with their banker, in the partnership name ; Che- 
 shire had also a private account with him. In December, 184(3, the 
 r^qii-i banker applied to Cheshire *for 268c., as being the amount of 
 L ' J the balance against the firm : Cheshire wrote, in reply, Baying 
 that the balance arose from a debt of his own, and had nothing to do 
 with the partnership account. In October, 184/, Cheshire gave the 
 banker, a promissory note for the above sum, being the balanoe still due. 
 This note having been dishonoured, and Cheshire having become bank- 
 rupt, the bunker sued Gross, who was compelled tO pay the amount. 
 Cross was held to 1"- entitled to sue Cheshire, for this sum, as money 
 paid to Cheshire/* use; the jury having Pound the debt, tor which the 
 promissory note wb& given to be bis own, and ool to be connected with 
 the partnership aooounlp.fo) 
 
 The t':iet of one of two partners having opened an account with a bank, 
 
 v. D( rham, 8 Jn Bani of Scotland \ . Chi i 
 
 214. 
 
 B nson, L8 V. ■-. 231. 
 parte Wilson, 3 If. D A D. 6. 57. 
 (ij) Croat v. Cheshire, ~ Bxch. 43 j Bee 5 Bzch. 489.
 
 PARTNERSHIPS AT COMMON LAW. 233 
 
 in his own name, is not conclusive, to show the account to be opened, 
 in his own behalf merely. The banker may prove that the customer was 
 acting as agent of the partnership, and that the account was a partner- 
 ship account. On the other hand, the mere circumstance of the money 
 deposited, being partnership money, is not sufficient to prove the account 
 to be a partnership account. (r\ 
 
 The fact of one of many co-adventurers, in a mining concern, who has 
 assumed the management of the adventure, opening an account with a 
 bank in the name of the adventurers, does not show that he is expressly 
 authorized by them to do so; and as there is in general, no implied 
 authority in mining adventures, by which any one of them may pledge 
 the credit of the rest, for money borrowed, although for the purposes of 
 the mine ; if the account is overdrawn, the bankers have no remedy for 
 the balance, by way of action against the co-adventurers. (s) 
 
 *A. and B., partners in trade, keep a joint account with a r*q-|9-i 
 bank, B. having also a separate account with them. The part- *- -1 
 nership having overdrawn their account, B. dies, and A., as surviving 
 partner, becomes bankrupt : at the time of B.'s death, the account against 
 the partnership was 15,000?., but B.'s private account gave a balance of 
 400?. in his favour. It was held that the bankers had a right in equity, 
 to go immediately on the separate estate of B., but they had not the 
 right to retain against the executors, who had commenced an action 
 against them, to recover the balance due to B.'s separate estate.^) 
 
 A firm of two partners have an account with a bank, which shows a 
 balance in their favour at the time of the death of one. Then the sur- 
 vivor draws out a portion of the sum owing to the firm, placing it in the 
 hands of trustees, for the completion of a previous arrangement entered 
 into for partnership purposes, upon the understanding, that if the arrange- 
 ment went off, the money should be returned ; the arrangement does go 
 off, and the surviving partner becomes bankrupt, the money still remain- 
 ing in the hands of the trustees. It is part of the joint estate of the 
 two partners, not of the separate estate of the survivor. This case illus- 
 trates, if illustration be needed, the relation of the bankers of a firm to 
 the surviving partners; money due to the firm, in the bankers' hands, is 
 the money not of the survivor alone, or of the survivors jointly, if there 
 are more than two partners in the original firm, but of the survivor, and 
 the representatives of the deceased partner. (uj 
 
 Such are the relations of the representatives of a deceased partner, in 
 a firm employing the bank, to the banking house. 
 
 It is always essential for the bankers, to ascertain who are the true 
 members of the firm, to whom they give credit, and to be able to show, 
 either that there is an actual partnership subsisting between any body, 
 
 (?•) Cooke v. Seeley, 2 Exch. 746. See effect of pass book as evidence, Robey 
 v. Howard, 2 Stark. R. 555. 
 
 (s) Rickett v. Bennett, 4 C. B. 686. The course of dealing, and the nature of 
 the concern, were left to the jury, to consider whether they afforded grounds for 
 implying authority, in the managing adventurer, to borrow, &c. 
 
 (t) Stephenson v. Chiswell, 3 Ves. 566. 
 
 (w) Ex parte Leaf, 4 Deac. 287.
 
 234 GRANT ON TUE LAW OF BANKING. 
 
 poio-i or number of persons to whom *they have given joint credit, or 
 L -I that the parties held themselves out aa being in partnership, or 
 jointly responsible as partner^ 
 
 A ,>;,-,. — la case of a joint-stock banking company, the fact of one of 
 the directors of the company being one of a firm dealing with the bank, 
 is not notice actual or constructive to the bank, of a change in the firm, 
 by retirement of one member. In case the bank had been an ordinary 
 partnership, it would have been otherwise.(y) 
 
 There may be cases in which bankers may safely, perhaps, make ad- 
 vances to the directors of a joint-stock company, on their personal guar- 
 antee, who have by the constitution of the company, no power to borrow ; 
 namely, where the money is advanced, not for the payment of debts of 
 the company, but for the purpose of carrying on the business of the 
 company in its ordinary course; for in such case, although the advances 
 do not constitute a debt due from the company to the bankers, yet the 
 directors, being trustees, and in that character entitled to indemnity, 
 from their cestuis que trustent, against expenses bona fide incurred, will 
 be allowed for such expenses, on winding up the affairs. (z\ 
 
 [*314] CHAPTER XL 
 
 BANKRUPTCY. 
 
 BANKERS arc found to be concerned in so many cases of bankruptcy 
 of customers, as to make it appear expedient to collect the law and deci- 
 sions thereon, so as to present the whole in a form and arrangement, 
 which it is hoped may prove useful, to those who are called upon to ad- 
 vice with bankers, in these emergencies. 
 
 By the Bankrupt Law Consolidation Act, 12 & 13 Vict, c 10G, s. 65, 
 bankers are expressly declared to be traders liable to the bankrupt laws. 
 
 Bankruptcy of Bankers as such. — All persons, it would appear, are 
 to be deemed bankers, who act as such, although they may not keep 
 banking houses ;(</) such are army and navy agents. 
 
 A member of a joint-stock banking copartnership, is a trader Bubjeci 
 to the bankrupt laws, when his holding of shares is bona fide, with a 
 view to profit ;(6) but to purchase shares for the mere object of obtain- 
 ing the benefit of the bankrupt laws, will be Ineffectual ; for the holding of 
 
 (x) Potl v. Kvton, 3 C. B. 32. 
 
 (>/) Powl 3 0. B. i':: BeeJacaud v. French, L2 East, ::17: and 
 
 If. .m Gra. 607, 
 
 irte Chippendale, i De Q. If. .v <;. L9. 
 (a) ]•:■.. parte Wilson, 1 Atk. 218; Bee 2 Bo <-, 210, 211, and Cowp. 747, 750, 
 751. 
 
 K\ parte Wyndham, l If. D. & De G. 146 ; Bi parte Hall, :i Dcac. 405 
 parte Lewis, i If. D. <fc De G. 371.
 
 BANKRUPTCY. 235 
 
 them under such circumstances, is settled not to be a sufficient trading 
 to support a fiat. (c^ 
 
 A banker who has ceased to trade as such, cannot it seems, sue out a 
 fiat against himself, unless he owes a debt Contracted during .-^-i r-, 
 the trading, which would support a creditor's fiat.(d) L J 
 
 With respect to what is a sufficient absenting from the banking house, 
 to constitute an act of bankruptcy, in a case of a bank in which there 
 were three partners, and one of the partners who resided on the spot, 
 and was the only partner who transacted the business, the others residing 
 at a distance, absented himself from the banking house, shut it up and 
 stopped payment, it was held this was not evidence of a joint act of bank- 
 ruptcy by all three, (e) 
 
 With respect to acts of bankruptcy arising on sales of property, the 
 rule seems to be taken now to be, that a trader may sell his stock in 
 trade or other property, without such sale being taken as an act of bank- 
 ruptcy, provided the object and effect is to enable him to carry on his 
 trade : on an emergency, he may sell all his property for that object; 
 and this a bank on which there is a run may do.(/) 
 
 Where bankers go on receiving deposits and issuing notes, after they 
 are aware that their affairs are in a state of utter, hopeless insolvency, 
 they will be refused a certificate on their bankruptcy though the court, 
 on the consent of the assignees and opposing creditors, may grant them 
 protection; but whether such protection is of any avail against the 
 common law rights of creditors, who do not come in under the bank- 
 ruptcy, seems very questionable,^) and certainly it is of no avail what- 
 ever against creditors, whose debts were not provable under the com- 
 mission, (fij 
 
 Evidence of Dishonest Dealings. — It appears to be assumed, that the 
 failure of a banker is of itself, evidence that he has been acting dis- 
 honestly. The customers of a banker *have a right to look to r*oig-i 
 him, for the exercise of cautiousness and circumspection, for L J 
 undeviating adherence to the purest good faith and strictest integrity, 
 in the use of their money, which they have lent him as a banker ; they 
 have a right to expect that he will confine his trade to its legitimate 
 field; viz., of discounting bills and purchasing, or advancing money upon 
 proper securities. 
 
 But, allowing a partner without giving security, greatly to overdraw 
 his private account with the bank ; especially if such partner is a manag- 
 ing partner ; permitting unnecessary litigation, and charging the expenses 
 to the assets of the bank ; wrongful dealing by way of transfer, pledge, 
 or any kind of conversion with a customer's short bill or other security; 
 failure to keep a profit and loss account ; are elements of consideration 
 
 (c) Ex parte Wyndham, 1 M. D. & De G. 149 ; Ex parte Atkinson, id. 300 ; and 
 see Ex parte Brown, 2 id. 758. 
 
 (d) Ex parte Mitchell, De G. Bank. R. 257. 
 
 (e) Mills v. Bennett, 2 Rose, 269; S. C, 2 M. & Selw. 566. 
 (/) See per Erie, J., Bittleston v. Cooke, 25 L. J., Q. B. 289. 
 
 (g) Ex parte Rufford, 21 L. J., Bank. Cas. 32 ; S. C, 2 De G. M. & G. 234. 
 (h) Grave v. Bishop, 25 L. J., Exch. 58.
 
 230 GRANT ON THE LAW OF BANKING. 
 
 fox a ooart of bankruptcy, on the question whether a certificate shall be 
 granted ; and if many of these circumstances concur, they will certainly 
 refuse the certificate. (/) 
 
 Proving against Bankers in Bankruptcy. — As to questions of what 
 parties, and in what capacities, are entitled to prove against bankers mi 
 their bankruptcy, some few point- may be stated, by way of endeavour- 
 ni'_ r rather to Bhow the view which the courts have taken, with reference 
 to the particular circumstances, than to extract any rule upon the subject. 
 
 If a lather, who is one of a banking firm, from time to time transfer 
 Bams of money to the credit of a son, who lias an account with the bank, 
 and do this uuder circumstances, excluding the idea of contemplated 
 bankruptcy having been the motive for his conduct, the sou may prove 
 r+Ql-H for the amount ^standing iu his account to his credit, at the time 
 L J of the bankruptcy of the nriu.(7.) 
 
 A banker in London, has branch banks in Edinburgh, and other 
 places; his branch bank of deposit at Edinburgh, is managed by an 
 agent, Blyth; the banker stops payment, and the same day sends letters 
 by post to Blyth, and his other agents, informing them of the fact, and 
 directing them to discontinue business. Before the letter, or other notice 
 of the bankers having stopped payment reaches Blyth, a customer pays 
 to Blyth, three bank notes of an Edinburgh bank, for 100/. each, live 
 promissory notes of another banking company, and some silver ; in all 
 305Z., for the purpose of having the amount remitted to London, to be 
 paid to the banker, to the order of the Edinburgh customer; but, after 
 the news reaches Edinburgh, and whilst the notes are still in Blyth's 
 possession, gives Blyth notice not to part with them, and they remain in 
 
 his hand- when the fiat issues against the banker. Blyth had a lien on 
 the funds in his hands, and the assignees allowed him to retain tin' above 
 -mil in pari satisfaction of it; but they were obliged to refund the 
 amount to the custouier.(7j 
 
 A partner in a bank drew out part of a balance, standing to the account 
 of trustees of a will, under which he was interested, without the autho- 
 rity of the trustees, and invested it upon a canal mortgage, which was an 
 unauthorized Beeurity.(m) On the bankruptcy of the bankers, the a stuit 
 ,j,i, trustent were held to be entitled to prove for the whole of the balance, 
 without giving up the canal mortgage, (n) 
 
 A. was co-partner with 15., C. and l>., in a banking firm, and waa 
 partner in another banking firm, with \> and ('. ; then A. dies, and E, 
 r*Qi<»n is admitted a partner in the first-mentioned bank- only. Each 
 L " J firm becomes bankrupt, and by an order of the court, the estates 
 of the two firms are consolidated. A pi rson who had Income a creditor 
 
 (i) Be St. Albans I'.ank. l Fonbl. Bank. R. -i. On appeal, the refusal of certi- 
 • . .'. at confirmed, on the ground oi the misconduct, as to pledging 
 .uit I ii II. wit linn i o the othei parts of the case. Eta part Start, 4 De 
 
 I De Q. M. 4 G. 241. 
 i7.-j Ei parte Skerratt, 2 B 
 
 i/i Ei parte Cunningham, 3 M. D. & De G. 58; Ex parte Solomons, id. T7 ; El 
 W'vlii-. id. 82 : Kx parte Belcher, Id. B7, confirming Ex parte Cunningham. 
 De G. If. a. G. 218; See Be Bankhead, 2 Kay & J. 560. 
 (a) Kx parte Biddulph, 3 De G. & S. 5H7.
 
 BANKRUPTCY. 237 
 
 of the first-mentioned bank, in A.'s lifetime, received a dividend out of 
 the consolidated estate; but, that was held not to have released A.'? 
 estate. (o) 
 
 At the time of the bankruptcy of S. & Co., bankers, in London, one 
 Harrison had an account with them. The commission issued against 
 the bankers on 21st December, 1825. Some time before the 5th Decem- 
 ber, 1825, one Hippins had been induced to accept, for the accommoda- 
 tion of Harrison, two bills of exchange, drawn by Harrison on Hippins, 
 in favour of Harrison; one of these was dated 22nd October, 1825, 
 payable at four months ; the other dated 1st November, 1825, payable 
 at four months ; both were indorsed by Harrison, on 5th December, 
 1825, and on that day he discounted them, together with three other 
 bills of exchange, making in the whole, the sum of 2,907?. 8s. 4d., with 
 S. & Co., and the amount of the whole number of bills was carried to 
 the credit of Harrison in his account, and he was debited with the 
 discount thereof. Between that day and the bankruptcy, Harrison drew 
 out considerable sums by cheques. The three last-mentioned bills had 
 been negotiated by the bankers, previously to the bankruptcy, the two 
 others remaining in the possession of the bankers at the time of the 
 bankruptcy, at which time, also, there was a cash balance due from them 
 to Harrison, to the amount of 1,500?. ; after the commission, Harrison 
 paid the three bills above mentioned. 
 
 The assignees of S. & Co. claimed to be entitled to sue Hippins on 
 the two bills, and to negotiate the same ; but the bills were ordered to 
 be delivered up to Harrison, in part discharge of the cash balance, with 
 liberty to prove for the difference against the estate. The assignees, 
 it was considered could not be allowed to proceed against Hip- r^g-i 
 pins, *who was in effect a surety, for the purpose of defeating L 
 the right of set-off, which Harrison, the principal would have had, if 
 the action had been against him.(^) 
 
 The following case may, perhaps, not unfitly, obtain a place here, in 
 illustration of the effect of the bankruptcy of bankers upon the relations 
 of their customers :— A. buys goods of B., and, both having accounts 
 with the banking-house of Caldwell & Co., of Liverpool, gives him, in 
 payment, an order on Caldwells, dated 7th February, 1793, directing 
 them, two months after date, to give to B. a bill of exchange, at two 
 months, for the price of the goods ; which order was indorsed by B., and 
 paid by him into Caldwells, who entered it short in B.'s account. The 
 general course of business between Caldwells and most of their customers, 
 was to settle accounts on certain quarterly days. When they advanced 
 bills for the accommodation of their customers, or received bills for them, 
 the course was, to enter the whole amount in the bank books as bills ; 
 but on the quarterly days Caldwells debited his customers with the whole 
 amount of the bills advanced to or for them, crediting them, at the same 
 time, for interest from such day, to the day when the bills would fall due, 
 and they credited the customers for the whole amount of bills paid in by 
 
 (o) Harris v. Farwell, 13 Beav. 403. 
 
 (p) Ex parte Hippins, 2 Gly. & J. 93, on appeal, cor. Lord Eldon, L.
 
 GRANT ON THE LAW OF BANKING. 
 
 them, debiting them fur interest, in like manner; and when an order, or 
 oheque, was paid in for a bill to be drawn on a future day, they calcu- 
 lated, and allowed interest, on the next quarterly day, to the time when 
 -urli bill, it' drawn, would become payable. It appeared that the account 
 of 13. had been settled only six times, between May, 1789, and March. 
 IT'.'-'!, but that each of these settlements took place on a quarterly day. 
 On the L8th March, 1793, Oaldwells became bankrupt (after which, of 
 course, they could not give a bill,) a quarterly day having intervened 
 between the payment of the order into the bank and the bankruptcy, but 
 r*q.->m u P° n this last-mentioned quarterly day, im settlement of *accounts 
 L ** J took place between the bankers and B. The amount of the 
 order was never carried out as cash, nor was any calculation of interest 
 thereon ever made until after the bankruptcy. When the order was paid 
 in, there was a balance in favour of B., on his account, of 51/. lis., but 
 the account was much overdrawn before the bankruptcy, without any 
 other addition having been made to the credit side of the account, 
 beyond the order in cpuestion. 
 
 On these facts, the Court of Exchequer held that the order did not 
 amount to payment, and that in an action of assumpsit, by B. against A., 
 for goods sold and delivered, it was not competent to the defendant to 
 prove, by the bankers' books, that, at the last-mentioned quarterly day, 
 the account between him (A.) and Caldwells was settled, at which time 
 he was debited with the whole amount of the order, and credited for 
 interest thereon, from the day of the settlement, to the day when the bill. 
 mentioned in the order, if drawn, would have become due. 
 
 Now, it was obviously material for the buyer to make out that a settle- 
 ment had taken place, before the bankruptcy, between the sellers and 
 tin- bank, for that would have changed a transaction, which was only a 
 bill transact inn, into a money transaction. But the order did not amount 
 to payment. 1„ cause, on the facts, the court was of opinion, that the 
 seller of the goods had never accepted it, as payment. The evidence 
 was not admissible, because, although similar evidence was admissible, 
 and was admitted, to show how the account stood between the seller and 
 Caldwells, inasmuch as it was an essential part of the transaction, and 
 arose ae much out of one side of the case as out of the other, the seller 
 being bound to show what had become of the order given to him for the 
 goods : yet, though the buyer and Caldwells had had a settlement, and 
 the former hail agreed to be accounted debtor, in the bank, for the 
 amount of the order, the seller was not acquainted that he had acquired 
 r*q9l"| this new credit in the books of the bank ; and *thc bank, if 
 L ~ J caJled upon, in consequence of this agreement between the buyer 
 and them, to paj the amount, to the seller, might have answered — "It 
 is true we have admitted the buyer to be our debtor fur the amount, but 
 what use can you, a third party, make of that agreement ?" The bankers, 
 therefore, could not have been charged, by the sellers, and, therefore, 
 the evidence, which would have been of no avail, if admitted, was pro- 
 perly excluded. (</) 
 
 (?) Brown \. Kewley, 2 B. & P. 518; see 2 Chit. R. 619.
 
 BANKRUPTCY. 239 
 
 Friendly Societies. — With regard to the nature of the claims of 
 friendly societies, whose moneys have been deposited with bankers for 
 the sake of the convenience of making payments, and of security, in case 
 of the bankruptcy of the bankers, it has been settled that bankers, 
 although they may have been named treasurers of a friendly society, are, 
 nevertheless, not "officers" of the society, within the meaning of 4 & 5 
 Will. IV. c. 40, s. 12, so as, upon their bankruptcy, to entitle the society 
 to payment in full of the balance due to the society ; and this is so, 
 whether the bankers had been permanently appointed treasurers, (r) or 
 only for an occasion.(s) 
 
 Nor are they " employed" as officers, when there is no formal appoint- 
 ment of treasurer, but all that occurs is merely that the moneys of the 
 society, (except what is wanted for current expenses,) are paid into the 
 bank.M 
 
 Fraudulent Preference. — The following transaction has been looked 
 upon as doubtful, whether it amounted to a fraudulent preference, or 
 not. 
 
 An army agent is in the habit of advancing money to his customers, 
 on their pay and pensions ; this he does by cheques on his bankers. He 
 overdraws his account with *his bankers, and agrees, in consi- [-#3221 
 deration of new credit, to pay over to them, as he receives them, L ""J 
 the funds that come to his hands half-yearly from government, for the 
 discharge of pensions : this arrangement is not known to the authorities 
 who issue these moneys. The army agent then, unknown to his bankers, 
 commits an act of bankruptcy, and, having subsequently received some 
 government moneys, pays them over, in pursuance of the arrangement, 
 being indebted to the bankers in more than the sum paid over ; and 
 though it was admitted, on all sides, that if the sums were put into the 
 bank merely to enable the bankrupt to go on, in business, for a time, 
 they were not payments in fraud of creditors : yet it was not denied that 
 the jury might, on the above facts, and the course of dealing, after the 
 new credit, have inferred a previous contract or engagement; but a pay- 
 ment made, after an act of bankruptcy, in compliance with a previous 
 binding contract, is not a fraudulent preference of the creditor paid.(-w) 
 
 But when a country bank, being in failing circumstances, and having 
 suspended payment, and who, a few days afterwards, became bankrupt, 
 handed over to a partner of a London banking house, their correspondents, 
 certain cash, bills, and notes, part of them in the expectation that assist- 
 ance would be given them, and part without such expectation, but with- 
 out any intention of undue preference, and without any contemplation of 
 bankruptcy, at the time ; both were held to be recoverable, by the 
 assignees, as money had and received to their use,(.r) part as being a 
 
 (r) Ex parte Harris, De G. R. 162. 
 (,s) Ex parte Whipham, 3 M. D. & De G. 564. 
 (t) Ex parte Orford, De G. & Mac. Bank. R. 83. 
 (u) Vacher v. Cocks, 1 B. & Ad. 145. 
 
 \x) Simpson v. Sikes, 6 M. & Selw. 295; see Gibson v. Muskett, 4 M. & Ura. 
 160; Gibson v. Bruce, 5 id. 199. 
 
 February, 1857. — 17
 
 240 GKAXI OH TEE LAW OF BANKING. 
 
 fraudulent preference, and part as being delivered in the hope of receir- 
 iiilt assistance, which had never been rendered. 
 
 /'..//-. /■>• nf Assignee*. — A. being tenant for life, without impeachment 
 of waste, with remainder to 1!. for lite, without ^impeachment of 
 J waste, remainder ever, carried on business as ;i banker, iii pari 
 aership with B. and others; and the lirm having become haukrupt, tin 
 assignees cut down ornamental timber. 
 
 The court held them not to be entitled to the income arising from the 
 proceeds of the timber wrongfully cut down, either during the life of A. 
 or the life of B., but that such proceeds, together with the accumulated 
 income thereof, belonged to the first tenant in tail.)//) 
 
 Bankruptcy of Customer*. — Bankers have been Bhown to be liable at 
 the Buit of a customer, if they fail to comply with his orders; ex. <jrn.. 
 if they fail to apply moneys paid to them lor the purpose, to the payment 
 <>t bills accepted by him, and made payable at their bank. So, if the 
 customer becomes bankrupt before commencing the action, his a-H-nrc- 
 may sue the bankers and recover damages, and the sum which they 
 recover they may retain against the holders of the bills, who will be 
 reduced to prove against the estate, for the amounts of the bills. {z\ 
 
 There is, sometimes, considerable difficulty in questions as to dealings- 
 between bankers and customers on the verge of bankruptcy. 
 
 If bankers receive and pay money on account of a bankrupt, after 
 untie. ■ of his bankruptcy, they cannot set-off the payments against the 
 receipt- : for as every man is bound to know the law, they must be taken 
 to have known — that a bankrupt is not a free agent, and has no longer 
 the disposition of his property : that they were not bound to honour his 
 cheques in favour of creditors; that by so doing they were doing an 
 illegal act, and were assisting in committing a fraud on the rest of the 
 the bankrupt's creditors, who were not the payees of the cheques; the 
 spirit and intention of the bankrupt laws being an equal distribution of 
 r*39i.n ' ne t '^ tHts "''the bankrupt among all his creditors. Therefore, 
 L -I the assignees will be entitled to recover from the bankers, the 
 whole of the sums received by them, on account of the bankrupt after 
 the bankruptcy, without any deduction fur the payments to whatever 
 amount made to hi- orders; which being made illegally, and besides 
 
 in their OWD WTOUg, fall Bfl a loSS upon the bankers. ( a ) 
 
 It was also attempted on behalf of the bankers in this case, to obtain 
 the benefit of an assignment, i deed, for which purpose instructions had 
 heen gives by the bankers to their attorney to prepare, and which pur- 
 ported to convey to them, two ships of the bankrupt then at sea, together 
 with their freight, and an exchequer tally; but as it appeared that, 
 although the instructions had been given before the bankruptcy, the 
 deed had not been executed. b_\ the bankrupt until alter the bankruptcy, 
 the banker- could have no advantage of the assignment. (a) 
 
 [iushington v. Holder... 2] L. .1 . Chanc. 49; 8. C, 16 Jur. 140. 
 
 1 1 .ml.. U. 51. 
 
 Vernon v. Bankey, 2 T. K. 113 ; 8. 1 0. C. 313; Bee Raphael v. Biri- 
 
 w.iini, :, Price, 593. What acta are acts of bankruptcy, see 1 Welsby, State. 2] '. 
 
 •. 221, 222, and 2 id. 587. Closing doors of bank is one. Cum-
 
 BANKRUPTCY. 241 
 
 It was further attempted to make out on the part of the bankers, after 
 the trial and verdict, that, as a bill of sale of one of the ships, and the 
 exchequer tally, had been deposited by the bankrupt with them, fur some 
 time previous to the bankruptcy, as " security for money overdrawn, or 
 to be overdrawn," by the bankrupt, and that, upon the faith of these 
 deposits, the bankers had afterwards advanced large sums of money, 
 but had given up both the bill of sale and the tally, upon the assignment 
 being executed, when the assignment was declared void, their lien upon 
 these securities revived ; but the court negatived this claim also, but only 
 on the ground that this matter, which was brought *before the r^qor-i 
 court, for the first time on a motion for a new trial, and by way L ' ~ J 
 of affidavit, had not been proved at the trial. If that had been done, 
 it may be gathered from what fell from the court, that the bankers would 
 have been allowed in respect of this lien, to deduct the values of the 
 ship and exchequer tally, from the sums paid in since the bankruptcy, 
 and would only have been liable to the assignees for the difference, if it 
 had been clearly made out at the trial, that the deposits were made 
 originally to secure money antecedently due. 
 
 But although bankers, like all other subjects, are bound to know the 
 law, as well statute as common law ; and, although, if they understand 
 the fact out of which the law arises, or to which it applies, that is suffi- 
 cient to establish their responsibility, and they are bound by the conse- 
 quences ; yet, it does not necessarily follow, that a banker should under- 
 stand the situation of those that employ him, and if he has no notice of 
 their insolvency, he will be protected in the payments he makes to them.(^) 
 
 As regards the cases in which bankers are entitled to prove in bank- 
 ruptcy, against bankrupts with whom they have had dealings, it may be 
 observed, of the greater part of the decisions which are extant, that they 
 are deserving of great attention; the rest do not present such peculiari- 
 ties as would warrant notice here ; as these rest on the general principles 
 which are applicable to all cases of bankruptcy, the points they involve 
 must be looked for, in works professing to treat the whole subject of 
 bankruptcy. 
 
 A customer pays in bills of exchange to his bankers, and becomes a 
 bankrupt. The bankers prove in the first place, for the whole balance 
 due to them from him, and afterwards some of the bills are paid them 
 in full, by other parties *liable on them ; some before and some r^oQl 
 after, the dividend is declared. In these circumstances, the L Jj J 
 proof will be reduced by the amount of the paid bills ; the dividends 
 must be refunded, so far as they relate to those bills. (c) 
 
 ruing v. Bailey, 6 Bing. 363 ; Mills v. Bennett, 2 Mau. & S. 556. Notice to ac- 
 credited agent of a corporation or public company, of an act of bankruptcy, is no- 
 tice to the corporation or company. 12 & 13 Vict. c. 106, s. 87. The public ofh- 
 cer is to make the docket affidavit where a corporation is the petitioning creditor. 
 Ex parte Collins, De G. Bank. R. 381. 
 
 (b) 2 T. R. 121, 122 ; 12 & 13 Vict. c. 106, s. 165 ; see 2 Cox, Ch. Cas. 12. N.B. 
 — The mistake made in relying on the assignment, at the trial, and not on the lien, 
 was attributable, as appears, (2 T. R. 124,) to the bankers themselves, and not to 
 their counsel. 
 
 (c) Ex parte Hornby, De G. Bank. R. 69.
 
 242 GRANT OH THE LAW OF BANKING. 
 
 Where there is more than one assignee of a bankrupt, and an account 
 is opened, on behalf of the estate, with a banker in their joint names, if 
 must be remembered, thai nol being the account of partners in trade, 
 the banker is oot discharged by payment to one of tin- assignees, without 
 the authority of the rest ; and, therefore, that — every banker as before 
 stated, being bound to know the handwriting, and what is not the hand- 
 writing, of his customers — a payment made to a cheque, really signed by 
 one, but bearing a forged signature of the other assignee will not be 
 valid ; in other words the money must be paid over again. (</) 
 
 Money due for calls on shares in a joint-stock banking company, is 
 OOt such an ascertained debt, as entitles the company to prove against a 
 bankrupt shareholder, without first taking the accounts.). ) 
 
 K a bankrupt after an act of bankruptcy, of which his bankers had 
 notice, though not the act of bankruptcy on which the fiat was founded, 
 draw upon them cheques in favour of creditors, which are paid by the 
 bankers, they will not be admitted to prove for the amounts of them.(/) 
 
 So, if bankers, with a knowledge of an act of bankruptcy of a cus- 
 tomer, take a guarantee from a surety for him, to secure to a given 
 amount, all sums then, or thereafter to become due from the customer, 
 and the surety having had no notice of the act of bankruptcy, afterwards 
 pay the bankers the full sum for which he was guarantee, without specify - 
 r ->.)9--i ing to which portion of the bankers' debt the payment *was to 
 L "-'] Reapplied: the payment will be appropriated in reduction of 
 that portion of the bankers' debt, which was provable under the fiat, 
 and not of that which was not provable. (//) 
 
 A bolder of an unpaid cheque, it has been thought, (Zt) has, as assignei 
 of a chose in action, an equitable claim on the banker on whom it is 
 drawn, and may prove for the amount of it upon his bankruptcy. 
 
 A customer at the time of his bankruptcy, is indebted largely to hie 
 bankers; they are made bankers to his assignees; they then become 
 bankrupts; their assignees cannot draw a dividend under the customer's 
 bankruptcy, until they have accounted for the whole, which the bankers 
 have received as bankers, to the assignees. (/) 
 
 \ customer of a banking house had a large sum in their bauds. 
 Under the old law of bankruptcy a commission issued against him, but 
 TOG not proceeded with, though it still remained in force: the hankers 
 in this state of things refused to honour the customer's cheques. The 
 
 customer Sues them; and they file a bill Stating the circumstances and 
 
 praying an injunction to restrain die proceedings at law, upon their pay- 
 ment of the whole Bum in their bands, into court. 
 
 It will be observed, that here being oo assignees appointed, there 
 .v.,- no one against whom a bill of interpleader could have been tiled. 
 
 (d) tnncs v. Stephenson, 1 M. 4 Rob. L4B; see 2 I.. 81. & P. 50; 10 0. B. 640 
 I v. Lee, M. A M 
 
 i. | irte Snape, Mom. A C. Rep. 607 j B. 0., i Deac. L64. 
 Ex parte Sharpe, 3 M. D. A De <;. 190 -■• ! Robb, 71 : Bamford r. Bnrrell, 
 2 B. .v P. 1 ; L2 .v 13 7ic1 c. 106, B. 166. 
 9 Ei parte Sharpe, 3 M. D. s De <■■ 490. 
 (//i • on Bills, 17, 6th edit. an. tam, 
 
 '. 19 V. -. 222; Bx parte Graham, 3 Ves. k B. 130.
 
 BANKRUPTCY. 243 
 
 The court held, that there was no ground for interference with the pro- 
 ceedings at law, notwithstanding the existence of the commission. (k) 
 
 The long-settled practice establishes, that a country banker, whose 
 usage it is to discount bills, charging 5?. per cent, interest, and commis- 
 sion at the rate of 2s. 6c?. per cent, per month, for the time the bills had 
 to run, may prove in bankruptcy, for the amount of the bills, r^ooftl 
 together with interest and commission. (?) And where the bankers L " J 
 carried on business at Favershani, and discounted bills for the bankrupt, 
 before the bankruptcy, which bills were drawn by him upon and accepted 
 by persons resident in London, so that there was nothing to be done, ex- 
 cept merely writing to the bankers, their correspondents in London, 
 where, and through whom the money on the bills was paid j — that was 
 held by Lord Eldon to be a case with the rule.(m) 
 
 On the other hand, in case of the bankruptcy of the bankers, their 
 assignees are entitled to recover in like manner from the customer, or 
 for the interest on the balance against the customer, both for the time 
 that it has been against him, previously to the bankruptcy, and for the 
 time since elapsed. («) The bankruptcy did not make it less the duty, 
 and it made it more the interest of the customer to discharge the debt, 
 and he must make an equivalent for not having done so. 
 
 A. was indebted to a bank in 20,000/., on the balance of his account. 
 The firm agreed, that if A., and another party, B., would give a bond 
 for paying 10,000?., by yearly instalments of 1,000?., paying interest on 
 any instalment which might be in arrear, the debt should be considered 
 as reduced to 10,000?., and cancelled. The bond was given. Before 
 the first instalment became due, both the firm and A., became bankrupt, 
 when the assignees of the firm claimed to prove against A.'s estate, for 
 the whole 20,000?. and interest. The proof, however, on the ground that 
 an additional debtor had been introduced, by the agreement, and that as 
 the bond contemplated the falling into arrear of the instalments, and as 
 none of the particulars of the agreement *had been reduced into p^cn 
 writing, the old debt must be considered to have been intended L - 1 J 
 to be satisfied by the bond.(o) 
 
 A firm of B. & Co., shipowners in the country, had dealings with K. 
 & Co., bankers in London; the course of dealing being, that B. & Co. 
 drew bills on K. & Co., which K. & Co. accepted, for the accommoda- 
 tion of B. & Co., who, in order to provide for the payment of these bills, 
 remitted to K. & Co., cash, and deposited with them bills payable to 
 themselves (B. & C. ;) the amount of these bills was received by K. & 
 Co., and placed to the credit of B. & Co.'s cash account. Both firms 
 became bankrupt in 1812 ; K. & Co., in July, B. & Co. in August; there 
 being at the latter date, a large balance owing by B. & Co., to K. & Co., 
 on their account ; K. & Co. being also liable to a large amount, on the 
 
 (k) Fuller v. Gibson, 2 Oox, Oh. 24. 
 
 (I) Benson v. Parry, cited 2 T. R. 52 ; Winch v. Fenn, 2 T. R. 52, n. ; see Aunol 
 v Thomas, 2 T. R. 52 ; Hammett v. Yea, 1 B. & P. 144; see 3 B. & P. 161. 
 (m) Ex parte Jones, 17 Ves. 332 ; see Baynes v. Fry, 15 Ves. 120. 
 (n) Pott v. Beavan, 7 M. & Gra. 604. 
 (o) Ex parte Hemaman, 12 Jur. 643 ; S. C, 17 L. J., Bank. 17.
 
 •JH -i KANT ON THE LAW OF BANKING. 
 
 accommodation bills accepted by them for B. & Co., and having in their 
 hands, bills also to a large amount, deposited with them by B. & Co., to 
 provide for the payment of such acceptances. Before any dividend was 
 declared on the estate of K. & Co., their assignees realized from the de- 
 posited bills, more than sufficient to liquidate the cash balance due from 
 1!. & Co. The holders of the accommodation bills proved against both 
 estates, and were fully paid, receiving ten shillings in the pound from 
 each estate. The sum thus paid, by the estate of K. & Co., exceeded, 
 by above 6,000/. the whole sum realized from the deposited bills. No 
 debt was proved, nor attempted to be proved, on behalf of the estate of 
 K. \ Co., against the estate of B. & Co., until 1847, when a further 
 portion of the outstanding estate of B. & Co. was realized, but to an 
 aim mnt insufficient to pay twenty shillings, in the pound, to their credi- 
 tors, exclusively of K. & Co. 
 
 ( in a claim made on behalf of the estate of K. & Co., the assignees 
 were held to be entitled to prove the cash balance due by B. & Co., and 
 also the 0,000/., and that in respect of the 6,000/., and until thereby 
 piton/yi that sum was repaid, they *were entitled to the benefit of the 
 -I proofs made against the estate of B. & Co., by the holders of the 
 accommodation bills, (j?) 
 
 In the same case, a principle was recognized, as of general application, 
 which it may often be very material, to their interests, for bankers who 
 hold securities to be aware of; namely, a creditor holding a security, is 
 entitled to apply it in discharge of whatever liability of the bankrupt 
 debtor he may think fit.Q>) 
 
 Short />'///>-, (fee., deposited. — Enough has been stated, under another 
 division of the subject, to show fully under what circumstances, goods, 
 \c, in the order and disposition of bankers pass to their assignees, on 
 the event of their becoming bankrupt, and that among these are not short 
 bills, or any securities deposited with them for the purpose of obtaining 
 payment of them, as agents of the customer, or for other specific purposes, 
 and not as money. (j) 
 
 < hi the other hand, bills discounted are among the things which pass 
 to the assignees. 
 
 So, if bills he indorsed to a banker in the country, in exchange for his 
 bill upon his correspondent in London, the property passes, although the 
 latter bill be dishonoured, and trover will not lie for them, against the 
 banker's assignees.fr) 
 
 Here we may Btop to observe, upon the absolute necessity of keeping 
 the books of hanker- correctly ; the entries in them are obviously of the 
 greatest importance to the interests of the customers ; because it must 
 
 lie from the 1 ks that the clerks of the bank, and others, are to find 
 
 whether the cheque of a customer is to be honoured, or not, and because 
 
 ; ' ' been decided to be proper to receive in evidence, *a 
 
 ' banker's ledger, to show that a customer had no assets on a 
 
 i: ; ■!■ Johnson, 3 De G. K. .v G. 218. 
 
 ,160; Zinck \. Walker. 2 W. Bla. l L64. 
 Parke v.Elia in, l Bast, 644; Hornblower v. Proud, 2 B. & A. 327 ; see 1
 
 BANKRUPTCY. 245 
 
 given day, in the banker's hands, the question arising in an action, to 
 which neither the customer nor the bankers were parties. In the same 
 case, it was thrown out that the books might not be evidence, to show 
 affirmatively, that the customer had money in the bankers' hands. (s) 
 
 If a trader, after an act of bankruptcy, draws a bill of exchange upon 
 his bankers, which they accept for a sum, for which in part tbey hold 
 effects, but for the residue, accept for the customer's accommodation, a 
 party suing the bankers on the bill, can only recover for so much of the 
 bill as had been accepted for the accommodation of the trader ; for the 
 rest, the bankers will be liable, at the suit of the assignees. (t\ 
 
 So, if bankers accept a bill, for the accommodation of a trader, for the 
 payment of which he, after an act of bankruptcy, but before fiat, lodges 
 money with them, and the bill when due, (which is after the fiat,) is paid 
 by the bankers, they must refund to the assignees. (u\ 
 
 A customer of a bank, who had been used to deposit with them bills 
 of exchange, and promissory notes, as security for advances, having got 
 four bills accepted by A., for his accommodation, deposits them, with 
 the bank, to secure his floating balance ; he then becomes bankrupt, 
 when the bankers prove for a balance greatly exceeding the amount of 
 the bills, excepting them loith others, in their proof, as securities. They 
 afterwards receive a dividend of two shillings in the pound, on the 
 amount of their proof. 
 
 The bills were paid in full, to the bankers, by A., and he was held to 
 have a title (as a surety entitled to stand in place of the creditor proving, ) 
 to call upon the bankers *to refund the amount of the dividend ^ t ^ OC) ^ 
 of two shillings, on the amount of the bills ',{x\ for such a divi- *- J 
 dend cannot be treated as a payment generally, on account of the whole 
 debt, but must be considered as a payment of part of each pound of the 
 debt. 
 
 A customer indorses, and pays into a bank, in usual course of dealings, 
 certain bills of exchange : these, in conformity with the usual practice of 
 the bank, as regarded this customer's bills, are carried to the credit of 
 the customer, and cheques are drawn by the customer, and payments 
 made, from time to time ; on the bills arriving at maturity, the customer 
 is debited with the amount of those that were dishonoured. The balance 
 of the account is struck every half year ; the customer becomes bankrupt ; 
 the bankers prove for the whole balance due" ; afterwards, some of the 
 bills are paid in full, by other parties liable, some before, and some after, 
 the dividend is declared. This renders it necessary to reduce the proof 
 by so much, and refund the dividends to that extent.(y) 
 
 A., B., C. and D. were four partners constituting a banking firm. 
 
 A customer, under an agreement with them, pays in bills of exchange, 
 
 (.s) Furness v. Cope, 5 Bing. 114 ; and see Brown v. Kewley, 2 B. & P. 518. 
 ' (t) Willis v. Freeman, 12 East, 656. 
 
 (u) Tamplin v. Diggins, 2 Camp. 312; see Vernon v. Hall, 2 T. R. 248; Pinker- 
 ton v. Marshall, 2 H. Bla. 334. 
 
 {%) Ex parte Holmes, per Lord Cottenham, C, 4 Deac. 82 ; see Bardwell v. Ly- 
 dall, 1 Bing. 489. 
 
 (y) Ex parte Hornby, De G. Bank. R. 69.
 
 246 ',1; ANT OH THE LAW OF BANKING. 
 
 Indorsing them, it being the amngemi nl that he should take out instead, 
 their promissory notes, they allowing him twenty-four days' interest on 
 each bill paid in. I *n 22nd July, separate commissions of bankrupt 
 issue against three of the hankers, I!.. C. and D. On the 23rd Julv. 
 the customer receives, from the bank, notes to the amount of 1001. ; 
 next day, he pays in two indorsed bills for 7">/. ami 70?. respectively, 
 due on the 17th of August. On 4th August, ;i commission issues against 
 A. On 12th August, tin former commissions are superseded, for a 
 joint commission against the firm. 
 
 P -, *Tuder these circumstances, it was held, that the assignees 
 
 L J were not entitled to retain the bills,(z) on the ground that tin 
 relation of debtor and creditor never subsisted prior to the bankruptcy, 
 and that the consideration had failed, on which alone the bills were 
 parted with. 
 
 Where bankers proved against a customer for their whole debt, as 
 shown on the drawing account between him and the bank, and exhibited 
 bills, deposited with them by him, as securities, and then received the 
 amount of some of the bills so deposited; the proof was ordered to be 
 expunged, the lulls remaining unpaid were ordered to be sold, and a new 
 proof to be made, deducting all that was received, on account of the bills, 
 considering them as mere pledges. (a) 
 
 Mutual Credit <nu7 Set-off. — With respect to questions of mutual 
 credit and set-off, in bankruptcy, it will be desirable to state the points, 
 which most frequently arise, in the business of bankers. The following 
 case forms an useful illustration of the principles governing these ques- 
 tion- : — 
 
 A trader having obtained large advances, from the JJank of Bengal, 
 [ted company's paper with them, as collateral security, with have 
 to them to sell, in default of his repayment of the loan, by a given day, 
 paying over the surplus, if any, to him. 
 
 Before default in the repayment of the loan, he was declared insolvent, 
 under the Indian Insolvent Act, which declares that when there has 
 been mutual credit by the insolvent, and any other person, one debt or 
 demand may be set off against the other, and that all debts, provable in 
 Bngland, shall be provable in India, &c. In fact, the enactments are 
 precisely similar to the part of the English Bankrupt Act, which regu- 
 late- this subject. 
 
 At the time of the insolvency, the bank also were holders, as indor 
 
 of two promissory not.-, made by the trader, *whloh tin- bank 
 had discounted lor him, before the making of the loan, and de- 
 posil of tin- company - paper. 
 
 Tie- time of repayment of the loan having elapsed, the bank sold tin 
 company's paper, the proceeds of which, after defraying principal and 
 inter, -t. produced a considerable surplus. 
 
 The assignees of the trader brought an action to recov< r this surplus, 
 
 when it was held that the bank had no right to setoff the amount of the 
 
 two promissory cotes; this cot '" ing a case of „,,</,/, ,i credit, Buch as is 
 
 Balwin, cited Vj Ves. 230. 
 
 [ -••'' I
 
 BANKRUPTCY. 247 
 
 meant by the Bankrupt Acts ; because, although it has often been said 
 to be the law, that where the one debt is immediately due, and the other 
 only due at a future day, there is a mutual credit ;(?>) yet, in all of the 
 cases which have so decided, it was certain that the party receiving the 
 credit must, sooner or later, become debtor in prcesenti; that a power 
 was given, over funds, which the party giving could not revoke ; then 
 also the debt, in order to be set off, must be provable, but the trader 
 could not have proved for a contingent surplus. (c) 
 
 The case would have been altogether different, if the bankers had 
 sold the paper, and received the surplus, prior to the bankruptcy, then 
 they would have been debtors to the trader, and so within the statute. 
 
 It is a well-known rule, that whoever takes a bill must be considered 
 as giving credit to the acceptor ; and whoever takes a note, credit to the 
 drawer. But what more particularly belongs to the subject of this trea- 
 tise, is to call attention to a qualification which has been engrafted on 
 the rule, involving matter of interest to bankers. That qualification is 
 this, that the holder of a bill, or note, in order to be entitled to the 
 benefit, or to be within the enactments respecting *mutual credit, r^qo^-i 
 and set-off, must not be a mere agent, holding the instrument *- ' -> 
 for the benefit of other parties. The following instance may be useful, 
 as an illustration of the proposition : — Maberly's assignees sued L. & Co., 
 as acceptors of a bill for 1,000?., drawn by the Commercial Bank, and 
 indorsed to Maberly. At the time of Maberly's bankruptcy, L. & Co. had, 
 in their hands, a bill for 700?., drawn by a firm, in which Maberly was 
 a partner, accepted by a firm, in which he was also a partner, and 
 indorsed by the Commercial Bank. This bill became due on the day on 
 which Maberly stopped payment, on which L. &' Co. protested it, and 
 having in their hands sufficient assets of the Commercial Bank to dis- 
 charge it, debited the company with the amount, and sent them the pro- 
 tested bill, with the receipt for it. The Commercial Bank sent back the 
 bill, requesting L. & Co. to set off its amount against their own accept- 
 ance for 1,000?. ; and the question was, whether they had the right to 
 do so. The decision was, they had not ; for that L. & Co. were not 
 creditors of Maberly, but held the bill for 700?. as agents, ot mere trus- 
 tees, for a foreign house, and as such, had no right to set it off,^ against 
 a demand made on themselves, in their own right, (d) The rule is estab- 
 lished, to insist upon demands, in respect of which, set-off is claimed, 
 being shown to be in the same right, (e) in cases of solvent parties ; but 
 in cases under the bankruptcy laws, the principle adopted is not quite 
 the same.(/) 
 
 It follows, from the authorities lately cited, that there is no mutual 
 credit when securities have been deposited for a particular purpose with 
 
 (b) Ex parte Prescott, 1 Atk. 230 ; Smith v. Hodson, 4 T. R. 211 ; Rose y. Hart, 
 8 Taunt. 499. 
 
 (c) YoungV. Bank of Bengal, 1 Deac. 680, 681, H. Lds. ; see 12 M. & W. 151. 
 
 (d) Belcher v. Lloyd, 10 Bing. 316; see Foster v. Wilson, 12 M. & A\ . 191 i Farf 
 v. M'lver, 16 East, 130 ; Pollard v. Ogden, 2 E. & B. 459. 
 
 (e) Gale v. Luttrell, 1 Y. & J. 180; Baillie v. Edwards, 2 II. Lds. .4, is not aa 
 exception to the principle. 
 
 (/) See per cur. Forster v. Wilson, 12 M. & W. 203.
 
 248 GRANT ON THE LAVT OF BANKING. 
 
 n bank, by a customer whose account is overdrawn, or to whom the 
 
 bankers have lent money. (,7) 
 
 N '-';//'. — A trading firm waa indebted to a country hanking 
 L ' J copartnership, consisting of three partners, called the Tweed 
 
 bank, on the balance of their banking account, when the bank stopped 
 payment. On that day and the day following the linn received from 
 customers, certain hi. notes of the hank in part payment of antecedent 
 debts, on condition that they were to debit themselves with bo much only, 
 on account of these notes, as they should receive from tie assignees in 
 respect of the notes. These notes were received by the firm, without 
 notice of any act of bankruptcy by the bankers, and before any docket 
 had been struck. They also received, during the same day on which 
 the bank stopped payment, certain other of the bank notes, from persona 
 not debtors to them, for which they were to pay, only so much as they 
 should receive from the assignees in respect of them. 
 
 In an action brought by the assignees to recover the amount of the 
 balance against the firm, on their account with the bank, it was decided 
 that the firm had a beneficial interest in the notes of the first class, and 
 were, therefore, entitled to set them off against the claim of the assignees ; 
 but that, as to the second class, they held these merely as trustees for 
 others, and were not entitled to set them off. It was not disputed that 
 notes which they held as having received them before the bank stopped 
 payment, in bona fide payment of antecedent debts, and for goods sold, 
 might be set off, without notice of any act of bankruptcy. (A) 
 
 The law, it may be observed, 18 undoubted, that a holder of country 
 bank notes has a right to set off, in an action by the assignees of the 
 bankrupt hankers against him, bank notes, taken by him alter the hank 
 has stopped payment; provided, at that time he has not notice of an act 
 of bankruptcy, and that, notwithstanding that he took them for the very 
 purpose of making them the subject of set off, and in substance, of get- 
 ting 20*. in the pound upon them.(c) 
 
 r^oot-i *A customer's account with his bankers, showed a balance in 
 L I his favour on the day on which he became bankrupt. Previously 
 to that the bankers had discounted for the customer bills for a large 
 amount, which were indorsed in blank by the customer, and two of them 
 were paid by the acceptor before the bankruptcy; the others, much ex- 
 celling the amount of the customer's balance, did not become due before 
 the ]<itli of .November, the bankruptcy having taken place in the pre* 
 vious I totober. 2nd November the assignee commenced an action against 
 the bankers for the balance; 8th November the bankers proved against 
 the bankrupt'- estate, for the whole of 'the bills, excepting the two which 
 had been paid, and deducting the amount due to the bankrupt on the 
 balance of his account, on which credit had been given to him for the 
 amount of the bills discounted, and he had been debited with the 
 
 amount of the discounts. 
 
 (g) See i" r Parke, I'... Alsager v. Carrie, L2 M. & YV. 751, explaining Young v. 
 of Bengal. 
 
 .. YYil-on. 12 If. .v VY. 191. 
 (») Hawkins v. Wbitten, L0 IS. k 0. 217.
 
 BANKRUPTCY. 249 
 
 The transaction, as regards the bills, being considered to amount to a 
 loan of money, and not a purchase of the bills, the bankers were held 
 to be entitled, as indorsees, to set off in the action the amount of the 
 bills not due. 
 
 Even if a purchase of the bills had been made, it might either have 
 been proved against the estate, or made the subject of set-off in an 
 action. (k) For a bill is provable against the estate of the drawer before 
 dishonour by the acceptor, and if provable, then by the terms of the 
 statute it is a debt, and may be set off.(?) 
 
 The following is a case of set-off, not in bankruptcy. 
 
 Where the practice of a bank was to accommodate a customer, A., 
 with a loan of 1,000?., upon the security of his promissory note, which 
 was renewed every three months, the bankers, upon these occasions, dis- 
 counting the note, by placing the amount of it to the credit of A., as 
 cash paid in by him, and debiting him, on the other side of his account, 
 with the discount; each of these was considered *not as one con- r*33g-i 
 tinuous loan, but as separate transactions : and, therefore, the L J 
 bankers having, on the last transaction, (the note having fifty-three days 
 to run at the time of the death,) entered it to the debit of A.'s account, 
 allowing rebate of discount for the time it had to run, it was considered 
 they could not set off the 1,000?. against the executor's claim, before 
 the fifty-three days were out, for the balance of A.'s account. (m) 
 
 A question of very considerable importance, under this head, is, what 
 is the character of a deposit of money made by a customer with his 
 bankers, to meet a bill which he has accepted, payable there ; is it a 
 debt within the statutes of set-off, or in case the customer's balance on 
 his account is adverse, is there a mutual credit within the Bankrupt 
 Act ? Now, it seems, in accordance with the principles that have been 
 laid down previously, and with reason, that when a customer deposits a 
 sum of money for a specific purpose, and the banker receives it for that 
 purpose, he should not afterwards be entitled to turn round and claim 
 to set off the sum against money due to him from the customer ; and so 
 it has been decided, in an action of special assumpsit, &c. : and the cus- 
 tomer or his assignees upon his bankruptcy, may have an action, if 
 damage has resulted to the customer, from the bankers' disobedience to 
 his orders, in not applying the money deposited in payment of the bill ; 
 and, in such action, being for unliquidated damages, no set-off is plead- 
 able in answer,(») and the sum recoverable is the whole amount of the 
 bill,(o) or, of the money placed in the bankers' hands, andmisapplied. 
 
 The customer, or his assignees, it must be remembered, might, if they 
 had chosen, have treated the money, when the bankers misapplied it, as 
 a debt, and sued for it in indebitatus assumpsit, which would have 
 enabled the bankers *to have had the benefit of the set-off, but only r*33cn 
 in consequence of the form of the action, not upon the merits. {p) L 
 
 Insolvency.— It is material for bankers, who have to do with cases of 
 
 (k) Alsager y. Currie, 12 M. & W. 751. (I) Starey v. Barnes, 7 East, 435. 
 
 (m) Rogerson v. Ladbroke, 1 Bing. 93. , n « fc w eia 
 
 n) Bell v. Carey, 8 C. B. 887. («) Hill v. Smith, 12 M. & W. 618. 
 [p) See per cur. 12 M. & W. 618.
 
 GRAN! OS THE LAW OF LAN KING. 
 
 insolvency, to be advised, that a Blight misdescription, of their pla< 
 business, made in the schedule, and notice of the day of hearing the pe- 
 tition of the insolvent, if the notice has been actually served, at their 
 place of business, will not enable them to dispute the insolvent's dis- 
 charge, after it has been ordered, although, by I A: 2 Vict. c. 110, b. 69, 
 the insolvent is bound to deliver a Bohedule, containing a full and true 
 description of his debts, and of all and every person to whom he was 
 indebted, and although the banker- never, in fact, got the notice. (7) 
 
 [*340] *CHAPTEH XII. 
 
 THE RELATIONS OF SOCIETIES, ETC., AND OF PERSON- 1 I l.l.l Mi REPRE- 
 SENTATIVE CHARACTERS, TO RANKERS GENERALLY, AND TO THE 
 BANK OF ENGLAND. 
 
 Questions occasionally arise on the connection, in pecuniary matters, 
 between bankers and Friendly, and other societies, charities and public 
 bodies, and also between bankers and trustees, executors, directors, &c, 
 which are, perhaps, not always readily capable of solution, by reference 
 to the principles which have been shown to apply, where the question is 
 between a bank and a customer, with whom they deal in his individual 
 capacity. It has, therefore, been considered to be desirable to place 
 together, for facility of reference, some leading decisions as to these 
 matters, especially as regards transfers of stock, shares, dividends, &c. 
 
 Treasurers of Societies, &c. — The members of banks, individually or 
 collectively, frequently undertake the duties of treasurers to societies, trus- 
 tees, commissioners, and other public bodies, and several decisions have 
 been made pointing out their rights and liabilities in such cases, as well 
 as where public bodies are mere customers ; which it is necessary to state, 
 fur their guidance, in assuming these offices, and in dealing with such 
 bodies. 
 
 The first case we shall mention, is one rather bearing on this subject, 
 than one in which the bankers were; regularly made the treasurers of the 
 public body. 
 
 Win-re an Enclosure Act empowered certain commissioners to make a 
 rate to defray the expenses of passing and exi cuting the act, and enacted 
 that persons advancing money to them, should be repaid out of the first 
 
 r^mil 1I1 ""'. V raised} and ^expenses were incurred in execution of the 
 L -I act, before anj rate was made, the commissioners, to defray these 
 . drew drafts on their bankers, requiring them to pav the sums 
 then in mentioned, on account of the public drainage, and to place the 
 same to their account " commissioners. The bankers, for six yi 
 continued to advance considerable sums, h\ paying these drafts. 
 
 Brown, Jan on and others r. Thomp on, 25 L. J.. C. 1L Do.
 
 RELATIONS OF SOCIETIES, ETC., TO BANKERS. 251 
 
 Here it was held, that the commissioners were personally responsible, 
 to the bankers, for the amounts drawn for.(a) It was held also, on its 
 being shown to be a general practice with the bankers to make half- 
 yearly rests, in the accounts of their customers, and to charge interest 
 upon the balances then struck, and that they had done so in their 
 accounts with the commissioners, who had assented to such mode of 
 keeping the accounts, that the bankers were entitled to interest, reckoned 
 in this mode, upon the several sums advanced by them. (a) 
 
 Some paving commissioners make a banker their treasurer, without any 
 written appointment. Their private act gave them power to sue, by 
 their clerk, for any debt due, from any treasurer, or other person ap- 
 pointed by the commissioners to receive money, or his assignees, in case 
 of his becoming bankrupt, with money of the commissioners in his hands, 
 and that his assignees should pay such debt in full, in preference to all 
 other, except crown debts. Here it was held, as might have been ex- 
 pected, that the commissioners might sue by their clerk, the assignees, 
 and recover the amount of their money in the banker's hands, at the 
 time of the bankruptcy of the banker ; and also that the assignees were 
 liable, as standing in the place of the banker, for the whole of the pro- 
 duce of certain Exchequer Bills, which the banker had received, from 
 the commissioners, *and afterwards sold, without having paid po^n 
 over the produce, before becoming bankrupt, (h) «- J 
 
 When one of the partners in the banking house of Sir Claude Scott, 
 was treasurer of the Marylebone and Finchley Koads Trust, and ad- 
 vanced to the chairman of the trustees, who applied to him for such 
 advance, by way of temporary loan, for the purposes of the trust, a sum 
 of 2,000?., which the partner placed to the credit of the trustees, it was 
 held, that the money not having been borrowed on the credit of the tolls, 
 as prescribed by the private acts relating to the trust, the chairman was 
 personally liable. (o) 
 
 The Commissioners under an act of Parliament for lighting and paving 
 the city of Carlisle, were authorized, by writing under their hands and 
 seals, to elect and appoint a treasurer. 
 
 John Forster, one of the members of a banking house in that city, was 
 nominated treasurer, by an order of the commissioners, entered in their 
 book of proceedings, and signed by the chairman ; but the appointment 
 was not made by any writing under the hands and seals, &c, as required 
 by the act, nor was Forster ever required to give any security under the 
 act, for the due execution of the office of treasurer. He continued, how- 
 ever, up to the time of the bankruptcy of the house to act as treasurer, 
 that is to say, that the collector of the commissioners pays all sums re- 
 ceived into the banking house, but the cheques of the commissioners pur- 
 port to be drawn on Forster, individually as treasurer: they are not 
 however, presented to him, or paid by him, but by the banking house. 
 
 (a) Eaton v. Bell, 5 B. & Ad. 34. The form of the cheqque adopted seems to 
 have been defective, in not mentioning the place where drawn ; sec S. C. Eaton 
 v. Bell followed Horsley v. Bell, Ambl. 771 ; S. C, 1 Bro. C. C. 101, n. 
 
 lb) Frost v. Bolland, 8 Dowl. & R. 384 ; Dougap v. Bolland, 5 B. & C. G22. 
 
 (c) Parrott v. Eyre, 3 Moo. & Sc. 857 ; S. C, 10 Bing. 283.
 
 252 GRANT ON TIIE LAW uF BANKING. 
 
 Under these oircumstanoe, the commissioners « ere not allowed to prove, 
 for t lie moneys which they had in the hands of the bankero, at th.- time 
 of the bankrnptoy against the separate estate of Forster, but only to oomc 
 
 in as creditors, against the joint estate of the firing/) 
 
 *In dealing with joint stock trading companies, it is material 
 L -I for bankers before they make advances, t<> ascertain whether th. 
 directors who represent the company, by the constitution of the parti- 
 cular company, have power to borrow money; if they have not, such 
 advances will not, -generally, be recoverable from the company, as a 
 debt.(>) 
 
 ( 'uinmissioners were appointed by act of parliament, for improving, &c, 
 the harbour and the navigation of a river, running into the harbour; 
 they were empowered to levy rates and duties on vessels entering the 
 harbour, and also tolls on vessels navigating the river. A. and B. carried 
 on business in partnership as bankers, and A. being appointed treasures 
 to the commissioners, the moneys arising as above, were paid to him, and 
 were by him, from time to time deposited in the banking house ; the 
 account of sums received in respect of the harbour, was kept separate by 
 desire of the commissioners, from the account of sums received in resped 
 of the river, and the cheques of the commissioners were headed accord- 
 ingly, as the money was required for the one purpose or the other. A. 
 afterwards died, and no person being appointed treasurer in his stead; 
 and 13. carrying on the business alone, the moneys of the commissioners 
 were paid in as before ; and on the bankruptcy of B., it was held that 
 a debt due from him, on one of the accounts might be set off, against a 
 debt due to him on the other. (/) 
 
 Friendly Societies. — By the rules of a friendly society, which had 
 been duly allowed, certified, confirmed, ami enrolled under the Friendly 
 9 ties Acts, it was provided that there should be appointed a treasure! 
 or treasurers, in whose hands should be deposited all the cash belonging 
 to the society, until the same can be placed out on interest, upOD 
 L ' J *satisfactory security; and that, as soon as a sufficient sum 
 should be colledted, it should after leaving, in the club-box a sufficient 
 sum to pay the sick, and other expenses of the society, be deposited in 
 the hands of the treasurer or treasurers of the society, and that the clerk 
 and two stewards should take the same to the bank, &C. 
 
 By the present Bankrupt Act, VI & L3 Vict. e. L06, s. 167, it is 
 enacted, that if any person already appointed or employed, or who may 
 be hereafter appointed to, or employed in any office in any society. 
 established under any of the acts relating to friendly societies, and being 
 entrusted with the keeping of the accounts, A.<-., shall become bankrupt, 
 the court shall oo application of the society, &c., order payment and 
 delivery over, to be made to the sceiety, &C, of all moneys and other 
 
 things belonging to the Bociety, and also payment of all moneys remain- 
 ed) Kx parte Dobinson, 2 M. D. <v De G. 341. 
 
 i. parte Chippendale, 4 De G. M. .v <i. L9j I'-urmester v. NorrU, 6 Exch. 
 
 (/) Bi parte Pearce, 2 M. \f. k De G. l L2.
 
 RELATIONS OF SOCIETIES, ETC., TO BANKERS. 253 
 
 ing due, which the bankrupt received by virtue of his said office or 
 employment, before any other of his debts are paid and satisfied. 
 
 Money belonging to a friendly society had been lodged in the hands 
 of certain bankers, who afterwards became bankrupt, with a sum of 
 1321. Os. lid., of the society's moneys in their hands, and this money 
 they were alleged to hold, not as bankers of the society, in the ordinary 
 way of their banking business, but wholly as treasurers of the society. 
 It was not alleged that the bankers had been appointed to be treasurers, 
 or officers of the society, but only that they were employed in the office 
 as treasurers of, and in the society. 
 
 The commissioner having refused to make an order, for payment in 
 full, of the above sum, the lords justices dismissed with costs, an appeal 
 from his decision, considering the bankrupts not to have been employed 
 in any office, within the provisions of the Bankrupt Act.(#) 
 
 * Savings' Banks. — With respect to the liabilities of bankers, r^o^en 
 as treasurers of savings' banks, the following instance may be *- J 
 useful. 
 
 A. was appointed treasurer of a savings' bank, being at that time, a 
 partner in a banking house. The only account between the institution 
 and the banking house, stood in the names of the trustees of the savings' 
 bank, who drew upon the banking house in the usual mode, as between 
 banker and customer, by cheques, without any intervention on the part 
 of the treasurer, who, except as being partner in the bank, never received 
 or paid any money, on behalf of the savings' bank. On his appointment, 
 however, he entered into the usual bond with a surety, and the trustees 
 and treasurer, for twenty years, uniformly, in the annual returns repre- 
 sented to the commissioners for the reduction of the national debt, that 
 the last balance of the institution, for the time being, was in the hands 
 of the treasurer, in that capacity, and, therefore, represented it as being 
 under the protection of 3 & 4 Will. IV. c. 14, s. 28 (one of the statutes 
 relative to savings' banks, at that time in force,) and also under the pro- 
 tection of the board. 
 
 At the end of the above period, the banking firm became bankrupt ; 
 and it was held that, at that time the balance was in the hands of A., as 
 treasurer, and might be recovered in full, by the trustees of the savings' 
 bank, out of his separate estate. It was considered to be unnecessary to 
 decide, whether the banking firm was also jointly liable to the trustees; 
 but the trustees of the savings' bank, were held liable to the costs of 
 the proceeding, as having allowed of irregularities in conducting the 
 business of the institution. (A) 
 
 (a) Ex parte Orford, De G. M. & G. Bank. Rep. 83 ; see Ex parte Harris, De G. 
 Bank. R. 162 ; Ex parte Whipham, 3 M. D. & De G. 564 ; all cases where the so- 
 ciety, &c, was only on the ordinary footing of customer of the bank ; Ex parte 
 Riddell, 3 M. D. & De G. 80, is detailed above, p. 345 ; and is the case, where one 
 member of a banking firm was appointed treasurer of a savings' bank and on the 
 bankruptcy of the firm, the savings' bank was held entitled to have the whole of 
 the moneys of theirs, in his hands, repaid in full : see Ex parte Appach, 1 M. D. & 
 De G. 83. 
 
 (h) Ex parte Riddell, 3 M. D. & De G. 80.
 
 254 GRANT ON THE LAW OF BANKING. 
 
 r*3J ' l ^Treasurers of Corporations. — An incorporated company. 
 L ' -I authorized by their private act to appoint a treasurer, from whom 
 they were required to take security by bond, in a sufficient penalty, for 
 the faithful execution by such treasurer of such office \ Dilworth & Co., 
 bankers, in partnership, were duly elected treasurers, and the members 
 of the firm jointly and severally humid themselves, in a penalty of 20,0002., 
 for the due performance of the duties, &o., and also to pay all balances, 
 &c., to the company, when thereunto required by the said company. 
 Dilworth & Co. afterwards became bankrupt, with a large balance belong- 
 ing to thf company in their hands. 
 
 But, notwithstanding that it was shown that the account was kept, in 
 most respects with the bankers as treasurers, and not as a banking 
 account is ordinarily kept, with a customer, yet, there having been no 
 demand made by the company, to pay over the balance, in the hands of 
 the bankers, before the bankruptcy, and, consequently, no breach of th«' 
 condition of the bond, the Court of Chancery held the company dis- 
 abled from proving against the bankers undt /■ the bond, either jointly or 
 separately. (<") 
 
 Trustees, Executors, &c. — For the guidance of trustees, executors, 
 and other persons filliug representative characters, in dealing with 
 bankers and vice versa, it will be proper to state some principles, with 
 brief illustrations. 
 
 If the executors and trustees, under a will, having contracted to pur- 
 chase land, sell out stock, just before the time at which the purchase 
 seems to be completing, and deposit the proceed-^, intending merely a 
 temporary deposit, in the banking house with which the testator, for 
 many years hail kept an account, and the principal clerk in which had 
 been his confidential adviser in pecuniary affairs, they cannot be held 
 in equity, to be responsible, if the bank fails with the deposit in its 
 possession, (/r) 
 
 r*3i~n But it must not be too hastily concluded that, in all ca 
 L J where no fraud or gross negligence can be imputed, agents, &0., 
 arc freed from responsibility. Thus, it has been held, that any agent, 
 even an agent acting gratuitously, who pays money of his principal, evei 
 with knowledge of the principal, into his (the agent's) banker's, to his 
 own account, there mixing it with his own moneys, this last circum- 
 stance not being shown to be known to the principal, LS liable, on failure 
 
 of the bank.|/j 
 
 . an assignee of a bankrupt paying in money mixedly to his own 
 account, without denoting it as money of the estate in a separate account, 
 
 is liable on the bankruptcy of the bankers. (/) 
 
 - K- part* Lancaster Canal Company, Mont. R. li to construction 
 
 ol similar condition, Kx parte Fairlie, id. 17. 
 
 France v. Woods, Taml. U. IT'J: see Lord Dorchester v. Earl of Effingham, 
 id. 279; Etowtfa v. Bowell, 3 Ves. 565 j Knight r. Karl of Plymouth, :: Atk. 480; 
 Adams v. Claxton, 6 Ves. 226; Wren v. Kirton, 11 W.-. 311. Bo if the bank is 
 robbed ol the money : Jones v. Lewis, 2 Ves. en. 241. 
 
 ■ ;. v. Banner, l Jac. k W. 241, 248; Bee Pennell v. Deffell, 4 Do (:. M. 
 Pah-lie v. Freeman, 3 Meriv. 10,43; Napier v. Staples, 2 Molloy,
 
 RELATIONS OF SOCIETIES, ETC., TO BANKERS. 255 
 
 The rule generally applicable to dealings of trustees with banks, has 
 been sometimes put thus : if a trustee, &c, deposits trust money in a 
 bank of good credit, he is exonerated if the bank fail with the money 
 in its possession, (m) But, probably, it would be difficult to assign any 
 very precise meaning to these terms ; and in fact the requirement seems 
 to be, that the trustee, agent, &c, shall act with as complete bona fides, 
 and therefore with as much circumspection and care, as any prudent man 
 would do in the transaction of his own business. Now, a person paying 
 another's money, intrusted to his keeping, into a banker's, niixedly with 
 his own, cannot be said to act in the required manner ; for the trust 
 money thereby becomes liable to any set-off that the banker may have 
 against the trustee : if the banker fails, the cestui que trust is left with- 
 out any mode of ^showing for how much he is entitled to prove r#g^g-i 
 against the bankrupt's estate : if the trustee fails, the whole of L -I 
 the sum which stands to the trustee's credit in the banker's books, goes 
 to the assignees : if the banker's course of business is to pay interest on 
 money deposited, the trustee makes advantage of the cestui que trust's 
 money, by having the interest debited to him : and lastly, he obtains 
 credit, from the largeness of the balance in his favour at his bankers, so 
 that it has been held to be an employment. of money in trade, where 
 the trustee was a person engaged in trading, and so deposited trust 
 money. (ii\ 
 
 So, an attorney paying in client's money to his bankers, to his own 
 account, mixing it with his own, is liable on the failure of the bank, to 
 pay the whole to the client, (o) 
 
 If an attorney, employed to get in assets, &c, in the country, and 
 remit to town, procure a bill of exchange, drawn by a banker on his cor- 
 respondent in London, but, by mistake, made payable to his order, so 
 that it becomes necessary for him to indorse, he is not personally liable 
 as indorser, either to the indorsee, or to the bankers with whom this bill 
 may have been deposited, for purpose of presentment for payment, &c.(p) 
 A sole executor and trustee of the residuary personal estate and effects 
 of the testator, in trust for his widow, for her life, and after her decease 
 to pay, or otherwise divide the same in equal shares amongst his chil- 
 dren, pays 300?., part of the assets, into an old established banker's, at 
 Chichester, who had for many years been his own bankers, with a direc- 
 tion in writing to invest the money in consols in his name, for the pur- 
 poses of the trust. Instead of doing so, the bankers, without his know- 
 ledge, open a new account with him, in which they give him credit for 
 300?., the executor *and another person, his partner, having a p-349-1 
 joint account with the bank, in which no notice of the 300?. 
 appeared. The executor, relying that the investment had been duly 
 
 270 ; per Lord Lyndhurst, 3 Cla. & F. 66 ; Melland v. Gray, 2 Coll. Ch. R. 300 ; 
 see Sidn. Smith's Chanc. Prac. 440, 5th edit. 
 
 (m) Belcher v. Parsons, Ambl. 219 ; S. C, 1 Ld. Keny. 38. 
 
 (n) Rocke v. Hart, 11 Ves. 61 ; Ex parte Hilliard, 1 Ves. jun. 91, and cases there 
 cited; Melland v. Gray, 2 Coll. Ch. R. 301. 
 
 (0) Robinson v. Ward, Ry. & M. 274 ; 2 Car. & P. 59. 
 
 (p) Kidson v. Dilworth, 5 Price, 564. 
 
 February, 1857. — 18
 
 256 GRANT OX THE LAW 01 BANKING. 
 
 made, never called fur die transfer note, or made any other inquiry, and 
 remained in ignorance that the investment had not been made, until the 
 
 hanker- became bankrupt, a period of marly live months. The execu- 
 tor proved t'"r the 300/., under the fiat, and insisted that lie was net 
 bound t<> account for more than the dividend received, alleging that the 
 employment of hankers was the necessary, and only course available to 
 a person resident in the country, to invest money in the government 
 funds; hut he was decreed to pay the whole 300?., with interest, at four 
 per cent., and costs. (5) 
 
 Payment by hankers to one of several trustees, of the proceeds of 
 stock, sold out under a joint power of attorney from the trustees, does 
 not discharge the bankers, as against the other trustees, unless the one 
 trustee lie authorized by the others, or, perhaps, unless to pay to one be 
 the usual course of business, (r) At law, when trustees all join in a 
 receipt, prima facie all are considered to have received the money ;(s) 
 but executors nut being hound to join in a receipt, if they do, whether 
 they are all liable, will depend on their having acted. (/) 
 
 A will contained the usual clause, that the trustees should not be 
 liable for any loss or damage which might happen, without their wilful 
 default, or by the misfeasance, failure, or insolvency of any banker with 
 whom the trust moneys might be lodged for safe custody, ot investment, 
 or otherwise, in the execution of the trusts. 
 
 There were three executors and trustees of the will, one of them being 
 the testator's brother, to whom a moiety of the residuary property \\a> 
 r or/yi given o\.t absolutely, in the *event of the testator's infant 
 L J daughter dying under age, and unmarried. The trusts were, 
 inter alia, to convert, with all convenient speed, such parts of the tes- 
 tator's persona] estate as should not consist of money, and to invest the 
 surplus, &C., in some parliamentary stock. 
 
 A banking-house which had been employed by the testator, continued 
 to be employed after his death by the trustees, as the bankers of the 
 trust estate ; the house failed, and the trustees were held to be personally 
 chargeable, with the loss of a sum of trust money, which they had 
 allowed to remain an undue length of time in the bankers' hands, 
 instead of investing it, and with which in their hands, the bankers 
 failed, (it) 
 
 So, where executors advanced to their banker-- put of the testator's 
 
 assets upon the personal security of the bankers, who appear to have 
 
 given accountable receipt notes, bearing interest, for the money, which 
 was to be distinct from the general account current, they were held 
 liable for the loSS.(x) 
 
 (q) ChaUen v. Sbippam, i Hare. ."..'.:. ■. am! see S. C. reported in I r ill on Trustees, 
 
 (r) Stone v. Marsh, l:. . .-. M 364 ; jee tones \. StephenBon, l Mv. & Rob. l 15. 
 rice -. . Stokes, li Vea. 319. (I) Joy v. Campbell, I Sch. & L. 341. 
 
 (u) Movie v. Moyle, 2 Rubs, h M. 710, wbi onvenience of arrangement 
 
 that all thn e bonld i oncnr in signing cheques, id. 714. 
 
 Darke v. Ifartyn, I Beav. 525; Anon., Lofft. R. 192 ; Lewin on Trust.-:, 27.6; 
 comp. Wyatl v. Wallace, Coop. Rep. Temp. Cottenham, L56. Claim of banker 
 creditor, how made on administration summons, Sidn, Smith's Eq. Pract. 3G1.
 
 RELATIONS OF SOCIETIES, ETC., TO BANKERS. 257 
 
 Executors, being merchants and copartners, residing at Limerick, had 
 before and at the time of the death of the testator, kept an account with 
 Robarts & Co., bankers, in England, as their agents and correspondents, 
 and on the death of the testator, had opened another and separate 
 account, as executors : the executors being greatly overdrawn in account 
 with the bankers, the latter determined to apply all the assets of the tes- 
 tator which they had or should receive by virtue of the power of attor- 
 ney given them by the executors for that purpose, to the satisfaction of 
 the separate debt due from the firm to them ; they accordingly sold out 
 stock of the testator, and instead of carrying the proceeds to the exe- 
 cutorship account, they carried it to the mercantile ^account, r^oRi-i 
 and they then closed the executorship account, to the credit of L J 
 which there was, at that time, a considerable balance in their books : 
 the executors having at the time full notice and knowledge, authorize 
 the bankers by power of attorney to collect and receive the assets. 
 
 The bankers, remitting the amount to the executors, in course of their 
 duty as agents, and afterwards applying the assets, in payment of the 
 amount of such remittances, are not responsible, in respect of misappli- 
 cation by the executors, they not being privy to any intention of misap- 
 plying the assets :{y\ and it seems that even if they had reason to believe 
 that the executors were misapplying the money, they would still be bound 
 to act as they did ; at least they could not be responsible for paying over, 
 to the principals, mouey placed in their hands, for the purpose of being 
 remitted to thein.(_y) 
 
 The distinction seems to be this : if a banker, employed to receive and 
 pay over the assets of a testator, pay them over, so that they may be ap- 
 plied to the purposes of the will, he is not responsible for the executor's 
 misapplication, but if, in dealing with the executor, he pays the assets, 
 for the private purposes of the executor, he is particeps criminis, in a 
 breach of trust, and he is equally a party to the breach of trust, whether 
 he applies the money, to the debt, or to the trade of the executor.(sr) 
 
 If bankers of trustees, wrongfully sell out stock of the trustees, and 
 apply it to their own purposes, the measure of their liability in equity, 
 is the sum paid in replacing the stock. (a) If one of the banking firm 
 sells the stock, unknown to the partners, but under circumstances such 
 that they might, by the exercise of proper diligence and attention, have 
 discovered it, equity will impute knowledge, and hold them all liable. (a) 
 
 *If one executor places the testator's money in the hands of r^oKoi 
 the other, who happens to be a banker, so that the act is not an L 
 improvident act, the executor depositing, is not chargeable, in case of a 
 loss, inasmuch as if he had been sole executor, and had, under the same 
 circumstances, deposited at a banker's, he would not have been liable. (b) 
 
 If three executors have an account in their names, with a banker, and 
 one draws a cheque, it seems the bankers may refuse to cash it, if they 
 have received notice from one of the others, not to part with the money. (c) 
 
 {y) Keane v. Robarts, 4 Mad. 332, 356 ; see Davis v. Sparling, 1 Russ. & M. 64. 
 (z) See per Sir J. Leach, 4 Mad. 358, 359. («) Sadler v. Lee, '6 Beav. 324. 
 
 (b) Chambers v. Miuchin, 1 Ves. 198; Wms. Exors. 1552. 
 
 (c) Gaunt v. Taylor, 2 Hare, 413.
 
 25S GRANT ON THE LAW OF BANKING. 
 
 An executor, placing money, which he ought to have invested, in his 
 banker's hands, mixed with his own account, is liable for the amount, on 
 the failure of the bankers. ((2) 
 
 Receiver. — A receiver, under an order in chancery, is not liable, fur 
 sums deposited with a banker in good credit, provided there is nothing 
 to attach fraud, and no laches, (.,- if he has left the money, an unwar- 
 rantable time, in the banker's bands.) on the failure of tin' banker. In 
 such a case, a receiver will be liable, if he leaves money in the hands of 
 his bankers, and receives interest npon the sums so deposited, and the 
 bankers fail.M 
 
 Committees of Management, <&c, — A banker's receipt, of deposits paid 
 in respect of a projected railway, &C.,ia not, necessarily evidence of pay- 
 ments of the deposits, to the committee of management. Thus, where 
 the letter of allotment stated, "A receipt will be granted by the bankers 
 to whom the deposit is paid, which will be exchanged for scrip, \<\." 
 and a list of banks was added; it was held, in an action by a depositor, 
 against three members of the committee of management, f< >r money had, 
 and received, &c, that the receipt of his deposits, given him, by one of 
 the banks, in the *list, was no evidence of bis money ever having 
 «- J -l come to the hands of, or ever been at the disposal of the defen- 
 dant-.^/) 
 
 Stock in Public Funds. — The nature of stock and money in the public 
 funds, is this: stock is a chose in action ; it has no locality, except for 
 tlo- purposes of probate and administration j it does not fall under the 
 head of goods and chattels, so as to pass by a grant of /,<,„, i ,t cataUa 
 r',Im,, mi ;(/i) it has been said neither to be a chattel, nor to have any re- 
 semblance to a personal chattel ;(/) it cannot be sued for as money,^A) it 
 does not pass under the term "money," in awill;(/)but it does pass 
 under the term "securities for money," unless the expression be con- 
 trolled by the context ; it is doubtful, it seems, whether tin same is true 
 of Bank of England Stock. (m) However, stock in the funds has been 
 said to pass, or not, under the word " moneys," or the word " goods," or 
 the word "chattels," according to the whole context of the will, and cither 
 "goods," or "chattels," used simply, and without qualification, will pass 
 it in a will;('«<j and where the testator did not bank with the Bank of 
 
 Fletcher v. Walker. :: Mad. 73 
 (e) I ■ ' ' indesley, 8 Jar. 547. 
 
 iv Watson v. Karl of Charlemont, \2 Q. B 
 l;. \ . < Sapper, 5 Price, 217. 
 
 Wildman v. WHdman, 9 Ves. 1 19 ; see 6 Price, :>•;:•. •j*;.;. Imf they are "goods 
 and chattels" within tie- reputed ownership clan l Vict. c. Li 
 
 Brown r. I Had. 53; K\ parte Richardson, Buck, 480. Semble, they 
 
 Hre not or commodities" within the Bankrupt Act. 12 .s; 13 Vict. <-. Li 
 
 I '■• ■•• rville, - 1'. u 
 
 Nightingale \. Devisme, 2 W. Bla. 684; nor i- "money" in a contract, con- 
 vertible with " stock ;" Jonee \. Brinley, l I 5 II. Lds. 268. 
 
 rte Simpson, De «;. Bank, K. 9 ; Gordon v. Dotterill, 1 My. k K. 56; 21 
 '-.I ,( banc, i '■■'■: Willis v. Plaaket, i Beav. 208; Douglas v. Congreve, l Keen, 
 410: Hotham v. Sutton, 15 Ves. 319; but set r. Thomas, 2 Keen, 8. 
 
 (mj Bescoby v. Pack, l Sim. & St. 500; '-! It & Wai 
 (n) Kendall v. Kendall, 4 Rush. 360.
 
 RELATIONS OF SOCIETIES, ETC., TO BANKERS. 259 
 
 England, a bequest of » all my money in the Bank of England," passed 
 stock in the funds. (o) 
 
 *The Governor and Company of the Bank of England are con- r^or t-\ 
 stituted, by the statute 11 Geo. IV. & 1 Will. IV. c. 13, s. 10, L rf04 J 
 book-keepers, with respect to the three-and-a-half per cent, stocks, created 
 under that statute; it is a duty which they owe, to all the persons, who 
 may be interested in the fund, so to keep the account, as that it may 
 distinctly appear, at all times, what transfers and assignments have been 
 made ; and a person who once has had stock standing in his name, and 
 afterwards finds it does not stand in his name, has a right in equity, if 
 he has done nothing to transfer it, to have it replaced by the bank. An 
 action at law, it is said, is an inadequate remedy, (p) 
 
 If any person shall wilfully make any false entry in, or wilfully alter 
 any word or figure in any of the books of account, kept by the Governor 
 and Company of the Bank of England, in which books the accounts of 
 the owners of any stock, annuities, or other public funds, which now are, 
 or hereafter may be transferable at the Bank of England, shall be entered 
 and kept, or shall, in any manner, wilfully falsify the accounts of such 
 owners, in any of the said books, with intent, in any of the said cases, to 
 defraud any person whatsoever ; or if any person shall wilfully transfer 
 any share or interest of, or in any stock, annuity, or other public fund, 
 which now is, or hereafter maybe, transferable at the Bank of England, 
 in the name of any person, not being the true and lawful owner of such 
 share or interest, with intent to defraud any person whatsoever, every 
 such offender shall be guilty of felony. (j) 
 
 The transfer of stock, in the public funds, is further guarded, by 
 making it felony to forge such transfer ; or to forge a power of attorney 
 to transfer, or to receive dividends *thereon ; or to effect a trans- P355-1 
 fer, or receive dividends thereon, by false personation of the L l -■ 
 owner. (»■) 
 
 Moreover, the Court of Chancery is empowered summarily to restrain 
 the Bank of England, from permitting the transfer of any stock, in the 
 Public Funds, or from paying dividends thereon. (s) 
 
 Also the personating, of any person, who is an owner of stock in Public 
 Funds, or of dividends thereon, and thereby endeavouring to transfer the 
 stock, or receive the dividends, is felony, (t) 
 
 Clerks, or any person employed, or intrusted, by the Bank of England, 
 wilfully making out dividend warrants, for a greater or less sum than 
 what is really due, with intent to defraud any person whatsoever, are 
 also guilty of felony, (w) 
 
 son 
 
 279- 1 PhiL 356. As to bequest of bank stock, Lindgren v. Lindgren, 9 Beav. 
 358 J see 25 L. J., Ch. 573. \p) Sloman v. Bank of England, 14 Sim. 486. 
 
 (q) 11 Geo. IV. and 1 Will. IV. c. 66, s. 5. 
 
 (r) 11 Geo. IV. and 1 Will. IV. c. 66, s. 6. 
 
 \s) 5 Vict. c. 5, s. 4 ; as to affidavit, Ex parte Field, 1 Y. & C. Ch. 1. 
 
 (t) 11 Geo. IV. and 1 Will. IV. c. 66, s. 7. 
 
 (m) 11 Geo. IV. and 1 Will. IV. c. 66, s. 9. As to the practice, on transfer o.- 
 stock, see Lawson, Hist. Bank. 177.
 
 2G0 GRAM u.N Till: LAW OF BAKE IK 6. 
 
 An indictment for forging a transfer of stock is good, which charges 
 dsely making, forging, and counterfeiting, a transfer of, &c., with 
 the name of the owner thereunto subscribed, &c, " purporting to be a 
 transfer, from the owner, to cue William West, of the Stock Exchange/' 
 \r., and then Betting out the forged Instrument, although nowhere show- 
 ing that the stock had been accepted, 1>\ the alleged transferor, previous 
 to the alleged transfer, nor that the transfer was witnessed according to 
 the Btatutes, or the rules and directions of the Bank of England.(x) It 
 was contended, before all the judges, that without showing this, it did 
 not appear that the alleged owner was legally entitled, which by the 
 statute he was not, until he accepted; but the judges held, nevertheless, 
 as above, and the prisoner received sentence of death, and was executed 
 accordingly. 
 
 r*DCfi-i It appears to be the practice, that dividend- maybe *received, 
 L J at the bank, before the stock has been accepted) and that it is 
 the duty of the clerk, to sec the acceptance duly made, on occasion of 
 paying the dividends: in general, no transfer of stock can be made, 
 according to their practice, until it is accepted. (V) 
 
 Where a statute declared the stock, created under it, to be transferable, 
 as the act directed, and not otherwise, and then enacted, that the entries 
 of transfer shall be signed, by the parties making such transfers, &c, 
 and that any person to whom such transfer shall be made, shall under- 
 write his acceptance thereof, and that no other method of transferring 
 such stock shall be valid; and a person alleging himself to be holder of 
 stock, brings an action against the Bank of England, for not paying divi- 
 dends, he cannot dispute the title of the transferee, on the ground that 
 such transferee has not underwritten his acceptance, the claimant of the 
 dividends having himself executed the transfer, in the prescribed 
 mode, (a) and pocketed the price of the stock. 
 
 The statute in question expressly enabled the transferor to act by 
 attorney, but there were no such words as to the transferee underwriting 
 the acceptance ; however, it seems always to have been the practice, to 
 allow of the latter act being performed by attorney, equally with the 
 former. (u) 
 
 At law, it seems, the stock vests, by the transfer, for many purposes, 
 without acceptance ; (6) the direction, as to acceptance of this statute, 
 appears only to have reference to the rights of the transferee, against the 
 bank.(c) 
 
 (x) Gadc's case, 2 Leach, Cro. Ca. 732 ; Transfer Ticket, id. 737 ; see observa- 
 tion-, h Q. B. 705; Rules and Regulations of 1832, Lawson'a Hist, of Banking, 
 180. 
 
 (y) 2 Leach, Cro. Ca. 739. Stamp on mortgage, as Becurityfor the transferor 
 retransfer of stock ; Sweet, Supplement, Bythew. Conv. 253, 254. 
 
 (z) Foster v. Bank of England, 8 Q. B. sole On issue joined, whether plaintiff 
 was owner of the stock or not, held plaintiff was entitled to inspect the entry in 
 the hunk 1 looks respecting the transfer of this particular Btock, but that entry only, 
 8. C; form of Mich entry, 8. 0., id. To;;. In an action I . \ transferor against trans- 
 feree, clerk from hank may prove signature to acceptance ; hank books need Dot 
 be brought op, Mortimer v. If'Gallan, 6 II. & \V. 58. 
 Q. B. 703, 7o-l, 705. 
 
 Leach, 0. C 732; 8 Q. B. 705. 
 
 'c) 8 Q. B. 700. The power of attorney to transfer stock, it seems, by the usage
 
 RELATIONS OF SOCIETIES, ETC., TO BANKERS. 201 
 
 *If any person shall forge or alter, or shall offer, utter, dis- rj( .„, 
 pose of, or put off, knowing the same to be forged, or altered, L & ' J 
 any note, or bill of exchange, of the Governor and Company of the 
 Bank of England, commonly called a bank note, a bank bill of exchange, 
 or a bank post bill, or any indorsement on, or assignment of, any bank 
 note, bank bill of exchange, or bank post bill, with interest, in any of 
 the cases aforesaid, to defraud any person whatsoever, every such offender 
 shall be guilty of felony. (d\ 
 
 In an indictment, on this statute, though it would be incorrect to 
 describe a bank post bill, as a " bill of exchange," it may be described, 
 as a bank bill of exchange. (e) 
 
 With respect to the evidence of the intent to defraud, it is enough, if 
 the jury are satisfied, that the purpose to defraud existed in the mind of 
 the accused, when he did the act, for which he is indicted, although, in 
 fact, no person was defrauded ;(/) or, from circumstances not known to 
 the defendant, it was impossible that any person could have been 
 defrauded,(#) (but this does not extend, it seems, to render a defendant 
 liable upon an instrument which, if genuine, would have been void,(A)j 
 or the person, to whom the forged instrument is uttered, believes that 
 the defendant did not intend to defraud him; at any rate, where to 
 defraud *this person, would be the natural consequence of the , fi 
 act of uttering, because every one must be taken to contemplate L ' J 
 the necessary consequences of his own act. (A 
 
 A forged power of attorney, as has been observed, has no effect to 
 transfer stock standing, in the name of A., to the name of B. ; conse- 
 quently, since it is clear that the bank is liable at the suit of A., if it 
 obeys a forged power of attorney, and transfers accordingly :(k) in. such 
 circumstances A. may recover damages against the bank, for not making 
 a transfer, from A. to a purchaser of a part of the stock, or of the whole 
 of it. (A;) 
 
 If, however, A. had known of the forgery, and refused, or omitted to 
 apprise the bank of it, such conduct would disable him from recover- 
 ing.^) 
 
 and practice of the bank, is revocable by a stock holder, acting- personally, with- 
 out deed ; R. v. Wait, 11 Price, 518; S. C, 7 Moo. 473 ; see Lawson's Hist. Bank- 
 ing, 178 ; Bromley v. Holland, 7 Ves. 28. Stamp on bond to replace stock ; Blair 
 v. Ormond, 14 Q. B. 732 ; on mortgage, as security, for that purpose ; Sweet, Sup- 
 plem. Bythew. Conv. 253. Letter of attorney, winch is part of security for money, 
 is not revocable ; Abbott v. Stratton, 3 Jo. & L. 603. An authority, coupled with 
 an interest, is not revocable ; Gaussen v. Morton, 10 B. & G. 731 ; see 8 Rep. 82. 
 
 (d) 11 Geo. IV. and 1 Will. IV. c. 66, s. 3. As to signing bank notes by ma- 
 chinery ; 1 Geo. IV. c. 92, s. 3. 
 
 (e) R. v. Birkett, Russ. & R. 251. 
 
 (/) R. v. Crooke, Stra. 901 ; R. v. Goate, 1 Ld. Ray, 737. 
 
 (ff) R. v. Holden, Russ. & R. 154; Reg. v. Marcus, 2 Car. & K. 356. 
 
 (h) R. v. Wall, 2 East, P. C. 953, in case of a will ; R. v. Moffat, 1 Leach. Cro. 
 Ca. 431, case of B. of Exchange. 
 
 (t) R. v. Shepherd, Russ. & R. 16; R. v. Harvey, 2 B. & C. 261; Putting v. 
 Tucker, 4 B. & A. 382 ; and see now 14 & 15 Vict. c. 100, s. 8. 
 
 (k) Coles v. Bank of England, 10 A. & E. 449; Hume v. Bolland, 1 Cro. & M. 
 130. 
 
 (I) Stracy v. Bank of England, 6 Bing. 754; there the right of action was sus- 
 pended by the act of the plaintiff, id. 773.
 
 262 GRANT ON THE LAW OF BANKING. 
 
 If one of two trustees of stock forges the signature of his co-trustee, to 
 a power of attorney, ;uh1, under it, sells out stock, and absconds, the 
 bank is compellable, in a court of equity, to re-invest the stock, in the 
 name of the other trustee. (m) 
 
 \ joint tenant of a BUBO of stock cannot legally transfer his share; for 
 virtually, at least in the ease of two joint tenants, that would amount to 
 the power i<\' transferring the whole ;| n\ and if the survivor of two trustees 
 ofstock, in which A. was beneficially interested for life, with remainder 
 to B., dies, leaving B. his personal representative, and J>. voluntarily 
 _ as the Btock to A., but no transfer is actually made, equity will not 
 either declare B. to be a trustee for A., or compel a transfer. (o) It is 
 r*Q"Qn re S ar ^ C( l in *h e light *of an imperfect gift, in regard to which, 
 L J the donor has not done all that is in his power to do. It is dif- 
 ferent, in the case of a valuable consideration, for the assignment. 
 
 Inspection of Books. — The books of the Bank of England cannot be 
 inspected, by persons who have no interest in them, or who seek an 
 inspection, for purposes of a private nature, unconnected with the objects 
 for which the books are kept. 
 
 A fund-holder has a right to inspect, and copy entries relating to the 
 stock and its transfers, &c, in which he is interested; but he has only 
 the right, as to the particular entries, relating to the particular parcel 
 of Btock, and no other ;(p) and they are, accordingly, liable to furnish 
 a list of such of their books, as contain entries of stock, in which the 
 party applying is concerned, and the Courts of Equity enforce this. (a) 
 
 The bank books are, in general not removable, on the ground of 
 public inconvenience,(r) and they are now provable, either by examined 
 or by certified copies, (s) 
 
 The bank books are the best evidence of the transfer of stock, but 
 still, it was not always necessary, that they should he produced to afford 
 this proof; the signature of the alleged transferee, might be proved, by 
 a person who knew the party's handwriting, and had inspected the signa- 
 r*'irrn * ure °^ acce ptance, &c, in the books, &c. ;(/) but it was *said, 
 L ' -I when the question is whether the handwriting itself is genuine, 
 the books must be produced. («) 
 
 Formerly, it was obligatory on the Bank of England, by certain 
 statutes, to register such parts of every will, as bequeathed any estate, 
 property, or interest in any public stocks, or in any dividends arising 
 
 (m) Sloman v. Bank of England, I I Sim. 475. (n) 14 Sim. 488. 
 
 (o) Beech v. Kempe, 18 Beav. 285. 
 
 i /- 1 Poster v. Bank of England, 8 Q. B 689. stock broker's certificate, when 
 evidence of rands In books of Hank of England, I llvnn v. Bell, 2 Beav. 17 ; see Bre- 
 ton v. ('ope, Peake It. 30. 
 
 fyi Beslop v. Bank of England, 6 Sim. 192; sec l Iferiv. 100; Gough v. Davies, 
 I Price 200, 215. 
 
 (r) Mortimer v. M'Callan, 6 M. & W. 58, 87, 69; Tayl. Evid. 1233, 2nd edit.; R. 
 .. Gordon, DongL 572, a.; Davis v. Bank o( England, 2 Bing. 104. 
 (») 14 & IB Vict. c. 99, 8. 14; see 22 L. J., Chano. 696. 
 
 Mortimer v. M'Callan, 8 M. ,v w. 58. Expenses of identification at bank; 
 
 r, Powell, 8 Beav. 488; Davenport v. Powell, ii Sim. 275. 
 
 loriol v. Smith I of transferring, BTopkinson v. Roe, l
 
 RELATIONS OF SOCIETIES, ETC., TO BANKERS. 2G3 
 
 therefrom ; but by a later statute, (#) the provisions of which are sub- 
 joined, the Bank of England is relieved from this burden ; and, instead, 
 it is now made sufficient, if, before permitting the transfer of such stocks, 
 or the receipt of any dividends upon stocks, standing in the name of any 
 deceased person, they register the name of the deceased person, and of 
 his executors, or administrators, respectively, as the case may be. The 
 probate and letters of administration are to be registered as formerly. 
 Since the statute referred to also, all stocks in the public funds, standing 
 in the names of any deceased person, may be transferred by the execu- 
 tors or administrators, notwithstanding any specific bequest or disposition, 
 thereof in the will. 
 
 The Bank of England, however, is not bound to permit of the transfer 
 of the stock, or the receipt of any dividends, by the executors or admi- 
 nistrators, until the probate of the will, in the first case, or the letters of 
 administration in the other, shall have been left at the Bank of England, 
 for the registration thereof. But, though there be a specific devise, the 
 bank are bound to permit the executor to transfer, unless it can be shown 
 that he has assented to the legacy. (y) 
 
 The bank may also insist upon all the executors, who shall have proved 
 the will, joining and concurring in every transfer of the stocks, or of 
 any part of them. 
 
 ^Dividend Warrants. — By an usage of bankers and mer- pgg-m 
 chants in London, the Bank of England drafts upon their cashiers L 
 for the payment of dividends on government stock — commonly called 
 dividend warrants — with the receipts already subscribed, were passed 
 from hand to hand, like promissory notes of a bank, and paid by the 
 cashiers of the Bank of England to bona fide holders, after a certain day; 
 the admission of the payee that he has received the money appearing on 
 the document, and making it, as far as the bank is concerned payable to 
 bearer a few days later than the date of the receipt. But it has been 
 holden by the Court of Exchequer Chamber, that such instruments, on 
 the face of them, not being negotiable by the general law of the land, 
 and the usage not immemorial, so as to be capable of being considered 
 the custom of the city of London, and, therefore, binding upon every 
 one in the city, whether he knew of it or not, did not form the only 
 mode by which dividends were payable. Therefore, if A., an owner of 
 government stock, gives a power of attorney to B., authorizing him to 
 receive and give receipts for the dividends thereon, and B. gets from the 
 bank a dividend warrant accordingly, which he passes for good consi- 
 deration to C, who requires payment of the dividends by the bank to 
 him, the Bank of England, it seems, are not compellable at law to pay 
 C. the dividends, and could not on that ground, resist the payment of 
 them to A., the real owner, it not appearing to the court that the trans- 
 action between B. and C. was bona fide, as regarded G.,(z) and the court 
 doubted whether a bona fide holder could compel payment. (a) 
 
 (x) 8 &9 Vict. c. 97. rHr 
 
 (y) Franklin v. Bank of England, 9 B. & C. 156 ; S. C, 1 Russ. 575 ; b. L., 4 L. 
 
 J Chanc. 214; and as to costs. In that case the practice of the bank was upset. 
 (z) Partridge v. Bank of England, 9 Q. B. 396. Form of dividend warrant, id. 
 
 406, 416. («) See 9 Q. B. 426.
 
 264 . \ N 1 N THE L A W F Ji A N K I N 0. 
 
 If an usage had been established, as above stated, and tin- owner of 
 •k had been oognisanl of the usage, and *assented to it. 
 L "-I it might be that he could nut have sued the bank, though they 
 had paid C.(6) 
 
 If the Bank of England make an unreasonable delay in passing a 
 power of attorney for the transfer of stock, they are liable in damagea 
 for any loss sustained in consequence; they arc to have time to take all 
 reasonable means for clearing up any doubt as to the authenticity of the 
 power of attorney, which they may reasonably entertain; but it is tor 
 the jury to Bay, whether there was reasonable cause of doubt, and 
 whether reasonable means were taken to ascertain the truth; and if 
 they negative these propositions, there must be a verdict for the owner 
 of the stuck, which the bank have unreasonably delayed the transfer of.(e) 
 
 On the other hand, it is obvious that a reasonable delay, according to 
 the circumstances of each case, must be allowed tu the Bank of England, 
 in order to investigate the claim, because the property in stuck is not 
 transferred by means of a forged power of attorney to the name of 
 another person in the books of the Bank of England; and they are 
 responsible in the full value, or to replace the stock, if they obey a 
 forged power of attorney, (</) though the holder may disable himself by 
 negligence from recovering. (e) 
 
 This being the ease, it follows, — and it follows a fortiori, — that they 
 are responsible, by way of action, if they refuse to transfer, and a 
 mandumua dues not therefore go to compel them to transfer. (f\ 
 
 \ power of attorney to transfer stock, has been held to be a deed 
 within '1 Geo. II. C. 25, and therefore the forging of it was a capital 
 felony, (y) 
 
 r*oeq-i *I n an action, however, against the bank, for the nonpay- 
 L J ment of dividends in the three per cents, &c., alleged to be due, 
 and payable to the plaintiff, he must show, and prove, that the money to 
 discharge the dividends has been received by the bank from the govern- 
 ment, for the bank have no more than the care of the stock ; and, it 
 must be shown that they have funds, before they can be proved to have 
 committed a breach of duty, in not paying them over to the plaintiff. (A) 
 
 Trusts. — The Bank of England, it has often been said, does not take 
 notice of trusts; they are nut to look beyond the legal title; therefure 
 they cannot prevent an executor Belling out, or transferring into his own 
 name,(i) and are nut chargeable, if he transfers to persons not entitled 
 under tin- will.f'/-) There is a case decided in relation to this point, a 
 good mauy years ago, in which the facts were these : — 
 
 fb) Per Parke, J., I B. & A.d. 605 ; see 9 '.'. B. -ill, 412. 
 
 Sutton v. Bank of England, 1 Oar. .v I', la.: ; 8. <'., By. k M. 52 ; see 9 J. B 
 If00. 771. 
 
 (d) Davis v. Hank of England, 2 Bing. 393 ; S. 0., !• J. 15. Moo. 747, 774; see 6 
 Bing. 772. ' • v. Bank ol England, 10 A. & E. 437, 449. 
 
 (/) It. v. Bank of England, 2 Dongl. 524 : Oom, Dig. Action on the Case, A. 4. 
 
 B. v. Fauntleroy, 2 Bing. 413. 
 (h) Bank of Engl .-el \. he i-. 5 B. ft 0. 185; 1 Dowl. & R. 828 ; see 10 A. & K. 
 439, 449; 8 Q. B. 690; 3 lr. L. K. (N. 8.) 314. 
 (i) Bank of England v. Parson see 8 Ves. 622. 
 
 ^ v. Bank of England, 3 Ves. 55.
 
 RELATIONS OF SOCIETIES, ETC., TO BANKERS. 265 
 
 A transfer was made of stock at the bank, in the name of a feme covert, 
 by her husband, which stock, it was suspected, she held, by virtue of a 
 trust to her separate use. A memorandum was made by the bank on 
 the transfer, indicating that a flaw was suspected in the title. This, it 
 was held, must not be allowed ; it was further held, that no secret trust, 
 as against the party having open legal title, will affect the bank. 
 
 Lord Mansfield added, " I wont't say a word against the holder of the 
 stock having his action against the bank, for disparaging his title. "(/) 
 
 The fact is, if the bank looked beyond the legal title, for instance, if 
 they took notice of the trusts of a will, they must be held to take notice 
 throughout, and therefore they would have to stand the consequence of 
 resulting trusts, and such *trusts as would be raised by a court r^fii 
 of equity ;(m) in fact, if so, they would be charged with all the L J 
 trusts in the kingdom. (-/A 
 
 In reality, there is nothing in the statutes relating to the establishment 
 or regulation of the bank, which makes them trustees of the public funds 
 for any person ; if they voluntarily enter in their books a trustee's account, 
 they may, under certain circumstances, become liable for the obligation 
 of those trusts ; they stand much in the same relation to stock, that a 
 depositary of goods does to the goods ; if they have notice that the person 
 in whose name the stocks stand, is not the real owner, or holds subject 
 to a claim, and they, nevertheless, allow the transfer to be made, there 
 they may be, but then only, responsible for the transfer. (o) 
 
 It is common, in order to avoid the frequent recurrence of the neces- 
 sity of appointing fresh trustees — at least it is not uncommon when the 
 property is considerable — to appoint, in the first instance, four trustees ; 
 for then, on the decease of one, or even of a second, of the trustees, there 
 still remains the check, which one mind may be supposed to have over 
 tendency to dishonesty in the other. 
 
 In general, it is a rule with the Bank of England, not to allow a fund 
 to be transferred into the names of more than four joint owners. 
 
 In cases of a special character, as many as five or six have been 
 admitted, ex. gra. If A., B., C. and D. are trustees of one sum upon 
 certain trusts, and were also trustees of another sum, upon different 
 trusts, the bank, to prevent a confusion between the accounts, will 
 permit the transfer of one sum into the names of A., B., C, D. and 
 E.(j>) 
 
 When an account at a banker's is opened, with two or *uiore pgg^-i 
 trustees, it is safest for the trustees to lay down the rule that L -" 
 cheques shall not be valid, unless signed by all ; this is not always prac- 
 ticable, but it always avoids the consequences that may result to the rest 
 of the trustees, who have allowed one or more of the body to take the 
 sole management; each of the rest will be personally liable for any loss, 
 
 (I) Lady Mayo's case, Lofft's R. 65. 
 
 (m) Bank of England v. Parsons, 5 Ves. 669 ; see 3 Ves. 58. 
 In) 3 Ves. 58. 
 
 (o) Humberstone v. Chase, 2 Y. & Col. Ex. 209 ; see 9 B. & C. 156; 1 Russ. 
 575. 
 
 (p) Lewin on Trusts, 83, 2nd edit. ; Hill on Trustees, 452, 453.
 
 2G6 GRANT ON THE LAW OF BANKING. 
 
 if he has diminished the Becurity of the trust fund by any conduct, or 
 laches, or negligence on his part.(y) 
 
 Any claimant to an interest in Btock, transferable at the Bank of Eng- 
 land, standing in the name of any other person, &c, in the bank books, 
 who is desirous to restrain the transfer of Such Stock, or to restrain the 
 payment of the dividends thereof, issues a distringas, prepared In hu 
 solicitor, and sealed by the clerk of records and writs, in the form pie- 
 scribed in a late statute. M The writ is then to be served on the Bank 
 of England, together with a notice not to permit the transfer, or not to 
 pay the dividends, as the case may be. 
 
 That a person has obtained a disti ingas under s. 5, is not, per sc, an 
 objection to his also obtaining a restraining order under s. 4.M 
 
 Such restraining order continues in force until discharged, after a bill 
 has been filed for the purpose of restraining, &c. ;(^) or, until the court 
 varies or discharges it.(») 
 
 As the bank can look only to the legal title to the stock, it follows, 
 that they cannot pay the dividends to any one else but the person having 
 the legal title, under any circumstances; the following is a strong 
 example of this : — 
 
 A testator dies, possessed of a large sum in the funds, a sum of 5,0007. 
 of which, he becpueaths to A. ; this stock to stand in the name of the 
 r*3f PI exocu t° rs - Then a judgment is *obtained against A., and the 
 L -J creditor takes out a judge's order, under 1 & 2 Vict. c. 110, ss. 
 14 & 15, charging with the judgment debt, so much of the dividends 
 only as was payable to the sole use and benefit of A. Accordingly, the 
 bank refused to pay the dividends upon the sum of which the testatoi 
 died possessed, to the executors; they, therefore, brought an action 
 against the bank, to recover one half-year's dividend then due; and the 
 hank applied for a stay of proceedings, on payment of such portion of the 
 dividends as the court should direct; but the court considered the appli- 
 cation to be unnecessary; because the bank was not affected by the 
 judge's order, which bound the executors, not the bank; their duty, in 
 such case, is to pay the dividends to the executors, the legal owners of 
 tie ~tock, who are answerable in equity for the proper application of the 
 dividends, (V) upon the production of the judge's order, charging the 
 stock, or dividends. (y) 
 
 The statute 1 & '1 Viet. c. 110, s. 14, prevent- any proceeding being 
 taken, to have the benefit of the charge, until after the expiration of six 
 calendar months from the date of the charging order; but, nevertheless, 
 the Court of Chancery will make a stop order at the instance of the credi- 
 
 (y) Williams v. Nixon, 2 Bcav. 475. 
 
 (r) 5 Form of affidavit, Orders, 1811; Beav. Ord. Cane. 18C ; 
 
 Sian. Smith. Chanc. Pract., 5tfa edit. 488. 
 
 (*) In re Man,, of Hertford. 1 Han-. 584 ; S. C, 1 Pliill. 129. 
 (() In re Harq. of Hertford, l PhilL 203. Phill. 207. 
 
 O) Fowler y. Ohurchffl, 11 If. .v. if. 57, 323; 8. 0., 2 Dowl. N. B. 767 ; Bristed 
 [king, :; Hai Smitb <r. Ward. 15 Sim. .".■:: Bee 1 Beav. 605 ; i De <i. St. 
 
 - 2 Dowl. N. 8. 565; 2 Exch. Til; and Bee Rogers v. Halloway, 5 M. & 
 Robinson v. Uurbidge. :- 0. B. 2H9.
 
 RELATIONS OF SOCIETIES, ETC., TO BANKERS. 267 
 
 tor, to prevent the debtor from receiving dividends of the stock accruing 
 within the six months. (z) 
 
 Where a question of equitable lien on the stock is depending, and the 
 bank, in consequence, refuses to permit a transfer of it; the bank is 
 regarded as a stakeholder, and the Court of Chancery refuses to make an 
 order to compel the *bank to permit the making the transfer; (a) r ^.o a7 -. 
 on the other hand, the Courts of Equity, on a proper applica- L ° "J 
 tion, will restrain the bank from transferring stock, without notice to the 
 party interested. (&) 
 
 A purchaser of a life interest in stock, sold before a master in chancery, 
 was held to be entitled to a dividend becoming due on the day next after 
 the sale.(c) 
 
 Where the bank is necessarily made a party to a suit for the transfer 
 of stock into the name of an executor, to whom it had been bequeathed 
 in trust, and the bank is made party for the security of the legacy, its 
 costs are paid out of the legacy. (d\ 
 
 All trustees,(<>) or other persons, having any annuities or stocks stand- 
 ing in their name in the books of the Bank of England, or any government 
 or parliamentary securities standing in their names, or in the names of 
 any deceased person of whom they shall be personal representatives, upon 
 any trust whatsoever, or the major part of them, U. e. the major part of 
 the trustees or other persons,) shall be at liberty to transfer or deposit 
 such stocks, or securities, into or in the name of the Accountant-General 
 of the High Court of Chancery, with his privity, in the matter of the par- 
 ticular trust, (describiug the same by the names of the parties, as accu- 
 rately as may be, for the purpose of distinguishing it,) in trust, to attend 
 the orders of the said court. And in every such case, the certificate of 
 the proper officer of the transfer, or deposit of such stocks, or securities, 
 shall be a sufficient discharge to such trustees, or other persons, for the 
 *stocks, or securities, so transferred, or deposited. (e) And the „„„ 81 
 Court of Chancery will make order on petition — not motion^/) L J 
 — in respect of such stock and securities, or dividends, &c, &c. The 
 order to have the same effect as if it had been made in a suit regularly 
 instituted. (#) 
 
 If trustees join in a receipt, prima facie, all are considered, at law, to 
 
 (z) Watts v. Jefferyes, 3 Mac. & G. 372 ; Bristcd v. Wilkins, 3 Hare, 235. It is 
 only a common law judge who can make this order. Hulkes y. Day, 10 Sim. 41. 
 As to stop order, S. C, and see 13 Sim. 259. As to form of judge's order, Robin- 
 son v. Burbidge, 1 L. M. & P. 94; see Graham v. Connell, id. 438; Morris v. Ma- 
 nesty, 7 Q. B. 674 ; and see Robinson v. Wood, 5 Beav. 388. 
 
 (a) Birch v. Corbyn, 1 Bro. Ch. C. 571. As to transfer of stock into court, 
 Headl. Dan. Pract. Ch. 1650 ; from one account to another, id. 1658 ; transfer of 
 stock out of court, id. 1659. 
 
 (b) Ex parte Field, 1 Y. & Col. Ch. 1 ; 5 Vict. c. 5, s. 4 ; see 40 Geo. III. c. 36 ; 
 Headl. Dan. Pract. 155, 157, 1552; Perkins v. Bradley, 1 Hare, 232, as to costs; 
 In re Marq. of Hertford, 1 Hare, 584, form of affidavit; and see 1 Phill. 129. 
 
 (c) Anson v. Towgood, 1 Jac. & W. 637. 
 
 (d) Hammond v. Neame, 1 Swanst. 35 ; see Headl. Dan. Pract. 1551. 
 
 (e) 10 & 11 Vict. c. 96, s. 1 ; and see 12 & 13 Vict. c. 74, amending this act. 
 (/) Harrison v. Masselin, 21 L. J. Chanc. 53. 
 
 (ff) 10 & 11 Vict. c. 96, s. 2; see General Orders, Beav. Orders, 369.
 
 G B A N I OS Til B I. A W OF i: A X K I X G . 
 
 haw received the money, (/i) but executors are not bound to join in I 
 :t ; it' they '1", whether they are liable or not, will depend on their 
 aoting.lt) 
 
 The Lord Chancellor is now empoweredYA;) to make an order, in writing 
 vesting in any person or persons the right to transfer the Btock standing 
 in the name of a lunatic trustee, or mortgagee, or the right to receive the 
 dividends, as the case may be : and when the stuck stands in the name 
 of the lunatic, jointly with other persons, the order may vest such right, 
 either in the other persons, who are jointly interested with the lunatic 
 or in them jointly with other persons. (/r) So, where stock is standing 
 in the name of a deceased person, trustee, whose personal representative 
 is a lunatic, a similar order may be madc(/) Bo, in the case if the person 
 in whose name, jointly with others, the stock stands upon any trust, is 
 out of the jurisdiction of the Court of Chancery,) m) or cannot be found,(n) 
 or concerning whom it is uncertain whether he is living or dead, an order 
 may be made to vest the right, etc., either in such of the original trus- 
 tees as are within the jurisdiction, &c, or to vest it in them, together 
 with other persons. (o) 
 
 r*3rcn *Infa>nt> — So, when an infant shall be entitled to any stock, 
 L -I upon any trust, or shall be entitled, jointly with other persons, 
 upon any trust, an order may be made to vest the right, &c, in any per- 
 son or persons, in the first case, — in either, the persons interested jointly 
 with the infant, or in those persons, together with others, in the second 
 case.(p) Also, when any person shall neglect or refuse to transfer stock, 
 or receive dividends, for twenty-eight days after date, of an order in 
 Chancery, an order may be made, vesting the right, &c, in any person, 
 &e.(q) And the Bank of England is bound to comply with all such 
 orders, vesting the right to stock, to transfer stock, or to receive divi- 
 dends, and with powers of attorney, executed by such appointees, under 
 such orders, (r) 
 
 Ft mt < 'ovt rt. — If stock stand in the name of a married woman, in the 
 books of the bank, it seems that there may be circumstances, in which 
 she might maintain an action for the dividends, subject to a plea in abate- 
 ment for the non-joinder of the husband ;(s) that is to say, unless the 
 bank pleads in abatement, she may recover. 
 
 Stock in the public funds, standing in the names of two persons 
 jointly, on the death of the one. becomes at law, the absolute property of 
 
 [h) Brice v. Stokes, 1 1 Ves. 
 
 ..II. 1 Sch. & L. 341. (k) 13 & M Vict. c. CO, s. 5. 
 
 (I) L3 A 11 Vict. <•. 60, .-'. 6. (m) Sec 5 Sim. 498; 3 C. B. 967. 
 
 See 12 Sim. 161. 
 (o) 13 <k M Vict. C. 60, s. 22. As to it of jurisdiction. V.x parte Brad- 
 
 Bhaw, 22 L. .J.. Ch. 180. 
 
 (p) 15 k 16 Vict. C. 55, b. '■'■■ Since this act, the court may make the order, in 
 of an infant sole trustee, though oul of the jurisdiction. Cramer v. Cramer, 
 5 De <:. .v S. 312. 
 
 L5 A 16 Vict. c. 55, s. 4. So in case of personal representative of deceased 
 person refusing, s. 5 ; see 5 De G. & S. 33s 284. 
 
 (r) 15 & 1*; Vict. c. 53, s. G. remedying the difficulty in Re Smyth's Settlement, 
 •i DeG. 
 
 («) See Dalton v. Midland Counties Railway Company, 13 C. B. 474.
 
 RELATIONS OF SOCIETIES, ETC., TO BANKERS. 269 
 
 the survivor, and therefore the administrator of the deceased cannot 
 maintain against the survivor an action at law, to recover the deceased's 
 share, although, if there be a trust in favour of a third person, the sur- 
 vivor may be responsible in a court of equity to dispose of the property 
 according to the trust. (<) 
 
 *It would seem, that in all cases, other than those provided for r ^o 7n -, 
 as above by the various statutes cited, of a number of persons L J 
 paying in money, in their joint names, to the Bank of England, in case 
 one or more of them should abscond, there would be a necessity for an 
 application to a Court of Chancery, to enable the remaining members of 
 the original number, or body, to get out the money, unless they could 
 satisfy the bank that the others were dead.(«) 
 
 Contracts for Sale of Stock. — A contract for the sale of stock, differs 
 from a contract for the sale of a specific chattel ; inasmuch as stock does 
 not belong to the head of chattels, as before observed ;(:e) and, therefore, 
 a contract for the sale of stock would be satisfied, by the delivery of any 
 stock of the description bargained for; consequently, what is usually 
 called a contract for sale in such case, does not mean an actual sale, but 
 only a contract to deliver, and suet contract is not a contract for the 
 sale of " goods, wares, or merchandise," within the 17th section of the 
 Statute of Frauds, so as to require a memorandum in writing.^) 
 
 It may be well for bankers, and other traders, to remember, that no 
 bankrupt is entitled to a certificate of conformity, who shall, within one 
 year next preceding the issuing of the fiat, or the filing of the petition 
 of adjudication, have lost 2007. by any contract for the purchase or sale 
 of any government or other stock, where such contract was not to be per- 
 formed within one week after the contract; and railway stock is within 
 the enactment. (z\ 
 
 Generally, with respect to shares, it must be remembered, in cases 
 where a power of attorney " to sell, assign, and transfer," is held by an 
 agent, that does not give him the *right or power to pledge for r^o-i-i 
 his own purposes, as to secure his own debt; the same is true of L J 
 a power of attorney, in like terms, as to stock in the funds ; those deal- 
 ing with the party who acts ex mandate, must look to the mandate, to 
 see whether he is acting within its scope. («) 
 
 There is, however, no such analogy, (as regards specific performance,) 
 between a contract for the sale or purchase of a sum in the three per 
 cent, consols, or any other government stock, which is always in the 
 market, and to be had by any person who applies, and where the vendor's 
 contract is fulfilled and satisfied by the tender of any three per cent, 
 stock, and a contract for the sale or purchase of specific shares, which 
 
 (t) Crossfield v. Such, 8 Exch. 825 ; S. C, 22 L. J., Exch. 325. 
 
 (u) Ex parte Collins, 2 Cox, Ch. C. 427. (*) Sup. p. 353. 
 
 \y) Hesel-tine v. Siggers, 1 Exch. 856: see plea of gaming, &c, Knight v. Fetch, 
 15 C. B. 566. 
 
 (z) Ex parte Mattheson, 1 De G. M. & G. 459 ; Ex parte Copeland, 2 De G. M. & 
 G. 914. 
 
 (a) De Bouchont v. Goldsmid, 5 Ves. 211 ; Wilson v. Moore, 1 My. & K. 351 ; 
 see 7 Moo. P. C. 76. Stamp on letter of attorney to sell, transfer, or receive 
 dividends of stock and exemptions. Sweet's Supplement, Bythew. Convey. 249.
 
 270 GRANT ON THE LAW OF BANKING. 
 
 arc numbered} and of course cannot be had to a larger extent than the 
 limited Dumber, and may not, therefore, be in the market at all, as 
 garde specific performance of the respective contracts ; fur there may be 
 a specific performance of the latter, and equity will enforce it; there 
 cannot be of the former. (M 
 
 If a bankrupt, for the purpose of defrauding his creditors, purchase 
 stock, of which he obtains the transfer into a fictitious name; the courts 
 of equity will afford relief to //" creditors, by ordering the Bank of Eng- 
 land ti> erase the fictitious name and insert that of the bankrupt as the 
 transferee -(c\ but it seems doubtful whether anything the courts can do 
 will save the bank from the risk of applications hv persons whose real 
 names may be identical with the feigned name, which appears on the 
 books as, at one time, owner of the stock ;(</) the alternative is, for the 
 _.,-. bank *never to admit the name of the transferee, without being 
 L ' ~J satisfied that there is a real person corresponding with the de- 
 scription of the alleged transferee. Possibly it was some consideration 
 of this kind, which led to the difference above mentioned, as made by 
 statute between the transferor and transferee; the one having a right to 
 transfer by power of attorney; the other not being empowered to accept 
 by attorney. 
 
 Charity Trusts. — The Bank of England, according to a case of great 
 importance, which was much discussed and finally decided in the Court 
 of Exchequer Chamber, in Ireland, and which, so far as it is of au- 
 thority at all, bears directly on the subject now before us, is bound, in 
 cases where stock in the public funds stands in the name of an incorpo- 
 rated body — ex. gra. a body of trustees of a charity — to be acquainted 
 with the corporation, so as to have a genuine authority for the disposal 
 of the property, by transferring it into another name. It is not Buffi- 
 cient to examine the seal with which the power of attorney to transfer is 
 sealed, to see if it is the common seal of the body, for that may have 
 been affixed without authority of the corporation, in which case the 
 power of attorney is not their deed, and does not bind them; but the at- 
 testations to the affixing of the common seal must also be examined, in 
 order that the bank may be satisfied that the authority is valid, accord- 
 ing to the Btatutes ; unless the bank know or find, upon inquiry, that such 
 attestations are made in the handwriting of two credible witnesses, tiny 
 will not perforin their duty if tiny permit the transfer to be made, al- 
 though they may be satisfied that the sealing has been effected by the 
 u-e of the common seal of the body. They are bound to as minute ami 
 Careful an inquiry before they transfer, or permit the transfer of the 
 
 money, as if the money were their own •, anything less than this makes 
 .._. them liable, for tiny are parliamentary ^bailees of the stock, 
 L -I wit 1 1 the obligation imposed upon them for profit of keeping the 
 books, which constitute the muniments of the owner's title. (V) 
 
 (h) Dnncufl v. Albrecht, 12 Sim. I99j Bee 5 Mure. 242, 
 (<■) Green v. Bank of England, 3 Y. *v Col. Ex. 722. 
 
 (<l) See Davis v. Bank of England, :• -J. B. Moo. 7 17 ; and see 3 Y. & Col. Exch. 
 724. Inspection of books of Bank of England, l Meriv. toy; Scion's Decrees, 13, 
 
 («) :: lr L. R. X. S.) 354, 365, 372 ; see Young v. Grote, 4 Bing. 253 ; Marsh \ . 
 ting, 2 CI. k V. 264.
 
 RELATIONS OF SOCIETIES, ETC., TO BANKERS. 271 
 
 Corporations. — Not only is the Bank of England liable, as has been 
 said, if it transfers government stock in virtue of a forged power of at- 
 torney, in ordinary cases of individuals, but if the common seal of a cor- 
 porate body holding stock, be improperly affixed to a letter of attorney, 
 without the knowledge or consent of the corporation, even though affixed 
 by their agent, provided they have not subsequently ratified his act, and, 
 in consequence, and upon the production of the forged instrument, the 
 bank make the transfer, they are liable in an action, at the suit of the 
 corporation, for not transferring the stock, and for permitting it to be 
 transferred without the authority of the plaintiffs. (/) The agent in the 
 case referred to had signed the power of attorney, and his signature was 
 well known at the bank to be that of the agent of the corporation ; but the 
 attestations affixed were forgeries. In fact, it is the duty of the bank to 
 prevent the entry of a transfer in their books, until they are satisfied 
 that the person who claims to be allowed to make it, is duly authorized 
 so to do. Were the law otherwise, the whole property of every stock- 
 holder would be at the mercy of the bank clerks. If it could be shown 
 that the corporation neglected to take proper measures for the safe and 
 close custody of its common seal, so as to be chargeable with having it- 
 self contributed to the loss, then, perhaps, according to the rule, that, of 
 two innocent parties, he shall bear the loss whose conduct has *led r*o~,-| 
 to the result, the corporation, as between them and the bank, L ° J 
 must suffer, (ff) If, however, the corporate body were trustees only of 
 the stock, they might be answerable over in equity to the cestuis que 
 trustent. It is to be observed, also, that there would be this objection 
 to the plaintiffs being defeated, even on the above supposition, namely, 
 that the attestations are a statutory part of the power of attorney, and 
 that the plaintiffs could not be said to have authorized the agent to forge 
 the attestations. (#) 
 
 Unclaimed Dividends.— By the 56 Geo. III. c. 60, all stock in the 
 public funds, upon which dividends have remained unclaimed for ten 
 years, is authorized to be transferred to the account of the commissioners 
 for the reduction of the national debt, in the books of the Bank of Eng- 
 land j the statute also authorizes the Bank of England to re-transfer such 
 stock to any person who shall show, to the satisfaction of the governor 
 of the Bank of England, his right or title thereto, but if the governor 
 shall not be satisfied of the legality of such claim, the courts of chancery 
 or exchequer may, upon petition of such claimant, &c., make order for 
 the retransfer, &c. 
 
 Under this statute it is not necessary for the claimant to show himself 
 to be beneficially interested in the stock ; to prove a legal claim to it is 
 sufficient, (/i) But then it is not a matter of course, where there is any- 
 
 (f) Bank of Ireland v. Evans's Trustees, 3 Ir. L. R. (N. S.) 280. Forgery of 
 such attestations, felony, 11 Geo. IV. and 1 Will. IV. c. 66, s. 8. It will be cogent 
 to show the non-assent of the corporation to the act of their agent, if they lme 
 prosecuted him to conviction for the forgery, at their own expense. 
 
 (ff) See Ir. L. R. (N. S.) 314, 322, 323-336, 352. 
 
 (a) 3 Ir. L. R. (N. S.) 374. 
 
 (A) In re Bigg, 1 Y. & Col. Exch. 245 ; see Ex parte Holland, 8 Jur. 2d3 ; 1 Fhill. 
 
 February, 1857.— 19
 
 272 GRANT ON THE LAW OF BANKING. 
 
 thing to indicate the parties not to be beneficially entitled, to order a re- 
 transfer upon the claimants making out a legal title, such a.s a transfer 
 would have been made to him upon, if the ten years had not elapsed ; 
 thus, if the Btock stands in the came of two persons, of whom one sur- 
 vives the other upwards of ten years, but has not, during that time, 
 
 . . *elaimed any dividends, the court refuses, upon petition of the BUT- 
 
 L ' -I vivor's widow and personal representative, to order the stock to 
 be re-transferred into her name, or into the names of the two deceased 
 persons, hut directs a reference to inquire who is entitled to the stock, 
 with liberty to state special circumstances. (A 
 
 It is the legal owner of the stock — the person, or his representatives, 
 in whom is the legal title — that is to have the re-transfer; the cestui que 
 trust has no right to it.(Z-) 
 
 Bank Stock. — An investment by trustees of trust money in Bank of 
 England Stock, though it be practically as safe as any government funds, 
 is not regarded by the courts of equity as a proper disposition of trust 
 moneys, and, upon knowledge of the existence of the fact that such an 
 investment has been made, they will order the stock to be sold, and the 
 .proceeds invested in the three per cents. If, therefore, any loss should 
 be occasioned to the trust estate by the fluctuation of the bank stock, or 
 of the government stock, between the dates when the investment was 
 made by the trustee, and the re-investing in the three per cents., the 
 trustee must make good the difference.^) 
 
 But, upon a loss sustained by the result of depreciation in the three 
 per cents., the trustee, upon a proper investment, is not liable for the 
 difference, (m) 
 
 An extraordinary division of a sum of money among the proprietors 
 of bank stock, beyond the usual dividend, byway of bonus, is considered 
 as an accretion to the capital ; therefore, the tenant for life of the bank 
 stock, in respect of which the division is made, is not entitled to the 
 sum given by way of bonus, but only to the dividends upon it considered 
 r*q-f>-| * as capital, as they accrued during his life ;(//) it makes no dis- 
 L -I tinction that the division was in money, and not in stock ; that 
 did not cause it to be considered as a profit arising and payable in the 
 time of the tenant for life, and to which, therefore, he was entitled, in- 
 asmuch as all the profits, ordinary and extraordinary, arose in the same 
 way.(«) 
 
 Tin courts of equity are in the habit of making orders in such cases, 
 to lay out the money in some of the public fund-, and to pay over the 
 dividends to the tenant for life, during his life. (/A 
 
 Ch. R. 379, as to costs; ami E] parte Martin. Jac. 55; Hunt v. Peacock. 6 Bare, 
 361. 
 
 Ex parte Bam, .': My. & ('. 25 ; Bee in case of bankruptcy, &c, Ex parte Gil- 
 lett, 3 Mad. 28 ; see farther, Ex parte Lavell, 2 Jac. <v \\ . 397. 
 . Mad. 33 ; sec B A: 9 Vict. c. 62. 
 
 {/) Hancom v. Allen. 2 Dick. 498 ; Clough v. Bond, 3 My. & C. 40G ; see ! 
 137, 150. 
 
 (m) Peat v. Crane, 2 Dick. 499, n.: see J My. & C. 496. 
 
 (n) Brander v. Brander, 4 Ves .802; brine v. Houston, (Dom. Proc. 1 802,) 10 
 Vcb. 189; 14 Ves. 70, 78; 13 Price, 77 1 ; ParU v. Paris, L0 Ves. 185; Clayton v.
 
 RELATIONS OF SOCIETIES, ETC., TO BANKERS. 273 
 
 Nor does it make any difference that the "participation" in the inter- 
 est and profits be mixed by the bank with the ordinary 3} per cent, di- 
 vidend, and the two declared as a single dividend of 8$ per cent.(o) But 
 when it appeared to the court, in the case of tenants for life, who had 
 been in possession of the bank stock for a number of years, that the di- 
 vidends declared by the bank had increased from 2 J per cent, to 3 per 
 cent., and from 3 per cent, to 3? per cent., and then 5 per cent, was de- 
 clared as "the dividend of interest and profits for the half-year," &c, 
 and the tenants for life had, it appeared, taken the several dividends, 
 except the last, without question, but on occasion of the hist dividend it 
 was sought by the remainderman to set up a right to some portion of this 
 dividend, (which had been declared differently from most of the other 
 cases in a lump sum, without mentioning anything about bonus;) — Lord 
 Eldon intimated that he had no means of ascertaining ^whether 1-^577-1 
 any, or what part, of the dividend was capital, as alleged, and L ' J 
 gave the whole to the tenant for life.(p) 
 
 Bequests. — Where a person is possessed of money in consols and other 
 government securities, and also of bank stock, and devises "all his for- 
 tune then standing in the funds," the bank stock does not pass. The 
 reason is, that the words "the funds" have received an interpretation to 
 mean "the public funds," as appears from the Stamp Acts, which have 
 always made a distinction between bank stock and the government 
 funds. (2) 
 
 Stamps. — All bills of exchange, or bank post bills, issued by the 
 Bank of England, are exempt from stamp, as are all their promissory 
 notes for the payment of money. (r) 
 
 Deposits with Bank of England. — The Bank of England is largely 
 engaged as a bank of deposit ; and in such cases, nearly, if not altogether, 
 the same rules apply to its regulation, and as regards its relations to cus- 
 tomers, as have been stated in respect of banking establishments gener- 
 ally ; thus, where a customer is in the practice of making his acceptances 
 of bills of exchange payable at the Bank of England, and, in a particu- 
 lar instance, such an acceptance of his was presented at a quarter after 
 nine, and left till eleven o'clock, A. M., and then refused payment for 
 want of assets, and being afterwards, at six, P. M., presented again, was 
 again refused payment by a person stationed by the bank, although the 
 bank, before six o'clock, had received ^sufficient assets to cover r*37g-j 
 the bill ; it was considered that the bank were not liable, as for L 
 
 Gresham, 10 Ves. 290; Witt v. Steere, 13 Ves. 363. Stamp on Transfer, Sweet 
 Supp. Bythew. Conv. 274. Bequest of bank stock, Lindgren v. Lindgren, 9 Bea \ . 
 inf. p. 377. , 
 
 (0) Witt v. Steere, 13 Ves. 363, 365 ; see 14 Ves. 79. Semble, the shareholder 
 in such case has an action at law to recover the whole dividend declared ; see Da- 
 vis v. Bank of England, 2 Bing. 393 ; 10 A. & E. 449 ; 1 Mac. & G. 698. Holder 
 of bank stock not liable as such in bankruptcy ; 8 Geo. I. c. 8, s. 43. 
 
 O) Barclay v. Wainwright, 14 Ves. 66 ; Norris v. Harrison, 2 Madd. 2,9. Hie 
 question was not between tenant for life and remainderman, and the bonus was 
 made capital by statute. See Matthews v. Maude, 1 Russ. & M. 397. 
 
 (q) Grainger v. Slingsby, 21 L. J., Chanc. 573. 
 
 (r) Sweet, Supplem. Byth. Conv. 209, 266. Receipts of Bank of England and 
 other bankers, when exempt from stamp, and when liable, id. 268, 208.
 
 27-4 GKANT OX THE LAW OF BANKING. 
 
 negligence, at the suit of the acceptor, because the second presentment 
 took place after banking hours; hut it Beems that they would have done 
 well, and perhaps it is their duty, to inform the person presenting the 
 bill on that occasion, that they had thru received assets, with which the 
 bill would be paid next day, which, in fact, was dune. 
 
 The direction given to the jury was according to the rule already 
 stated, that they must be satisfied, not only that the bank had assets at 
 eleven o'clock, when the payment was refused, but that the money had 
 been paid in to the plaintiff's account, a reasonable time before eleven 
 o'clock, to enable them to know that such was the case; and the defend- 
 ants were found not guilty, and the court upheld the verdict. (s) 
 
 Proving in Bankruptcy. — With respect to bankruptcy and the mode 
 of proceeding which the bank is to adopt, in relation to the bankruptcy 
 of its customers, the following principal points have been determined. 
 
 At the first public sitting appointed by the court, assignees of the 
 bankrupt's estate and effects shall and may be chosen and appointed ; 
 and all creditors, who have proved debts to the amount of ten pounds 
 and upwards, shall be entitled to vote in such choice; and also any per- 
 son authorized by letter of attorney, from any such creditor, upon proof 
 of the execution thereof, either by affidavit, or by oath before the court, 
 cicd vocc.(t\ 
 
 Now, persons having interests adverse to the general body of creditors, 
 cannot be elected ; therefore a banker who receives money under the 
 bankruptcy, is ineligible for assignee. (w) 
 
 r*3-cn *^ creditors who have proved debts, &c, may vote. Now, 
 L -I all bodies politic, and public companies, incorporated, or author- 
 ized to sue, or bring actions, either by charter or act of parliament, may 
 prove by an agent, provided such agent shall, in his deposition, swear 
 that he is such agent, and that he is authorized to make such proof.(x) 
 But it seems that the Bank of England, prior to this statute, was ad- 
 mitted to prove by their clerk without power of attorney. (#) 
 
 Then proof having been made on behalf of the bank, it may vote in 
 the choice of assignees, by a person authorized, by a special power of at- 
 torney.^-) 
 
 A., being a separate trader, is also a partner in a firm of B., C, and 
 A. The firm indorse a bill of exchange to A., who discounts the bill 
 with the Bank of England, (with whom he keeps an account in his own 
 name,) indorsing it to them. The bank was aware of the partnership of 
 ];., <*., and A. ' 
 
 On the bankruptcy, it was contended for the bank, that its practice 
 required the customer's indorsement of the bill, for the purpose of addi- 
 tional security to them, and that therefore they were entitled to prove, 
 both against the joint estate of the firm and the separate estate of A. 
 
 (») Whitaker v. Bank of England, 1 Cro. M. & R. Til. 
 
 (!) 11! A: l.'t Vict. c. 106, s. L39. (u) Ex parte Lacey, G Yes. C25. 
 
 )x) 12 & 13 Vict. c. 106, s. 1G4. 
 
 (>/) Ex parte Bank of England, 1 BwanBt 10; 1 Rose, 142, overruling 18 Vcs. 
 229 ; see 2 Dm. ft War. 377. 
 
 (z) Ex parte Dank of England, 1 Swanst. 19.
 
 RELATIONS OF SOCIETIES, ETC., TO CANKERS. 275 
 
 But Lord Eldon, C, was of opinion, that the practice of the bank did 
 not vary the nature of the bill, for it substantially was a joint and seve- 
 ral security. In bankruptcy, the proof, in such case, was confined to a 
 right of election between the joint or the separate estate. In all cases 
 in which the holder has been allowed to avail himself of his security to 
 the full extent, there has been either an ignorance of the partnership, or 
 a subdivision of them into distinct trading establishments. Here the 
 distinct trade was, in fact, no more than his separate estate. (a) 
 
 * Discounts. — The following case has been decided on the sub- r-*qon-i 
 ject of discounts : — L J 
 
 The payee of a foreign bill of exchange annexes a condition to his in- 
 dorsement, before acceptance, thus, " Pay the within sum to Messrs. 
 Clerk and Ross, or order, upon my name appearing in the Gazette as en- 
 sign in any regiment of the line, between the 1st and 64th, if within 
 two months from this date, R. Robertson." 
 
 The bill was drawn upon, and accepted by, Kensington & Co., bankers, 
 in London, but not till after it was indorsed by the payee, as above, and 
 after it was indorsed by Clerk and Ross. Then there were several mesne 
 indorsements, until it came by indorsement to the Bank of England, 
 who discounted it. When the bill was at maturity, including the days 
 of grace, the Bank of England presented it to Messrs. Kensington, by 
 whom it was paid. 
 
 Robertson's name never having appeared in the Gazette, &c, the con- 
 dition of the indorsement was not performed ; and, upon his suing the 
 acceptors for the amount of the bill, the court considered him to be en- 
 titled to recover; because the bankers, Kensington & Co., had accepted 
 after the condition had been superadded to the bill, and that condition 
 had been superadded to the bill at the outset, and before it got into cir- 
 culation, and the condition not having been performed, and the accept- 
 ance having been made with knowledge of the restriction, the property, 
 in such case, reverted to the payee, who had a right to come upon the 
 acceptors, at maturity, just as if he had not indorsed at all. 
 
 Hence it follows, that such a bill cannot be safely discounted, without 
 ascertaining that the condition on which the payee indorses has been 
 satisfied. (&) 
 
 (a) Ex parte Bank of England, 2 Rose, 82 ; see Ex parte Martin, id. 87 ; Ex parte 
 Bank of Scotland, id. 197 ; see Flather's Arch. Bank., lltk edit. 123. By 12 & 13 
 Vict. c. 106, s. 87, notice to accredited igent of a public company is to be deemed 
 notice to the company in cases of acts of bankruptcy. What amounts to notice 
 by letter, Bird v. Bass, 6 M. & Gra. 143. For various points relative to Bank of 
 England, see Rules and Orders, 1 Fonbl. Bank. R., App. ; Flather's Bankr., 11th 
 ed. 354, &c. 
 
 (6) Robertson v. Kensington, 4 Taunt. 30.
 
 27G GRANT ON THE LAW OF BANKING. 
 
 [*381] *C II AFTER XIII. 
 
 DISCOUNTS. 
 
 MUCH of the business of bankers consisting in the discounting of bills 
 of exchange, it is necessary to state some points of the law as affecting 
 this matter. 
 
 The rule has been stated, that if a person holding a bill of exchange 
 deliver it to a banker to be discounted, or if, by the course of dealing 
 between the customer and banker, bills received by the latter, on account 
 of the former, are considered by both parties as cash, minus the discount, 
 so that the customer is at liberty to draw on the banker, as against those 
 bill*, be}'ond the amount of actual cash that may be standing to his ac- 
 count in the books, then, in the event of the bankruptcy of the banker, 
 the assignees of the bankrupt are entitled t© the bills. For where the 
 banker discounts a bill for a customer, giving him credit for the amount 
 of the bill, and debiting him with the discount, there is a complete pur- 
 chase of the bill by the banker, in whom the whole property and interest 
 in it vests, as much as in any chattels he possesses ;(a) so much so, that, 
 on his bankruptcy, the property and interest passes to the assignees. 
 
 Therefore, discounting in this way makes the banker the purchaser of 
 tfu bill. 
 
 If, however, a person discounts bills with bankers, and receives, in 
 part of the discount, other bills, not indorsed by the bankers, and these 
 latter bills turn out to be bad, the bankers are not liable; for, having 
 taken them without indorsement, the holder takes the risk on himself, 
 inasmuch as the bankers, by refusing to indorse them, have refused to 
 r*3^9H *pl e dg e their credit to their validity, and the transferee must be 
 l ° "*J taken to have received them on their own credit only.(o) 
 
 On the other hand, a banker discounting a bill, whether for a custo- 
 mer or a stranger, there being no indorsement by the customer or stran- 
 ger, and the bill not being given in payment of an antecedent debt, is a 
 mere purchaser, and on the bankruptcy of the acceptor, has no recourse 
 against the party from whom he took it.(c) 
 
 Presumption in favour of Bankers. — Such a degree of credit is given 
 to bankers by the courts, that prima facie they will be taken to have 
 discounted with good faith. Thus, where a clerk was sent by his mas- 
 ter, a customer of a bank, to ask for discount for a bill, but with orders 
 to tell them, when he asked for it, the particulars of an arrangement be- 
 
 (fi) Carstairs v. Bates, 3 Campb. 301; Paley, Princ. and Agent, 72. 
 lb) Fydell w. Clark, 1 Esp. 447. 
 
 (cj Governor, &c, of Bank of England \. Newman, 1 Ld. Raym. 442; S. C, 12 
 341. Where the bill discounted is also Endorsed, as in Warwick v. Rogers, 
 
 - \I i, f '..„ OR! OSLO It ; Ktknrnui Hull V P ') 7 1 . mr. Ol T T /~» T> AnA T_
 
 DISCOUNTS. 277 
 
 tween the holder and the master, the Court of Exchequer would not pre- 
 sume that the clerk told the bankers (who discounted the bill) these cir- 
 cumstances, but, on the contrary, presumed that they bona fine dis- 
 counted the bill, without notice of those circumstances, in the absence 
 of proof to the contrary. ((?) 
 
 Negligence. — Where bills are discounted before acceptance, many 
 circumstances may throw the loss, if they are refused acceptance, upon 
 the bankers. 
 
 Thus, where A., living at Wooler, in which place the bankers (carry- 
 ing on business at Berwick,) had also a branch bank, dealt with traders, 
 residing at Wakefield, and had been used, on selling goods to them, to 
 draw bills *on them, which he got discounted at the Wooler r#qoo-i 
 branch, from whence they were transmitted to the bankers, at *- J 
 Berwick, who sent them to Wakefield, to the traders, for acceptance ; 
 and they had been warned by the traders, in writing, to inquire, on dis- 
 counting any bills that A. might draw upon them, whether he had de- 
 livered the goods, he valued for, and sent the carrier's receipts to them, 
 assuring the bankers that, in that case, the bill would be accepted ; and 
 afterwards the bankers discounted a bill, and sent it for acceptance to the 
 traders, who, after retaining it for ten days, saying they could not ac- 
 cept it, stating the invoice of the goods had not been sent, and, after 
 detaining it sixteen days more, returned it unaccepted, the bankers hav- 
 ing made no objection to their detaining it : and then A. stops payment, 
 without delivering the goods, or sending the carrier's receipt to the 
 traders ; the bankers were held to have no claim upon the traders, the 
 the drawers of the bill, who had never accepted it. 
 
 The bankers were unaware of the insolvent condition of A., at the 
 time they discounted the bill for him. 
 
 The precise question was, whether the circumstances amounted to a 
 constructive acceptance — a question which could not arise at the present 
 day, because since 1 & 2 Geo. IV. c. 78, s. 2, no acceptance of an inland 
 bill, and, since 19 & 20 Vict c. 97, ss. 6, 7, no acceptance of any 
 bill, can be good, except made in writing, on the bill — but the case is 
 detailed here as an instance of the effects of negligence in discount- 
 ing.^) 
 
 Palmer, having borrowed money from his bankers, in Calcutta, de- 
 posited East India Company's paper with the bank, to a greater amount 
 than the debt, as a collateral security, and authorized the bank, in de- 
 fault of repayment *of the loan, by a given day, to sell the paper r* 384 -i 
 for reimbursement of the bank, rendering him any surplus. Be- L 
 fore default in repayment of the loan, he became insolvent : at the time 
 of the insolvency the bank were also holders of two promissory notes of 
 Palmer & Co., which they had discounted for them before the transac- 
 ts) Middleton v. Barned, 18 L. J., Exch. 433. 
 
 (e) Mason v. Barff, 2 B. & A. 26. A promise to accept a bill not vet drawn 
 though the promise be in writing, and though bill has been discounted on Faith 
 of itfnot an acceptance ; Bank of Ireland v. Archer, 11 M. & W. 383. As to ex- 
 isting bill, see Wynne v. Raikes, 5 East, 514; see Ex parte Hobhouse, 2 Deac. 
 291.
 
 278 GRANT ON THE LAW OF BANKING. 
 
 tion of the loan and the agreement as to the deposit of the Company's 
 paper. The time for the repayment of the loan having expired, the 
 hank sold the company's paper, the proceeds of which, after satisfying 
 the principal and interest due on the loan, produced a considerable sur- 
 plus. 
 
 In an action by the assignees of Palmer & Co., against the bank, to 
 recover the surplus, it was held, that the bank could not set off the 
 amount of the two promissory notes; and that the clause of mutual credit 
 iu the Bankrupt Act did not apply. For though the bank gave credit 
 to I 'aimer for the notes they had discounted for him, there was no cor- 
 responding credit given by him to them; it was uncertain whether there 
 would be any money coming to him or not; the credit was all on one 
 Bide.(/) 
 
 Bankers discount for A., a customer, bills of exchange to a large 
 amount, placing the amount thereof to the credit, and the amount of the 
 discount to the debit, of themselves. A. becomes bankrupt, having, at 
 the time, a balance at the bank in his favour, of 170/. 19s. lid. The 
 bills were indorsed by the bankers in blank, and some of them were paid 
 by the acceptors, be/ore the bankruptcy; the others, far exceediug in 
 amount the above sum, did not become due till some time after the 
 bankruptcy. Before they became due the assignees commenced an ac- 
 tion for money lent, &c, to recover the above balance, and subsequently, 
 but still before the bills became due, the bankers proved against the 
 bankrupt's estate for the whole amount of the bills, deducting the bal- 
 ance of 179/. 19s. lid. 
 
 I~*38n *There was held, in this case, not to be any purchase of the 
 L -I bills, but only the ordinary discounting, or loan of money upon 
 them. (y) The bankers might have sued the bankrupt (before his bank- 
 ruptcy) for money lent on them; they might have proved against him, 
 (after his bankruptcy,) had the bills been dishonoured : and as a bill may 
 be proved againsl an indorsee, just as against the drawer, previously to 
 its being dishonoured by the acceptor, so the bankers were entitled, by 
 the terms of Geo. IV. c. 10, s. 50,(A) to set off these bills in the ac- 
 tion brought against them by the assignees, this being a case of mutual 
 credit. (A 
 
 It is material to distinguish this case from the last. In that there was 
 no mutual credit; the company's paper was deposited for a particular 
 purpose, and no credit was given for the surplus. Also, the duty of the 
 assignees there was to redeem the paper immediately, and if they had 
 done so, no debt whatever would have been due in respect of the loan, 
 lb re was :i mutual credit, and the bankers being entitled to set off, the 
 assignees could not prevent them having the benefit of it, by bringing 
 the action ton soon.(/) 
 
 (/) Young v. Bank of Bengal, 1 Moo. P. C. 150; see per Parke, B., 12 M. &. W. 
 
 3ee discount distinguished from loan, Gwatkin v. Campbell, 1 Jur. (V. S.) 
 131, Cbanc. 
 
 S< i no* l'-' & 13 Viet. c. ]<>r>, B. 171. 
 
 Usager v. Currie, 12 M. A W. 751, ::.:. :>•. N. B.— It was there denied 
 
 •• 'li-< ounter of a bill is a purchaser of it.
 
 DISCOUNTS. 279 
 
 A partnership arrange with their bankers, so that the latter were to 
 discount indorsed bills of exchange, to the extent necessary to meet such 
 acceptances, &c.,of the partnership, as were in course of immediate pay- 
 ment at the banking house. In order to meet certain acceptances of the 
 partnership coming due, they remitted to the bankers an indorsed bill ; 
 these acceptances were, however, dishonoured by the bankers, who, 
 shortly after, stopped payment. The bankers then procured the bill to 
 be accepted, and made an entry in their books of their having discounted 
 it; but, as they had no right to discount the bill, without *per- p^oogn 
 forming the trust reposed in them, the title to the bill did not L -1 
 pass to their assignees, and the partnership must have it given up to 
 them.(&) 
 
 Bills are remitted to be discounted, the proceeds being directed to be 
 applied iu a particular way : the remittee did not get the bills discounted, 
 but received the money on them when due. Before that time, the re- 
 mitters had stopped payment, having first desired to have the bills re- 
 turned to them : they became bankrupt before the bills were paid to the 
 remittee. The latter was held to be liable to the assignees, to refund 
 the whole of the money ;(l) and so bills remitted for sale, the proceeds 
 to be applied to a particular purpose, remain the property of the remitters, 
 until the purpose is satisfied. (ra) 
 
 So, where a customer pays a sum of money to a bank, for the purpose 
 of providing for particular bills, he being at the time indebted, on ad- 
 vances, to the bank to a larger amount, and they, instead of following 
 his instructions, place the money to the credit of his account, and, con- 
 sequently, the bills were refused acceptance, and whilst they remained 
 unpaid in the hands of the holders, the customer became bankrupt, his 
 assignees recovered the whole of the sum from the bank.(n) 
 
 A banker, discounting a bill, should pay in cash, or give credit for the 
 amount, debiting, or deducting, for the discount ; if he gives a bill, in 
 exchange, he ought to calculate, and allow a rebate of interest for the 
 time the latter has to run ; for, if any circumstances of overreaching, or 
 imposition, in this respect, on the customer, should appear, the transac- 
 tion would, under the old law, have been usurious ; and, in *eer- |-*ogy-. 
 tain circumstances, such a transaction might still be considered L J 
 objectionable, as unfair and fraudulent. 
 
 In an action, (on a former statute against usury,) it appeared that the 
 defendants were bankers at Portsmouth, and A., a lady residing there, 
 drew a bill for 600?., on her agent in London, payable to defendants, or 
 order, thirty days after date, which the bankers discounted, by giving 
 her their promissory note for 600/., payable in London, at three days 
 after sight. For this, the bankers received a discount of 5?. per cent., 
 
 (Jc) Ex parte Frere, Mont. & M'A. 263. 
 
 (/) Buchanan v. Findlay, 9 B. & C. 738; see as to set-off, Thorpe v. Thorpe, 3 
 B. & Ad. 580 ; and see 8 A. & E. 772. 
 
 (m) Muttyloll Seal v. Dent, 8 Moo. P. C. 319. ,...,, 
 
 (n) Hill v. Smith, 12 M. & W. 618 ; the bankers would also be liable to an ac- 
 tion for non-performance of the orders, per Alderson, B., id. 627 ; per cur., id. 630 ; 
 see also Alder v. Keighley, 15 M. & W. 117.
 
 280 GRANT ON THE LAW OF BANKING. 
 
 calculated on the thirty days the bill had to run, but making no deduc- 
 tion on account of the three days' grace which they took thereon. The 
 money to be received for the bill was to be remitted to London, but the 
 bankers gave their note at three days, without asking any questions as 
 to the mode in which the customer would be paid. 
 
 Lord Kenyon, C. J., was clearly of opinion, that this was an usurious 
 contract, whether the person discounting the 1*111 chose to receive a note 
 or cash. If she chose to have a aote payable in London, the bankers 
 ought not to have taken interesl for the time the note had to run, but 
 should have computed it from the time the note was payable. (d\ But 
 where a banker in the country discounted bills at four months, for a cus- 
 tomer, and took the whole interest for the time they had to run, and the 
 customer, on being asked how he would have the money, directed part 
 to be carried to his account, and part to be paid in cash, and the residue 
 by bills in London, some at three, others at seven, and others at thirty 
 days' sight; that was decided not to be an usurious transaction, as the 
 customer had exercised a free option how he would receive the amount, (p) 
 notwithstanding the bankers had made no rebate of interest on the bills, 
 P^qoQ-i which had *a long time to run, remittances to London being 
 L -I usually made by bills, at thirty days. 
 
 These decisions are, in truth, now but of minor importance, and are 
 only preserved, as showing how anxious the courts have been to enforce 
 the observance of fairness and scrupulous integrity, which is due from 
 a banker to a customer; and, notwithstanding the abolition of the usury 
 laws by 17 & 18 A'ict. c. 90, the courts would probably be inclined to 
 act in the spirit of these decisions, for the protection of the customers of 
 bankers. 
 
 A branch of the National Provincial Bank of England, discounts for a 
 customer a bill drawn by him, and accepted by A. 13. This bill, which 
 was for olio/., was dated 17th January, and was at three months, and 
 would consequently become due 20th April. On the 19th, the customer 
 brought another bill to the bank, for the same sum as the former, dated 
 18th April, for the purpose of retiring the former. The manager of the 
 bank consented to retire the former bill, but the course pursued was not 
 strictly a retiring of the bill; for the course taken was, to send up to 
 London the fresh bill, giving directions to their London agents to order 
 payment of the original bill, which had been previously sent up to them 
 by the manager. A. 15. was credited in his account with the amount of 
 the bill, 365?., less the discount. 
 
 After some time, and various further transactions between A. II. and 
 the bank, had taken place, the bill of the L8tfa April proved to be 
 forged, and was dishonoured. 
 
 I 'nder these circumstances it was contended, in an action by the bank, 
 on the first bill, against the acceptor, that what had been done by the 
 bank in regard to the first bill was equivalent to a payment of it, as they 
 
 (o) Matthew?, q. t. v. Griffiths, Peake, N. P. Rep. 200. In this case a second 
 discount was in foci paid. 
 
 (p) Sammetl v. Tea, 1 B. & P. 144, 152. In this cum- no charge was made for 
 commission, Btamps, postages, &c.; see 15 Ves. 121 ; 17 id. 332.
 
 DISCOUNTS. 281 
 
 had given the drawer credit for the sum for which it was drawn, less the 
 discount ;{q\ but to this the court did not assent. 
 
 Where a customer places, in the hands of his bankers, two *bills r:(: „ R „-. 
 for 1,000/., indorsed by him, for the amount of which it was L J 
 agreed he should draw, the bankers having previously refused to dis- 
 count them; and the customer only draws for 65/., and the bankers em- 
 ploy a broker to discount the bills, and become bankrupt shortly after 
 the bills were deposited, the customer is entitled to the proceeds of the 
 bills.(r) 
 
 Re-discounting. — A customer draws a bill, which is accepted, payable 
 at his bankers' ; he discounts it with the bank, indorsing it to them ; 
 they re-discount and indorse to a third party. 
 
 On the maturity of the bill it is presented, by the holder, at the bank, 
 along with other bills, payable there, all indorsed by the bank ; all these 
 were paid without any indication whether the bank paid as indorsers, or 
 agents for the acceptors ; the account of the acceptor of this bill is over- 
 drawn at this time, and he stops payment the same day. 
 
 Next day notice of dishonour was given, by the bank, to the custo- 
 mer, and he was debited with the amount of it. 
 
 It was left to the jury to say, whether the bank paid as indorsers on 
 their own account, or as agents of the acceptor. The jury found that 
 they paid in the former character, which is tantamount to finding the 
 bill was dishonoured, and they had a verdict, and the court held the 
 bankers to have had a right to pay as indorsers, reserving to themselves 
 time to inquire whether they would honour the bill, or not, and that 
 there was no obligation on them to inform the holder in what capacity 
 they paid.(s) 
 
 Accommodation Bills. — Where bankers discount for a customer, the 
 drawer, a bill accepted for his accommodation, which is dishonoured, 
 and, after that event, have notice that it was an accommodation bill, and 
 are requested by the customer not to apply to the acceptor, to which they 
 assent, and *afterwards the customer's account with them shows r*39Q-| 
 a balance, in his favour, to a larger amount than the bill, the L 
 bankers are bound to discharge the bill out of the balance, and cannot 
 keep it as a security for the fluctuating balance, which might ultimately 
 become due to them, and, therefore, if they sue the acceptor, they will 
 be nonsuited. (?) 
 
 It made no difference, that after the balance had been in his favour, 
 as above stated, the customer became greatly indebted to the bank, and 
 failed before action. (t) 
 
 Death of Drawee.— Bankers, having discounted for a customer, who 
 did not indorse, a bill drawn by B. on A., another customer, and accepted 
 by him, payable at the bankers' house, on the morning of the day in 
 which it becomes due, wrote it off in his account to his debit, having at 
 
 (q) Bell v. Buckley, 25 L. J., Exch. 163 ; see 15 C. B. 87. 
 (r) Ex parte Edwards, 2 M. D. & D. G. 625. 
 (s) Pollard v. Ogden, 2 E. & B. 459. 
 
 (t) Marsh v. Houlditch, reported Chit. Bills, 289, n., 6th edit.; compare Ilam- 
 mersley v. Knowlys, 2 Esp. 665.
 
 282 GRANT ON THE LAW OF BANKING. 
 
 that time in their hands 1,421/., to the credit of A. The bill was for 
 4G7/. A. was at this time dead, but this was unknown to the bankers 
 at the time they debited A., &C, 
 
 The bankers wore held to be entitled, when the bill, in such circum- 
 stances, became due, to reimburse themselves out of the acceptor's funds 
 in their hands, haying no notice of the death. (u) 
 
 Restrictivi Indorsement. — At one time it was held, that a bill of ex- 
 change might be arrested ;it any period of its course of currency, or ne- 
 gotiability, by what was called a restrictive indorsement, ex. gra. thus, 
 — " Pay to A. and no one else," — or, " The within must be credited to 
 ]>., value on account," &c, by which means, it was considered, the ne- 
 gotiability was stopped, so that A. or B. had neither of them any right 
 to indorse the bill over; if, therefore, a bank discounted a bill, with 
 such an indorsement upon it, it did so in its own wrong, and the negli- 
 gence, involved in the act, prevented the bank from recovering the mo- 
 r*RQ1H ne y ^ rom *^ ne parties to the bill. Therefore, in a case where a 
 L -I bill bore an indorsement in the second form of the above exam- 
 ples, and also a subsequent indorsement, purporting to be by B. "to C, 
 or order," and the bill was discounted by the Bank of England, in the 
 way of business, and then, the acceptor having absconded, a friend of 
 the drawers' paid the amount of the bill, for the honour of the drawers, 
 and as their agent, and afterwards, it having been found, that the last- 
 mentioned indorsement was a forgery, the drawers sued the bank to re- 
 cover the amount of the bill, which had been paid by their agent, the 
 bank was held liable to refund the money to the drawers, because, it was 
 said, they ought to have taken notice that the negotiability of the bill 
 was stopped, or destroyed, b}- the indorsement to B., and nut having 
 done so, must stand to the loss. (a;) 
 
 A restrictive indorsement is now, however, fully settled to have no 
 power to stop the negotiability of a bill of exchange; for that a bill of 
 exchange, originally made payable to a person named, or his order, is in 
 its nature, negotiable; and if it be afterwards indorsed with such words 
 as, pay to A. ami him only, this transfers to A. the whole interest in the 
 instrument, and that interest he may assign as he pleases; any restric- 
 tion or confinement of his power to assign is contrary to the nature of 
 things, and therefore void. Therefore there is nothing, in a restrictive 
 indorsement, to prevent the restricted indorsee from making any assign- 
 ment of the bill, so as to confer a title to the bill.fa) The righl of action, 
 r*3<vn w ^' r ' 1 tn< ' subsequent indorsee has. i.-, it i- true, only *for the 
 L ''' ~J benefit of the restraining indorser, or of the cestui que trust, as 
 the case may be. 
 
 ('/) Bogeraon v. Ladbroke, 1 Bing, 
 
 {/) Anchor v. Bank of England, Dongl. 615 : per Ld\ Mansfield, C. J., Willes and 
 Ashhnrst, J<.\ Bailer, J., dissentiente. Bee practice of Bank of England at that 
 time, stand j Jiurr. 1220. 
 
 (y) Marrow v. Stuart. B Moo. P. 0. 267 : Carlon v. Ireland, 25 L. J., Q. B. 113. 
 Tli<- decision in the first of these cases is tin- more materia] to he known, as it ex. 
 overruled the contrary doctrine laid down both in Bayley on Bills and 
 Bylea on Bills. There is no difference in this respect between lulls of exchange, 
 whether foreign or inland, and promissory notes. 2 Burr. 1224 ; see Gay v. Lan- 
 der, >; Dowl. & L. 78.
 
 DISCOUNTS. 283 
 
 Hence the decision, previously mentioned, would be departed from at 
 the present day; for it turned upon the assumption, that there might be 
 an effectual restrictive indorsement, stopping the negotiability of the bill; 
 from which it was held to follow, that the bank discounting such a bill, as 
 in that case, could not have sued the acceptor, or other parties to it, and 
 therefore under the circumstances of the case, could not retain the money 
 that had been paid in mistake on behalf of the plaintiff. Now, however, 
 that the groundwork of the conclusion is overturned, the conclusion 
 would be different ; that is to say, there is nothing to prevent a bank 
 from discounting a bill, which bears a restrictive indorsement to A., 
 with a subsequent indorsement by A. to some one else, or order, &c., 
 and from being able to recover in such case, as well as in any other case 
 of discount. 
 
 If, however, a person uses words to show that the restrictive indorse- 
 ment was made to the restricted, as the agent, or mere servant of the 
 indorser, and that he never was intended to take an interest in the 
 bill; thus, a bill of exchange is indorsed by the payee to A., who in- 
 dorses to B. thus, — " Pay to B., or his order, for my use," and B. dis- 
 counts the bill with his bankers, who, without inquiry, do so, and apply 
 the proceeds of the bill to the use of B. : the property in the bill is held 
 to remain in A., who may sue the bankers. (2) 
 
 This, therefore, seems to be the law on the subject : a restrictive in- 
 dorsement cannot be made to have the effect of stopping, or destroying, 
 the negotiability of a bill of exchange : but an indorsement may be made 
 on a bill, in such a way, as to show the indorser not to have intended 
 that his indorsee should take any interest of his own in the bill, or its 
 proceeds, — that he is nothing more than the hand to *receive | - ;) .„„ C) ^ 
 the proceeds — in such case, if the latter discounts with a bank, L ° °J 
 they must see to the application of the money which they pay to the re- 
 stricted indorsee, on account of the bill, (it is said ;) and the purpose is 
 to prevent a failing man from disposing of the bill before it becomes due 
 and from pledging it to relieve himself from his own debts, at the ex- 
 pense of his correspondent. But such an indorsement does not prevent 
 the indorsee from receiving the money from the acceptor, when the bill 
 becomes due. To the objection that it cannot be expected that bankers, 
 when asked to discount such bills, should look into the accounts between 
 the principal and his agent ; it is admitted, that it cannot be expected 
 that they should, but still if they take a bill so indorsed, they take it at 
 their peril, and must be bound by the state of the accounts between those 
 parties. 
 
 In the case from which these principles are taken, the court would 
 only say, that such an indorsement constituted the restricted indorsee 
 a trustee for the restraining indorser; they expressly avoided the ques- 
 tion, whether, if he indorsed over, all the subsequent indorsees would 
 be trustees for that indorser ; but it seems they did consider the bank, 
 who advanced money on the bill to the restricted indorsee, to be bound 
 
 (z) Sigourncy v. Lloyd, 8 B. & C. 622, where the restricted indorsee had in- 
 dorsed over to the bankers.
 
 284 GRANT ON THE LAW OF BANKING. 
 
 to inquire into the state of the accounts between him and hi.- indorser, 
 so as to Bee whether he was indorsing for the benefit of himself, or his 
 indorser. In this case, the account between the restraining indorser and 
 his indorsee was in favour of the former, to the amount of mora than 
 3,0002., exclusive of the bill, which was for more than 3,1002.; but, on 
 the morning of the .lav, when the discount was made, the balance <>( 
 account of the indorsee with his bankers Mas upwards of 3,700Z., in his 
 favour; in the course of tin,' day the balance became largely against 
 him. The bill was paid at maturity, and the hankers received the amount 
 of it. 
 
 The bankers were held liable to the restraining indorser, in an action 
 r*°0-n for the money had and received, on account of *the bill.(a) Jt 
 L J is to be observed, that the bankers, in this case, were, in a 
 manner, parties to the application of tin' money contrary to the indorser's 
 intention, for being the bankers of the restricted indorsee, they them- 
 selves applied the proceeds to his account with them. 
 
 Perhaps, it may be doubted, whether the decision would have been 
 the same, had the party, for wdioin the bank discounted the bill, been a 
 stranger to them. 
 
 Agent. — An agent applied to a banking company on several occasions, 
 to discount bills drawn by his principal, and, at the commencement of 
 the transactions with them, informed them who the drawer and acceptors 
 were of a bill, which he applied for discount of, and they agreed to dis- 
 count it, without recpuiring the agent's indorsement. Several subse- 
 quent discounts took place under the same circumstances; but, upon 
 some of the bills offered, they required and obtained, the agent's indorse- 
 ment. The acceptances turned out to have been forged by the principal, 
 of which fait the agent was wholly unaware. 
 
 The agent becomes bankrupt, and it is held, there being nothing to 
 show that the agent had not handed over the proceeds of the bills to t In- 
 principal, or that those proceeds could be recalled, that the banking 
 house could not prove upon the bills, which the agent had not indorsed ;(b) 
 for although an agent may pledge his credit, so as to be liable upon a 
 r*9Qr-| bill? though he do not indorse, (c) yet the mere fact, *of an agent, 
 L ° L J procuring a bill to be discounted for his principal, creates no 
 liability on the agent's part.(<£) 
 
 Manager of Bank. — A manager of a banking company has permis- 
 sion to carry on his separate trade ; as a trader, he deals with the hank, 
 on the terms QflUal between hanker and customer, and being possessed of 
 certain hills, in his character of trader, drawn and accepted by firms of 
 
 (a) Sigourney v. Lloyd, 8 B. k 0. 022. Mr. Justice Story, (Bills, pp. 234, 235,) 
 Bays expressly, "Every subsequent bolder must receive the monej subject to the 
 original designated appropriation ; and if be roluntarilj a sente to or aids in any 
 oilier appropriation, it will in- a wrongful conversion thereof, for which he will be 
 beld responsible." The objection t<> what the hanker.- did in Sigourney \. Lloyd, 
 appears to he that they bad paid A.'.< debt to them w iih B. - money. The decision 
 wa- affirmed in Bzch. Ch, B. <'.. 5 Bing. 525; :: Y. a. Jerv. 220. 
 
 Ei part< Bird, i De G. .v 8. I'T-;: Bee Guraey v. Woniersley, 4 E. & B. 133. 
 aet \ ■ Ryde, ."> Taunt. 488. 
 
 Stead v. Thornton, :; B. & a<1. :;;.:, n.
 
 DISCOUNTS. 285 
 
 good reputed credit, he deposits them, without indorsing them, and ob- 
 tains an advance upon them, his account, at the time, being already 
 slightly overdrawn ; therefore, this transaction was a loan, not a discount, 
 and upon the subsequent bankruptcy of the drawers and acceptors, the 
 manager was held bound to make good the loss to the bank.(e) 
 
 Banker's Commission. — With regard to commission, it seems obvious, 
 and has been expressly laid down, that a banker is as well entitled to his 
 commission, for his trouble in transacting money negotiations, as a factor, 
 for his trouble in effecting sales; commission is a lawful charge, provided 
 it is reasonable and usual, (/) this last fact being a question for the 
 jury.fr/) Commission may also be charged for the trouble of obtaining 
 acceptance, and payment of bills. (/t) 
 
 In all cases, where bankers make any charge by way of commission, 
 for extra trouble or expense to which they may be put, in transacting 
 business for a cusromer, it was considered, during the old laws against 
 usury, to be advisable to separate the charges, for the trouble of keeping 
 the accounts, from the charges of interest, &c, in the first instance, be- 
 cause it was said it will not be allowed to a *party, who has know- r^onp-i 
 ingly received anything as interest, afterwards to apply it to L J 
 another account, as he finds convenient.^') 
 
 If a banker undertake to conduct any transaction, not in his ordinary 
 mode of business, and stipulate for a certain charge to be made by him, 
 in consideration of such extra trouble and expense independently of "all 
 casts, charges, damages, and expenses that he may be put to by means of 
 the premises," this was not considered as usurious ; for, commission for 
 trouble is not necessarily to be intended as a colourable reservation of 
 further interest, beyond the legal interest, but as a compensation for 
 trouble not comprehended within the words "costs, &c."(/.;) 
 
 Thus, A., being indebted to his bankers, on the balance of his account 
 with them, and having an agreement with a third party, for the pur- 
 chase of growing timber, for 4,800?., part to be paid for by A. at the 
 time of the execution of the agreement, and part by bankers' acceptances, 
 at different dates, assigned to the bankers this agreement, and all his in- 
 terest therein, they undertaking to fulfil the agreement with respect to 
 making the several payments, &c, as therein mentioned, upon the trust, 
 in the first place, out of the proceeds which might, &c, arise, from 
 the sale of the timber, to retain and repay themseves the said pur- 
 chase money, then the amount due to them from A., on his account, 
 together with interest at bl. per cent., up to the time of payment, and 
 also the further sum of 200?., as and for a reasonable profit and compen- 
 
 («) Gwatkin v. Campbell, 1 Jur. (N. S.) 131. 
 
 (/) Curtis v. Livesey, cited 4 M. & Selw. 197 ; Ex parte Gwin, 2 Deac. & C. 12 ; 
 Baynes v. Fry, 15 Ves. 120 ; Winch v. Feim, 2 T. R. 52, n. ; sec 17 & 18 ^ ict. c.90; 
 17 Ves 332. 
 
 (g) Masterman v. Cowrie, 3 Campb. 488 ; Carstairs v. Stein, 4 M. & Selw. 192; 
 Hammett v. Yea, 1 B. & P. 144; see 11 M. & W. 333. 
 
 (h) Baynes v. Fry, 15 Ves. 120. 
 
 («) Per Ld. Kenyon, C. J., 7 T. R. 185. 
 
 \k) Palmer v. Baker, 1 M. & Selw. 57 ; see now 17 & 18 \ict. c. 90, abolishing 
 the whole system of laws against usury.
 
 286 GRANT ON THE LAW OF BANKING. 
 
 sation for the trouble they would be at in the present badness, and also 
 all costs, &c, (as above.) The hankers brought an action of trover 
 against the sheriff, to recover the value of part of the timber seized by 
 him, under aji./a., issued at the suit of a creditor of A., and they had 
 r*QQ"T a vert li ct > which was uphold, *the court considering 2001. Dot 
 *- -I more than an adequate compensation for trouble, and, therefore, 
 the agreement not void for usury. (/.•) 
 
 //(/- n.<t. — Where a mortgagt of land is made by way of collateral 
 security, fur such balance as may eventually be due from the customer 
 to his banker, it is no objection to charging the land with such balance, 
 that it has been partly composed of interest, turned into principal by 
 rests and interest on that interest, according to the course of dealing 
 between a banker and his customers. In other words, the balance due 
 is to be ascertained by reference to the course of dealing between the 
 banker and customer, and having ascertained the amount, the only 
 burden fastened on the land is this balance. Also, such balance was 
 allowed to carry interest at 5^. per cent, per annum, but no more ;(/) but 
 note there is no objection, in the absence of fraud, to any rate of interest, 
 which may be agreed on, for the stat. 17 & 18 Vict. c. 90, has abolished 
 the old system of the usury laws. 
 
 And in a case which occurred long previously to the late changes in 
 the usury laws, a custom of bankers in Liverpool, to strike a balance 
 every quarter, and send the account to the merchant, and then to make 
 that balance carry interest as principal for the next quarter, was held to 
 be good, notwithstanding it was objected to as usurious./;//) 
 
 In the latest case ou the subject, the facts were the following: — A 
 customer gave to a bank a mortgage <>u land, for securing the balance 
 due on the account. The bank having threatened a sale, the amount 
 claimed by them was paid, upon an arrangement leaving open the ques- 
 r*3Q8l t * on > wnat was tne exact sum d ue to them on the balance of the 
 L ' -I account. *Differeuces arising as to this, A. obtains a decree in 
 equity, for an account as between banker and customer. The account 
 included charges for discounts, some at 5/. per cent., and some more;(«) 
 also commission on the discount of bills, commission on dishonoured bills, 
 and commission for trouble of keeping A.'s accounts. Upon a bill by A., 
 to redeem the mortgage, it was held to be incompetent for him to object 
 cither to the charges for interest or commission as usurious, because a 
 mortgagor impeaching a security for usury can only be relieved on pav- 
 ing what is justly due ; and if the contract between him and the banker 
 was to pay on a banker's account, as it seems it must be considered, 
 then the meaning of that is an account, as usually kept between banker 
 and customer. (';) 
 
 (k) See note (k), preceding page. 
 
 (/; ELufford v. Bishop, B I: -ce Thomas v. Cooper, 2 Eq. R. 1102; and 
 
 Lord Clancarty v. LatOUCbe, 1 ball. & 15. 120, as to the mode of taking bankers' 
 account-. 
 
 (m) Caliot v. Walker, 2 An-tr. 495. 
 
 (n) .See 3 & 4 Will. IV. <•. 98, and 2 & 3 Vict. C. 37. 
 
 (o) Thomas v. Cooper, .'( Eq. Rep. 417, Lords Justices: see James v. Rice, 1 
 Kay, 231 ; Byles on Bills, Cth edit. 24C.
 
 COUNTRY BANKS. AND BANK NOTES. 287 
 
 ^CHAPTER XIV. [*399] 
 
 COUNTRY BANKS, AND BANK NOTES. 
 
 Most questions respecting country banks, and their bank notes, may 
 be usefully considered together. It has been endeavoured to bring to- 
 gether the various points of the law on this subject, arranged with a 
 view to purposes of practical banking, and to the elucidation of questions 
 of actual occurrence. 
 
 A person, not a regular customer, paid into the Totncs Bank on March 
 18, a quantity of notes of a Dartmouth bank, purporting to amount to 
 8007., which were received as a deposit of $001., to bear interest from 
 that day, at 3?. per cent, per annum, to be withdrawn only after twenty 
 days' notice, the interest to cease from the day of notice. 
 
 The course of business between the two banks was as follows : — Any 
 notes of the Dartmouth Bank, received in the course of the day at the 
 Totnes Bank, were by them transmitted, that evening, by the post, to 
 Dartmouth, where the parcel would be delivered to the bankers the fol- 
 lowing morning ; the Dartmouth Bank, in like manner, sent back each 
 day the notes of the Totnes Bank, received in the course of that day, 
 and if, on the evening of any one day, a balance appeared in favour of 
 the Totnes Bank, the Dartmouth Bank paid to the Loudon correspond- 
 ents of the Totnes Bank the amount, by means of an order on their Lon- 
 don correspondents, sent to them by letter the same evening ; but if the 
 balance was in favour of the Dartmouth Bank, and the Totnes Bank did 
 not receive a sufficient quantity of notes, in the course of the next day, to 
 meet that balance, the difference was ordered to be paid, *in Lon- pMAQ.-i 
 don, by the London correspondents of the Totnes Bank, &c, by L 
 letter sent that evening. 
 
 On the morning of March 17, the accounts between the two banks 
 exactly balanced, but on the evening, a parcel containing some of the 
 Totnes Bank notes, and a cheque upon them, making together 340/., 
 was sent from the Dartmouth Bank. The parcel, arriving in the usual 
 course of post, was not opened until the opening of the bank next morn- 
 ing, when the Totnes Bank became debtor to the Dartmouth Bank, to 
 the extent of 340?. 
 
 On March 19, early in the morning, and before the usual hour of 
 opening the bank, the parcel containing the above-mentioned Dartmouth 
 Bank notes was received by the Dartmouth house, and credit given for 
 it, to the Totnes bankers, in the account with them j also, before the 
 opening of the bank. The bank stopped payment about half-past three 
 on the same day. 
 
 In an action, by the depositor, against the Totnes bankers, it was de- 
 cided that, at any rate, the plaintiff would be entitled to recover to the 
 extent of 340Z. j but, besides that, by the course of dealing, he was en- 
 titled to recover the whole, because the Dartmouth Bank, having given 
 
 February, 1857.-20
 
 (iRAST OX THE LAW OP DA K B I X G. 
 
 credit in account to the Totnes Bank, for the wliole, must he taken to 
 have paid the wliole. (o-) 
 
 A country bank consists of two partners, \. and B., one of whom, B., 
 commits an act of bankruptcy, and becomes bankrupt, at a time when 
 another hank in the country holds certain hank notes of theirs, payable 
 at the house of El. & <'<>., the correspondents, in London, of the country 
 bank first referred to. Tbese notes were presented to R. & Co., for pay- 
 ment, but a part only was paid by 1!. & Co., out of the funds of A. and 
 B., then in their hands, A. paying the residue, by indorsing to the 
 country bankers a bill, given by a debtor to the firm of A. and B., for a 
 r*inn ^ ar ? er amount, which they consented to take in payment, and 
 L J *when due, it was paid to the latter bank, by the acceptors. 
 Then A. commits an act of bankruptcy, and a joint commission issues, 
 and the assignees claim from the second country bank the proceeds of 
 the bill, and also the sum paid on the bank notes, by R. & Co., on tin 
 ground that the partnership having been dissolved by the act of bank- 
 ruptcy of B., of which A. had notice, he was not competent to dispose of 
 the partnership property. 
 
 The court held, that as A. had done no more than satisfy a claim, which 
 was complete at the time of the bankruptcy of B., as he was warranted 
 in doing, the action was premature, until an account had been taken in 
 equity, and it was ascertained whether there was a balance against B., 
 or not — that it was impossible to contend that a partnership, when one 
 partner commits an act of bankruptcy, must immediately shut up the 
 house — and that A.'s having acted in making the payment, with a know- 
 ledge of the act of bankruptcy of B., made no difference. 
 
 At the bar, and by the court, the discussion, as far as appears, was 
 confined to the case of the payment on the bill, the payment on the 
 notes being probably considered too clearly good, against the assignees, 
 to bear argument, or require remark. (b\ 
 
 The principle of this case.(') which has been upheld in subsequent 
 cases, is this : — A solvent partner, in a firm, even with notice of an act 
 of bankruptcy committed by his partner, may satisfy a partnership credi- 
 tor out of the joint funds in his (the solvent partner's) hands, provided 
 the creditor's claim were already arrived at maturity at the date of tin- 
 act ; for, in such circumstances, the solvent partner is in the situation 
 of a person winding up the partnership. 
 
 Accordingly, if one of two partners become bankrupt, and the solvent 
 , partner, considering the firm to be in a condition *to pay its 
 J debts, continues the business, and pays partnership money into 
 i banker's, to be applied in discharge of running bills of the firm, made 
 payable at the bank, and afterwards the solvent partner in turn become 
 bankrupt, and his assignees, to-ctln r with the a.-signees of the other 
 partner, bring an action against tin banker, to recover the money so paid, 
 they will not be allowed to succeed. In other words, the banker may 
 
 (a) Gillard v. Wise, 5 B. i C. 13 L >v E. 36. 
 
 i//) Harvey v Crickett, G Man. x S. 335 ; Bee Collyer, Partnersh. 582, et seq. 
 
 (c) Harvey v. Crickett, 5 M. & Selw. 336.
 
 COUNTRY BANKS, A SB BANK NOTES. 2«9 
 
 safely receive such payments, applying the money in the mode specified, 
 and is not liable over to the assignees, for the amount. (rf) 
 
 But all such cases must be free from ground for imputing fraudulent 
 preference; iftherebereasonableeviden.ee of that in the transaction, the 
 creditor will not be permitted to avail himself of partnership property, 
 which may have been transferred to him by the solvent partner, after 
 the bankruptcy of the other partner. 
 
 Thus, in a case which arose out of the bankruptcy of the country bank 
 of H. & Co., just referred to, of which, as has been stated, Ramsbottom & 
 Co., were the town correspondents. H. drew a bill upon Duck, for a valid 
 consideration, which was duly accepted. The bill having been put into the 
 hands of Ramsbottom & Co., afterwards got back into the hands of 11. & 
 Co., not having been negotiated by Ramsbottom & Co. H. & Co. applied 
 to Ramsbottom & Co. for advances, which the latter agreed to make, but 
 upon security. H. & Co. were ready to give securities, amongst which was 
 the above bill. On May 17th, which was subsequent to the request of ad- 
 vances, but before the deposit of the bill as security, H. commits an act of 
 bankruptcy; 28rd May, the bill was deposited with Ramsbottom & Co., as 
 security for advances they had made. A separate commission of bank- 
 ruptcy issued against H. Ramsbottom & Co. then brought an action as 
 indorsees of the bill, against Duck, but ineffectually, the principal ground 
 of non-suit *being, the knowledge of Ramsbottom & Co. of the p^no-i 
 bankruptcy of H., on the 23rd May. •- J 
 
 The court, however, did not go so far as to say, that the creditor's 
 knowledge of the bankruptcy of one partner is conclusive, to establish 
 a fraudulent preference, in contemplation of the bankrupty, of the other 
 partner. 
 
 The decision only extends to laying down, that the facts stated state go 
 far towards establishing a fraudulent preference. (e) 
 
 Note payable Ten Days after Sight. A partnership, consisting of 
 three persons, A., B. and C, carried on business as bankers, and received 
 from a customer 250/. as a deposit, giving him in acknowledgment, a 
 promissory note for that amount, payable ten days after sight, with 
 interest at the rate of three per cent, per annum, " to the day of accept- 
 ance," and signed by A. only. This note bore date 13th November, 
 1813, the money having been deposited 23rd November, 1813. In 
 1819, A. retired from the firm, and was succeeded by D., who carried on 
 the business with B. and C till 1823, when B. died, and afterwards C. 
 died insolvent. 14th May, 1825, the customer demanded payment of 
 interest due on the note, and the same was paid up to November, 1824, 
 by desire of A. ; but D. told the customer at that time, that no more 
 than two-and-a-half per cent, could be paid in future, and he, in the 
 customer's presence, altered the note, by changing the three into two- 
 and-a-half. In January, 1827, payment of the principal and interest 
 
 (d) Woodbridge v. Swann, 5 B. & Ad. 633 ; Ex parte Robinson, 1 Mont. & A\ rt 
 18, cor. Ld. Brougham, C. 
 
 (e) Ramsbottom v. Duck, reported 1 Montag. Partnersh. Appx. of notes, pp. 
 133-135. The power thus vested in the solvent partner over the partnership effects 
 is personal to him. Fraser v. Kershaw, 25 L. J., Chanc. 445.
 
 GRANT ON THE LAW uF BANKING. 
 
 at three per cent., and also at two-and-a-half per cent, was demands! of 
 A., and the following points were decided in an action by the customer 
 against A. : — 
 
 1. The acceptanct in this note meant tight, and that therefore the 
 r*i(\±l promiesoiy Dote need not be left with the maker for *acceptance, 
 L J in order to render him liable upon it, if it had not been altered, 
 but that the alteration for the benefit of A. made it wholly invalid, as a 
 security, between the parties. 
 
 2. The payment of interest was sufficient evidence to show a principal 
 sum to be due. 
 
 3. The promissory note was admissible in evidence, to show on what 
 terms the deposit had been made, although it was objected for A., that 
 the note having been altered in a material part, with consent of the 
 holder, ought to have had a fresh stamp, to render it admissible, (/) and 
 the customer recovered upon the facts proved in evidence, and the count 
 for money lent. 
 
 Bank Notes, when Money. — After what has been said, it is, perhaps, 
 hardly necessary to state, that wherever country bank notes have once 
 been treated, by the parties to a transaction, as money, no objection can 
 afterwards be taken that they are not so^er se. 
 
 For instance, if a stakeholder receives country bank notes as so much 
 money, and afterwards pays them over wrongfully to the original staker, 
 after he has lost the wager, he cannot object, in an action for money had 
 and received, brought by the winner, to recover the amount won, that 
 the notes are not money ;(</) for, as they had been received as money, 
 and treated as money by all parties, they must be so considered by the 
 court, (ft) 
 
 So, a person to whom a sum was payable under an agreement, having 
 once received it in bank notes, without complaint or objection, cannot 
 afterwards allege this not to be a payment under the agreement. (/) 
 r*-lfn - v ' s "> sucn action may be maintained for notes, by the *true 
 L -< owner, against a third person, into whose hands they have come 
 maid fide, provided their identity can be traced and ascertained. (A) 
 
 Still, it has been said, a banker stands in no different position from 
 other persons, as to his own notes; if he sues for instance, for goods 
 sold, the defendant could not support a plea of tender, by Bhowing that 
 he had offered the amount in the banker's own notes; he must have 
 recourse to his set-off in respect of the notes. (I) 
 
 Bank notes, nnder some circumstances, will pass by a devise of "all 
 my money, &c," in a will.(m) 
 
 There is a distinction between Bank of England notes and country 
 hank notes, in respect of bequests, &c. 
 
 (/) Sutton v. Toomer, 7 B. ft C. 416. 
 
 (g) Pickard v. Bankes, 13 Bast, 20; Bee Timmie v. Gibbins, 21 L. J., Q. B. 403. 
 
 (ft) Vox v. Cudworth, cited L2 J. J>. M<">. 402 j see Lowndes v. Anderson, 13 
 
 130. 
 ft) Shipton v. Casson, 8 I>. .v. I! v. 130. 
 
 Clarke r. Shee, Cowp. 191. ' 
 
 Per Parke, B., Foster v. Wilson. 12 If. A W. 201. 
 
 a. 271, i:.',: compare Stuart \. ktarq. of Bute, u Vcs. cci.
 
 COUNTRY BANK?, AND BANK NOTES. 201 
 
 Bank of England notes, unlike other ckoses in action, are capable 
 of acquiring a locality; and were considered to be bo, previously to their 
 being made a legal tender, <tc. So that they have a] way.- been lit U to 
 pass in a will by a bequest of all the testator should have in his house 
 at his death, (h) or equivalent terms. But it is not so in cj - untry 
 
 bank notes ; any such notes that may be in the house would not pass 
 under such words. (o) 
 
 Bank of England notes pass as "goods and chattels," in a will :{p) 
 in general, chores in action do not pass by designation of •• Ou goods 
 and chattels." in a particular locality.^) Country bank notes do not 
 pass under such designation. 
 
 Formerly, great particularity was required in statements in the memo- 
 rials of annuities under the annuity acts, when *the cousidera- nM/uri 
 tion had passed not in actual cash, but in cheques on bankers, (/•) *- J 
 or in country bank notes ;(s) but these decisions have become unim- 
 portant, since the repeal of the laws prescribing enrolments of annuities, 
 which was effected by 17 & 18 Vict. c. 90. 
 
 At Common Law, a tender in Bank of England notes of a debt has 
 been held to be a good tender, if the creditor does not object to receive 
 notes in payment. (£) 
 
 The same is settled of provincial bankers' notes. (») 
 
 Bank of England notes, (before they were made a legal tender,) were 
 held to pass in a will as cash, under the words " all that shall be in my 
 house at my death. "(x\ Bank notes, whether of the Bank of England, 
 or of private banks, may now be taken in execution under fieri facias.{v\ 
 
 Bank of England notes pass by delivery as cash abroad, although by 
 the law of the country in which the deliver}- is made, no property in the 
 note, would be transferred by merely delivering it;(^) for being promis- 
 sory notes, payable to bearer, they are by force of the stat. 3 & 4 Anne, 
 c. 9, transferable by delivery, wherever that delivery takes place. (a) 
 
 The Bank of England may issue bank notes unstamped ;(l) it has the 
 exclusive privilege of doing so within the city of London, and three miles 
 thereof, (c) 
 
 («) Popham v. Lady Aylesbury. Ambl. G8 : Brook v. Turner. 7 Sim. 671 : see 11 
 Ves. 662 ; 7 Bear. 4, 9. 
 
 (o) Brook v. Turner. 7 Sim. 671. Cash, in a trill, is a stricter term than mo- 
 ney. Beaies v. Crisford, 13 Sim. 592. 
 
 (p) Chapman v. Hart. 1 Ves. sen. 271. 
 
 (q) Hertford v. Lowther, 7 Beav. 1. 
 
 (r) See 2 Bro. & B. 19 : ST. R. 328 ; Abbott v. Douglas, 1 C. B. 483. 
 
 (s) Morris v. Wall. 1 B.' k P. 20S; see Faircloth v. Guruey, 2 M. & Sehv. 822 ; 
 Doe d. Church v. Pontifex, 19 L. J., C. B. 145. 
 
 (t) Grigby v. Oakes, 2 Bos. & P. 526 ; Wright v. Reed. 3 T. R. 554 ; Anon., 1 
 Eq. Cas. Abr. 318, 319. 
 
 (u) Polglass v. Oliver. 2 Cro. k J. 15. 
 
 (x) Popham v. Lady Aylesbury, Ambl. 68. See as to country bank notes, Brooke 
 v. Turner. 7 Sim. 671. 
 
 (y) 1 & 2 Vict. c. 110, s. 12. 
 
 (z) De la Chaumette v. Bank of England, 9 B. & C. 208. 
 
 (a) De la Chaumette v. Bank of England. 2 B. & Ad. 385. 
 
 (b) 7 & 8 Vict. c. 32. s. 7. 
 
 (c) 9 Geo. IV. c. 23, s. 1. Judicial notice is taken that the Bank of England is 
 within the citv of London. Partridge v. Bank of England, 9 Q. B. 411.
 
 '•? 
 
 292 GRANT ON THE LAW OF BANKING. 
 
 r*10~l Banks of six, or fewer than six persons, provided they *werc 
 J in existence as banks of issue before 6th May, 1844, may issue 
 bills and notes, and promissory notes, payable to bearer on demand, on 
 unstamped paper, except within the city of London, and three miles 
 thereof.(c) 
 
 With respect to the form of bankers' notes, the stat. 55 Geo. III. c. 
 184, b. I s , prohibits, under a penalty of 50/., any banker issuing any 
 promissory note, payable to bearer, OQ demand, and liable to any of the 
 stamp duties imposed by that act, with tJu datt printed therein. 
 
 Before Bank of England notes were made a legal tender, as before 
 stated, a country bank note in this form : — " Pontefract Bank, £5:5:0. 
 I promise to pay to Bacon Prank, Esq., five guineas on demand, here in 
 cash or Bank of England notes, &c," was held not to be a promissory 
 note within the statute of Anne, so as to render the maker liable to the 
 holder. And so where bank notes were made payable to bearer on de- 
 mand, with the same alternative.^/) Nor in case of bankruptcy, could 
 he prove either on the notes, or for money had and received. (c) 
 
 A bank note, promising to pay at a particular place, must be presented 
 at that place, in order to entitle the holder to payment from the bankers, 
 unless they discharge the holder from such presentment and demand ',(/) 
 in suing the bankers on the note, to aver that they became insolvent, &c, 
 will not suffice to show a discharge, or dispensation with presentment and 
 demand. (/) 
 
 Country bankers are not liable to an action, if they pay their notes, 
 upon presentment, with Bank of England notes, so long as Bank of Eng- 
 land notes are a legal tender every where, but by the Bank of England 
 and its branches ; but they are liable, if they refuse to pay their own 
 notes, otherwise than by other country bank notes, or if they insist on 
 r*_in<n *P a y^ n 8 by any other mode than in such money or currency as 
 L -» constitute a legal tender, in discharge of an ordinary debt.(//) 
 
 Two persons reside at Darlington; one requests the other to give him 
 change for a Sheffield Bank note, which the other does, on Saturday 
 evening; on Monday morning following, this bank opens for two hours, 
 and then stops payment; there was no evidence that the note had ever 
 been presented for payment at the Bank, but the taker of the note on the 
 Monday sent it back, desiring a return of his money, which was refused. 
 
 The court considered the person taking the note, in such circumstances, 
 to be unilir ;m obligation to give prompt notice to the party from whom 
 he took it, of the Btoppage of the bank, and tender the note back to him, 
 and that in this case he had done all that was necessary, in order to en- 
 title him to recover the money he had given for the note; although 
 there had been do presentment at the banker's. (^) 
 
 Here, it might well be considered, that the tender of the bank note in 
 return, seeing that it was the note of B bank situate at some distance from 
 'he pli oi residence of the parties, was made within a reasonable time for 
 
 (c) See note (e), preceding page. 
 
 Ei parte tmeson, 2 Rose, 225. [e) Fv\ parte Davison, Buck, R. 31. 
 
 Bowes v. Howe, r. Taunt. 30, Exch. Ch. 
 
 Grigby v. (lakes, 2 B. & P. 526. This subject is more fully gone into under 
 the head of cheque*, supra, pp. 33-35. (Aj Turner v. Stones, 1 D. & L. 122.
 
 COUNTRY BANKS, AND BANK NOTES. 293 
 
 presentment at the bank, and as the change was given for the note as a 
 favour, it was wholly within the principle above submitted as holding in 
 such cases; viz., that in such cases cash is always given, subject to the 
 implied promise to return it in case, without laches of the receiver oi 
 the note, the bank stops payment before he has a reasonable opportunity(v) 
 for getting the money from the makers. To rule otherwise must throw 
 upon the receiver the burden of incurring trouble *or expense, pMnq-i 
 in taking or sending the note to be presented for payment at a L J 
 distant place, without any corresponding advantage to him : — to imply 
 a promise, without consideration, is what the law never does. 
 
 Bank notes are transferable, by delivery merely, and the person trans- 
 ferring is not liable on the instrument, there being no indorsement, to the 
 transferee or taker. 
 
 Nor, as it appears, is he liable on the consideration, for which the 
 bank note was given, if it turns out to be of no value in the transferee's 
 hands, in consequence of the failure of the bankers, who issued and pro- 
 mised to pay it; for, by the delivery, without indorsement, there prima 
 facie, has taken place a sale of the instrument; the one party hands over 
 the goods, or whatever else formed the consideration, for paying over the 
 instrument representing the value, or agreed price of the goods, &c, the 
 other party hands over the note, the whole forming one transaction ; and 
 the law does not imply that he guarantees the solvency of the bankers. (/.-) 
 Antecedent Debt. — If, however, a country banker's note, be handed 
 over on account of a previously existing debt, the note is not considered 
 as sold ; therefore, if the note be presented in due time at the banker's, 
 and the bankers having stopped payment, it is not paid, and due notice 
 of the dishonour of it is given to the transferor, the transferee may have 
 recourse to his original remedy for the antecedent debt ;{l) for the credi- 
 tor is entitled to cash, and if he takes notes, that is out of favour to the 
 debtor, and it will be inferred, without there be evidence to the contrary, 
 that the notes were agreed not to be payment, if they turn out to be of 
 no value, *without laches in presenting, or other default of the p^Q-] 
 taker. Perhaps this may be a sufficient ground to rest the ex- L 
 ception (if it is one) to the rule upon ; but be that as it may, the excep- 
 tion seems to stand upon authority ; though the rule is seemingly clear, 
 that a banker's note, payable to bearer, on demand, delivered without 
 indorsement, not in payment of a debt already due, but by way of a 
 single transaction, as of exchange for goods, or for other notes, or for 
 money, (in other words changed,) is sold to the party receiving it, who 
 takes it with all risks, the transaction being bona fide.(m) 
 
 (i) As to reasonable time, see Appleton v. Sweetapple, 3 Dougl. 137 141 ; see 
 also Co. Litt. 56 ; 2 Inst. 222 ; 1 T. R. 268 ; Stra. 1178, 1248. Form of deposition 
 
 gers 
 
 33 m 1 Catidge 1 v 3 "Allenby, 6 B. & C. 373 ; Ward v. Evans, 2 Ld Raym 928 ; so 6 
 B. & C. 373 ; per Pratt, C. J., Moore v. Warren, Stra. 415; per King, C. J., Holme v 
 
 Ba (m)' Fenn v. Harrison, 3 T. R. 759 ; Evan? v. Whyte, 5 Bing. 485 ; see 3 B. & C. 
 445, 446.
 
 'J04 GRANT ON THE LAW OF BANKING. 
 
 In either ease, whether the bank note be taken at the time of the sale, 
 r for an antecedent debt, if the transferee can show fraud, as that 
 the transferor knew the banker to be in a state of insolvency at the time, 
 the former may recover from the latter, (n) 
 
 The proposition has lately been said not to be generally true, that when 
 bank notes are paid, they arc always paid at the risk of the party taking 
 them, except where they are paid in respect of an antecedent debt;(o\ 
 and there seems to he no doubt in the courts that, in ordinary cae 
 person asking and receiving change for a bank note, which proves worth- 
 I- bound to return the money, if the other party be not guilty of 
 laches. 
 
 The situation of a banker who gives an accountable receipt, or credit 
 in account, for so much money as a country bank deposited or paid in, 
 promising to pay it, is that of a person who makes a promise, on a con- 
 sideration, which must be taken as failing, when the notes turns out not 
 to be available to realize the money which it purports to stand for, and 
 on a representation, though not a warranty, of its being good for which. 
 In takes it. 
 
 p.,. ,, ,-. It is true that the accountable receipt, in the one case, or *the 
 L -I entry giving credit in account in the banker's book, on the other, 
 would be prima facie evidence to show that cash was actually received 
 by the bank, with whom the notes were deposited; but then this receipt 
 is shown to have been given under a mistake of fact, when it is shown to 
 have been given under the idea that the notes were as good as money, and 
 the bank may always show this, and that no money was ever received by 
 thein.(o) This is not a case where there was anything in the shape of a 
 purchase of the notes. 
 
 However, the distinction has been laid down so often between taking 
 bank notes in payment of an antecedent debt, which is not ipso facto 
 extinguished, (p) and taking them over a counter, or in immediate pay- 
 ment for a thing which passes at the time — that it is too much, it is 
 ■mbmitted, to say that the general position can be shaken. 
 
 As has been noticed, when country bank notes are taken at the same 
 time that goods, &c, are sold, or consideration of any sort passes, all in 
 one uninterrupted transaction, the transferor of the bank notes is not 
 considered as guaranteeing the solvency of the banking house that issues 
 tin in, and the transferee takes them for better and for worse. 
 
 Hut although the transferor does not, in these circumstances, take the 
 
 risk of the solvency of the makers of the notes, he does in all cased 
 
 pi when- there is an express agreement to the contrary, or. perhaps, 
 
 circumstances from which a jury might infer an intention to the con- 
 
 i warrant the genuineness of the instrument, and must in all such 
 
 hear the loss, if it turns out to be forged. Thus, where a banker 
 discounts Navy Hills for A., and they turn out to be forged, though both 
 parties be ignorant at the time of the discount, of anything being wrong, 
 
 (n) Per Bayley, •'.. Oamidge v. allenby, ''> B. & C. 373; see 10 Q. B. 713. 
 . Timmie v. Gibbins, 21 I,. J., Q. B. 402. 
 
 (p) Sec the cases supra, ami Simpson v. Sikea, <> M. & Selw. 295.
 
 COUNTRY BANKS, AND BANK NOTES. 295 
 
 the bankers may recover against A., and so they may, if they have received 
 in payment bank notes which turn out to be forged. (</) 
 
 ^Presentment at Bank. — It is not to be doubted, however, „....,, 
 that the parties on every occasion of handing over bank notes, L 
 whether upon a consideration antecedent or concomitant, would cer 
 tainly be bound by an express agreement providing for the case of insol- 
 vency of the maker of the notes ; in either case, the party receiving the 
 notes may stipulate — " I will not bear the loss, in case the banker has 
 stopped payment within a reasonable time for presentment of them, and 
 before they are paid." So in case of a person asking another to give 
 him change for a bank note, it must be that the note must be inferred 
 to be taken conditionally, that the taker shall not bear the loss,(r) pro- 
 vided he does all that is necessary on his part, but not otherwise ; there- 
 fore, he must present the notes within due time (or, perhaps, he may 
 return to the person from whom he took, in due time, )(s) in order to 
 be discharged. (^) 
 
 As to what is due time to present for payment a banker's note, after 
 the receipt of it, various cases have been decided. The following are 
 some of the principal of them : — A. sends his servant to a town, fourteen 
 miles from his residence, to sell cattle ; the servant sells them, and takes 
 country bank notes in payment from B. (this was about one o'clock on 
 Friday afternoon,) and paid them over to his master (who had been from 
 home the whole of Friday) on settling with him on Saturday evening, 
 A. presents the notes the following Monday morning at the banking- 
 house, when it is found that the bank had stopped payment on the pre- 
 vious Saturday, between three and four o'clock. Under these r* 4 1 3-1 
 ^circumstances, the court considered A. was entitled to recover L J 
 from B. the amount of the notes, as A. had not been guilty of such 
 laches, by not presenting the notes on Saturday morning, as made the 
 notes his own, but intimated that the result would probably have been ' 
 different if the servant had been identified with the master.(w) It seems 
 if the master had himself sold the cattle, and taken the notes for them, 
 in one uninterrupted transaction, he would at once have made his election 
 to take the notes as payment, according to the doctrine above stated, so 
 that, independently of the question of laches, he must in that case, have 
 borne the loss. The court, if the case is duly reported, do not seem to 
 have had present to their minds the above-mentioned distinction between 
 giving bank notes, in completion of a transaction of sale, and giving 
 them in discharge of a precedent debt. 
 
 It is quite clear in general, that in case of a country bank note, made 
 
 (g) Fuller v. Smith, Ry. & M. 49 ; Smith v. Mercer, 6 Tau. 76 ; Jones v. Ryde, 1 
 Marshall, 157 ; Bruce v. Bruce, id. 165, distinguishable from Price v. Neale, 3 Burr. 
 1354, because the bill was paid by a person whose peculiar duty it was to see the 
 bill was a good one; see Bull. N. P 277 ; 1 Salk. 124. 
 
 (r) See Van Wort v. Woolley, 3 B. & C. 446, 447 ; Timmis v. Gibbins, 21 L. J., 
 Q. B. 405. 
 
 (s) PerLd. Lyndhurst, C. B., 1 Cro. & M. 641, and Cur. 643. 
 
 (t) See Rogers v. Langford, 1 Cro. & M. 637 ; Henderson v. Appleton, cited id. 
 642. 
 
 (m) James v. Houlditch, 8 Dowl. & R. 3.
 
 29G G R A X T OX THE L A W F B A X K I X G. 
 
 {livable at the banking boose, there must be a presentation for payment 
 there, before a right of action can.arise,(x) and merely alleging the 
 
 insolvency of the house as a reason fur nonpresentment is impertinent ; 
 nor will a declaration by the banker, that he will not pay his notes, dis- 
 pense with presentment ;(//) the note must be presented, and a demand 
 of payment made at the banking house, unless the bankers discharge the 
 holder from presentment and demand ;(//) nor is it a sufficient excuse to 
 Bay that the banker was from home, had absconded, and left no effects at 
 the banking house. (z) 
 
 If bank notes be transferred in payment of a debt, and it turns out 
 that, at the time of the transfer, though unknown to the creditor, the 
 bankers had already stopped payment and were insolvent, and there was 
 r*4.14~l no P resen troent at the *banking-house, and demand of payment, 
 L J on the one hand, but, instead, the taker, within a reasonable 
 time, gave the party handing over the notes, notice of this fact, and 
 offered to return them, which they refused, this is a sufficient founda- 
 tion to entitle the transferee to recover in debt for the original consi- 
 deration, for which the notes were transferred. (a) 
 
 The presentment, if made, must be in reasonable time; there must 
 be no laches, otherwise the holder is considered as making his election 
 thereby to take to the notes. (i) In cases between a holder of bank 
 notes, and the party from whom he has received them (not being the 
 makers,) it seems that to go through the form of presentment is always 
 immaterial, after insolvency and stoppage by the bankers, provided 
 that within a reasonable period — a period for this purpose may be 
 reasonable, which, nevertheless, exceeds the time within which present- 
 ment ought to be have been made — the transferee gave the other party 
 notice that the notes were valueless, and offered to return thein.M 
 
 There is, however, a distinction between the situation of a person with 
 whom notes are deposited, and one to whom they are paid, in discharge 
 of an antecedent debt, in the event of the notes being worthless: thus, 
 if A. deposit notes of a country bank with another country bank, taking 
 the accountable receipt of the latter for the sum represented by the 
 notes, and it turns out that the notes are worthless, and the bank, as 
 soon as they learn this, give notice to the depositor, and offer to return 
 the notes, but are refused, neither the bank nor the depositor being 
 aware at the time of the deposit, that the bankers, who made the notes, 
 had then stopped payment; the depositor cannot have an action against 
 the banking house with whom the notes were deposited, cither for money 
 r*n-T ' ent > or money had *and received. (</) It was sought to be made 
 L -I out that the circumstance of tin aeeountable receipt showed a 
 
 (x) Saunderson v. Bowes, 14 East, 500; Dickenson v. Bowes, 10 East, 110 ; see 
 3 Campb. 247. 
 
 (v) Howe v. Bowes, 5 Tau. 30; see 8 C. B. 759; 6 M. & Selw. 295. 
 (z) Sande v. Clarke, 8 0. B. 7. r ,i. 
 
 (a) Robson v. Oliver, 10 Q. B. 704. 
 
 (b) Camidge v. Allenby, C B. k C 373; see 10 Q. B. 713, 716; 16 M. & W. 232. 
 
 (c) Per Eric, J., 10 Q. B. 717. 
 
 ! immie v. Gibbine, 21 L. J., Q. B. 403.
 
 COUNTRY BANKS, AND BANK NOTES. 207 
 
 trg&tment of the notes as money, but the court rejected that as a ground 
 of decision. 
 
 Notice of Dishonour. — The same rule as to notice of dishonour of 
 bills of exchange, and notice of dishonour of country bankers' notes, has 
 always obtained ; the rule is, it must be given, by the post which leaves 
 on the day following that on which the holder gets information of the 
 fact. 
 
 An illustration is afforded in the following circumstances. 
 
 A. being previously indebted to B. in 500?. on Friday, about eight or 
 nine A.M., pays to B., at his residence, at Wantage, 4901. in notes of 
 the Newbury Bank, and 10?. in a note of the Wantage Bank, B. giving 
 him a receipt for 500?., on tbe back of the promissory note, by which 
 the loan had been secured. 
 
 B. immediately sends 450?. of the notes to his bankers at Wantage, 
 with orders to transmit the Newbury Bank notes (which were made 
 payable at the bank at Newbury, or at the bank of Messrs. Barnard, 
 London, on demand) to London, to buy an exchequer bill. Wantage is 
 distant from Newbury about eighteen miles, and was a two days' post 
 from one place to the other : the post left Wantage for London at half- 
 past five o'clock, P.M., every day, except Saturdays. 
 
 When B.'s messenger got to the bank, and delivered his message, 
 with the above order, one of the partners said it would be dangerous to 
 send the notes to London, and, therefore, declined or refused to send 
 them by post that evening', but offered to inclose them on the Saturday 
 evening, in their packet which they usually sent in the course of their 
 business as bankers, two or three times a week, by the coach to London, 
 and which packet he said, *would be in London on Monday, p^g-i 
 This was ultimately agreed to, and on Saturday evening 450?. of L - 1 
 Newbury Bank notes were, by the bankers at the Wantage Bank, cut in 
 halves, and one set of halves enclosed in their packet, and transmitted 
 the same evening to London. They usually sent their notes half by the 
 coach, and half by the post, and the other set of halves were sent by the 
 post on Sunday evening, addressed to the London correspondents of the 
 Wantage Bank; these halves reached them between ten and eleven a.m. 
 on the Monday, and the packet, containing the other halves, was deli- 
 vered to them somewhat later the same day. 
 
 The Newbury Bank stopped payment the same morning, but their cor- 
 respondents in London, Messrs. Barnard & Co., continued to pay the 
 Newbury notes the whole of Monday, but not afterwards, and the notes 
 in question would have been paid if they had been presented in course 
 of Monday. When they were presented to Barnard & Co. on Tuesday, 
 they were dishonoured. 
 
 Notice of the stopping of the Newbury Bank being communicated to 
 B., on the evening of Monday, he immediately sends a messenger to A.'s 
 house, who states it to A.'s wife, A. himself having gone to bed ; A., 
 the same evening, said he would take notes again, and return them to 
 the person from whom he had received them. He afterwards refused to 
 take back the notes. 
 
 In an action, brought against him by B., it was held that B. was
 
 298 GRANT ON THE LAW OF BANKING. 
 
 entitled to recover, for that it' the notes had been scut direct by the p<»t 
 v wbury, they would not have been paid, as the bank stopped on 
 Monday ; and that sending the half notes to London was a reasonable 
 precaution, and one which, therefore, the plaintiff had a right to adopt.(< | 
 r*J.T"H Exchanging Notes, — It is a custom among country bankers 
 L J *who reside in the same district, to exchange each other's notes 
 once or twice a week, something alter the same plan as that adopted at 
 the London clearing house. 
 
 This is a great convenience to all parties, and has the same effect as 
 the practice with respect to the clearing house, in lessening the amount 
 of bank notes or gold required for the circulation of the district; it also 
 opi rates as a check to a redundancy of issues, by any particular bank, 
 within the district. 
 
 The notes of such bankers as reside beyond the district, when they 
 come into the hands of the bankers within the district, arc not sent to 
 the issuers of them, but are sent at once to London, for the purpose of 
 presenting for payment to the bankers to whom they are addressed. 
 
 A mode is often adopted by country bankers, of making payments in 
 London for a customer, by which they avoid stamp duty ; that mode 
 consists in advising their correspondents that a certain person will call 
 on them for a certain sum, which sum is paid on demand by the Loudon 
 banker, to such person, on his signing a cheque for the amount; it being 
 lawful for a person in London, to draw on a London banker at sight, 
 without the checpue being subject to stamp du'ty.(/) 
 
 Bankruptcy. — Where one of two country banks becomes bankrupt, 
 each at that moment having in their hands bank notes of the other, 
 which together with other securities, are reciprocally of nearly tin- Bame 
 amount, and the assignee of the bankrupt house, knowing this, presents, 
 and obtains payment of the notes, &c, of the solvent bank at their Lou- 
 don agents, who are unaware of the relative situation of the two banks, 
 the money was held to be recoverable by the solvent bankers from the 
 assignee, it being shown, that on the balance of accounts between the 
 r*118T bankers, not only was nothing owing *by the solvent bank, but 
 L J there was a sum of 22/. in their favour. lg\ 
 
 Messrs. Forsters, bankers at Carlisle, had an agreement with Surtees, 
 bankers at Newcastle-upon-Tyne, by which Forsters were weekly to 
 transmit to the Newcastle Bank all the notes of the Newcastle Bank, 
 and certain other specified hanks, which they, Forsters, might have in 
 their possession ; and the Surtees were in ezohange every week, to 
 return to the Carlisle Bank ; and any balance on one Bide or the other, 
 was to be made up by that party drawing a bill on a banker in London, 
 at twenty days, iii favor of the other party, &c. On these facts, the 
 bank notes bo sent by Forsters, were held to constitute a debt from 
 Surtees, to the Carlisle Bank, which Surtees might pay by a return of 
 bank notes, under the agreement ; but, if they made no such return, or 
 a return short of the amount due, and gave no bill for the balance, such 
 
 ■ | Williams v. Smith, 2 B. & A. 496. 
 (/ i, - Hist, of Banking, 295, 296. 
 
 \g) Bdwarde r. Newman, l 15. k 0. 418.
 
 COUNTRY BANKS, AND BANK NOTES. 299 
 
 balance was a debt against them, which was provable under a fiat 
 against Surtees, on an act of bankruptcy committed after the time 
 when the bill for the balance, if drawn, would have been due, and 
 payable. (A) 
 
 It was clearly laid down also, that the Carlisle bankers could not main- 
 tain an action against the Newcastle bankers, after the latter had got 
 their certificates, to recover damages, as for a breach of contract, in not 
 performing the above agreement. (&) 
 
 The Newton Abbotts bank advanced to A. 500/. upon the security of 
 his promissory note, payable on demand, with interest, and dated 7th 
 November, 1840. 17th July, 1841, the bank stopped payment, at which 
 time A. held bank notes, and interest notes of the bank, to the amount 
 (with the interest due on the notes) of 58K. 5s., being more than suffi- 
 cient to have paid and discharged A.'s promissory note *and r ^, 1(n 
 interest ; in fact, he had collected such notes expressly for the *- J 
 purpose of taking up, and paying his promissory note with Newton Bank 
 notes ; and for these, he alleged, that he had given full value. 
 
 The bank subsequently without notice to A., deposited his promissory 
 note, together with other securities, with Messrs. Williams, their corres- 
 pondents in London, for the purpose of assuring the repayment of such 
 sums of money as they might advance, &c., to the Newton Abbotts Bank, 
 &c, and Williams & Co. held, on the whole, securities belonging to the 
 Newton Abbotts Bank, to a greater amount than the balance due to them 
 from the Newton Abbotts Bank. 
 
 Williams & Co. then compel A. to pay the amount of his promissory 
 note and interest to them, and refuse to allow him to set off the notes of 
 the Newton Abbotts Bank, which he holds. 
 
 A., in ignorance of the fact, that Williams & Co., hold securities to a 
 greater amount than the balance due to them, as above stated, proves 
 under the fiat for the bank notes which he holds. 
 
 The assignees of the Newton Abbotts bankers, then pay Williams & 
 Co. what is due to them, after having credit for the sum paid by A. on 
 the promissory note, and take from Williams & Co., all the remaining 
 securities. 
 
 Now, as A. would have a right of set-off against the bankrupts, if he 
 had continued in possession of the promissory note, he could not be de- 
 prived of that right by his ignorance of the state of accounts between 
 Williams & Co., and the bankrupts, and so the court held the assignees 
 to be bound, on his withdrawing his proof, to repay to him the amount 
 of his promissory note, on his giving up Newton Abbotts Bank notes to 
 the same amount. Ci\ 
 
 Proof. — With respect to proving on the bankruptcy, upon i-^OI 
 *the bank notes of the bankrupt, one or two points have been L " J 
 settled. 
 
 It has been questioned, whether a claim founded on notes of a country 
 
 (h) Forster v. Surtees, 12 East, 605. 
 
 (i) Ex parte Staddon, 3 M. D. & De G. 256 ; as to proving in bankruptcy on 
 bank notes, see supra, p. 379, n. (a).
 
 BOO GRANT ON THE LAW OF BANKING. 
 
 banker, payable on demand, when no demand bas been made, would sup- 
 port a fiat against the bankers ; but, at any rate, it seems clear, that 
 when Buch notes were given id payment of an antecedent debt, the cre- 
 ditor may rely on that debt, if the notes be really worthless. (A) 
 
 A partner in a bank, who Bigns the bank notes "For A., B., &o. M 
 (stating aU the names in the firm, and appending his signature,) cannot, 
 on the bankruptcy of the partnership, be liable to proof against his sepa- 
 rate estate, on such note.(/) 
 
 A person buying up bank notes of the firm, after its bankruptcy, can- 
 not prove for them, unless he shows that the vendors of them were seve- 
 rally entitled to prove, in respect of the notes they sold ;(m\ but, a per- 
 son owing a debt to a banking house may, even alter they have actually 
 stopped payment, buy up their bank notes, for the purpose of setting off 
 their amount against his debt to them, not having at the time notice of 
 an act of bankruptcy by either of the members of the firm ;|///) but he 
 could not set off notes, taken after he knew of an act of bankruptcy by 
 some of the partners. («) 
 
 One person may prove, on behalf of a large number of creditors, each 
 holding notes of the bank, under similar circumstances with himself, 
 provided that he does not attempt to interfere in the choice of assignees, 
 or with the certificate ;(o) but, these modes of proof are only allowed 
 r*J.->n wnere necessity or consent is the foundation ; Lord Eidon, in one 
 L ~ J *case, required the proof to be made in the name of every one 
 of 500 partners. (p\ 
 
 Assignment of all Estate, dec. — Assignment of all their estate and 
 effects, to trustees, for the benefit of creditors, by bankers, who were then 
 in failing circumstances, and had stopped payment, is, although the 
 assignment be made, merely for the purpose of constituting an act of 
 bankruptcy, valid, as an act of bankruptcy, and it seems a fiat may issue 
 on it, although the affidavit to found it be made previously to the date 
 of the assignment. (q\ 
 
 Lost Notes. — Questions sometimes arise, on occasion of the loss of 
 bank notes, which are to be decided, it would seem, at first view, by 
 reference to the principle — where a person has his option whether he 
 will affirm an act, or contract, he must elect, either to affirm, <>r disaffirm 
 it altogether; he cannot adopt such part of it as may be for his own 
 benefit, and reject the rest; he may repudiate the idea of contract, for 
 instance, and bring trover, treating the transaction as a tort in the en- 
 tirety ; but, if he treats it as a contract, and brings his action accord- 
 ingly, then he must take that mode of viewing the matter, rum onere, 
 and must admit the set-off of the defendant, if he has one.(r) 
 
 (k) Simpson v. Sikes, 6 If. & Selw. 295, 312. 
 
 i/) Kx parte Clarke, De G. Hank. R. 153. 
 
 K\ parte Sogers, Buck, 4'jO; so Ex parte Delawar, 3 Ir. Eq. R. 573; Burgc 
 on Buret] ship, |>. I i J. 
 
 w, ; Dickson v. Cass, 1 B. & Ad. 343; Haw kin. v. Wliitten, 10 B. & C. 217. 
 rdon, l .Meat. k A. 282 : Ez parte Keys, B L. J., Chanc. 11. 
 (p) Ex parte Bank of England, 2 Gly. .v J. 362 ; see Ex parte Child, 1 Atk. ill. 
 Simpson v. Sikes, 6 M. ft Selw. 295. As to notice of an act of bankruptcy 
 by banker, Ex parte Halifax, 2 Mont. D. & D. 5 1 1. 
 (r) Smith v. Hudson, 4 T. R. 211.
 
 COUNTRY BANKS, AND BANK NOTES. 301 
 
 An action of trover was brought by the owner of a lost bank note, 
 under the following circumstances : — The owner's clerk lost the note, a 
 woman found it in the street ; she requested the defendant's son to take 
 it to the bank, and he, by the defendant's directions, got change for it. 
 The note was for 207. ; twenty sovereigns were given in change. Of 
 these, eighteen were given back to the woman, who was afterwards taken 
 before a magistrate, and seven sovereigns, *part of the eighteen, r ^ 499 -, 
 found upon her, and given back to the owner of the note. He L J 
 sued the defendant for the remaining 13£., and the jury found a verdict 
 for 13£. ; and it was moved to enter a nonsuit, on the ground that by 
 taking back the seven sovereigns, the plaintiff had treated the transac- 
 tion as a matter of contract between him and the woman, there was an 
 adoption and ratification of what she had done ; but it was held, not to 
 operate so, but only to go in mitigation of damages. (.s) 
 
 If bank notes are lost, the finder acquires no property so as either, to 
 enable him to defend an action of trover against the true owner, or to sue 
 the makers. Still, as such instruments pass by delivery, any one to 
 whom the finder transfers the note, provided such transferee takes it with- 
 out fraud, may do both ; he may retain the note against the loser, and he 
 may compel payment from the maker. (t\ 
 
 If a bank note be lost, or stolen out of a letter put into the post-office, 
 no action lies to recover it or its value at the suit of the loser, against 
 the Postmaster-General. (u\ 
 
 On the trial of an indictment for forgery, the loss of the bank note 
 alleged to have been forged, is not necessarily a bar to conviction ; thus, 
 where a prisoner swallowed the bank note that he was indicted for having 
 forged, it was held, that he might have been convicted without the pro- 
 duction of the bank note;(;e) it seems, however, that the owner of a de- 
 stroyed bank note could not recover in a civil action against the makers ; 
 or at least, it may be said to be a question not wholly without doubt,(_y) 
 and he was practically obliged to have recourse to a court of equity, in 
 most instances; but now it is enacted, with respect to all negotiable in- 
 instruments, to be " lawful for the court, or a judge, in actions pjcjoon 
 *founded thereon, to order that the loss shall not be set up, pro- L 
 vided an indemnity is given against the claims of any other person upon 
 it.» 
 
 Also, if part of a note was lost, it was the rule, apparently, not to allow 
 the owner of the other half to recover, if he could not either produce an 
 entire bank note, or prove that the other half had been actually de- 
 stroyed ;(a) but the new statute will be equally applicable in this case, 
 if indeed, it would not now, independently altogether, be a good defence 
 for the bankers to show, that they had paid the amount once to the 
 original owner of the whole note, upon his presentment of his half; for 
 
 («) Burn v. Morris, 4 Tyiw. 486. (t) Byles on Bills, 297, 6th edit, 
 
 (w) Whitfield v. Lord'Le Despencer, Cowp. 754. 
 (z) Anon. cor. Buller, J., cited 2 Campb. 211. 
 
 (y) Compare Hansard v. Robinson, 7 B. & C. 90, with Woodford v. Whiteley, 
 Moo. & M. 517 ; Wain v. Bailey, 10 A. & E. 616. 
 
 (z) 17 & 18 Vict. c. 125, s. 87 ; see 24 L. J., Chanc. 624. 
 (a) Mayor v. Johnson, 3 Campb. 324.
 
 302 GRANT ON THE LAW OF HANKING. 
 
 although the holder of the lost half mighl show, that it came to his pos- 
 session bona fide, still it is said, thai the taker of a half note necessarily 
 
 takes under suspicious circumstances, and lie is not bound to take the 
 half note at all; he ought to bear the loss, it seenis.(i) 
 
 Hank of England notes cannot 1"' followed by the legal owner into the 
 hands of a bona, fide bidder, fur good consideration, without ootic< 
 and the holder of a Bank of England note is, prima facie, entitled t<> 
 prompt payment of it, and cannot he affected by the previous fraud of 
 any former holder in obtaining it. and therefore the payment cannot he 
 refused, when it is presented, unless the bank can show that he was 
 privy to that fraud. (J) 
 
 If A. pays a bank note to B., who pays it, in discharge of a debt, to 
 <'., who presents it at the Bank of England, where it is stopped, on the 
 ground that it has been fraudulently obtained; and then A. pays the 
 amount to C, in consideration that his debt, due from B., had not been 
 r*4'U~| discharged, ^partly through his (A.'s) means; still A. cannot 
 L " J recover, in trover, against the Bank of England. (r) The stop- 
 ping payment does not appear to be a duty, but is merely an accommo- 
 dation rendered to the public. 
 
 A money-changer, changing a Bank of England note, which had been 
 stolen, but giving full value for it, taking it buna fide, not having, at the 
 time, knowledge that it had been stolen, is entitled to recover from the 
 Hank the amount of the note, although he had the means of knowledge, 
 if he had taken proper care of certain notices, which had been previously 
 delivered to him. 
 
 In this case, the money-changer carried on business in Paris; change 
 was given by him, for the note there ; and he had received, some time 
 before, a printed advertisement, stating this note, among others, to have 
 been stolen from Messrs. A., in England; the note was changed about 
 the middle of the year next following that in the course of which he had 
 ived the notice. (/) 
 
 If the owner of a banker's note, which has been lost, or stolen, stop 
 the payment, on that ground, and then demand that the amount shall be 
 paid to him, the banker has a right to require surety, or indemnity, 
 against the demands of any future hearer, who may present for payment 
 before he pays the true owner; for the banker would not ):«■ able to dis- 
 pute the right of any future hearer, who came fairly by the note, to pay- 
 ment, and. therefore, he is entitled to be indemnified against the eontin- 
 
 (//) See Byles on Bills, :;::•. 6th flit. 
 
 Vinlersun, l.'iKa.-t. 1 :at : S. ('., 1 Rose, 199. A., taking for good 
 consideration, and bond fide, from I'... is entitled, though is. has Btolen the note, 
 Miller v. Race, l Burr. 452, which was trover against tin- clerk t<> whom the note 
 v, a • presented for paj ment. 
 
 (d\ Solomons v. Bank of England, 13 Bast, 135, n. ; see 1 Burr. 452; Cowp. 197, 
 
 L0 A. .v K. 7- ). 
 (e) Benjamin v. Bank of England, .'t Campb. 417. Tin- bank is in the practice 
 of stopping tin- payment of a note that it has notice has been Btolen, upon receiv- 
 i indemnity from the applicant, and this has been declared to be a reasona- 
 ble practice. Miller v. Race, l Burr. 460; see I A. & B. 36. 
 
 (/) Raphael v. Bank of England, 25 I. .!..('. B. 33 ; compare Solomons v. Bank 
 land, 13 Bast, L35 ; and S. C., '■• Bing. 418.
 
 COUNTRY BANKS, AND BANK NOTES. ;;i .:; 
 
 gency of the note being presented by such a bearer ',(g\ and bhie seems 
 to be a direct consequence of the law as laid down in a late ease, where 
 the holder of a *stolen Bank of England note for 500/., who U»>k r ^ lori 
 it in Paris, bona fide, and for full value, was held entitled to re- L -l 
 cover, even though he took it in circumstances showing negligence ;(//) 
 for if such holder has a right to receive from the banker the amount of 
 the note, to lay down that the banker is bound to pay the amount to the 
 true owner, in the first instance, would be to expose him to very serious 
 risk of being obliged to pay the amount twice over. 
 
 . Now, as nothing that has been done, or omitted, by the true owner, 
 or by the innocent holder for value, can make it just that the banker 
 should incur any liability greater than that which he contemplated in 
 making the note, viz., to be bound to pay the amount of it, the question, 
 as between the original owner and innocent holder, for value, must be 
 decided by reference to the rule : — where one of two iunocent parties 
 must bear a loss, that loss is to fall on the party who has, by his conduct, 
 given rise to it ; and this is the party who has allowed the note to be lost 
 or stolen from him ; or, if it be said, the loss, or theft, was an accident, 
 beyond his control, and such an event as no human foresight could pro- 
 vide against, or prevent, still there is no reason, that a party who has no 
 share in causing an accident, should be made to suffer, or to repair, the 
 consequences of it.(/) 
 
 To support an action, by owner of lost bank notes, against persons who 
 have got them into their hands, without giving value, it is not absolutely 
 necessary for the plaintiff to give direct evidence of the loss ; if such cir- 
 cumstances are shown as to satisfy a jury of the fact of the loss, that is 
 sufficient. (&) 
 
 A notice of the loss of bank notes is not to be considered as of per- 
 petual force ; and, unless such notice be renewed, it will be a question 
 for the jury, in an action, by the owner, *to recover the lost r;t . i9f ,, 
 notes, whether, if the party heard no more of the matter for a L "J 
 year, or more, he might not fairly infer that the notes had been re- 
 covered.^) 
 
 It is very important, however, in case of loss of bank notes, to bear in 
 mind the general principle : if a person find lost property, and keep it, 
 having, at the time of finding it, no means of discovering the owner ; he 
 is not guilty of larceny, because he afterwards has means of finding the 
 owner, and, nevertheless, retains the property to his own use.(///) 
 
 If the finder had seen the notes drop from the owner's pocket; or, if 
 the notes had had the name of the owner written upon them ; or, if there 
 had been other similar circumstances, to enable the finder to know who 
 was the owner, at the moment he picked up the notes, that would have 
 been different. (m) 
 
 (g) Walmesley v. Child, 3 Burr. 1524, cited. 
 
 (h) Raphael v. Bank of England, 25 L. J., C. B. 33 ; see Shee v. Clarke, Cowp. 
 200, ace. 
 
 (i) See per Lord Mansfield, C. J. 3 Burr. 1525, per Wilmot, J., id. 1526. 
 
 (k) Holiday v. Sigil, 2 Car. & P. 176. (I) Snow v. Leathain, 2 Car. & P. 314. 
 
 (to) Reg. v. Dixon, 25 L. J., Mag. Cas. 39, where bank notes were amongst the 
 lost property, and the finder had changed them. 
 
 February, 1857.— 21
 
 GRANT OH THE LAW OF BANKING. 
 
 Even if a finder instantly appropriate the note, animo furandi, but 
 under Buch circumstances a< to warrant a jury in finding, that, at the 
 time of the appropriation, he really believed that the owner could neithei 
 find the note nor be fonnd himself, Buch appropriation is not larcen; 
 but the jury must not be left to speculate as to what was in the finder's 
 mind, at the moment, without any evidence for them to build a conclu- 
 
 In case "f a note being marked, or inscribed, so that the real owner 
 might be found, it seems, there must be proof that the prisoner can read 
 these marks, &c, before he can be convicted, £p) or that he got them* 
 I to him. 
 
 Rule. — Under the law, as formerly understood, it was considered, 
 r*±97i that the rights <>f the transferee might be *affected by the degree 
 l J of caution that he used in taking the note. Thus the following 
 
 - s were decided : — 
 
 The porter of a banking house has stolen from him a 307. Bank of 
 
 nd note, as he is passing with it, in his pocket, on an errand of his 
 
 master's; they duly advertize the loss, and, after some delay, trace the 
 
 bank note t<> the possession of a horse dealer; the banking house suing 
 
 him in trover, to recover the note, or its value, it was left doubtful, on 
 
 the evidence, whether he had admitted receiving it from his bankers, or 
 
 from a stranger, at Doncaster races, for bets won; but, at any rate, it 
 
 red, that he had made no inquiry, and not taken the number of the 
 
 : and the jury having found a verdict for the bankers, the court 
 
 granted a new trial. (5) 
 
 A person was robbed, 23rd December, 1825, of his pocket-book, con- 
 taining a hill of exchange, drawn by bankers, at Canterbury, on, and ac- 
 1 by bankers in Loudon, dated 21s1 November, 1825, payable thirty 
 days after sight; on 26th December he advertised his loss, stating, in 
 the advertisement, the contents of the pocket book to be of no use to any 
 but the owner ; 30th December, he gave notice to the acceptors, and re- 
 quested them to stop the bill; 20th December the bill was presented 
 at the Maidstone Dank, by a stranger, who said he Mas son of the in- 
 dorser, and the amount was thereupon paid in the bank notes of that 
 bank. In an action, by the loser, against the Maidstone Bankers, it was 
 held, that the proper questions, tor the jury, were, whether the plaintiff 
 hail used due diligence in making public his loss; and whether the 
 bankers had acted with good faith, and proper caution, in cashing tie 
 bill.(r) 
 
 Reg. v. Thurborn. 1 Den. ('. <". 388, 395, 396. 
 
 Pet Jerris, C. .1.. 25 L. .1.. .M. C. 40 : what proper direction to jury, R< 
 0. 0. 353. 
 Uderaon, l; . 2 Den. C. C. 358. 
 3n< \. Saddler, 3 Bing. 610. In another cue, where the porter of the 
 Bank of England note, and it was cashed at a 
 branch bank, Bitnate at an obscure place, called Bourne, in Lincolnshire, of the 
 defendant's bank, at Sleaford : and that without asking any questions of the per- 
 son presenting the bill, ami who was a Btranger, it was held that the Sleaford 
 bankers were liable, due advertisement having been made. Snow v. Peacock, 3 
 
 Beckwith v Corral, 3 Bing. 411.
 
 COUNTRY BANKS, AND BANK NOTES. 305 
 
 *So, where the plaintiff left in a hackney coach, and lost a r^ioq-i 
 bank post bill for 100/., and dispersed among the hackney coach L 
 stands, &c, hand-bills, describing and offering a reward, &c, and also 
 advertised in the Morning Advertiser of the 24th Sept cm ho-, about eight 
 days after her loss, and early on that day a stranger presented the bill at 
 a banking house at Brighton, and, on being asked his name, said be ^s•as 
 going a journey, and wrote on the bill, in a very illiterate hand, a name 
 and address, and the banker, not having heard of the loss, cashed the 
 bill, taking the usual commission; the question being left to the jury, 
 nearly as above stated, and a verdict found for the plaintiff, the court 
 held the banker to be liable. (f) 
 
 Present Rule. — But the law has lately been laid down in different 
 terms, and the courts have shown a desire to retrace some of the steps 
 that led to these decisions. Even gross negligence in taking would now, 
 not be of itself, a reason why a taker for value should suffer. Thus, 
 where six Bank of England notes, for 500/. each, were stolen in Novem- 
 ber, 1852, from Brown & Co., in Liverpool, who immediately published 
 notices of the robbery, and of the numbers of the notes, in the French 
 and English languages, and circulated them in England, France, and 
 other countries ; fresh notices to the same effect, being published in 
 April, 1853 ; one of these last notices was left in due course, in 1853, 
 at the place of business of one St. Paul, a money changer in Paris. In 
 June, 1854, a stranger entered the shop, and asked what was the ex- 
 change of the day, and produced a 500/. Bank of England note ; the 
 file of notices, kept in the shop, was not looked at ; but the stranger was 
 asked to write his name, and to produce his passport, and St. Paul find- 
 ing the name so written, and that in the passport, to agree, gave change 
 for the note, at the current rate of exchange ; St. Paul then remitted 
 the note to his correspondent in London, who presented it at the p^.xn 
 *Bank of England, and was refused payment, but the bank was L ""J 
 held to be bound to pay, on the ground that a party taking a negotiable 
 instrument bona fide, and for full value, is entitled to recover on it, 
 although it has been stolen, and he took it negligently. (u) 
 
 Forgery. — As regards the forgery and passing of bank notes, knowing 
 them to be forged, it is enacted by 11 Geo. IV. & 1 W. IV. c. GG, s. 3, 
 that if any person shall forge or alter, or shall offer, utter, or dispose of, 
 or put off, knowing the same to be forged or altered, (amongst other in- 
 struments,) any note, or bill of exchange, of the Governor and Company 
 of the Bank of England, commonly called a bank note, a bank bill of 
 exchange, or a bank post bill, or any indorsement on, or assignment of, 
 any bank note, bill of exchange,^) or bank post bill, or any bill of ex- 
 change, or any promissory note for the payment of money, or any indorse- 
 ment on, or assignment of, any bill of exchange, or promissory note for 
 
 (t) Strange v. Wigney, 6 Bing. 677. 
 
 (u) Raphael v. Bank of England, 25 L. J., O. B. 33 ; Bank of Bengal v. MCleod, 
 7 Moo. P. C. 35: Ex parte Bushell, 3 M. D. & De G. 658, overruling Gill v. Cubitt, 
 3 B. & C. 466 ; and Down v. Hailing, 4 B. & C. 330 ; see Miller v. Race, 1 Burr. 
 452; Walmesley v. Child, 3 Burr. 1524. 
 
 (x) See Johnson v. Windle, 3 Bing. N. C. 225.
 
 306 GRANT ON THE LAW OF BANKING. 
 
 the payment of money, or any acceptance of any bill of exchange, or any 
 undertaking, warrant, or order for the payment of money, with interest, 
 in any of the casea aforesaid, to defraud any person whatsoever,^) < 
 Buch offender shall he guilty of felony, &c.(z) 
 
 Under an indictment for uttering, it may be proved that the prisoner 
 offered, or tendered, the note in payment, or that he actually passed it, 
 or otherwise disposed of it to another person. (a) 
 
 A conditional uttering has the criminal qualities of any other uttering; 
 r#xoA-« thus, where the defendant gave a forged *acceptance, knowing 
 L -J it to be so, to the manager of a bank, where he kept an account, 
 saying he hoped this bill would satisfy the hank, as a security, for the 
 balance he owed them; this was holden a sufficient guilty uttering.(A) 
 
 In indicting for offering and disposing of the note, &c., it is not neces- 
 sary to allege to whom it was offered. (c) 
 
 When the authority of a hanking company, to draw and issue notes, 
 is recognized by statute, it is not necessary to prove it by the charter or 
 otherwise. (</) 
 
 On an indictment for disposing and putting away forged bank notes, 
 knowing them to be forged, the prosecutor has a right to give in evidence 
 the fact of other forged notes having been uttered by the prisoner, for 
 the purpose of proving his knowledge of the notes in cpaestion being 
 forged alsojM and delivering to another person a forged bank note, to 
 be put off or passed by the latter, is a "disposing and putting away," 
 within the statute.^/) 
 
 Formerly, Buch an indictment could not have been maintained on a 
 bank note, promising to pay in cash, or Bank of England notes. (</) 
 
 In case of forgery of an order for payment of money, made on hankers, 
 the instrument may be described in the indictment, as a warrant mid 
 order.(K\ 80, an instrument, payable to the order of A., and directed 
 ■•At Messrs. P. & Co., bankers, " is properly described as a hill of ex- 
 change. (A Forging a bill upon a bank, payable to prisoner's own order, 
 and uttering it without indorsement, has been held to be a complete 
 offence. (_/) 
 
 r *jo-i-] *-^ s regards larceny, it has been decided, with respect to bank 
 L ' -' notes, that a person employing another to purchase exchequer 
 bills for him, and giving him a cheque on his hankers for the amount, 
 which the person employed received in bank notes, and then absconded, 
 
 (y) "To defraud" generally u sufficient, 14 & 15 Vict. c. 100, s. 8. 
 
 (z) For form of indictment, &c , see Axchbp. 1 'rim. Plead, and Bvid. by Welsby, 
 
 fa) B. v. Bolden, 2 Taunt. 334. 
 
 (6) Beg & P. 582 ; sec Beg. v. Welch, 2 Den. C. C. 78. 
 
 . V. Bolden, 2 Taunt. 334. 
 1./1 u. v. MKcav. 1 Mood. 0. 0. 130. ft) B. v. Wylie, 1 N. R. 92. 
 
 (/) K. v. Palmer, 1 N. R. 9G; see Keg. v. Lee, 2 M. \ Koh. -M. 
 [a) 2 Boss. Cri. .v M. 497, 3rd edit 
 
 (/,) B. v. Crowther, 2 Buss. Ori. .v If. 38G, 3rd edit. : Beg. v. Thorn. Car. A If. 
 Beg. v. Gilchrist, Car. & M. 224; sec Keg. v. Vivian. 1 Den. 0. 0.35; Keg. v. 
 Carter. 1 Den. C. C. 66. 
 
 . Beg. \. Smith, 1 C. & K. 703. 
 
 - , 38. Cri. & If. 501, 502, 3rd edit.
 
 COUNTRY BANKS, AND BANK NOTES. 307 
 
 cannot indict the offender for larceny, because the prosecutor never had 
 possession, except by the defendant, (k) 
 
 If a person gives forged country bank notes in payment for goods, 
 and, when the seller objects to receive them, assures him they are good, 
 knowing them, at the time, to be valueless, he is indictable fur cheating 
 and defrauding the seller out of the goods; but the evidence, to show 
 the notes to be bad and worthless, must be clear and full. In a case 
 where there was some evidence, to show that the bank, of which the 
 paper in question purported to be the notes, had stopped seven years 
 previously ; and the notes appeared to have been exhibited under a com- 
 mission of bankrupt against that bank ; the words, importing the memo- 
 randum of exhibit, had been attempted to be obliterated, but the name, 
 of the commissioners remained on each of them : it further appeared, 
 that the notes had never been presented for payment at the bank, or at 
 Sir J. Esdaile's, in London, where they were made payable; the judges 
 held the evidence insufficient to convict the prisoner, as failing to prove 
 the notes to be bad.(?) 
 
 So, it is not sufficient to show the bankruptcy of two, out of three, 
 partners in a bank, and the shutting up of the bouse ; for the third, 
 being solvent, the note, if presented to him, may, perhaps, be paid.(m) 
 So, even where the bank had ceased business twenty years before, and 
 the note, uttered *by the prisoner, was old, discoloured, and p^n 
 dated many years before the time of giving it, and was regularly <- J 
 cancelled, and withdrawn from circulation, the makers having traced a 
 large cross over the face of it ; but the proceedings in bankruptcy, against 
 the bankers, were not produced ; the prisoner, though he gave a false 
 address, when asked, it was considered, could not be convicted of a false 
 pretence, within the statute, as there was no evidence to go to the jury, 
 of the prisoner knowing the note to be cancelled, and unavailable, at the 
 time he uttered it.(») Neither is this shown, upon this evidence, to be 
 a cheat at common law.(w) 
 
 In these cases, the prisoners, respectively, alleged and insisted, that 
 the notes they presented, as payment, were good notes ; but an actual 
 representation is not necessary ; for conduct my be equipollent, without 
 words. (o) 
 
 Bank Post Bills. — Questions often arise respecting bank post bills, in 
 the course of the business of country banks ; we shall, therefore, devote 
 a word or two to that subject. 
 
 From what has been formerly decided, it seems indisputable, that 
 giving cash for a bank post bill is » a payment," within the protection 
 
 (k) R. v. Walsh, R. & Ry. 218. Stealing bank notes out of an envelope, Reg. 
 v. Glass, 2 Den. C. C. 215. Larceny in cashing a cheque, Reg. v. Johnson, 2 Den. 
 C. C. 310. Larceny as to changing bank notes, R. v. Oliver, 4 Taunt. 274 ; 2 Leach, 
 1072 ; see Reg. v. Rodway, 9 Car. & P. 984. 
 
 (1) R. v. Flint, Russ. & R. 460. 
 
 (m) R. v. Spenser, 3 Car. & P. 420. 
 
 (n) Reg. v. Clark, 2 Russ. Cri. & M. 296, n. 
 
 \o) R. v. Freeth, 2 Russ. Cri. & M. 295; R. v. Story, id. 291, 292, 293, case of a 
 money order.
 
 GRANT OS THE LAW OF BANKING. 
 
 of the Bankrupt Act, (_/>') provided it is really, and bona tide, made bo 
 the bankrupt before date of thcy/w, or the filing of a petition foradjudi- 
 d of bankruptcy. 
 
 'I'!i. refore, in ease a trader oommits an ad of bankruptcy, and absconds, 
 carrying with him bank post hill-, drawn in London, accepted />// tli> 
 bank, and made payable to himself, ami presents them, indorsed, to the 
 Bank ut' England, (when indorsed <li'l not exactly appear,) at a Branch 
 r*_i^'n ^ ;, "k "' x ^ iv Bank of England, requ< sting to have gold ha- them, 
 L ~" j j *whirli i- given him, and the Jiat lias not then issued, ami the 
 act of bankruptcy is unknown to the manager ft' the Branch Bank, then 
 the L r ivim_r change for the hills, whether considered as a purchase of 
 them, or a payment, in discharge of the liability of tin- hank, as acceptors, 
 i- only valid if it is protected as n payment under the Bankrupt Act. 
 Where the bankrupt absconded, from Liverpool, March 12; application 
 !■ payment, was made to the bank, in London, March 16, ami the 
 same was repeated, April 8, and the hills were changed at the Branch 
 Bank, at Gloucester, April 12. This was hell not to he a protected pay- 
 ment, as the Bank of England had sufficient notice. (a\ 
 
 A- to proving the deeds of the Bank of England, it was held, in one 
 win re the seal of the bank was affixed to an indenture, by a piece 
 of paper, watered to the indenture, on which was written, "Sealed, by 
 order of the Court of Directors of the Governor and Company of the 
 Bank of England, 12th December, 1833, J. Knight, secretary," that 
 • I. Knight was not an attesting witness, so as to make it necessary to 
 call him. and that the execution might he proved by the seaL(r) 
 
 Remittances. — As regards questions respecting the transmission of 
 money by the intervention of hankers, from one part of England to 
 another, many points have been noticed, arising in cases which have 
 referred to principally for other purposes, ami will be found in parts 
 of the work, where discounts, commission, and the relations between 
 banks in one town, and their branches, or correspondents in London, or 
 elsewh< re, are stated. 
 
 Foreign. — With respect to the transmission of money, between Eng- 
 r*-T'-n ^ : ""' : ""' f ,ir( A- n countries, some decisions have *bcen made. 
 L ' J which it may he desirable to bring separately before the reader's 
 notice, especially as regards the Bubject of the course of exchange. If 
 A., in Paris, deposits money in tin' banking house of B. there, for 
 which I!, gives him his promissory note, allowing three percent, interest, 
 ami made fi payable in Paris, or at the choice of the bearer, at the (Jnion 
 Bank, at Dover, or at my usual residence in London, aocording to the 
 course of exchange upon Paris." I!., previous to the first French Revolu- 
 tion, ami for Borne time subsequently to its outbreak, kept a banking 
 
 (/.') 12 A 13Vict.c. t; Willis v. Bank of England, f A. $ E. 21. 
 
 Form of bank post bill, id. -'-', a. Entry in bank books of application to stop pay- 
 ment, i'l. 'J'J. 
 
 (Villi -.. l:. oik of England, i A. ,v E. 21. Hank post bills, issued in Lon- 
 : payable at the branch l>anka in the country, L e., the bank is not 
 i them there, 8. <'.. i'l. 38. 
 Doe d. Bank of England v. Chambers, i A. a: E.
 
 COUNTRY BANKS, AND BANK NOTES. ;,, i 
 
 house in Paris, into which travellers, at that time, were accustomed to 
 pay money, which they wished to be transmitted home, and took pro- 
 missory notes similar in form to this. At the time when the note in 
 question was delivered to A., viz., 20th May, 1791, there was a direct 
 course of exchange between London and Paris. In October, 170;;, the 
 exchange between London and Paris ceased altogether. On 20th May, 
 1799, when the note was presented for payment in London, there was 
 no direct course of exchange between them, but there was, and continued 
 to be at the time of the bringing of the under-mentioned action by A., 
 a circuitous (though the shortest available) course of exchange between 
 London and Paris, through Hamburgh, and A. sued on the note, to 
 recover from B. the value of the money he had paid, in Paris, according 
 to this circuitous course of exchange, together with interest, and the 
 question was, whether he was entitled to this value, or the value that 
 it would have been of, according to the rate of the latest direct course 
 of exchange, being 5dl. 3s. 4d. in one case, and 1SL lGs. Qd. in the 
 other, and it decided that he was entitled to the former sum, notwith- 
 standing that neither of the parties at the time of making the contract 
 contemplated the interruption in the exchanges, which the war pro- 
 duced, (s) 
 
 No objection was made in this case, nor in several others, r *_.o--i 
 *which have subsequently occurred, that the statute of Anne, L 
 which gave to promissory notes a negotiable character, &c, does not 
 extend to notes made out of England ;(t\ and, in an action by a joint 
 stock banking company, on a promissory note made by one L., in Scot- 
 land, against the indorser to them, it was considered as an inland bill of 
 exchangej of which, therefore, protest for payment was not necessary, 
 and the company recovered, although it was not shown that they had 
 duly delivered at the stamp-office, the return required by statute 7 Geo. 
 IV. c. 67.(u) 
 
 A., in London, draws a bill on B., in Paris, which, having been nego- 
 tiated through Amsterdam, is presented for acceptance to B., who re- 
 fuses to accept, but promises that the bill shall be paid at maturity. 
 Before, however, the bill is due, the French Government prohibits the 
 payment of any bills drawn in countries at war with France, which Great 
 Britain was, and on that, the bill was not paid by B. Under these cir- 
 cumstances, A. is liable to the payees, not merely for the whole value, 
 that he originally received for the bills, with interest, and the expenses 
 of protecting, but for the amount of the re-exchange, by the circuitous 
 course of Amsterdam, that being a consequence of the bill not being 
 paid.(aA 
 
 (s) Pollard v. Hemes, 3 B. k P. 335. As to legality of promissory notes made 
 abroad, see Chitt. Bills, 327, 6th edit. 
 
 (I) 3 & 4 Anne, c. 9. See Hewett v. Morris, 3 Campb. 303, case of a promissory 
 note made in Paris ; Roche v. Campbell, 3 Campb. 247, note made in Ireland ; 
 Splitgerber v. Kolm, 1 Stark. 125, note made in Prussia; Carr v. Shaw, Bayl. 
 Bills, 18, n. (1) ; Chitt. Bills, 32V, 6th edit., note made at Philadelphia. 
 
 (w) Bonar v. Mitchell, 5 Exch. 415. 39 Geo. III. c. 107, and 12 Geo. III. c. 72. 
 appear to recognize promissory notes made in Scotland. As to presentment of 
 promissory note made in Belgium, see Vanderdonckt v. Thellusson, 8 C. B. 812. 
 
 (z) Mellish v. Simeon, 2 H. Bla. 378; and see De Tastet v. Baring, 11 East, 
 265.
 
 liRAXT ON THE LAW OF BANKING. 
 
 I •' , bill of exchange be drawn in England, on and aeoepted by a firm, 
 carrying on business in Paris, payable al Paris, to A., who indore 
 bankers in London, it maybe asked, is this a foreign lull ; and when 
 dishonoured by the acceptors in Paris, and protest and notice of dis- 
 
 . ... . . li nr. sufficient, ^according to French law, has been given, is 
 
 L ' -1 this enough to charge A. in an action in England, by the bankers, 
 although Buch protest, and notice of dishonour, were insufficient, accord- 
 ing to English law. The Court of Queen's Bench has hold, that it ii 
 but this decision has not been approved. 
 Home. — An agent of a Durham Bank, residing at Hexham, receives 
 
 from a person also residing there, to be transmitted to London; for 
 
 this purpose, he tills up, and signs a printed form of bill, requiring the 
 
 firm in London, (both houses consisting of the Bame partners,) to pay 
 
 t forty days afterdate; the agent was known to the other, to be 
 
 gent of the Durham Bank, and to draw the bill, as agent, and on 
 account of the Durham Hank, and in the body of the bill, the London 
 houses were desired to place the Bum "to the account of the Durham 
 Hank." The bill, when due, was presented in London, but refused pay- 
 ment : and when the depositor sued the agent, he was held to be perso- 
 nally responsible, on the universal rule, that whoever puts his name to 
 a bill of exchange, thereby makes himself personally liable, unless he 
 Btates, mi the face of the bill, that he subscribes for another, or by pro- 
 curation of another: the agent, therefore, was liable, notwithstanding 
 the depositor's knowledge, that he was a mere agent: and whether, or 
 not, the Durham Hank was liable, made no difference, as regards the 
 
 t's liability 
 Where a debtor remit- to his creditor, a bank note, or bill of exchange, 
 
 mode of conveyance directed by the creditor ; or, if he transmits by 
 the post, as being the usual mode of transmission, in the absence of 
 
 . orders from the *creditor, prescribing the mode, and the bill, or 
 I- J note, be lost, or stolen, the loss falls upon the crcditor.(«) 
 
 A parcel made up by a banking house, sealed, and addressed to another 
 banking house, containing cash, notes, and cheques of the latter, and 
 bills of exchange, specially indorsed to the former, to make up a balance, 
 due from them, on their general account, and deposited on the 3rd of 
 
 duly, after the hank was shut, with a woman servant, left in care of the 
 
 banking house, to be given to the postman, in the morning of the 4th, 
 who w;i- in the habit ot calling for such parcels, before banking hours. 
 Held to be seizable, under an extent in aid, tested on the 2nd July, and 
 returnable on the 6tb November, on Bpecial demurrer, to a plea, statin- 
 fact-, and tendering issue on the property; and that, although the 
 inquisition, finding the debt due to the debtor of the crown debtor, was 
 not taken till the Ith November following, because such circumstances 
 I amount to a delivery of the parcel, to the persons to whom it was 
 
 Rothschild t. Carrie, l Q. B. 43; lee Story on Bills of Exchange, p. 352; 
 
 Kemble, 8 Moo. P. 0. 323; and lee 2 Rosa. CM. & M. v.u. 
 Li Ibitter v. Farrow, 6 Man. A Dwerby v. Butcher. 2 Cro. & M. 
 
 Q pj \. Harden, 7 Taunt. L60. 
 
 So ■ Pi
 
 COUNTRY BANKS, AND BANK NOTES. 311 
 
 addressed, or their agent, and therefore confers no right of property ; 
 otherwise, if it had been delivered to the postman. 
 
 The contents of such a parcel, while remaining in the banking house, 
 under such circumstances, remain there, at the risk of the bankers who 
 made it up, and it is still subject to their control ; for, a writ of extent 
 binds from the test, and such property as bills of exchange is bound, 
 while in the custody of the debtor, (b) 
 
 London Agent. — Some country bankers pay the London banker, who 
 acts as their agent and correspondent, a fixed annual sum, for conduct- 
 ing their agency business. Others allow a commission on the amount of 
 the transactions during the year. There are many country bankers who 
 pay no commission, but leave a sum of money in the hands of their Lon- 
 don agents, in the nature of a deposit, against *which they are r*_ioQ-i 
 not permitted to draw. In such cases, the sum, which is said L ' -I 
 to vary from 4,000?. to 30,000?., is altogether withdrawn from the gene- 
 ral account of the country banker, and placed to another, called the de- 
 posit account. 
 
 On all stock, in the public or other funds, purchased or sold by the 
 banker for his customer, he is allowed one-half the commission charged 
 by the broker, (c) 
 
 Limitations. — A question of importance respecting tlie operation of 
 the Statute of Limitations, on the relations between country bankers and 
 their town correspondents. 
 
 A. and B. were bankers, at Norwich, for whom C. & Co., their Lon- 
 don correspondents, had accepted bills, between the years 1784 and 1806, 
 to the amount of nearly 900?., which, however, bad neither been taken 
 up, nor presented for payment. A. dies in 1808, and shortly after his 
 death, a commission of bankruptcy issues against B. At that time there 
 was a considerable balance belonging to B. in the hands of C. & Co., 
 and this they paid over to the assignees of B., less a sum equal to the 
 amount of the bills they had accepted, as above. 
 
 The bills being outstanding then, was considered to be no ground for 
 presuming that they had been satisfied, notwithstanding the length of 
 time which had elapsed ; and the London bankers were considered to be 
 entitled to retain, until either the bills were accounted for, or they them- 
 selves were indemnified. (c?) 
 
 Issue of Bank Notes. — The regulations under which bankers are 
 allowed to issue their promissory notes, &c, are contained, among other 
 matters, in a statute which enacts as follows : — (e) 
 
 " That from and after the first day of July, 1828, it shall be lawful 
 for any person or persons, carrying on the business of a banker p^og-i 
 or *bankers in England, (except within the city of London, or L J 
 within three miles thereof,) having first duly obtained a license for that 
 purpose, and given security, by bond, in manner hereinafter mentioned, 
 to issue, on unstamped paper, promissory notes, for any sum of money 
 
 (b) Rex v. Lambton, 5 Price ,428. 
 
 (c) Lawson's Hist, of Banking, 257. (d) Morse v. Williams, 3 Camp. 418. 
 («) 9 Geo. IV. c. 23, s. 1.
 
 312 GRANT OX THE LAW OF BANKING. 
 
 mting t.. five pounds or upwards, expressed to be payable to the 
 r, ..a demand, or to order, at any period, not exceed] 
 after sight : and also to draw and issue, on unstamped paper, bills of ex- 
 ohang »ed payable to order, on demand, or at any pi 
 
 not exceeding Beven days after Bight, or twenty-one days after the date 
 thereof: provided Buoh bills of exohangebe drawn upon a person or per- 
 sons carrying on the business of a banker or bankers, in London, West* 
 minster, or the borough of Southwark; or, provided, such bills of ex- 
 change be drawn by any banker or banker.-, at a town or place, wbere he 
 or they shall be duly licensed to issue unstamped notes and bills, under 
 the authority of this act, upon himself or themselves, or his or their co- 
 partner, or copartners, payable at any other town or place, where such 
 banker or bankers shall also be duly licensed to issue such notes and bills 
 a.- aforesaid." 
 
 A subsequent Btatute, usually known as the Bank Charter Act, of 
 1 V H, limits the power of issuing, by the following enactments: — 
 
 " That( f\ from and after l'.lth July, 1*44, no person, other than a 
 banker, who, on 6th May, 1S44, was lawfully issuing his own bank notes, 
 .-hall make or issue bank notes, in any part of the United Kingdom. 
 
 « That) -/) from and after 19th July, 1844, it shall not be lawful for any 
 banker to draw, accept, make or issue, in England or Wales, any bill of 
 exchange, or promissory note, or engagement for the payment of money, 
 payable to bearer on demand, or to borrow, owe, or take "/',(/<) in Eng- 
 r*ll(\l k" 1 '^ ul ^ :l ' es > an y sums or sum of money on the bills *or notes 
 L ' J of Such banker, payable to bearer on demand, save and except 
 that it shall be lawful for any banker, who was on the 6th day of May, 
 l^i \. carrying on the business of a banker in England or Wales, and 
 Was then lawfully issuing, in England or Wales, his owu bank i 
 
 (/) 7 .v s Vi,t. c. 32, s. 10. Section 28 defines various terms as follows (the 
 having regulated the mode of transacting the business of the 
 Bank of England) : — The term, " bank notes," used in this act shall extend add 
 apply to all hills or notes for the payment of money to the bearer on demand Other 
 than hills or notes of the governor and company of the Bank of England; the 
 Bank of England notes" shall extend ami apply to the promissory notes of 
 the Governoraml Company of the Hank of England, payable to bearer on demand ; 
 the term "banker" shall extend ami apply to all corporations, societies, partner- 
 ships ami personal and every individual person carrying on the business of bank- 
 aether by the issue of hank notes or otherwise, except only the Governor and 
 • B ink of England. 
 
 fvi 7 k B Vict. c. 32, s. 11. 
 
 Tin- acceptance by a hank of a hill drawn by a customer on account of mo- 
 
 ■ the latter in hands of former, i- a borrowing within these words, though it 
 he payable at a distant day. Hank of England v. Anderson, :: Bing. X. C 
 Where a London joinl Btock ''auk. consisting of nunc than sis persons, agreed with 
 
 •dian bank that <;. P., the manager of the London hank, (but not a partner 
 therein,) Bhould accept hills drawn by the Canadian hank, payable al a date earlier 
 
 tonths, and the London joint stuck bank should provide funds for mcct- 
 
 ■ 'u : the acceptance of SUCb hill-' was held to lie unlawful within the above 
 
 Booth v. Lank of England, •; Bing. \. «'. ii:. : s. <'.. 2 Kei d, 166; in 
 
 bom. 1'roc. : Ola. .v. I'. 509. Since L9th July, L844, any partnership in hankers. 
 
 h exceeding -i.\ in number, carrying on business in London, or within sixty- 
 
 ftre miles thereof, may draw, accept or indorse bills of exchange, not being payable 
 
 ■ n demand, anything, fcc, notwitbstandii I i - Vict. c. 32, b. 26; and 
 
 '. 1 Will. IV. c. 'J8, s. 3; Perring v. Dun-ion, By. & My. 426.
 
 COUNTRY BANKS, AND BANK NOTES. 313 
 
 under the authority of a license to that effect, to continue to issue such 
 notes to the extent, and under the conditions hereinafter mentioned, but 
 not further' or otherwise ; and the right of any company or partnership 
 to continue to issue such notes, shall not be in any manner prejudiced or 
 affected by any change which may hereafter take place in the personal 
 composition of such company or partnership, either by the transfer of 
 any shares or share therein, or by the admission of any new partner or 
 member thereto, or by the retirement of any present partner, or member 
 therefrom : provided always, that it shall not be lawful for any company 
 or copartnership, now consisting of only six or less than six persons, to 
 issue bank notes at any time, after the number of partners therein shall 
 exceed six in the whole. " 
 
 A banker, who once becomes bankrupt, or ceases to issue his own 
 notes, is thus strictly prohibited from recommencing the issue ; if once 
 he withdraws from business, or his notes from circulation, he can never 
 send them out again ; as follows : — 
 
 " Be it enacted, (*') that if any banker in any part of the United King- 
 dom, who, after 19th July, 1844, shall be entitled to issue bank notes, 
 shall become bankrupt, or shall cease to carry on the business of a 
 banker, or shall discontinue the issue of bank notes, either by agree- 
 ment with the Governor and Company, of the Bank of England or other- 
 wise, it shall not be lawful for such banker at any time thereafter to issue 
 any such notes." 
 
 Returns of Circulation. — Then, the existing banks of *issue, p^y^-i 
 are allowed to continue as banks of issue, under the restrictions, L J 
 as to returns and other matters, as follows :• — 
 
 "And be it enacted,(&) that every banker claiming under this act to 
 continue to issue bank notes in England or Wales, shall, within one 
 month next after 19th July, 1844, give notice in writing to the com- 
 missioners of stamps and taxes, at their head office in London, of such 
 claim, and of the place and name and firm, at and under which such 
 banker has issued such notes during the twelve weeks next preceding 
 the 27th April, 1844 ; and thereupon the said commissioners shall ascer- 
 tain if such banker was, on 6th May, 1844, carrying on the business of 
 a banker, and lawfully issuing his own bank notes in England or Wales, 
 and if it shall so appear, then the said commissioners shall proceed to 
 ascertain the average amount of the bank notes of such banker, which 
 were in circulation during the said period of twelve weeks preceding 
 27th April, 1844, according to the returns made by such banker, in 
 pursuance of the stat. 4 & 5 Vict. c. 50 j and the said commissioners, 
 or any two of them, shall certify, under their hands to such banker, the 
 said average amount, when so ascertained as aforesaid ; and it shall be 
 lawful for every such banker to continue to issue his own bank notes 
 after 19th July, 1844 : provided nevertheless, that such banker shall 
 not at any time after 10th of October, 1844, have in circulation, upon 
 the average of a period of four weeks, to be ascertained as hereinafter 
 mentioned, a greater amount of notes than the amount so certified." (I) 
 
 (i) 1 & 8 Vict. c. 32, s. 12. (*) 1 & 8 Vict. c. 32, s. 13. 
 
 (I) See further ss. 14 and 15, as to evidence of amount of notes in circulation, 
 s. 15-
 
 CHANT OB THE LAW OF BANKING. 
 
 II' My Returns. — The regulations of the returns of bank Dotea in 
 circulation, other than those of the Bank of England, prescribed by the 
 
 • • just mentioned, under a penalty of 50?., arc as follows : — 
 "Be it enaoted,(m) that from and after the 1st July, 1841, all cor- 
 porations and copartnerships, carrying on banking business under the 
 provisions of the Bald act of 7 Goo. 1, c. 46, and all other persons car- 
 rying on banking business in England and Wales, and making and 
 issuing promissory notes, payable to bearer on demand, and all corpora- 
 tions, copartnerships, and persons carrying "ii such business, and making 
 and issuing such promissory notes as aforesaid in Scotland, and also the 
 
 rnor and Company of the Bank of Ireland, and all corporations, 
 
 tnerships, and persons carrying on such business, and making and 
 issuing such promissory notes as aforesaid, in Ireland, shall severally 
 
 just and true accounts of the amount of notes in circulation at the 
 r*-U.->n tdose °f th e business in each week, and shall, at the *eud of 
 L -I every four weeks, make up from Buch weekly accounts, a just 
 and true account of the average amount of such notes in circulation 
 during such four weeks ; and shall also, within seven day- after the con- 
 clusion of such four weeks, return and deliver such last-mentioned 
 account for the four weeks immediately preceding, and so on every 
 successive four week-, such accounts being always verified in the manner 
 hereinafter directed, to the commissioners of stamps and taxes, at their 
 head office in Westminster, upon pain that any corporation, company, 
 copartnership, or persons or person, who shall neglect or omit to keep, 
 or to return and deliver, any such account in the manner directed by 
 this act, shall, lor every such neglect or omission, forfeit the sum of 
 fifty pounds, to be recovered, with full costs of suit, in the name of her 
 majesty's attorney or Bolicitor-general in England or Ireland, or of her 
 majesty's advocate-general in Scotland. 
 
 •• Audi//) be it enacted, that every such account so to be returned 
 and delivered to the commissioners of stamps and taxes as aforesaid, 
 shall be verified by the affidavit or affirmation of the secretary, accountant, 
 cashier, or other chief clerk or officer of the corporation, company, or 
 copartnership, or persons or person, so carrying on banking business, 
 and making such return ; and Buch affidavit or affirmation shall be made 
 before any justice of the peace in any part of the United Kingdom, or 
 before a master extraordinary in Chancery, or any person authorized to 
 
 affidavits by any of the superior Courts in England or Inland: and 
 no such affidavit or affirmation shall be liable to any stamp duty. 
 
 ■ knd/o) be it enacted, that from the accounts which shall be rendered 
 by the Governor and Company of the Bank of England, in pursuance of 
 the act in that behalf, and also from the accounts which >hall be rendered 
 in pursuance of this act, there shall be made up an account of the 
 
 amount of pr issory notes payable to bearer on 
 
 demand, which have been in circulation in the United Kingdom during 
 tic preceding four weeks, and bo on every successive four weeks, dis- 
 
 (m) 4 & r, \ . s. i. 
 
 {'<) 4 k :, \ (o) Id. s. 3.
 
 COUNTRY BANKS, AND BANK NOTES. 315 
 
 tinguishing those circulated by the Bank of England, by private banks, 
 and by joint stock banks in England and Wales, by the banks in Scot- 
 land, by the Bank of Ireland, and by all other banks in Ireland, and of 
 the average amount of the bullion in the Bank of England, during the 
 preceding four weeks ; and such account shall be published in the Lon- 
 .don Gazette, in every four weeks, as soon as the same can conveniently 
 be prepared for that purpose." 
 
 Monthly Averages. — Any excess, above the limited monthly average 
 circulation, is prohibited, as follows : — 
 
 " And(/>) be it enacted, that if the monthly average circulation of bank 
 notes of any banker, taken in the manner hereinafter directed, (j) r*i j.qi 
 *shall at any time exceed the amount which such banker is •- J 
 authorized to issue, and to have in circulation under the provisions of 
 this act, such banker shall in every such case, forfeit a sum equal to the 
 amount by which the average monthly circulation, taken as aforesaid, 
 shall have exceeded the amount which such banker was authorized to 
 issue, and to have in circulation as aforesaid." 
 
 A further provision, for the render of accounts, thus enacts : — 
 
 " And(r) be it enacted, that every banker in England and Wales, who, 
 after 10th October, 1844, shall issue bank notes, shall, on some one day 
 in every week after 19th October, 1844, (such day to be fixed by the 
 Commissioners of Stamps and Taxes,) transmit to the said commissioners 
 an account of the amount of the bank notes of such banker in circulation 
 on every day during the week ending on the next preceding Saturday, 
 and also an account of the average amount of the bank notes of such 
 banker in circulation during the same week ; and on completing the first 
 period of four weeks, and so on completing each successive period of four 
 weeks, every such banker shall annex to such account the average amount 
 of bank notes of such banker in circulation during the said four weeks, 
 and also the amount of such bank notes which such banker is authorized 
 to issue under the provisions of this act ; and every such account shall 
 be verified by the signature of such banker, or his chief cashier, or in the 
 case of a company or partnership, by the signature of a managing direc- 
 tor, or partner, or chief cashier, of such company or partnership, and 
 shall be made in the form to this act annexed, marked ;(B.) and so much 
 of the said return as states the weekly average amount of the notes of 
 such bank, shall be published by the said commissioners in the next 
 succeeding « London Gazette," in which the same may be conveniently 
 inserted ; and if any such banker shall neglect, or refuse to render any 
 such account, in the form and at the time required by this act, or shall 
 at any time render a false account, in the form and at the time required 
 by this act, or shall at any time render a false account, such banker shall 
 forfeit the sum of one hundred pounds for every such offence." 
 The monthly average is to be ascertained, thus : — 
 " And(s) be it enacted, that for the purpose of ascertaining the monthly 
 average amount of bank notes of each banker in circulation, the aggre- 
 
 (p) 7 & 8 Vict. c. 32, s. 17. 
 
 (q) See 7 & 8 Vict. c. 32, s. 19, inf., p. 443. 
 
 (r) 7 & 8 Vict. c. 32, s. 18. (*) Id- s. 19.
 
 310 GRANT ON THE LAW OF BANKING. 
 
 gate of the amount of bank notes of each such banker in circulation on 
 day of business during the first oomph te period of four weeks next 
 after 10th October, 1844, such period ending on a Saturday, shall be 
 divided by the number of days of business in such four weeks; and the 
 average so ascertained BhaU be deemed bo be the average of bank notes 
 of each B»oh banker in circulation during such period of four weeks, and 
 r*J_in so Ul v ' u ^ x roooeB8 fr fl period of four weeks *and such average is 
 L J not tu exceed the amount certified by the Commissioners of 
 Stamps and Taxes as aforesaid." 
 
 Then the commissioners (now 1 1 1 « - Board of Inland Revenue) were em- 
 d. (l>ut only with the consent of the Lords of the Treasury,) to 
 examine, copy, &c., the books of all hanks of issue, containing accounts 
 of the notes in circulation, to insure the rendering true accounts. (i) 
 
 Return of Names, disc. — Then follows a very material enactment, pre- 
 BCribing annual returns of names of partners, &C., in all banking estab- 
 lishments whatever; thus: — 
 
 " And(//) be it enacted, that every banker in England and Wales, who 
 is now carrying on, or shall hereafter carry on business as such, shall, 
 on the first day of January in each year, or within fifteen days thereafter, 
 make a return to the commissioners of stamps and taxes, at their head 
 office in London, of his name, residence, and occupation, or, in the ease 
 of a company or partnership, of the names, residence, and occupation of 
 every person composing, or being a member of such company or partner- 
 ship, and also the name of the firm under which such banker, company, 
 or partnership, carry on the business of banking, and of everyplace 
 where such business is carried on. 
 
 >• Penalty. — Ami if any such banking company, or partnership, shall 
 omit or refuse to make such return within fifteen days alter the said first 
 day of January, or shall wilfully make other than a true return of the 
 persons as herein required, every hanker, company, or partnership, so 
 offending, shall forfeit and pay the sum of fifty pounds; and the .-aid 
 commissioners of stamps and taxes shall, on or before the first day of 
 March in every year, publish in some newspaper circulating within each 
 town or county respectively, a copy of the return so made by every hanker, 
 company, or partnership, carrying on the business of bankers within such 
 town or county respectively, as the case may be." 
 
 Quart* rly Returns, — Besides the above regulations, however, the ob- 
 
 ii to n ndex quarterly returns, together with other regulations, had 
 
 bei n already, by a previous statute, imposed upon hankers issuing their 
 
 own notes ; enacting thus : — 
 
 " That(./j all corporations and copartnerships carrying on banking 
 r*J4 r l ™ 8meM nuder 7 Geo. IV. e. 46, and all other persons carrying 
 L J on ^banking business, ami making and issuing promissory notes 
 payable to hearer on demand, .-hall respectively keep weekly accounts 
 from the 28th of August, 1 v ;.'l. of the average amount of notes in circu- 
 lation at the end of each week of the corporation, copartnership, or per- 
 
 (0 7 & 8 Vict. c. 32, s. 20. (u) Id. s. 21. 
 
 (z) 3 A: 4 Will. IV. c. 83, s. 1.
 
 COUNTRY BANKS, AND BANK NOTES. 317 
 
 sons or person so carrying on banking business and keeping such weekly 
 account ; and shall, within one month after the thirty-first day of De- 
 cember, after the 28th day of August, 1833, make up from such weekly 
 account an average account of the amount of such notes in circulation 
 during the period between the 28th of August, 1833, and the making up 
 such account ; and shall also make up a like account at the end of each 
 quarter, ending on the first day of April, the first day of July, the first 
 day of October, and the first day of January, in the year 1834, and every 
 subsequent year, of the average amount of notes in circulation in the pre- 
 ceding quarter, and shall return and deliver such account to the commis- 
 sioners of stamps, at the stamp office in London ; and such accounts and 
 returns shall be verified upon the oath of the secretary or accountant, or 
 some officer of the corporation, company or copartnership or persons so 
 carrying on banking business, and making such return, which oath shall 
 be taken before any justice of the peace, and which oath any justice of 
 the peace is hereby authorized to administer. 
 
 " Penalty. — And if any corporation, company or copartnership, or 
 persons or person so carrying on banking business, shall neglect to keep 
 such weekly accounts, or to make out or to return or deliver such aver- 
 ages to the commissioners of stamps, at the stamp office in London, or if 
 any secretary, accountant, or other person verifying any such account or 
 average, shall return or deliver to the commissioners of stamps any false 
 account or return of such averages, the corporation, company or copart- 
 nership, or persons or person to whom any such account or averages, or 
 such secretary, accountant, or person verifying the account, shall belong, 
 shall forfeit for every such offence the sum of 500?. ; and the secretary or 
 other person so offending shall also forfeit for every such offence the sum 
 of 100?. ; and any secretary, accountant, or other person who shall know- 
 ingly and wilfully take any false oath as to any such account or averages, 
 shall be subject to such pains and penalties as are by any law in force at 
 the time of taking such oath enacted, as to persons convicted of wilful 
 and corrupt perjury." 
 
 Uniting of Banks of Issue. — A provision is made for the purpose of 
 facilitating the uniting together of banking establishments, as far as re- 
 gards the circulation of their notes, thus : — 
 
 " And(y) be it enacted, that in case it shall be made to appear to the 
 commissioners of stamps and taxes, at any time hereafter, that any two or 
 more banks, each such bank consisting of not more than six persons, have, 
 by written contract or agreement (which contract *or agreement p . , „-. 
 shall be produced to the said commissioners,) become united sub- *- -I 
 sequently to the passing of this act, it shall be lawful to the said com- 
 missioners, upon the application of such united bank, to certify, in man- 
 ner hereinbefore mentioned, the aggregate of the amounts of bank notes 
 which such separate banks were previously authorized to issue, and so 
 from time to time ; and every such certificate shall be published in man- 
 ner hereinbefore directed; and from and after such publication, the 
 amount therein stated shall be and be deemed to be the limit of the 
 
 {y) 1 & 8 Vict. c. 32, s. 16.
 
 313 GRANT ON Till: LAW OF BANKING. 
 
 amount of bank Qotefl whioh such united bank may have in circulation: 
 
 provided always, that it shall nut be law Till for any such united hank to 
 
 issue hank notes at any time after the number of partners therein shall 
 exceed Biz in the whole." 
 
 Bank '>' Lie* rues. — The licensing of hankers to act as such, i< regu- 
 lated thus : — 
 
 « And(z) be it enacted, thai it .-hall be lawful for any two or more of 
 the commissioners of stamps to grant to all persons carrying on tin- busi- 
 ness of bankers in England (except a- aforesaid,) who shall require the 
 Bame, licenses authorizing such persons to issue such promissory n 
 and to draw and issue such hills of exchange as aforesaid, on unstamped 
 paper j which said licenses shall lie and are hereby respectively charged 
 with a stamp duty of thirty pounds for every Buch license. 
 
 •• And('/) that a separate license -hall he taken out iii respect of every 
 town or place where any Buch unstamped promissory notes or hills of ex- 
 change as aforesaid shall he issued <>r drawn : provided always, that no 
 person or persons shall he obliged to take out more than four licenses in 
 all for any number of towns or places in England; and in case any per- 
 son or persons shall issue or draw such unstamped notes or hills as afore- 
 Bald, at more than four different towns or places, then, after taking out 
 three distinct licenses for three of such towns or places, such person or 
 persons shall be entitled to have all the rest of such towns or place- in- 
 cluded in a fourth license. 
 
 " And(o) he it enacted, that every hanker who shall he liable by law 
 to take out a license from the commissioners of stamps and taxes, to 
 
 authorize the issuing of notes or bills, shall take out a separate and dis- 
 tinct license for every town or place at which he shall, by himself or his 
 agent, issue any notes or hills requiring such license to authorize the 
 issuing thereof, anything in any former act contained to the contrary 
 thereof notwithstanding: 
 
 • • Provided always, that no banker, who, on or before the 6th May, 
 '\ < \\, had taken out four such licenses, which on the said last-mentioned 
 r*ii~i ^' i y were res P ec 'tively in force, for the issuing of any such *notefl 
 L J or bills, at more than four separate towns or places, shall at any 
 
 time hereafter be required to take out or to have in force at one and the 
 same time more than four such licenses, to authorize the issuing of such 
 notes or bills, at all or any of the same towns or places specified in such 
 licenses in force on the said 6th .May, 1844, and at which towns or places 
 
 respi Lch hankers had on or before the said last-mentioned day 
 
 issued Buch notes or bills in pursuance of such licenses or any of them 
 r< spectively. 
 
 ■• And('j he it further enacted, that every license granted under the 
 authority oi' this act f.i Geo. IV. o. 23,) -hall specify all the particulars 
 required bj law to he specified in licenses to he taken out by persona 
 issuing promissory notes, payable to bearer on demand, and allowed to 
 
 he reissued; ami every such license which shall he granted between the 
 
 • ••■ ■ [V.C. . ?. 2. (a) Id. s. 3. 
 
 \b) 7 k ti Vict. c. 32, s. 22. (c) Geo. IV. c. 23, s. 4 ; see also s. 5.
 
 COUNTRY BANKS, AND BANK NOTES. 319 
 
 tenth day of October and the eleventh day of November in any year, 
 shall be dated on the eleventh day of October, and every such license 
 which shall be granted at any other time shall be dated on the day on 
 which the same shall be granted ; and every such license shall (notwith- 
 standing any alteration which may take place in any copartnership of 
 persons to whom the same shall be granted,) have effect and continue in 
 force from the day of the date thereof, until the tenth day of October 
 then next following, both inclusive, and no longer." 
 
 Stamped Bank Notes. — Bankers are prohibited from issuing their 
 promissory notes on stamped paper, thus : — 
 
 " Provided always,(e?) that if any banker or bankers, who shall take 
 out a license under the authority of this act, shall issue, under the 
 authority either of this or any other act, any unstamped promissory notes 
 for payment of money to the bearer on demand, such banker or bankers 
 shall, so long as he or they shall continue licensed as aforesaid, make 
 and issue on unstamped paper all his or their promissory notes for pay- 
 ment of money to the bearer on demand, of whatever amount such notes 
 may be ; and it shall not be lawful for such banker or bankers, during 
 the period aforesaid, to issue for the first time, any such promissory notes 
 as aforesaid, on stamped paper." 
 
 Security on Issue of Unstamped Bank Notes. — Bankers licensed to 
 issue their unstamped paper, are required to give security, thus : — 
 
 " And(c) be it further enacted, that before any license shall be granted 
 to any person or persons to issue or draw any unstamped promissory 
 notes or bills of exchange, under the authority of this act, such person 
 or persons shall give security, by bond, to his majesty, *his heirs pmjoi 
 and successors, with a condition, that if such person or persons L J 
 do and shall from time to time enter or cause to be entered in a book or 
 books to be kept for that purpose, an account of all such unstamped 
 promissory notes and bills of exchange as he or they shall so as afore- 
 said issue or draw, specifying the amount or value thereof respectively, 
 and the several dates of the issuing thereof : and in like manner also, a 
 similar account of all such promissory notes, as, having been issued as 
 aforesaid, shall have since been cancelled, and the dates of the cancelling 
 thereof, and of all such bills of exchange as, having been drawn or issued 
 as aforesaid, shall have been paid, and the dates of the payment thereof; 
 and do and shall from time to time, when thereunto requested, produce 
 and show such accounts to, and permit the same to be examined and 
 inspected by, the said commissioners of stamps, or any officer of stamps 
 appointed under the hands and seals of the said commissioners for that 
 purpose ) and also do and shall deliver to the said commissioners of stamps 
 half-yearly, (that is to say,) within fourteen days after the first day of 
 January and the first day of July in every year, a just and true account 
 in writing, verified upon the oaths or affirmations, (which any justice of 
 the peace is hereby empowered to administer,) to the best of the know- 
 ledge and belief of such person or persons, and of his or their cashier, 
 accountant, or chief clerk, or of such of them as the said commissioners 
 
 (d) Id. s. 6. (e) Id. s. 7. 
 
 February, 1857.— 22
 
 ANT ON THE LAW OF I! AN KING. 
 
 shall require, of the amount or value of all unstamped promissory notes 
 and bills of exchange, issued under the provisions of this or any former 
 art. ill emulation within the meaning of this act on a given day, (that 
 u to Bay,) on Saturday in every week, for the space of half a year prior 
 to the half-yearly day immediately preceding the delivery of such ace., nut, 
 ther with the average amount or value of such notes and bills so in 
 circulation, according to such account; and also do and shall payor 
 cause to be paid to the receiver-general of stamp duties in Great Britain, 
 or to some other person duly authorized by the commissioners of stamps 
 to receive the same, as a composition for the duties which would other- 
 wise have been payable for such promissory notes and bills of exchange 
 issued or in circulation during such half-year, the sum of three shillings 
 and six-pence for every one hundred pounds, and also for the fractional 
 part of one hundred pounds, of the said average amount or value of such 
 notes and hills in circulation, according to the true intent and meaning 
 of this act; and on due performance thereof such bond shall be void, 
 but otherwise the same shall be and remain in full force and virtue. 
 
 «And(/) be it further enacted, that every unstamped promissory note 
 payable to the bearer on demand, issued under the provisions of this act, 
 shall, for the purpose of payment of duty, be deemed to be in circulation 
 from the day of the issuing to the day of the cancelling thereof, both 
 days inclusive, excepting nevertheless the period during which such 
 note shall be in the hands of the banker or bankers who first issued the 
 r*lim same > or by whom the same shall be expressed to be *payable ; 
 L "" -I and that every unstamped promissory note payable to order, and 
 every unstamped bill of exchange so as aforesaid issued, shall for the 
 purpose aforesaid be deemed to be in circulation from the day of the 
 issuing to the day of the payment thereof, both days inclusive : 
 
 '• Provided always, that every such promissory note payable to order, 
 and bill of exchange as aforesaid, which shall be paid in less than seven 
 days from the issuing thereof, shall, for the purpose aforesaid, be included 
 in the account of notes and bills in circulation on the Saturday next 
 after the day of the issuing thereof, as if the same were then actually in 
 circulation. 
 
 « An<l(;/) be it further enacted, that in every bond to be given pur- 
 suant to tne directions of this act, the person or persons intending to 
 or draw any such unstamped promissory notes and bills of exchange 
 ■i-' said, Or BUoh and so many of the said persons as the commissioners 
 
 imps shall require, shall be the obligors; and every such bond shall 
 ken in the sum of one hundred pounds, or in such larger sum as 
 
 said commissioners of stamps may judge to be the probable amount 
 of the composition or duties that will be payable from such person or 
 persons, under or by virtue of this act, during the period of one year; 
 and it shall be lawful f>>r the said commissioners to fix the time or times 
 of payment of the said composition or duties, a nd to specify the same in 
 the condition to every Buoh bond; and every such bond maybe required 
 to be renewed from time to time, at the discretion of the said commis- 
 
 (/) it Geo. IV. c. 23. s. 8. 9 Geo. IV. c. 23, s. 9.
 
 COUNTRY BANKS, AND BANK NOTES. 321 
 
 sioners and as often as the same shall be forfeited, or the parties to the 
 same, or any of them, shall die, become bankrupt or insolvent, or reside 
 in parts beyond the seas." 
 
 Alteration of Partnership, &c. — Enactments are made to meet changes 
 in partnership in banks, and requiring fresh securities in such cases, and 
 enforcing the renewal of the bonds, thus : — 
 
 (i And(7A be it further enacted, that if any alteration shall be made in 
 any copartnership of persons who shall have given any such security by 
 bond as by this act is directed, whether such alteration shall be caused 
 by the death or retirement of one or more of the partners of the firm, 
 or by the accession of any additional or new partner or partners, a fresh 
 bond shall be given by the remaining partner or partners, or the persons 
 composing the new copartnership, as the case may be, which bond shall 
 be taken as a security for the duties which may be due and owing or 
 may become due and owing, in respect of the unstamped notes and bills 
 which shall have been issued by the persons composing the old copart- 
 nership, and which shall be in circulation at the time of such alteration, 
 as well as for duties which shall or may be or become due or owing in 
 respect of the unstamped *notes and bills issued or to be issued r*45Q-| 
 by the persons composing the new copartnership ; provided that L J 
 no such fresh bond shall be rendered necessary by any such alteration as 
 aforesaid, in any copartnership of persons exceeding six in number, but 
 that the bonds to be given by such last-mentioned copartnerships shall 
 be taken as securities for all the duties they may incur so long as they 
 shall exist, or the persons composing the same, or any of them, shall 
 carry on business in copartnership together, or with any other person or 
 persons, notwithstanding any alteration in such copartnership ; saving 
 always the power of the said commissioners of stamps to require a new 
 bond, in any case where they shall deem it necessary for better securing 
 the payment of the said duties. 
 
 « And(r) be it further enacted, that if any person or persons who shall 
 have given security, by bond, to his majesty, in the manner hereinbefore 
 directed, shall refuse or neglect to renew such bond when forfeited, and 
 as often as the same is by this act required to be renewed, such person 
 or persons so offending shall for every such offence forfeit and pay the 
 sum of one hundred j^ounds." 
 
 Definition of Bank Notes.— What shall be deemed bank notes, witbin 
 the meaning of the Bank Charter Act, of 1844, (7 & 8 Vict. c. 32,) as 
 regards the enactments concerning stamps, has been subsequently defined, 
 as follows^) : — 
 
 » All bills, drafts or notes, other than notes of the Bank of England, 
 which shall be issued by any banker, or the agent of any banker for the 
 payment of money to the bearer on demand; and all bills, drafts or notes 
 so issued which shall entitle or be intended to entitle the bearer or holder 
 thereof, without indorsement, or without any further or other indorse- 
 ment than may be thereon at the time of the issuing thereof, to the pay- 
 
 (h) Id. s. 10. (0 9 Geo. IV. c. 23, s. 11. 
 
 (k) 17 & 18 Vict. c. 83, s. 11.
 
 t; It ANT ON THE LAW OF BARKING. 
 
 in. -nt of any sum of money on demand, whether the same shall be so 
 
 expressed or Dot, in whatever form and by whomsoever such bills, drafts 
 
 or notes shall be drawn or made: Bhall be deemed to he bank notes of 
 
 nker by whom nr by whose agent the same shall be issued within 
 
 eaning of the said act. 
 
 •• All bills. (7) drafts and notes which by or under this act, or 7 & 8 
 
 Vict. c. 32, are declared or deemed to be bank notes, shall be liable to 
 
 the -tamp duties and composition for Btamp duties, imposed or payable 
 under any act or acts in force upon or in respect of promissory notes, 
 for the payment of money to the bearer on demand ; and all clauses, 
 isions, regulations, penalties and forfeitures, contained in any aet 
 or acts relating to the issuing of such promissory notes, or for securing 
 id stamp duties and composition respectively, or for preventing or 
 . ., punishing frauds or evasions in relation thereto, shall *respec- 
 L ' J tively be deemed to apply to all such bills, drafts and notes as 
 jaid, and to the Btamp duties and composition payable upon or in 
 i thereof, &c." 
 Stamps on Bankers' Acknowledgments, &c. — We may here recite a 
 oactment, abolishing the exemptions from stamp duties, granted by 
 former statutes, on bankers' letters, acknowledging the safe arrival of 
 I ities for money ; thus : — 
 "Whereas(m) under and by virtue of certain acts relating to the 
 Btamp duties, letters by the general post acknowledging the safe arrival 
 of any bills of exchange, promissory notes, or other securities for money, 
 ccepted from the Btamp duty granted and imposed on receipts or 
 discharges given for or upon the payment of money; be it enacted, that 
 the said exemption .shall be and the same is hereby repealed." 
 Bui the exemption from receipt stamps remains on :(>/) 
 • • Receipts given for money deposited in any bank or in the hands of 
 1 anker, to be accounted for, whether with interest or not, provided 
 th same be not expressed to be received of or by the hands of any other 
 than the person to whom the same is to be accounted for ; provided 
 alwa\-. that this exemption shall not extend to receipts or acknowledg- 
 ment- for sums paid or deposited for or upon lettersof allotment of shares, 
 or in respect of calls upon any scrip or shares of or in any join t-stock or 
 other company, or proposed or intended company, which said last-men- 
 tioned receipts or acknowledgments, by whomsoever given, shall be liable 
 to the duty by this act charged on receipts." 
 
 Post dating Bank Notes, &c. — To p<>st date an unstamped bankers' 
 promissory note, or bill of exchange, is punishable, as follows: — 
 " \iel("j be it further enacted, that if any person or persons who shall 
 
 be 1 i * - « osed Under the provisions' of this act, shall draw or issue, or cause 
 
 to 1"' drawn or issued, upon unstamped paper, any promissory note pay- 
 
 abli to Order, or any bill of exchange which shall bear date subsequent 
 
 t the day on which it shall he issued, the person or persons so offending 
 
 7 ft 18 Vict c. 83, a. 12. As in tin- composition mentioned above, see 7 & 
 23, 24, and 19 .v. 20 Vv t. c. 20. 
 r ft is VI i. c. B3, -. L3 
 L6ft IT Vi.t. c. 59, SCbed. (o) 9 Geo. IV. c. 23, s. 12.
 
 COUNTRY BANKS, AND BANK NOTES. 323 
 
 shall for every such note or bill so drawn or issued forfeit the sum of one 
 hundred pounds. 
 
 *"Provided(p) always, that nothing in this act (viz., 9 Geo. r;| .., 91 
 IV. c. 23) contained shall extend or be construed to extend to L -J 
 exempt or relieve from the forfeitures or penalties imposed by any act or 
 acts now in force, upon persons issuing promissory notes or bills of ex- 
 change not duly stamped as the law requires, any person or persons who 
 under any colour or pretence whatsoever shall issue any unstamped pro- 
 missory note or bill of exchange, unless such person or persons shall be 
 duly licensed to issue such note or bill under the provisions of this act, 
 and such note or bill shall be drawn and issued in strict accordance with 
 the regulations and restrictions herein contained.'' 
 
 Allowance of Stamps. — The cancelling and allowance of useless stamps 
 are thus provided for : — 
 
 " And(^) whereas it may happen that bankers who may be desirous to 
 issue unstamped promissory notes, payable to bearer on demand, under 
 the provisions of this act, may have provided themselves with stamps for 
 such notes, which may not have been issued, and which may by this act 
 be rendered useless or unnecessary, and it is expedient to enable the 
 commissioners of stamps to cancel and allow such stamps in manner here- 
 inafter mentioned : 
 
 "Be it therefore enacted, that where any banker or bankers, who shall 
 take out a license under the authority of this act, shall have in his or 
 their possession stamps for reissuable promissory notes, payable to the 
 bearer on demand, which shall be rendered useless or unnecessary in conse- 
 quence of such banker or bankers electing to issue such notes on unstamped 
 paper, under the provisions of this act, it shall be lawful for the said 
 commissioners of stamps, and they are hereby authorized and empowered, 
 to cancel and allow such stamps so as aforesaid rendered useless and un- 
 necessary, and to repay the amount or value thereof in money, deduct- 
 ing therefrom the sum of one pound ten shillings for every one hundred 
 pounds, and so in proportion for any greater or less sum than one hun- 
 dred pounds of such amount or value j provided proof be made by affida- 
 vit or affirmation, to the satisfaction of the said commissioners, that such 
 stamps have not been issued; and provided application be made for 
 such allowance within six calendar months next after the passing of this 
 act." 
 
 (p) 9 Geo. IV. c. 23, s. 13. Then s. 14 provides that all pecuniary forfeitures 
 and penalties incurred under the act are to be recovered in the Court of Exche- 
 quer, &c. ; s. 15 saves the privileges of the Bank of England. 
 
 (q) 9 Geo. IV. c. 23, s. 16.
 
 GRANT ON THE LAW OF BANKING. 
 
 [ 153] CHAPTER XV. 
 
 COPARTNERSHIPS, ETC., I M>! K 7 <;KO. IV. C. 46. 
 
 I : now becomes necessary to Btate in what respects the legislature has 
 
 red, to qualify or regulate the general law, with respect to bank- 
 
 d cases where a great number of persons combine or unite, for the 
 
 se of carrying on a banking establishment. To do this effectually, 
 
 and in order to secure accuracy, we must place before the reader, in some 
 
 • -. the actual words of the legislature, together with such expositions 
 
 of them as have been made, from time to time, by the courts of law and 
 
 equity, on occasions when questions have arisen, upon the intent and 
 
 m ailing of the statutes respectively establishing banking copartnerships, 
 
 joint stock banking companies, and savings' banks. 
 
 Hanks which have been established in conformity with the enactments 
 of the first-mentioned branch of this department of the law, are com- 
 monly known as banking copartnerships, the term being used in contra- 
 di-tinction to private partnerships in banking concerns, on the one hand, 
 and to joint stock companies engaged in banking, on the other. 
 
 By an act of the reign of Geo. 1II.,(«) it was forbidden to erect any 
 corporate bank whatever, or any bank where the number of bankers in 
 partnership should exceed six, so as "to borrow, owe, or take up any 
 Bum or sums of money, on their bills or notes, payable on demand, or at 
 any less hum than six months from the borrowing thereof," during the 
 continuance of the privileges secured to the Bank of England, by former 
 
 of parliament. 
 . . ~ *In 1S2G, the statute now in force was passed; the first sec- 
 L -I tion of which enacts : — 
 
 " That from and after the passing of this act, it shall and may be law- 
 ful for any bodies politic or corporate erected for the purposes of bank- 
 i for any number of persons united in covenants or copartnership, 
 although such persons so united, or carrying on business together, shall 
 -t of more than six in number, to carry on the trade or business of 
 bankers in England, in like manner as copartnerships of bankers, con- 
 6 is ting of not more than six persons in number, may lawfully do; and 
 I'll bodies politic or corporate, or such persons so united as afore- 
 - id, to make and issue their hills or notes at any place or places iii Eng- 
 eding the distance of sixty-five miles from London, payable on 
 d( mand or otherwise, at some place or places specified upon such bills or 
 - exceeding the distance of s i x t \ - 1 i \ . ■ miles from London, and not 
 here, and to borrow, owe, <</ tah "/<,(/-) any sum or sums of money 
 on their hills or notes so made and issued at any such place or places as 
 lid : 
 
 Geo (II. c. 28, s. 15. 
 tpra, p. 439, for i ins; and see also cases infra, p.
 
 COPARTNERSHIPS, ETC. 325 
 
 "Provided always, that such corporations or persons carrying on such 
 trade or business of bankers in copartnership, shall not have any house 
 of business or establishment as bankers in London, or at any place or 
 places not exceeding the distance of sixty-five miles from London ; and 
 that every member of any such corporation or copartnership shall be lia- 
 ble to and responsible for the due payment of all bills and notes which 
 shall be issued, and for all sums of money which shall be borrowed, owed, 
 and taken up by the corporation or copartnership, of which such person 
 shall be a member, such person being a member at the period of the date 
 of the bills or notes, or becoming or being a member before or at the 
 time of the bills or notes being payable,(c) or being such member at the 
 time of the borrowing, owing, or taking up of any sum or sums of mo- 
 ney upon any bills or notes by the corporation or copartnership, or while 
 any sum of money on any bills or notes is owing or unpaid, or at the 
 time the same became due from the corporation or copartnership ; any 
 agreement, covenant, or contract to the contrary notwithstanding." 
 
 Liability of Members. — This first section, it maybe observed, con- 
 siderably enlarged the responsibility attaching at common law to mem- 
 bers of ordinary partnerships : *it provides that every member p,,--, 
 shall be liable for all bills, &c, such person being a member at L J 
 the date of the bills ; or at the time of their being payable ; or while 
 owing or unpaid ; so that any person, being a member, at any time be- 
 tween the date of the contract, and the time when the debt arising there- 
 from is satisfied, is to become liable for its payment. A person might 
 not be a party, or liable to the contract ; he might not be a member of 
 the copartnership at the time when proceedings were taken to enforce it, 
 but, by becoming a member at an intermediate period, between the con- 
 tract and the judgment, he would thereby render himself liable to the 
 payment. This is no small advantage, in theory, given to the creditor 
 of such a concern ; it is apparently a liability attaching to any person 
 becoming a member at any time between the above-mentioned periods ; 
 practically, the advantage appears to prove of little or no avail, such is 
 the difficulty, delay, and expense of realizing it. 
 
 Then the act goes on to say,(cZ) that judgment being obtained against 
 the public officer, execution shall issue against any existing member, all 
 such being virtually parties to the proceedings upon which judgment has 
 been obtained ; if this execution is ineffectual, then the plaintiff may 
 issue execution against any persons who were members at the time when 
 the contract was entered into ; secondly, against persons who became 
 members at any time before such contract was executed ; thirdly, against 
 persons who were members at the time the judgment was obtained. 
 
 Then there is a limitation of three years, (d) within which only execution 
 is to issue against persons of the three last-mentioned classes. This is 
 clearly the case at law, but the statute is silent as to proceedings in 
 equity j though it contemplates equitable liabilities, as well as legal lia- 
 
 (c) See Ex parte Prescott, 1 Mont. & C. 611. This section makes every member 
 of the copartnership liable, upon outstanding notes of the firm, although he were 
 aot a member when such notes issued. 
 
 (d) Sect. 13 infra, p. 480.
 
 GBANI OX TJ1E LAW OF BANKING. 
 
 ., bilities, it *doea not furnish, on the face of it, any particular 
 L '' J remedy for equitable Liability - 
 
 V rertheless, in equity also, claims are held to be barred by the lapse 
 of the three years. 
 
 Thus, where a testator died, possessed of shares in, and a member of, 
 a banking copartnership, and subject to its liabilities: after the expira- 
 tion of three years an administration Buit was instituted againsl his estate ; 
 the proceedings against the public officer on which the judgments were 
 obtained were adopted sometime after the testator's death; it was ad- 
 mitted that execution could not issue against the executors, wbo were 
 not registered members ; in fact, that case is unprovided for by the statute. 
 Now it is to be remembered, that the- testator's liability in his lifetime 
 was to have execution issued against him and his property, before, but 
 imt after, the expiration of the three years, from the time of his ceasing 
 a member. That alone was his liability, notwithstanding the gene- 
 ral wmds in the first clause of the statute. Accordingly, if in a suit 
 instituted as above mentioned, the common decree has been made for 
 taking an account of the deceased's debts, and persons who were creditors 
 of the banking company at his death, come in under the decree and claim 
 to be creditors of the deceased, their claims will be held to be barred by 
 the lapse of three years. 
 
 It seems to be free from doubt, that if the courts of equity can give 
 any relief at all against assets of a deceased partner, it can only be to a 
 party applying before the legal liability under this act would have ex- 
 pired, if the party had remained in life.f/'l 
 
 With respect to the restriction of six partners, &c, and to that of six 
 months, within which notes, &c., were not to be made payable, it may 
 r I -- , be observed, that it never was held, *that the statute referred to 
 L ' J any but partnerships of persons substantially combined for the 
 purposes of banking; therefore, there was never, any more than at pre- 
 sent, any thing to prevent merchants from issuing bills short of six 
 months' date, although the house, issuing them, consisted of more than 
 six partners, if, in reality, they were not bankers, and the bills, &c., 
 were only issued for purposes of commerce. (g) 
 
 With respect, generally, to the enactments in the above section, it will 
 a, that they prescribe the cases, and the circumstances, &c., in 
 which copartnerships, consisting of more than six persons, may be 
 bankers, in England; with a prohibition of such persons, to have any 
 house of business, a- bankers, in London, or at any place, not exceeding 
 the distance of sixty-five miles, from London. Now, in order to ascer- 
 tain the precise effect of this prohibition, on looking into the decisions 
 on the subje< t, we find it is settled, that, in order thai the defendant, in 
 otion brought by a banking copartnership, in a manner that they 
 
 J., <h. 199 j s. (\. 1 De <;.. M. & Q. 589. 
 Barker v. Buttrc 1 Beav. 134, recoj nized I ■■<■ Ld. Truro, C, in Ex parte 
 Goutuwaite, 3 Mac. & G. : 
 
 •wler, 2 Chit B. ''.. I Stark. I:. 159; Perringv. Dunston, 
 
 • npar< England v. Anderson, 4 Scott, 107 ; Broughton v. 
 
 '.- Company, 3 B. k A. 1.
 
 COPARTNERSHIPS, ETC. 327 
 
 could not, but for this act, have brought an action in, and where, there- 
 fore, it was necessary that they should show that they had complied with 
 the requisitions, and prohibitions of it, an attempt to show that the body 
 have acted illegally, by having a house of business, within the prohibited 
 distance from London, will fail, unless it shows that their legality was 
 already thus vitiated at the date of the contract they sue upon, or at the 
 time of the commencement of the suit; it is not enough to show their 
 existence to have been illegal at any time ; and if, in order to make all 
 sure, the defendant alleges, as a reason, why he should not be bound to 
 answer them, that their existence has been illegal, from the formation of 
 the partnership until the commencement of the suit, he must i-*jkq-i 
 *prove the illegal existence for the whole of that period, other- L J 
 wise his excuse will be incomplete, and he must fail altogether. (7t) 
 
 Drawing Bills, &c. — The second section restrained these copartner- 
 ships from drawing a bill of exchange, payable by an agent, in London, 
 &c. ; but for those provisions, the following enactment is now substi- 
 tuted : — 
 
 " That it shall be lawful for any body politic or corporate whatsoever, 
 erected or to be erected, and for any other persons united or to be united 
 in covenants or partnership, exceeding the number of six persons carry- 
 ing on business as bankers, to make any bill of exchange or promissory 
 note of such corporation or copartnership, payable in London by any agent 
 of such corporation or copartnership in London, or to draw any bill of 
 exchange or promissory note upon any such agent in London, payable on 
 demand or otherwise in London, and for any less amount than 50?., any- 
 thing in the said act of the 7th Geo. TV. or in any other act, to the con- 
 trary notwithstanding."^') 
 
 Name. — Banks of this kind, whether corporate or unincorporated, 
 generally assume a name. As regards corporate banks, established under 
 this statute, there is a decision, to the effect, that if A. invents, or 
 frames, a particular name for a bank, and a body of persons, without the 
 consent of A., adopt such name, and become incorporated bythat name, 
 A. cannot recover damages from the corporation, for taking possession of 
 such name, and using it, without averring, and proving, that he has 
 carried on business, as a banker, under such name ; (&) and so has been 
 injured by their assumption of it. 
 
 Borrowing, owing, and taking up. — The third section *it is pMcg-i 
 unnecessary to state, because its enactments have been modified L 
 subsequently, and the law now stands thus : — 
 
 " Any body politic(?) or corporate, or society or company or partnership, 
 although consisting of more than six partners, to carry on the trade or 
 business of banking in London, or within sixty-five miles thereof, pro- 
 vided that such body politic or society, or company or partnership, do 
 
 (li) Hughes v. Thorpe, 5 M. & TV. 656 ; Rarnford v. Copeland, 6 A. & E. 482. 
 
 (i) 3 & 4 Will. IV. c. 83, s. 2. Bank post bills issued in London are not made, 
 by operation of 7 Geo. IV. c. 46, s. 15, payable at the branch banks of the Bank of 
 England. Willis v. Bank of England, 4 A. & E. 21. 
 
 (k) Lawson v. Bank of London, 18 C. B. 84. 
 
 (/) 3 & 4 Will. IV. c. 98, s. 3.
 
 [*4G0] 
 
 328 GKANT ON THE LA"VV OF BANKING. 
 
 not borrow, owe, or take up in England, any sum or sums of money on 
 their bills m- notes, payable on demand, or at any less time than six 
 months from the borrowing thereof, during the continuance of theprivi- 
 granted by this "<■/, (viz, :; \ 4 Will. IV. o. '.'S, to the said Governor 
 aiul Company of the ]>auk nf England." 
 
 The acceptance of a customer's hill, at less that six months' date, on 
 account of a balance in favour of the customer, i< a borrowing, in pointy 
 of law, within the meaning of the statute. (///) 
 
 The drawing of a bill, at a longer period than six months, though the 
 acceptance should be within six months of its maturity, would be a 
 transaction in violation of the provisions of the statute, and all persons, 
 who were privy to it, would be prevented from enforcing the acceptance; 
 though such violation of the prohibition of the statute would nut affect 
 a bona fide holder without notice. (ri\ 
 
 A firm of more than six persons, not in partnership for banking pur- 
 poses, does not appear to come within this proviso.(o) 
 
 The effect of this enactment will be the better conceived, from advert- 
 ing to the circumstance, that the average date of bills drawn in this 
 country, by traders, or by bankers, to represent transactions in trade, 
 are almost all of them within three months, excepting those from the 
 manufacturing districts of Manchester, Birmingham, Sheffield, and 
 Leeds, *which are, generally, at three and four mouths after 
 date.(y/) 
 
 Account of NameSf &c. — The next enactment, in 7 Geo. IV. c. 46, is 
 section 4. thus : — 
 
 ••And be it further enacted, that before any such corporation or co- 
 partnership, exceeding the number of six persons in England, shall 
 begin to issue any bills or notes, or borrow, owe, or take up any money 
 on their bills or notes, an account or return shall be made out, accord- 
 ing to the form contained in the schedule marked (A.)(y) wherein 
 shall be set forth the true names, title or firm of such intended or 
 existing corporation or copartnership, and also the names or places of 
 abode of all the members of such corporation, or of all the partners con- 
 cerned or engaged in such copartnership, as the same respectively shall 
 appear on the books of such corporation or copartnership, and the name 
 or firm of every bank or banks established or to be established by such 
 corporation or copartnership, and also the nanus and places of abode of 
 two or more persons, being members of such corporation or copartnership, 
 and being resident in England, who shall have been appointed public 
 officers of such corporation or copartnership, together with the title of 
 office or other description of such public officer respectively, in the name 
 of any one of whom Bucb corporation shall sue and be sued, as herein- 
 
 ("n Bank of England r. Anderson, 3 Bing. N. C. 589; S. <'.. 2 Keen, 328 
 Bank of England w. Booth, 2 Keen, 460j 7 Cla. ,v 1". 509 : per Lid. Denman, I 
 v. Bond, 5 I!. A A'l. .": 
 [n\ Per Oar. 3 Blng. V 0. 665. 
 
 P _ . Dunston, By. .v. ,M. 426; rid. sap. p. 457, n. {g). 
 
 of Banking, | London 
 - ■• infra, j
 
 COPARTNERSHIPS, ETC. 329 
 
 after provided, and also the name of every town and place where any of 
 the bills or notes of such corporation or copartnership shall be issued by 
 any such corporation, or by their agent or agents, and every such amount 
 or return shall be delivered to the Commissioners of Stamps, :it the 
 Stamp Office in London, who shall cause the same to be filed and kept 
 in the said stamp office, and an entry and registry thereof to be made in 
 a book or books, to be there kept for that purpose, by some person or 
 persons to be appointed by the said commissioners in that behalf, and 
 which book or books any person or persons shall from time to time have 
 liberty to search and inspect, on payment of the sum of one shilling for 
 every search. 
 
 " Schedule (A.) 
 
 "Keturn or account to be entered at the Stamp Office in London, in 
 pursuance of an act passed in the seventh year of the reign of Kiug 
 George the Fourth, intituled [here insert the title of this act,] viz. 
 
 » Firm or name of the banking corporation or copartnership, viz. [set 
 forth the firm or name]. 
 
 " Names and places of abode of all the partners concerned or engaged 
 in such corporation or copartnership, viz. [set forth all the names and 
 places of abode]. 
 
 *<< Names and places of the bank or banks established by such p^gr-i 
 corporation or copartnership, viz. [set forth all the names and L J 
 p>laces]. 
 
 « Names and descriptions of the public officers of the said banking cor- 
 poration or copartnership, viz. [set forth all the names and descriptions]. 
 
 « Names of the several towns and places where the bills or notes of the 
 said banking corporation or copartnership, are to be issued by the said 
 corporation or copartnership, or their agent or agents, viz. [set forth the 
 names of all the towns and places]. 
 
 " A. B. of , secretary [or other officer, describing the 
 
 office](r) of the above corporation or copartnership, maketh oath and 
 saith, that the above doth contain the name, style, and firm, of the above 
 corporation or copartnership, and the names and places of the abode of 
 the several members thereof, and of the banks established by the said 
 corporation or copartnership, and the names, titles, and descriptions of 
 the public officers of the said corporation or copartnership, and the names 
 of the towns and places where the notes of the said corporation or copart- 
 nership are to be issued, as the same respectively appear in the books of 
 the said corporation or copartnership, and to the best of the information, 
 knowledge and belief of this deponent. 
 
 " Sworn before me, the day of , at , in the 
 
 county of 
 
 " C. D., justice of the peace in and for the said county." 
 
 A return of an account, omitting the words, justice of the peace, dr., 
 &c, was held to be receivable in evidence, it being proved that C. 
 
 (r) "Tublic officer" sufficient, at least without'pi'oof that he held a specific office. 
 Armitage v. Haaier, 3 B. & Ad. 793.
 
 GRANT OS Till: LAW OF BANKING. 
 
 D., tin' ] aing the verification, was, in fact, a justice of the 
 
 ■ ( s ) 
 
 Thia section is become immaterial in one respect, viz., as regards that 
 part of it which makes compliance with it, a condition precedent to the 
 power of issuing notes, because, since l'.'th July, 1844, by 7 & 8 Vict. 
 
 C. 32, B. 10, no new hank ran issue notes; but, it is necessary to retain 
 
 it in other respects, because, as to them it is still the law. 
 
 The words, shall sue mnl h> sued, as hereinafter "provided., refer to 
 •i 9, the effect of which is Btated below.ft) 
 r*-ir->n Under t Ii i - section, and the 6th, the date of the account, *or 
 L "J return, is the material thing; that i<, to fix; who are members; 
 and what is meant, is the day when the officer verifies it, and can be no 
 other day. 
 
 Offia /•>-. — With respect to the officers to be appointed under this 
 section it i< t<> lie remarked, as a principle of the law, that a thing being 
 once shown to exist, it is presumed to continue in the same state, until 
 the contrary be shown, ami therefore, if A. 1!. he shown to have been 
 appointed u> the office, (not being an annual office,) he is presumed to 
 remain officer, in the absence of any thing to show any change. («) 
 
 The intention of the legislature, to be gathered from this section, and 
 other provisions of the statute, appears to have been, that there should 
 always, during the continuance of the concern, be a public officer in 
 existence, capable of being sued; and, in all probability, the hank is 
 compellable by law to appoint another immediately, in case the former 
 officer goes out of the jurisdiction, &c.(x) 
 
 Also, it has been held, not to be necessary for the appointment to 
 have been made, after the company begin to carry on business; it may 
 be made, and, indeed, ought to be made, before they issue notes at all.(y) 
 
 Evidence. — Under this section, a certified copy of the return is evi- 
 dence of the facts pertinently stated in it ; it is not necessary to prove 
 that the affidavit verifying it was made by the public registered officer 
 of the company. (z) 
 
 r-*,pqi *On the other hand, the return is not the only admissible evi- 
 L -• dence of these facts, for they may be proved aliundeJa) An 
 annual general return for March, L848, has been held admissible in evi- 
 dence, in support of an issue in scire facias, whether the defendant was 
 a member on -Mth January, l v ls.(£A 
 
 ]{y Bection 1, as has been seen, the return is made evidence, that all 
 
 B aquel v. Woodford, 5 Q. B. 310. (t) Infra, p. 467. 
 
 - card v. Dunn, 12 M. <v W. 655. A return made to the stamp office, 
 . A. B. to be officer in March, : leace that he is so in Novi 
 
 - I .Hi no! the only evidence. 
 Per Curiam, LO If. <*'\\'. 721. 
 
 10 M. A W. 7-"-'. 
 Bosanquet w. Woodford, 5 Q. B. 310; see Steward v. Dunn. 12 M. k W. 
 ee L2 k 13 Vict, c. L, b. i. and 7 .v S Vict. c. 113, ss. 19, 20. if it pur- 
 ports to be Bigned bj the ' : cashier," it will Buffice. Harvey v. Scott, li <,». B. 92, 
 L02. 
 
 irdfl \. Buchanan, 3 B. & Ad. 788; R. v. James, 7 Car. ,v P, 
 v. Carter, i Den. I I 
 (//) Bosanqnel v. Shortridge, i Exco
 
 COPARTNERSHIPS, ETC. 331 
 
 persons named therein, as members of such corporation, or copartner- 
 ship, were such, at the date of the account, or return. On the other 
 hand, however, when certain proprietors of a company, were sued in 
 scire facias, upon a judgment, against the public officer, the enumera- 
 tion of proprietors in such a return, to the inland revenue office, was held 
 not receivable in evidence against the plaintiff, to show that at the time 
 they were not proprietors, (c) 
 
 It is said to be the rule, not to admit the return, in evidence, unless 
 it has been filed within the time limited by the statute. (d) 
 
 The fact of the return having been made, &c, is not a condition 
 precedent to the public officer's right to sue on behalf of the com- 
 pany.^) 
 
 Annual Return. — The continuance of the returns is thus provided for, 
 in section 5 : — 
 
 " That such account or return shall be made out by the secretary or 
 other person, being one of the public officers appointed as aforesaid, and 
 shall be verified by the oath of such secretary or other public officer, taken 
 before any justice of the peace,(/) and which oath any justice of the 
 peace is hereby authorized and empowered to administer, and that such 
 account or return shall, between the twenty-eighth day of February and 
 the twenty-fifth day of March in every year, after *such corpo- r * A( >A-. 
 ration or copartnership shall be formed, be in like manner de- L J 
 live red by such secretary or other public officer as aforesaid, to the com- 
 missioners of stamps, to be filed and kept in the manner and for the pur- 
 poses as hereinbefore mentioned." 
 
 This is one of the provisions of the legislature, which it is usual to call 
 directory ; this kind of provision occurs, when the legislature, enacting 
 something which at common law it is not an offence to violate, omit to 
 annex any penalty, or other made by which their intentions may be en- 
 forced, and which, therefore, persons seem to be left pretty much to their 
 choice, whether they will conform to, or not ; it does not seem to be ob- 
 ligatory to file the return within the specified period of the year.(#) 
 
 Then, section 6 enacts, that certified copies of such returns shall be 
 evidence. (li\ 
 
 It is manifest, that register books, in which the names of members 
 are inscribed, from which the above sworn returns are to be copied, can- 
 not be altered, or varied, by the directors, or the company, especially 
 not post litem motam, except for the purpose of a merely verbal correc- 
 tion.^') 
 
 (c) Prescott v. Buffery, 1 C. B. 41. 
 
 (d) Tayl. Evid. 1364, 2nd edit., citing Prescott v. Buffery. 
 
 (e) Bonar v. Mitchell, 5 Exch. 415, decided on similar provisions in the Scotch 
 Banking Act, 7 Geo. IV. c. 67. 
 
 (/) See supra, p. 461. 
 
 (g) See per Parke, B., Steward v. Dunn, 12 M. & W. 663 ; see also Bosanquet v. 
 Woodford, 5 Q. B. 316, 319 ; and S. P. on Scotch Banking Act, 7 Geo. IV. c. 67 ; 
 Bonar v. Mitchell, 19 L. J., Exch. 302. 
 
 (h) See as to the form and requisites of the return, Bosanquet v. Shortridge, 19 
 L. J., Exch. 221. 
 
 (i) Shortridge v. Bosanquet, 16 Bear. 96.
 
 GRANT ON" Till: LAW OF BANK IXC. 
 
 The board of inland revenue are directed, for a fee often shillings, to 
 certified copies of the returns, .>r accounts, by section 7. 
 
 Another Recount of the names of persons appointed officers, persons 
 • i be members, of persons newly becoming members, &c., &o., h 
 mtA&Jrom tim to time, ion requires, by section 8: — 
 
 "That the secretary or other officer of every such corporation or co- 
 partnerehip Bhall, and he is hereby required, from time to time, as often 
 easion shall render it aeoessary, make out upon oath, in manner here- 
 Lnbefore directed, and cause to be delivered to the commissioners of stamps 
 as aforesaid, a further account or return, according *to the form 
 L ij0 ] contained in the schedule marked (B.),(&) of the name or names 
 of any person or persons who shall have been nominated or appointed ■ 
 new or additional puhlic officer or public officers of such corporation or 
 copartnership, and also of the name or names of any person or persons 
 who shall have ceased to be members of such corporation or copartner- 
 ship, and also of the name or names of any person or persons who shall 
 have become a member or members of such corporation or copartnership, 
 either in addition to or in the place or stead of any former member or 
 members thereof, and of the name or names of any new or additional 
 town or towns, place or places, where such bills or notes are or are in- 
 tended to be issued, and where the same are to be made payable; and 
 such further accounts or returns shall from time to time be filed and 
 kept, and entered and registered at the stamp office in London, in like 
 manner as is hereinbefore required with respect to the original or annual 
 account or return hereinbefore directed to be made. (A 
 
 " Schedule (B.) 
 
 ""Return or account, to be entered at the stamp office in London, on 
 behalf of, [jmmiu the corporation or copartnership^ in pursuance of an 
 act passed in the seventh year of the reign of Kiug Creorge the Fourth, 
 intituled, [insert the title of this act,'] viz. 
 
 <• Names of any and every new or additional public officer of the said 
 corporation or copartnership, viz. 
 
 • A. 15. in the room of C. J)., deceased, or removed, [as the case may 
 be; set forth every name']. 
 
 ■ ■ Names of any and every person who may have ceased to be a mem- 
 h r of such corporation or copartnership, viz. [set forth every name]. 
 
 • ■ Names of any and every person who maj have become a new mem- 
 ber of such corporation or copartnership, [set forth every name~\. 
 
 ■ ■ Names of any additional towns or places where bills or notes are to 
 be issued, and where the same are to be made payable. 
 
 "A. B. of oretary for other officer] of the above-named cor- 
 
 poration or copartnership, maketh Oath and saith, that the above doth 
 contain the nam" and place of abode of any and every person who hath 
 become or been appointed a public officer of the above corporation or co- 
 partnership, and also the name and place of abode of any and every pcr- 
 
 (!) See Shortridge r. Bosanquet, 10 Bear. 84.
 
 COPARTNERSHIPS, ETC. 333 
 
 son who hath ceased to be a member of the said corporation or copart- 
 nership, and of any and every person who hath become a member of the 
 said copartnership since the registry of the said corporation or copartner- 
 ship, on the day of last, as the same respectively appear on 
 the books of the said corporation *or copartnership, and to the r * lrr -> 
 best of the information, knowledge, and belief of this deponent. L 'J 
 
 " Sworn before me, day of , at , in the 
 
 county of 
 
 " C. D., justice of the peace in and for 
 the said county." 
 
 But, besides the returns mentioned in this section, there are also other 
 returns to be made, under 7 & 8 Vict c. 32, s. 21, which enacts,(m) that 
 every banker shall, on 1st January, in each year, or within fifteen days 
 thereafter, make a return of his name, &c, and, in case of a copartner- 
 ship, of the name, residence, and occupation of every member, with other 
 particulars. (m\ 
 
 It appears to be material, to observe these various provisions requiring 
 these returns ; because, although they are not enforced by penalties, still, 
 in some circumstances, the body might be indicted for the common law 
 misdemeanor, or nonfeasance of disobeying a statute. (u) 
 
 But, however that may be, obviously it is most important for mem- 
 bers, or shareholders, of these bodies, that these returns should be, in 
 all respects, accurately made, &c. ; because, upon their accuracy, may 
 often depend the question of the non-liability, or liability of a share- 
 holder, when a judgment has been obtained against the company. 
 
 Thus, if, for instance, the object is to make A. liable in such case, by 
 showing that he was a member at the time the contract was entered into, 
 and by the returns, previous to the date of the contract, it appears that 
 he was then a member, and there are returns subsequent, showing the 
 same, and no return of his retirement; it will be taken, that he was a 
 member at the time of the contract, unless h*e can prove, unanswerably, 
 that he had at that time transferred his shares, and retired from the co- 
 partnership. (o\ 
 
 *So, the omission of the public officer to make any return, r*j.f 71 
 may, in like manner, involve members in losses, which, properly, L J 
 they are not liable for.fp) 
 
 Therefore, it is very important for shareholders to watch these returns 
 with vigilance. 
 
 Actions, Suits, Prosecutions, &c. — The mode of suing, petitioning in 
 bankruptcy, prosecuting, &c. is prescribed in section 9, thus : — 
 
 " That all actions and suits, and also all petitions to found any com- 
 mission of bankruptcy against any person or persons, who may be at any 
 
 (in) See the terms of the enactment, supra, p. 444. 
 
 (n) See also Burnes v. Pennell, 2 H. Lds. 479. 
 
 (0) Harvey v. Scott, 11 Q. B. 106. In Bosanquet v. Shortridge, 4 Exch. 699, a 
 return made after the commencement of the action was admitted, because it tended 
 to show the defendant to be still a member ; see also Prescott v. Buttery, 1 C. B. 
 41. 
 
 (p) Ex parte Prescott, 1 Mont & Ch. 611.
 
 G R ANT ON T n E LAW OF B A H E I N G. 
 
 time indebted to any such copartnership, carrying on business andei the 
 provisions of this act, and all proceedings at law or in equity under anj 
 commission of bankruptcy, ami all other proceedings at law or in equity 
 commenced or instituted I'm- or on behalf of any such copartnership 
 against any person or persons, bodies politic or corporate, or others, 
 whether members of such copartnership or otherwise, tor recovering any 
 debts, or enforcing any claims or demands due to such copartnership, ox 
 for anyother matter relating to the concerns of such copartnership, shall 
 ami lawfully may, from ami after (26th May, 1826,) be commenced or 
 instituted, and prosecuted in the name of any one of the public officers 
 nominated as aforesaid, for the time being of Buch copartnership, as the 
 nominal plaintiff or petitioner fur and on behalf of such copartnership ; 
 and that all actions or suits or proceedings at law or in equity, to be com- 
 menced or instituted by any person or persons, bodies politic or corporate, 
 or others, whether members of such copartnership or otherwise, against 
 Sttch copartnership, shall and lawfully may be commenced, instituted 
 and prosecuted against any one or more of the public officers nominated 
 as aforesaid, for the time being of such copartnership, as the nominal 
 defendant for and on behalf of such copartnership : 
 
 ••And that all indictments, informations and prosecutions, by or on 
 behalf of such copartnership, for any stealing or embezzlement of any 
 money, goods, effects, bills, notes, securities or other property of or 
 belonging to BUch copartnership, or for any fraud, forgery, crime or 
 offence committed against or with intent to injure or defraud such co- 
 partnership, shall, and lawfully may be had, preferred and carried on. 
 in the name of one of the public officers nominated as aforesaid, for the 
 time being ofsuch copartnership: 
 
 •• And that in all indictments and informations to be had or preferred 
 by or on behalf of such copartnership, against any person or persons 
 whomsoever, notwithstanding Buch person or persons, may happen to be 
 a member or members of SUth copartnership, it shall be lawful and suffi- 
 r*j.r<<n cient to state the money, goods, effects, bills, note-, ^securities 
 L J or other property ofsuch copartnership, to lie the money, goods, 
 i ff< cts, bill-, nob -. -' curities or other property of any one of the public- 
 officers nominated as aforesaid for the time being ofsuch copartnership: 
 
 •• And that any forgery, fraud, crime, or other offence committed against 
 or with intent to injure or defraud any such copartnership, shall and 
 lawfully may in such indictment or indictment-, notwithstanding as 
 aforesaid, be laid or Btated to have been committed againsl or with intent 
 to injure or defraud any one of the public officers nominated as aforesaid 
 lor the time being of such copartnership j ami any offender or offenders 
 
 may thereupon be lawfully convicted for any BUCh forgery, fraud, ciime 
 
 or offence; ami that in all other allegation.-, indictments, informations or 
 other proceedings of any kind whatsoever, in which it otherwise might or 
 would have been necessary to state the name- of the persons composing 
 
 such Copartnership, it shall and may be lawful and sufficient to state the 
 
 name of one of the public officers nominated as aforesaid for the time 
 being of such copartnership : 
 
 •■ And the death, resignation, removal, or any act of such public officer,
 
 COPARTNERSHIPS, ETC. :,:;,") 
 
 shall not abate or prejudice any such action, suit, indictment, informa- 
 tion, prosecution, or other proceeding commenced against or by or on 
 behalf of such copartnership, but the same be continued, prosecuted and 
 carried on in the name of any other of the public officers of such copart- 
 nership for the time being." 
 
 This section has been considered to empower a company to sue out a 
 fiat in bankruptcy, by their public officer, against a shareholder, upon a 
 debt due from him to the company, in respect of an unsettled account, 
 precluding the debtor's right of set-off;^) and at present this certainly 
 is so, at any rate by the combined operation of 7 Geo. IV. c. 46, and 
 1 & 2 Vict. c. 96. 
 
 In a case in bankruptcy/r) as well as in one at law,(.s) a strong doubt 
 had been expressed whether the 7 Geo. IV. c. 46, enabled the company 
 to sue at law a member for a debt. But this defect, or supposed defect, 
 has since been remedied by stat. 1 & 2 Vict. c. 96, and the courts have 
 considered the words "shall and lawfully may," in this section, to be 
 obligatory. (t\ 
 
 *The public officer is authorized to petition in bankruptcy, by p^po-i 
 12 & 13 Vict. c. 106, s. 92. L J 
 
 Where a member of a banking copartnership kept an account with 
 them as his bankers, and became bankrupt, indebted to the bank on the 
 said account, the company being largely indebted to other persons, they 
 have a right of proof against the bankrupt in respect of the balance due 
 to them on his account. («) 
 
 Public Officer. — It has been stated to be desirable that the public 
 officer, in suing, should state himself to be so ; but this is not always 
 necessary. Thus, where the plaintiff sued as payee of a promissory note, 
 made payable, on demand, in the body of it, « to the manager of the 
 Provincial Bank of ngland," but the plaintiff did not sue as public 
 officer, it was held that upon proof that he was in fact the manager of 
 the bank named, and of demand on the bank, the plaintiff was entitled 
 to recover; and that in the absence of a plea, that the bank was estab- 
 lished under stat. 7 Geo. IV. c. 46, and that the plaintiff was not the 
 public officer of it, it was not necessary for the plaintiff to show that he 
 was the public officer, nor admissible for the defendant to show that he 
 was not so.(v) 
 
 Both the public officers must not sue at once. It will be observed, 
 that by the 9th sect, of 7 Geo. IV. c. 46, actions, &c, "shall and law- 
 fully may be commenced, &c, in the name of any one of the public 
 officers, &c, for the time being of such copartnership as the nominal 
 plaintiff," &e. ; if, therefore, both sue together, the court will allow an 
 amendment, on payment of costs, to be made, by striking out the name 
 of one.(x) 
 
 (q) Ex parte Hall, Mont. & Ch. 365, 481. (r) Id. 365. 
 
 (s) Hughes v. Thorpe, 5 M. & W. 656. 
 
 (t) 5 Exch. 61, 66; see 1 & 2 Vict. c. 96, s. 1. 
 
 (u) Ex parte Davidson, 2 M. D. & De G. 368. 
 
 (v) Robertson v. Steward, 1 M. & Gra. 511. 
 
 (x) Holmes v. Binney, 6 Scott, 346. As to suing both, 16 M. & W. 669. 
 
 February, 1857.— 23
 
 GRANT OX THE LAW OF BANKING. 
 
 *It appears to be evidently the intention of the legislature thai 
 -I the company should always have a public officer in existence, 
 may roe and be sued j and if there be no public officer, the company 
 impellable, probably by mandamus, to appoint ouc,(^) and, more- 
 . it is clearly settled that the common law remedy against the 
 partners, is wholly taken away; that "shall and lawfully may" are com- 
 pulsory and exclusive words as used in this act, the remedies not being 
 cumulative, but in substitution for the common law remedy against 
 partnersJz) and therefore, the common law remedy does not revive 
 -i a former partner after the expiration of the three years from his 
 ring to be a partner, (a) 
 
 In an action by a public officer, it is desirable, though not essential, 
 to allege, in the declaration, that the plaintiff, at the commencement of 
 suit,(6) had been named and duly appointed one of the public officers 
 i f the company; but it is not necessary to state that he is a member of 
 the company, or that he has been duly registered,^) or that he has been 
 duly named and appointed as the nominal plaintiff on behalf of the co- 
 partnership.^) It may be stated also, that the copartnership was then 
 carrying on business ; it is objectionable to state the copartnership to be 
 united for lit- purpose of carrying on business without inore,(V) although 
 Buch statement would not be bad in arrest of judgment.(/) 
 
 There seems to be no longer any reason to doubt but that *a 
 L ' 3 banking copartnership, since 1 & 2 Yict. c. 96, s. 1, may sue 
 i. i the price of shares by their public officer. (/<) 
 
 They may also sue members jointly with strangers,(<') by their public 
 officer. 
 
 Notwithstanding the change of name of a copartnership, and the acces- 
 sion of fresh proprietors to it, the increase of their capital, and the addi- 
 tion of fresh directors, the public officer of the new copartnership may 
 sue as a public officer, on a guarantee given to the company before the 
 alb ration. (/) it not appearing to the court, from the pleadings or the 
 ;il case reserved, that the constitution of the bank was, different from 
 thai with which the contract was made.(t) In no case can a company of 
 this kind sue otherwise than by their public officer.(?n) 
 
 Also a public officer may sue after a banking copartnership has stopped 
 payment, keeping the establishment open only for the object of winding 
 uj> the concern. (><) 
 
 (y) Per Cur., 10 M. £ W. 721 ; To<U v. Wright, 1G L. J., Q. B. 311 ; see 6 Exeh. 
 
 (z) Steward v. Greaves, 10 M. <v W. Til. 
 
 Barker v. Bnttress, 7 Beav. 134; as to being a contributory, Ex parte Ilaw- 
 • ae, i Mac. ^ <; 
 
 (in Bsdaile v. Maclean, l."> M. k W. 277: M'Intyre v. Miller, 13 M. & W. 72:.. 
 (. | Spiller v. Johnson, <; M. ct W. 570. (</) Christie v. Peart, 7 M. A W.49.1. 
 Fletcher v. Orosbie, 9 M. .v W. 2:. 2. 
 
 •.. Bower, 1 M. .v Gra, <;•_'.;; s. C, 2 DowL X. 8. 115. 
 (h) This was assumed in Davidson v. Bower. 
 
 Manners r. Rowley, 10 Bim. 171. (/.-) Wilson v. Craven, 8 M. k W. 584. 
 
 De G. & Bm. 733; 12 Bast, 100, 
 {in) Chapman v. Milvain, 6 Bxch. 61. 
 
 l':. I oper, 11 M. «v W. 778. In an action by public officer ot »
 
 COPARTNERSHIPS, ETC. 337 
 
 A banking copartnership having become insolvent, and ceased to carry 
 on business, the public officer instituted a suit in equity, charging some 
 of the directors with losses, during the time when the business was carry- 
 ing on, by reason of unauthorized speculations in shipping, &c, and of 
 a fraudulent transaction by a deed of arrangement with a debtor to the 
 company, praying relief in respect of all these matters, and to have tbe 
 deed set aside. - The suit was considered to have been properly instituted 
 by the public officer, although the company had ceased to carry rH . < 70 -i 
 *on business ; that directors and trustees, not charged with im- L ""J 
 proper transactions or fraud, need not be made parties to the suit ; but 
 the manager, who, it appeared, was mixed up in these transactions, 
 ought to be made a party ; and that though there were several distinct 
 transactions, they were properly comprised in a single suit.( ) 
 
 So, although a warrant of attorney have been given to trustees of the 
 copartnership to secure a debt due to the bank, the judgment thereon 
 can only be entered up in the name of the public officer. (jj) 
 
 So the public officer is to sue on a breach of covenant with trustees of 
 the copartnership, to pay calls,(<2) and in general, is the only proper party 
 to sue on all covenants in the deed of settlement ; although those cove- 
 nants be made with trustees, (r) The statute 7 Geo. IV. c. 46, it is to 
 be observed, does not expressly authorize the entering into a covenant 
 or bond by the public officer on behalf of the company, (s) 
 
 So the company would not be bound by a judgment in an action by a 
 person not at the time their public officer; and hence, if a defendant, in 
 an action purporting to be brought by the plaintiff, as public officer of a 
 company, traverses the appointment of the plaintiff as public officer, and 
 has a verdict on that issue, it is a full defence. (?) 
 
 Liabilities of Public Officer. — The indemnity given by the statute to 
 the public officer, as regards actions, judgments, &c, against him, has 
 already been pointed out.(«) 
 
 With respect to the production, for purposes of evidence, by the public 
 officer, of papers and documents in his custody ^belonging to the r#_i -o-i 
 company, his responsibility is very large. The legislature, it L J 
 must be remembered, has expressly enacted, that every decree or order 
 of a court of equity, against any public officer of the company, shall have 
 the same effect as if all the members were parties to the suit. 
 
 Therefore, the public officer, in case of any proper application for the 
 discovery of matters contained in the books, documents, &c, of the com- 
 pany, cannot allege that the company is dissolved, and since that event 
 he had not in his individual possession any books, &c, of the company, 
 
 banking copartnership, plea denying that at the commencement of the suit the co- 
 partnership were carrying on the business of bankers, allowed with pleas of non 
 assumpsit and accord and satisfaction, Roe v. Fuller, 21 L. J., Exch. 104 ; S. C, 7 
 Exch. 220; see 11 M. & W. 63 ; 5 id. 656; 10 id. 711. 
 
 (o) Harrison v. Brown, 5 De G. & S. 733, cor. Parker, V. C. 
 
 (p) Bell v. Fisk, 12 C. B. 493. (?) Wills v. Sutherland, 4 Exch. 211. 
 
 (r) Chapman v. Milvain, 5 Exch. 61 ; see 12 C. B. 498. 
 
 \s) Per Jervis, C. J., 12 C. B. 497. 
 
 \t) Barnewall v. Sutherland, 19 L. J., C. B. 292. 
 
 (w) See supra, p. 467.
 
 Q BANT ON THE LAW OF BANKING. 
 
 but that he believes some of them were in the possession of the din 
 uid others of the solicitor of the company; and the reason he cannot '1" 
 ao is the above. The public officer Btands for the whole body: if the 
 whole body had been defendants, they could not have refused to produce, 
 in a suit by a shareholder charging insolvency, and prayings dissolution 
 of the company, and an account, &c., so neither can the public officer. 
 
 A covenant in the deed of settlement, to the effect that no shareholder. 
 not being a director, &c., &o., shall be entitled to inspect any deeds, 
 
 1 ks, \c of the company. &0., does not vary the ease, or deprive die 
 
 books of their character of evidence, as between the shareholder and the 
 company, or oust the court of its power to enforce the production of such 
 
 evidence.)./ ) 
 
 In fact, in many respect-, for the purpose of supporting and maintain- 
 ing proceedings on behalf of the company, and enforcing their claim-. 
 recovering debts, &C., the public officer is nearly in the nature of a cor- 
 porate body, — an abstract entity having a continuous duration, indepen- 
 dent of any change that may be made in the living being, or individual, 
 who fills the office. This appears to be the meaning of the statute, in 
 providing that the public officers, for the time being, notwithstanding 
 death, removal, &c., may take proceedings, and commence, prosecute, 
 r*_i-n and continue suits, *&o. Thus, a cognovit actionem, given to 
 L J A. B., as public officer of a copartnership, was considered to be 
 sufficient, after his removal, to authorize a succeeding public officer to 
 enter np judgment in his own nauie.fy) To enter it up in the name of 
 the officer, in whose time the cognovit was given, would be erroneous. (z) 
 
 Again, when an action is brought against the public officer of a 
 copartnership, as such, he is not allowed to plead that he has become 
 bankrupt ; for he is a mere parliamentary defendant ; he represents the 
 interests, perhaps, of several hundred persons, and, if he were to be 
 allowed to plead such a plea, of a matter merely personal to himself, in 
 bar of the action, he would confer the benefit of that defence on all those 
 whom he represents as defendant but as a mere name, and such an effect, 
 of setting up the public officer to be sued on behalf of the body, it is 
 manifest the legislature could not have contemplated. In such a case, 
 however, the plaintiff would be prevented from taking out execution 
 inst the defendant, or his individual estate. (a) 
 
 Accordingly, it has been held, where a deed of settlement provides, 
 that if any of the public officer- became bankrupt he should become dis- 
 
 qualified, and bis office should become vacant, that the proper construc- 
 tion is, not that the person should cease to be public officer absolutely, 
 but onlj at the election of the company. (A) If bankruptcy, per se, dis- 
 qualified, the company COuld have had no .lection. 
 
 So, a person sued, as public officer of a copartnership, will not be 
 
 (r) Ball v. Council. :: Y. A Coll. 101, Bxch. 
 
 I • • mi to be 'In- effect of the judgmenl in Webb v. Taylor, 1 Dowl. k 
 Todd v. Wright, l<; L. J.. Q. B. 311. 
 D. .v l.. 68? : Probln r. Locock, l Dowl. N. 8. 197. 
 . Dunn, 1 1 M. .v W. 63 D e G. & B. 733. 
 
 Bteward v. Dunn, 12 M. k W. 8
 
 COPARTNERSHIPS, ETC. 339 
 
 allowed to plead that he is not public officer, together with other pleas, 
 going to the merits of the action. He may rely on that plea as his sole 
 defence, if he chooses; but, as the company are the true defendants, 
 they must rely on such defence as they have to the substance of the 
 action • *they cannot be allowed to turn the plaintiff round on r^i 7 r-i 
 so mere a matter of form as whether the defendant was public "- J 
 officer at the commencement of the suit.(c) 
 
 The above sect. 9, of the stat. 7 Geo. IV. c. 46, has been said to 
 show very clearly the intention of the legislature, that no action should 
 be brought except against the public officer ;(e?) it would seem, there- 
 fore, to follow, that the company are bound always to have a public 
 officer who is capable of being sued. 
 
 Where, however, the litigation is by one or more members of the co- 
 partnership, as such, and the other members, as such, the public officer is 
 improperly made a party to the suit as defendant; for, where one member 
 charges fraud against the other members with which the whole coinpany 
 was not chargeable, it is inconsistent with the character of the public 
 officer's function, and the object of the legislature in instituting it, to 
 make him a defendant, since he only represents the company, and here 
 the company are not called upon to answer as such. It is to be observed, 
 however, that this suit was brought after the company was dissolved, 
 and after the debts were paid off, and, practically, the banking business 
 had terminated. (e) But it does not appear, that the absence of these 
 facts would have made any difference in the decision. 
 
 The stat. 7 Geo. IV. c. 46, relates in this respect, to banking copart- 
 nerships of more than six members, carrying on business beyond sixty-five 
 miles from London: the stat. 7 & 8 Vict. c. 113, s. 47, extends the 
 power of their suing and being sued, to banking copartnerships of 
 more than six members, carrying on business within that distance of 
 London. 
 
 *By the stat. 3 & 4 Vict. c. Ill, s. 2, in all cases of banking r* 476 -i 
 copartnerships, under 7 Geo. IV. c. 46, and also those under L 
 3 & 4 "Will. IV. c. 98, the members are liable for stealing the goods of 
 the company, or in respect of fraud, forgery, &c., against the company, 
 to criminal proceedings, " in the name of any of the officers, for the time 
 being, of any such copartnership, in whose name any action or suit, 
 might be lawfully brought against any member," for every such 
 fraud', &c.(/) 
 
 Death of Public Officer.— John Taylor, as public officer of a banking 
 copartnership, commences an action in which issue is joined; after 
 which, and before trial, he dies ; and the Nisi Prius record, and all the 
 proceedings, were made up and taken, as though Taylor were still alive, 
 and no notice was taken on plea roll of the death of Taylor, or of the 
 
 (c) Needham v. Law, 11 M. & W. 400. Since 1 & 2 Vict. c. 9G, a banking co- 
 partnership is so far in the nature of a corporation that notice to one member is not 
 notice to the body; see 12 M. & W. 664 ; 3 C. B. 25. 
 
 Id) Davison v. Farmer, 6 Exch. 242. 
 
 (e) Seddon v. Connell, 10 Sim. 58, 79. 
 
 (/) Made perpetual, 5 & 6 Vict. c. 85.
 
 CHANT OS THE LAW OF BANKING. 
 
 appointment of his suooessor; but, after the Nisi Prius record 
 passed, bo made up, a memorandum was entered on it of the death, and 
 of the oew appointment, not by way of suggestion, nor followed by oon- 
 :, of the defendant, or a nx* nt di din . The cause- was then entered 
 
 for trial in the name of the uew public officer as plaintiff, and was tried 
 by a jury, returned under a venire, awarded between Taylor and the 
 defendants. Defendants appeared under protest, and plaintiff bad a 
 verdict; but it was held, that the entry on the Nisi Prius record was 
 irregular, and did not authorize the trial of the cause in the name of the 
 new public officer. (</) 
 
 This seems to turn on the technical ground of the maintenance of the 
 ancient forms; it being a rule, that, except where a statute expressly 
 dispenses with it, in all cases where there is a change of parties during 
 the progress of the cause before trial, that change is required to appear 
 
 on *the record, by way of suggestion to the court, and that 
 
 L ' ' J where such facts are not traversable, they should be followed by 
 a confession, or a nient tit dire. 
 
 The proper course seems to be, to move for a rule nisi, to enter a 
 suggestion, with a nient dedire.(h\ 
 
 In a ease, the public officer had died after judgment, and, after the 
 issuing of a writ of ca. sa., but before its execution, this does not cause 
 the action, or the proceedings consequent on it, to abate, and, therefore, 
 the defendant may be taken in execution. (/) 
 
 Banks within Sixty-Jive Miles of London. — "With respect to powers 
 of suing, and being sued, it is material to attend to the provisions of the 
 statute 7 & v Vict. c. 113, by which every company of bankers, of mure 
 than six persons, established on 6th May, 1844, for carrying on business 
 within sixty-fivt miles from London, and not falling within 7 & 8 Vict. 
 0. 1 13, is given the same powers of suing, and being sued, in the name 
 of the public officer, &c., as a copartnership, under 7 Geo. IV. c. I'>. 
 by that act,(/») which relates to partnerships carrying on business 
 beyond sixty-five milts from London ; provided that the first-mentioned 
 companies make out and deliver, from time to time, to the Board of 
 Inland Revenue, the returns required by 7 Geo. IV. c. 4G, all the pro- 
 visions whereof, respecting returns, are to apply in the case of such 
 hankers also. (A 
 
 Own Member*. — These bodies, as has been observed, may always sue 
 their own members; and it i- enacted :(m) — 
 
 "J'/ttts. — Thai in case the merits of any demand by or against any 
 
 such copartnership shall have been determined in any action or suit by 
 or againsl any such public officer, the proceedings in such action or 
 . n *suit maybe pleaded in bar id' any other action or suit by or 
 ' ' J against the publia officer of the sane' copartnership for the same 
 demand." 
 
 (;) BarnewaU v. Bntheriand, L9 L. J., 0. B. 290 : B. C, l t Jar. 720, per Cur. 
 Patei -"ii v. ironside, l t Jur. 7 j _• . a., per Cur, C. B. 
 
 Todd v. Wright, 16 L. J., Q. B. 811, cor. Erie, J. ; Ellis v. Griffiths, 16 M. k 
 W. 106. 
 
 3ei . | 154,8.1. (/) 7 & 8 Vict. c. 113, s. 47. 
 
 \m) L 42 A ict. c. 96, s. 2.
 
 COPARTNERSHIPS, ETC. 341 
 
 Set-off. — Then follows an important and remarkable enactment, resj 
 ing set-off. (») 
 
 "That no claim or demand which any member of any such copartm r- 
 ship may have in respect of his share of the capital or joint stock t li. 
 or of any dividends, interest, profits or bonus, payable or apportionable 
 in respect of such share, shall be capable of being set off, either at law 
 or in equity, against any demand which such copartnership may have 
 against such member on account of any other matter or thing whatso- 
 ever; but all proceedings in respect of such other matter or thing may 
 be carried on as if no claim or demand existed in respect of such capital 
 or joint stock, or of any dividends, interest, profits, or bonus, payable or 
 apportionable in respect thereof." 
 
 Then, by 5 & 6 Vict. c. 85, these enactments were made perpetual. 
 
 The result is, that the company can only sue, in any case, including 
 a suit or action against a member for a debt, or to enforce any claim or 
 demand, by their public officer,(o) and the public officer is the proper 
 party to sue for calls, though he himself is not a party to the deed in 
 which the defendant covenanted to pay the calls. (o) 
 
 Effect of Judgments, &c. — Then provision is made, that decrees in 
 equity, made against the public officer, shall take effect against the com- 
 pany,^) and so of judgments in actions at law.(g') 
 
 If a judgment be recovered against the public officer of a banking 
 copartnership, and it be desired to charge the real estate of a member of 
 the copartnership at the date of the judgment, the Court of Common 
 Pleas has no jurisdiction over the senior master, to order him to receive 
 the memorandum, in order to register the judgment, pursuant to 1 & 2 
 Vict. c. 110, s. 19, and 3 & 4 Vict. c. 82, s. 2; but the 
 ^master will probably receive such memorandum, and register 
 the judgment in ordinary cases. The question is for his discretion. (/•) 
 
 If the property consist of land, then, although an elegit has been issued 
 against it, still, if the land be found insufficient in value to satisfy the 
 judgment debt, the creditor may proceed against the members. (s)- 
 
 Judgment was entered up (under a power of attorney,) by a banking 
 copartnership, against the public officer of another banking copartner- 
 ship, and a sci. fa. issued, to obtain execution against several members 
 of the latter. One of these obtained a rule nisi, for setting aside the 
 judgment and warrant of attorney, and permitting certain named mem- 
 bers to defend the action. The court, thereupon, ordered an issue to be 
 tried upon the question, inter alia, whether the members, or shareholders 
 of the latter company, were indebted to the former, in any, and what 
 sum : held, that on such issue, the defendants could not object, that some 
 parties on the record were members of both companies ; for, though it be 
 true, that in an action, the same person cannot be plaintiff and defen- 
 dant,^) this rule does not apply to an issue, directed for the purpose of 
 
 (n) 1 <fc 2 Vict. c. 96, s. 4. (o) Chapman v. Milvain, 5 Exch. 61. 
 
 (p) 1 Geo. IV. e. 46, s. 11. (?) Id. s. 12. 
 
 (r) Ex parte Ness, 5 D. & L. 339; S. C., 5 C. B. 155; 2 & 3 Vict. c. 11, s. 3. 
 
 (s) Reg. v. Derbyshire, &c, Railway Company, 23 L. J., Q. B. 333. 
 
 (t) Bosanquet v. Wray, 6 Taunt. 587. 
 
 [*479]
 
 342 GRANT ON THE LAW OF BANKING. 
 
 taining certain facts, with a view to ulterior proceedings, for then- 
 is no reason why, in such ease, the court should not, for that special 
 t. v;ut the legal position and rights of the parties, as iu issues, 
 directed by the Court of Chanoery, is constantly done.(«) 
 
 Execution. — The next provision is very material, as giving the mode 
 dicing a judgment against the company, in case there are no part- 
 is rahip assets to meet it; it lias led to many questions; and the courts 
 .. have had great trouble in ^putting an interpretation on it. The 
 L J enaetmeiitj./) is so important, to he fully known, that it is ueces- 
 Bary to state it at length : — 
 
 "That execution upon any judgment in any action obtained against 
 any public officer for the time being of any such corporation or copart- 
 nership, carrying on the business of hanking under the provisions of this 
 act, whether as plaintiff or defendant, maybe issued against any member 
 or members, for tht time being, of such corporation or copartnership; 
 and that in ease any such execution against any member or members fow 
 the ti in* hi inij of any such corporation or copartnership, shall be inef- 
 fectual for obtaining payment and satisfaction of the amouut of such 
 judgment, it shall be lawful for the party or parties so having obtained 
 judgment against such public officer for th< time being, to issue execu- 
 tion against any person or persons who was or were a member or mem- 
 bers of such corporation or copartnership at the time when the contract 
 or contracts, or engagement or engagements, in which such judgment 
 may have been obtained, was or were entered into, or became a member 
 at any time before such contracts or engagements were executed, or was 
 a member at the time of the judgment obtained : 
 
 •• Provided always, that no such execution as last mentioned, shall be 
 issued without have first granted on motion in open court, by the court 
 in which such judgment shall have been obtained, and when motion shall 
 be made on notice to the person or persons sought to be charged, nor 
 after the expiration of three years next after any such person or person- 
 shall have ceased to be a member or members of such corporation or co- 
 partnership." 
 
 The reader ought to bear in mind, that there is great difficulty iu con- 
 
 Btruing this statute. Both courts of law and equityfa) have experienced 
 
 embarrassment, in acting on the statute. Its enactments have been found, 
 
 by judicial authority, to be inconsistent with each other, and Dot entirely 
 
 intelligible. The first section appears to create a several liability on the 
 
 if the several members, to pay all bills and notes issued by the oom- 
 
 . and all Bums borrowed, and owed by the company; and it has 
 
 been frequently noticed, that this clause extends the ordinary liability 
 
 There is nothing to take away the liability, which, in equity, would 
 
 , . 'attach to the assets of a deceased partner, who is a party to the 
 
 L J contract 
 
 The 11th section relates to decrees of courts of equity, recovered 
 
 (u) Bosanquel v. Woodford, 5 < t ». B. 321. 
 '.< o. IV. c. 46, B. 13. 
 3< Barker v. Buttress, 7 Beav. 134 : Bicketta v. Bowhay, 3 C. D. 000 ; see 
 
 tQ, 200-203.
 
 COPARTNERS III TS, ETC. 343 
 
 against the public officer. We may observe, that it is difficult to recon- 
 cile the provisions, as to decrees in equity, with those as to judgments at 
 common law. A decree of a court of equity may be a simple order to 
 pay money, as simple as a judgment of a court of law. By the 11th 
 section, a decree for payment of money, is to ba enforce! on every, or 
 any member of such copartnership, in the same manner as if they were 
 parties before the court. The very special provisions of the 13th section, 
 are not to be found in the eleventh, as applicable to a decree, which is 
 to result in the payment of money. 
 
 By the 13th section, execution is first to be issued against any member, 
 or members, for the time being, of the copartnership; that is, who are 
 partners at the time of the execution ; and, in case that should be inef- 
 fectual, for the purpose of obtaining satisfaction, then execution may be 
 issued against certain persons, who have ceased to be members before 
 that time. This section provides only the mode of issuing execution 
 against those persons who are liable at law. If the assets are liable in 
 equity only, this clause contains no means by which that liability may 
 be enforced. It appears, however, that it does not follow, that there is 
 no liability in equity. The state of the law, and the previous sections 
 of the act, appear to show, that there is to be a liability in equity ; and 
 if that be so, that liability must be enforced, according to the ordinary 
 principles of the Court of Chancery, because there is nothing about it in 
 the clause, pointing out how a judgment at common law is to be enforced 
 against the parties legally liable. 
 
 In asserting an equitable claim against the assets of a deceased partner, 
 however, it seems that regard must be had to those provisions of the act, 
 which would have been ^applicable, if it had been a legal lia- p^,-, 
 bility, according to the view expressed by Lord Langdale, in a L J 
 case arising on this act. (z) 
 
 The object of the 13th section is, to provide a mode of first rendering 
 liable the funds of the partnership, which are primarily applicable to 
 discharge the debt, by issuing execution against those who have the 
 control over those funds in the first instance, and execution is not to go 
 against those who have no control over the funds, until the resources of 
 the first class have been found not to be available. Hence, on an appli- 
 cation in equity, to enforce the equitable liabilities of a deceased partner, 
 in the same way as though he had ceased to be a member by transfer, 
 the liability must first be shown not to be capable of being satisfied by 
 proceedings against those who were members at the time. (a) 
 
 Upon these two sections, viz. ss. 12, 13, it is to be remarked, that 
 three modes of carrying into effect a judgment obtained against a public 
 officer, are given according to circumstances. 
 
 Execution may be had upon the joint property of the body, or upon 
 the individual property of each, or any number, or any one of the mem- 
 bers, for the time being ; or in case such recourse be ineffectual, to satisfy 
 
 (z) Barker v. Buttress, 1 Beav. 134 ; see Ricketts v. Bowhay, 3 C. B. 900, where 
 it was doubted whether recourse could be had at law against estate of deceased 
 member. 
 
 (a) Heward v. Wheatley, cor. Parker, V. C, 5 De G. & S. 552.
 
 ,H GRANT ON THE LAW OF BANKING. 
 
 the amount due on the judgment, then execution may be had against the 
 individual property of all. or anj of such persons as were members at the 
 time when the contract was entered into, or became members before the 
 date of the contract, or were members at the time of obtaining judgment, 
 provided that no person be liable for more than three years, after he has 
 1 to be a member. 
 
 At length it is well settled, in the case of judgment obtained against 
 .-. a public officer, that the proper mode of proceeding *to exeou> 
 L 'J tion against any other member is, by way of scire facias, ami 
 not by suggestion on the roll.(t) 
 
 When it i- desired t<< issue execution against the public officer himself, 
 ire facias is necessary.(c) 
 
 Otherwise the plaintiff nm.-t proceed by sci. fa. on the judgment, 
 against a member, or members, for the time being, of the copartnership. 
 In such ea.-e, the person ..n whose goods it is intended to proceed by Bci. 
 fa. to execution, must be ascertained to be an actual member of the com- 
 pany; in one case, a person was held not to be a shareholder in a com* 
 pany, although the statute constituing the company stated him to be so; 
 but this was under peculiar circumstances. (</) 
 
 Again, where the deed of settlement of the company requires certain 
 acts to be done, by persons marrying female shareholders, and certain 
 other acts to be done by executors of deceased shareholders, before they 
 can respectively become members of the company; it is necessary to 
 make parties liable on scire facias, as husbands, or executors, that they 
 he shown to have performed the prescribed aota.(e) 
 
 S ■. where the deed of settlement stated that every transferee of shares, 
 
 who is not already a member of the company, was thereby to become a 
 
 member of the company as to obligations, but not as to benefits, until he 
 
 ated the deed of settlement; and also stated that a transferee of 
 
 shares, who had previously executed the deed of settlement, was to bc- 
 
 ■i member in respect of the transferred shares, from the date of the 
 transfer, without again executing a deed, and a purchaser of shares 
 
 ted a deed, transferring from the vendor to himself the shares, the 
 
 purchaser thereby covenanting with the vendor, and with the public 
 
 . officer of the ^company, to pay all instalments, &o., and also to 
 
 L I perform, and keep all the covenants and stipulations of the deed 
 
 of settlement, &c. and, if required by the directors to execute a deed of 
 
 i wit tn the trustees, or public officer, to observe all regulations affect- 
 ing holders of shares in the company; still, it was held in equity, that 
 tin- execution of this deed of transfer was not constructively, or in snl>- 
 stance, an execution of the deed of settlement ; that the purchaser might 
 be a specialty debtor to tic company, against whom they might rank, 
 under the Winding-up A.ct, (1848,) as specialty creditors; but that such 
 
 itiuii did not make him a member as to benefits//') 
 
 Ransford v. Bosanqnet, 'J <,». B. :*::-'. So- in M. & w. 71ft, 720. 
 Barwood v. Law, 7 M. k W. 203. 
 
 .. Berkeley, ll Jar. 242; 8. 0., 18 I.. J., <'. B. 107. 
 I ■ IgBon v. Bell, ■> Bxcb. 967 : Ness \ . Armstrong, I Bxch. 21 ; Ness v. Ber- 
 
 v . Angaa, 3 Exi h. BOS. 
 Hay w. Willoughby, 10 Han-, 242; cor. Turner, V. C, Wightman, J, ex- 
 plaining Be Btraffon's Executors, 1 De <:., M. k G. 577.
 
 COPARTNERS II ITS, ETC. 345 
 
 Shares, and Shareholders. — Again, where the deed of settlement de- 
 fined shareholder, and member, to mean the owner of a share, or interest 
 in the capital, and joint stock of the company; and provided that the 
 shares should be transmissible to personal representatives, but no executor 
 should, as such, be a member, but that every executor might either sell 
 his testator's shares, or constitute himself a member, in respect of them, 
 by a mode pointed out by the deed, and that the directors might declare 
 the shares forfeited, in case executors did not constitute themselves mem- 
 bers, and the deed provided for the payment of calls by shareholders : 
 there, a transferee of shares having covenanted in the transfer deed with 
 the trustees of the company, to perform the stipulations of the deed of 
 settlement, died, and his executor took no step to become a member; in 
 an administration suit against the executor, it was held that the com- 
 pany were entitled to prove as creditors, in respect of a call made after 
 the death ; for, that under the provisions of the jieed in question, execu- 
 tors were placed in the position of ^holders of shares in the com- r^jor-i 
 pany, although not having all the rights which belong to an L J 
 oioner of shares. (g\ 
 
 In scarcely any case can a person, once regularly a shareholder, and 
 member of a company, disprove his being still so, as alleged in the scire 
 facias, except by showing a regular transfer in the manner required by 
 the deed of settlement. (A) 
 
 Throughout the statute, mention is made of shares, and shareholders, 
 and the idea of shares seems, in popular estimation, to be inseparably 
 connected with idea of a banking copartnership. 
 
 Shares, however, (it has been laid down,) are not necessarily a part of 
 the constitution of a banking copartnership, under 7 Geo. IV. c. 46. It 
 does not appear to be at all necessary, that their capital should be divided 
 into shares ; although trading, and other companies, with letters patent, 
 but not incorporated, carrying on business under the provisions of 7 
 Will. IV. & 1 Vict. c. 73, must have their capital divided into shares, 
 and transferable ; and it is not that such a banking copartnership has its 
 capital divided into shares, that would alone make it a " public com- 
 pany," within the meaning of 1 & 2 Vict. c. 110; it might, and would 
 be such a public company, without any such division into shares ; be- 
 cause the attributes of publicity would still exist — the return of the 
 names and places of abode of the members, from time to time, and of the 
 officers appointed to sue, and be sued, on behalf of the company. (?) 
 There is a further attribute of publicity conferred by the later statute, 7 
 & 8 Vict. c. 32, s. 21,(&) which obliges banking copartnerships to make 
 returns annually to the Inland Revenue Office, of *the name, pM^g-i 
 residence, and occupation of every partner, which return must L c J 
 
 (</) Heward v. Whentley, 3 De G., M. & G. 628, 646 ; see Pentland v. Gibson, 1 
 Ale. &N. 311. 
 
 (h) Bosanquet v. Shortridge, 4 Exch. 699 ; see Ex parte Hall, 1 Mac. & G. 307 ; 
 and per Ld. St. Leonards, 5 H. Lds. 323, animadverting on Bosanquet v. Short- 
 ridge. 
 
 (i) 1 Sim. (N. S.) 239. As to not keeping share register book, see Bagge's case, 
 20 L. J., Ch. 229. 
 
 (&) See supra, p. 444.
 
 GRANT ON THE LAW OF BANKING. 
 
 be published once a year, in a newspaper circulating in the town or 
 county within which the bank is situate. This, however, applies to even 
 partnership of bankers. 
 
 Shares in a banking copartnership are Bhares in a "public company/' 
 bo be chargeable by judge's order, in case of a judgment recovered 
 againsl the owner oi them, within the I Jtli section of 1 & - Viet. c. 1 1< ( . 
 which empowers a judge at chambers to granl an order, charging stock, 
 shares, &c., in public companies, whether incorporated or unincorporated, 
 Ac. provided that nothing shall be done, to have the benefit of such 
 charge, within six months from the date of the order. The effect of the 
 charge is to be the same, as if the judgment debtor had charged the 
 shares. (£) 
 
 In truth, there i- no such legal term known as a "public company" 
 not incorporated; and, it has been considered, that banking copartner- 
 ships established undcr.7 <!eo. IV. c. 40, and 3 A: 4 Will. o. 98, formed 
 one class, and companies associated for trading and other purposes, 
 having letters patent granted by the crown, under 7 Will. IV. & 1 Vict. 
 C. 73, but not incorporated, formed the other class, of unincorporated 
 companies, to which alone the term public company could be applicable, 
 at the time of the passing of 1 & - Vict. c. 110, and the former class 
 appears to be within the meaning of the statute ; all the attributes of 
 publicity appear to exist in the one case, as in the other.(?») 
 
 A clause in the deed of settlement, making the approbation of the 
 directors necessary to the sale of shares, has no effect of itself, to limit 
 the assignability of shares; in practice, the shares are transferable, (n) 
 notwithstanding. 
 
 PM07-1 *Still, there can he no doubt, it is conceived, that the directors 
 <- -1 may in Buob case, refuse their approbation to any proposed trans- 
 . and so prevent the contemplated transfer at their discretion, which 
 cannot be impeached by any proceeding at law, since the legislature has in 
 effect, invested them with it, by not ordering that the shares shall be trans- 
 ferable, and by ordering that the duties of the directors shall be limited by 
 the deed ; and. ii seems, the company, the intended transferee, and the 
 transferor, would be each alike without any means of punishing the 
 directors for withholding their approbation, unless mala fides could be 
 shown. 
 
 Shares us has been observed, may be charged by a judge's order, 
 under 1 A 2 Vict. e. 110, s. 14, with a judgment debtj although the 
 
 deed of Bettlement provide, "that the shares should nut he transferable, 
 
 except by the consent of the directors:" also, "that if any order or 
 decree was made against any proprietor, bj which his shares became 
 charged, they should be forfeited to the company." This appears, from 
 a case where the company was not registered, under 7 A 8 Vict. c. 110, 
 
 (I) 1 & 'J Vict. c. llu. b. 14; per Parke, !'... Graham v. Connell, 19 L. J., Bzch. 
 
 \- t<. bank stock, see Grainger v. Slip !5 L. J., Ohanc. 573. 
 
 IPIntyre \. Connell, l Sim. (N. B.) 237, 238 : Ld. Cranworth, V. C, Graham 
 
 poll, i:' I.. .1.. Exch. 361. 
 ('-) Per Parke, B., Graham v. Connell, 19 I.. -I.. Exch. 362; see the clause, 1 
 - 228.
 
 COPARTNERSHIPS, ETC. 347 
 
 but was empowered to sue and be sued, by public officer, under 7 Geo. 
 IV. c. 46, and 7 & 8 Vict. c. 113, s. 47, (o) and where the Court of 
 Exchequer, holding it to be somewhat doubtful, whether the body Mas a 
 " public company, "(j>) within the meaning of 1 & 2 Vict. c. 110, refused 
 to set aside a judge's order, which had been made. (7) However, tin' 
 same company, the Union Bank of London, has since been held by 
 Lord Oanworth, V. C, to be a " public company," within the statute 
 1 it 2 Vict. c. 110, (V) and the law may be considered to be clear, that 
 shares in similarly constituted companies, are chargeable. 
 
 *Hence shares in all copartnerships, &c, under 7 Geo. IV. c. r#_(oo-i 
 46, are chargeable in like manner ; for as the 7 & 8 Vict. c. L J 
 113, s. 47, directs all judgments, &c, to be enforced in like manner, as 
 in case of such companies carrying on business beyond sixty-five miles 
 from London, and the shares of companies carrying on business within 
 sixty-five miles from London, are decided to be chargeable, it is evident 
 the others are so also ; or, in other words, all shares in these bodies are 
 chargeable. However some obscurity is cast over the meaning of the 
 clause by reason of the proviso — that the company shall make out, &c, 
 the several returns required by 7 Geo. IV. c. 46. 
 
 Also, in equity, a second incumbrancer on shares, the prior incum- 
 brancer being, ex. gra., the company, who has a lien or charge on the 
 shares, may by a bill properly framed, as to the persons brought before 
 the court, and praying an account, &c, have means to redeem the first — 
 indeed, that is his right — and to have all the securities held by the first 
 assigned to hiin.(s) 
 
 A testator at his death held a number of shares in a banking copart- 
 nership, called " The Northumberland and Durham District Banking- 
 Company." The shares were 101. shares, and the testator had paid up 
 two instalments of 21. 10s. per share, being all that had, up to the time 
 of his death, been called for by the directors. On 10th October, 1843, 
 the testator died, devising all his shares to legatees, who were infants. 
 8th April, 1845, the executors caused the shares to be transferred into 
 their names, assenting to the legacy, and on 3rd May, 1847, paying 
 309/. 15s. as legacy duty. They also received a dividend of 2,065Z. 
 upon the shares. In October, 1848, the remaining 5/. per share is called 
 up by the directors; this the executors paid, and afterwards received 
 further dividends. Then the question was, whether the legatees of the 
 shares, or the residuary legatees, ought to bear the burden of the call 
 of 1848. 
 
 *Now, in this case, by the provisions of the deed of settlement, p^gg-i 
 the testator's estate was not liable to the call of 5/., at the time it L J 
 was made ; for, although by the deed of settlement, that estate was at the 
 
 (0) See supra, p. 475. It was not a company constituted under 7 & 8 Vict. c. 
 113; its shares were 501. shares ; that statute requires, s. 2, the shares to be not 
 less than 100Z. each. See 1 Sim. (N. S.) 225. 
 
 (p) See 1 Sim. (N. S.) 233, as to meaning of these words. 
 
 (q) Graham v. Connell, 19 L. J., Exch. 3G4 ; S. C, 1 L. M. & P. 438 ; see Morris 
 v. Manisty, 7 Q. B. 674. 
 
 (r) M'Intyre v. Connell, 1 Sim. (N. S.) 225. 
 
 (s) M'Intyre v. Connell, 1 Sim. (N. S.) 250.
 
 348 GRANT ON THE LAW OF BANKING. 
 
 time of the call liable to such call, whenever it should be made, vet 
 before it actually was made die shares had been transferred into the 
 eamee of the executors, and by another provision of the deed, the 
 
 liability did not continue longer than until the Bharee should have been 
 transferred out of the testator's name, into that of some other person. 
 By this transfer the executors made themselves trustees for the Infant 
 legatees, who, on attaining twenty-one, adopted the act, and claimed the 
 
 legacy. Now the effect of this was precisely the same as if the shares 
 had been at that time transferred to other persons, in trust for the 
 i- a- if, the legatees having already attained twenty-one, the 
 transfer of the shares had been made at once to them. 
 
 A- regards the company, the executors, by the transfer into their own 
 name-, have become shareholders, that is to say, they became personally 
 liable to pay the call to the company, whether the testator's estate was 
 Bolvent or insolvent. The assets of the testator were no longer liable to 
 make that payment. Under the deed in question the directors having 
 permitted the transfer, the estate of the testator was thereby discharged 
 from all further liability, however ample that estate might have been, 
 and the executors personally might have been unable to discharge it. 
 
 Then, as between the persons interested under the testator's will, the 
 call must be borne by the specific legatees of the shares; for the payment 
 of the call could not have been enforced by the company against the 
 general personal estate of the testator, and there is no intimation of a 
 contrary intention in the will. 
 
 If this result were not adopted, it would seem to follow that if the 
 • ir had specifically bequeathed to one who got them transferred into 
 r*40ffl k* 8 own name J alu ' tne company ^afterwards failed, and thereby 
 L -I contribution was required in respect of the shares, then, that in 
 such ease, the testator's general personal estate would be liable to pay 
 such contribution. 
 
 The same, it is to be observed, would have been the result, if the 
 shares had not been transferred to the executors, for the testator's interest 
 in the subject matter of the bequest was complete at the time of the 
 death, and the future calls must fall on the legatee, who takes cum onere, 
 unless the will shows a contrary intent; if, however, the last-mentioned 
 eall had been contemplated before the death, and it had been required 
 to make his interest in the shares complete, ex. gra. if the further eall 
 were required before the company could be worked, or before any divi- 
 dend could )<" paid, then the general personal estate of the testator ought 
 .■■ borne the expense of the call. The transfer to the executors is 
 
 immaterial in this Tiew.(f) 
 
 In a ease of an ordinary banking copartnership — as, for instance, one 
 of >i.\ partners — if one becomes bankrupt, no liability can arise against 
 him or his estate, in respect to the trading as bankers, after his bank- 
 ruptcy: in case of a banking copartnership, of more than si\ partners, to 
 which tin- Winding-up Acts apply, matter- Maud somewhat on the same 
 •.'round. The shares in it are not property, as the shares in an incor- 
 
 (t) Armstrong v. Burnet, 24 L. J.. Chanc. 473.
 
 COPARTNERSHIPS, ETC. 349 
 
 poratcd joint stock company of any description of trade are, but constitute 
 an interest determinable on bankruptcy, and consequently a bankrupt 
 member's name cannot be put on the list of contributories on the wind- 
 ing up, in respect of liabilities incurred subsequently to his bank- 
 ruptcy, (w) But in neither incorporated nor unincorporated companies 
 of this kind are the shares interests in land.(.r) 
 
 *A contract for the sale of shares in a banking copartnership r^jnn 
 in ordinary circumstances, is not a contract for the sale of " goods, «- J 
 wares, or merchandize," within the 17th section of the Statute of Frauds, 
 so as to require a written memorandum. (y\ 
 
 The power of attorney to sell, &c, shares, does not, without express 
 words, give authority to pledge ; it is indispensable that a person who is 
 asked to take a pledge of shares, in such circumstances, should ascertain 
 whether the power includes pledging ; if not, he cannot safely enter up- 
 on the transaction. (z\ 
 
 Executors. — The following decision deserves the careful attention of 
 directors and officers of copartnerships in banks, who wish for guidance 
 as to their duties towards executors and administrators, in respect of 
 shares. 
 
 A., by his will, gives to trustees, their executors, &c, all his personal 
 estate, &c, upon trust, to invest one moiety, and permit the dividends 
 and profits thereof to be received by his wife, Mercy A., during viduity, 
 &c. Part of this moiety was invested, in the name of Mercy A., in the 
 purchase of shares in a banking copartnership. Mercy A., remaining a 
 widow, died intestate. Administration was taken out by B., the surviv- 
 ing executor under the husband's will, and stamp duty was paid suffi- 
 cient to apply to the whole of the testator's personal estate. Then B., 
 in his double capacity of executor and administrator, requests the bank- 
 ing company to register the letters of administration in their books, and 
 to transfer the shares and pay the dividends to him. This, however, the 
 bankers refused to do, and requiring the luxury, as was said, of judicial 
 ^indemnity, became involved in a suit in chancery, the result of ^ iqfri 
 which was that they were obliged to do at last what they had at L ""-I 
 first refused to do, and also to pay the costs of the suit, the master of the 
 rolls observing, bankers are not required to take notice of trusts ; they 
 may require an affidavit of the fact, under 48 Geo. III. c. 149, ss. 35, 
 36, 37, but they are not to inquire whether the affidavit is true. They 
 are to make the transfer, it seems, at all events. (a) 
 
 In case of a banking copartnership, the deed of settlement of which 
 provided that the executor of a deceased shareholder should not be a 
 
 (u) Greenshield's case, 5 De G. & S. 599 ; see Myers v. Perigall, 2 De G. M. & 
 G. 599, cor. Ld. St. Leonards, C. As to shares in incorporated company, Edwards 
 v. Hall, 25 L. J., Chanc. 85, cor. Ld. Cranworth, C. 
 
 (x) 25 L. J., Chanc. 86. 
 
 (y) Humble v. Mitchell, 11 A. & E. 205 ; see 1 Exch. 858, 859. When in "order 
 and disposition" of bankrupt, see 12 Cla. & F. Ill ; 2 Sim. & S. 292. 
 
 (z) Duncuft v. Albrecht, 12 Sim. 199; see 5 Hare, 242. As to stamp on trans- 
 fer of shares in incorporated companies, Sweet, Supplem. Bythew. Convey. 214 ; 
 see 2 Q. B. 321. 
 
 (a) Hennell v. Strong, 25 L. J., Chanc. 407.
 
 G B A N I N THE L A AV OF B A X K I N G. 
 
 member of the company in respect of such .-hares, but should bo at liberty 
 t" Bell them, or, at hi- option, to become a member, <>n complying with 
 certain terms, and that if be did uot become a member, he should not be 
 entitled to any dividend iu respect of such shares, accruing alter the 
 death of the testator; the executor, not haying complied with the terms 
 above referred to, was held not to be a member tor the purpose of exe- 
 cution going against him by Bci. fa. on judgment against the public offi- 
 cer, although he had actually received a dividend which accrued due 
 after the death. (6) 
 
 Precisely the same principle governs the ease of the husband of a 
 female shareholder, where the deed of settlement requires that he shall 
 go through certain forms, or do acts, previous to becoming a member : 
 then he is not a member if he has not done those acts, so as to be liable 
 to execution under a sci. fa, :(c) that IS, the wife remains the member, 
 r*_tcm Notwithstanding the coverture, (</) and may sue for the dividends 
 L J and recover, unless there he a plea in abatement. (<) 
 
 It appears to be clearly held in equity, however, that the terms of the 
 deed of settlement maybe such that a partner may, by covenanting that 
 his executors shall perform all things, with respect to his shares, that he 
 would have been liable to perform in his lifetime, bind his executor in 
 equity; that is to say, may render his estate liable iu equity, to contri- 
 bute to the debts of the copartnership.^/') 
 
 AVhere shares were specifically bequeathed to infants, and were trans- 
 ferred into the names of executors, and several years afterwards a call is 
 made, it was held that it must be paid by the legatees, and not out of 
 the testator's residuary estate, fo) 
 
 Mortgage. — .V transfer, by way of mortgage, having been made of 
 shares iii a banking copartnership, the mortgagor afterwards pays oil' the 
 debt and applies for a retransfer of the shares; but the directors did not 
 permit the retransfer to be made. In the meantime, a creditor recovered 
 judgment against the public officer, and threatened execution against the 
 mortgagee, as one of the shareholders. 
 
 A court of equity held, that where the mortgage was made simply as 
 an absolute transfer, subject to redemption, and nothing had passed, 
 binding the mortgagor to take a retransfer of the share-, the mortgagor 
 was not liable to indemnify the mortgagee against debts incurred after 
 the transfer made on the mortgage, and before the debt was paid oil'; 
 
 (Ij) Ness v. Armstrong, l Exch. 21 : Bee 1 Exch. 195. Nor is lie liable as a con- 
 tributory under the Winding-up 1 De G. & S. 5G0; see 5 Exch. 
 Pentland v. Gibson, 1 Ale. .v N. 311. 
 
 . . An-:!-. 3 Exch l Exch. '1G; Dodgsou v. Bell, 5 Exch. 967, 
 
 eh. ( '!i. As i" '"■iie.'- contributory under Winding-up An-, see Burlinson's 
 ; De G. & S. 18; Sleight's case, 3 De G. & S. 210; Gouthwaite's case, id. 
 5 Exch. 979. The L3tfa Beet., limiting the liability of partners to three 
 years alter ceasing to no effect in varying the liability to contribute be- 
 
 the partm re inter se. Gouthwail I Mac. & <!. 1st. 
 
 I'cr Jervis, <'. J., 22 L. J., '*. B. 177 ; as to contribution, .Sadler's case, 3 De 
 3. 36. 
 • dton v. Midland Counties Railway Company, 22 L. J., C. B. 177. 
 Ma, . & G. L99. 
 
 ■ \ . Burnet, 20 Bear. -124.
 
 COPARTNERSHIPS, ETC. .');,] 
 
 but that the mortgagor here having paid off the mortgage, and elected 
 to take the retransfer of the shares, the mortgagee became a trustee of 
 the shares for the mortgagor, *and the mortgagor was bound to r-^jojn 
 indemnify him against the whole expenses, or liabilities, which L J 
 he had properly incurred, by holding and maintaining the shares. That 
 the mortgagor, indemnifying the mortgagee, in respect of the costs, was 
 entitled to take proceedings in the name of the mortgagee, to compel the 
 retransfer of the shares, and to resist the proceedings against the share- 
 holders under the judgment. 
 
 The mortgagee, in such case, does not appear to have any right, at 
 law, against the mortgagor. 
 
 It was admitted, in the case, that the company was insolvent, and the 
 shares comparatively valueless. (/i) 
 
 Lien. — Where a deed of settlement of a banking copartnership stipu- 
 lated, that the company should have a lien on the shares of such proprie- 
 tors as were customers and indebted to the bank, and that no share should 
 be transferred without the consent of the directors ; and an abstract of 
 these provisions was indorsed on the certificate of the share held by each 
 proprietor ; and a proprietor of shares became bankrupt, being largely 
 indebted to the bank for advances ; the shares were held not to pass to 
 his assignees, as being in the reputed ownership of the bankrupt, so as 
 to defeat the lieu of the bank, as provided for in the deed.(i') 
 
 So, when the stipulation was, that the directors should have a lien on 
 the shares and stock of every shareholder, for debts due from him to the 
 company, and that the directors might cancel and declare forfeited, or 
 sell the shares of such shareholder, or otherwise deal with the same, as 
 the case might require, for obtaining payment of such *debts ; p^-i 
 the bank was considered to have a lien, not only on the shares, but L J 
 also on the dividends, of a shareholder, who had overdrawn his account 
 with them as a customer,^) and the notice of dividends, which was to 
 be given by circular letter, addressed to each of the shareholders under 
 the deed, did not, when sent to the customer in question, operate as a 
 waiver, on the part of the company, of their rights, because such notice 
 was to be sent, by the terms of the deed, to all, without reference to the 
 state of their relations to the company at the time. 
 
 It would have been so, without any express provision in the deed, 
 provided there had been nothing in it to show an opposite intention ; for 
 that would have been the case in a common partnership, where one part- 
 ner has a lien upon all that another partner has a right to receive, and, 
 without an intention that this should not be the case manifested in the 
 deed, the ordinary rule, as to partnerships, would apply, in this respect, 
 to a banking copartnership, under 7 Geo. IV. c. 46. 
 
 A trustee invests part of the trust fund, in the purchase of shares of a 
 
 (h) Phene v. Gillan, 5 Hare, 1. As to specific performance of agreement to 
 purchase, Shaw v. Fisher, 2 De G. & S. 11 j Wynne v. Price, 3 De G. & S. 310. 
 As to identity of person mentioned in share register book with person sued for 
 calls, &c, see Waterford, &c, Railway Company v. Wolsely, 1 Ir. L. R. (N. S.) 
 444 ' (i) Ex parte Plant, 4 Deac. & C. 160. 
 
 (k) Hague v. Dandeson, 2 Exch. 741 ; see 1 Mac. & G. 696. 
 
 March, 1857.— 24
 
 GRANT ON THE LAW OF BANKING. 
 
 banking copartnership, he himself being, also, a shareholder in his own 
 right : be afterwards makes various sales, and purchases, in these shares 
 of the company. There is no distinguishing mark by which the shares 
 . - : t ii be traced ; they are in the nature of capital, expressed by quantity. 
 The trustee then agreed with the copartnership, to assign to them some 
 of the shares standing in his name, by way security, for advances made 
 by the bank to himj but no transfer was actually made. The bank had 
 no actual notice, that any of the shares were held on trust. The trustee 
 afterwards becomes bankrupt : and it was held, that the bank had no 
 lien on any of the shares which had been held in trust; and that, although 
 the shares held, in trust, might have been changed, by selling and re- 
 ... purchasing, the *trustee must still be considered as holding, for 
 L J the purposes of the trust, the same number of the repurchased 
 shares, which stood in his name at the time of the bankruptcy. (/) 
 
 We may add a further remark, on the nature of shares. It is not pro- 
 per to overlook the distinction which holds between the two classes of 
 oonincorporated banking companies. They are either established, by 
 deed, in accordance with 7 Geo. IV. c. 4G, and the subsequent statutes 
 or they are directly established by private act of parliament. In the last 
 case, the agreement, or contract of partnership, takes the form of law, 
 under the authority of the legislature. Such statutes often contain a 
 clause, providing that the interests of the sharehnhh rs shall I" deemed 
 personal estate. When that clause is embodied in an act of parliament, 
 of course it is legally binding, whatever maybe the effect; but, when 
 that clause is contained in a deed of partnership, it may not have the 
 lame legal effect at all, because parties cannot agree among themselves 
 to alter the legal character, or incidents, attaching to a certain descrip- 
 tion of property. 
 
 This is the distinction which obtains between the copartnerships, con- 
 stituted by deed, and copartnerships constituted by act of parliament ; 
 and it appears to be the only distinction between them.(ra) 
 
 In the instance of a banking copartnership, established in conformity 
 with 7 Geo. IV. c. 4G, it has been held, both at common law,(/;) and in 
 chancery, that shares in a bank, the property of which consisted, in part, 
 of freehold and copyhold estates, and mortgages for terms of years, is 
 r*io-n personalty, and not realty, and may be legally bequeathed to 
 L J ^charitable purposes, within the 9th Geo. II., commonly, bul 
 
 erroneously, called the .Mortmain A.ct.(o) 
 
 In truth, a share represents the proportions of the profits to which 
 each holder of it is entitled; it does not empower the holder to step upon 
 the lands of the company, or use anv portion of them, for his own private 
 
 purposes; the holder, in this respect, is in i ther condition than an 
 
 ordinary pattner.(j?) 
 
 I) Hurray v. Pickett, L2 Cla. & P. :•■;: »ee I Ruse. 4 If. 45. 
 
 Myers v. PerigaU, 2 De G., If. ft G. 600, 601 ; per Ld. Truro, C. 
 !] c. B. 90; 8. 0., where Bee deed of settlement ; and Bee A-hton v. Lord 
 Le, i De G. & B. 102, 410, n I. 
 2 De G., If. .v: <:. 620, 621, per Ld. St. Leonards, C. 
 De G., If. & G., 621 : Sparling v. Parker, 9 Beav,
 
 COPARTNE 11 SHIPS, ETC. :;;,;> 
 
 Members, or Shareholders. — Let us next inquire, who are meant by 
 members, or shareholders. Now, in the inquiry, whether any person is 
 a subsisting member, it is often necessary to observe, whether the trans- 
 fer from the shareholder, from whom he bought, has been made accord- 
 ing to the requirements of the deed of settlement : thus, if it be a provi- 
 sion of the deed, that the consent of a board of directors shall be neces- 
 sary to perfect a transfer of shares, it is indispensable to ascertain what 
 this consent is, how it is to be signified, what is a board of directors, <&c. 
 However, though a transfer may be void, at law, for want of a proper 
 consent of a duly constituted board of directors, it may be supported, in 
 equity, where the circumstances are, that it has been made in the Share 
 Registry Book, and three directors have given (as was usual] a certifi- 
 cate of the transfer ; and a return has been made to the inland revenue 
 officers, that the transferor had ceased to be a member, and, besides, the 
 transferee has been treated as a shareholder by the directors; received 
 dividends ; had sent to him the circulars of general meetings, and notices 
 of calls, and had attended meetings. 
 
 Also, where, in the circumstances above detailed, the bank suspended 
 payment, and, upon a call being made, the transferee omitted to pay, by 
 reason of inability, and the *bank made an entry in the share r*4.QQn 
 register list, stating the transfer to be invalid, for want of con- L J 
 sent, &c, and made a fresh return, in which they inserted the transferor's 
 name as a shareholder, and then instigated a creditor to commence an 
 action, in which he obtained judgment, for their benefit, against their 
 public officer, and the creditor brought a sci. fa. against the transferor, 
 and recovered, on the invalidity of the transfer.^) Nevertheless, it was 
 held, in equity, that the transferor was no longer a shareholder, as be- 
 tween him and the company ; and that the proceedings, being collusive, 
 a perpetual injunction against levying execution on the judgment in the 
 sci. fa. must issue, (r) 
 
 In this case, therefore, the transferee was the real member of the 
 company. 
 
 With regard to persons who may be members of banking copartner- 
 ships ; the trade, or business of banking, was held to be within 57 Geo. 
 III. c. 99, which restrains spiritual persons from being occupied in any 
 trade, or dealings, so that, if a bill of exchange were indorsed to a bank- 
 ing copartnership, and they sued as indorsees upon it, by their public 
 officer, to show that spiritual persons were partners, and members of the 
 company, defeated the action, and barred the company from recovering 
 the amount of the bill, inasmuch as the copartnership was, in such case, 
 carried on in violation of the above-mentioned statute. 
 
 The consequences were the same, in the case of any other bauk, in 
 which one of the members was a clergyman ; even in the case where a 
 clerical executor continued to carry on the business for the benefit of the 
 testator's estate, as executor. (s) 
 
 The former of these results was thought to be so inexpedient, that an 
 
 (q) See 4 Exch. 699. 
 
 (r) Shortridge v. Bosanquet, 16 Beav. 84, 99; see 5 H. Lds. 297. 
 
 (6) Hall r. Franklin, 3 M. & W. 259, 268.
 
 354 8BANT ON TJIE LAW OF BANKING. 
 
 lorn act of parliament was immediately passed, *to render contnn t- 
 L J with these banking copartnerships valid, although they might 
 have clergymen among the shareholders, or partners, by an ait which 
 was shortly afterwards repealed, and re-enacted with variations, by a 
 Btatute,(<) which is given as follows : by which it will be observed, the 
 law is left as above stated, with respect to members of ordinary bank.-, 
 that is, other than copartnerships having mure than six members; and 
 also, that on these latter, clergymen cannot be directors, or managers, or 
 take part in person in the business. 
 
 The words, members fur thu time l>, //<;/, mean such as were members 
 at the time of the issuing of the scire facias; thus, the persons sued, 
 have an opportunity of pleading, that they were not partners; and, if it 
 were shown that they were on that issue, that would show that they were 
 properly liable to the judgment, on which the scire facias issues. («) 
 
 The words, now a member, are equivalent to </ member /'m- tin time 
 being, (x) 
 
 (Scire Fu< ins. — Having ascertained who are members for the time 
 being in law, and obtained the names, etc., of those persons, and ser\ed 
 them with notice of the motion, the plaintiff, who has obtained judgment 
 against a public officer, and does not intend to issue execution against 
 him, is to move the court for a rule for writs of sci fa. against a member, 
 or members for the time being. (y) But, against such members, it at 
 length seems to be settled, that the rule is absolute in the first instance, 
 -. and need not be made in open *court,(z) and issuing the Bci. fa. 
 L ' J without leave, is only an irregularity, as has been said, and can- 
 not be made the subject of a plea, not being a ground of defence. (ii\ 
 
 In all other cases within the purview of the act, there must be a mo- 
 tion for the sci. fa. made in open court, after notice to the person or per- 
 sons sought to be charged. (6) 
 
 Then, what are the circumstances under which this motion will be 
 granted : — 
 
 In order to obtain the leave of the court to issue a scire facias against 
 a former member, applicant must make out, that is, the affidavit must 
 state, according to the circumstances of the case : 
 
 (t) 4 Vict. c. 14 ; see Ex parte Salkeld, 3 M., D. & De G. 126. The deed of set- 
 tlement mostly specifies classes of persons who shall not lie members, ex gra., in- 
 fant.-. &c. 
 
 (u) Dodgson v. Scott. 2 Exch. 465 j see T II. & W. 207, 208 ; 11 A. & E. 520. 
 
 \x) Nunn v. Lomer, is L. J.. Exch. 342. 
 
 (y) Dodgson \. Scott, 2 Bxch. 167 : Barker v. Buttress, T Beav. 143. What affi- 
 davit sufficient, see 25 L. J., Exch. 249. 
 
 (z) Harrison v. Tysan, cor. Crompton, J., 1 Bail Court Cas. Ill; Johnson v. 
 Brettell, 7 Jur. 210; Bee Esdaile v. Trustwell, l Exeh. 371; Bank of Scotland \ 
 Fenwick, 1 Exch. 795, where Rolfe, B., was of opinion that no leave of the court 
 for a -'-i. fa. was necessary again I members for the time being; sec also Rickette 
 v. Bowhay, where Manle. J.. :; ('. B. '.me. ami CresBweU J., id. 908, expressed tin 
 same opinion : Cn>.-s v. haw, 6 If. A: W. 223; see Wingfield v. Barton, 2 bowl. N. 
 ee 10 0. B. 160 ; L6 0. B. 459. 
 
 . Warburg, 1 1 M. k W. 452 ; Marion v. Lund, 16 Q. B. 
 
 (0) Form of notice, see Clowes v. Brettell, 11 M. k W. 461. Probably the no- 
 ti<«- ought to be served personally; see Esdaile v Smith, L8 L. J., Bxch. 120. Di- 
 i of court in granting sci I eux v. Kilkenny, 4c, Railway Company, 
 
 20 L. J., Bxch. 3'j.
 
 COPARTNERSHIPS, ETC. 355 
 
 The judgment has been obtained against the public officer, and when, 
 and for what sum ; how much is due on the judgment : 
 
 The executions that have been issued on the judgment: 
 
 The means to levy under those executions : 
 
 Such other facts, as may tend to induce the court to consider due dili- 
 gence to obtain satisfaction from the members for the time being has 
 been used : 
 
 When the contract on which the judgment was obtained was entered 
 into, or when the same was executed, as the case may require : 
 
 That the party proceeded against was a member at the time when the 
 contract was entered into, or became a member *at any time be- r=j ,- n ..-. 
 fore such contract was executed, or was a member at the date of L 
 obtaining judgment :(c) 
 
 The creditor of banking copartnerships ought to bear in mind, that 
 though he is not bound to proceed at any particular time, on his judg- 
 ment, yet, whenever he issues his execution, he ought to endeavour to 
 make it available against all the then members of the copartnership, [<l) 
 as a general rule. 
 
 The scire facias will issue, although it be shown, by way of answer, to 
 the application, that A. B., who is supposed to be in solvent circumstan- 
 ces, who has ceased to be a member, and is not named in the application, 
 was collusively, and fraudulently, for the purpose of protecting him from 
 liability, permitted to transfer his shares ; nor, is it an answer, that C. 
 D., not named in the application, but still a member, would, if execution 
 went against him, be entitled to indemnity from solvent persons, though 
 unable himself to pay the sum demanded ; nor, is it answer, on behalf 
 of E. F., included in the application, that judgment is entered up in 
 respect of several causes of action, each distinct from the other, for one 
 of which E. F. is not liable. (e) 
 
 Also, the scire facias may issue, even where execution has not gone 
 against all the existing members, previously to the application. 
 
 Thus, if execution has been against several of the existing members, 
 with no satisfaction obtained, and grounds are shown to convince the 
 court of the insolvency of all the existing members, the applicant will 
 not be obliged to issue ^execution against the remaining existing [-*^q 9 -i 
 members, but will be allowed to issue a sci. fa. against members, L 
 at the time the contract was made ;(/) and, so he will be allowed to pro- 
 ceed by sei. fa., against the other classes, as stated above, who are made 
 liable by the statute, upon his satisfying the court, in like manner, that 
 the previous executions have been or would be ineffectual.^) 
 
 All that is requisite is, that a sci. fa. should issue against an exii 
 
 (c) Bank of England v. Johnson, 3 Exch. 598 ; Dodgson v. Scott, 2 Exch. 469, 
 will be found to be authorities for the several points above stated. 
 
 (d) Bank of England v. Johnson, 3 Exch. 598. What is enough to make out a 
 prima facie case of diligence, Harvey v. Scott, 11 Q. B. 92 ; Field v. Mackenzie, -l 
 G. B. 705. As to fresh application for sci. fa., Field v. Mackenzie, 6 C. B. 384 ; on 
 fresh materials, 2 Exch. 457 ; 13 Q. B. 344. 
 
 (e) Harvey v. Scott, 11 Q. B. 92. 
 
 (/) Field v. M'Kenzie, 5 Dowl. & L. 172. 
 (g) Dodgson v. Scott, 2 Exch. 457.
 
 356 GRANT ON THE LAW OF BANKING. 
 
 member, or members, and that there should bo a reasonable certamt 
 thai :ill remedies against the rest of the class would be ineffectual ; then 
 
 the application for a sci. fa. against another class may be entertained. 
 
 Winn a rule has been made absolute for a sci. fa , against formet 
 members, the court will refuse to set it aside, on the ground that the 
 party obtaining the rule had omitted to disclose to the court, the fact of 
 his holding the collateral security of a mortgage upon real property, made 
 and assigned to the bank, which, it was believed, by management ami 
 
 . might be made productive of an amount exceeding the mor? . 
 debt; but no present means of obtaining satisfaction were shown; and, 
 on the whole, the facts not being such, as if presented to the court on 
 the former occasion, would have sufficed, to disentitle the applicant to 
 the writ of sci. fa.(//) 
 
 So, in the case of any other collateral security ; for instance, if the 
 creditor held chattels of a third person, with a power of sale, it seems he 
 would not be obliged to exercise that power, before resorting to the 
 members of the second class. (7) 
 
 If the scire facias goes against a person who was a member, when part 
 r*"fm 0D ^ °^ *^ e contracts recovered upon were *entered into, the 
 l J court would probably order, that there should be an express un- 
 dertaking entered into by the plaintiff, not to levy against such person, 
 for more than was actually due from him.(/.-) 
 
 If the sci. fa. has issued without leave of the court, in a case where 
 
 -ary, and if it is ambiguous on the face of it; in either 
 
 case, there is nothing more than an irregularity to be taken advantage 
 
 of on motion, which must be made promptly. (A The fact is no defence 
 
 in a plea.(?«) 
 
 Where the application is for a sci. fa. against retired members, the 
 
 court will not shorten the time for showing cause against the rule, on 
 
 round that the three years limited by the statute, for proceeding 
 
 against retired members, might expire before execution could issue. (m) 
 
 The scire facias ought, it seems, to state the judgment against the 
 public officer, to have been for a debt due to the plaintiff from the com- 
 pany. (") hut there is no obligation to aver, that the company was actually 
 carrying on business. (p\ 
 
 The scire facias against one who was a member at the time of tie 
 contract, probably must state the previous execution had against the 
 mi nil" r- :.t the time of the execution, for such previous execution [a a 
 condition precedent to the sci. fa. issuing against such member, and is 
 the groundwork and warrant for it.(j) Against such a member the 
 court will allow the writ to issue on prima facie evidence, that he was a 
 
 (h) Field F.Maekenaie, t •'. B, 726. (t) Per Wilde, C. J., 4 C. B. 730. 
 
 (/. i Harvey v. Scbtt, Jl Q. B. '-'2 ; see Firth v. Harris, 8 Dowl. 089. 
 (/, Rickette \. Bowhay, 3 ('. B. 389, i e. before plea. Bradley v. Urquhart, n 
 .v \v. 
 (m) Bradley ▼. Warburg, 11 M. & W. 452 ei <\B.897. 
 
 Id \" tl'Kenzie, 5 D. & L. 172. (o) Ness v. Fenwick, 2 Exch. 598. 
 
 I Ik-rtram, 4 Exch. 1 95. 
 </i Bank of England v.Johnson, 18 L. J., Excb. 238 ; S. C, 3 Exch. 598.
 
 OPART NERSIIIPS, ETC. 357 
 
 member at the time of the contractor) for if shown to have been once 
 members, they will, in accordance with *the general rule, be r*zr\A-\ 
 presumed to continue so, in the absence of proof that they have L -" 
 retired, (s) 
 
 The defence that they never were members, or that they had ceased 
 to be so, before the contract was entered into, must be pleaded to the 
 sci. fa.(tf) 
 
 Probably, it would be a good objection against allowing the sci. fa. 
 against former members, to show that there was property of the bunk 
 that could have been taken under a sci. fa.,(w) but not so to show that 
 there was property that might be got at otherwise.(x) 
 
 Any objection to the judgment on which the sci. fa. is to be grounded, 
 will be out of place, as an answer to the motion for the sci. fa. If it is 
 sought to impeach the judgment, on the ground of fraud, as, for instance, 
 that it was a concocted proceeding to the prejudice of the proprietors of 
 the banking company, the defendant must avail himself of the objection, 
 either in the form of a plea to the sci. fa., or in the form of an applica- 
 tion, specifically for the purpose of setting aside the proceedings as 
 fraudulently) or an injunction to stay proceedings will be granted, as 
 it seems, by the courts of chancery. (2) 
 
 Nor does the objection, that the application has been made before, 
 apply, it would seem, in cases of this kind ; for the general rule, that a 
 matter cannot be agitated twice, does not appear to apply to cases of 
 motions for a sci. fa., in cases of banking copartnerships, provided the 
 applicant makes his renewed motion upon fresh materials ;{a) pr^-i 
 and *where a rule to issue a sci. fa. had been obtained against a L J 
 former member, which rule had been afterwards enlarged and subse- 
 quently abandoned, on payment of costs by the plaintiff, he was after- 
 wards allowed to come to the court, for leave to issue such sci. fa., 
 although there was no explanation offered, why the first rule was aban- 
 doned, nor any new facts alleged to have been discovered by the plaintiff, to 
 justify him in making his second application. (b) It will be observed, 
 however, that on the former occasion, the effect of what took place 
 merely was, that the plaintiff withdrew his application, and by that he 
 was not bound, as he would have been, had the court made a decision 
 finally disposing of the rule. 
 
 Also, more than one scire facias may issue at the same time, against 
 different members severally, and it is not an objection that they are con- 
 
 M Field v. Mackenzie, 4 C. B. 705. 
 
 («) Harvey v. Scott, 11 Q. B. 92; see 14 M. & W. 11. 
 
 (t) Dodgson v. Scott, 2 Exch. 464; see 11 M. & W. 4G1 ; 18 L. J., Exch. 238. 
 What pleas allowed, Pbillipson v. Tempest, 8 Jur. 60. 
 
 (u) Per Maule, J., 4 C. B. 731 ; and see 15 C. B. 462, 463 ; 16 Q. B. 344. 
 
 )x) Per Maule and V. Williams, Js., 4 C. B. 731, 732. 
 
 \J) Dodgson v. Scott, 2 Exch. 458 ; see 6 Q. B. 587 ; 11 Q. B. 92 ; 15 Q. B 548 
 11 M & W. 432. Defendant cannot plead or set up matter that might have been 
 available either way in the original action, Bradley v. Eyre, 11 M. & W. 432 ; see 
 6 Q. B. 587 ; 2 Exch. 458. 
 
 (z) Bargate v. Shortridge, 5 H. Lds. 297. 
 
 (a) Dodgson v. Scott, 2 Exch. 457. 
 
 (}j Dodgson v. Scott, 2 Exch. 457 ; see Field v. Mackenzie, 6 C. B. 384.
 
 GRANT ON THE LAW OF BANKING. 
 
 current,(c) and unless it were shown, that a number of writs were 
 resorted to, for purposes of oppression, and so that the process of the 
 court was abased, the court will not interfere. (r) But the rule for the 
 Bci. fa. must, in all cases, be served person a lly,(c/) except where the 
 Bci. fa. issues against those who arc members for the time being. (e) 
 
 Exemptions /nun Liability. — On inquiring what parties connected 
 with the partnership are liable to its debts, it will be seen, a class of 
 ]" rsons have apparently been overlooked by the legislature, and are thcre- 
 fore exempt, there being no words in the statute to comprehend them, 
 viz., persons who have become members after the contract was completed, 
 but have ceased to be so before judgment was obtained, though they 
 T*"On were so at * ne commencement of the *suit. This class is clearly 
 L -I exempt from liability, as members in scire facias. (/) 
 
 Bankruptcy. — With respect to bankruptcy, it is to be observed, that 
 a member of a banking copartnership cannot be proceeded against in 
 bankruptcy, upon a debt due from the bank, where no judgment has 
 been obtained against the public officer, although the business has been 
 relinquished, and an order made to wind up the company, prior to the 
 proceedings in bankruptcy; and the same is the case, although there be 
 not any public officer in existence,^) and a.Jiat in bankruptcy in such 
 case would be invalid, and either the petitioning creditor or the messenger, 
 would be liable in trover, for the wrongful seizure under it. 
 
 A shareholder in a banking copartnership, after the bank, &c, had 
 stopped payment, became bankrupt, afterwards an order for winding up 
 the affairs of the banking company was made under the Winding-up 
 Acts. Subsequently, the bankrupt obtained his certificate, and his name 
 was afterwards included in the list of contributories. On a call being 
 afterwards made upon the shareholders, the official manager of the com- 
 pany applied to prove for the balance due from the bankrupt, after 
 debiting him in the company's book with the call, and it was held he had 
 a right to do so, and that the proof must be admitted, (/<) for that a call 
 made in respect of shares, which the bankrupt held before his bank- 
 ruptcy, is to be treated for every purpose, as a separate debt of the bank- 
 rupt, in the administration of his estate. This conclusion was arrived at 
 on the construction of the Winding-up Act of 1849. (/) 
 
 Besides, the modes by way of action against the copartnership, judg- 
 r*-n--i ment thereon, and sci. fa. on Buch judgment, by *which a 
 L ' J creditor of the copartnership may realize his debt from the private 
 funds of one or more of the shareholders, to which reference has been 
 made already, (/j it must be borne in mind, that the proceeding, by way 
 
 (r) Nunn v. Li h. 171 ; see id. 307; 2 id. 312; Burmester v. Crofton, 
 
 6 I». <t L. 430; S. C, 3 Exch. 397. 
 
 Esdaile v. Smith. 18 L. J., Exch. 120. 
 Per Maul'-. J., 3 0. B. 900 : per CreaBwelL, J., id. 908. 
 D dgsi d v. Bcott, 2 Exch. 467; see 11 M. k W. 432. 
 Davison v. Farmer, G Exch. 242, overruling Kx parte Wood, l If, D. & De 
 
 ! 
 Ei parte Nicholas, 2 De G., M. & G. 271. 
 ii) 12 >v L3 Vict c. 108, ss. 14, 30 ; see 2 De (•. M. & G. 27G. 277 
 3< rapra, pp. 501, 502.
 
 COPARTNERSHIPS, ETC. 359 
 
 of trader debtor summons against a shareholder, may, in certain circum- 
 stances, (A be taken under the Bankrupt Law Consolidation Act of 1849. 
 To enter upon this subject, however, would lead to much more detail, 
 than is compatible with the compendious character of this work, as useful 
 information could not be conveyed, except by placing before the reader 
 a large mass of statutory enactments, and of decisions expounding them. 
 It has, therefore, been thought best to refer to the works and reports, 
 which treat exclusively of bankruptcy, where the proper modes of taking 
 advantage of the bankrupt laws, in cases of copartnerships in banking, 
 under 7 Geo. IV. c. 46, as well as of joint stock banking companies 
 stopping payment, &c, will be found laid down and explained. (m) 
 
 Insolvency. — On the insolvency of a banking copartnership, one 
 Walker, a principal shareholder, gave bills and other securities, to 
 another bank, to cover advances made by that bank, for the payment of 
 the creditors of the copartnership ; out of these advances the creditors 
 were paid, and at the same time the debts were assigned by the creditors 
 to one Richards, as trustee for Walker, by a deed reciting the above 
 facts, and that Richards had agreed to pay the amount of the bills, &c. 
 on having an assignment to him t»f the debts. One of the original 
 creditors brings an action for Walker's benefit, against certain of the 
 shareholders, to recover the amount of his debt : the defendants pleaded 
 payment ; but it was held that these facts did not support the plea ; for 
 payment extinguishes the debt, but *the parties here, by the r*5Qg-i 
 assignment, expressly kept alive the debt.(«) ■- -■ 
 
 No more than one action, or suit, for the recovery of the same demand, 
 can be brought against the copartnership, in case the merits shall have 
 been tried in such action or suit.(o) 
 
 Compromises. — Beyond the above modes of proceeding, it may be 
 doubted whether there are any available for creditors or shareholders. 
 Compromises, in the nature of composition with creditors, seem to be 
 inapplicable to relieve shareholders from their liabilities. 
 
 A banking copartnership having stopped payment, certain of the 
 shareholders (who afterwards acquired the management of the company's 
 affairs,) contributed each, in proportion to the number of shares he held, 
 to a common fund, to be applied to the protection of the contributors to 
 it, in payment of the debts of the bank, and they called on all the other 
 shareholders to contribute. This some of them refused to do, upon 
 which an arrangement was made between the contributors and a creditor 
 of the company, by which the creditor was to obtain a judgment against 
 the company, to be used against such of the shareholders as the contri- 
 butors of the fund should select. This was done, the company gave him 
 judgment by confession, and the creditor issued a sci. fa. upon the judg- 
 
 (7) See 12 & 13 Vict. c. 106, ss. 77, 18. 
 
 (m) See Flather's Arckb. Bank., 11th edit. ; De G. Bank. Reports ;_De G., M. & 
 G. Bank. Reports, &c. 
 
 (n) M'Intyre v. Miller, 13 M. & W. 725 ; see Simpson v. Eggington, 24 L. J., 
 Exch. 313. „ , _ a . 
 
 (o) 1 Geo. IV. c. 46, s. 10, and 1 & 2 Vict. c. 96, s. 2; see Barker v. Buttress, 7 
 Beav. 141 ; Steward v. Greaves, 10 M. & W. 720.
 
 360 GRANT OH THE LAW OF BANKING. 
 
 Hunt. Bgainst a person who had ba d b Bhareholder, but before the date 
 of the contraot with the said creditor, oo which judgment had been i 
 rered, had assigned his Bhares to a trustee for the company, but the 
 transfi rs were informal. The Courts of Equity regard this as a fraudu- 
 
 - (|| , lenl transaction, and will restrain the creditor *from proceeding 
 L -I at law;(y/) it is a contrivance to enforce indirectly against the 
 -aid person the contribution, which they could not directly impose upon 
 him. The Bouse of Lords, in a case subsequently decided, has supported 
 this view.(^) 
 
 Bank Notes, tfec. — Provision is made for tin- issuing and re-issuing b) 
 these bodies of bank notes, upon Becurity being given by sect. 10, but 
 the enactment must be read in conjunction -with tin' provisions of the 
 Bank Charter Act,(r) given above. Section 1G provides thus: — 
 
 " That if any corporation or copartnership carrying on the trade or 
 business of bankers under the authority of this act shall be desirous of 
 issuing and re-issuing notes in the nature of bank notes, payable to the 
 bearer on demand, without the same being stamped, as by law is required, 
 it shall be lawful for them so to do on giving security by bond to his 
 majesty, his heirs and successors, ife which bond two of the directors, 
 members or partners of such corporation or copartnership shall be the 
 obligors, together with the cashier or cashiers, or accountant or account- 
 ant-, employed by such corporation or copartnerships, as the said Com- 
 missioners of Stamps shall require; and such bonds shall be taken in 
 such reasonable sums as the duties may amount unto during the period 
 of one year, with condition to deliver to the said Cominissi'iiHTs of 
 Stamps, within fourteen days after the fifth day of January, the fifth day 
 of April, the fifth day of July, and the tenth day of October, in even 
 year, whilst the present stamp duties shall remain in force, a just ami 
 true account, verified upon the oaths or affirmations of two directors, 
 members or partners of such corporation or copartnership, and of tie- 
 said cashier or cashiers, accountant or accountants, or such of them as 
 the said Commissioners of Stamps shall require, such oaths or affirma- 
 tions to be taken before any justice of the peace, and which oaths and 
 affirmations any justice of the peace is hereby authorized and empowered 
 to administer, of the amount or value of all their promissory notes in 
 circulation on some given day in every week, for the space of one 
 quarter of a year prior to the quarter day immediately preceding tin 
 delivery <>f such account, together with the average amount or value 
 thereof, according to such account, and also to pay or cause to be paid 
 into the hand- of the Recei vers-( Seneral of Stamp Duties in Great 
 Britain, as a composition lor the duties which would otherwise have 
 been payable for Buoh promissory notes issued within the Bpace 
 of one year, the sum of seven shillings for < very one hundred 
 pounds, ami al-o for the fractional pari of one hundred pounds of the 
 said avi rage amounl or value of such notes in circulation, aocording to 
 the true intenl ami meaning of this acl : and on due performance thereof, 
 
 (p) Taylor v. Hughes, J Jo. ft La*. '-'1. 
 
 ' .£ rtridge, 5 II Lds. 291 I ft B Vict. c. 32. 
 
 [*510]
 
 COPARTNERSHIPS, ETC. 361 
 
 such bond shall be void, and it shall be lawful for the said commissioners 
 to fix the time or times of making such payment, and to specify the same 
 in the condition to every such bond, and every such bond may be 
 required to be renewed from time to time at the discretion of the said 
 commissioners or the major part of them, and as often as the same shall 
 be forfeited, or the party or parties to the same or any of them shall die, 
 become bankrupt or insolvent, or reside in parts beyond the seas."(r) 
 
 Any of these bodies beginning to issue bills or notes, or to borrow, 
 &c, before making the returns, &c, above mentioned, (.s) are to forfeit 
 500?. for each week that they neglect to make them, by section 18, 
 thus : — 
 
 " That if any such corporation or copartnership exceeding the number 
 of six persons in England, shall begin to issue any bills or notes, or to 
 borrow, owe or take up any money on their bills or notes, without having 
 caused such account or return as aforesaid to be made out and delivered 
 in the manner and form directed by this act, or shall neglect or omit to 
 cause such account or return to be renewed yearly and every year between 
 the days or times hereinbefore appointed for that purpose, such corpora- 
 tion or copartnership so offending shall, for each and every week they 
 shall so neglect to make such account and return, forfeit the sum of five 
 hundred pounds ; and if any secretary or other officer of such corporation 
 or copartnership shall make out or sign such false account or return, or 
 any account or return which shall not truly set forth all the several parti- 
 culars by this act required to be contained or inserted in such account 
 or return, the corporation or copartnership to which such secretary or 
 other officer so offending shall belong shall for every such offence forfeit 
 the sum of five hundred pounds, and the said secretary or other officer 
 so offending shall also, for every such offence, forfeit the sum of one 
 hundred pounds ; and if any such secretary or other officer making out 
 or signing any such account or return as aforesaid shall knowingly and 
 wilfully make a false oath of or concerning any of the matters to be 
 therein specified *and set forth, every such secretary or other p^-p 
 officer so offending, and being thereof lawfully convicted, shall L J 
 be subject and liable to such pains and penalties as by any law now in 
 force persons convicted of wilful and corrupt perjury are subject and 
 liable to." 
 
 Accountable Receipt. — A banking copartnership, established under 
 the stat. of Geo. IV., in acknowledgment of moneys deposited with them 
 by a customer, gave two accountable receipts for 100?. each, signed by a 
 clerk for the company ; the course of dealing being, that the parties to 
 whom the receipts had been given, returned them to the bank once a 
 year, to be cancelled, when they were paid, or allowed the interest, for 
 
 (r) See as to issuing notes, 7 & 8 Vict. c. 32, s. 13, supra, p. 441 : and same 
 section as to amount of notes allowed to be in circulation. 
 
 («) See supra, pp. 460, 463 ; see also infra, cap. xvi., for the penalties, &c, for 
 neglect in this respect. N. B. Public officers indemnified in all cases by 7 Geo. 
 IV. c. 46, s. 1-1 ; these bodies not required to take out more than four licenses, s. 
 17 ; see supra, p. 446. Penalties, &c, to be recovered in the Court of Exchequer, 
 &c, s. 21. Forgery of bank notes of these bodies, 7 Geo. IV. c. 46, s. 9; see 1 
 Welsby & Beav. Statutes, 153 ; 2 id. Crim. Law, (227).
 
 362 G 8 A N I N THE LA W F B ANKI N G. 
 
 the pa-t year, ami took receipt- in jilace of those which wore delivered 
 up. After the death of the customer, and pending a contest for the ad- 
 ministration of his estate, the receipts came into the hands of a stranger, 
 
 who fraudulently obtained pawncnt for them i'ruin the bank, when the 
 receipts were given up and oanoelled, by tearing off the signature. The 
 administrator recovered in equity the whole sum from the company, with 
 interest and costs of suit.(/) Nothing that had taken place had availed 
 to absolve in equity the company from their original liability to pay tin- 
 debt, of which the receipts were evidence. 
 
 Contracts with Company. — Where an act of parliament, establishing 
 a railway, gas company, or other public body, enacts, that no person con- 
 cerned, or interested, in any contract with the company, or public body, 
 shall be capable of being chosen a director of the company or public 
 body, and that if any director shall be directly or indirectly concerned 
 in any contract, &c, he shall thereupon be immediately, &c, discharged 
 from the direction : this does not affect directors who are members of a 
 r*„9T banking copartnership, *being the bankers and treasurers of the 
 L "J company, or public body.(«) In such cases the contract meant, 
 is a contract with the company, or public body, in the execution of its 
 enterprize. 
 
 Buying out Shareholders. — In equity, and at law equally, it is said, 
 that there is nothing in the act of parliament to prevent the company 
 from buying out a member; and where a transfer of shares is made by a 
 member to the company, the latter may, as between themselves and the 
 shareholder, and other parties (if any) to the transfer, dispense with the 
 machinery which is prescribed by the statute for transfers in general, 
 and that the company, in such case, will not be allowed afterwards as 
 between themselves and the partner, with whom they contracted, to im- 
 peach the tran-.-n -tioii.c 'a ) there being nothing in the deed, expressly or 
 constructively, forbidding it ; and the practice having been for the com- 
 pany, or the directors on their behalf, to deal in this way with the shares, 
 it having been done openly, never condemned by any general meeting, 
 and in one case directly authorized by such a meeting; Sir K. Sugden, 
 in deciding a case of this kind in Ireland, referred to it as (t a rule always 
 acted upon," in common partnerships, that although articles, which had 
 been agreed on to regulate partnership, could not be altered without the 
 consent of aU the partners, if alterations were made by some of the part- 
 ners, and acquiesced in by all, that was an adoption of the new terms.(y) 
 r *--iq-i J Jut though there is nothing to prevent the buying out of *a 
 L 'J dngle member, in the act of parliament, it may frequently be in- 
 consistent with the tenn- of th< deed of Si ttlt m< nt to do so ; at all events 
 to allow a dissentient IhhIi/ of shareholders to retire upon a pecuniary 
 
 (i) Pearce 7. Creswick, 2 Bare, 286. Bo if the company had obtained the re- 
 
 i then refused to pay, Bee 2 W.in-. 289, a., 290, a., 297. 
 (u) Sheffield, 4c, Railway Company v. Woodcock, 7 M. & W. 574. 
 
 Taylor t. Hughes, 2 Jo. .v L. 21. The Bame al law, Cheltenham Railway 
 Company v. Daniel, 2 Railw. Cas. 728 ■ and lee per Ld. St. Leonards, C, 22 L. J., 
 Chanc. 203. 
 
 Per Sugden, <'.. Ir.. 2 Jo. & L. 53 : Const 7. Earris, Turn, k R. 517 ; sec Ex 
 ! kG. 236] Bargate v. Shortridge, 5 H. Lds. 297.
 
 COPARTNERSHIPS, ETC. 363 
 
 consideration, &c, has been held (as we shall see) to be ultra vires of 
 the directors, in certain circumstances ; and all propositions of this nature 
 ought to be looked at, with reference to the terms of the deed, in order 
 to see whether they permit of the application of the company's funds to 
 purposes of this nature. 
 
 The deed ought to contain strong and carefully-expressed clauses, for- 
 bidding such proceedings altogether. 
 
 General Meetings. — It has been repeatedly pointed out to be in general 
 beyond the powers of a general meeting of shareholders, to alter the ob- 
 jects of the copartnership ; to divert its funds to objects other than those 
 contemplated in its deed of constitution ; in short, it is beyond their com- 
 petence to do anything that is to be valid and binding on the company, 
 if it is not within the common contract which unites the partnership ; 
 but the same strictness does not appear to be applicable to matters nojfc in 
 themselves of an essential character; even where the deed by its terms 
 seems expressly to exclude alteration ; thus, where a deed ordained that 
 the directors should never consist of more or fewer than sixteen, but also 
 gave power to a special general meeting, " called for the purpose, from 
 time to time, to amend, alter, or annul, either wholly or in part, all or 
 any of the clauses of the said deed, or of the existing regulations and 
 provisions of the company, and to make any new or other regulations, 
 &c, such regulations, alterations, or annulment, if confirmed by a subse- 
 quent special general meeting, &c, to be binding and conclusive upon 
 the proprietors:" and at a special general meeting the number of direc- 
 tors was reduced from sixteen to seven, and this resolution was duly con- 
 firmed by a subsequent special general meeting. This change, pg-^-i 
 it *was held, the powers of a special general meeting, by the L J 
 constitution of the company, enabled them to effect, (z) 
 
 Resolutions, ex. gra., for altering the shares and capital of a company, 
 may be illegal, and yet not have the effect of dissolving the company. (a) 
 Manager. — A manager may carry on a separate business, as a merchant 
 or otherwise, by permission of the company ; so doing, he is not entitled 
 to give himself the same accommodation, in respect of his separate trade, 
 which he might obtain from an independent bank. It would be neces- 
 sary for him, in order to support such a proceeding, to show that he had 
 brought the whole transaction, in all its parts, most fully before the direc- 
 tors ; it would not be enough to show merely that he had not concealed 
 any thing j such a proceeding, if the whole had been brought before the 
 directors, and had been assented to by them, might be permitted to 
 stand, but only in that caso.(&) 
 
 The manager of a banking copartnership then has no right to give 
 himself accommodation out of the funds of the bank, without the consent 
 of the directors, given with a full knowledge of all the circumstances. 
 This, however, though it will prevent the company from repudiating the 
 
 (2) Smith v. Goldsworthy, 4 Q. B. 430: see per Coleridge, J., 16 Q. B. 295 ; 
 296. 
 
 la) 4 Q. B. 431. _ _, 
 
 \b) Gwatkin v. Campbell, 1 Jur. (N. S.) Chanc. 131 ; compare Reg. v. Evans, 
 
 supra, p. 269.
 
 G B a S I H 1 II E L A \v Of ii a X K I N G. 
 
 transaction, will in many oases, as of course, fail to save then from 
 loss. 
 
 Thus, where A. was a manager of a branch bank, and also executor 
 of a testatrix, who had lent 1,5002. on the security of a certain ship. A. 
 afterwards shifted the security from this ship to another ship, and further, 
 iu his character of executor, borrowed a sum of money, 1,6002., from 
 r*-i-T * tue bank, and also lenl it to the owner of the latter ship, and 
 L J took a mortgage of thai ship, for the 1,5002. lent by the testa- 
 trix, and also for 1,6002., which he had lent as executor. Then, as secu- 
 rity tor the money lent to him by the bank, he, several months alter the 
 advance by the bank, assigned to them this mortgage, and the mortgage 
 debts. The last-mentioned ship was sold tor 1,1502., ami, in a suit by 
 the residuary legatees of the testatrix against A. and the bank for the 
 recovery of this sum, the executor, it was held, had no right to pledge 
 the assets; but as the executor was also agent of the bank, the bank 
 must be considered as having notice of his inability to pledge the assets, 
 and could stand in no better position than he did, but the legatees were 
 entitled, iu preference to the bank, to the l,1502.,(c) and the bank having, 
 iu fact, already received this 1,150/., were charged with interest on it at 
 4/. per cent., during the period, since they had received it, to the day of 
 the final decree. 
 
 The manager of a banking copartnership, which stopped payment in 
 January, l^lti, indorsed a bill of exchange dated London, May 14, 1846, 
 in this way — 
 
 " l'< r proc. Newcastle-upon-Tyne Joint Stock Banking Company, 
 II. Bleckley, Manager." 
 
 The plaintiff proved that he was holder of the bill for value, having 
 ed it from the drawer, who had drawn the bill, it was suggested 
 for his own accommodation, and had indorsed it to Bleckley, who had 
 indorsed it aa above, then redelivered it to the drawer. The action was 
 against the public officer of the above named company. It was con- 
 tended that tin' manager's authority to indorse, &c., was at an end on 
 the stoppage of the bank, but the court dealt with the case as if the bank 
 had cot suspended payment. Other bills were produced, indorsed in the 
 Same way, one before, and the other after the bank stopped, upon which 
 r+ -, .-, aetimis had also been brought, and which had been paid by 
 
 L ol '-J the bank. 
 
 The court considered the evidence u> show that every bill that was 
 ■ led nr indorsed by Bleckley, the manager, was accepted or Indorsed 
 in tin: above manner by procuration ; tin' legal effect of which is, an ex- 
 intimation to every one, that the acceptance or indorsement was done 
 under a special nr limited authority, binding every one, therefore, to as- 
 certain before they took the bill, that the indorsement was agreeable to the 
 authority given, according to a well-known rule respecting all Buoh accept- 
 ances or indorsements. A party taking such a bill, therefore, without 
 inquiry, if it turns nut that the party indorsing exceeded his authority, 
 be must Buffer for his temerity; ami the jury found that the manager 
 
 Lister, :l'< L. .1.. Ghana 38 ; 8. <".. '-'" Bcav. 366. As to man 
 for percentage or i ommission against the company, Law v. Thompson. 15 M. 
 
 A w.
 
 COPARTNERSHIPS, ETC. 305 
 
 had not authority to indorse in this case ; the bank had a verdict, which 
 was upheld by the court. (fZ) 
 
 A promissory note, to secure an account at the branch bank at Bir- 
 mingham, of the banking copartnership, called the National Provincial 
 Bank of England, was given in this form : — 
 
 "£1,000. "Birmingham, Mm-ch 24, 1836. 
 
 " Three months after date we promise to pay to the manager of the 
 National Provincial Bank of England the sum of one thousand pounds. 
 
 "A. B. 
 "C. B. 
 "E. F." 
 At this time the National Provincial Bank of England carried on busi- 
 ness, as well in other places as in Birmingham, by means of branch 
 banks, but having a general board of management at London, under a 
 board of directors, at which Bobertson was manager. Elrich was the 
 local manager at Birmingham. 
 
 *In an action against A. B. and C. D. on this note by Robert- pg^-i 
 son, who declared, as manager of the National Provincial Bank L ' J 
 of England, not styling himself public officer, it was objected, that the 
 action should be brought by the bank, suing by their public officer ; but 
 it was ruled by the learned judge, that the facts stated were distinct 
 evidence to go to the jury, that the plaintiff was the manager intended 
 in the note, and that it was not open to the defendants to contend that 
 the bank ought to. have sued by its public officer, and the judgment was 
 against the defendant. (e) 
 
 An instrument, in the form of a bill of exchange, drawn by the 
 manager of a branch bank, by order of the directors, on the head office, 
 but expressed in the body of it thus, " pay without acceptance/' may be 
 declared upon, as a promissory note, and any of the directors may be 
 sued as maker by the indorsee. (/) 
 
 On an indictment for forging a bill of eschange, the instrument, as 
 set out, was in this form : — 
 
 "Flintshire District Banking Company, 
 « Flint, 29th Sept., 1837. 
 « Twenty-one days after date, pay (without acceptance) to the order of 
 Mr. James Henderson, £70. 
 
 "For value received for the company, 
 
 " J WATKINS, Manager. 
 " To the London and Westminster Bank." 
 And it was considered, at Nisi -Prius, to be properly described as a bill 
 of exchange. (#) 
 
 The public officer is not necessarily manager of the affairs of the co- 
 partnership ;(h) one person, however, may discharge both duties; whether 
 
 (d) Alexander v. Mackenzie, 6 C. B. 766; per proc. usually implies authoriza- 
 tion by power of attorney. 
 
 (e) Robertson v. Sheward, 1 M. & Gra. 511. 
 (/) Miller v. Thomson, 3 M. & Gra. 576. 
 (g) Reg. v. Kinnear, 2 Moo. & R. 117. 
 
 (A) 6 C. B. 766; see 1 M. & Gra. 511.
 
 366 GRANT ON THE LAW OF BANKING. 
 
 in anv given case that is so or not, must depend in general, upon tlie 
 terms of the deed of settlement, which also is the source to ascertain 
 
 r*"iQH whether *any act is within the authority or not, of the manager, 
 L ""-I or public officer. What i^ the authority and the extent of it. is 
 a question of fact, and the answer is to he sought for in the deed of set- 
 tlement, in the first instance; if that is silent on the subject, then 
 evidence of what acts are usually performed by managers, or what acts 
 the manager of the particular company lias been used to perform, as the 
 case may be, mnst be resorted to. 
 
 It will probably be most convenient to define in the deed of settlement, 
 as carefully and fully as possible, what are the duties and powers with 
 which the shareholders entrust the manager, especially as regards exter- 
 nal acts, such as the extent to which, and the form in which, the manager 
 shall be empowered to bind the company by accepting or indorsing bills, 
 taking up loans, &c. 
 
 Generally, with respect to the character and liabilities of the situation 
 or office of manager of a banking copartnership, it is obvious that the 
 situation of manager is one of high trust, but the trust becomes still 
 greater, and the responsibility much enhanced, in case of a local manager 
 of a branch establishment of the bank. For many purposes he is looked 
 upon by the law, and is treated as if he were the whole body, whom he 
 has power to bind even by his tortious act, although he may not be a 
 partner. 
 
 Fur instance, if a local manager of a branch bank gets into his hands 
 the money of a customer of the bank, by inducing the customer to con- 
 sider that he is acting in the transaction as agent of the bank, and is 
 invested with authority to effect the purposes for which the customer 
 confides the money to him, and then appropriates the money to his own 
 purposes, the customer's loss will fall upon the copartnership. To hold 
 the bank not to be liable in such case, would be, it has been Baid. to 
 hand over the public to the mercy of the clerks employed by these banks. 
 The principle seems to be, that the manager is a servant, whom the 
 bank, for the purposes of their trade, virtually accredit and hold 
 L J out to the world as invested by them with genera] authority to 
 act for them in the affairs of the branch bank; and the public have no 
 power or means to discriminate what is, and what is nut, in any parti- 
 cular case, within the legitimate scope of the agent's powers, or in 
 accordance with the directions of his masters; and, therefore, when a 
 customer, 'in a matter belonging to his relations with the branch bank, 
 confides in the servant, he, in fact, trusts the masters, and they are 
 liable accordingly for the fraud of the servant whom they have chosen. (t) 
 
 That the manager of a branch bank musl necessarily have a larger 
 authority than usually attache- to agents, is aj. parent from this: an 
 agent, in general, has no authority implied by law, and, independent!] 
 of his particular instructions, to borrow money for the service of his 
 principals in the business he conducts for them; to obtain deposits, that 
 
 (■') Thompson v. Bell, 10 Bxch. 11 ; sec Pickering v. Bosk, 15 Bast, 53. The 
 _,r i- not the agent of the shareholders to commit a fraud, see Bernard's 
 
 : and see 3 Ue G. k 8. 90,
 
 COPARTNERSHIPS, ETC. 3G7 
 
 is, to obtain loans of money for his employers, is one principal part of 
 the business of a manager of a branch bank; his power, in this'respect 
 is unlimited; and thus he makes them responsible for every shilling 
 which he receives from a customer of the bank. 
 
 So, if he advances money on loan, the loss, if any, must fall on the 
 shareholders of the bank : thus, in a case where the manager of a branch 
 bank had advanced money to the agent of a mining concern, to pay the 
 wages of the labourers in the mine, which were in arrear, and for which 
 they had obtained warrants of distress upon the materials, &c, in the 
 mine, the copartnership of the bank were unable to recover the amount 
 of the advances, by action, against a shareholder in the mine, on the 
 ground that an agent, in general, has no implied authority to borrow 
 money for the service of his employers, and there was no evidence of any 
 special authority having been given by the shareholders, although the 
 money *had been duly applied, in payment of the wages due r* 5 9Q-j 
 from the shareholders to the labourers. (/c) 
 
 In respect of any contract, into which the manager might enter, on 
 behalf of the branch bank, provided it fell within the usual course^ of 
 banking business, although, under the deed of settlement, or otherwise, 
 the manager might be restricted from entering into contracts of that 
 particular class, there being no proof that the party, with whom the con- 
 tract was entered into, was cognizant of the restriction, the copartnership 
 would be liable.(Z) Then, as to the course of banking business, there is 
 no doubt, that the nature of the business of bankers is part of the law 
 merchant, and is to be judicially noticed by the courts. (m) 
 
 Branch Banks. — A branch bank is considered, for some purposes, as 
 a distinct establishment, from every other branch of the concern. Thus, 
 where a bill of exchange was indorsed to a Branch Bank of the " National 
 Provincial Bank of England," established at A., who sent it to another 
 branch, established at B., who indorsed it to the head establishment, in 
 London, it was held, in an action upon the bill, by the indorsee against 
 the drawer, that each of the branch banks were to be considered as 
 independent indorsees, and each entitled to the usual notice of dis- 
 honour.^) 
 
 Bankruptcy. — In addition to what has been stated above, on the sub- 
 ject of bankruptcy, it seems proper to add some observations here. 
 
 That bankers, as such, are liable to the bankrupt laws, has already 
 been stated ; it has also been pointed out, that a *person, attempt- r*5 2 ;n 
 ing to make himself liable to those laws by the purchase of shares L 
 in & a banking copartnership, will not be allowed to obtain the advantages 
 that he proposed to himself; on the other hand, a man cannot escape 
 from the effect of the bankrupt laws, as to the whole of his property, by 
 showing that his only trading property is comprised in shares in a bank- 
 
 (k) Hawtayne v. Bourne, 7M.&W. 595. 
 
 (I) Hawken v. Bourne, 8 M. & W. 709; see Ex parte Chippendale, 4 De (*., M. & 
 
 G 19 
 \m) Per Ld. Campbell, 6 Moo. P. C. 173, referring to Brandao v. Barnett, 12 
 
 Cla. &F. 787. ... ... 
 
 (n) Clode v. Bayley, 12 M. & W. 51 ; and see further supra, pp. 415, 416. 
 
 March, 1857.-25
 
 GRANT ON THE LAW OF BANKING. 
 
 Partnership. An act of bankruptcy may be committed by a person, 
 
 whose sole trading property consists of two shares in a bank, (worth Lea 
 than '20/. each,) conveying all his other property to a creditor, to secure 
 a debt, although the two shares were not conveyed, and although the 
 conveyance did not operate to stop the trading as a banker.(o) 
 
 It seems material to notice this decision, because various cases are to 
 be found. (/») from which the law would appear to have been laid down, 
 without qualification, that, in order to render an assignment of a trader's 
 effects an act of bankruptcy, it must be shown, that the party assigned 
 all, or so nearly all, of his effects, as to put it out of his power to carry 
 on the trade, and, ex converso, deeds of assignment have been held not 
 to be acts of bankruptcy, because they did not convey all the trader's 
 property, (q) 
 
 But the deed, in the above case, was held to be an act of bankruptcy, 
 because its necessary consequence was to delay creditors, — the person in 
 question had many private creditors, — and, as every one must be taken 
 to intend the necessary consequences of his own acts, the deed of assign- 
 ment was considered to have been made with that intent, and, therefore, 
 to be an act of bankruptcy under the 67th section of the Bankrupt Act, 
 which makes acts done with intent to delay creditors — not saying trade 
 [-*-■> ■>-] creditors — acts of bankruptcy. *The smallness of the property, 
 L J in respect of which the party is a trader, makes no difference, 
 for there cannot be one rule of law, when a man is a trader to a trifling 
 amount, and another where his trade dealings are large. 
 
 Six persons are copartners in a bank ; two of them carry on a separate 
 business as ironmongers; on a commission of bankruptcy issuing against 
 the partners in the banking house, it appeared that a sum of 8,2222. was 
 due from the bank to the ironmongers' firm, in respect of moneys pro- 
 cured for the benefit of the bank, on the credit of the indorsement, by 
 the ironmongers' firm, of bills drawn by the banking firm, which, upon 
 the credit of such indorsement, had been discounted by the Bank of 
 England. 
 
 Now, the rule is, that a partner in a firm, against which a commission 
 of bankruptcy issues, shall not prove in competition with the creditors of 
 the firm, who are, in fact, his own creditors, shall not take part of the 
 fund, to the prejudice of those who are not only creditors of the part- 
 nership, but of himself.M 
 
 To that rule there is an exception, manifestly founded in justice, and 
 that is, where a partner becomes a creditor, in respect of the fraudulent 
 conversion of his separate estate, to the use of the partnership. (r\ 
 
 Another relaxation of the rule has been admitted, that where there is 
 a demand, arising from a dealing by the partnership in a distinct trade, 
 
 (o) Smith v. Cannan, 22 L. J., Q. B. 290 ; S. C, 2 E. & B. 35; see 12 & 13 Vict. 
 
 S. 67. 
 (/>) See 22 L. J., Q. B. 291. 
 
 Bxch. 221 ; S. C, 22 L. J., Exch. 27; Leake v. Young, 25 L.J., Q. B. 266; 
 Ex parte Taylor. 6 De G., M. fc <;. 392 ; see 17 Jur. 47G. 
 (r) Bs parte Billitoe, 1 Gly. k J. 382, cor. Ld. Eldon, C.
 
 COPARTNERSHIPS, ETC. 3G ( J 
 
 proof might be admitted. (s) But, iu the above case, there having beeu 
 no dealing by the ironmongers with the bankers, in the way of the trade 
 of the former, no iron goods furnished, but the only dealing being, in 
 fact, advances of money by them to retire the bills of the bank with, 
 Lord Eldon held, that the proof, in respect of the above debt, was 
 inadmissible, (s) 
 
 *But when the advances are made by the banking firm, in the p^oq-i 
 way of its trade of banking, and in the course of legitimate deal- L " J 
 ings, then the debt may be proved. 
 
 Thus, A., B., C, J)., and E., constitute a firm of bankers, at York ; 
 A., B., C, and D., constitute another firm of bankers, at Wakefield ; 
 and the latter firm becomes indebted to the former, in the way of trade 
 dealings, in a sum of money; on the bankruptcy of the former, that sum 
 may be proved as a debt on behalf of the creditors of the York Bank, as 
 against the estate and effects of the Wakefield Bank, the two firms and 
 trades being distinct. (<) 
 
 It would have been the same, if a banking firm, consisting of several, 
 had claimed to prove against any other trading firm, constituted by two, 
 or more, of their own partners in respect of advances made by them, the 
 bankers, in the way of their trade, to the lesser firai.(w) 
 
 But, it seems, this would not be so, if the other firm consisted only of 
 one person, a partner in the banking firm, because the creditors of the 
 joint firm are his creditors, and he would, if his debt were allowed to be 
 proved against the banking firm, be taking from his own creditors what 
 ought first to be applied in payment of their debts ; but, where two, or 
 more partners carry on the other business, the creditors of the larger firm 
 are not the creditors of the smaller firm, and the reason does not apply.(x) 
 
 Bankruptcy and Winding up. — With respect of bankruptcy, &c, of 
 the company, it is expressly declared and enacted, (y) that every com- 
 pany, of more than six persons, *carrying on the trade, or busi- r*524"l 
 ness, of bankers, in England, shall be deemed a trading com- L *" J 
 pany, within 7 & 8 Vict. c. Ill, intituled, " An Act for facilitating the 
 Winding up of the Affairs of Joint Stock Companies, unable to meet 
 their Pecuniary Engagements ;" and the new Joint Stock Companies 
 Regulation Act, which contains new provisions for winding up, does not 
 apply to banks ; 19 & 20 Vict. c. 47, s. 2. 
 
 The statute, first referred to, provides, among other things, that com- 
 panies may be made bankrupt, the bankruptcy of the company not being 
 construed to be the bankruptcy of any member, in his individual 
 capacity; it declares what acts of the company shall be acts of bank- 
 ruptcy ; enables the assignees of the estate of a company to maintain 
 
 (s) Id. 383, 384. Except in the case of bankers, one firm is not allowed to prove 
 against another firm, carrying on a distinct trade, but consisting in whole or in pa it 
 of the same persons, where the debt arises only from money advanced by one to the 
 other. Colly. Partnersh. 676, 2nd edit. 
 
 (t) Ex parte Castell, 2 Gly. & J. 124. 
 
 (») Ex parte Brenchley, 2 Gly. & J. 127; S. C, 5 L. J., Chanc. 73; Ex parte 
 Stroud, id. 
 
 (x) See per Leach, V. C, 2 Gly. & J. 126, 127. 
 
 (y) 7 & 8 Vict. c. 113, s. 48 ; see infra, cap. xvi.
 
 370 GRANT OX THE LAW OF BANKING. 
 
 actions to recover debts, or demands, on behalf of the company, and 
 enables any persons, including members, to prove or claim under the fiat 
 against the company; provides, that a member's shares shall not b< 
 off against demands by the ast with other provisions, assimilating 
 
 the condition of a bankrupt company to that of an individual. 
 
 Therefore, a fiat in bankruptcy may be had recourse to against all 
 banking copartnerships, established under 7 Geo. IV. c. 46, for none 
 can be established under that act that do not exceed six persons in the 
 number of the partners. 
 
 With respect to winding up the affairs of a banking copartnership, of 
 this nature, under the "Winding-up Acts,(z) the case is the same, in 
 effect ; for these apply to partnerships, associations, and companies, 
 whereof the partners, or associates, are not less than seven. (a) 
 
 Therefore, all banking copartnerships, established under 7 Geo. IV. 
 c. 46, are, also, liable to be wound up under those statutes. 
 p.. ..,--. But these copartnerships, under 7 Geo. IV. c. 46, are *ex- 
 L ~ J pressly exempted from the operation of the act of 1844, for the 
 Registration, Ac., of Joint Stock Companies. Oj) 
 
 Notice. — The operation of the acts of parliament, relating to copart- 
 nerships, established under 7 Geo. IV. c. 46, is such as to render them 
 quasi corporations to this extent, that notice to one of the members, or 
 even to one of the directors, provided he has, by the constitution of the 
 company, no share, or control, in the management of the accounts of the 
 company, is not notice to the company. M 
 
 Directors. — In inquiring as to the authority, powers, and liabilities of 
 directors of a banking copartnership, in the first place, it will be proper 
 to premise, that, in construing a deed of settlement of one of these co- 
 partnerships, the court will, while collecting the extent of the authority 
 intended to be conferred, on the directors, construe it with reference to 
 the nature of the business, which was to be transacted, and the purposes 
 which it contemplated, in order to judge what powers and authorities the 
 law would imply from the nature of the office, and how far those powers 
 and authorities are enlarged, or restricted, by any of the provisions of 
 the instrument. (d\ 
 
 In a case, wherein the deed of settlement expressly invested the di- 
 rectors with full power and authority to superintend, order, conduct, 
 regulate, and manage all and singular the affairs and business of the Baid 
 company, to the best of their discretion and judgment, and provided that 
 the board of directors should, and lawfully might, from time to time, 
 piceno-i devise and make such provisions, rules, orders, and *regulatdone, 
 L J touching the government, carrying on, and management of the 
 affairs of the said company, the same not being repugnant to the general 
 rules and regulations, in the deed contained, as they Bhould think ezpe- 
 
 (z) 11 & 12 Vict. c. 45, amended by 12 k 13 Vict. c. 108. 
 («) 12 & i:: Vict. c. L08, B. 1. 
 
 x 8 Vict. c. L10 
 (r) l'owles v. Page, 3 0. B. 26 : a •■ Willis v. Bank of England, 4 A. & E. 21. 
 (•/i Bank of Australasia v. Breillat, 6 M'»>. P. C. 190. Further, as to powers of 
 directors and construction of deed of settlement, ■• < Forbes v. Marshall, ll Excb. 
 Pass book when not evidence ofperson being director, 16 0. B. 671.
 
 COPARTNERSHIPS, ETC. 371 
 
 client ; and the deed also provided, that the concern should continue for 
 100 years : it was held, that the directors Lad the powers of managing 
 partners, in an ordinary banking partnership, amongst which, is the 
 power of borrowing money, for the purpose of discharging the existing 
 liabilities of the bank, till the assets can be realized ; and of discontinu- 
 ing the bank, if they think such a step essential to the interests of the 
 shareholders ; and that their having raised a loan, which they had under- 
 taken to repay, and accompanied the engagement with other stipulations, 
 some of which were ultra vires, did not discharge the bank; the only 
 effect being, that such stipulations could not be enforced. (e) 
 
 But it seems hardly necessary to point out, that directors of a banking 
 copartnership, whether with or without the consent of the majority of 
 the shareholders, have no authority to convert their banking company 
 into a company for different purposes ; and that money borrowed for the 
 purpose of effecting that transmutation, with notice on the part of the 
 lender, will not form a debt of the company, for the recovery of which it 
 can be sued.(/) 
 
 Nevertheless, directors may, undoubtedly, at their discretion, either 
 discontinue altogether the business of the concern, or restrict the busi- 
 ness to certain portions of that which it was originally intended the bank 
 should employ its funds, &c, in, if the directors think such steps essential 
 to the interests of the shareholders. Such a power seems necessarily 
 implied in the exclusive power of management ; in the power of deter- 
 mining what transactions should be entered into, *what notes r*527"| 
 issued, what deposits received, what bills discounted, or loans L w J 
 made. 
 
 The other hypothesis involves this difficulty, that, if the business can 
 only be discontinued by a vote of the majority of the shareholders, then, 
 unless a majority can be brought together, in person, or by their attor- 
 neys, the business, in the above instance, must have continued for 100 
 years, — it being a stipulation of the deed of settlement, and, indeed, the 
 principal object of it, that such should be the duration of the banking 
 establishment, — and never, during that period, could have been con- 
 cluded, except by bankruptcy or insolvency. 
 
 But it, by no means, is incumbent on creditors, in such a case, to have 
 recourse to a fiat in bankruptcy ; they have a right to recover their debts 
 from each individual shareholder, so that, in the above case, the bank 
 must go on until each individual shareholder was ruined. 
 This, therefore, is an inadmissible supposition. (</) 
 But, though the directors may restrict, it does not seem that, even 
 with the sanction of a majority of the members, they have the same 
 power to extend, the business; ex. gra., if the copartnership were con- 
 stituted to do banking in England, they could not extend the business 
 to India or the colonies'. (7t) 
 
 (e) Bank of Australasia v. Breillat, 6 Moo. P. C. 152, 193. 
 
 (f) 6 Moo P. C. 197. There are strong authorities that "to a bill praying a 
 dissolution of a partnership, all the partners must be parties." Per Ld. Cotten- 
 Siam, C, Walworth v. Holt, 4 My. & C. 635. 
 
 (J) 6 Moo. P. C. 198. (h) See 10 Hare, 54, 55, 61 j 1 Colly. 3(9.
 
 GRANT ON THE LAW OF BANKING. 
 
 Tin- Following ease, in some degree, illustrates the question of what is 
 business within the scope of these copartnerships. 
 
 The deed of settlement of a banking copartnership provided that the 
 directors should not be fewer than five, nor more than seven; that three, 
 >>r more, should constitute a board, and be competent to transact all ordi- 
 nary business} that the directors should have power to compound for 
 any debt owing to the company, and accede to and execute any deed of 
 ,«-. composition, or conveyance, or assignment of his *estate or 
 L J effects, made by any debtor of the company, whether a share- 
 holder or not, for the benefit of his creditors, and to give time to any 
 debtor for the payment of his debt, either upon security, or without; 
 and to abandon any debt which might seem bad or desperate. 
 
 A. had bought, of the bank, a colliery, of which they were mortgagees, 
 for a sum, part of which he had paid in cash, and for the balance had 
 accepted bills which had been renewed, and of which some were in cir- 
 culation, and others overdue, in the hands of persons with whom they 
 had been negotiated by the company. He was also largely indebted to 
 the company on the balance of his account current. Afterwards the 
 number of directors having become reduced to four, these four executed 
 a deed, compounding the debt on the account current, and for the re- 
 mainder of the purchase-money, on payment of 1,000/. by A., and his 
 agreeing to abandon the colliery to the bank; the directors also cove- 
 nanted "on behalf of the company, so far as they could lawfully bind the 
 said company, but not further, or otherwise," to indemnify A. against 
 all snob bills of exchange as had passed through the company's hands. 
 
 A. brought an action of covenant for not indemnifying him, when it 
 was held that the covenant did not bind the copartnership ; for that this 
 was not ordinary business ,' and no smaller number than five directors 
 were competent to transact it; and it was made a question whether a 
 board of three directors could transact even ordinary business, unless it 
 board of three out of five directors. (/) 
 
 Appropriation of Shares. — Directors ought to be aware of the follow- 
 ing principle. 
 
 A transaction entered into by them, as, for instance, the appropriation 
 to themselves of shares, may be incapable of being sustained, with regard 
 to the provisions of the deed of settlement, or the principles of equity 
 r*o 9 91 K ov,ni ' n - tne Administration of trusts, as a transaction binding 
 L J on the company, unless brought before the shareholders, and con- 
 tinued by them; yet, nevertheless, the directors, by that transaction, 
 although not confirmed, Ac., may be bound, as between themselves and 
 the company, notwithstanding the irregular nature of it. 
 
 Thus, A., a director in a banking copartnership, had regularly, before 
 1 3 1". become owner of twenty share-, which number of shares each di- 
 rector was, by the deed of settlement, obliged to hold, as a qualification 
 for the office. The deed of settlement provided, that the shares of the 
 company should he vested in the court of directors, who should have full 
 power to allot, appropriate, reserve for, or dispose of the same, to such 
 
 (i) Kirk v. Bell, 1G Q. B. 290.
 
 COPARTNERSHIPS, ETC. 373 
 
 parties, and upon such terms, and in such manner, as they might think 
 fit : it was also provided, that the executor of any proprietor should not, 
 as such, be a proprietor in respect of such shares, but he should be at 
 liberty to dispose of them ; or the company might, upon an executor giv- 
 ing notice, and complying with the provisions of the deed, permit him 
 to become the proprietor, and personally chargeable. 
 
 The directors, 7th August, 1840, resolved, without the privity of the 
 shareholders, to appropriate to themselves a certain amount of additional 
 shares — or, as they called them, " credit shares" — which they were 
 severally to pay for, by giving, respectively, their promissory notes, 
 payable to the trustees of the bank, for the amount for which each sub- 
 scribed. 
 
 A. agreed to take (and he gave a promissory note in payment for) one 
 hundred of these shares ; he also signed a letter, binding himself to pay 
 the deposit and calls on them, but did not execute the deed of settlement 
 in respect of them. He died in 1848, eight years after the making of 
 the promissory note, never having paid any interest on, or any part of 
 the principal of, the promissory note ; in the books of the company, how- 
 ever, credit was given to him in *respect of dividends on the i-*--™-! 
 "credit shares," and he was charged with interest on the promis- L ' J 
 sory note. 
 
 His executor was held to be rightly placed on the list of contributo- 
 ries, not only in respect of the twenty shares, but also in respect of the 
 one hundred "credit shares," although the creation of the "credit 
 shares" was not warranted by the deed, nor were they, in fact, ever 
 issued or allotted. 
 
 The directors, it was said, " clearly were not entitled to allot to them- 
 selves a very large proportion of the capital of the company without 
 bringing in a single shilling in aid of that capital, only giving promissory 
 notes, payable at some distant period, debiting themselves with interest, 
 as it became payable on their several notes, and taking credit for the di- 
 vidends, to which they would properly have been entitled, if they had 
 actually made the payments. "(&) 
 
 The whole transaction, it is to be observed, remained on paper only, 
 while it was represented as a real transaction ; for the directors publicly 
 stated their liability to pay up a capital, equal to 10^. a share, upon as 
 many "credit shares" as they had respectively appropriated to them- 
 selves. Such a transaction could obviously never be maintained in a 
 court of justice, for the effect of it would be, that the directors would be 
 at liberty, if the speculation flourished, to insist upon it as a real trans- 
 action ; if it failed, to throw up the shares, on the plea that they had 
 entered into dealings which were not authorized or sanctioned by their 
 deed of settlement. 
 
 Hence they were held to be themselves bound by the transaction, 
 although they were not entitled to enforce it against the general body of 
 the shareholders, and, consequently, the executor was liable as a contri- 
 butory. 
 
 (k) In re Royal Bank of Australia, (Robinson's Executors' case,) 2 De G., M. & 
 G. 517, 520.
 
 .•,71 (J RANT ON THE LAW OF BANK INC. 
 
 In a case which arose under the Bame deed of settlement, a director 
 gularly owner of twenty shares; he, subsequently, in pursuance of 
 
 . , the resolution of the court of *direotors, mentioned in the last 
 L J ease, took five hundred of the "credit shares," and gave his 
 
 issory note, payable in five years, for the amount; he also signed i 
 letter binding himself to pay the deposit and the calls, but did not exe- 
 i ate the deed of settlement in n spec! of the five hundred shares. Three, 
 months after this he died. Within one month from the death, his exe- 
 cutors applied to the directors to ascertain the extent of his interest in, 
 or liability to, the company. In answer, they were informed, on behalf 
 of the directors, that their testator held twenty shares. These were, 
 thereupon, duly transferred to a purchaser, and the directors afterwards 
 cancelled the five hundred shares, and the promissory note for the 
 amount. 
 
 Bight years after the death of the testator, it was held that the execu- 
 tors ought not to be placed upon the list of oontributories, under the 
 Winding-up Act, 1848, for, although his estate might have been bound, 
 if the claim had been promptly asserted, at the instance of the share- 
 holders, yet, that so long after the distribution of his assets, the loss 
 arising from the misrepresentation of the directors must fall upon them- 
 selves and the company, and not upon the estate. (/) 
 
 Notwithstanding what has been said with respect to the conduct of 
 the directors of the same company in the former case, it will not be su- 
 perfluous to add some observations, with a view to place the law of these 
 mi a clearer light. 
 
 The deed of settlement provided and required that the capital of the 
 company should be one million sterling, divided into 20,000 shai 
 ">!>/. each, and that the proprietor of each share should bring in and pay 
 to the company the full sum of 50/. in respect of such share, as aud 
 when called upon so to do, in manner thereinafter (i. e. in the deed of 
 settlement) provided. The court, therefore, gathered the intention of 
 p*-o 9 -i the parties to the deed to be "that*all the shares should be 
 L ■* actually bona fide subscribed for as upon money payments, no 
 doubt depending upon the periods when the directors should think it 
 right to make the call."(»i) 
 
 Another clause, (already set out in the last case,(»)) the court thought 
 might l><- considered, perhaps, as giving power to the directors "to ap- 
 propriate or reserve," not in terms, hut in substance, for tin out ht g and 
 their friend*, the whole of the shares; the words are, "to such parties, 
 and upon such terms as they shall think (it," which rather looks as if 
 tiny were to deal with third parties; but, whoever might take them, the 
 shares could only be taken, subject to a general liability to pay for them, 
 as a money transaction, although the payment was to be deferred, in the 
 shape of calls, till wanted, (m | 
 
 The whole amount of the "credit shares" taken by the directors formed 
 an enormous sum, in the aggregate, and a very large proportion of the 
 
 case, 2 De G., M. k G. 522, cor. Ld. St. Leonards, C. 
 (m) 2 De Q., M. k ('.. („) See supra, p. 529.
 
 COPARTNERSHIPS, ETC. 375 
 
 entire capital mentioned in the deed of settlement. The way in which 
 this measure was carried into execution was not by alloting any of these 
 "credit shares," for there was no trace of any allotment in the books of 
 the company, much less was there any evidence of the transfer of any 
 such shares. It was not, in point of fact, a real transaction, as regarded 
 as a purchase of shares. What the directors meant to do was to enter 
 into an engagement between themselves, that as money would be required 
 to sustain the concern, they would, in the proportions in which they had 
 subscribed, make the advances' upon what were called " credit shares," 
 but which were, in fact, credit sales. These shares were entered in the 
 books as 10/. shares ; there was, however, no creation of any such shares ; 
 but supposing them to have been actually existing, there was no evidence 
 before the court to show *that anyone of these directors was en- r^coo-i 
 titled to any specific credit shares, because none were ever issued, L J 
 and marked as required by the deed. Then, were these " credit shares" 
 ever treated by the directors themselves as real shares ? Up to the death 
 of the testator in this case, dividends were paid on the shares which had 
 been regularly 1 allotted, but no dividend was ever paid upon these 
 " credit shares •" none was claimed ; no calls were made ; no payment of 
 interest was ever made on the sums for which the directors had given 
 their promissory notes. The testator was, at . the time of his death, a 
 real holder, as director, of twenty shares, and those were regularly entered 
 in a separate account to his credit. The payments on those shares were 
 regularly given credit for ; he had received dividends upon them ; and 
 when the executors sold them there was a regular transfer of them, in 
 precisely the same way as any other shares would have been dealt with, 
 and transferred, by any individual shareholder. That showed a dealing 
 regularly with the shares which were created, but with respect to the 
 cancellation of the "credit shares," which were neither created nor 
 allotted, that was not a regular transaction, and it never was communi- 
 cated to the shareholders generally. 
 
 There was this difference between this case and the one above dis- 
 cussed, that in consequence of the testator's death, in January, 1842, he 
 did not appear to have been credited in the books of the company with 
 any dividends in respect of the "credit shares ;" and it was remarked, 
 as an extraordinary circumstance, by Lord St. Leonards, that, although 
 the testator, Mr. Meux, was a man of business, and had taken, and made 
 himself responsible for, five hundred " credit shares," yet there did not 
 appear to have been any entry, or trace of any item respecting these 
 shares, in any of his private books, which would have led any one, more 
 especially those with whom he was connected, to suppose that he had 
 entered into any such transaction. 
 
 The executors, from the replies that were made to their *in- pcg^-i 
 quiries by the secretary, on behalf of the directors, when, in con- *- J 
 sequence, they had sold and transferred the twenty shares, believed, and 
 had a right to believe, that they had no longer any liability or interest 
 in the concern. (p) Seven years after all this had taken place, the 
 
 ( P ) Per Ld. St. Leonards, C, 2 De G., M. & G. 533.
 
 376 Q R A NT ON THE LAW OF BAN KING. 
 
 attempt was made to place them <>n the li-t of oontributories, on the as- 
 sumption that the testator's estate remained liable for the amount of the 
 five hundred "credit -liar. -." 
 
 Now, with respect to the answer of the directors, before mentioned, 
 that the testator was holder of twenty shares, it was contended that the 
 directors were not agents of the company, or, as such, clothed with au- 
 thority, to make any misrepresentation) and that, therefore, any state- 
 ment by them, which was contrary either to fact or law, would not be a 
 statement obligatory on the general body or the shareholders. 
 
 That, however, the court held, not to be the nature of this case. Here 
 all the directors had, without the knowledge of their shareholders, 
 entered into an irregular transaction. As far as appeared there had, at 
 no time before the first application of the executors, been any representa- 
 tion made, by the directors, to the shareholders at large, that there had 
 been any paid-up capital realized, or realizable, from the shares so im- 
 properly taken by the directors. 
 
 It remained, at that time, a transaction simply resting upon the pro- 
 missory notes, and upon the agreement between the directors ; it never 
 was a concluded transaction ; no shares were ever issued and marked ; so 
 that there never were any of these shares which could be considered as 
 the particular shares that belonged to a particular director. Then the 
 directors, who entered into this incomplete transaction, cancel it, so far 
 as relates to the estate or interest of .Mr. Meux. Never having been 
 communicated to the shareholders, it was an improper transaction, but 
 up to the time of the cancellation no benefit had been derived from it, 
 and no damage had been sustained by reason of it. 
 
 pt.rq.--i *Under these circumstances the court could not conclude that 
 L -I the directors had not the power to rescind what had never been 
 a concluded transaction, nor been represented, to the shareholders at 
 large, as a transaction binding upon Mr. Meux.(y) 
 
 Had this claim been made, on behalf of the shareholders, upon his 
 estate, immediately after the occurrence of the transaction, the court 
 might have held that the executors could not be released; but, being 
 made upwards of seven years after they had been released, and the assets 
 distributed, it was impossible to enter into an inquiry of what had become 
 of those assets, and to trace them through the different persons who might 
 have enjoyed the benefit of the release of the executors. 
 
 Such an inquiry might, the court observed, bring ruin on many per- 
 sons; to say nothing of the endless Litigation which would inevitably 
 arise, in order to give to the general body of the shareholders of this 
 company, a benefit to which, in the opinion of the court, they Mere not 
 entitled. 
 
 u This is a case, (Lord St. Leonards went on to say,) do doubt, which 
 tries the doctrine of law and equity very Btrongly, because Mr. Mens 
 himself was an original wrong-doer, and this release of the executors, 
 (which the representations of the directors to them operated to effect,) is 
 to be obtained for the benefit of his assets. But it cannot be endured, 
 
 (q) 2 Dc G., M. & G. 533, 534.
 
 COPARTNERSHIPS, ETC. 877 
 
 that any body of shareholders shall be at liberty to say, that their direc- 
 tors are to make a representation, upon the faith of which parties are to 
 act, and distribute assets, and that the general body are not to be bound 
 by those representations. It would require, (it was said,) a very strong 
 case, to induce the court to release the general body from the effect of 
 representations of directors, though improperly made, but which led to 
 the distribution of assets. In answer to those seeking to recal the assets 
 so distributed, the court would be more disposed to hold, that the direc- 
 tors, *who had made the misrepresentations, should be personally r^g-j 
 liable to the general body, for any losses sustained by reason of L 
 such misrepresentation, than to visit, upon legatees, the consequences of 
 those misrepresentations."^) 
 
 The above cases have been dwelt upon in great detail ; but not, it is 
 conceived, at a length which will be found useless, for the judgments 
 seem to contain much to elucidate a variety of subjects of great impor- 
 tance, both to directors and shareholders, in banking companies ;-— the 
 effect of powers given to directors in deeds of settlement ; the liabilities 
 incurred by shareholders ; the extent of the powers and the liabilities 
 of directors ; the effect of representations made by directors to executors, 
 in reference to the testator's interest in their company, &c— -are treated 
 in such an explanatory manner, and placed in such clear lights, as to 
 justify, it is thought, the occupying more space with the discussion, than 
 might, at first sight, seem to be desirable. 
 
 By shareholders, or members of these companies, it ought never to be 
 forgotten, that the interests of the body of directors frequently clashes 
 with, and is not seldom directly opposed to, the interests of the general 
 body. 
 
 When, therefore, the shareholders execute deeds of settlement, con- 
 taining clauses similar to that above cited,(s) giving "full power to the 
 court "of directors to allot, appropriate, reserve for, or dispose of, the 
 shares, to such parties, and upon such terms, and in such manner as they 
 may think fit ;" the measure is one which the shareholders ought to be 
 fully impressed with the importance of, conferring, as it seems to do, so 
 vast a power upon the body of directors. But the power entrusted seems 
 to be much increased by a subsequent provision in the same deed, "that 
 the management of the company, and the business and concerns thereof, 
 and the regulation, investment, and application of the properties, funds, 
 securities, and money, for the time being, belonging *to the com- ^^537-1 
 pany, and the regulation and determination of the modes and L 
 terms of carrying on and transacting the business of the company, and 
 other matters and things whatsoever connected with, or relating to the 
 business and concerns of the company, shall be solely and exclusively 
 vested and reposed in the court of directors, except as herein excepted, 
 or otherwise provided ;"— and, still further, by another clause, "that the 
 court of directors may alter, vary, or transpose the properties, funds, se- 
 curities, or moneys of, or belonging to, the company, or any of them, or 
 any part thereof, as they should think fit, and may make and give such 
 
 (r) 2 De G., M. & G., 535. (*) See supra, p. 529.
 
 GRANT ON THE LAW OF BANKING. 
 
 orders in regard thereto, and also for the Bale or other disposition of the 
 Baid properties, funds, securities, or moneys, or any part thereof, ai to the 
 court of directors shall seem meet." 
 
 Now, more unqualified powers can hardly, perhaps, be conceived. 
 The directors, it will be observed, are not hampered in their dealings 
 with the "property, funds, securities, or moneys" of the company. 
 Even by the restriction, that they shall be disposed of in the way that 
 may seem best for the welfare and prosperity of the body, no reserve ap- 
 • to have been made of questions upon which the directors should 
 not be at liberty to act, without consulting a general meeting of the 
 shareholders; all is left wholly unguarded, unlimited confidence appears 
 to have been reposed. 
 
 Notwithstanding, however, that the deed conferred such large powers, 
 tin' court treated the conduct of the directors as a fraud upon the genera] 
 body of the shareholders ; for the directors were aware, that without the 
 aid of the fictitious capital represented by these "credit shares," there 
 was no other way, in which it was possible for the concern to have gone 
 on. 
 
 If, for instance, at the first meeting of the shareholders, the directors 
 had only represented the capital which was actually paid up, this com- 
 pany, it is clear, must have stopped at once, and that, in that case, the 
 P^rqo-i directors would have lost *all their power and fancied benefit; 
 L -I but, by misrepresenting the real, bona fide, state of the concern, 
 they led on the persons whose interests it was their duty to have pro- 
 tected, and a Court of Equity cannot allow any of the parties to such 
 misrepresentation to escape from that common calamity, of which they 
 themselves have been the authors.^) 
 
 Binding Shan holders. — The directors of the Royal Bank of Australia 
 issued promissory notes in this form : — 
 
 "The Royal Bank. 
 
 "We, directors of the Royal Bank of Australia, for ourselves, and the 
 other shareholders of the said company, jointly and severall}- promise to 
 pay for value received on account of the company." 
 
 This was signed thus : — 
 
 "A. B., Chairman, 
 
 "C. I). ) 
 
 „vi 7^ ' r Directors. 
 
 «JS. I., j 
 
 "Of Australia." 
 
 This attempt to bind the shareholders severally was held to be ultra 
 
 vires of tin' directors, and, consequently, in that respect void; neverthe- 
 
 assuming tint the parties signing tin' note were authorized to sign 
 
 promissory notes on behalf of tin' company, this note bound the company, 
 
 as it sufficiently showed an intention to do so.(u) 
 
 Jt is to he observed, that nothing here laid down conflicts with the 
 
 (t) Meux's case, 2 De G., if. k Q. 521. 
 
 (u) liaclae v. Sutherland, 3 K. A: B. 1. wliere see deed of settlement of Bank of 
 ' out, id. 4 ; Bee 14 M. k W. 469.
 
 [*539] 
 
 COPARTNERSHIPS, ETC. 879 
 
 proposition already stated on the highest authority, (?;) that in banking 
 copartnerships, directors, as such, have power to borrow money, for the 
 ordinary purposes of the banking business, so as to bind the partnership, 
 unless the power is expressly excluded by the terms of the deed : all that 
 was determined in this respect, was this — directors *of a banking 
 copartnership have no implied authority to borrow in that man- 
 ner, so as to bind the partnership. 
 
 The Royal Bank of Australia stopped payment in 1848 ; in an action, 
 (which came on to be tried in 1852,) by the holder, on certain notes of 
 the above form,(.y) which were at five years' date, and attached to each, 
 and on the same paper, were coupons, for half-yearly interest, at the rate 
 of bl. per cent., till the principal would become due, and which had been 
 issued, through a broker, employed by the directors, and for which the 
 plaintiff had paid the full value, and sought to recover from certain of 
 the directors, the amount, &c. ; — it was held, (on a special case, stating 
 the above facts, and also that in the advice notes, from the broker to the 
 plaintiff, the transaction was called a "Sale of Debentures;" that the 
 documents appeared sometimes to have been called by the company's 
 agent, « Deposit notes ;" and that the money raised by means of these 
 notes was employed as capital in starting branches of the bank in the 
 colonies,) — that the real nature of the transaction was, in substance, a 
 loan to the bank, on the security of the notes ; and assuming that the di- 
 rectors had authority to contract such loan on behalf of the company, it 
 might be recovered by the plaintiff, against the shareholders, as money 
 lent ; but that the transaction was so much out of the ordinary course of 
 banking business, that authority to bind the partnership could not be 
 ascribed to the directors as such ; an express authority would be neces- 
 sary ; their implied authority, to do all that is in the ordinary course of 
 banking business, would not suffice to establish their power, to bind the 
 partnership, in this mode ; the deed of settlement, however, was consid- 
 ered to have given authority to set up branch banks in the colonies, and 
 to borrow money for that purpose, in the mode adopted ; and the share- 
 holders, it was also held, must be taken to have ratified what had been 
 done, it appearing to the court, as a fact, that at successive annual meet- 
 ings of the ^shareholders, it was known that the capital, for this pp^n-i 
 purpose, had been borrowed. (,~) *- -J 
 
 The same deed of settlement, (dated August, 1840,) provided that the 
 trade of the company should be that of banking, including the issuing of 
 bank notes and bills, payable on demand after sight, after date or other- 
 wise, and the making of loans and advances to customers, and other per- 
 sons, on real or personal security, on sheep, cattle, &c, and on every 
 other kind of property whatsoever, including the discount of bills of ex- 
 change, &c, the borrowing or taking up money at interest on inland or 
 foreign bills of exchange, or promissory notes, bonds, debentures, de- 
 posit receipts, or other obligations, as should from time to time be deemed 
 
 (x) Bank of Australasia v. Breillat, 6 Moo. P. C. 194; supra, pp. 525, 526 ; see 
 3 E. & B. 39. 
 
 (?/) See supra, p. 538. 
 
 (z) Maclae v. Sutherland, 3 El. & Bl. 1 ; see Com. Dig. Merchant, F. 2, F. 15.
 
 380 GRANT ON THE LAW OF BANKING. 
 
 expedient. Large discretionary powers were also given to the din 
 
 to invest, convert, re-invest, and vary the property, funds, &c, of the 
 
 company. 
 
 The capital of the company was to consist of 1,000,000/., and tu be 
 raised by 30,000 shares of 50/. each. 
 
 A large proportion of the share- allotted was taken by the directors 
 themselves; but of the calls made upon these shares, little or nothing was 
 ever paid by the directors. 
 
 In addition tu the funds raised by the allotment of shares to other per- 
 sons, the directors borrowed large -urns of money upon debentures, or 
 notes, in the form already stated. (</) 
 
 The moneys thus raised were in part drawn out, and in part sent out 
 to one of the directors, who, under powers of attorney, and a commission 
 from his co-directors, had gone out to Australia, and there entered into 
 large agricultural and other speculations, instead of employing the mo- 
 neys in the banking business. 
 
 The company suspended payment in 1848; on winding up its affairs. 
 r*"-m c ^ a " us by the holders of these instruments *were held to be 
 L -I rightly admitted as debts against the company ; for that the 
 powers given by the deed were large enough to authorize the directors to 
 borrow money on such instruments, and that the notes were so framed aa 
 to form a contract binding on the company, (i) 
 
 Transfer of Shares. — In another case, on the same deed of settlement, 
 the court considered the effect of the following clause : — 
 
 "That whenever by any means whatsoever any share shall become 
 forfeited, or shall be duly and effectually transferred to a new proprietor, 
 then in such case, and not before, the responsibility of the former pro- 
 prietor, as a proprietor in respect of such shares, shall cease and deter- 
 mine, and such former proprietor shall be exonerated and released from 
 all subsequent claims, demands and obligations in respect of the same 
 shares, and from all future observance and performance of the covenants, 
 rules, regulations and provisions affecting, or which ought to be observed 
 or performed in respect of such shares ; and the entry of such forfeiture 
 or transfer in the share register book shall be, and be accepted, legal 
 evidence of such forfeiture or transfer." 
 
 These expressions were interpreted, in equity, to mean, that where a 
 purchaser of shares is, upon the transfer, accepted as purchaser by the 
 directors, and the transaction is completed, the seller of the shares is to 
 be considered as discharged, as from the beginning and entirely, as 
 between him and the purchaser, and, as between him and the coin- 
 
 l' a ")'- 
 
 In smli a case, a transferor is not a contributory on the winding up of 
 
 the i ipany;(c) nor is a person who, being an allottee of shares paid his 
 
 deposit and calls, but did not execute the deed within the time limited. 
 
 ■ m the directors declaring his shares forfeited in consequence, has sub- 
 
 <h e lupra, p. 538. 
 \b) In re Royal Bank of Australia, (Walker's case,) 18 Jur. 885, where sec- 
 clauses of deed. 
 
 [e) la re Royal Bank of Australia, (Suttou's case,) 3 De G. & S. 262.
 
 COPARTNERSHIPS, ETC. 381 
 
 niitted to the forfeiture, and never made any claim upon the com- 
 pany.^/) 
 
 ♦Generally, directors have no power to cancel shares. Even r^E^i 
 where the deed of settlement provides that in all cases, not pro- »- J 
 vided for hy that or any other supplemental deed of settlement, the di- 
 rectors may act in such manner, as to promote the interests and welfare 
 of the company : this does not enable them to cancel a retiring director's 
 shares, so as to exempt him from liability; and ten years after he was 
 held to be a contributory. (e) 
 
 The same deed of settlement provided, that the directors should have 
 power to enter into any contract with any persons, respecting any matter 
 in which the company might be interested, and also to enforce the same, 
 &c, and afterwards, to release and discharge, or modify and vary the terms 
 of any such contract, &c, and to compromise, compound, and settle any 
 action, suit, claim, or demand, in which the company may be interested, 
 upon such terms, and in such manner, as the court of directors might 
 think proper. The deed also empowered the court of directors to pur- 
 chase, for the use of the company, any shares in the company ; the 
 shares which should be so purchased, to be considered part of the pro- 
 perty and eifects of the company, and be held and applied accordingly. 
 
 The deed also required and empowered the court of directors to deter- 
 mine the form of the transfer of shares, and to make orders and regula- 
 tions respecting the same, and declared that all sales and transfers not 
 made conformably to the existing regulations in that behalf, should be 
 invalid in law and equity. 
 
 These terms were held, in equity, to authorize the court of directors 
 to accept the resignation of one of their own body ; and afterwards to re- 
 lease him from his shares which he had taken, and to hand back to him 
 a promissory note, which he had given in respect of those shares ; the 
 resignation of the office of director and the relinquishment of the shares 
 being distinct acts, the latter, subsequent to the *former, and pee 40-1 
 there being no suggestion of fraud, or of the company having L J 
 been in failing circumstances at the time. 
 
 It was also held, that the omission of the forms of transfer prescribed 
 in, or by virtue of, the deed of settlement, did not invalidate the trans- 
 action ; such omission not arising from any fault on the part of the ven- 
 
 dor.(/) 
 
 "The directors of these companies are, in a sense, trustees, and have 
 authority to bind the company to the extent of the powers given them 
 by the deeds, under which the companies are constituted ; but in the ab- 
 sence of previous authority, or of subsequent concurrence, on the part of 
 all the shareholders, the directors have not, as I apprehend, any authority 
 to bind the companies in any matters of substance, beyond the extent of 
 the powers the deeds may give them. Moreover, in the exercise of the 
 powers given them by the deeds, they must, as I conceive, keep within 
 the proper limits. Powers given them for one purpose cannot, in my 
 
 (d) Ex parte Beresford, 2 Mac. & G. 197. 
 
 (e) Stanhope's case, 3 De G. & S. 198. 
 
 (/) In re Royal Bank of Australia, (Cockburn's case,) 4 De G. & S. 177.
 
 -j CHANT OX THE LAW OF EANKINC 
 
 opinion, be used for another and different purpose. To permit Buch pro- 
 oeedinga on the part of the directors of companies would be to sanction 
 not the use, but the abuse, of their powers ; it would be to give effect and 
 validity to an illegal exercise of a Legal power, "(y) 
 
 Now, particularly with reference to the transfer of shares, questions 
 arise, which the remarks just offered are calculated to dispose of. Thus, 
 there may be provisions in a deed of settlement, empowering din 
 to consent to transfers of shares ; but if the terms of those proi isions and 
 the context show the sense to be, that the directors are to take into con- 
 sideration each proposed transfer, then the deed will not authorize them 
 permitting the retirement of a body of shareholders at once ; for whether 
 they shall go out together, is a question involving many considerations, 
 which would not apply to the retirement of an individual shareholder, 
 and *which the provisions respecting separate transfers would, 
 L -1 probably, not be found so framed as to authorize the director- to 
 entertain. (/<) 
 
 And as directors cannot sell their right, as given by the deed of settle- 
 ment, of objecting, on behalf of the company, to any proposed transfer of 
 -hare.-, so they cannot exercise the right of giving their sanction to such 
 proposed transfer, for the purpose, and upon the condition, of obtaining 
 payment of a debt already due to the company from the intended trans- 
 feror of the shares, (t) 
 
 In the case of ordinary partnerships, a partner can retire and with- 
 draw his capital from the concern only upon a dissolution of the part- 
 nership ; and it is upon taking the general partnership accouut between 
 the parties, that the right of setting off the debt of each partner, in ac- 
 couut with the partnership, arises. 
 
 The essential distinction between a banking copartnership, on a large 
 scale, and an ordinary common law trading partnership, consists in the 
 power and privilege which, by the provisions of the deed of settlement 
 of the former, arc given to a proprietor to retire and withdraw his capital 
 from the concern, without a dissolution of the partnership, by transferring 
 his Bhares. This power and privilege constitute very main inducement! 
 to the investment of capital in such concerns, and thereby enable the so- 
 ciety, or partnership, to raise a capital and carry on transactions, which 
 it would be impracticable to raise, or carry on, upon the basis of an ordi- 
 nary mercantile partnership. The consequences which, as between a 
 shareholder and the company, arise, by operation of law alone, tipon a 
 transfer of shares, cannot, therefore, be inferred, from those which at- 
 tach upon the dissolution of an ordinary partnership. The consequences 
 arising upon a transfer of share- must be sought for in the provisi 
 
 the *deed of settlement, or in some rule of law not repugnant to 
 L J those provisions. (A) 
 
 The deed of settlement of a banking copartnership declared, that no 
 
 (g) Per Turner, Ld. Just., in Ex parte Bennett, 24 L. J., Chanc. 134. 
 
 _■ I L. J., Chanc. 134. Acceptance by directors of re-transfer of Bh 
 De G. k S. 24 i. 
 Pinkettv. Wright, 2 Hare, 120. 
 (*) Per Turner, V. C, 2 Hare. 130, 131.
 
 COPARTNERSHIPS, ETC. 383 
 
 transfer of shares should be permitted, except upon notice to the directors, 
 and on the consent thereto of a board of directors, such consent being 
 signified by a certificate, in writing, signed by three directors, at the 
 least ; if such consent were refused, the shareholder might require the 
 directors to buy his shares at the market price of the day. After a con- 
 sent given, the name of the transferee was entered in the share register 
 book, and the entry there was conclusive against him. No shareholder 
 could compel an inspection of the books of the company ; they were ex- 
 pressly excluded from this by the deed. 
 
 These being the principal provisions of the deed, as to this matter, A., 
 a shareholder, proceeds to transfer his shares to various persons, and 
 sends the proper notices to the directors ; receives back consents, signed 
 by three directors, respectively ; and completes the transfers ; the trans- 
 ferees' names were entered in the share register book ; and, in the return 
 made to the inland revenue, the name of A. is omitted from the list of 
 shareholders, and inserted in the list of those who had ceased to be share- 
 holders. The transferees afterwards received the regular notices of meet- 
 ings of shareholders, &c. 
 
 The directors, subsequently, sought to impeach these transfers, on the 
 ground of the notices never having been submitted to a board of directors, 
 nor the consent given by a board of directors, as required by the deed, 
 but that the consents had been signed by the managing director, and 
 then signed by two other directors. This appeared to have been the 
 mode of transacting this description of business ever since the formation 
 of the company. 
 
 The House of Lords decided, that the directors could not, on the cir- 
 cumstances, set up their own want of observance of *the formali- r^rtp-i 
 ties required by the deed, as a ground on which to fix A. with L J 
 liability, as continuing to be a shareholder, for that they were bound by 
 their course of dealing. (l\ 
 
 It is to be observed that, on the same facts as those just stated, (m) 
 (except that the register was excluded,) a court of law had previously 
 held A. to remain a shareholder, as to creditors of the bank, as there was 
 no consent by a board of directors, and, considering that the irregular 
 mode of transfer, though adopted for some years, was wholly ineffectual, 
 and, consequently, that A. remained a shareholder, as to creditors of the 
 banking copartnership. (n\ 
 
 The question before the House of Lords, however, was, whether the 
 directors could take advantage of their own laches to comply with the 
 requirements of the deed of settlement, and treat A. as a member, when, 
 but for their own conduct, there would have been no pretence for doing 
 so. 
 
 It much behoves a shareholder, therefore, who wishes to transfer, to 
 see that all the formalities, which may have been imposed by the deed, 
 
 (I) Bargate v. Shortridge, 5 H. Lds. 297 ; see 7 M. & W. 574. 
 (m) See supra, p. 545. 
 
 (n) Bosanquet v. Shortridge, 4 Exch. 699; see 5 H. Lds. 305, 313, 314, 322, 
 323. 
 
 " March, 1857.— 26
 
 ;;v4 GRANT ON THE LAW OF BANKING. 
 
 on the transfer of shares, be complied with, otherwise he may remain 
 liable to creditors, though, it Beems, he would not be so fur calls. 
 
 One duty of a copartnership, i. e., of its directors, obviously is to keep 
 correct transfer, and share register books, &c, because they are required, 
 by the Btatnte, to make returns, from time to time, of their existing, and 
 also of those persons who have ceased to be, members ; ami they neve* 
 i an perform that duty, according to the intention of the act of parlia- 
 ment, unless the 1 ks are correct, (o) 
 
 The case, iu the House of Lords, does not touch the principle, that 
 when directors do an act which is clearly not within their power, and to 
 which they never could, by any *form, or any ceremony, have 
 L 'J given vitality, such an act is perfectly void, and cannot be main- 
 tained, (p) 
 
 Directors, who, having the means of seeing that all the formalities of 
 transfer required by the constitution are complied with, negleot to do so, 
 allow there to be a want of formality in the transfers of their own share-. 
 remaiu contributories with respect to them. (q\ 
 
 A shareholder is not bound to have a knowledge of what is contained 
 in the books of the company ; nor is bound by acquiescence in the entries 
 in those books. (/•) 
 
 Enhancing J'rices of Shares. — In addition to the cases which have 
 been cited, (s) showing the effect of proceedings, by the directors, for the 
 sake of "sending up" the shares in the market, another attempt, of the 
 aame kind, may be stated, in case of a bank copartnership, at Calcutta. 
 which was contrived in this way : — 
 
 One of the directors prevailed upon several persons to join him, for 
 the purpose of buying shares of the bank; they applied to the bank for 
 a credit, on their joint and several securities, to be opened for the pur- 
 pose of purchasing these shares: this was granted by the directors; the 
 account was operated on, by drawing on it for the payment of the share-. 
 when bought, and paying into it, when money was raised on the shares, 
 and elsewhere ; a total loss ensued ; the bauk failed ; the director, with 
 the parties who had joined him in the speculation, being debtors to the 
 hunk to an immense amount. 
 
 Now, in this case, two points were obvious: — 
 
 First, the deed of settlement expressly prohibited loans being made 
 without any security; here the advances had been made with no secu- 
 rjtcjQ-i rity, in the sense of the deed ; the ^transaction of the opening 
 -I the credit was, therefore, a breach of trust, in one and all the 
 directors concerned, and a breach of trust of no ordinary importance, be- 
 cause it is manifest, thai such a prohibition must constitute the chid' 
 safeguard for the shareholders, that their capital shall not be perilled. 
 
 Secondly, the purpose for which the money was so to be lent to these 
 person-, was to be applied for the purchase of the bank shares, at B certain 
 prioe, — it was intended, (dearly, to raise the price of the bauk shares out 
 
 Per Ld. St. Leonards, 5 B. Lds. 318, 319. 
 
 (/•! B II. Lds. 328; see 1 De G., M. & '■ 
 
 iy l.\ p.irii Brown, L9 Bi parte Henderson, id. 107. 
 
 toe L9 Bear. 104 (*) See supra, p. 528, et se<j
 
 COPARTNERSHIPS, ETC. 885 
 
 of the moneys of the hank itself,— to create for those shares a false de- 
 mand, the end being to deceive the shareholders and the public. Now, 
 no circumstances of embarrassment, no difficulty, can excuse pourtraying 
 in false and delusive colours, the condition of the affairs of the bank en- 
 trusted to the charge of the directors ; no hope of saving a falling com- 
 pany can justify a violation of the deed, by misappropriating the funds 
 committed to their care in such manner. (f!) 
 
 Directors, fraudulently inducing a person to purchase shares, may be 
 personally liable to such person ;(«) but, to prove fraud against them, does 
 not tend to fix the shareholders, in general, with fraud ; a person clearly 
 showing the latter would, probably, escape being made liable as a con- 
 tributory ; but the directors are not the agents, of the shareholders, to 
 commit a fraud ; and the directors' fraud is no reason, in itself, why a 
 person should not be placed on the list of contributors. (x) 
 
 The same rule obviously holds, where the fraud has been that of the 
 manager, who is accredited by the directors. {y\ 
 
 A misrepresentation of the state of the concern, made by the law agent 
 of the company, whether he was or was not a partner in it, does not re- 
 lease from obligation, in respect to ^shares, a person, who pur- - ;| ,,,. 1 
 chases shares, after such representation, although it was wholly L J 
 incorrect and untrue; for the law agent is not the agent of the company, 
 to bind it in such matters, as the representation related to. (2) 
 
 Directors representing, with the intent to raise the shares of the com- 
 pany in price, in their reports, and by their agents, that the affairs of 
 the company are in a very prosperous state, and declaring large dividends, 
 at a time when those affairs were greatly embarrassed, and thereby induc- 
 ing a person to purchase shares, may be made criminally responsible for 
 their conduct. (a) 
 
 Winding tip. — In case it be asked, whether any, and what means 
 exist, on behalf of the shareholders, of enforcing their duties upon the 
 directors of a banking copartnership, it is answered, (and it seems to be 
 nearly all there is to answer, for, in truth, shareholders have few practi- 
 cal means for effecting this result,) that, in certain cases, the courts of 
 equity will decree an account. 
 
 Thus, where the company had suspended business for several years, 
 but was not dissolved ; large debts were due from the company, for which 
 the shareholders were liable ; considerable assets were in the hands of 
 the directors and trustees of the company, though not equal to the debts ; 
 all the directors, except one, had become bankrupt, and had thereby, by 
 the regulations of the deed of settlement, become incapable of acting, 
 and the trustees refused to act ; certain shareholders, who had paid all 
 the calls that had been made, were allowed to bring a bill for an account 
 against the directors, and the trustees, and the public officer, and the 
 shareholders who had not paid up their calls, praying that an account 
 
 (t) In re Grant, 7 Moo. P. C. 141. 
 
 (u) Ex. gra. Stainback v. Fernley, 9 Sim. 556 ; see 2 H. Lds. 509. 
 
 (x) Dodgson's case, 3 De G. & S. 90, remarking on Sanderson's case, id. 66. 
 
 (y) Bernard's case, 5 De G. & S. 289. 
 
 (z) Burnes v. Pennell, 2 H. Lds. 497. (a) 2 H. Lds. 509.
 
 330 HIIANT ON THE LAW OF BANKING. 
 
 might be taken of all the partnership assets, and that such part as 
 
 ^. ft -. outstanding might be g«>t in by a *receiver, and that the whole 
 L J might be converted into money and applied towards satisfaction 
 of the partnership debts, without praying for a dissolution of the copart- 
 nership : the object of the bill beiug, not to obtain a share of the profits 
 doe to the plaintiffs, but to have the common usetfl realized and applied 
 to their legitimate purposes, in order that the plaintiffs might be relieved 
 from the responsibility to which they were exposed, contrary to the provi- 
 sions of the contract into which they had entered, and to every principle 
 of justice. (//) 
 
 This was, in fact, a proceeding for the purpose of winding up(c) the 
 affairs of the company, and was before the legislation known as the 
 Winding-up Aets ; but, it seems, that such a proceeding may be resorted 
 to, with effect, since those acts, at any rate where the bill seeks relief, 
 which could not be had under a winding-up order.(rj 
 
 So the company, by its public officer, may institute a suit in equity 
 against a director, or directors, who have misconducted the company's 
 affairs. (r?) 
 
 The joint-Stock Companies Regulation Act, 19 & 20 Vict. c. 47, does 
 not affect banking copartnerships or other bodies associated for the pur- 
 poses of banking ; therefore, the winding up of such bodies still proceeds 
 under the old Winding-up Acts. 
 
 If, pending a suit by the shareholders of a banking copartnership 
 against the directors, one of those directors obtains an order for winding 
 up the affairs of the company, under the Winding-up Act, 1848, and 
 then, after some time has elapsed, the shareholders move, that all further 
 r*.- -n proceedings in the suit be stayed, until the affairs of the com] 'any 
 L &&i J *h ;l <] been wound up, under the order, their motion will be re- 
 fused with costs, (e) 
 
 The object of the suit, which was instituted in 1842, was, in fact, the 
 winding up of the affairs of the company, and for the purpose of charg- 
 ing the directors with sums, which, but for their wilful default, they 
 might have received, and with other misconduct, &c, and seeking an 
 injunction, &c, and the delivery up of certain promissory notes. And 
 it was considered to be clear, the winding-up order was not adapted to 
 give as much relief as was to be had in the suit.(/) In fact, it was 
 held, that the suit must necessarily be disposed of before the winding up 
 could take place. (^) 
 
 (b) Wallworth v. Holt, 4 My. & 0.619,634,636; Bee Barker v. Buttress, 7 
 134, 137 ; and see 15 Jur. 853; Richardson v. Hank of England, 4 My. & C. 
 
 105. 
 
 (c) See Deeks v. Stanhope, l Sim. N. B. I 15 Jar. 618; cor. Ld. Cran- 
 worth, V. C. 
 
 (d) Harrison v. Brown, '■> De G. I De <;.. M. & G. 590. 
 
 (e) i -: mhope, 1 Bim. X. S. 139. The bill by the shareholders against 
 
 of the court (five time i often. The 
 
 Boil had pended nine years. 
 
 (f) See 1 Sim. \. 8. 448, 449 ; 11 & 12 Vict. c. 45, s. 14. 
 
 !n re St. Uarylebone Banking Company, 1 Hall k T. 100, 103; see 1 Sim. 
 i i Sim. 57. The pendency of a Bait is not an objection to courts mak- 
 ing a winding-op order, )i A 12 Vict i 16, 3. 58.
 
 COPARTNERSHIPS, ETC. 3S7 
 
 On the other hand, after steps have been taken, under the Winding- 
 up Act of 1848, and proceedings have gone so far as the appointment 
 of an official manager, no creditor or other person can commence or pro- 
 ceed with any action against the company, or any other person represent- 
 ing the same, &c, except so far as the master shall permit, &c. : and a 
 judge at chambers may order, further proceedings to be stayed. (h\ 
 
 But an action against a party, sued individually, as one of the joint and 
 several makers of one of the promissory notes of the Royal Bank of 
 Australia, was held, not to be a case within that enactment; it was con- 
 sidered to be just the same case, as if the defendant had been sued upon 
 his promissory note, made by him in his individual character, and having 
 no connection whatever with the company ; he was held to be personally 
 liable on the promissory note. (i\ 
 
 ^Dividends. — The payment of dividends, derived from other r-^eern 
 sources than the profits of the company, is a fraud on the part «- "'J 
 of the directors ; for, dividends are supposed to be paid out of the profits 
 only, and when directors order a dividend to any given amount, they, 
 without expressly saying so, yet, impliedly, do declare to the world that 
 the company has made profits, which justify such a dividend. This is 
 a gross fraud, for which they are liable to be punished. 
 
 In case any one, in consequence of such implied misrejyresentations, 
 buys shares, and, it appearing, that the concern is failing, &c, he is 
 injured, he may proceed against the directors by action ; they are liable, 
 also, to be indicted in such case : even if no one can be shown to have 
 been injured, as a matter of strict law, they arte liable to indictment for 
 a conspiracy. (&) 
 
 But this alone would not be sufficient to enable the party to set aside 
 the contract as against the directors ; it is not enough for him to say, 
 " unless you had, by paying dividends, thereby making the public believe 
 you were paying them out of profits, given this flourishing appearance to 
 the concern by your own acts and deeds, I should never have bought 
 my shares :" such a general averment of fraud is not enough ; it must 
 be dolus dans locum contractui.fl) 
 
 On the other hand, no man can complain that another has too implicitly 
 relied on the truth of what he has himself stated,(m) and where one of 
 the parties to a negotiation induces the other to contract, on the faith of 
 representations, any one of which is untrue, the whole contract is to be 
 considered as having been obtained fraudulently,^*) and the party making 
 the representations may be compelled to make good the representation, 
 if that be possible ; if not, the person *deceived may avoid the r*^-! 
 contract: and it does not signify that the party making the L 
 
 (h) 11 & 12 Vict. c. 45, s. 73. 
 
 (i) Penkivil v. Connell, 5 Exch. 381, 384, 385 ; Maclae v. Sutherland, 3 El. & Bl. 
 37 ; see 3 Exch. 3, and form of note, sup. p. 538. 
 
 (k) Burnes v. Pennell, 2 H. Lds. 524, 525. 
 
 (I) Burnes v. Pennell, 2 H. Lds. 530 ; see Jennings v. Broughton, 22 L. J., Ch. 
 585; S. C, 17 Beav. 234. 
 
 (m) Dobell v. Stevens, 3 B. & C. 625. 
 
 \n) Revnell v. Spry, 1 De G., M. & G. 660.
 
 GRANT ON THB LAW 01 BANKING. 
 
 representation believed it to be true, if it was bis duty to bave known 
 otherwise, (o) 
 
 Bence, a representation by directors, in a prospectus, on the formation 
 of a company, is a representation, dans locum contractui, as regards per- 
 sons taking shares, and tlie contract may be avoided, if it be impossible 
 that the representation can be made good.(o) 
 
 For/' iting Shares. — The subscription contract of a projected banking 
 company, after reciting that the capital was agreed to consist of 1,000,000/., 
 with power to increase it to 3,000,000/., and that application bad been 
 made to the crown for a charter, nominated certain persons to be directors, 
 until the charter should be obtained, with power for them to regulate 
 the terms of the charter, in such manner as they should think necessary, 
 in compliance with the regulations of the government, and to narrow 
 or extend the objects of the company, as might be necessary for that 
 purpose. 
 
 The directors were also empowered, as soon as the charter was sealed, 
 to prepare a deed of settlement, to call for a first instalment from the 
 Hil^cribers, and to declare forfeited the shares of any subscribers who did 
 not execute such deed of settlement. 
 
 The charter that was obtained incorporated the company, with a 
 capital of 644,000/., and power to increase it to 1,000,000/., with the 
 consent of the lords of the treasury. 
 
 Then a call was made, and a deed of settlement prepared, which 
 recited the charter, the call, and its payment, by the parties to the 
 deed. 
 
 On these facts it was very solemnly decided, Qj) that the power of the 
 directors was not terminated on the grant of the charter; that the charter 
 was not inconsistent with the subscription *contract; that the 
 L -J call was properly made; that the deed of settlement was binding 
 on the subscribers to the subscription contract ; but that as the deed of 
 settlement made recital of the payment of the call, and the power to 
 forfeit shares subsisted only for the non-execution of the deed of settle- 
 ment, therefore the directors had no power to forfeit for non-execution 
 of the deed.(^>) 
 
 Cheques, — Directors sometimes keep blank cheques, with their signa- 
 tures already set to them in the cheque-book, the requisite amounts being 
 filled in as the cheques are wanted. 
 
 It is most important to be known, that for a secretary or clerk, or any 
 one connected or unconnected with the company, to fill up, without 
 authority so to <l>>. such a cheque, with a sum in favour of himself, even 
 though the sum might be owing to him from the company, is most pro- 
 bably forgery.(y) 
 
 /;///, of Exchange. — Directors accepting a bill of exchange in their 
 own names, simply, without saying that they do so as agents of the 
 
 (o) Pulsford v. Richards, IT Beav. 87; Jennings v. Bronghton, id. 234. 
 
 Norman v. Mitchell, 5 De <:., M. & 6. 648, cor. the Lords Justices and 
 ... l! and Brie, JJ. ; see 14 Q. B.181. 
 
 ! lower v. Shaw, 2 Car. & K. 703 : see Reg. v. Wilson, 17 L. J., Mag. C. 
 
 -.
 
 COPARTNERSHIPS, ETC. 389 
 
 copartnership, will be personally liable on the bill, whether they have, 
 or have not, authority to accept bills, on behalf of the company, (r) 
 
 So, if directors sign a joint and several promissory note, they will be 
 personally liable, whether they have authority or not, to issue promissory 
 notes ; if directors, " for themselves and the other members of the com- 
 pany, jointly and severally promise," &c, such an instrument may bind 
 the body of the copartnership, i. e., the whole of them jointly, but 
 cannot bind them severally. (s) 
 
 *In questions of this kind it sometimes is useful to bear in r^-.-.-n 
 mind the principle, that a bill of exchange cannot be addressed L 
 to one person and accepted by another. (/) 
 
 Contracts. — Directors will not be liable, as on a contract, in such cir- 
 cumstances as the following : — 
 
 An extraordinary general meeting of proprietors is duly called, and 
 passes resolutions, putting an end to the partnership — that being the 
 purpose of the meeting, — and the object to be eifected by the resolu- 
 tions — the company is dissolved ; whereby the authority of the directors 
 to bind the other shareholders is put an end to; it becomes necessary, 
 therefore, to make arrangements for realizing the assets, and discharging 
 the liabilities of the company, and dividing the surplus. Without such 
 an arrangement any one of the shareholders might receive payment of 
 the debts due to the company; each shareholder would have to concur in 
 the indorsing and disposing of the securities of the company, and in set- 
 tling the engagements into which they had entered, during their part- 
 nership : the course the meeting took was, to place the winding up of the 
 concerns in the hands of a few members, who were most able and quali- 
 fied for the purpose, namely, the late directors. 
 
 But members taking upon them such a trust do not, though they join 
 in resolutions, providing that the assets shall be realized, and as soon as 
 they are so, dividends shall be declared and paid, by the act of taking 
 upon them the trust simply, bind themselves to declare and pay, &c. the 
 dividends ; and a shareholder, to whom, on assets being realized, a divi- 
 dend is in point of fact due, cannot sue those persons, as upon a contract, 
 at law, in order to recover the dividend. 
 
 Those persons, however, might be liable in equity as trustees for the 
 shareholders, but only as bare trustees, not as being bound by their own 
 contracts, in the terms of the Resolution ; and although it should p^-i 
 appear that a sum of money, in respect of realized assets, were L J 
 actually in their hands, and though they should have actually declared a 
 dividend of so much in the pound, to be paid on condition of their being 
 indemnified, &c, that would not entitle any shareholder to sue them at 
 law, as for money had and received, to his use, in respect of the propor- 
 tion due to him at that rate on his share.(«) 
 
 Liabilities of Shareholders. — Partners who are desirous of escaping 
 
 (r) Byles on Bills, 6th edit. 26, 54 ; Nicliolls v. Diamond, 23 L. J., Exch. 1 ; and 
 see Fox v. Frith, 10 M. & W. 131. 
 
 (s) Maclae v. Sutherland, 23 L. J., Q. B. 229. 
 
 (t) Davis v. Clark, 6 Q. B. 16. 
 
 (w) Lyon v. Haynes, 5 M. & Gra. 504.
 
 GRANT ON THE LAW OF BANKING. 
 
 from an undertaking of this kind, which turns out unsatisfactorily, may, 
 in Bome rases, hope to do bo by means of the Winding-up Acts. An ap- 
 plication may be made fox a winding-up order, in cases where it does not 
 appear that there are any creditors of the company. That is not at all 
 essential to found the jurisdiction under these statutes; they are not con- 
 fined to companies which hare creditors j their object is not merely to 
 pay the debts of the companies; but to enable those who have entered 
 into these speculations, to escape from them as far as possible. 
 
 On the other hand, the statutes were not intended to apply to a body 
 which was going on with fair prospects, in the exercise of its trade, or 
 business, so as to enable any dissatisfied member to call upon the courts 
 to grant a winding-up order. Evidence must be given, that the company 
 in question cannot carry on the business, and that the difficulties are 
 found to be insuperable in disentangling the parties from the the concern 
 in which they are engaged ; that will show a state of things to which the 
 Winding-up Acts apply. (x) 
 
 When a deed of settlement renders necessary the performance of cer- 
 tain acts, before a person can be a member of the copartnership ; the case 
 
 pi . usually is, that the acts are *for the benefit of the body, and the 
 
 L J non-performance of them does not enable the party to retire from 
 his contract with the company.(y) 
 
 In practice it is not found to be sufficient, for the purpose of enabling 
 members to retire, who may wish to do so, upon discovering the affairs 
 of the body are becoming unprosperous, or when they become dissatisfied 
 with the management, and are unable to influence the course of it for the 
 better, that there should be contained in the deed of settlement provi- 
 enabling the company to become purchasers of shares, with the con- 
 sent of a general meeting of shareholders, and for shareholders procuring 
 persons to be transferees of their shares, with the consent of the directors ; 
 because, in general, one or other of these consents it is found impracti- 
 cable to obtain. (?) 
 
 It is not even sufficient for this purpose, to introduce powers for the 
 directors to act, in all cases not provided for by the deed, in such manner 
 as to promote the interests and welfare of the company; and, although 
 the directors in such case assume the power to allow a member to retire, 
 and profess to release him from liabilities, yet, if this be inconsistent 
 with express prohibitions in the deed, he may be liable for debts of the 
 company, in equity, even ten years after his supposed retirement has 
 t ken place. (a) 
 
 We musl remember that in common law partnerships, retirement of 
 one or more members can only be made with consent of the whole, and 
 
 (z) In re St. Marylebone Banking Company. 1 Hall k T. 102, 103, cor. Ld. Cot- 
 iii, O.j 11 k 12 Vict <■. 46, s. B, art. 7. To a Kill for the dissolution of such 
 c 'partnership, all the members must have been made parties, Abraham v. Haunay, 
 13 Sim. 58 I. 
 
 (>/) Humes v. I'enncll. 2 II. Ldt. 496. 
 
 (z) See K>. part.- Bennett, 24 L. J.,Chanc. 131. 
 
 (•/) In r<- St. Marylebone Banking Company, (Stanhope's case,) 3 De G. k S. 
 198.
 
 COPARTNERSHIPS, ETC. 391 
 
 upon a dissolution of the partnership ; in these copartnerships the shares 
 are made transferable, but how transferable ? commonly, by the consent 
 of the directors. Now, the directors are trustees for the shareholders, 
 and cannot depart from the terms and spirit of the deed of settlement, 
 which imposes the trust upon them. *Can it be supposed, or pitcRo-i 
 j) resumed, to have been in the contemplation of the parties who L J 
 originally agreed to the deed, that the directors should sell that consent, 
 or, in other words, sell their right of objecting to any person who might 
 be proposed as transferee of a member wishing to retire ? It can seldom, 
 or never, be for the real interests of the body, that they should be allowed 
 to do so.(M It is not wholly unlike bribing the servant to allow the 
 master to be cheated. 
 
 One ground is this : a person becoming a member of a copartnership, 
 upon false representations made not to him alone, but to him and other 
 members, cannot be entitled, on that ground, to a decree, for the re-pay- 
 ment of his subscriptions, to which the other members would not be 
 equally entitled, and if he be entitled to such repayment, he cannot ob- 
 tain that relief in the absence of the other members ; and that absence 
 will not be sufficiently accounted for, by alleging in the bill that the 
 complainant is ignorant, and unable to discover who the other share- 
 holders were, at least, when it appears also on the bill, that the deed of 
 settlement of the company is enrolled in court, that the plaintiff had seen 
 the deed, and what were the number of shares which were subscribed 
 for thereupon. (A 
 
 Even if the complainant has not this common interest with the other 
 members of the company, if he alleges that he alone has been inveigled 
 into becoming a member by misrepresentations, which apply to himseli 
 alone, still he must make all the other members of the company parties 
 to the bill, in order to examine these questions, for when he asks to have 
 his capital restored, he asks that the interests of all the other partners of 
 the company may, to the extent of the withdrawal of his capital, be pre- 
 judiced, (c) 
 
 This requirement will, obviously, in many cases, present a formidable, 
 and, perhaps, an insuperable difficulty; and, *at any rate, one r^ccn-i 
 which can only be overcome by a considerable expenditure of L J 
 time, labour, and money. 
 
 Again, in many cases, the terms of the deed of settlement do not give 
 powers to the directors to authorize the retirement of a body of the share- 
 holders, so that an agreement entered into by the directors with such 
 members, that on the payment by them of a sum of money, in discharge 
 of all their liabilities, they should be allowed to retire, transferring their 
 shares to two persons named by the directors — in fact, two of their own 
 body — was wholly xdtra vires of the directors, and could not be supported ; 
 and the shareholders, notwithstanding, remained liable to the debts of the 
 company. (d\ 
 
 (b) See 24 L. J., Chanc. 133. 
 
 (c) Macbride v. Lindsay, 9 Hare. 574, 584, 585, 591. 
 
 (d) Ex parte Bennett, 24 L. J., Chanc. 130. Upwards of 3,000 shares had been 
 transferred as stated in the text.
 
 392 GRANT ON THE LAW OF BANKING. 
 
 Another rase, showing the difficulty of divesting the responsibilities of 
 
 members of a copartnership of this kind, occurs, iu which the fads were 
 these : — . 
 
 Mr. Davidson was manager, at Ludlow, of the branch bank established 
 
 there of the Commercial Bank df England j Mr. Ilannay was manager, 
 and also shareholder in the Borough of St. Maryleboue Banking Com- 
 pany. 
 
 Ilannay induces Davidson to subscribe the company's deed of settle- 
 ment for one hundred shares; this was dune, as the court judicially in- 
 ferred, from the evidence, for the purpose of enabling and accrediting a 
 fallacious representation, that Davidson bad taken, and was the holder of, 
 those shares on his own account, and at his own risk; whereas, the fact 
 was, that it had been arranged, for Davidson merely to allow his name to 
 be placed on the list of shareholders, as owner of these one hundred shares ; 
 that all the shares which should not be transferred, by him, to other par- 
 ities, should be transferred, for him, by the directors, and that he should 
 receive nothing, nor incur any liability in respect of the shares : it was 
 agreed that the shares should remain the property of the company. 
 r*"rm *Whilst these one hundred shares so stood in Davidson's name, 
 L J thirty of them were disposed of by him ; the purchase money was 
 paid to the directors; afterwards, he transferred the residue to Ilannay, 
 and his successors, iu office, in trust for the directors. Davidson never 
 paid any call, or other sum of money, upon, and never received any divi- 
 dend or other sum of money, in respect of the shares; his name was 
 never included in any return to the Inland Revenue Office, as a member, 
 nor did his name stand on any list, or register of members filed at the 
 said office. 
 
 The object of this proceeding was considered by the court to have 
 been, — that of inducing and encouraging the taking of shares, by per- 
 sons whom Ilannay, or the directors, might think it advantageous, or 
 useful, to add to the - company, and as such, unfair, and tainted with 
 deceit. 
 
 Accordingly, eight years after the last-mentioned transaction, David- 
 son was held to be the true proprietor of the seventy shares, for every 
 purpose (as between him and the other proprietors. )(e) 
 
 Contributories. — It must be carefully borne in mind, with reference 
 to all cases of contributories, that the liabilities of contributories are not 
 always equal; each contributory is not always liable for the whole ex- 
 penditure of the company; in all the oases respecting contributories, all 
 that is decided, when the court orders that such a person shall be placed 
 <m the list of Contributories to such a company, is, not that he is necessa- 
 rily in precisely the same situation, with respect to pecuniary responsi- 
 bility, as everj other person who has been, or may be, placed upon the 
 
 Same list, but only that, in respect of shares that he holds, or has held, 
 fas his case may be,) lu- is liable to bear some share or other iu aid of 
 the liabilities of his fellow members of, or debtors to the company. 
 
 (•) In re M;irylebune Banking Company, (Davidson's case,) 3 De G. & S. 29.
 
 COPARTNERSHIPS, ETC. 393 
 
 What he must eventually pay, as his proportion *of the losses, r-*rpi-i 
 remains for further investigation, and the result depends on the L J 
 number of shares he has held, on the mode in which they were trans- 
 ferred to him, &c., the time during which he has held them, and a 
 variety of other circumstances, and combinations of circumstances, differ- 
 ing in almost every particular instance. (/) 
 
 The Banking Act(#) has no bearing on the question of who are contri- 
 butories. The Banking Act grew out of the following state of things : — 
 f* There being great difficulty in arranging the liabilities of a fluctuating 
 body, where the parties, whom a creditor had sue as liable, at the time of 
 the contract, might be altogether different from the parties having the 
 benefit of the contract, this statute, while its object was to permit banking 
 companies to be established, intended to provide that those dealing with 
 such companies should not be put to trouble to find out who were to be 
 liable as pay-masters. With this view, therefore, the act lays down an 
 arbitrary rule of liability, and says that those shall be liable to creditors of 
 the company who were members at the time of the contract, or at the time 
 the goods were sold, or the judgment recovered, although they had nothing 
 to do with the contract or the goods. It is an entirely arbitrary rule, 
 framed, "I apprehend, with a totally different intent to that of regulating 
 the rights of members as between themselves; it had in view one object 
 and one object only, namely, to facilitate the remedies of creditors. At 
 the same time, however, it had the effect of making persons liable for 
 debts to which they would not be liable on the ordinary principles of 
 law, and of fixing on them debts for which they had received no benefit ; 
 — as, for instance, if a man held shares when a contract was made, and 
 afterwards sold them : in such case, if an action was brought by a credi- 
 tor, the party was liable under the contract, because he made the r*K(>2~| 
 ^contract. The statute then, in order to avoid leaving a man in L J 
 total uncertainty for how many years his estate might be liable to the 
 debts of a joint-stock company, provides that all proceedings against him, 
 at the suit of creditors, must be brought within three years, or else, that 
 those who succeed him will be liable, and his estate will be discharged. 
 It appears to me, (said Lord Truro,) that the statute is here dealing with 
 creditors, and creditors only, and creditors stand in a different situation 
 to members of the company. Suppose there were a number of debts 
 owing, having been owing, probably, for a considerable time, and then, 
 by reason of some circumstance or other, a great loss arises to the com- 
 pany, not on transactions commenced within a recent period, but on 
 transactions commenced long ago, it might operate very injuriously and 
 unjustly to say that, as between the partners themselves, the partnership 
 should not be so wound up as to ascertain what was the state of loss and 
 profit, except for the period of three years from the retirement of each 
 member, and that those who had gone out should not, after that time, 
 be liable to their partners, because they had got rid of their liability to 
 
 (/•) See per Ld. Cottenkam, C, in Ex parte Earl of Mansfield, 2 Mac. & G. 
 (g) 7 Geo. IV. c. 46, s. 13 ; see Ex parte Gouthwaite, 3 Mac. & G. 201.
 
 394 GRANT ON THE LAW OF BANKING. 
 
 creditors. Also, in taking an account of liabilities as between tbe part- 
 ners themselves, independent!; of the statute, it may be that the partner, 
 who cornea in after the debt has been contracted, or who has gone outbe- 
 fore the goods have been received, is not liable; in all these cases, refer- 
 ence must be had to the form of the partnership." 
 
 It was on these grounds Lord Truro's opinion rested, that the Banking 
 Act had not the effect of varying the liability to contribution between 
 the partners themselves. (/i) 
 
 Hence, notwithstanding that statute, a party may be called on as a 
 contributory, or a deceased partner's estate may be made liable to contri- 
 bute, although he or it be not called upon until three years have elapsed 
 from the cessation of membership in either case.(/<) 
 r*epqi *Weshail now advert to various examples of decisions relative 
 L -I to the subject of contributories. 
 
 By the deed of settlement of the North of England Banking Com- 
 pany, it was provided that, whenever, by any means whatsoever, any 
 shares should become actually forfeited, or should be duly and effectually 
 transferred to a new holder, then, and in such case, and not before, the 
 responsibility of the previous holder, as a member of the company, in 
 respect of such shares, should, so far as the law would in that behalf 
 allow, cease and determine, &c, &c. 
 
 On the 2nd January, 1847, A., being a member and owner of eighteen 
 shares, effectually transfers them to B., and thenceforth A.'s name is not 
 returned to the stamp office as a member. On the Gth March, the com- 
 pany eeased to carry on the business of banking, or any further business 
 than was necessary for the dissolution of the company and the winding 
 up of its affairs. (7) On the 17th November, 1848, the Court of Chan- 
 cery ordered " that the company be absolutely dissolved, and as from 
 that day, and be absolutely wound up" under " The "Winding-up Act, 
 1848." 
 
 It was held, by the Lord Chancellor, on appeal, that A. might be 
 liable (whether or not in equal degree with the existing shareholders at 
 the time of the stoppage is a matter for subsequent inquiry — a matter of 
 fact) to the debts of the company, and, therefore, was properly placed on 
 the list of contributories. (k\ 
 
 By the same deed of settlement personal representatives of deceased 
 shareholders might become shareholders, on giving certain notices. A 
 shareholder dies, making T. his executrix. T. never gave the prescribed 
 notices, nor ever received any dividends in respect of testator's shares, 
 r^cpi-i but always repudiated the profits, liabilities, and engagements, 
 «- ' -I *of the company. It further appeared, from T.'s affidavit, that 
 the testator's personal estate did not amount to 20/., and had been 
 altogether exhausted in the payment of his debts; nevertheless, on 
 winding up the company, T.'s name, at executrix, was held to have been 
 properly placed on the list of contributories. (/) 
 
 (/i) Ex parte Gouthwaite, 3 Mac. & G. 201-203. 
 
 Q fcS. 545, 546. 
 (*) In re North of England Banking Company, (Hawthorne's case,) 1 Mac. &G. 
 Percentage, 20 L. J., Chanc. 462. (I) Thomas's case, 1 De G. & S. 679.
 
 COPARTNERSHIPS. ETC. -J95 
 
 The same was held to be the case where a shareholder had taken all 
 the proper steps to assign, in conformity with the deed of settlement, to 
 the directors, for more than two months, and until the hank stopped, 
 but the directors omitted, during all that time, to assent to, or dissent 
 from, the proposal. (m) 
 
 B. was one of the projectors of a bank, and concurred in issuing a 
 prospectus, containing regulations, one of which was, that a deed of 
 settlement should be prepared. Several meetings of the proposed 
 directors, at which B. took the chair, occurred, and the teimis of the 
 deed of settlement were discussed, but, before it was executed by any 
 one, B. retired, and ceased to be a member of the body. The deed was 
 afterwards executed, at various times, by other members, and contained 
 a clause, whereby the parties ratified all acts, contracts, deeds, matters 
 and things, up to the time of its execution, done, executed and performed 
 by the directors. After the execution of the deed, the dissolution of 
 partnership, between B. and the company, was advertized. Several 
 years afterwards the company was wound up, when it was decided that 
 B. was not properly included in the list of contributories.(w) 
 
 It is not to be overlooked, however, that a man may be liable to the 
 creditors of the company, who is not liable inter socios ;(o) it seems 
 that the former is not, of itself, sufficient to make a person a contribu- 
 tory under the Winding-up Act, *1848,(p) but, if not liable as pggg-i 
 a member, it must be shown, in order to make him a " contri- L ' J 
 butory," that the party is otherwise liable to the losses and demands of 
 
 the company.^) 
 
 The term "contributory" is thus defined by that act: — "The word 
 < contributory' shall include every member of a company ; and also every 
 other person liable to contribute to the payment of any of the debts, 
 liabilities, or losses thereof, whether as heir, devisee, executor, or admi- 
 nistrator, of a deceased member, or as a former member of the same, or 
 as heir, devisee, executor, or administrator, of a former member of the 
 same, deceased, or otherwise, howsoever." (r) 
 
 Now, in deciding whether a party is, or is not, a "contributory," the 
 point to be ascertained is, whether he is liable, in any manner what- 
 soever, to contribute to the debts, liabilities, and losses, of the company, 
 and it is not necessary that he should be a member of the company 
 according to the strict provisions of the deed of settlement. (s) 
 
 By the same deed of settlement certain formalities were prescribed, by 
 which, on a transfer of shares, the transferee was to become a member 
 of the company ; A. became the owner of shares, by transfer, and treated 
 himself, and was treated by the directors, as a shareholder ; all the forma- 
 lities of the deed were not, however, observed in the transaction ; A. 
 having died, his executors, every matter of substance having been com- 
 
 (m) Chartres's case, 1 De G. & S. 581. (n) Busk's case, 3 De G. & S. 267. 
 
 (o) Fenwick's case, 1 De G. & S. 560. 
 
 (p) Angas's case, 1 De G. & S. 560 ; Straffon's case, 1 De G., M. & G. 587, 588. 
 
 (q) See 1 De G., M. & G. 589. 
 
 (r) 11 & 12 Vict. c. 45, s. 3. 
 
 (s) Straffon's Executor's case, cor. Ld. St. Leonards, C, 1 De G., M. & G. 576.
 
 306 GRANT ON THE LAW OF BANKING. 
 
 plied with, were held to be properly liable, as contributories, in respect 
 of mi -h shares, on the winding np of the affaire of the company. (/) 
 
 It is manifest, therefore, and most deserving of attention, that, in 
 r*"m order to make a person liable as a contributory, he *need not be 
 L J a strictly legal member of the company, according to the strict 
 legal construction of the deed of settlement.^) 
 
 Thus, where shares were purchased for an infant, without disclosing 
 his infancy, the vendor signing a certificate, required by the company's 
 ruhs, that the purchaser was of age ; it was discovered that the boy was 
 under age ; the father entered into a deed, with the company, covenant- 
 ing to indemnify them from all losses which might be sustained by reason 
 of his son having become a member during his infancy; the father was 
 held liable as a contributory, though he was in no sense a member of the 
 company, (u\ 
 
 The term "contributory" has been explained by the House of Lords, 
 in accordance with the opinion of the learned judges, who were sum- 
 moned to assist them, to be this : — " Contributories are those only who 
 have contracted by themselves or agents with a creditor, or who have 
 agreed to indemnify, or repay in part, or in all, those who have contracted 
 with the creditor, on their own account.'Ya:) # 
 
 This seems to be agreeable to what was said by Lord Cottenham, 
 to be the duty of the court in deciding, whether a person was liable, as 
 a contributory. " What I have to do is, in effect, to decide, whether 
 there is anything to make him legally liable to the creditors of the con- 
 cern ;"(.>/) and, therefore, it seems, that the principle laid down, in 
 various cases, by another learned judge in equity, (2) " That the liability 
 of a contributory is not the same thing as the liability to creditors/' 
 must be considered as being overruled, unless it can be understood, as 
 meaning, that the two liabilities are not precisely the same, in duration, 
 inasmuch, as a former member cannot be liable to a creditor of the com- 
 r-x-rp— 1 pany, for *more than three years, after he has ceased to be a 
 L 'J member, whereas, he may be liable, to some extent or other, to 
 be determined by reference to the facts in each case, to contribute his 
 aid to enable the members of the company, at its winding up, to provide 
 for the losses, &c. beyond that period. 
 
 In a banking company, A. was holder of eighty shares, at his death, 
 in L842j A.'s executrix produced the probate of his will; and for more 
 than three year- received the dividends, giving receipts for the same, as 
 executrix, except the first, which was signed in her own name, without 
 addition. 
 
 By the deed of settlement,^/) it was provided, that until certain acts 
 
 (I) In re North of England Banking Company, (Straffon's Executors' case,) 1 
 De <;.. M. & <:. 576, 587. 
 (•/) Reaveley'e case, 1 De G. & S. 550, affirmed jut Ld. Chancellor. 
 (x) Bright v. Button, '■'> II. Lds. .'i-il , following Ld. < Iranworth, V. C., in Carrick's 
 
 Sim. v. 8. 509. 
 (;/) K.v parte Hall, 1 Mac. & G. 315; see 11 k 12 Vict. c. 45, s. 3. 
 (z) Bee Sanderson '.- .;,-,-. :; i>, ,,'s case, 3 De G. & S. 90. 
 
 clauses set out, In re North of England Banking Company, 3 Mac. & G.
 
 COPARTNERSHIPS, ETC. 307 
 
 were done, constituting the executor of a deceased member, or the pur- 
 chaser of such member's shares, a partner in the company, the estate of 
 the deceased member should remain liable. 
 
 The company returned the shares in the register list, as shares held by 
 A.'s executrix. There was nothing further to show she had constituted 
 herself a member. The ground on which it was sought here to make the 
 executrix liable, as contributory, was furnished by the provisions of the 
 deed, one of which made each shareholder liable, to the losses of the 
 company, in proportion to his shares ; the other amounted to a covenant, 
 (it was contended,) by the shareholder executing the deed, that his exe- 
 cutor should remain liable, while the shares continued part of his estate, 
 and Lord Truro held, accordingly, that the executrix was liable, though 
 by reason of her not having observed the requirements of the deed, she 
 was liable, not as a member, but in her representative character. (&) 
 
 A widow, who was entitled, as executrix and residuary legatee of her 
 deceased husband, to shares in a banking company, executed a deed, 
 which professed to assign, but she *did not actually transfer them, ^- „„ 
 to a trustee, previously to her marrying again. The trustee L ' J 
 omitted to comply with the deed of settlement, in respect of the forms, 
 &c, to be observed by an assignee of shares, but he received the divi- 
 dends, sometimes signing the receipts "for the executors," sometimes, 
 "by procuration" of the testator; once, "trustee" of the widow, (c) by 
 her widow's name, by which she continued to be called, in the company's 
 books, (where the shares stood in her name, as widow,) and in the regis- 
 try and returns. 
 
 This was held, in one Court of Equity, to be one of the cases in which 
 the formalities required by the deed of settlement had been waived on 
 both sides, and the trustee was considered to be liable to have his name 
 placed on the list of contributories, the liability not to go further back 
 than the date of the deed of assignment. (t?) 
 
 Lord Cottenham, however, reversed this decision, on appeal, refusing 
 to hold the trustee liable, as a contributory, without more evidence than 
 the above facts, to show that he had in any way connected himself with 
 the company, (e) 
 
 In the same company, B., in December, 1843, purchased twenty shares, 
 the vendor and he executing the usual deed of transfer, by which B. 
 covenanted with two of the directors of the company, to pay all sums 
 then due, or thereafter to become due, on the shares, and otherwise to 
 perform the covenants and conditions of the deed of settlement ; B.'s 
 name was thereupon entered in the company's share register book, as 
 owner of twenty shares. In the same month, B. purchased thirty other 
 shares of the executors of a deceased member ; no deed of transfer was 
 
 (b) 3 Mac. & G. 199, Gouthwaite's case : see Ex parte Blakeley's Executors, id. 
 727. 
 
 (c) See 1 Mac. & G. 316. 
 
 ((/') In re North of England Banking Company, (Hall's case,) 3 De G. & S. 84. 
 
 (e) Ex parte Hall, 1 Mac. & G. 307. Leave was given to take proceedings at 
 law to ascertain Hall's liability to the debts and obligations of the company, but 
 nothing appears to have been done in it.
 
 GRANT ON THE LAW OF BANKING. 
 
 executed for these shares; but according to the practice, fas stated in the 
 former cases, (/)) they were at once transferred into B.'s name, and to 
 r*"roi *his account in the Bhare register book. 12th January, 1844, 
 L J H. wrote to the manager, and inquired ;ts to the circumstances of 
 the company. In reply, the manager communicated certain particulars, 
 and. inter alia, stated, "the dividends are now payable, half-yearly, and 
 yon will be entitled to one for the last half-year, which will probably be 
 paid in March. "(.'/) 
 
 B. subsequently purchased fifty other shares. These shares he, in 
 tact, but without his knowledge, purchased from the directors, being 
 forfeited shares. No deed of transfer was executed in respect of them ; 
 and, according to the practice of the company, they were at once trans- 
 ferred into B.'s name, and to his account ; and the manager sent him a 
 certificate, that he was owner of 100 shares. 
 
 Upon these 100 shares B. continued to receive dividends, until March, 
 1S47, when the company stopped payment. (//) 
 
 All the capital of the company appeared to have been lost long prior 
 to 1843. In January, 1844, the liabilities appeared to have exceeded 
 the assets, by a very large sum : also the whole or greater part of the 
 losses of the company had been incurred prior to B.'s becoming a pro- 
 prietor in it. 
 
 The deed of settlement gave power to the directors to sell shares ;(//) 
 it only prescribed that a transferee should execute a deed, if required by 
 //,, directors, and it appeared that these directors never so required B. 
 to execute. 
 
 As to the twenty shares, all the formalities were observed; about them 
 there was, therefore, no question. 
 
 As to the fifty shares purchased from the directors, B. was held to 
 have taken the company, at that time, for better or worse, and put him- 
 self in the same position as any other shareholder; and it was said to be 
 impossible to suppose that every different purchaser of shares from the 
 pitcw/yi directors, *enters into a separate and distinct contract with the 
 L ' J directors, having regard to the liabilities, and the state of the 
 concern at the time. 
 
 As to the thirty shares, the formality of a deed of transfer had been 
 waived, in like cases, both by vendors and the directors: and tin' court 
 thought they were all competent to waive that, (A) and did not consider 
 the circumstance, that there was no deed of transfer, competent — when 
 there Was no doubt of the nature of the contract — to \arv the liability of 
 the purchaser to the company, or the relation in which he stood to the 
 vendors. 
 
 These shares were considered to have been "effectually transferred," 
 within the meaning of the phrase, as used in the deed of settlement, for 
 every purpose. 
 
 It is to he observed, tliat. notwithstanding anything in a deed of Set- 
 
 (/) Supra, pp. 541, 546. 
 
 Cj) in re North of England Banking Company, (Bernard's case,) 5 De G. k S. 
 
 (Ii) 5 De G. k S. 287, 288.
 
 C P V A R T N E R S II I P S, ETC. 399 
 
 tlenient, the liability of tlie transferor of shares remains, and must remain 
 at law in favour of creditors of the company, just where it was before 
 the transfer ; that is, whatever liability had attached during his owner- 
 ship of the shares continues after the transfer.(t) 
 
 In the same company, A. buys through a broker one hundred shares 
 in one parcel, and pays the purchase-money, 300/., to him; the shares 
 belonged to B. and C, each owning fifty of them. A. was accepted as 
 transferee by the directors, and his nanie duly entered in the company's 
 books, as proprietor of one hundred shares : and he received certificates 
 to the same effect ; B., by deed, dated 19th December, 1846, duly trans- 
 ferred to A. five shares ; no transfer of the other ninety-five shares was 
 ever executed ; the company stopped payment 6th March, 1847, before 
 A. had executed the deed of settlement, and before he had received any 
 dividend. Then the directors made a call of hi. a share, upon which A. 
 pays 500/. ; 30th November, 1848, the master charged *with the .-^r,--,-, 
 winding up of the company, made a call of 30/. a share, under >- J 
 which A. paid a further sum of 2,500/., in respect of his shares, being- 
 allowed, as part thereof, the former sum of 500/. paid to the directors' 
 call ; 30th June, 1849, A. received notice of a further call by the master, 
 of 20/. per share. 
 
 It must be observed, that, in the deed of transfer of the five shares, 
 A. had covenanted with the vendor, and also with the public officer of 
 the company, to pay all instalments and sums of money then due, or 
 thereafter to become due, in respect of the five shares. 
 
 This covenant, it was held, must govern the whole ; the one hundred 
 shares forming the subject of a single contract. Then the covenant 
 operated to throw the entire liability, both past and present, from the 
 vendor upon the purchaser, and the purchaser, therefore, was liable, as 
 a contributory, for the one hundred shares, to the full extent of the 
 covenant.^-) 
 
 A person who has entered into a contract for the purchase of shares 
 from a company, which has been approved by the company, and of 
 which a specific performance could have been enforced against him, will 
 be liable, as a contributory, although no complete or formal transfer of 
 the shares, according to the deed of settlement, have been made before 
 the company stopped payment. The price of the shares, it is to be 
 observed, had been paid to the company 28th January, 1847 ; the com- 
 pany stopped 8th March, 1847. 
 
 The time when, for the purpose of being placed on the list of contri- 
 butories, in cases of winding up the affairs of the company under the 
 Winding-up Acts, a person becomes a member, is the time when he 
 entered on a binding contract to take shares. (Z) 
 
 (i) Bernard's case, 5 De G. & S. 289. 
 
 (k) In re North of England Banking Company, (Dodgson's case,) 3 De G. & S. 
 85. 
 
 (?) In re North of England Banking Company, (Sanderson's case,) 3 De G. & S. 
 66 ; see Dodgson's case, 3 De G. & S. 90, remarks on this case. Name of husband 
 to be on list of contributories, he having received dividends on her shares, signing 
 the warrants per proc. of his wife, Burlinson's case, id. 18; see Dodgson's case, 
 id. 90. 
 
 March, 1857.— 27
 
 1 ii GRANT ON THE LAW OF BANKING. 
 
 r*--o-i *The statute of 7 Geo. IV. o. 46, as has been observ. id, does 
 L J not directly affect the question which arises in Buoh a case; that 
 statute deals with the liability to creditors, and sect. 13, makes the 
 existing shareholders primarily liable ; but inasmuch as the question 
 which arises in such a case realty is only what is the liability between 
 the member- themselves, the statute of itself has mi bearing cm the ques- 
 tion, whether a person is liable to be contributory in respect of liabilities 
 incurred before he became a member. (/) 
 
 The same deed of settlement forbid any share being transferred, on 
 which a call was due and unpaid, and declared void all transfers made 
 contrary to the deed. A legatee of shares, on which a call was due, 
 took a transfer of them from the executors by a deed, to which an officer 
 of the company was party : the legatee applied for the dividends, but 
 was refused, until the call was paid up; this was never done; the legatee 
 afterwards married, neither she nor her husband, either paying or receiv- 
 ing anything in respect of the shares. Nine years afterwards tin- husband 
 was held liable as a contributory, and it was referred to the master to 
 find whether the wife's name also should not be placed on the list.(«i) 
 
 The same deed of settlement provided, that the half-yearly balance 
 sheets of the company's accounts should, as between the shareholders, 
 be binding and conclusive, unless some error shall be discovered therein; 
 it also declared, that a transfer of shares should not release the transferor 
 from liability in respect of his proportion of antecedent losses. A. 
 transfers shares; neither in the preceding nor following half-yearly 
 balance sheet is there shown any loss to have been sustained by the com- 
 pany. The deed provided, that the directors at every half-yearly general 
 meeting of the company should exhibit to the shareholders a balance 
 sheet, &c, and "such a statement of the probable amount of losses to 
 r *~-o-i be apprehended from the subsisting accounts and ^engagements 
 L J of, or with the company, and generally of the state and progress 
 of affairs up to the 30th June and 31st December preceding, as the 
 directors shall deem expedient, for the interests of the company, to be 
 made public." The cashier, who prepared the two balance Bheets 
 referred to, proved that the bank had sustained enormous losses at the 
 time they were prepared, and that the representations upon them were 
 in substance incorrect. 
 
 It was held, in equity, to be impossible to consider A. to be liable as 
 a contributory, upon the winding up of the company's affairs, without 
 contradicting the clause in the deed, making the balance sheets conclusive 
 on the shareholders. (h) 
 
 By the same deed of settlement, it was provided : " In case any per- 
 son, in whom any shares shall, by original subscription, purchase, niar- 
 ri.eje, bequest, representation, or other mode ot acquisition, become 
 vested, and who shall not have executed the deed of settlement, shall, 
 for six calendar month- alter notice in writing, for that purpose, neglect , 
 
 (I) See note (I), preceding page. 
 (m) Sadler's case, 3 De G. >v S. 36. 
 
 (n) In re North of England Banking Company, (Holmes's case,) 4 De G. & S. 
 312. Ne exeat Regno against contributory, (Mawer'a case,) id. 349.
 
 COPARTNERSHIPS, ETC. 401 
 
 or refuse to execute the same, it shall be lawful for the directors to 
 declare the shares so vested in such person, so neglecting, or refusing, 
 and all benefit and advantage whatsoever incident thereto, to be forfeited 
 to the other shareholders, and the same shall be forfeited accordingly." 
 
 It had not, however, been the practice of the company, or directors, 
 to enforce the rules, requiring notice to be given by executors, of their 
 intention to become shareholders, the usual course having been for the 
 company to be satisfied with the production, and registration, in their 
 books, of the probate of the will of the deceased shareholder, or letters 
 of administration of his estate, together with such evidence as might be 
 sufficient to satisfy the company of the identity of the person filling the 
 office of executor, or administrator, and thereupon to pay the dividend 
 to him. 
 
 *In a case where William Glaholme, a shareholder, died, intes- r^c-r^-i 
 tate, and his brother was allowed to receive the dividends, without L J 
 administering to his estate, on his signing receipts thus : — " Thomas 
 Glaholme, representative of William Glaholme, deceased," but he never 
 took out letters of administration, the shares were never transferred into 
 his name, nor was his name ever returned to the Stamp Office, as a 
 member; he was held not liable as representative, nor in his own right, 
 to be made a contributory, (o) 
 
 Effect of Winding-up Acts. — On the winding up of a trading com- 
 pany, against whom a banking company has a claim, it is not imperative 
 on the Court of Chancery, to decide the legal question of debt, or no 
 debt, in such case ; if the circumstances under which the claim is made 
 are such, as to involve points of law, which the court may conceive not 
 to be well settled, the court has a right to have the assistance of a court 
 of law, and may direct a claim, merely to be admitted until the claimants 
 establish their demand at law, for which purpose they will have liberty 
 given them, to take such proceedings at law, as they may be advised j(p) 
 although it was objected, that the trading company, not being one which 
 is authorized to be sued by any officer, could not be sued by the official 
 manager. (^) 
 
 The above is stated to show that the truth is, as it seems, the Wind- 
 ing-up Acts are intended for the benefit of con tributaries, and only 
 secondarily for the benefit of the creditors, whose cases are scarcely 
 interfered with by them. It is useful, that, in the process of winding 
 up, the extent of the claims may be known, that something may be had 
 to regulate the making of calls, in order to discharge the liabilities 
 *of the company; but the Winding-up Acts do not intend other- pugyg-i 
 wise to interfere with the creditor, (r) Indeed, the statute is l J 
 cautiously and studiously framed, so as not to vary, or affect the rights 
 of creditors. (s) 
 
 (o) In re North of England Banking Company, (Glaholme's case,) 1 De G. & S. 
 583, affirmed 1 Hall & T. 123. 
 
 (p) In re Norwich Yarn Company, (The East of England Banking Company's 
 case.) 5 De G., M. & G. 505. 
 
 (q) See 11 C. B. 498 ; 3 De G., M. & G. 146 ; 11 & 12 Vict. c. 45, ss. 50, 90 
 
 (r) S. C, 21 L. J., Chanc. 823, n. (») H C. B. 516.
 
 402 ANT ON THE LAW OF BANKING. 
 
 Liabilities of Shareholder* after Dissolution. — With respect to the 
 liabilities of the partners, or shareholders, after the dissolution of a bank- 
 ing copartnership, it is necessary to enter more fully into explanation, 
 
 than has hitherto been done; the notices of such questions having only 
 occurred incidentally to the discussion of other principal matters. 
 
 When a banking copartnership stops payment, and dissolve- Itself, the 
 question arises, what is the course for a customer to take whose account, 
 at the time of dissolution, showed a balance in his favour, in order to re- 
 cover the debt due by the copartnership? One answer is, he may sue, 
 and recover the whole from any one of the late partners, subject to a plea 
 in abatement. 
 
 The following instances show the extreme difficulty that lies in the 
 way of a late partner, in such case, as regards making out his defence, 
 and protecting himself: — 
 
 An action is brought to recover the balances due on the deposit 
 account of the plaintiff, with the Isle of Man Bank, of which the defend- 
 ant had been one of the shareholders. The defendant pleads that the 
 promise, &c, was made by him, jointly with several other persons named 
 in the plea. The plaintiff denies that it was made as alleged. On this 
 issue is joined ; and the parties go to trial, where it is proved that there 
 are other persons, who were partners in the bank, at the time of the dis- 
 solution, (up to which time the plaintiff had kept an account with the 
 bank,) besides those named in the plea. The plea was, therefore, held 
 rxnifri t0 De disproved, and the plaintiff having proved a balance *of 
 L °' J upwards of G1GL, had a verdict for the whole amount, which the 
 Court of Exchequer afterwards upheld. (tf) 
 
 Now it is to be remarked, that the difficulty of obtaining a correct 
 account of the persons who were partners at any given time must almost 
 always be great, in the case of a party not being a director; for the re- 
 turn to the Inland Revenue Office being only periodical, is not good 
 proof, because numbers of persons may have become partners, and the 
 reverse, since it was last made up. 
 
 But this is not all, for the only direct evidence to identify the defen- 
 dant as a partner, wag proof that a person of the same name had sub- 
 scribed the deed of settlement j this fact, taken in addition to the plea, 
 and the course taken on the proceedings at the trial, were held to consti- 
 tute sufficient ei idenee to go to the jury, that he was a partner. 
 
 In anotl 'he same plaintiff brought an action againBt another 
 
 1 partner in the Bame bank; a similar plea was pleaded with the 
 I but the aceonnfc, in this ease, was kept at a branch bank, 
 lished at Castletown. The deed of settlement provided for the es- 
 tablishment of branches within the Me of Man, if agreed to by the 
 unanimous rote of the directors, at a meeting convened in a manner pre- 
 scribed. There was do evidence that the Castletown branch had been 
 established with the prescribed formalitiesj but it was shown, that it had 
 been carrying on busim Bfl for thn e years previous to the cause of action 
 
 Oreffin v. Calvert, 14 M. k W. LI; Bolfe, B., dissentients, Pollock, C. B. and 
 
 Phut. P., deeiding m above.
 
 COPARTNERSHIPS, ETC. 403 
 
 arising, during all which time the defendant had been a partner of the 
 bank, and had received dividends, and had never made any objection to 
 the establishment of this branch. On the other hand, there was no di- 
 rect evidence that he knew of the establishment of it, and it seemed that 
 he resided at Huddersfield. 
 
 But the court held, the mere lapse of time to be evidence r^^^-] 
 *acainst the defendant either that the Castletown Branch was L J 
 established in pursuance of the requirements of the deed of settlement, 
 or that, if it was not, he knew and assented to its establishment other- 
 wise, so as to be liable to the plaintiff, as a depositor in that branch, (v/) 
 and the plaintiff recovered in that action also. 
 
 Now, these decisions are the more deserving of notice, because they 
 define strictly the responsibility, after dissolution of the company, which 
 falls upon the quondam members of the company ; and because, on the 
 other hand, it is observable what difficulties, in most cases, lie in the way 
 of retirement, or withdrawal, of a member, who becomes dissatisfied with 
 the management or the prospects of the business ; if the affairs of the 
 company are in a languishing state, it might be very doubtful whether 
 the sale, by a member to the directors, of his shares, would be held to 
 be valid, assuming he had knowledge of the condition of the company's 
 affairs ; if he seeks to withdraw himself, by compulsory means, it is pro- 
 bable he would find that he can only obtain that relief on the ground of 
 fraud, or misrepresentation having induced him to become a member, 
 and then he must not only sue the directors and company, but make all 
 the other shareholders parties to the record. (x) 
 
 Criminal Liability. — Among the liabilties of the members, or share- 
 holders, of these banking copartnerships, is to be mentioned, the liability 
 to criminal proceedings, at the instance of the company, in respect of the 
 partnership property, &c. 
 
 Any member of any banking copartnership, of the descriptions now 
 under consideration, who shall steal or embezzle any money, goods, effects 
 bills, notes, securities or other property, of or belonging to any such co- 
 partnership, or shall commit any fraud, forgery, crime, or offence, pc-To-. 
 *against, or with intent to injure or defraud any such copartner- «- J 
 ship, shall be liable to indictment, information, prosecution, or other pro- 
 ceedings, in the namely) of any of the officers, for the time being, of any 
 such copartnership, in whose name any action, or suit, might be lawfully 
 brought against any member, for every such fraud, forgery, crime, or 
 offence, and may thereupon be lawfully convicted, as if any such person 
 had not been, or was not, a member of such copartnership.^) 
 
 (m) Crellin v. Brook, 14 M. & W. 11. 
 
 (x) Macbride v. Lindsay, 22 L. J., Chanc. 165 ; Ex parte Bennett, 24 L. J., Chanc. 
 130. 
 
 (y) See 2 Russ. Cri. & M. 385. (2) 3 & 4 Vict. c. Ill, s. 2.
 
 4(J4 G R A NT ON THE L A W F B A R K I N G . 
 
 [*579] *CHAPTEB X VI. 
 
 JOINT STOCK BANKS. 
 
 Sim i: 5th September, l v 14, it is not lawful for any company, of more 
 than six persons, to carry on business, as bankers, in England, under 
 any agreement, or covenant, of copartnership, made on or after Gth May, 
 1844, unless by virtue of letters-patent granted according to the Joint 
 Stock Hanks Regulation Act of that year.fa) 
 
 A body of persons, wishing to become a joint stock banking company, 
 are to petition the Queen, in council, according to a prescribed form ;(&) 
 and. on the report of the board of trade, that the statutory requirements 
 have been complied with, a charter will be granted;)') then a deed of 
 settlement is to be executed, containing certain specified provisions. ('/) 
 which, however, have been materially altered, in one respect, by subse- 
 quent legislation, to be mentioned hereafter, so as to admit of the re- 
 election of outgoing directors, &c.,(c) and the deed must be executed 
 by the holders of, at least, one-half of the shares,(ri) and the Queen 
 may, by the letters-patent, incorporate the company ;(/) but so that the 
 liability of the shareholders shall not be limited, (</) and actions may be 
 brought by, or against, the company, or shareholders, reciprocally,(A) 
 every judgment, &c., against the company, being enforceable against 
 nn the company, and, *under certain restrictions, against share- 
 L -I holders and former shareholders, (i\ and execution against the 
 company, proving ineffectual, may be had against any shareholder, and, 
 if that be unproductive, then against any person who was a shareholder 
 at the time the cause of action arose, with the limitation of three years, 
 Scc.Jk) such shareholder being entitled to reimbursement from the 
 effects of the company, or, in default, to contributions from the other 
 shareholders. (2) 
 
 Registration within 7 & 8 Vict. c. 110. — That a bank consists of 
 more than Bis persons, and is a banking company, carrying on business 
 within sixty-five miles of London ;(»*) that the shares are of a less 
 amount than 100/.; and that the company carry on the business of 
 bankers otherwise than by letters-patent granted according to stat. 7 & 
 8 Vict. c. 113, is not a good ground to allege why a company is not 
 entitled to registration within 7 .V 8 Vict. c. 11". if the deed of settle- 
 ment does not disclose that the company is to be a banking company; 
 for a company, under 7 A: S Vict. c. 1 10. s. L'o, when completely regis- 
 
 : & 8 Vict. c. 113, s. 1. (h) Id., s. 2. 
 
 I i«/) Id., s. 4. 
 
 J & B Vict. c. 113,s. G. 
 (g) [d., B. 7. (A) Id., s. 8. 
 
 . ,m B Vict. c. L13, s. 9. 
 
 ;■!., 8. 10, Bee supra, pp. 481, 483. Id., bb. 11, 12, 13, 14, 15. 
 
 Reg, r. Wbitmemh, L5 Q. B. G00; see 7 & 8 Vict. c. 113, s. 47; see 
 Bradshan 182. The new Joint Stock Companies Regulation 
 
 Act, L9 ..v 20 Vict. c. 17, does not apply to banking companies, tee a. 2.
 
 JOINT STOCK BANKS. 405 
 
 tered, arc only authorized to carry on the trade, or business, which is 
 according to the provisions of their deed, the registration not legalizing 
 the carrying on any business not stated in the deed.(m) 
 
 It is still necessary, that a body of persons, intended to form a joint 
 stock banking company, should be provisionally registered ; for it was 
 clear that, previously to the late act, all joint stock companies must be 
 provisionally registered, (n\ and that act does not apply to banks. 
 
 * Offices. — Such a bank, incorporated, may, nevertheless, hold r^co-i-i 
 land for the purpose of offices, &c, without being within the L 
 Mortmain Act.(o) It is to be observed, that the letters-patent incorpo- 
 rate the body for the purposes of banking, and empower them to pur- 
 chase and hold lands to such value as shall be expressed in the letters- 
 patent ; but these are granted for a term of years, not exceeding twenty 
 years. (p\ 
 
 Returns. — Within three months after the grant of the charter, and 
 before the company shall begin business, a memorial is to be made out,(<^) 
 setting forth the title of the company, the names and places of abode of 
 all the members, and of every director and manager, or other like officer, 
 and the name or form of every bank established by the company, and 
 the name of every town or place, where the business shall be carried on : 
 this is to be repeated every year between 28th February and 25th March, 
 as long as they carry on business as bankers, to be delivered to the 
 Inland Revenue Office, there to be filed, and an entry or register of it 
 made in a book, to be open to search, for a fee of one shilling • and a 
 printed list of the registered names and places of abode is to be made 
 out, from time to time, and kept in a conspicuous place, in the company's 
 principal place of business jM a like memorial shall be made out, from 
 time to time, as occasion shall require, and delivered to the above board, 
 according to a prescribed form,(s) containing the above particulars, of 
 every new director, manager, or other like officer, and the names of all 
 persons who have become members, either in addition to, or instead of, 
 any former member, and the name of every new town, in which i-^r q 9 -, 
 *the company carry on business, and the names of all who have L 
 ceased to be members; and such further account is to be filed, &c, &c, 
 as above ;(ty all these memorials to be signed by the manager, or one of 
 the directors, and verified by his declaration before a magistrate, &c.,(«) 
 and the persons whose names appear in the then last-delivered memorial 
 shall be, from time to time, the existing shareholders. (cc) 
 
 The courts, it appears, will not interfere with the company, in their 
 
 (m) See note (m), preceding page. 
 
 (n) Abbott v. Rogers, 24 L. J., C. B. 158. 
 
 (o) Ware v. Cumberlege, 24 L. J., Chanc. 631. 
 
 (jo) 7 & 8 Vict. 113, s. 6. As to lease of house in London, and as to titho*. 
 rent, &c, Vivian v. Cochrane, 25 L. J., Chanc. 553. 
 
 (q) See 7 & 8 Vict. c. 113, Sched. A. 
 
 (r) See id. s. 16. (*) See id., Sched. B. 
 
 (t) See 7 & 8 Vict. c. 113, s. 17. 
 
 (w) See id., s. 18. "What evidence of memorials, id., s. 19 ; Prescott v. Bufferv. 
 1 C. B. 41. Certified copies, id., s. 20. 
 
 (x) See id., s. 21.
 
 406 GRANT OX THE LAW OF BAHKING. 
 
 performance of the duty of making these returns, as regards the form in 
 which they are made, so as to proscribe how they are to be made, or 
 in from making in a particular way. The following example has 
 rred : — 
 
 A., being a shareholder, in a joint stock bank, executed a deed of 
 transfer of his shares to his sisfe r, and n ceived from the company certi- 
 ficates of the shares in her Dame. Previously to tin execution of tht 
 transfer, and in consequence of communications with A., the company 
 had, in their returns under 7 & 8 Viet. c. 113, omitted A.'s name, and 
 returned that of his sister as a new member of the company. The bank 
 Btopped payment; and a call was made of 5/. per share, which the sister 
 declared her inability to pay. Alter this the company returned A.'s 
 name to the Inland Revenue as the shareholder, and, subsequently, 
 informed his sister, that the company could not recognize the transfer 
 to her. 
 
 On these facts a court of equity refused, in an interlocutory applica- 
 tion, to restrain, by injunction, the company from returning A.'s name 
 as a member; partly, because, assuming A. to be right, there was no 
 ground to think that, as between A. and the company, any irremediable 
 or serious mischief would be done by the performance, by the company, 
 of the acts which it was sought to restrain ; partly, because, on the same 
 r*"ft3H assumption, none of those acts, if *done, would be conclusively 
 L J binding, as between A. and a stranger, and partly, because the 
 court thought it not clear that A. was right, and chiefly, because the 
 application in effect was, for the court to issue a direction, that a return 
 on oath shall be made in a particular form — an insurmountable diffi- 
 culty.^//) 
 
 Besides the above returns, which it will be seen are not enforced by a 
 penalty, but which the company ought not to omit to make, with all the 
 proper forms, inasmuch, as for such nonfeasance, the company might be 
 indicted as fur a misdemeanour : — there are those required by Stat. 7 & 8 
 Vict. <•. 32, s. -l.( -) to be made by every banker in England on the 1st 
 January, or within fifteen days after, in each year, under a penalty ef 507. 
 These, also, these companies must make. 
 
 Change of Finn. — The law, as before stated, («) on this subject, is 
 applicable, as regards firms of customers of the bank, to joint stock 
 banking companies, equally with private banks and banking copartner- 
 ships: an in-tance of a nature not unlikely to occur in practice may be 
 I here, as a guide, in respect to one of the most material questions 
 that can arise out of the subject , of the relations between a firm customer, 
 and a joint stock banking company, when one of the directors of the 
 company is a partner in the firm. 
 
 A partnership, con.-i.-tin- of four persons, carry on bu.-iness under the 
 
 firm of A. B., & Co., and open an account with a banking company j 
 
 then, one of the four partners retires from the business, but this is not 
 
 rtized in the London Gazette, nor is the pass-book altered, although 
 
 Bullock v. Chapman, 2 De Gh A B. 211, 214. 
 
 Bee the sect, supra, p. (a) See supra, pp. 304, 305.
 
 JOINT STOCK BANKS. 407 
 
 the style of the firm is altered on their sign-hoard, cards, and invoices, 
 and a cheque drawn in the style of the old firm was presented, and paid 
 by the bank, after the change. B. *is also a director of the r*5g_n 
 bank, but without any share in the management of the concern, L J 
 and not interfering with the accounts, though attending the weekly 
 meetings of the directors ; he never mentioned the fact of the change to 
 any of them. 
 
 This circumstance was determined not to operate as notice to the com- 
 pany, of the dissolution of the partnership, so as to exonerate the retired 
 member of the partnership from a debt incurred by the partnership with 
 the company, subsequently to his retirement; (7/) because B. could nut 
 be regarded as agent of the company, so that notice to him was notice to 
 the principal. 
 
 On the other hand, however, notice to the head office of a joint stock 
 bank will almost certainly be held to be notice to its branches ; at all 
 events, from the time when the information of the fact could be trans- 
 mitted to them,(c) because that is a case of principal and agent, and 
 it is the duty of the principal to communicate notices, &c, to the agent. 
 
 Capital. — The capital stock of a joint stock banking company, under 
 this statute, is in no case to be less than 100,000?. ; the actual amount 
 which the company propose to go on with ; the means by which it is to 
 be raised ; the amount of it paid up at the date of the petition to the 
 queen, in council, for the grant of letters-patent ; where and how such 
 paid-up capital is, at that date, invested ; must all be set out in such 
 petition. ((/) 
 
 It might seem to be too obvious, to require statement, that customers 
 of banking, as of all other joint stock concerns, are, in the highest 
 degree, interested to be precisely informed *of, and to ascertain p^g^-i 
 exactly, the amount of the capital with which the company is L 
 carrying on, or proposes to carry on, its concerns ; but the frequency of 
 misapprehensions on this subject, and on the resulting question of the 
 extent of the liability of directors, shows that it will be desirable to 
 call the attention of all who deal with banks, of this nature, very parti- 
 cularly, to the importance of due inquiries, and full satisfaction respect- 
 ing it. 
 
 Generally, the known principle of equity is : — if a person, or a body 
 of persons, induce another to enter into a contract, on the faith of repre- 
 sentations of facts, which are incorrect, that person, or body of persons, 
 is bound to make good those representations. 
 
 When, however, the directors of an association, for the purpose of 
 banking, represent the capital of the concern to be a certain amount — 
 say, 100,000/., divided into so many shares, each of such and such 
 amount, all that they must be understood to intend, according to the 
 known usage in such matters, is to state their meaning, (if they get sub- 
 
 (b) Powles v. Page, 3 C. B. 16, and cases cited there ; the case itself related to a 
 banking copartnership under 7 Geo. IV. c. 46, the principle of it applies equally 
 to joint stock banking companies. 
 
 (c) See principle laid down in Willis v. Bank of England. 4 A. & E. 21. 
 
 (d) 1 & 8 Vict. c. 113, s. 2.
 
 408 GRANT OX THE LAW OF BANKING. 
 
 scribers enough,') to work the undertaking with that capital. Without 
 Bomething more than the usual statements on such occasions, this does 
 not amount to a representation, that the whole of this capital has been 
 paid up, and is in the coffers, or at the command, of the company, to 
 conduct their business with, so as to enable the customers to say, •• inas- 
 much as you represented the capital to be 100,000?., you, the directors, 
 are liable, and each of you is liable, to make good to us the whole amount 
 of that sum." 
 
 Nor will directors be held liable in equity, although there may be the 
 additional circumstance of a clause in the deed of settlement, providing 
 that each shareholder was only to be liable to the extent of his contribu- 
 tion to the capital of 100,000/., by which, it might be considered, the 
 directors meant to represent, or did represent, there to be 100,000/., worth 
 of shares actually paid up.(e) 
 
 r *cQp-i ^Shares. — In the petition to the queen, in council, for the 
 L J grant of letters-patent, the persons proposing to become a joint 
 stock banking company, under this statute, must set out the proposed 
 number of shares in the business; the shares are not to be less than L00?. 
 each ; the actual amount of each of the shares into which the proposed 
 capital stock is to be divided must also be stated. (/) 
 
 Every deed of partnership of a joint stock company, under this statute, 
 must contain specific provisions for preventing the company from pur- 
 chasing any shares, or making advances of money, or securities for 
 money, to any person, on the security of a share, or shares, in the part- 
 nership business. (<?) 
 
 Buying up Shares. — There have been cases in which directors have 
 bought up shares, in the company, with money taken from the funds of 
 the company. Now, when there is no authority given, in the deed of 
 settlement, empowering them to do this, they are held liable in < quity,(h | 
 to this extent ; viz., they must not only refund the sums which they 
 have applied, out of the company's funds, in these purchases, but they 
 must stand in the shoes of the persons whose shares they have so bought 
 up, and incur their liability to the company, that is, they must pay up 
 the unpaid residues of the prices of the shares due on the shares respce- 
 tively, which those persons would have been liable to pay up, had they 
 remained shareholders; for the directors cannot he permitted to relieve 
 any one from liability, to pay up the residue of his contributions to the 
 capital which was to be charged with the debts due to the customers.(A) 
 
 On the whole, it appears settled, that, in ordinary cases, and without 
 some special authority in the deed of settlement, (if even then,) directors 
 r *- 87 -, cannot enable shareholders to withdraw *from the concern; this 
 L J is ultra vires of directors as Buch.(t) 
 
 Liability of Solicitor. — As regards the above, and other incidents of 
 a director's responsibility, it is material to observe, that it is not only 
 persons who are regularly and formally directors who may incur it; others 
 
 (e) Evans v. Coventry, 25 L. J., Chanc. 49'J, 500. 
 
 (f\ 7 4 8 Vict, c 113. s. 2. (.'/) Id., s 4. 
 
 (/-) Evans r. Coventry, 25 L. J., Chanc. 501 ; see supra, p. 547. 
 Ei parte Bennett, 24 L. J., Chanc. 130; see GMoo. P. C. 171.
 
 JOINT STOCK BANKS. 409 
 
 may so act as to bring themselves within it ; thus, a solicitor of a com- 
 pany, who is in the habit of attending directorial meetings, receiving the 
 allowances, paid for their attendances, to directors, taking the chair, 
 which none but directers were authorized to do, has been held to have 
 acted so as to render himself responsible as a director, during the time 
 of his attendances, (/c) 
 
 Transfer of Shares. — Subject to the regulations of the Joint Stock 
 Banks Regulation Act, and to the provisions of the deed of settlement, 
 every shareholder may sell and transfer his shares by deed duly stamped, 
 in which the consideration shall be truly stated, such deed to be accord- 
 ing to a given forrn,(£) or to the like effect; such deed, after execution, 
 to be delivered to the secretary of the company, to be kept by him, and 
 a memorial thereof entered by him in the register of transfers ; then the 
 entry is to be indorsed on the deed, at a fee for every such entry and in- 
 dorsement, of not exceeding 2s. 6c?., payable to the company. 
 
 Until such transfer have been delivered, as above, to the secretary, 
 the buyer is not entitled to dividends, or to vote, in respect of such 
 share, (m) 
 
 No share can be transferred until all calls, for the time being due 
 on it, and every other share the owner of it holds, shall have been 
 paid.(») 
 
 *The register of transfers may be closed by the directors, for p^gg-i 
 not more than fourteen days, previously to each ordinary meet- L J 
 ing ; they may fix a day, for the closing, of which seven days' notice is 
 to be given in a newspaper, (it seems the London Gazette is intended ;(o)) 
 any transfer made within such fourteen days shall be considered as being 
 made subsequently to such ordinary meeting, as between the bank and 
 the transferee. (p) 
 
 When shares have come to any one by the death, bankruptcy, or in- 
 solvency of a shareholder, or by the marriage of a female shareholder, or 
 by other legal means than by the above mode of transfer, the claimant 
 shall not receive dividends, or vote in respect of them, until his acquire- 
 ment of them have been authenticated by a declaration in writing, stating 
 the manner, how, and to whom they have passed, to be made and signed 
 by some credible person before a magistrate, &c.(e/) 
 
 This declaration is to be left with the secretary, who thereupon must 
 enter the name of the person entitled, on the register book of sharehold- 
 ers, at a fee of not exceeding 2s. Qd., payable to the company, (r) 
 
 Where persons are jointly entitled to shares, all notices required to be 
 given to shareholders must be given to the person whose name stands 
 
 (k) 25 L. J., Chanc. 501. (0 See 7 & 8 Vict. c. 113, Sched. C. 
 
 (m) Id., s. 23. (n) Id., s. 24. 
 
 .o) In the stat. s. 25, the words used are, "notice shall be given by advertise- 
 ment in some newspaper as after mentioned," but the only newspaper mentioned 
 subsequently is the London Gazette, mentioned in S. 38. 
 
 (p) Id., s. 25. 
 q) See Id., s. 26. The directors may require such other form as they think fat, 
 
 s. 26. 
 
 (r) See Id. Transmission of shares by will, intestacy, marriage, id., s. 2 i.
 
 410 .ANT OH THE LAW OF BANKING. 
 
 th*>t in tl: ■ c of shareholders, which is to be notice to all of 
 
 them. (a) 
 
 When the shareholder is a minor, idiot, or lunatic, the receip* for any 
 1 money payable to him, of the guardian, in *case of a minor, of 
 L ' J the committee, in ease of an idiot or lunatic, shall be suffi- 
 cient.^) 
 
 The company are not bound to regard trusts to which any shares may 
 be Bttbject.(u) 
 
 The receipt of the person, in whose name a share stands in the books 
 of the company, discharges the company, in respect of any dividend ur 
 other sum, payable in respect of such share, notwithstanding any trust 
 attaching to the share. («) 
 
 The liability of shareholders is unlimited ;(.'•) they may be sued by, 
 and may sue, the company/;/) and judgment, decrees, and orders, against 
 the company, may, in certain circumstances, be enforced against them 
 individually, whether they were members at the time the cause of action 
 arose, or have been members within three years. (2) 
 
 Ex, cutors. — As to the liability of executors, in respect of shares of the 
 testator, in a joint stock banking company, it seems desirable to state 
 such principal points as have been decided by the courts. 
 
 Anne Hall, being an owner of thirty shares, regularly entered in her 
 name in the books of the company ; by her will gives them to her 
 daughter and her Bon, making the son and a Mr. Crossfield joint execu- 
 tors; the latter never took an active part in the executorship; but he 
 proved the will, and acted as executor, thus becoming, in all respects, 
 liable as executor. An entry uf the probate of the will was duly entered 
 in the books of the company, in compliance with the above statute, giv- 
 Lng the executors a righl to deal with the shares, according to the pro- 
 visions of the deed constituting the company; the shares were entered 
 in the names of R. Hall, (the son of testatrix,) and J. Crossfield, as exe- 
 , cutors, &c. No communications ever took place between *the 
 L ' -I latter and the bank, relative to the shares; Hall received the 
 dividends, and corresponded with the bank on the subject of the shares : 
 Hall sold some of them, and received the dividends of the remainder. 
 Afore than nine years after the death of Anne Hall, the company failed. 
 Then the question was, whether Crossfield was liable to the debts of 
 the company, in respect of these Bhares, and it was held by Lord St. 
 Leonards, C, that he was. (a) There was in the deed of settlement, in 
 this case, an independent covenant — that is, a covenant by each .-hare- 
 holder — binding their real and personal representatives, that they will 
 continue liable, in reaped of any Bhares, that form part of their 1 
 The reason for the insertion ofsuoh a clause is this — the executors, qud 
 ators, not becoming members, and n<»t having sold, would not them- 
 
 (*) Id., s. 28. 
 
 ft S Vict c. 113, (m) Id., s. 30. 
 
 (z) Id.. 8. 7. (y) Id., s. 8. 
 
 (z) Id., Be. 9, i". Bee Bupra, pp. 482, 483. 
 (a) c kse, 2 De <;... M. & G. 128.
 
 JOINT STOCK BANKS. 411 
 
 selves be responsible personally, and until they sold, and other persons 
 came in their place, there would be no personal responsibility. 
 
 Generally, the rule is, that executors, holding shares merely as such, 
 and never having taken them to themselves as beneficial holders of them. 
 are only liable to the extent of the assets of those whom they represent : 
 the liability is that of the estates of the original holders ; and so is the 
 practice under the Winding-up Acts, and in a creditor's suit, in the case 
 of a representative of a deceased executor. (l>\ 
 
 In the case just referred to,(c) it was in vain contended upon tbe facts, 
 that, as by the deed no executor is entitled to receive the profits of the 
 share of his testator, until he shall have become a member, but those 
 profits shall be kept in suspense, accumulating ; to be a great hardship 
 on Mr. Crossfield, that the money is not now in deposit, as it ought to 
 have been, because, if it had been so, it would have gone in a great 
 measure to answer the liability sought to be cast upon him in the suit ; 
 and further, that this circumstance shows *Hall to have been r:) ., Qn 
 accepted as a member, and the company to be bound by the ac- L J 
 ceptance. 
 
 In answer to this Lord St. Leonards said, "I have held, and am pre- 
 pared to hold again, that directors may do acts in reference to the trans- 
 fer of shares, binding upon the whole body, by which they waive certain 
 formalities which they ought to have observed. "(c) 
 
 In an ordinary trading partnership it is to be remembered, that, in the 
 common law courts, every member is liable to the full extent of his for- 
 tune, for the debts of the whole body; and no stipulation in the deed of 
 settlement can alter this liability, (d\ as to the creditors of the company; 
 their rights remain precisely the same, whether such a stipulation be, or 
 be not, inserted in the deed ; such a provision applies only between the 
 shareholders;^) the common law pays no regard to the stipulations, re- 
 stricting liability, when the interests of third persons intervene. (/) 
 
 Galls. — From time to time the directors may make such calls on the 
 shareholders, "in respect of the amount of capital stock, respectively 
 subscribed by them/' as the directors shall think fit.(V/) 
 
 Whenever execution upon any judgment against the company shall 
 have been taken out against any shareholder, the directors, within 
 twenty-one days next after notice shall have been served upon the com- 
 pany, of the payment of any money by such shareholder, or by his exe- 
 cutors, &c, in or toward satisfaction of such judgment, shall make such 
 calls upon all the shareholders, as will be sufficient to reimburse such 
 shareholder, &c, and every shareholder must *pay every call, to r ^r 09 -i 
 the persons, at the times and places, from time to time appointed <- ' l ^J 
 by the directors. (A) 
 
 (b) Evans v. Coventry, 25 L. J., Chanc. 499. 
 
 (c) 2 De G., M. & G. 127, 128 ; see 5 H. Lds. 297, and cases there. 
 
 \d) This is not peculiar to the common law of England, see Fox v. Clifton, 6 
 Bing. 776. 
 
 (e) See Hallett v. Dowdall, 18 Q. B. 2, 50; Smith v. Hull Glass Company, 8 C. 
 B. 675 ; S. C, 11 C. B. 897 ; and see 25 L. J., Chanc. 492. 
 
 (/) See Evans v. Coventry, 25 L. J., Chanc. 497, 498, for observations as to 
 the relief in equity in such case. {g) 7 & 8 Vict. c. 113, s. 31. 
 
 (A) 7 & 8 Vict. c. 113, s. 31. Interest at 51. per cent, per annum on calls un-
 
 412 GRANT ON THE LAW OF BANKING. 
 
 Besides being liable to pay mils, by way of action, shareholders ma] 
 forfeit their Bhares, by leaving calls unpaid, if the directors, at any time 
 
 after six calendar months from the day appointed for the payment »( 
 rach calls, declare them to be so forfeited ; the shareholders still remain- 
 ing liable for the calls due before the forfeiture. (/) 
 
 But in order to authorize the sale, &c, of such shares, the declaration 
 must be confirmed at some general meeting, held at least two calendar 
 months from the day the notice of intention to declare was given. (/,•) 
 
 And on payment of the arrears of calls, due on Buch shares, &c., 
 being made before the actual sale of them, they revert to the original 
 owner.(<) 
 
 Directors. — The deed of partnership of every joint stock banking com- 
 pany, under this statute, which is to be prepared according to a form, to 
 be approved of by the Board of Trade, in addition to any other provi- 
 sions which may be contained in it, must contain specific provisions for 
 the management of the affairs of the bank, and the election and qualifi- 
 cation of directors. (m) 
 
 As regards re-election of retiring directors, no deed of settlement, of 
 any company, established since 29th July, 1856, need contain any pro- 
 viso for preventing the re-election of retiring directors, either absolutely, 
 or for any limited period ; and, in every hanking company, being at that 
 date ^established under 7 & 8 Vict. c. 113, the directors retiring 
 L J at any general meeting, henceforth will be eligible for re-elec- 
 tion, (if duly qualified in other respects,) notwithstanding the proviso of 
 the last-mentioned statnte,(m) that the deed of partnership, of every 
 banking company, to be established under that act, should contain a spe- 
 cific proviso, for the retirement of at least one-fourth of the directors, 
 yearly, and for preventing the re-election of the retiring directors, for 
 at least twelve calendar months : this proviso having been lately re- 
 pealed, (nj 
 
 Any one of the directors is empowered to sign bills of exchange, or 
 promissory notes made, accepted, or indorsed, on behalf of the company, 
 provided it be therein expressed to be so made, &c, by him on behalf of 
 the company; and he will not be liable on such bill, &c, otherwise than 
 he would be on any other contract, signed by him, on behalf of the com- 
 pany. (</) 
 
 The powers and obligations of directors, as to calls, are stated under 
 that head,(jp) and, generally, some observations, applicable here also, 
 will be found above. (7) 
 
 j. 32. Action for calls, ss. 33, 34; proof, s. 35. Register book to be proof 
 oJ proprietorship, s. 36; Bee Waterford Railway Company v. Wolseley, 1 Ir. L. B. 
 (N. 8.) 444. , . .. 
 
 (*) id. b. 31. Hotice of the intention to declare muBl first be Berved, &c, id., s. 
 38 : if the address i- not known, must be published in London Gazette, s. 38. 
 
 (A) Id., s. 39. Evidence of forfeiture, s. 40. Title to such sliares, of buyers, s. 
 40. Limit on power to sell, B. 41. 
 
 (/) M , Bi 42. ('") 7 & 8 Vict. c. 113, s. 4. 
 
 (n) 19 tl 20 Vin. c. 100, ss. 1, 2. (o) 1 & 8 Vict. c. 113, s. 22. 
 
 -.,., ,,. 59!. See supra, p. 525.
 
 JOINT STOCK BANKS. 413 
 
 Generally, what has heen said of directors of copartnerships under 7 
 Geo. IV. c. 46, holds with respect to directors of joint stock banks. 
 
 Service of notices, writs, or other proceedings at law, in equity, or 
 otherwise, on any director, for the time being, by leaving the same at 
 the principal office, or if the company have suspended or discontinued 
 business, by serving personally such director, or by leaving with some 
 inmate, at his usual or last abode, is good service on the company. (/•) 
 
 In taking securities, other than actual deposits of negotiable securities, 
 goods, &c, as explained above, (s) directors and ^managers have [-*kcmi 
 frequently to consider the validity of the thing offered, by way L » J 
 of safeguard from loss ; thus, if it be a mortgage of land, it ought to be 
 satisfactorily shown, that there is no prior mortgage, or if there is, that 
 the amount of it is such as to admit, in addition, of the further mortgage 
 proposed : if the land lies in a register county, care ought to be taken to 
 see that the deed is duly registered ; if a bill of sale of goods be taken, it 
 must be duly filed ;(£) and then considerations must be gone into, as to 
 the circumstances in which the assignment is made, and if by a trader, 
 whether it is made in such a posture of his affairs as to amount to a de- 
 lay of creditors, (it) or to a fraudulent preference ;(x\ if a bond — as a post 
 obit bond — is offered, it may be, that if it have been given for a gambling 
 debt, or on some other illegal consideration, to the knowledge of the bank- 
 ing company, or their representative in the transaction, they could not en- 
 force it.(y) 
 
 Dividends. — A very commonly known temptation besets directors of 
 these and otber joint stock bodies, to declare and divide dividends to the 
 shareholders without due regard to the actual state of the company's 
 affairs. The deed of settlement mostly provides against this, by enjoin- 
 ing, that no dividend shall be made, except in a prescribed manner, and 
 under specified circumstances. Then, what is the liability of directors 
 who, in disregard of this provision, declare and divide dividends ? In 
 the event, (which, in most cases, is almost certain,) that knowledge of 
 the real state of the affairs of the company can be brought home to them, 
 they will be *made in equity to refund, not only the dividends, 
 on their own shares, which they distributed to themselves, under L -1 
 such declarations, toties quoties, but they will also be made to refund all 
 the dividends, paid under such declarations of dividend, so far as they 
 were, personally, parties to the declaring of dividends, or concurred 
 in it. 
 
 It will not suffice for th'em to prove, that they did not act under the 
 influence of the desire to pocket the dividends on their own shares, but 
 with a desire of representing the concern to be in a prosperous condition, 
 
 (r) 7 & 8 Vict. c. 113, s. 43. (s) See chapter VI. 
 
 \t) 17 & 18 Vict. c. 36. 
 
 (u) See Bittleston v. Cooke, 25 L. J., Q. B. 281 ; Leake v. Young, id. 266 ; Ex 
 parte Taylor, 5 De G., M. & G. 392 ; Ex parte Sparrow, 2 De G., M. & G. 27 ; Ex 
 parte Bland, cor. Lds. Justices, Nov. 1855. Mortgage of machinery, Mather v. 
 Fraser, 2 K. & J. 536 ; see Flory v. Denny, 21 L. J., Exch. 223. 
 
 (x) See supra, pp. 85-87, 321. 
 
 \y) Hawker v. Hallewell, 25 L. J., Chanc. 588; as to mortgage of reversionary 
 interest, S. C.
 
 414 GRANT ON THE LAW OE BANKING. 
 
 bo as to attract an increase of custom, and to raise the value of the si 
 and stimulate the demand for them in the market : — it will make do 
 difference, that they insist ui> it, their real objeot was, the ultimate 
 interests of the Bhareholdera, and the advantage of all parties: — they 
 will be held liable for the aggregate of the dividends, which have been 
 disbursed under declarations of dividends, to which they were parties, 
 or in which they concurred ;(z) for their acts are to be regarded as 
 fraudulent towards any person, who may be induced by this false sem- 
 blance of prosperity, to place his money with the company; it is not 
 only that such acts are contrary to the regulations of the company, but 
 they constitute breaches of duty as well to the customer as the share- 
 holdei 
 
 Manager. — A manager, or other officer to perform the duties of a 
 manager, must be appointed, in all cases of joint stock banking companies, 
 under this statute.(a) 
 
 The duties of the manager, who is not personally liable on contracts 
 signed, by him, on behalf of the company, are the following only, as 
 limited by tke statute. 
 
 Bills of exchange, or promissory notes, made, accepted or indorsed on 
 
 behalf of the company, may be made, &c, in any manuer specified in 
 
 p the deed of partnership, provided *they be signed by the manager 
 
 l ° J (or one of the directors,) and be, by him, expressed to be so made, 
 
 &o., by him, on behalf of the company.(A) 
 
 Service of notices, writs, or other proceedings at law, or in equity, or 
 otherwise, on the manager, by leaving them at the principal office of the 
 company, or if the company have suspended or discontinued business, 
 by -erviug personally the manager, or by leaving with some inmate, at 
 the usual or last abode of the manager, is good service on the company.(c) 
 
 Meetings. — There must be holden once, at least, every year, at an 
 appointed time and place, an ordinary general meeting of the company. (c<) 
 
 Extraordinary general meetings must be held upon the requisition of 
 nine shareholders, or more, having, in the whole, at least twenty-one 
 shares, (o 7 ) 
 
 Audit, — The deed of partnership must contain provisions for t lie yearly 
 audit of the accounts by two or more auditors chosen at a general meeting 
 of the shareholders, and not being directors.^/) 
 
 Publication of Accounts, (fee— The deed of partnership must contain 
 provisions lor the publication, once, at least, in every month, of the 
 assets ami liabilities, and for the yearly communication to every share- 
 holder of the auditor,-' report, of a balance sheet, and profit and loss 
 .nnt.('/j 
 
 \futual Duties of Members. — In general, asregards the mode in which 
 joint stock banks will be (halt with by the courts, the law is to be 
 gathered from the principles laid down, by high authority, thus, in 
 speaking of joint stock companies generally. 
 
 (2) I! . entry. 25 L. J., Chunc. 500, 501 ; see supra, p. 517. 
 
 (a) 7 .v 8 Vict. c. 113, s. 4. 
 
 (b) 7 k 8 Vict. c. 113, s. 22. (c) Id., s. 43. 
 (J) Id., s. 1.
 
 JOINT STOCK BANKS. 415 
 
 *If a deed of settlement contains provisions, with respect to r *rn-i 
 general and extraordinary meetings, it is especially necessary to L 
 hold its members, as strictly as may be, to the very letter of their con- 
 tracts with each other ; for, otherwise, when it is proposed to deal with 
 the affairs of the company, in pursuance of resolutions passed at such 
 general or extraordinary meetings, many of the partners, who may be 
 unable or unwilling to attend, may find themselves bound by proceedings 
 which have taken place at such meetings, though directly opposed to the 
 terms on which they have entered on the partnership. (e\ 
 
 A resolution, even of a general meeting, involving a positive breach 
 of the existing rules and regulations of the company, the deed of settle- 
 ment expressly confining the powers of general meetings to measures not 
 inconsistent with those rules, is clearly beyond the powers of a general 
 meeting, but it may, or may not, be within those of an extraordinary 
 meeting, according to the terms of the deed.(e) 
 
 The majority of a joint stock company have no power to divert the 
 funds to other and different purposes from those contemplated in the 
 deed of settlement ;(e) for though the majority may bind the minority 
 upon every point which the deed, by their common contract, authorizes, 
 ye* they have no authority whatever to bind the minority on any matter 
 that is not within the common contract. (/) 
 
 It is of no avail to bind the partnership, that the directors and others 
 present at a meeting, where any course is resolved on beyond the objects 
 contemplated in the deed, bind themselves not to dispute what is there 
 agreed on ; that may or may not bind the individuals ; it does not bind 
 the company//) 
 
 Partners may, no doubt, however numerous, as other *people ^p.^-. 
 may, depart from the general contract between them, but they L -I 
 cannot depart from it without the consent of every individual member 
 composing the partnership. If what they do is not done within the 
 limits of the contract which they had originally entered into, it is not 
 binding on their co-partners. Nor can it be said that the company are 
 precluded — as was once thought might be alleged with effect — by acquies- 
 cence in what has been done ; because, properly speakiug, the ground is 
 not laid for that argument, unless it be shown that all the members were 
 present at the meeting where the alteration was made, or that all had 
 knowledge, and a perfect understanding, of what was done, and of the 
 effect of it, and assented to and acquiesced in it. But, in truth, prac- 
 tically, the application of the doctrine of acquiescence to such cases must 
 lead to insuperable difficulties, because, in dealing with individual mem- 
 bers, some who are asserting equities, which they have precluded them- 
 selves from maintaining, may be bound qua partners by particular acts, 
 while the general body would not be bound. (#) 
 
 Advances to Directors, &c. — Experience has shown the besetting 
 
 (e) See per Ld. St. Leonards, C, in Lawes's case, 1 De G.,M. & G. 429-433; per 
 Ld. Cottenham, C, Morgan's case, 1 Mac. & G. 225 ; per Ld. Eldon, 0., Const v. 
 Harris, Turn. & R. 496. 
 
 (/) See 1 Mac. & G. 235, 239. 
 
 (g) See Morgan's case, 1 Mac. & G. 240; Lawes's case, 1 De G., M. & G. 433. 
 
 March, 1857.-28
 
 Hi) ilRAXI ON THE LAW OF BANKING. 
 
 evil of joint stock banking oompaniestobe a too great readiness to make 
 advances, and that, too, without propei Becnrity, and in many cases the 
 advances have been made to other joint stock; concerns. Now, it is verj 
 material, in ease of an application for accommodation of this kind, by 
 the direotors of a joint stuck trading company, to the directors of a bank, 
 for the latter to ascertain whether the former have power to borrow given 
 them by the deed of settlement, and next to see whether theirs is one 
 of the extremely few rases in which the law implies an authority to borrow 
 money from the nature of the dealings and business of the company; 
 unless one or other of these is the ease, money advanced by the bank 
 will not be debt due to the *bank from the trading company, 
 L J and cannot be recovered as such. (A) 
 
 Contract*. — Directors of a joint stock company, incorporated, enter 
 into a contract, under the common seal of the company, exceeding their 
 authority in so doing. This, of itself, does not, it has been said, avoid 
 the contract; it must further be shown, in order to do this, that the 
 contracting parties, when they contracted, were aware of the fact, and 
 aware, also, that the contract would be prejudicial to the interests of the 
 shareholders ; and the obligees of the bond, a banking company, recovered 
 upon it.(«) 
 
 This decision lays down a principle which it is important for all 
 bankers to be aware of; it is mentioned here, because it is, in cases of 
 joint stock banking companies, that transactions of this kind, viz., loans 
 or advances of money to a corporation, upon its bond, experience shows, 
 most commonly to occur. 
 
 On the Other hand, all persons dealing with banking companies must 
 take notice — they are bound to be aware — of the limitations imposed by 
 the deed of settlement, or by any statute, upon the directors as regards 
 their powers; but not bound to more than to be aware of these limita- 
 tions ; they are not bound to draw any but direct or obvious inferences 
 from the provisions they find there. (A - ) 
 
 Winding up and Bankruptcy. — The winding-up acts may be applied 
 to the settlement of the affairs of joint stuck banking companies gener- 
 ally;^) also upon the company committing an act of bankruptcy, as 
 r*rom defined '" " & s ^ u ' t - c - m> * s - "*> or u P on a proceeding by a 
 L -I creditor, and an act of bankruptcy, as defined in s. 7, a fiat in 
 bankruptcy may issue against such company. Also, prosecutions may 
 be instituted in certain cases, indicated in s. -~i, against directors or 
 other officers of the company whose conduct may call for it. 
 
 A petition for winding up the affairs <>\' one of these bodies is not to 
 be refused on the ground, merely, that there are no debts due from the 
 
 (h) Ex parte Chippendale, I De <'... M. & G. L9; Burmester v. Norris, 6 Exch. 
 to security of post obit bond, mortgage of reversionary interest, &c, 
 Hawker v. Hall. -well". 25 L. J., Chanc. 
 
 Royal British Bank v. Turquand, 2 1 L. J., Q. B. 327 : affirmed 26 L. J., Q. B. 
 , powei ind latiea of directo ct. c. i LO, .-. 27. 
 
 (A) 8. •'.. 25 L. •!.. Q. B. 
 
 . ict. c. Ill ; 11 ft 12 "V 12 & 13 Vict. c. 108.
 
 JOINT STOCK BANKS. 417 
 
 company; in other words, a company may be wound up that is not 
 actually indebted. (w) 
 
 Also, it is no objection to such a petition, to show that it is preferred 
 by one of the directors, against whom a suit in Chancery is pending, 
 seeking to make them personally liable for the losses of the company. (/m) 
 
 Public Officer. — A public officer of a banking company, declaring 
 "as public officer, according to 7 Geo. IV. c. 46 and 7 & 8 Vict. c. 113, 
 s. 47/Y») but, in truth, suing under the latter act, being one of the 
 registered public officers of the Commercial Bank of London, dies after 
 issue joined. The Nisi Prius record was made up from the plea roll, as 
 though he were alive; the venire was awarded as between him and the 
 defendants ; no entry was made on the plea roll of his death, or of the 
 appointment of another officer; but after the Nisi Prius record was 
 made up, a memorandum was entered upon it, stating the death, and 
 that another public officer of the company had been appointed to continue 
 the proceedings; this was not stated by way of suggestion to the court, 
 nor was it followed by any statement of confession by the defendants, or 
 a nient dedire ; and afterwards, the cause was entered by the name of 
 the new officer as plaintiff, versus the defendants; and tried by a jury 
 who had been returned to try a cause in which the deceased public 
 officer was plaintiff; and it was held, that the trial was *irregular r-*nn->-i 
 and unauthorized, the company would not be bound by a judg- L " -1 
 ment in favour of the defendants, unless the plaintiff was their public 
 officer; therefore, it was material who was on the record as plaintiff; if 
 the party suing were not public officer, that would be a full defence, and 
 the court considered that a suggestion of the death was indispensable, (o) 
 
 In equity, it is considered, as there is no change of interest, to be un- 
 necessary to file any supplemental bill, in order to make a new registered 
 public officer party to the suit.(p) 
 
 Prosecutions of Officers of the Bank. — As to the criminal liability of 
 persons connected with joint stock banks, the following is the state of 
 the law at present: — Early in the reign of the Queen, an act was passed 
 to amend the law relative to legal proceedings, by and against members 
 of banking companies;^) but this statute only embraced proceedings at 
 law and in equity. In the 4th year of Victoria, an act extending the 
 provisions of the former was passed, making liable to prosecution, in the 
 name of the public officer of the company, any member of the company, 
 for frauds, &c, committed with respect to the property of the company; 
 thus,M if any person or persons, being a member or members of (any 
 joint stock bank,) shall steal or embezzle any money, goods, effects, bills, 
 notes, securities, or other property of, or belonging to, any such joint 
 stock bank, or shall commit any fraud, forgery, crime, or offence against, 
 
 (m) In re St. Marylebone Banking Company, 1 De G. & S. 585 ; affirmed 1 Hall 
 & Tw. 100. 
 
 («) See supra, p. 475. 
 
 (o) Barnewall v. Sutherland, 9 C. B. 380. 
 
 (p) Butchart v. Dresser, 18 L. J., Chanc. 198; 10 Hare. 453, S. C. 
 
 (q) 1 & 2 Vict. c. 96. 
 
 (>•) 3 & 4 Vict. c. Ill, s. 2; made perpetual, 5 & 6 Vict. c. 85.
 
 H8 GRANT OX THE LAW OF BANKING. 
 
 or with intt'iit to injure or defraud, any Buoh joint stock bank, such 
 member or members shall Ik- liable to indictment, information, prosecu- 
 tion, or other proceeding, in the name of any of the officers, for the time 
 being, of any Buoh joint stuck bank, (in whose name any action or suit 
 *might be lawfully brought againsi any member or members of 
 L "J any such joint stock hank.) for every Buch fraud, forgery, crime, 
 or offence, and may, thereupon, be lawfully convicted, as if such person 
 or persons had not been, or was, or wen-, a member or members of such 
 joint stuck hank ; any law, usage, or custom, to the contrary notwith- 
 standing. 
 
 A conviction of larceny or embezzlement, is nut objectionable, for the 
 
 - m that the defendant is himself a shareholder in the company j(s) 
 and, in such case, the property. &c, must he laid to he in the puhlic 
 officer of the company )(t) where the defendant i- the public officer, it 
 seems the property is to he laid in the company. 
 
 But a manager of a branch bank, who has authority to make advai 
 ■i> part of the business of the concern, to customers, and being himself a 
 customer, makes such advances to himself, unknown to the directors, 
 without giving any security, it is said, cannot be convicted either of 
 larceny or embezzlement, (it) 
 
 The principle of this decision must not, it is conceived, be assumed to 
 • this : that the defendant having authority as manager, to make 
 advances to customers generally, had authority to make advances, as 
 manager, to himself, as customer, for this was not the real ground, it 
 would appear, on which the case proceeded ; the hank were covered by 
 his bond (with sureties) given by him, on coming into his office of 
 manager, against the amount which he had advanced to himself; ami 
 
 there were various circumstances, as his remaining in the neighbourhood 
 
 after voluntarily stating the amount he had advanced to himself, until 
 hi- arrest on the charge of larceny. &c. &o., all which together, left it 
 impossible to say that, in this particular case, the charge of larceny or 
 embezzlement could be maintained. 
 
 .- 1 . ,, *The general ground — that a manager of a bank, inasmuch SB 
 L J he has authority to advance to customers, has authority to ad- 
 
 vance to himself as a customer, and therefore cannot he convicted of em- 
 bezzlement, for surreptitiously appropriating the funds in the hank, by 
 means of making advances to himself — seems to he untenable, Btanding 
 alone, and without other circumstances elucidating and explaining the 
 real character of the acts done. For the general rule of law is clear: a 
 man cannot do a valid act to himself ; thus, a bishop in his oapaoity, 
 
 afi he is bishop, cannot make a lease to himself, as he is John Stiles; the 
 
 same person cannot he donor and donee \ a man cannot pay to himself, 
 or contract with himself 
 
 (x) Reg. v. Atkinson. 0. & Mar. 525 ; 2 Mood. ('. ('. 278. 
 
 Chapman v. Milvain, ."> Exch. 61 : Welsby, Irch. Crim. Plead, and Kvid. 35, 
 L2th « ( ]it. 
 (u) Reg. v. Brans, Glouc. Sum. As. 1856, cor. Wightman, J. The bank was a 
 copartnership under 7 Geo. IV. e. 16. 
 
 3( \ in Abr. title, lliins.lt: per Pollock, C. B., 2 Excb. 597 : Fincb, Law,
 
 JOINT STOCK BANKS. 419 
 
 Hence, if the directors could authorize the manager to do, whai tl i 
 law says cannot be done, at any rate it will not be presumed — it might 
 be urged — that they have done so, in any case : and if not, the advance 
 to himself is no better than an illegal appropriation, for which he is 
 punishable; for it cannot have a legal effect; it is a nullity, which the 
 directors could not waive. 
 
 In truth, the local manager of a branch bank is placed in a position, 
 necessarily of so confidential a character, as to make it not unfrequent, 
 as the experience of courts of justice shows, for directors to omit the 
 proper means of scrutinizing his proceedings, and practically enforcing 
 his responsibility. For instance, where a bank has various branches, 
 with local managers at each, a managing director visits each once a 
 quarter, and examines the quarterly balance sheet, which is made out 
 against his visit, by the manager, aided by the cashier or chief clerk ; 
 cases which have been brought before the courts, demonstrate that, in 
 general, by means of an understanding, or collusion between the two, a 
 balance *sheet may be concocted, so as to keep the managing r+R n 4 -i 
 director, to almost any extent, in the dark, as to the real state of *- -* 
 the business, unless he checks the balance sheet, by the ledger, &c, and 
 insists upon seeing that securities for advances are, at least, forthcoming. 
 What is the value of such securities must, at any rate, in the first in- 
 stance, be judged of by the local manager, to whom directors allow the 
 power of making advances at his own discretion. 
 
 The directors, whether of banking copartnerships, or of joint stock 
 banks, probably would find it difficult to support the absolute delegation 
 of their duty of guiding and conducting the business to a local manager ; 
 the shareholders might well allege, " we elected you, on the faith we put 
 in your personal qualifications of prudence, caution, and integrity in the 
 conduct of business ; we relied on your judgment, to decide in what way 
 the funds of the bank should be invested, what accomodation should be 
 granted, and to whom, and on what securities : this is a personal trust, 
 and a personal trust cannot be delegated." 
 
 In such a case as that of the manager of the Tewkesbury Bank just 
 mentioned, if loss were to accrue to a bank, from the imprudence or 
 fraud of the local manager, for which it were shown that opportunity 
 had been afforded, by the neglect of the managing director, Ue might 
 possibly be held liable for the whole, to the shareholders. 
 
 Again, can directors authorize a local manager to lend the monej "t 
 the bank at his, not their, discretion ? 
 
 The shareholders appoint the directors, in consequence of the faith 
 which they repose in their character for skill, and integrity ; for vigilance, 
 prudence, sagacity, experience in banking concerns, which the directors, 
 as individuals, possess; it is a personal trust, and the shareholders have 
 a right to expect and require that these personal qualities shall be exerted, 
 not only to save them from loss, but to realize profits upon their capital 
 subscribed into the concern. 
 
 19 ; Wood v. Mayor of London, 12 Mod. 669; Litt. s. 168 ; Wingate, Max. 168 ; 
 Collinson v. Lister, 20 Beav. 356; per Tindal, C. J., 3 M. & Gra. 580; Prest. Shew. 
 Touchstone, 212.
 
 420 GRANT OH THE LAW OF BANKING. 
 
 The customers lend their money to the bank, in consequence 
 [*60o] * a j so of t j Ri } - ;i j tll wn j c jj fc hey ],. ni . i„ the above qualities of the 
 
 directors, and in the confidence which those qualities inspire, that the 
 deposits -hall he bo dealt with, as to be available at all times; this also 
 i- a personal trust. 
 
 The directors, therefore, are clothed with a double trust; &n& delegatus 
 non potest delegari; hence, it Beems, they cannot legally make over their 
 duties to the discretion of any one. 
 
 If it be urged the directors might dispense with these rules, in favour 
 of the manager; the answer is twofold ; first, that they have actually done 
 bo in any case, cannot be implied or assumed, it must he proved; for it 
 will never be assumed, that a person has actually done that which then- 
 is a doubt whether he can legally do at all; secondly, this is not a case 
 within the maxim, quilihet potest renunciare juri pro s< introducto; for 
 that maxim applies to the case of persons who are dealing with their own 
 property, or their own rights, or responsibilities only, which is not the 
 of directors. 
 On these grounds — and perhaps others might be added — it is submitted 
 to be very difficult to support the proposition, that a manager of a branch 
 bank cannot be made liable for larceny, for surreptitiously advancing to 
 himself. 
 
 I: -ides the above cases, where criminal proceedings may be taken 
 against directors, and other officers of joint stock banks, they may be 
 ded against on the bankruptcy of the company, for misconduct, by 
 prosecution, under 7 & < s Vict. c. Ill, s. 27. 
 
 Past Book. — The course of banking business in London, makes tie 
 only general mode of stating and adjusting accounts between bankers 
 and their customers residing in or near the metropolis, to be as follows, 
 respectively : — 
 
 A bonk, .ailed a pass hook, is delivered by the bankers to the customer, 
 in which, at the head of the first page, and *there only, the 
 L " J bankers, by the name of their firm, are described a- the debtor, 
 and the customer as the creditor in the account; on the debtor side 
 are entered all sums paid to, or received by the bankers, on account 
 of the customer, and on the credit side, all sums paid to him, or on his 
 unt»and the said entries being summed up at the bottom of each 
 page, the amount of each, or the balance between them, is carried 
 over to the next folio, without further mention of the names of the 
 parties, until the book being full, it becomes accessary to deliver a fresh 
 one to the customer. For the purpose of having the book made up by 
 the bankers from their own books of account, the customer returns it 
 to them from time to time, and the proper entries being made by them 
 Up to the day on which it IS left for that purpose, they hand it again to 
 th- customer, who thereupon may examine it, ami if there appears any 
 error or omission, it is his business to send it hack to be rectified; if he 
 does not. his Bilence is regarded a- an admission that the entries an- cor- 
 rect ; hut no other settlement, statement, or delivery of accounts, or an\ 
 other tran-action. which can he regarded a- tin' closing of an old, or 
 ing of a new account, or a- varying, renewing, or confirming, (in
 
 JOINT STOCK BANKS. 121 
 
 respect of the persons, or the parties mutually dealing,) the credit given 
 on either side, takes place in the ordinary course of business, unless when 
 -the name, or firm of one of the parties is altered, and a new account 
 thereupon opened in the new name, or firm. 
 
 The course of business is the same between such bankers and their 
 customers, resident at a distance from the metropolis, except that to avoid 
 the inconveniences of sending and returning the pass book, accounts arc, 
 from time to time, made out by the bankers, and transmitted to the cus- 
 tomer in the country, when required by him, containing the same entries 
 as are made in the pass book, but with the names of the parties debtor 
 and creditor at the head, and with the *balance struck at the pgQy-i 
 foot of each account, and his silence, &c, is regarded as be- L 
 
 f ore.(» 
 
 Before the alteration of the usury laws, the usage of Liverpool was 
 held to be good and valid, by which a balance was struck every quarter, 
 and the account sent to the merchant, &c, and then the balance, if 
 against the merchant, was made to carry interest for the next quarter, 
 and so on.(z) 
 
 Under special circumstances, accounts between banker and customer 
 are admitted in equity from the necessity of the case, and for the conve- 
 nience of mankind, in favour of the party writing them; one species of 
 such necessity is, where the party presenting such evidence, cannot, 
 from the nature of things, produce evidence aliunde, in support of the 
 point, which his own accounts are adduced to prove ; but the court must, 
 in all cases, have the means placed before it, of judging whether the 
 special circumstances are sufficient to justify the admission of such ac- 
 counts in the particular instance. One circumstance of this nature, 
 would be the duty, opportunity, or practice of the opposite party, to ex- 
 amine, audit, &c, the accounts, &c.(«) 
 
 The pass book between a bank and a joint stock company is a good 
 source of evidence, to show that the bank paid to the company, calls due 
 from A. j(6) one of the plaintiffs (the banking partnership,) being trea- 
 surer of the company and A. a subscriber. 
 
 Credit 'given in a pass book binds the bankers; for by entering the 
 sums to the customer's credit, they lead him to suppose that they had 
 received them on his account; they *alter his situation, and r*(;o8"| 
 therefore shall not be allowed to say, that the items had never L J 
 been received, (c) unless they can clearly show that the entries were made 
 by mistake. (cZ) 
 
 But this is subject to the proviso, that the entries in the pass book be 
 
 (y) See the custom of dealing, as found by the master, Devaynes v. Noble, 1 
 Meriv. 535, 536. In the case of lunatics, such silence is not presumably acqui- 
 escence ; Howard v. Digby, 2 Cla. & F. 660. 
 
 (z) Caliot v. Walker, 2 Anstr. 495. 
 
 (a) Symonds v. Gas Light, &c, Co., 11 Beav. 283. 
 
 (6) Alexander v. Barker, 2 Cro. & J. 135 ; see Foster v. M'Mahon, 11 Ir. Eq. R. 
 287 ■ Chalmers v. Bradley, 1 Jac. & W. 65. But pass book not evidence that a 
 given person was provisional director of an abandoned company, 16 C. B. 671. 
 
 (c.) Shaw v. Dartuall, 6 B. & C. 57. 
 
 (rf) Shaw v. Picton, 4 B. & C. 715.
 
 GRANT OX THE LAW OF BANKING. 
 
 properly made on each side of it; a pass book, with entries on one side 
 only, is not evidence of a Bottled account between the bank and the cue- 
 tomer, although the book is kept by the customer, without objection to 
 the entrh - 
 
 ( )n a plea of nonjoinder of a partner, the defendant's pass book may 
 be evidence against the plaintiff, with whom it was kept, if credit be 
 given in it t<> the defendant solely, in support of the plea.(/) 
 
 A cashier of a banking house, upon his examination as a witness in 
 chancery, declared himself to have ascertained from the clearing book, 
 kept by him in his own handwriting, that a certain sum of money was 
 paid in notes of the Bank of England, numbered so and so respectively; 
 the witness proceeding solely on his knowledge of the book, and of his 
 own handwriting, and not from any independent recollection of the fact 
 sed to. This cannot be received as evidence of the fact deposed to, 
 though it may furnish ground of further inquiry. (.7) 
 
 The pass book commonly is sent with a servant, etc., who is employed 
 to obtain money from, or to hand it into, the bank. It may be of service 
 to persons having dealings with bankers, to be aware of the proper mode 
 of proceeding, in case any one sent with money to their banker, appro- 
 priates the money. 
 
 Where there is nothing to show that the person intrusted intended, on 
 l~*f 0Q1 rece ^ v ^ n » the money, to steal it ; as, for instance, *if it appear, 
 ' J that he has conceived he was entitled to pay himself with it, on 
 account of some claim, or demand, or debt, which he alleges against the 
 sender, an action for money had and received maybe brought by the 
 sender against him, subject to any set-off, which he may succeed in esta- 
 blishing. Such action will, however, fail, if it be found by the jury at 
 the trial, that he received the money, with the intention to steal it, and 
 then feloniously converted it; and the defendant will have a verdict in 
 the action, and the plaintiff will lose the costs, although the judge will, 
 said, give directions, that the defendant shall be indicted for the 
 felony upon the verdict. (A J 
 
 Manifestly, however, the proper proceeding in such case is, for the 
 sender to commence by way of indictment. 
 
 Colonial /joii/.-s. — The Winding-up Acts may be applied to the settle- 
 ment of the affairs of colonial banks, under certain circumstances; just 
 i- there can be no doubt, that it is possible, for a private banker, carry- 
 ing nil business in the colonies, to be made bankrupt in England: the 
 following oases show this. 
 
 A banker in India, drawing bills upon bankers in England, against 
 other bills sent thither, on which lie got a profit, in the course of ex- 
 change; and in the progress qf such transactions, contracting debts in 
 England, maybe made a bankrupt lore, upon an act of bankruptcy com- 
 mitted by him in England, alter he had quitted India. 
 
 \'.\ parte Baadleeon, 2 Deac. & C. 534; sec Boardman v. Jackson, 2 Ball k 
 
 (f) Rotey v. Howard. 2 Stark. 5jo 
 (g) Dupoy v. Truman. 2 Y. & OoL Ch. B. 341. 
 
 Prosser v. Roue. 2 Car. a I". 121 ; K. v. Jolitle, 4 T. R. 200, 293; 2 Hale, P. 
 51* j see 8 A. & E. 528, contra.
 
 JOINT STOCK BANKS. 423 
 
 An assignment of all his effects, in trust for creditors, in certain pro- 
 portions, executed by him, whilst resident in India, is not an act of bank- 
 ruptcy, within the meaning of the bankrupt law. Nor is such assign- 
 ment fraudulent and void in itself, being intended, bona fide, at the time 
 of its *execution, and assented to, by the generality of the credi- i-^pin-, 
 tors.(v') L JiU J 
 
 The affairs of the Royal Bank of Australia were actually wound up in 
 Chancery, under the Acts of 1848 and 1849 ; the petitioner for the 
 winding-up order, a shareholder in the bank, being described in his peti- 
 tion, as of a place out of the jurisdiction, was ordered to give security for 
 costs, before his petition could be heard ; and proceedings taken in Scot- 
 land against the petitioner, in respect of a debt, due from the company, 
 were held to furnish proper ground for winding up, on his petition. (&) 
 
 But it does not at all follow, that the Courts of Chancery will wind 
 up the affairs of Colonial Banks, under all circumstances : the following 
 case gives a general outline of the rule which they follow in applying the 
 winding up process to such institutions : beyond that general outline, 
 the law does not yet appear to be developed ; beyond it, therefore, no 
 advice, for the guidance of persons who may be interested in such ques- 
 tions, can safely be offered. 
 
 The company called the Union Bank of Calcutta, was organized and 
 established in India, as a joint stock company, in the year 1829, by per- 
 sons, all of whom were then resident in India, for carrying on the busi- 
 ness of banking at Calcutta. Its constitution was regulated by two deeds 
 of partnership, dated the 1st August, 1829, and the 1st August, 1839. 
 By the latter of these deeds, it was provided, that the business of the 
 company should consist in issuing notes and bills of exchange, at the 
 office, in Calcutta, and in discounting bills and promissory notes, and in 
 all other branches of business, usual with bankers in Calcutta; and it was 
 provided, that the capital stock of the company should be 10,000,000, 
 of Company's rupees. 
 
 *By an Act of Legislature of Calcutta, passed in 1845, the r ^p-i i-i 
 Union Bank was authorized to sue, and be sued, in the name of L -■ 
 its secretary; and it was declared that, upon any judgment against the 
 secretary, execution might be issued, against any shareholder, upon 
 motion made for that purpose, in open court ; but it was provided, that 
 that act should not extend to incorporate the Union Bank. 
 
 The partnership deeds of the bank were executed, at Calcutta, by the 
 shareholders, and such deeds, as well as all the books, and accounts of 
 the bank, and all transfers of shares in the bank, were always kept in the 
 office of the bank there, and in the custody of the officers of the bank 
 there. 
 
 The meetings of the shareholders were always held at Calcutta, and 
 the affairs of the bank were entirely managed in India. The directors, 
 
 (i) Ingliss v. Grant, 5 T. R. 530; see Alexander v. Vaughan, Cowp. 398 ; Ex 
 parte Williamson, 1 Atk. 82 ; see 22 L. J., Chanc. 276 ; 24 id. 621 ; plea of colonial 
 judgment, Bank of Australasia v. Harding, 19 L. J., C. B. 345 ; S. C, 9 C. B. 001. 
 
 (k) Ex parte Latta, 3 De G. & S. 186.
 
 424 GRANT ON THE LAW OF BANKING. 
 
 trustees, secretary, treasurer, and all the other officers of the bank, \ 
 all resident at Calcutta. 
 
 The Union Hank carried on the business of bankers in Calcutta, to a 
 large amount. En the course of business, it received, at the establish- 
 ment, at Calcutta, sums of money, to the credit of persons in London, 
 and paid the amounts accordingly in London, through Messrs. Glyn & Co., 
 hanker-, in Lombard-street j and similar payments were made tn Messrs. 
 Grlyn & Co., in London, on accounl of the Union Hank, to he paid to 
 persons, at Calcutta, which were accordingly paid: and the Union Bank 
 drew and issued hills of exchange and promissory notes, and granted 
 letters oi credit, at Calcutta, upon .Messrs. Grlyn & Co., which were duly 
 honoured, by the latter firm in London, as agents for the Union Bank : 
 and Messrs. Grlyn & Co., as agents for the Uuion Bank, issued similar 
 notes on the Union Bank, which were duly honoured, at Calcutta. The 
 Union Bank received the usual banking pro/its on all these transactions. 
 On a petition, for the usual order for winding up the a 11 airs of the 
 bank, it was alleged by the petitioner, a shareholder of the company, 
 resident in England, that the banking house of Messrs. Glyn & Co. was 
 r*rT>1 constituted a place of *business for the Union Bank, and that, 
 L J in this manner, the Union Bank carried on the business of 
 bankers, in England. 
 
 The Union Bank suspended business in 1847, being greatly indebted 
 in India, but haying also large assets and liabilities, in England. 
 
 Upon the suspension of payment, an executive committee was formed, 
 at Calcutta, for liquidating its debts, and a committee of creditors was 
 also formed, by whom a seheine of contribution, by shareholders, was 
 framed, by which the shareholders were assessed, in sums varying from 
 251. per share, to '2001. per share. Under this, the petitioner was assessed, 
 for -'HI/, per share, on fifteen shares. He refused to pay; and an action 
 at law was commenced, against him, by Messrs. Glyn & Co., for the 
 recovery of 5,000?. due to them, from the Union Bank. 
 
 Shareholders in the bank, to the number of sixty and upwards, at the 
 time of its suspension of payment, were resident in England. 
 
 There being no office, of the Union Bank of Calcutta, in England, 
 except the hanking house of Messrs. Glyn & Co., personal service of a 
 copy of the petition was made on one of the partners, of that firm, at the 
 banking house. 
 
 A member and contributory of the Union Bank, resident in London, 
 was also served, with a copy of the petition, and with the order of the 
 court, specially fixing the bearing of the petition. 
 
 The petition was advertized in six newspapers, at Calcutta, including 
 the Calcutta Gazette, and also (as it appears) in the London Gazette. 
 
 The service on the contributor} in England, and the advertisement in 
 the London Gazette, were ruled to be sufficient, to satisfy the Winding- 
 up Act, I s 19, section 1. 
 
 On the above fact-, Vice-Chancellor Knight Bruce said, he assumed, 
 (without however deciding,) that, according to the true construction of 
 the Winding-up Acts, the court had power to direct the winding np of
 
 SAVINGS' BANKS. 425 
 
 the company, so far as it could *be done in the absence, from the r *f 10-1 
 jurisdiction, of a large number of shareholders ; but he also stated L J 
 that it was not in every case, within the provisions of the acts, that the 
 court would interfere under them ; for he held it was incumbent on the 
 court, not to act under those statutes, when there were judicial grounds 
 for holding it not to be expedient to do so : — that is, (jis it seems,) the 
 court will not act, where it is not shown that there exist, in this country, 
 the means of doing substantial justice, or more good than harm, by so 
 interfering. But ou the whole that he had heard, lie was of opinion, 
 that much more mischief would arise from acting on this petition, than 
 from declining to interfere; and he left the petitioner to the remedies, 
 which, by the laws of this country, or of India, or of both, were open tn 
 him, independently of the Winding-up Acts.(^) 
 
 CHAPTER XVII. [*614] 
 
 savings' banks. 
 
 A Savings' Bank is defined to be any institution, in the nature of a 
 bank, formed for the purpose of receiving deposits of money, for the 
 benefit of the persons depositing, to accumulate the produce of so much 
 thereof, as shall not be required by the depositors, their executors, or 
 administrators, at compound interest, and to return the whole, or any 
 part, of such deposit, and the produce thereof, to the depositors, their 
 executors, or administrators — deducting out of such produce, so much as 
 shall be required for the necessary expenses, attending the management 
 of such institution — but deriving no benefit whatsoever from any such 
 deposit or the produce thereof, (a) 
 
 The society or body of persons who have set on foot, and wish tn 
 establish and maintain, the institution, with the powers, privileges, and 
 advantages, which the Savings' Banks Acts give to them, must cause 
 the rules and regulations for the management of their institution to be 
 
 (I) In re Union Bank of Calcutta, (Watson's case,) 3 De G. & S. 253. Everj 
 banking company of more than six persons, carrying on business in England is 
 made, by s. 48 of 7 & 8 Vict. c. 113, a trading company within the Winding-up 
 Act of 1844, (7 & 8 Vict. c. Ill ;) but, N. B., by 11 & 12 Vict. c. 45, s. 6, in case 
 any petition for adjudication, &c, shall have been granted against any companj 
 under 7 & 8 Vict. c. Ill, no petition for winding up shall be presented by any 
 other person than by the creditors' assignee of the estate, &c, of the company, 
 who by order of the court of bankruptcy, but not otherwise, may present a petition 
 for an order for winding up. See further on this subject, Brettell v. Davis, 7 Exch. 
 307 ; In re Warwick, &c. Railway Company, 5 De G., M. & G. 495, 499 ; In re Nor- 
 wich Yarn Company, 5 De G., M. & G. 505 ; S. C, 13 Beav. 426 ; Prescott v. Ha- 
 dow, 5 Exch. 726; Beardshaw v. Lord Londesborough. 11 C. B. 498; Hill v. Lon- 
 don, &c, Assurance Company, 28 L. T. 67, and the Case of the Royal British Bank 
 now, (Nov. 1856.) sub judice. 
 
 (a) 9 Geo. IV. c. 92, s. 2. See proviso there as to sanction of Quarter Sessions. 
 &c. Deposit of rules with clerk of peace abrogated by 7 & 8 Vict. c. 83, s. 18.
 
 420 'III ANT OH THE LAW OF BANKING. 
 
 entered, deposited, and tiled in particular modes, to be found detailed 
 and Bpeoified in the statutes ;(7,) when they will become entitled to those 
 powers, &c.(a\ 
 
 Deposits. — No person can be admitted as a depositor for the first time, 
 without making a disclosure of the came, profession, business, occupa- 
 tion, calling and residence of such person. (c) 
 
 r*n '1 * Further, such person must, at such first time, and as often as 
 L ' J required by the trustees, or managers, make and sign a declara- 
 tion, of not being entitled to any deposit or benefit from any other savings' 
 bank : and this under pain of forfeiting such other deposit, &c. : such 
 declaration to be filed and kept by the trustees ; a printed notice of the 
 regulation to this effect being affixed in the bank; and a copy of the de- 
 claration, with the penalty, annexed to, or printed at the beginning of, 
 the deposit book.^/j 
 
 Xo one can deposit more than 30/. in any one year, exclusive of com- 
 pound interest. (>) 
 
 M>rever, deposits cannot be received, from any depositor, so as to 
 make the sum, which he shall be entitled to, exceed 150/. on the 
 whole. (') 
 
 Also, although a depositor's money may go on increasing, at compound 
 interest, until it reaches the amount of 200/. in the whole, yet, thence- 
 forth, no interest shall be payable on such deposit, so long as it remains 
 at that amount, (cj 
 
 Attempts at evasion of the statute, in this respect, by taking advan- 
 tage of tin.' clauses, enabling persons to deposit money in trust for others, 
 will be treated as follows : — 
 
 A., after depositing in his own name, in a savings' bank, to the full 
 extent allowed, made further deposits to another account in the name of 
 himself and hi- sister, but nominally as trustee for her, in this form : — 
 •• Henry Field, in trust for Ann Field," making a declaration accordingly. 
 It appeared, on examination, that the statute, whilst allowing one person 
 to deposit money in trust for another person, in their joint names, still 
 left him at liberty to withdraw it, without any communication with that 
 person. 
 
 A court of equity, considering that the second account had been 
 r*Pin °P ene d on ^y Vf ' 1 ^ 1 a view °f evading the statute, *and not with 
 >- 'J tie- Intention of creating a trust, in favour of the sister, refused 
 to declare her to be entitled to the sum deposited to the second ao- 
 count.(ee) 
 
 In case a married woman puts money in the hank, or a woman, who 
 afterwards marries, does so, in either case the trustees or managers may 
 [layout the whole, or any part, to her, unless the husband shall l\\> 
 
 (b) 8 IV. c. 92, ss. 3, ! (a) See note (</), preceding page. 
 
 (c) 7 & 8 Vict. c. 83, s. 3; 3 k A Will. IV. <■. | i. -. 29. 
 
 Geo. IV. <■. 92, 8. 34 : and 7 & 8 Vict. <•. 83, s. 3. 
 
 Geo. IV. c. 92, s. 35 ; ami see s. 37. Withdrawing deposits to place in 
 bank, s. 39. Death of depositor, having 502. in hank. bs. -i". 41, 
 ■\i. ■}.".. 
 
 (et) Field v. Lonsdale, 13 Bear. 78.
 
 SAVINGS' BANKS. 427 
 
 theni notice in writing of the marriage, and requiring payment to be 
 made to him.(/) 
 
 Deposits may be received from the officers of certain Friendly Socie- 
 ties, duly constituted according to law, without restriction as to 
 aniount,(//) and from the trustees, &c, of any charitable or provident in- 
 stitution, or charitable donation or bequest, for the maintenance, educa- 
 tion, or benefit of the poor, to the extent of 100/. per annum, and of 
 300/. in the whole, exclusive of interest ;(/t) but funds of benefit build- 
 ing societies are not allowed to be invested in savings' banks. (A 
 
 Annuities. — Depositors in savings' banks are enabled to purchase an- 
 nuities of not less than one, nor more than thirty pounds each; the pro- 
 visions and regulations respecting these are extremely numerous, and 
 the reader must be referred for them to the statute, which contains 
 all that has been prescribed by the legislature respecting this sub- 
 ject.^) 
 
 Deposit Book. — By the rules of a savings' bank, entries of deposits 
 were to be made in a book kept by the bank for the purpose, and also in 
 a duplicate account book to be kept *by the depositor, which du- r;Kr , 1 7 
 plicate was to be a voucher for the party producing it, and a re- L J 
 ceipt for the bank, when it was handed over to them. Then A. deposited 
 in the name of B. a sum with the bank, and afterwards, without B.'s 
 authority, got back the money, and delivered up to the bank the dupli- 
 cate account book. 
 
 Nevertheless, B., it was held, still continued a depositor;(A showing 
 the bank to be liable for having allowed B.'s money to be drawn out 
 without B.'s license. 
 
 Provision must be made in the rules of all savings' banks for every de- 
 positor, once a year at least, causing his deposit book to be produced at 
 the bank for the purpose of being examined. (m\ 
 
 Remedies of Depositors. — Any dispute arising between the trustees 
 and managers, and any individual depositor, &c, or any person claiming 
 to be entitled to any deposit, is to be referred, in writing, to the barris- 
 ter at law, appointed under the Savings' Banks, &c, Acts, and his 
 award is to be final; the submission and award to be free of stamp 
 duty.(?i) 
 
 Now, the effect of this clause is probably the same as was repeatedly 
 held to be that of the provision for reference under a former statute ; 
 viz., that no action is maintainable by depositors against trustees or man- 
 agers, to recover their deposits ; they must have recourse to the mode of 
 reference to the barrister. (o\ 
 
 (/) 7 & 8 Vict. c. 83, s. 12. 
 
 (g) 17 & 18 Vict. c. 50, s. 2. This does not include the Friendly Societies un- 
 der 17 & 18 Vict. 56, s. 8. See also 18 & 19 Vict. c. 63, ss. 32, 33, 36 ; and see first 
 sched. repealing 17 & 18 Vict. c. 50, s. 2. (A) 9 Geo. IV. c. 92, s. 27. 
 
 (i) 6 & 7 Will. IV. c. 32, s. 6. (k) 16 & 17 Vict. c. 45. 
 
 (1) R. v. Cheadle Savings' Bank, 1 A. & E. 323. 
 
 (m) 7 & 8 Vict. c. 83, s. 5. 
 
 (n) 7 & 8 Vict. c. 83, s. 14. He may inspect books and administer oath, id. s. 
 15. He may proceed ex parte on sending notice, &c, id. s. 14; see Lynch v. Fitz- 
 gerald, 15 Law Times, 372. 
 
 (o) See 8 Bing. 394 ; 6 A. & E. 952 ; 21 L. J , Q. B. 169.
 
 . LN1 X T II B L A W F B A X K I X U. 
 
 : where the money of a depositor has been embezzled, 
 
 it seem< Ik- would nut, ondei most circumstances, at any rate, h:.-. 
 right of action against the trustees;^) but, perhaps, as trustees and 
 managers art- now made *personally liable for moneys actually re- 
 L ' -I ceived ami not paid over by them, &c., there might be room to 
 contend, that an action would lie in favour of th^ depositor, whose mo- 
 ney had been £ !. &c. ; but the nut paying. over, at the next day 
 on which the bank is open, by any person holding any situation or ap- 
 pointment in a savings' bank, is a misdemeanour, for which such persons 
 are criminally responsible.^) 
 
 Investments. — The trustees are to pay into tin; Bank of England all 
 sums to be invested, that is to say, all the deposits thej receive, except 
 such sums, as from time to time, it is incumbent on them to keep in 
 hand, to answer the exigencies of the savings' bank; and they are nut to 
 invest in any other security ;(r) and all moneys so paid into the Uank of 
 England, are to be invested, from time to time, in bank annuities or ex- 
 chequer bills, and the interest, as it becomes due thereon, is to be in- 
 rested in government annuities or exchequer bills. (.v) 
 
 Annual Accounts. — The trustees, or managers, are annually to pre- 
 general statement of the funds of the savings' bank, invested in 
 the Bank of England, showing the balance due to all the depositors, the 
 expenses incurred, and stating in whose hands the balance shall then be, 
 with other particulars, (for which reference must be made to the statutes 
 themselves,) every depositor being entitled to a printed copy on payment 
 of one penny. (^) 
 
 Officers. — Every treasurer, actuary, or cashier, having receipt or cus- 
 
 _ lf -. tody of money -ubscribed or deposit id for the ^purpose of the 
 L -I bank, or any interest or dividend from time to time accruing 
 
 therefrom ; and every officer receiving -alary or allowance, must gi 
 curity, by bond, to the clerk of the peace, or town clerk, &o., free of 
 -tamp duty,(«) to be transmitted for custody to the commissioners of the 
 national debt.(x) 
 
 Besides the security of the bond, savings' bank depositors have this 
 further security given by later enactments, under which they are entitled, 
 in case of the bankruptcy of an officer with fund- belonging to tin- bank 
 in his hands, to have the money due to the hank replaced, in full, out 
 .,;' hi before any other creditors are paid anything. The follow- 
 
 ing decisions illustrate this: — 
 
 A draper was appointed actuary and cashier of a savings' bank, a rule 
 of which was, that one or inure members of the committee Bhould attend 
 at tlie cashier's shop to the deposits; this, however, was nut 
 
 - u. v. Mildenhall, &c, >; A. .v B. 952. 
 I .v 8 Vict. o. 83, s. 5. 
 
 .11: see BS. 12, 13. 
 . L6. 
 (i) 9 Geo. IV. i .17: and A.s to computation and rate of 
 
 -::, bs. 1, 2, in. 
 i Geo [V. - '■ s. 7. 
 7 & 8 Vict to delivery up to be cancelled.
 
 SAVINGS' BANKS. 429 
 
 attended to, and the cashier was permitted to receive the deposits. He 
 became bankrupt, and the deposits were held not to be "moneys in bis 
 hands by virtue of his office," so as to be claimable in full by the sayings' 
 bank, under 3 & 4 Will. IV. c. 14, s. 28. 
 
 That enactment is to this effect : — If any person appointed to any 
 office in a savings' bank, and having in his hands or possession by virtue 
 of said office or employment, any moneys belonging to such savings' 
 bank, shall become bankrupt, his assignees shall pay out of his assets 
 all such sums before any other debts are paid. 
 
 But the provision being against common right, must be construed 
 stfictly : then the duty of the office of actuary did not include the receipt 
 of money, which duty, by the rule above referred to, was attributed to 
 one or more members of the committee ; nor did the duty of cashier 
 include the receipt of money for the same reason, and because the duty 
 *of a cashier is to pay money; consequently the moneys were r^p 9 n-i 
 not in his hands at the time of the bankruptcy, by virtue of his L ~ J 
 office. The petition of the trustees of the savings' bank to be paid in 
 full the 2,206?., in which the draper was a defaulter, was accordingly 
 dismissed with costs, (jf) 
 
 It must be carefully observed, moreover, that the stat. 3 & 4 Will. 
 IV. c. 14, s. 28, only applies to savings' banks which have conformed 
 to 9 Geo. IV. c. 92, s. 6, which prevents from having the benefit of the 
 act any savings' bank, the rules of which do not provide that no person 
 being treasurer, trustee, or manager of such institution, or having any 
 control in the management thereof, shall derive any benefit from the 
 deposits in the bank, except, &c. 
 
 It is proper also to notice, that the certificate of the barrister of con- 
 formity to 9 Geo. IV. c. 92, is not conclusive proof in this respect. (2) 
 
 In case then of the bankruptcy of any person in office in a savings' 
 bank, the savings' bank can only be paid in full his debt to them, when 
 they have conformed in all respects to the stat. 9 Geo. IV. c. 92, and 
 there has been no negligence or laches on the part of the manager or 
 committee, &c, of the institution. 
 
 The rule to be attended to in such applications is this — the savings' 
 bank claims a privilege against common right — viz. the privilege of 
 priority to all other creditors ; they must therefore clearly bring them- 
 selves within the language of the enactments which confer that privilege. 
 
 Where a person, on his appointment as treasurer of a savings' bank, 
 enters into the usual bond, &c.,but does not actually receive any money, 
 the deposits being paid by the managers directly into a bank, of which 
 he is a partner, to *the credit of the trustees of the savings' r : }: ( -->i-i 
 bank, who are allowed interest on it, but he signs the monthly L " -I 
 return to the National Debt Office, thereby acknowledging the balance, 
 
 {y) Ex parte Fleet, 4 De G. & S. 52 ; The Dartford Savings' Bank, see 1 Fonbl. 
 Bank. R. 137 ; 7 & 8 Vict. c. 83, s. 5. The bankers of a Friendly Society are not 
 officers, so as on their bankruptcy to entitle the society to be repaid in full. Ex 
 parte Harris, De G. Bank. R. 162. 
 
 (z) Ex parte Haynes, 3 M., D. &De G. 663; S. C, what is sufficient compliance: 
 see Ex parte Whipham, 3 M., D. & De G. 564.
 
 430 GRANT ON THE LAW OF BANKING. 
 
 &c., to be in his hands as treasurer. On the bankruptcy of the bank. 
 the savings' bank recovered in fall. (a) 
 
 But it is not only in case of bankruptcy of their officer, &c, that the 
 Barings' bank is entitled to have sums of money owing by him replaced 
 in full, in priority to other creditors, but further, whenever any officer, 
 intrusted with the keeping of the accounts, or having in his hands or 
 possession, by virtue of his office or employment, any money or effects of 
 the bank, or any deeds or securities relating thereto, dies or becomes 
 bankrupt, or insolvent, or has any execution, or attachment, or other 
 process issued against his lands, goods, chattels, or effects, or makes any 
 mient thereof for the benefit of his creditors, — then his executors, 
 administrators, or assignees, or other persons having legal right, accord- 
 ing to the case, or the sheriff or officer executing the process above 
 referred to, must, within forty days after demand, made by two of the 
 trustees, deliver and pay over all money and other things belonging to 
 the bank, and pay out of the estate, &c, all money remaining due, which 
 such officer received by virtue of his said office or employment, before 
 any other of his debts are paid or satisfied, or before the money directed 
 to be levied by the above process is paid over to the party issuing it.(i) 
 
 So that in an administration suit the courts of equity, on petition, 
 have ordered the payment of money due to the savings' bank, before 
 any report made, but would not order the payment of the costs of the 
 petition. (c) 
 
 The clerk in a savings' bank may be indicted for embezzlement of 
 
 ,„„.. money, that he has received from a depositor and ^appropriated, 
 L ' J and he will be properly described as clerk to the trustees, 
 although he is elected annually by ballot, at a meeting of the mana- 
 ;ers,(c?) and it seems that such indictment might be supported against a 
 clerk to a savings' bank, equally as in the case of a clerk to a private 
 bank, by proof of a general deficiency of inoueys that ought to be forth- 
 coming, without showing any particular sum received, and not accounted 
 for.(e) 
 
 Trustees. — All the effects whatever, and all rights and claims belong- 
 ing to the bank, are vested in the trustees for the time being, without a 
 fresh assignment being necessary on the death or removal, &c, of any 
 one or more of them ;(/) so that they are somewhat in the nature of a 
 corporate body. 
 
 No trustee or manager can be made personally liable, except for his 
 own acts and deeds: he cannot be made personally liable, for anything 
 done by him, in virtue of his office, in execution of stat. 9 Geo. IV. c. 
 92, except in cases where he is guilty of wilful neglect or default, (y) 
 
 (a) Ex parte RiddeU, 3 M., D. & De G. 80 ; see Ex parte Ray, 3 Deac. 537. 
 lb) 3 & 4 Will. IV. C. 14,s. 28. 
 
 (c) Hatch v. Lee, 10 L. J., Oh. 223. 
 
 (d) U. v. Jenson, liy. & Moo. 434; see the rules cited there; see also Reg. v. 
 Miller, 2 Mood. Cro. C. 2 19. 
 
 K. v. Grove, Ry. k M. 447; decide! b "ven judges; in gene- 
 
 mi. a man cannot be convicted of tteaUng a mere balance. Further as to prose- 
 cuting clerk, Reg. v. Tail's, 4 Cox, 0. 0. 10L>. 
 
 (/) 9 Geo. IV. c. 92, s. 8. (if) Id., s. 9.
 
 SAVINGS' BANKS. 431 
 
 No trustee or manager is liable to make good any deficiency arising in 
 the funds, unless he shall have deposited, with the Commissioners for 
 the Reduction of the National Debt, a written declaration signed, of his 
 willingness so to be answerable ; and he may limit his responsibility to 
 such amount, as he may specify therein. (7t) 
 
 Nevertheless, every trustee and manager is personally responsible and 
 liable, for all moneys actually received by him, on account of or for 
 the use of the bank, and not paid over or disposed of, according to the 
 rules. (A) 
 
 *A11 the officers may be called upon, and are bound to account p^non 
 and deliver up when duly called upon, all effects, &c, belong- L "" J 
 ing to the bank in their hands, by order of not less than two trustees and 
 three managers, or at any general meeting of the trustees or managers : 
 on default, the trustees may exhibit a petition to the Quarter Sessions, 
 who may proceed in a summary way, and make such order upon hear- 
 ing all parties concerned, as they shall think just; such order to be 
 final. (1) 
 
 For other points of minor importance, the reader is referred to the 
 various statutes respecting savings' banks. (k\ 
 
 The legislature has provided, by special measures, for the establish- 
 ment of military savings' banks, which are exempted from the operation 
 of the previous enactments respecting savings' banks in general :(V\ and, 
 in another statute, for the establishment of savings' banks for seamen, 
 (the deposits not to exceed 150?. in the whole, in respect of any one 
 account,) which are subjected, except as to the amount, to the operation 
 of the previous enactments respecting savings' banks in general. (m) 
 
 Various points respecting questions arising on the relations of bankers 
 to savings' banks, to whom they act as treasurers, &c, have been already 
 discussed, (to) and need not be again treated. 
 
 (h) 7 & 8 Vict. c. 83, s. 6. (i) 9 Geo. IV. c. 92, s. 10. 
 
 (k) Exemptions from stamps and other duties in favour of savings' banks, 9 Geo. 
 IV. c. 92, ss. 5, 40, 44; 3 & 4 Will. IV. c. 14, s. 19 ; 7 & 8 Viet. c. 83 ; from income 
 tax, 5 & 6 Vict. c. 35. s. 88. 
 
 (I) 5 & 6 Vict, c 71, see s. 6 ; 8 & 9 Vict, c, 27, see s. G ; 12 & 13 Vict. c. 71. 
 
 (m) 17 & 18 Vict. c. 104, s. 180. 
 
 (?i) See supra, pp. 344, n., 345. 
 
 March, 1857.— 29
 
 INDEX. 
 
 The pages referred to are those between brackets [ ]. 
 
 ACCOUNT, 
 
 bill in equity for an, 4, n., 289, 304, 
 
 n., 398. 
 with a banker, 135, 398. 
 opening an, by individual, 1. 
 partners, 44-46, 182, 188, 583. 
 corporation, 47. 
 mining adventurers, 311. 
 trustees, 364. 
 guarantee of, 232. 
 deposit, what, 2, 6, 297. 
 "for account," 163. 
 "for our account," 136. 
 separate, of one of a firm, 310, 311- 
 
 313. 
 running, 191, 282. 
 general balance of, 190, 191, 207. 
 ACCOUNTABLE RECEIPT, 
 what, 129. 
 what not, 135. 
 
 cancelling, 131, 132, 511 and n. 
 liability of banker on, 131, 133. 
 infancy, 133. 
 partnership, 134. 
 alteration of, 134. 
 effect of, 135, 304, 410. 
 given by mistake, 411. 
 
 banking copartnership, 511. 
 to administrator, 511. 
 change of firm, 304. 
 given on payment in, of bank notes, 
 410, 414. 
 ACCOUNTANT GENERAL, 
 cheque of, 44. 
 
 cheques in hands of, 91, 92. 
 ACCOUNTS, 
 
 taking in equity, 305, 306, 397, n., 
 
 398, 401. 
 of names under 7 Geo. IV., c. 46, 
 
 460. 
 settlement of, 236. 
 annual, of Savings' Banks, 618. 
 
 of bank notes, 440-415. 
 when evidence for banker, 607. 
 publication of joint stock bank, 596. 
 mixing, 347, 348, 352. 
 ADVANCES, 
 
 depositof securities against, 142, 164, 
 178, 188, 191, 200, 205. 
 In Banking Copartnership, 
 by manager, 514, 519. 
 to himself, 602, 605. 
 when provable for, 523. 
 what not, as by bankers, 302. 
 by way of credit, 547, 548. 
 guarantee of, 220-26,2. 
 to limited amount, 227. 
 In Joint Stock Bank, 
 
 to directors, 313, 343, 598. 
 to consignee of goods, 212. 
 by executors to bank, 350. 
 AGENT, 
 
 overdrawing account, 41. 
 
 mixing accounts, 347. 
 
 cheque of, 41, 79. 
 
 banker, when is, 121, 176. 
 
 notice to, 184, 324. 
 
 dealing with bank, 347. 
 
 of bank suin# member of more firms 
 
 than one, 301. 
 power of, sale of stock, &c, 370, 
 
 373. 
 set-off, 334, 335. 
 discounting, 394. 
 
 indorsing, &c, bill, personally lia- 
 ble, 205, 436. 
 London, 437, 458. 
 chairman, when is, see 9 C. B. 661. 
 manager, when not, 519 and n. 
 director, 548. 
 
 member of joint stock bank, when 
 not, 584. 
 AGREEMENT, 
 variance in, 226.
 
 434 
 
 I ; B A N I ON THE L A W F J! A N K I X G. 
 
 AGREEMENT, continued. 
 
 to mortgage, L83,199,200, 202,213. 
 
 to assign shares, --'>. 286. 
 APPROPRIATION, 
 
 of payments, 27 --2-2. 
 
 in case uf new firm, :!05. 
 by guarantor, &c, '■'>-<'*. 
 of snares, 528. 
 ARMY AGENT, 314, 321. 
 ARRANGEMENTS, 
 
 among shareholders, 508. 
 ASSIGNEES, 
 
 cheques of, 41, 67. 
 
 powers of, 187, 322, 324, 329, 330, 
 
 333, 330. 
 account with bank, 326. 
 mixing accounts, 347. 
 recovering against customer, 328. 
 cannot defeat set-off, 318, 319. 
 trover against, 330. 
 who may not he, 378. 
 in case of equitable mortgage, 192, 
 
 193. 
 test of right to sue, 218. 
 ASSIGNMENT, 
 
 of debt, 179, 218, 219. 
 
 notice of, 179. 
 of stock in trade, 181 and n., 521. 
 of shares, A'c. ls5. 
 to creditors, 112 1. 325. 
 of lease, L97 and n. 
 of ship ami cargo, 212. 
 of Bhares in ship, 21 1. n. 
 of all estate, &c, 421. 
 ATTORNEY, 
 cheques of, 82. 
 paying in client's money, 348. 
 
 to, without authority, 300. 
 getting in assets, &c, 348. 
 notice to, 209, n. 
 binding company, 54s, 549. 
 indorsing, 20."), :; I*. 
 mixing accounts, 348. 
 liability of, 232, 587. 
 See Warrant of Attorney. 
 
 BALANCE, 
 
 of customer's account, 190, 191. 
 
 discharge of, 225. 
 
 transfer of, 226. 
 
 one partner drawing out, 317. 
 
 firm Buing for, 296, n. 
 BANKER, 
 
 n lations of, to customer, 1, 3, 5. 
 London agent, 437. See Cor- 
 respondent. 
 
 not truster-, iii general, 3. 
 
 when b trustee, 4, 5. 
 
 who is, as to issue of notes, 439, n. 
 
 agent, when, 1. 1 12, 143. 
 
 stakeholder, -118, 119. 
 
 factor, 112. 
 
 what is dealing as a, 2'.»7, 302. 
 
 cheque or draft on, what, 12, 1G. 
 refusing to cash cheque, &c, 27, 28, 
 18, 19, 67, :r27. 
 
 pay bills, 1 13. 
 cancelling cheque, 103. 
 
 (Ih/i/ as witness, 3, n. 
 
 stakeholder, 118, 119. 
 
 as t" customer's handwriting, 11, 
 
 2.'., 26. 
 care, 4c, 63, 64, 65. 
 paying bills payable at bank, 
 110, 111, 113. 
 cheques, 125. 
 
 before due, 6 I. 
 orders, Ac, 1 15-1 1 v . 
 as to receiving money to take up 
 bills, 110, 113. 
 to invest, 121. 
 as to deposits of securities, 122. 
 See Securitu s. 
 knowing of act of bankruptcv, 
 
 87, 88. 
 act of bankruptcv of a partner, 
 
 401. 
 acceptance of bills, 5, 6. 
 caution in paying bills, Ac, 111. 
 
 forged bills, 111, 112. 
 paying to executor, 133, 134. 
 country correspondents, 161, 
 
 173,' 175. 
 knowing the law, Ac., 325. 
 to whom, "iilv responsible, 7, 9, 10. 
 not obliged t<i stop on act uf bank- 
 ruptcy of partner. 401. 
 bill for account against, 4, n., 289, 
 ' 304, n., 398. 
 payable at bank, 101-1 1 1. 
 money had, Ac., by, what not, 3, 4, 
 
 10. 
 stopping payment, 89. See Stop- 
 ping Payment. 
 
 Caution a- to paying bills, 111. 
 orders, &c, 115-118. 
 Liability <>t'. 
 criminal, 1 M. 1 !■">. 1 18, 153,005. 
 in equity, 150, 351. 
 for acts 'of partner, 292, 2'.U, 290. 
 fraud of partner, 121, 122, 292, 
 293. 
 
 manager, 298. 
 
 legal remedy retained, 117. 
 directors in banking copartnership, 
 
 2. V.i. 
 for negligence, 239, 275, n., 238, 
 
 2 11. 
 
 of clerk. 265, 266. 
 on purchase of annuity. 294. 
 
 re-issued notes, 299. 
 for pledging short bill, 310.
 
 I N D E X. 
 
 435 
 
 BANKER, continued. 
 
 cashing bankrupt's cheques, &c, 
 
 326, 327. 
 refusing to accept, &c, 386. 
 " short bills," what, 152. 
 fraudulent disposal of stock by, 177, 
 
 292, 296, 297. 
 taking equitable mortgage, 180-197, 
 199, 202. 
 
 warrant of attorney, 206, 233. 
 bond, 206, 207, 220. 
 taking promissory note, 207, 216. 
 plate, 210. 
 
 goods at sea, 212, 213, 214, 216, n. 
 bill of sale, 212. 
 mortgage of ship, 213. 
 assignment of marine insurance, 
 
 214, 215. 
 guarantee, 220-277. 
 note of surety, 257. 
 leasehold title deeds, 191, 192. 
 customer's accommodation bill as 
 
 security, 331. 
 money to meet bill, &c, 338. 
 assigning all estate, &c, 421. 
 secret arrangement with creditors, 
 
 241. 
 dealing with executor, 351. 
 paying without notice of insolvency, 
 
 325. 
 accepting bill for customer's accom- 
 modation, 331. 
 course of business of, 297, 302. 
 goodwill of concern, 299. 
 as to his own bank notes, 405. 
 absconding, 413. 
 
 composition with creditors, and se- 
 curity at same time, 243. 
 compositions as to Bank notes, 
 
 450. 
 finding surety, 275. 
 giving security, 205. 
 
 on issue of notes, 447. 
 change of firm, &c, 449. 
 appropriating payments, 278-282. 
 rights as to felon's estate, 191, 192. 
 sub-mortgagees, &c, 193, n., 
 
 182. 
 retaining title deeds, 201, 202. 
 lien of, 283-290. 
 selling property in case of a run, 
 
 &c, 315. 
 security for general balance, 190, 
 191, 207. 
 
 future advances, 200, 204. 
 See Securities. 
 in partnership, 291-313. 
 discharge of survivor, 190. 
 security to new firm, 191. 
 acts of one partner, 292, 294, 296, 
 351,401. 
 
 retiring, 304, 360. 
 See Partners. 
 Bills of Exchange. 
 
 payable at bank, 101-114. 
 entering "short," 152. 
 pledging "short," 316. 
 specially indorsed, 289, n. 
 paying as indorsors, 389. 
 restrictive indorsement, 390- 
 
 394. 
 proving on bills paid in, 325, 
 
 326. 
 refusing to pay, 113, 323, 326. 
 proving on bills discounted, &c, 
 
 327. 
 taking money to take up, 110, 
 
 caution as to paying, 111. 
 refusing to discount, 389. 
 forged, 111, 112. 
 accepting, 5, 6, 331. 
 See Bills of Exchange. 
 negligence of, 239, 275, n., 238, 244. 
 
 clerk, 265, 266. 
 libel on, 303. 
 his notes, 407, 408. 
 presentment of, 412-414. 
 licenses to issue notes, 446. 
 security for unstamped issue, 447. 
 bond of, 449. 
 
 no new bank can issue, 461. 
 proving in bankruptcy against part- 
 ner, 305. 
 bankruptcy of bankers, 316. 
 
 customer, 325, 327, 378, 384. 
 cannot re-issue notes, 440. 
 penalties, 444, 445. 
 when trader, 314. 
 voting in choice of assignees, 379. 
 suing fiat against himself, 314. 
 not to be assignee in bankruptcy, 
 
 378. 
 absenting from bank, 315, 324. 
 other acts of bankruptcy, 315, 324, n. 
 absconding, 413. 
 certificate, 315, 316, 370. 
 liability to assignees in bankruptcy, 
 323, 325, 331. 
 trustees, 351. 
 to a speculation, 308, 309. 
 
 committee of management, 352. 
 agents, 347. 
 
 executors, 346, 351, 352. 
 directors, 313, 343, see 25 L. J., 
 
 Ch., 601. 
 commissioners, 340. 
 receivers, 352. 
 
 Savings' Banks, 345, 620, 621. 
 corporations, 346. 
 firms, 188, 189, 306-313. 
 assignees of bankrupt, 326, 327.
 
 436 
 
 GRANT ON THE LAW OF BANKING. 
 
 BANKER, continued 
 
 Friendly Societies, 321, 340, 620, 
 
 nut.', 
 army agents, 321, 322. 
 one of a firm, i 39. 
 
 how must keep books, Ac., 293, 330, 
 546. 
 
 invest money in stock, Ac, 
 ;; ^9, 
 
 cash bills, Ac, :!7T. i 
 discount bills, Ac, 386, n., and 
 see Discount. 
 
 mav applj securities, 330. 
 change of partnership, 449. 
 Bolvenl partner paying in, 402, 403. 
 discharge of surviving partner, 190. 
 taking accounts of a, 397. 
 usage of Liverpool bankers. 3 
 
 London bankers, 153, 266, 
 note, 
 assignment of all estate, &c. of, 421. 
 newty established, canuot issue 
 
 notes, 461. 
 returns to be made by every, 444, 
 
 466, 485. See Returns. 
 In Copartnership under 7 Geo. TV. 
 liability of members, 454, 455, 480, 
 
 481,492, n. 
 
 criminally, 476. 
 within sixty-five miles, &c, 477, 
 
 488; 
 judgment and sci. fa., 478,479, 481, 
 
 499. 
 execution, 479, 480, 481. 
 who are members, 483, 484. 
 winding up, 484. 
 contributory, 492, n., 493, n., see 25 
 
 L. J., Ch.649. 
 keeping share register, 485, n., 494, 
 
 note. 
 not to notice trusts, 492, 495. 
 iutere-ts of shareholders, 496. 
 property in laud, 496. 
 sci. fa., 499. 
 when not liable for debts, 505. 
 
 and re-issue of notes, 509. See 
 
 Bank Notes. 
 "borrowing, owing, Ac," 139, 151, 
 
 458, 159, 510. 
 contracts with, 511, 542, 
 priority of leg 565. 
 
 winding up, 523, 613, n. 
 fiat, 524, 527, 613, a. 
 diii 25 -555. 
 
 personal liability of, 535, 536. 
 
 are trustees. 5 13. 
 retiring from. 5 1 1. ■•■<'. 
 liabilities of. see Shareholdt rs, II </,</- 
 ,i r , joint Stock Banks. 
 BANKING COPARTNERSHIPS. 
 J 'a liners. 
 
 BANKING HOURS, 49, 51, 106, n., 
 
 170. 171. 
 payment after. '. 
 
 courts take notice of, iu London, 49. 
 BANK NOTES, 
 defined, 439, n., 150. 
 setting off, 164, 336, 105. 
 who mav issue, 138, 139, 406, 407, 
 
 509. 
 issue of, by country banks, 438. 
 re-issue of, 299, 509. 
 form of, 4i i7. 
 
 exchanging country notes, 399, 416. 
 compositions as to, 450. 
 when money, 404. 
 tender of. 405, 406, 407. 
 
 representations on, 432. 
 bequest of, 405, 406, n. 
 risk on receipt of, 416. 
 taking in execution, 406. 
 in alternative, 407. 
 in payment of antecedent debt, 409. 
 deposited, 414. 
 payable at a particular place, 407. 
 
 on demand. 420. 
 presentment of, 407, 40*, 412-114. 
 431. 
 
 discharge from, 413. 
 how to be paid, 407. 
 insolvency of banker, 410. 
 how taken in payment, Ac, 408, 410, 
 
 412. 
 paid in, before notice of sto; 
 
 317, 336. 
 proving on, 408, n., 317. 
 
 signed by one partner. 120. 
 how transferable, 409, 410, 111. 
 
 to pay antecedent debt, 409. 
 
 returns of circulati f, 440. 
 
 changing, 108, 110, 431, n. 
 
 exchanging, 416. 
 
 buying, 409,411, 420. 
 
 accountable receipt for, 410, 414. 
 
 forged, 411, 422, 129. 
 
 monthly average of, 142-444. 
 
 quarterly returns, 4 1 1. 
 
 weekly returns, ill. 
 
 Board of Inland Revenue to examine, 
 
 &c., 4 11. 
 banks of issue of, uniting, 4 15. 
 stamped, 1 17. 
 unstamped, 107, 4 18. 
 unstamped, security for issue. 1 17. 
 accounts, inspection of, by Inland 
 
 I;. ■ mil- Commissioners, 4 1 3. 
 post dating, 151. 
 allowance of stamps on, 452. 
 notice of dishonour, 1 15. 
 in case of bankruptcy, 417,419-421. 
 lost, 421-429. 
 stopping, 424, 432.
 
 INDEX. 
 
 437 
 
 BANK NOTES, continued. 
 stolen, 423, 424, 427, 428. 
 stale and cancelled, 431, 432. 
 forged, 429, 431. 
 false pretences as to, 432. 
 no new bank can issue, 461. 
 bankruptcy, as to, 417, 419. 
 BANK OF ENGLAND, 
 
 cheque on, how payable, 22, 23. 
 
 forms of, 81. 
 refuse to pay what cheques, 70, n. 
 cheques of, 81. 
 
 notice of act of bankruptcy to, 88, 
 438. 
 
 to branch bank, 433. 
 when compellable to reinvest stock, 
 
 125, 358. 
 duty as to keeping account of stock, 
 
 126. 
 transfer of stock, 360, 362, 367, 371, 
 
 373. 
 payment of dividends, 363, 365. 
 charity trusts, 372. 
 corporations, 373, 374. 
 power of attorney to transfer, &c, 
 
 358, 362. 
 cestui que trust, 375. 
 deposits with, 377, 378. 
 discounting, 380. 
 stock of, 353, 375, 376. 
 bookkeepers of public stocks, 354- 
 
 357. 
 not trustees thereof, 364. 
 unclaimed dividends, 374. 
 their books, 354, 359, 371, n., 432. 
 dividend warrants, 355, 361-363. 
 rights within sixty-five miles of Lon- 
 don, 457, 440, 477. 
 bank notes of, 357, 405, 406. 
 
 unstamped, 406. 
 
 bequeathing, 405. 
 
 as clioses in action, 405. 
 
 tendering, 406. 
 
 taking in execution, 406. 
 
 following lost, 423. 
 stamps, 377, 406. 
 stopping notes, 423, 424, 432, n. 
 relieved from registering wills, &c, 
 
 360. 
 does not notice trusts, 363, 364, 365. 
 judicial notice of, 406, n. 
 practice of, 360. 
 
 rule of, as to joint owners of stock, 
 364, 369, 370. 
 as to proving deeds of, 433. 
 entry in books of, 356, n., 432, n. 
 forged power of attorney, 373. 
 proving in bankruptcy, 377, 378. 
 BANK POST BILL, 
 payment by, 38. 
 form of, 432, n. 
 
 nature of, 169, n. 
 lien as to, 1 lis. 
 describing, 357. 
 stamps, 377. 
 cashing, t.'.'J. 
 issued in London, 433, n. 
 payable at branch banks, 458, n. 
 remitting, 168. 
 accepted, 432. 
 BANKRUPTCY, 
 of drawer of cheque, 67. 
 officer of Savings' Bank, &c, 620, 
 
 621. 
 petitioning creditors' debt, 83. 
 cheque, when act of, 84. 
 fraudulent preference, 85, 86, 87, 
 
 209, 211, 321, 322, 402, see 25 L. 
 
 J., Bank, 60. 
 notice of act of, 88, 326, 433. 
 nature of act of, 315. 
 of some members of firm, 131, 132, 
 
 310. 
 of London correspondent, 161, 162. 
 reputed ownership, 169, 180, 181, 
 
 185, 211, n. 353. 
 recovery of deposit from assignees, 
 170, 171. 
 
 Insurance Company, 182. 
 what not act of, 181, 324, n. 
 
 is "in order and disposition,'' 
 
 169, 182, 185, 188, 194, n., 
 
 206, 330, see 25 L. J., Bank, 
 
 53. 
 
 in case of equitable mortgage, 192. 
 
 assignment of debt, 179, 218, 183, 
 
 note, 
 banker proving against surviving 
 
 partner, 191, 305. 
 one partner contributes more than 
 
 his share, 291. 
 retiring partner, 307. 
 contingent liability, 262. 
 priority of bank in, 191. See Cre- 
 ditors. 
 bankers made traders as to, 314, 613, 
 
 note. 
 banker suing fiat against himself, 
 
 314, 315. 
 of bankers, 314-323, 327, 417, 521. 
 
 customers, 323-339. 
 
 holder of bank stock, 376, n. 
 shares, 521, 314. 
 bank of England proving in, 37^'. 
 proving on banker's notes, 379, 408, 
 n., 419. 
 bills paid in, 325. 
 
 discounted, 327, 384. 
 a payment protected by the Statute 
 
 of, 433. 
 set-off in respect of notes, 318, 319, 
 
 419.
 
 
 QBANI ON THE LAW OF BANKING. 
 
 BANKRUPTCY, continued. 
 
 bills of bankrupt, 323. 
 protection in, 315. 
 
 3 and note, 370. 
 notice of act of, 121. 
 banking copartnership] proving in. 
 467, 469. 
 suing //<(/. 168. 
 winding an, til 3, n. 
 member of, liable in, 314. 
 of public officer, 17 1. 
 of company, customers of bank, 
 
 302. 
 shares, as to, 491, n., 404. 406, 521, 
 
 588. 
 commissioners, &c, proving, 342. 
 member of company, 506. 
 trader debtor summons, 507, see 613, 
 
 note, 
 assignment of all effects, &c, 181, 
 
 521. 
 delaying creditors, 521, 522. 
 
 two firms, &c, 522. 
 fiat against bankers, 524. 
 contrasted with winding up, 549-551, 
 
 613, n. 
 as to joint stock banks, 599, 613, n. 
 priority of Friendly Societies, 321, 
 
 620. n. 
 Priority of Savings' Bank, 620, 621. 
 
 mortgagee, 201, 215. 
 refusal of certificate, 315, 316, and 
 n., 370. 
 BANE! STOCK, 353, 375, 376. 
 "participation," 376. 
 bequest of, 354, a., 376, n., 377. 
 owner of, 376, a. 
 charging, 486, n. 
 trustees, investing in, 375. 
 bonus, 37-"). 376. 
 BILL OF SALE, 
 
 when should be taken, 212. 
 nling, 594 
 lien as to, 32.",. 
 BILLS OF LWCIIAX.iK, 
 
 able at bankers, 104, 176, 323, 
 377, 378. 
 how accepted, 105. 
 declared on, 105, n. 
 notice of dishonour of, 105, o., 
 
 L06. 
 lose of, L76. 
 indorsed to bankers, 106, 310, 330. 
 
 dally, 289, a., 137. 
 agent, personally liable, when, 436. 
 paving, as indorsers, 389. 
 "orders not to pay," 107. 
 presentment, 106, n., 108, 109. 
 attestation of, 107, 1 13. 
 acceptance <•('. 108, 109, 110. 
 bom to be paid, 109. 
 
 when, 110, 111. 
 paymenl by stranger, 111. 
 refusal to pay, 1 13, 323. 
 forged, 109, 111. 
 
 indorsed by London agent, in ex- 
 change, iVc, 330. 
 
 procuration, 516. 
 protested, 112. 
 cancelled by mistake, 107, 112. 
 
 refusal to take. 113, 114. 
 
 remittance of, L39, L54, 173-175. 
 for sale, 155, 204. 
 indorsed bills, 154. 
 trover for,agains1 assignees of bank- 
 ers, 141, 112, 159. 
 entering as cash, 141 and n., 143. 
 usage of Lancashire, as to, 141, 1 12. 
 
 L50'. 
 when "in order and disposition," 
 
 142, 206, 330. 
 entering short, 152. 154, 155, 330. 
 pledging short bills, 316, n. 
 foreign, 435. 
 undue, property in, 143, 144. 
 
 transfer of, 144. 
 disposal of, 151. 
 
 depositing indorsed, 153, 154, 161. 
 164, 170, 203, n., 289. 
 by one not a customer, 160, 165. 
 country bank, 163. 
 "short bills," 330, 152. 
 
 presumption, as to, 153, n. 
 not passing to assignees, 169-172, 
 
 330. 
 lien on, 288, 289, 251. 
 handed in, as to proof in bankruptcy 
 
 on, 325. 
 of a partnership, 300, 310. 
 one partner, 308, 310. 
 accommodation, 163, 164, 318-321, 
 
 329, 331, 389. 
 attorney indorsing, 348. 
 discounting, 2Ss, :js0-:;ss. 
 rediscounting, 389. 
 pledging, 203, n. 
 
 restrictive indorsement of, 390-394. 
 at sis months' date, 457. 
 less date, 459. 
 longer date, 159. 
 manager indorsing, 515. 
 
 retiring, 388. 
 directors accepting, Ac, 554, 593. 
 BILLS OF LADING, 212, 213, 21 1. 
 215. 
 di posit of, 100. 
 BOND, 
 irregular disposal of, 148, 297. 
 to replace stock, 357, n. 
 deposited as security, 177, 206, 207. 
 i/ir, n in bankers, 220. 
 change of firm, 221.
 
 INDEX. 
 
 439 
 
 BOND, continued. 
 
 joint and several, 221, n., 22G, 
 229, 236, 240, 259. 
 construction of, 22(3. 
 merger, 221, n., 229. 
 joint and several, 229, 236, 240, 241, 
 
 275. 
 counter bond, 240. 
 time given to principal, 230. 
 for fidelity of clerk, 266. 
 paying off, 282. 
 proving in case of, 328. 
 payable by instalments, 328. 
 given by bankers, to pay stamps, 
 
 510. 
 BOOKS, 
 
 bankers, bow to keep, 330, 331, 546. 
 as to private, 293. 
 of Bank of England, 354, 356, n. 
 examination of, by Inland Revenue, 
 
 &c, 444. 
 register of banking copartnership, 
 
 464, 473, 485, m, 497. 
 shareholder not bound by, 547. 
 counter, 171. 
 entry of probate, 589. 
 
 by clerks in, 266, 267. 
 register of joint stock banks, 592. 
 BRANCH BANKS, 317. 
 paying notes into, &c, 317. 
 promissory note made at, 516. 
 . managers of, 298, 514-520, 522, 602- 
 
 605. 
 bank post bill, 433. 
 each separate, 520. 
 BRISTOL, usage of bankers of, 288, n. 
 
 CALLS, 
 
 In Banking Copartnership, 
 
 as to proving for, 326. 
 
 covenant to pay, 472. 
 
 suing for, 478. 
 
 liability of legatee for, 488, 493. 
 
 unpaid, 572. 
 
 paying on shares deposited, 189. 
 In Joint Stock Bank, 
 how made, 591. 
 
 refusal to pay, 582. 
 
 interest on, 592, n. 
 
 action for, 592, n. 
 
 evidence of payment of, 607. 
 
 paying on shares deposited, 189. 
 CANCELLING, 
 
 cheques, 59-61, 65, G6, 80, 103. 
 by mistake, 65, 112. 
 bills remitted, 175. 
 bank note, 432. 
 CAPITAL, 
 
 of banking copartnership, 485. 
 
 paid up, 537. 
 of joint stock bank, 584. 
 
 of outgoing partner, 300. 
 representations as to, 585. 
 CASH, 405, n., 406. 
 
 evidence of receipt of. Ill, 414. 
 CASH CREDIT, what, 20. 
 CASHIER, 269, 270, 462, n., 509. 
 
 false entries by, 269. 
 CERTIFICATE. Sec llonhruptcy. 
 CHEQUE, nature of, 12, 13. 
 
 form, 12, 15, 19, 23, 24, 81, 341, n. 
 
 its address, 13. 
 
 date, 13-20. 
 
 place, 14, 15, 17. 
 
 exemptions from stamp, 14, n., 16, 
 
 19. 
 when not payment, 15. 
 unstamped, 1 li. 
 post dated, 17, 18 and n., 20, 28, n. 
 
 issuing, 18. 
 
 within what distance, &c, 17. 
 penalty for cashing void cheque, 18, 
 
 19, 39, 64. 
 usage as to paying, 19, n. 
 void, 19, 20, 21. 
 how payable, 19 and n., 21, 22, 23, 
 
 29, 30, 33, 34, 35, 65. 
 sum drawn for, 20, 23. 
 
 in body of, 24, 25. 
 
 alteration of, 25, 26. 
 lost, 26, 62, 64. 
 
 payable to order on demand, 27, 
 29. 
 
 on demand, 39, 65. 
 indorsed, 27, 28, 29. 
 when drawer has no funds, 27. 
 equity of bearer of, 27. 
 payee v. drawer, 30 and n. 
 holder v. drawer, 30, 31, 32 and n. 
 payment by Bank of England note a 
 33, 34. 
 
 country bank notes, 29, 34, 35, 
 36, n. 
 
 base coin, 35, 36. 
 
 bill of exchange, 36, 37. 
 
 another cheque, 38. 
 
 bank post bill, 38. 
 
 to bearer, &c, 34, 38, 39. 
 signature of, 39, 40. 
 
 marksman, 40. 
 
 infant, 40. 
 
 executors, &c, 40. 
 
 assignees, 41. 
 
 agent, 41. 
 
 trustees, 41, 42. 
 
 several jointly, 41, 42. 
 
 receiver, 43. 
 
 Accountant-General, 44. 
 
 partners, 44, 45, 46. 
 
 directors, 47, 48. 
 
 in cases of winding-up, 44. 
 of corporation, 47, 48.
 
 440 
 
 GRANT ON THE LAW OF BANKING. 
 
 CHEQUES, eotiHrn 
 
 Bank of England, -1. 
 refusal to pay.' 18, 49, 66, 67. 
 presenting for payment, 49, 50, 51, 
 52, 3 I. 56, 66. 
 
 dispensation with, (!G. 
 deatli of drawer, 50, n. 
 discounting, 56. 
 changing, 56, 57. 
 presentment where, 57. 
 
 when, 51, 52, 5 I. 
 
 through clearinghouse, 57,58,59. 
 bankers, 51 . 52. 
 cancelling, 59, 60, 61, 65, 83, 103. 
 stale. 50. 52, 62, 63. 
 marking, 59. 
 
 no days of grace for, 65, 95, n. 
 drawn by treasury, 65. 
 retaining, 65, 7."', 76, 8 1. 
 payee V. drawer, 50, 5o, 66. 
 crossed, 68-74, 
 cashed, 71. 75. 
 " returned," (,C>, 75-78. 
 whose property, when paid, 75, 77. 
 as payment, 78, 92. 
 evidence, 78, 80-88. 
 form of, in case of change of firm, 
 
 81, 295. 
 not money, 81, 90, 93. 
 nor goods, 90. 
 
 given for deposit on sale, 83. 
 petitioning creditor's debt, 83. 
 
 as act of bankruptcy. 8 1. 
 operation of, in insolvency, 85, 86. 
 cashing, with knowledge of acts of 
 
 bankruptcy, > s 7, 88. 
 in case of bank stopping, &c, 89. 
 when considered as cash, 90, 93, 94. 
 seizable under fi. fa., 91. 
 
 in hands of accountant-general, 
 91, 92. 
 not donatio mortis causa, 93. 
 debiting with, 9 L 
 dishonoured, 94, 327. 
 mi! bill of exchange, 94, 95, 96. 
 when, is due, 97. 
 stamps on, 97-99. 
 crimes as to, 99-102. 
 
 false pretences, 99, 100. 
 
 stealing, 100. 
 
 forgery, L01, 102. 
 
 iption of) in indictment, 101. 
 as a will, L02. 
 on bills deposited, 142. 
 fraudulenl . 
 
 ruder in which to l"' eashed, 279. 
 proving for amount of, 326. 
 of trustees, 36 1. 
 
 direct- ,!■-. 55 I. 
 
 RING HOU8] 
 CLERGYMAN, 478. 
 
 CLERK, 
 
 guarantee for conduct of, 262-27 7. 
 
 absconding, 174, 298. 
 
 course of employment, 265, 266. 
 
 negligence of, 265, 266, 207. 
 
 embezzlement by, 267. 
 COLLUSION, 
 
 of one of banking, with one of cus- 
 tomer's, firm, 292. 
 
 between bank and a creditor, 497, 
 498. 
 COLONIAL BANKS, 
 
 promissory mites of, 538. 
 
 winding up, 609-613. 
 
 bankruptcy, 609. 
 
 assignment of effects, Ac, 609. 
 
 plea of colonial judgment, Ac. 610,n. 
 COMMISSION, 
 
 banker's claim to, 327, 328, 387, 395, 
 396, 398. 
 on purchase of stock, 438. 
 COMMISSlONERSof enclosures, &c, 
 
 340-350. 
 COMPOSITIONS. See Creditors. 
 
 as to bank notes, 450. 
 
 of felonv, 268. 
 COMPROMISES, 
 
 whether effectual to relieve share- 
 holders. 508, 509. 
 CONSIDERATION. See Gua- 
 ranty. 
 
 for bank notes, 409. 
 CONSIGNEE, of goods, advances to, 
 
 212. 
 CONSPIRACY, 
 
 bankers, when indictable for, 122, 
 128, l I-. 
 
 directors, when, 552. 
 CONTRACT, 
 
 for sale, Ac, of stock, 371. 
 
 with banking copartnership, 457, 
 458. 
 CONTRIBUTORY. See Winding 
 
 hji, Shan hold rs, 
 COPARTNERSIP, 
 
 banking, 453-578. 
 
 See 1'nrlin T8. 
 
 CORPORATION, 
 
 opening account with bank, 47. 
 
 cheque of, 17. 
 
 acts of agent of, 573. 
 CORRESPONDENT, 
 
 relation to hanker, 173, 225, 322, 
 330, 137. 
 of town, 8, 9, 161, 400. 
 COSTS, 
 as to equitable mortgage, 192, 193, 
 L95, L98. 
 transfer of stock, 360, n., 367, u. 
 
 unclaimed dividends, 374, n. 
 giveu to administrator, 511.
 
 INDEX. 
 
 441 
 
 COSTS, continued. 
 
 application for interpleader, Is7. 
 
 of order of sale of mortgage, &c, 
 193. 
 motion to stay, &c., 550. 
 COUNTRY BANKER, 
 relation of, to town correspondent, 
 8, 9, 161, 400.- 
 
 other country banks, 399. 
 presenting cheques on, 53, 54,55, 56. 
 depositing bills, 153, 161. 
 remitting bills, 161. 
 proving for interest, &c., 327, 328. 
 bank notes, remittances, &c, 399. 
 
 452. 
 Loudon agent, 437. 
 
 bankruptcy of, 162. 
 Statute of Limitations, 600. 
 issue of notes by, 438-451. 
 Bank Charter Act, 439. 
 return of names of partners, &c, 
 
 444. 
 alteration of partnership, 449. 
 customer of, in case of London 
 
 agent's bankruptcy, 162. 
 receiving deposit on eve of stoppage, 
 
 170. 
 COVENANT, 
 joint and several, 262. 
 a contingent liability in bankruptcy, 
 
 262. 
 trustees suing on, 472. 
 with directors, 528. 
 of surety, 225, 231. 
 
 to pay floating balances, 228. 
 CREDITORS, 
 
 deed of composition with, 235, 243- 
 250. 
 
 guarantee by trustees under, 248. 
 fraud of, 243. 
 • joining in deed releases guarantor, 
 244. 
 
 where not, 245, 246, 251. 
 receiving dividends, &c, 317, 318. 
 
 securities, 330. 
 in case of guarantee, 228. 
 of copartnerships, &c, 501. 
 compromises with, 508. 
 priority of bankers over, 191, 201, 
 215, 288. 
 
 Friendly Societies, &c, over, 620, 
 621, n. 
 deed of composition with, how far 
 
 binds partners, &c., 294, 295. 
 
 See Partners. 
 separate, of deceased partner, 305. 
 as to winding up, &c, 572, 574. 
 option of, as to replacement of stock, 
 
 &c, 296, 297. 
 bankers' claim as, under adminis- 
 tration summons, 350, n. 
 
 relief of, against fictitious trail 
 
 &c, 371. 
 when to bear loss on remittance, -l: 36, 
 
 437. 
 
 by specialty, 483, 484. 
 advance to, affecting guarantee, 242. 
 secret arrangement frith, 242. 
 covenant in, not to sue, how it affeci - 
 guarantee, 215. 
 CROSSING; CHEQUES, 68-74. 
 CUSTOMER, 
 
 relations of, to banker, 1, 3, 5, 315, 
 
 316, and sec Srciirides. 
 how opens account, 1. 
 when also a partner, 299. 
 his orders, 3, 4, 6, 11. 
 when to be debited with cheque, 94. 
 guarantee of advances to, 221. 
 appropriation of payments of, 280, 
 
 281. 
 depositing accommodation bills, 331. 
 continuing account with bank, 280, 
 
 281. 
 relations to his banker's correspond- 
 ents, 173. 
 suing banker, 298. 
 depositing deeds of third person, 
 
 200. 
 assent of, to transfer credit, &c, 305. 
 bankruptcy of guaranteed, 227, Tl 8. 
 releasing retiring partner, 305. 
 firm, as a, 306. 
 
 rights of, in case of branch bank, 
 317. 
 sale of his stock, 292. 
 bankruptcy, 162, 314-339. 
 payment by solvent partner, 
 
 401. 
 discounts, &c, 382-385. 
 against manager, 518. 
 change of firm, 191,221, 306, 583. 
 felony of a, 191, 192. 
 
 DEBENTURES, 169. 
 
 sale of, 539. 
 DEBT, assignment of, 179. 
 DECREE, against public officer, 478, 
 
 481. 
 DEED OF SETTLEMENT, 
 
 Of Banking Copartnership, 474, 
 483. 
 executing, 483, 541. 
 construction of terms, &c, 486, 489, 
 
 492, 494, 497, 499, 525, n., 570. 
 buying out members, 512, 513. 
 directors as to, 286, 525, and n., 530- 
 
 555. 
 of Bank of Australia, 538, 541, n., 
 see 25 L. J., Ch., 649. 
 North of England Banking Com- 
 pany, 563, et seq.
 
 m 
 
 I I B A N I OS THE LAW OF B A NKING. 
 
 DEED OF SETTLEMENT, eon- 
 tin a i >/. 
 Of Joint-stock Bank, 579. 
 
 iting, 579. 
 provisions of, as to lien, 286, 287. 
 
 iS] r. 
 
 of deeds, Ac., for Bafe custody, 204. 
 of chest of heir looms, 284 
 
 >f g Is, 1 7 v . 
 
 of bills of exchange, clothed with a 
 
 trust. 170. 
 accepted for accommodation of 
 depositor, 331, 332. 
 by one of a firm, 1 B8, 189. 
 
 securities. See Securities. 
 
 copy of court roll, 203, n. 
 
 money, 170. 172, 338. 
 
 bills of lading, 190. 
 
 shares, 188. 
 
 warrant of attorney, 206. 
 
 dock warrants, 190. 
 account, what, 2, 6, 2'.'7. 
 
 of several, jointly, 41. 
 receipt, 136. 
 
 cancelling, 137. 
 memorandum of, 1*2, n., 192, 193, 
 
 L94, 195, 199, 200. 
 unwritten. L94. 
 fresh, when needful, 217. 
 DIRECTORS, 
 In Banking Copartnerships. 
 one of a company, member also of 
 
 bank. 313. 
 banker dealing with, 313, 343, see 
 
 25 L. J., Ch., 601. 
 blank cheques of, 55 I. 
 consent of, to transfer, &c, 286,497, 
 
 498, 545. 
 not to be sold. 544, 558. 
 contracts with. 511, 542, 555. 
 
 . lect of duties, 56 I. 
 buying out shareholders, 512. 
 binding them, .".:;<, 539, 541. 
 relations to manager, 51 1. 602-605. 
 liabilities of, 525-555, 601, 605. 
 
 f towers of, '-'- ,; . 52fi and a., 555, 604. 
 ien of, on -hare-. I94j 495. 
 
 313,543, 604, 605. 
 granting credit-, .". 17. 5 18. 
 
 how to seep l ks, :> 16. 
 
 altering objects of copartnership, 526, 
 527. ' 
 discounting, 526. 
 •• Bending up slum-." 528, 5 17. 
 :i j .] .I \ i 1 1 lT moneys in speculations, 
 
 ... tO do fraud, ."-1-. 
 
 representations of, .">.;.">. 537, 5 1", 
 
 552, 558, 585. 
 bankruptcy of, 6 19. 
 irregular transactions of, 534, 645. 
 
 accepting bills, 554, 555. 
 
 interests of, 536. 
 
 drawing joint and several note, 
 
 554 
 managing, 603. 
 paying dividends, 552. 
 Of Joint-stock Jinn/:, 
 
 election, 579, 593. 
 
 re-election, 592. 
 
 powers, 585, 586, 591, 593, 599, n., 
 604. 
 
 as to shares. 591, 592, and u. 
 qualification, 593. 
 cannot allow members to withdraw, 
 
 586. 
 service of notice on, 593. 
 dividends. 59 I. 595. 
 
 liabilities, 593, 595, 601, 605. 
 binding themselves, Ac., 597. 
 not to disputes, Sue 
 advances to, 313, 598. 
 contracts of, 599. 
 taking securities, 593, 594. 
 service of notices on, 593. 
 cannot divert funds of company, 597. 
 DlSt'olXT, 
 
 when a purchase, 308, 381, 385, n. 
 loan, 337, 385, and n. 
 safe, 380, 382. 
 as to interest, 327, 328, 386, 387. 
 negligence, 382. 
 evidence, 382, n. 
 presumption tor hankers, 382. 
 of bills remitted for, 386. 
 
 drawn bv one partner, &c, '• || ~. 
 
 deposited, 153,288. 
 
 for accommodation of customer, 
 
 389. 
 forged, 112, 411. 
 navy lulls. 411. 
 in case of partners in several 
 linns, 301, 307. 
 one of a firm, 213. 
 
 death of drawee, 390. 
 commission on. .".!»7. 39S. 
 of promissory note, 289. 
 permission to. 154. 
 refusal to. 389. 
 bills discounted pass to, &c, 330, see 
 
 337. 
 re-discounts, 387, a. 389. 
 DIVIDEND WARRANTS, 355, 361. 
 
 form of. 361, n. 
 DIVIDENDS, 
 in bankruptcy, refunding, 326, 332. 
 of stuck. 364, 356, 363, 367. 
 warrants. 36 1 . 
 
 unclaimed, 374, 375. 
 orders to pay over. 37C. 
 action for. 376, a. 
 
 in Joint-stock bank, 594.
 
 INDEX. 
 
 U3 
 
 DIVIDENDS, continued. 
 
 on shares, 1. 
 
 wife suing for, 493. 
 
 lien on, 495. 
 how to be paid, 552. 
 DOCK WARRANTS, 190. 
 DRAFT. See Cheque. 
 
 EAST INDIA BILLS, 166, 207, 383. 
 ELEGIT, 201. 
 EMBEZZLEMENT, 
 
 banker when liable for, 144, 267. 
 clerk, 267-270. 
 shareholders, 602. 
 officer of savings bank, 621. 
 Banking Company, 602. 
 "ENTERING BILLS SHORT," 152, 
 
 154. 
 EVIDENCE, 
 
 cheques as, 78-88. 
 unstamped, 16. 
 books of banker as, 143, 330, 331, 
 155. 
 Bank of England, 354, 359, 371, n. 
 accounts of banker as, 607. 
 indorsement as, 154, 382. 
 entering bills short as, 154, 155. 
 of knowledge of change of firm, 
 130, n. 
 
 acts, &c, by deceased partner, 
 
 296. 
 irregular disposal of bonds, 
 
 149. 
 negligence in clerk, 266, 277. 
 terms of a deposit, 404. 
 change of firm, &c, 303, n., 
 
 306, and n. 
 assent of customer to transfer 
 
 credit, &c, 305. 
 authority to borrow, 311, n. 
 
 issue notes, 430. 
 dishonest dealings, &c, 315, 
 316. 
 of knowledge of intent to defraud, 
 Ac, 357, 358. 
 
 discount, 382, n. 
 transfer of stock, 359, 373, 
 and n. 
 
 credit to new firm, 305, 
 306. 
 fraudulent preference, 403. 
 execution of deed, &c, 295, 
 
 and n. 
 authority to issue notes, 430. 
 of receipt of cash, 411. 
 person being public officer, 462, 
 and n., 463, 469. 
 
 member of co-partnership, 
 
 466. 
 proprietor, &c, 463, 497. 
 director, 525, n. 
 
 partnership account, 311, 31 2. 
 books of company, 473, 4!t I. n., 
 
 547. 
 diligence, Ac, in sci.fa., 501, a. 
 manager, 517. 
 receipt, 589. 
 
 return of names, &c, 461, 162, 
 464. 
 on promissory note, 403, 404. 
 
 guarantee, 277. 
 presumption for bankers, 382. 
 as to short bills, 153, n. 
 as to privity, &c, 296. 
 chauge of firm, 306, n. 
 to identify, &c, 494, n., 57 1, 576. 
 effect in, of returns, 466. 
 by public officer, 462, 472, 473. 
 
 cashier, 608. 
 effect of pass book as, 46, 525, n., 
 605-608. 
 
 acquiescence in entries, «fcc, 
 606. 
 what not, of payment by notes, &c, 
 
 608. 
 certificate of savings' banks, 620. 
 EXCHANGE, 
 
 of bills of exchange for bill upon 
 
 London, 170. 
 of country bank notes, 416, 418. 
 EXCHEQUER BILLS, 
 deposit of, 203. 
 lien on, 289. 
 sale of, 296, 297. 
 EXECUTION, 
 
 against public officer, 483. 
 executor, 492. 
 
 members of company, 479-481. 
 existing members, &c, 501. 
 within three years, &c, 455, 456.' 
 notice of, 591. 
 
 in case of collusive judgment, 498. 
 EXECUTORS, &c, 
 cheques by, 40. 
 notice to, 179, 180, 209, 573. 
 of deceased partner, 305-310, 312. 
 
 guarantor, 274, 275. 
 one dealing with other, 352. 
 dealing with banks, 346, 347, 350, 
 351. 
 Joint Stock Banks, 589. 
 mixing accounts, 347, 348, 352. 
 advancing trust funds to bankers, 
 
 350. 
 transferring stock, 360. 
 
 to credit, &c, to evade legaevdutv. 
 134. 
 as to shares, 484, 488, 491. 
 investing through country bankers, 
 
 349. 
 execution against, 492, 493. 
 Sci. fa. against, 483.
 
 444 
 
 GRANT OX THE LAW OF BANKING. 
 
 EXECUTORS, continued. 
 
 clerical, 198. 
 
 when released, 535. 
 contributory, 563, 564, 567. 
 
 costs of transfer of stock, 360, n. 
 
 death of, 180, n. 
 EXEMPTION, 
 
 from liability, <>f members. 
 
 of copartnership, 51 
 EXTENT, 201, and 2 Exch. 299. 
 
 parcel of bills sealed but not deli- 
 vered, liable to, 437. 
 
 FACTOR, 155, 156. 
 FELONY. 
 
 of customer, &c, 191, 192. 
 clerk, <fcc, 268. 
 FIRE, policy of insurance against, 
 
 181. 
 FI I : M, change of, 222. See Partners. 
 FIXTURES, equitable mortgage of, 
 
 192, ii.. 195. 
 FORGERY, 
 
 of Bank of England, &c, notes, 357, 
 429. 
 power of attorney to sell out, &c, 
 
 292. 
 country bank notes, 411, 429. 
 loss of document, 422. 
 order for payment of money, &c, 
 
 430. 
 banking copartnership notes, 468, 
 476, 510, n. 
 cheque, 55 1. 
 description of bills of exchange, 
 .',17. 
 
 lence of intent, &c, 357. 
 non-complicity, 373, n. 
 FRAUD, 
 
 of one partner unknown to others, 
 
 in selling stock, 296. 
 in case of copartnerships, 476. 
 bankruptcy, 1 B5. 
 judgment against, 504. 
 ■ i guarantee, 233, n. 
 of manager, 267, 298, 518, 519, 
 
 548. 
 directors, 537, 548, 552. 
 FRIENDLY SOCIETIES, 
 bankers dealing with, 321,340,343, 
 344. 
 
 >D8, 
 deposit of, 17-, 210, 211. 
 clothed with trust. 215. 
 GUARANTEE. 
 To bankers before 1856. 
 mder seal, 252-255. 
 
 leration must appear, 255, 
 274. 
 
 where ambiguous, 253. 
 
 promissory note as, may require an 
 
 agreement stamp, 256. 
 for past advances, 254, 259. 
 Sina 1856, 
 consideration need not appear, 255, 
 
 274 
 misrepresentation as to, 217. 
 release of one, no release of surety, 
 
 241. 
 fraud in getting, 242. 
 filing bill, 243. 
 forbearance, 246. 
 For Advances, 220-202. 
 change of firm, 221, 222, 223, 225. 
 form of, 223, 232. 
 construction of, 224. 
 limited, 226-228, 233, 235. 
 varying, 226, 271, and n. 
 continuing, 221. 222, 227, 259, 260. 
 revocation, 227, n. 
 balance in favour of customer, 260, 
 
 261. 
 counter indemnity, 237, n. 
 merger, 229, 230. 
 time given to principal, 230, 243, 
 
 257. 
 on behalf of firm, 223. 
 impeaching, 233, n. 
 how to be taken, 233, 238, 273. 
 release of, 231, 235, 239. 
 by deed, 245. 
 
 promissory note, 235, 256. 
 reserve of remedies, 242, 245, 247, 
 
 252. _ 
 past advances, 249. 
 knowledge of act of bankruptcy, 
 
 250. 
 trust, 250. 
 set-off, 251. 
 
 personal, of directors, 313. 
 proving on, in bankruptcy, 326, 327. 
 /•'<//■ Conduct of Clerks, &c. 
 discharges of, 221, 244, 262, 263, 
 
 264, 266,270-272. 
 change of firm, 272, 273. 
 
 duties, 265. 
 
 salary, 272. 
 executor of guarantor, 274. 
 composition of felony, 268. 
 
 ion to account, 269, 270. 
 notice to guarantor, 271. 
 
 waiver of, is for jury. 27 1. 
 contract of guarantor, 271. 
 
 varied, 271, 272. 
 
 plea on, 271. n, 
 '•to the house," 273. 
 how to take, 27::. 27 1. 
 application of payment, &c, by clerk, 
 
 277. 
 
 Qiv( a by Bankers,
 
 INDEX. 
 
 445 
 
 GUARANTEE, continued. 
 as treasurers, &c, 275, 276. 
 
 HEIR LOOMS, 
 
 deposit of chest of, 284. 
 inspection of, 284, n. 
 
 INFANT, 
 
 accountable receipt to, 133. 
 See Shares. 
 INSOLVENCY, 
 
 operation of cheque, 85, 86. 
 
 payments without notice of, 325. 
 
 equitable mortgage, 198, n. (p), 218. 
 
 provisional assignee in, 187, 219. 
 
 in India, 208, 333. 
 
 misdescription in schedule, 339. 
 
 of banking copartnership, 471, 507, 
 527. 
 INSPECTORSHIP, deed of, 295. 
 INSURANCE, 
 
 deposit of policy of, 179, 181, 182, 
 185. 
 
 notice of deposit, 180, 182, 183, 184, 
 185, 186, 219. 
 
 mortgagee of, 179, 182. 
 
 sub-mortgagees, 182. 
 
 assignment, 184. 
 
 fire, 181. 
 
 marine, 181, 213, 214, 215. 
 
 assignment of policy of, 218. 
 debts, 179. 
 
 indorsement of policy, 215. 
 
 amount of debt secured, 218. 
 INTEREST, 
 
 contract to pay on deposits, 3, n. 
 
 on rests, &c. 397. 
 
 securities, 216, 217. 
 
 usage to charge on advances, 3, n. 
 
 rebate of, 386. 
 
 when to be paid on deposits, 129. 
 proved for, 327, 328. 
 calculated on separate items, &c, 
 304. 
 
 usage of Liverpool as to, 397, 607. 
 
 on calls unpaid, 592, n. 
 
 assignees recovering, 328. 
 
 compound, in savings' banks, 614. 
 INTERPLEADER, 137, 187, 219. 
 
 JOINT AND SEVERAL PROMIS- 
 SORY NOTE, 76, 77, 235, 236, 
 260. 
 
 taken as security, 206, 251, 260, 261. 
 
 in case of change of firm, 216. 
 
 payable to trustees of company, 258. 
 
 indorsed with agreement, 258. 
 
 by directors, 551, 554. 
 
 what no defence on, 77, n. 
 JOINT OWNERS OF STOCK, 125- 
 
 127. 
 
 JOINT PROMISSORY NOTE, 
 
 given as guarantee, 235, 236. 
 
 merger of, 236. 
 JOINT STOCK BANKS, 579-600. 
 
 how to be formed, 579, 584, 586. 
 
 actions by and against, 579. 
 
 judgment, &c, 579, 580. 
 
 registration, 580. 
 
 offices, 581 and note. 
 
 returns, 581, 582, 583. 
 
 register of names, &c, 581. 
 shares, 588. 
 
 manager, 582, 595. 
 
 proving in bankruptcy though in- 
 solvent, 302. 
 
 calls, 582, 587, 591, 592, n., 607. 
 
 public officer, 600, 601. 
 
 change of firm of customer, 583. 
 
 notice, 584. 
 
 pass book, 583, 601, 607. 
 
 capital, 584, 585. 
 paid up, 585. 
 
 directors, 585, 591. See Directors. 
 
 solicitor, see Attorney. 
 
 shares, 582, 586, 587,591, 592. 
 
 shareholders withdrawing, 586. 
 
 dividends, 589, 594. 
 
 prosecution of officers, &c, 601-605. 
 
 executors, 589, 590. 
 
 meetings, 596, 597. 
 resolutions, 597. 
 
 audit, 596. 
 
 pass book, 605-609. 
 
 publication of accounts, 596. 
 
 majority, 597. 
 
 alteration of objeets of bank, 597, 
 598. 
 
 advances, 598. 
 
 contracts, 599. 
 
 winding up and bankruptcy, 599 
 613, n. 
 JUDGE'S ORDER, 366, 487. 
 JUDGMENT, 
 
 against public officer, 478. 
 
 sci. fa. on, 479. 
 
 enforcing, 487, 488. 
 
 KNOWLEDGE, 
 
 when notice, 181, 183, 184, 209. 
 means of, when notice, 292. 
 imputing, 292, 351. 
 
 LANCASTER, usage of county of, as 
 to banking, &c, 141, 142, 141, 
 150, 152, and n. 
 LARCENY, 
 
 of void cheque, 19, n. 
 description of cheque in, 78. 
 of clerk, 268, 622, 270. 
 cashier, 269, 270. 
 manager, 602-605.
 
 44G 
 
 GRANT OX THE LAW OF BANKING. 
 
 LARCENY, continued, 
 
 bank DOteB, 126, L31. 
 
 liability of members of banking co- 
 partnership, 476. 
 joint Btock bank, 601-602. 
 clerk, tfcc, of Savings' Bank, 622, 
 note. 
 LEASE, 
 equitable mortgage of, 191, 194, 197, 
 
 199, 200. 
 of house, &c, 197, n., 199. 
 goodwill, &c., 199. 
 of offices, 581, n. 
 LEGACY DUTY, transfer on books 
 
 of bank to evade, 134. 
 LEGATEE, 
 
 priority of, to bank, 515, 565. 
 as to calls, 488. 
 LETTER, effect of, with remittance, 
 
 155. 168. 
 LIBEL, bankers suing for, 303. 
 LICENSE, 
 
 to issue bank notes, 446. 
 as to copartnerships, 510, see n. 
 LIEN, 
 on bill.--, Ac, deposited, 161, 163, 
 L68, 289. 
 policy, 183, 188. 
 bill of sale, 324. 
 shares, 189, 190, 284, 285, 286, 
 
 'J -7. I'M. 495. 
 fixtures, 195. 
 dividends, 9 i">. 
 general, 251, 283-290. 
 discharge of, 310. 
 
 in cases of partners, &c, 288, 310, 
 311. 
 one partner, 288, 495. 
 bankruptcy, 288, 324, 325. 
 winding up, 28<J, 551. 
 on cargo, 215. 
 
 plate, 210, 284. 
 equitable, 285, 286, 366. 
 trust prevailing against, 284, 287. 
 as to securities left casually, 284. 
 priority of, 288. 
 realizing, 289, 290. 
 extent of, 290, n. 
 destroying, 290. 
 LIMITATIONS (STATUTE OF,) 
 as to banking account, '■'*. 
 cheque, 63, 32, 33, 96. 
 promissory note taken as security, 
 216, 217. 
 in case of firm, 131, 132. 
 
 equitable mortgage, 198. 
 between London and country bank- 
 ers, 438. 
 ofthree years as to members, &c. A 15. 
 LIVERPOOL, usage of bankers at, 
 397, 607. 
 
 L< >CA 1. MANAGER. Bee Manager. 
 LoXDoX BANKERSj 
 usage of, as to sending for money, 
 Ac. 266, n. 
 bills deposited, 153. 
 LOSS, 
 
 of negotiable instrument, 422, 423. 
 principle determining incidence of 
 
 a, 173, 176, 425. 
 from negligence or crime of clerk, 
 265, 266, 267. 
 
 M A ( ' I IIXERY. See Mortgage. 
 MANAGER. 
 In Banking Copartnership, 
 
 guarantee for conduct of, 265. 
 
 liability of. 269, .".1". 
 
 how regarded in law, 298, 517. 
 
 taking shares, 559. 
 
 discounting, 388, 395. 
 
 lien of, 317. 
 
 separate trade, 395, 514. 
 
 taking deposit on eve of stoppage, 
 
 170-172. 
 suing, 468. 
 
 giving receipts, &c., 170-172. 
 advancing to self, 514, 602. 
 
 others, 519. 
 indorsing, 515, 516. 
 when not agent of copartnership, 
 
 519, 548. 
 commission of, 515. 
 his position, 518, 519, 602. 
 promissory note to, 516, •"> 1 7. 
 
 by, 517. 
 copartnership liable for fraud of. ."1 8. 
 accepting bills of colouial bank, 439, 
 
 n., 440. 
 /// Joint Stock Bank, 
 service of notices on, 596. 
 liability of company for acts of, 297, 
 
 298. 
 signing memorial, 582. 
 duties of, 595, 602-005. 
 proceedings against and by, 601. 
 /// Savings 1 Bank, 
 duties, 618, 623. 
 
 how far liable, &C, 617, 618, 622, 
 
 and n. 
 
 MARRIAGE SETTLEMENT, 209. 
 MEETINGS, 
 
 1„ Banking Copartnership, 
 
 general, 51 '■'<. 
 
 Bpecial. 513. 
 
 resolutions of. 514, 555. 
 In .l"iu/ Stock Bank, 
 
 ordinary, general. Ac., 596. 
 
 resolutions of, •"'•'7. 
 MEMORANDUM, 
 
 of deposit of securities. See Deposit. 
 
 form of, 182, U.
 
 INDEX. 
 
 447 
 
 MEMORANDUM, continued. 
 
 value of, 193. 
 
 false, 194. 
 
 fresh, when needful, 217. 
 MINES, 311. 
 MONEY, 
 
 "at my bankers," meaning of, 2. 
 
 " all my ready," meaning of, 2. 
 
 " in hand," meaning of, 2. 
 
 " all my," meaning of, 3. 
 
 paid into bank, 3. 
 
 bank notes, when are, 405. 
 MORTGAGE, 
 
 equitable, of policy of insurance, 180, 
 183, 185, 191, 192. 
 
 agreements as to, 183, 199, 200, 202. 
 
 of reversionary interest, 599, n. 
 
 of title deeds, 191, 193, 194, 197, 
 198, 199. 
 
 of chattels, 211, n., 212. 
 
 fixtures, 192, n., 195. 
 
 machinery, 196, 594, n. 
 
 ship and freight, 213. 
 
 lease, 197, 199. 
 
 priority of, 201. 
 
 copy of Court Roll, 203, n., 217. 
 
 legal, 197, 199, 200, n. 
 
 shares, 493, 494. 
 
 cautions as to taking, 202, 203, 212, 
 213, 214, 594. 
 
 sub-mortgage of policy, &c, 182. 
 
 unwritten, 211, n. (z). 
 
 of ship registered, 212, 213. 
 
 satisfaction of, 219. 
 MORTGAGEE, 
 
 right to rents, &c, of equitable, 198. 
 
 of policy of insurance, 179, 183. 
 
 sub-mortgagees, 182, 193, n. 
 
 notice to, 212. 
 
 of shares, 493, 494. 
 
 receipts of, 186, n. 
 
 bank, when is equitable, 192. 
 
 equitable, what rights of, 197, 198. 
 See Costs, Sale. 
 MUTUAL CREDIT, 333, 334, 335, 
 384, 385. 
 
 whether arises on deposit of money 
 to meet bill, &c, 338. 
 
 NAVY AGENTS, 294, 305, n., 314. 
 NAVY BILLS, 203, n. 
 
 discounting, 411. 
 NE EXEAT REGNO, 573. 
 NEGLIGENCE, 
 
 in discounting, 382-385. 
 cashing cheques, 63, 64. 
 paying bills, &c, 111. 
 taking guarantee, 238-244. 
 of clerk, 265, 266. 
 NOTICE, 
 of deposit. See Insurance. 
 March, 1857.— 30 
 
 what sufficient, 181, n., 183, 185, n. 
 Onus of proving, 180, 181. 
 to debtor, 206. 
 
 agent, 380, n. 
 
 trustee and executor, 179, 180, 20!), 
 210. 
 solicitor of, 209, n. 
 of mortgage of ship, 213. 
 
 submortgage, 182. 
 in case of a company, 180, 189, 207. 
 
 313, 324, n., 380, n., 475, n. 
 of lien, 189. 
 
 act of bankruptcy, 421, 324. 
 
 assignment of debts, 179, and n. 
 
 loss of bank notes, 425, 426. 
 
 partnership, 306, 307. 
 
 dissolution, 584. 
 
 trusts, 492, 495. 
 
 stopping payment, 317, 408. 
 
 sci. fa., 500, and n. 
 to branch bank, 433. 
 by executor, 357, 573, 574. 
 
 provisional assignee, 219. 
 to member of Joint Stock Bank, 584. 
 
 guarantor, 271. 
 of execution against member, 591. 
 
 intention to forfeit, 592. 
 service of, 593. 
 in insolvency, 339. 
 
 OFFICER. See Public Officer, Ma- 
 nager. 
 presumed to continue as such, 40 2. 
 OFFICES, 581. 
 
 lease of, &c, 581, n. 
 OFFICIAL MANAGER, 
 
 of banking copartnership, 506. 
 effect of appointment of, 551, 613, n. 
 suing, 574. 
 ORDER, 
 of customer, 4, 6, 7, 323. 
 
 his assignees may sue on, 323. 
 
 of stranger, 8. 
 on banker, 115-117, 323. 
 form of, 115, 117. 
 when revocable, 7, 118. 
 disobeying, 6, 11, 323, 386, n. 
 for payment of money, 13, n. 
 
 forgery of, 430. 
 
 bills, &c, 323. 
 bill stamp on, 20, 116, 117. 
 to obtain payment, 174. 
 
 acceptance, &c, 119. 
 to distribute funds, &c, 118. 
 
 transfer, &c, 119, 120. 
 
 place to credit, &c, 120. 
 
 hold at disposal, 120. 
 
 invest, 121, 122, 348, 349, 350, 
 351. 
 
 receive dividends, &c, 122. 
 
 debtor to pay in, 135, 136.
 
 448 
 
 GRANT ON THE LAW OF BAN KINO. 
 
 ORDER, continued. 
 when bills remitted] 155. 
 illegal, 128. 
 
 ■with aeed not be written, 117. 
 most be written, 145, n. 
 
 PARTNERS, 
 cheque of, 44-4G. 
 accountable receipt of, 134. 
 joint and several bond of, 229, 230. 
 bankruptcy of, 131. 
 
 in banking, 291. 
 mutually liable fur fraud, 44, 121. 
 clerk of, -14, n. 
 
 change of firm, 130, 131, 191, 216, 
 217,221,225, n., 272,304,300, 
 583. 
 
 presumption as to, 306, n. 
 deceased, 291, 295, 296, 304, n., 305, 
 309, 310, 312. 
 
 presumption of privity of, 296. 
 retiring, 300, 304, 307. 
 
 capital of, 298-300. 
 incoming, 306, 310. 
 transfer of credit to new firms, 305, 
 310. 
 
 assets to same, 307, 310. 
 surviving, 295, 304, 305, 310, 312. 
 
 discharge of, 190. 
 appropriation of payments among, 
 
 278, 305, and n. 
 re-issue of notes of old firm, 299. 
 iu more than one firm, 300, 305, 
 
 317. 
 at will, 298. 
 in single speculation, 308, 309. 
 
 mining adventure, 311. 
 bills indorsed to bank in style of 
 
 firm, 310. 
 title deeds of firm, 309, 310. 
 banker's lien as to, 288. 
 caution as to crediting firm, 312, 
 
 313. 
 bond in case of issue of notes, 449. 
 
 : It • i ationof partnership, 449, 450. 
 also customers, 298, 299, 316. 
 drawing oul balance, &c., 317. 
 objecting to continue account, 2R0. 
 one partner's act-. 17 7, 189,292,311. 
 ;it partner, 400-403, and n., 
 431. 
 
 how -far bind, 177, 293-295, 297, 
 311. 
 
 title deeds, 191. 
 
 separate account, 298, 310-313, 
 316. 
 overdrawn, 299, 316. 
 
 as to trust funds, 317, 351. 
 
 ad of bankruptcy, 400, 401. 
 
 Collusion with one of firm of cus- 
 tom, r-. 292. 
 
 contributing to losses beyond his 
 share, 291. 
 
 releases, 24 1. 251. 
 
 signs for "self and partners," 'J 17. 
 dissolution, 188, 303, 305, 401, 526, 
 
 and n., 556, n. 
 In Banking Cujimtm rshijis, -153. 
 nt' more than six, 154, 458. 
 sixtv-five miles from London, 454, 
 
 17.7. 459. 
 within that distance, 477, 488. 
 liability of each, 454. 
 proceedings against, 455. 
 limitation as to, 155. 
 
 as to equity, 456. 
 origin of Banking Act, 561. 
 deceased partner, equity as to, 456. 
 guarantee given to 221. 
 drawing bills. 45S, 45'.). 
 ordinary business, 528, 5! 
 taking name, 458. 
 objects of, 526. 
 " borrowing, owing, &c," 439, 454, 
 
 458, 459, 510. 
 who are members, 497. 
 account of names of members, 460, 
 463, 464, 466. 
 public officers, 460, 464. 
 copies of them, 464. 
 register of, 464. 
 
 forms thereof, 460, 461, 464, n. 
 officers, 462, 470. 
 
 as to issue of notes, 462. 
 secretary, 463, 463. 
 " members for time being," 499, 500. 
 annual returns, &c, 463, 464, 466. 
 suing members, 457, 46s, 471, 477. 
 petitioning in bankruptcy, 469. 
 proving in bankruptcy against mem- 
 bers, 469. 
 
 though insolvent, 302. 
 suing for price of shares, 4 71. 
 set-off, 478, 468. 
 change of name, 471. 
 judgment where does not bind, 472. 
 deed of settlement, 474. 
 deceased, 298, 299, 481, 482. 
 
 relief against estate of, 456, 481, 
 482, 493. 
 judgment and sei. fa., 478, 4 79, 481, 
 
 499. 
 
 decrees in equity, 481. 
 execution againsl some, 479-482. 
 
 generally, 455, 456, 483. 
 winding op, 484, 613 n. 
 
 three years' liability, &<■., 455, 492, 
 
 i... 504. 
 judgment by collusion, 497, 498. 
 'insolvency, 494, 302, 507. 
 bankruptcy, 506. 
 lien, 195. '
 
 INDEX. 
 
 440 
 
 PARTNERS, continued. 
 
 on shares, 186. 
 clergymen, 498. 
 sci. fa., 483, 499-506. 
 
 against members, 483, 484, 499, 
 502. 
 
 second class of, 502, 503. 
 
 executors, 483. 
 
 husbands, 483. 
 
 pleas in, 503, 504, n. 
 who not liable to debts, 505, 506. 
 
 calls, 488, 497. 
 arrangements amongst, 508. 
 contracts with, 457, 466, 511, 552. 
 
 for sale of shares, 491. 
 general meetings, 513. 
 issue of notes, 462. 
 
 re-issue, 509, 510. 
 separate business and firm, 522, and 
 
 n., 523. 
 contracts made at branch banks, 5 19, 
 
 520. 
 discontinuing business, 526. 
 when bound, 519, 548, 549. 
 liable for managers fraud, 518, 520. 
 dividends, 552. 
 notice to one, 525. 
 how to retire, 544, 556, 557-559, 564. 
 buying out, 512, 513. 
 executors, 489, 491, 493. 
 legatees, 488, 489. 
 husbands, 492. 
 
 bankruptcy contrasted with winding 
 up, 523, 613, n. 
 
 See Directors, Shareholders, Ma- 
 nager, Cashier, Public Officer, 
 Contributories. 
 PASS BOOK, 
 
 entries in, 46, 139, 140, 143, 583. 
 
 mistake as to, 608. 
 as evidence, 525, n., 607 and n., 
 
 311, n. 
 what is, 605. 
 
 credit given in, when binds, 607. 
 effect of acquiescence in entries in, 
 
 606, 607. 
 servant, &c, sent with, 608, 609. 
 PAYMENT, 
 
 appropriation of, 278-282. 
 what not a, 309, 320, 388, 507. 
 after notice of bankruptcy, 323. 
 of legal items, 282. 
 by solvent partner, 401, 431. 
 in country bank notes, 404. 
 protected in bankruptcy, 432. 
 PENALTIES, 
 
 for not making returns, 444, 445. 
 how recovered, 510, n. 
 PLATE, 210, 284. 
 
 PLEDGING securities, banker liable 
 for, 144-153. 
 
 POST-DATING cheque, 17. 
 PROMISSORY NOTES, 
 
 stat. of Anne does not apply to, 
 
 drawn out of England, 435. 
 made payable at bankers, 106, 114. 
 
 in body, 114. 
 
 in memorandum, 114. 
 by bankers, payable at ten days 
 
 sight, 403. 
 to manager, &c., 516. 
 
 by him, 517. 
 drawn in Scotland, treated as inland 
 
 _ bills, 435. 
 given to trustee, 133. 
 protest, where not necessary, 435. 
 
 banker, 164, 207, 403. 
 of East India Company, 204, 205. 
 207. 
 
 Royal Bank of Australia, 538. 
 where change in course of excln 
 
 434, 435. 
 lien as to, 289. 
 
 restrictive indorsement of, 391, n. 
 incidental expenses, 435. 
 unstamped, 448. 
 PUBLIC COMPANY, what, 485, 486, 
 
 487. 
 PUBLIC OFFICER, 
 
 In Banking Copartnership, 
 
 judgment against, 455. 
 
 return of name of, 460, 464. 
 
 description of, 461, n. 
 
 character, 462, 473, 475. 
 
 when to be appointed, 462. 
 
 how, 470. 
 
 right to sue, 463, 467, 475, 477. 
 
 how to sue, 469. 
 
 death, &c, 468. 
 
 as defendant, 469, 474, 475. 
 
 pleas, 474, 475, 477. 
 
 after dissolution of company, 47 1 . 
 475. 
 
 pleas in action by, 471, n. 
 
 judgment in name of, 472, 474. 
 478. 
 
 to sue on covenants, 472,478, 48.'!. 
 
 indemnity to, 472, 510, n. 
 
 to produce papers, 472, 473. 
 
 his bankruptcy, 474. 
 death, 476, 477. 
 
 calls, 478. 
 
 decree against, 478, 481. 
 
 judgment against, 478, 481. 
 
 execution, 479-482. 
 
 when not to sue, 516, 517. 
 
 manager, &c, 516, 517. 
 
 proceedings against and by, 600- 
 605. 
 In Joint Stock Banks, 
 
 suing, 600. 
 
 death of, 600, 601.
 
 450 
 
 GRANT ON THE LAW OF BANKING. 
 
 PUBLIC OFFICER, continued, 
 
 prosecutions, 4c, against, 601- 
 605. 
 
 proceedings by, against members, 
 &c, 601, 602. 
 
 RAILWAY COMPANY, 
 deposit of shares in a, 185, n., 188. 
 ip certificates, 188, 189. 
 in respect of, &c, 352. 
 notice of lien to, 189. 
 RECEIPT, 
 stamp on bankers', 4, n., 129, 377, n. 
 of trustees, 349, 368. 
 
 executors, 349. 
 deposit, 136, 137. 
 effect of, 218,511. 
 for deposits of railway, &c, instal- 
 ments, Ac, 352, see 10 Q. B. 691. 
 for purchase money, &c, 211. 
 RECEIVER, 
 cheque of, 43. 
 paying into bank, 352. 
 REGISTRATION, 
 of joint stock banks, 580. 
 
 banking copartnership's members' 
 names, sc, 164. 
 RELEASE of guarantee, &c.,231, 235. 
 REMITTANCES, 
 generally, 169-177, 433-437. 
 foreign, 433-436. 
 by post, or usual mode, loss of, falls 
 
 on creditor, 437. 
 of bills against goods, &c, 214. 
 of bills for sale, 155. 
 
 clothed with a trust, 142, 169. 
 bills for discount, 386. 
 indorsed bills, 154. 
 responsibility of bankers on, 351. 
 letter accompanying, 155, 168. 
 by Country Bank, 161-177, 415, 416. 
 of bank post bills, 168. 
 RESTRAINING ORDER, 355,365. 
 RETIRING, a bill of exchange, 388. 
 ■ RETURNING," a cheque, 66, 75. 
 RETURNS, 
 
 of bank notes in circulation, 440- 
 145. 
 
 partners' names, 1 I I. 
 
 by all bankers, 444, 466, 485. 
 hi Banking Copartnerships, 
 of name- of members, ftc., 160. 
 public officers, 460, 464. 
 filing, 163. 
 
 their forms, 460, 461, 464, n., 465. 
 dates, 161, 462. 
 annual. 163, 464, 185, 488. 
 pi nalty, A<-.. 1 14, 145, 510. 
 hi Joint Stock Banks, 
 <.f names, Ac, of members, 581. 
 annual, 581. 
 
 RUN, sale of estate in case of a, 315. 
 
 SALE, 
 
 of bank note, 409. 
 
 when decreed, 191, 192, 198, 201. 
 
 costs of, 193. 
 of bill of exchange, 154, 155, 298, n. 
 Exchequer bills, 296, 297. 
 SAVINGS' RANKS, 
 defined, 614. 
 
 banker dealing with trustees of, 345. 
 allow compound interest, 614. 
 filing, &c, rules, &c, of, 614. 
 deposits, 614, 615. 
 book, 616, 617. 
 evasions of rules of, 615, 616., 
 feme covert depositing, 616. 
 Friendly Societies depositing, 616. 
 Building Societies, 616. 
 committees, 616. 
 remedies of depositors, 617. 
 investments, 618. 
 annual accounts, 618. 
 oificers, 618-623. 
 arbitration, &c, 617 and n. 
 duties of actuary, 619, 620. 
 
 cashier, 619, 620. 
 certificate of conformity, &c, 620. 
 priority of, to other creditors, 620, 
 
 621, 345, n. 
 trustees of, 622. 
 military, 623. 
 naval, 623. 
 
 stamps and other duties, 623, u. 
 income tax, 623, n. 
 SCIRE FACIAS, 479, 483, 484, 492, 
 499-505. 
 pleas in, 504, n. 
 afl&davit, 499. 
 
 application for, 500, 501 and n., 504, 
 505. 
 diligence, 501. 
 SCRIP, deposit of, 188, 189. 
 SECRETARY, 
 
 of banking copartnership, 463-465. 
 
 filling up cheques, 55 1. 
 making out returns, 510. 
 See Return*. 
 SECURITIES, 
 
 may be applied at creditor's option, 
 
 330. 
 required on issue of bank notes, 447, 
 
 449. 
 deposit of, 122, 123, 138. 
 
 for specific purpose, 138-178, 
 
 it;:, 338. 
 against advances, 178, 205, 233, 
 
 331. 
 fur safe custody, 150, 166, 204. 
 when "mutual credit," in respect 
 of, 334, 335.
 
 INDEX. 
 
 451 
 
 SECURITIES, continued. 
 possession of, 194, 211. 
 
 casual, 194. 
 assignment of lease, &c., 181. 
 
 mortgage of ship, 514, 515. 
 
 stock in trade, 181. 
 
 policy of insurance, 188. 
 marine, 214, 215. 
 shares, 185. 
 dock warrants, 190. 
 deposit of title deeds, 190-202, 309. 
 
 lease, 191, 194, 199. 
 
 policy of insurance, 180, 181, 182. 
 
 mortgage deed, 200. 
 
 trust deeds, 204. 
 
 exchequer bills, 203. 
 
 securities of third person, 209. 
 
 promissory note, 205, 207, 21G, 
 246, 418. 
 
 copy of Court Roll, 217. 
 
 security given to manager, 546. 
 
 warrant of attorney, 205, 206. 
 
 East India bills, 207, 208. 
 
 land order, 207. 
 
 bond, 177, 206, 207. 
 
 joint and several instrument, 77. 
 
 plate, &c. 210, 284. 
 
 jewels, 210. 
 when " in order and disposition," 
 
 178, 179, 330. See Bankruptcy. 
 when a continuing, 191, 216. 
 interpleader, as to, 187. 
 for general balance, 190, 191, 207. 
 goods, as, 211, 178. 
 collateral, 229, 230. 
 goods at sea, as, 212, 213. 
 receipt for purchase money, 211. 
 change of firm, 191, 216. 
 interest on, 216, 217. 
 application of, 330. 
 value of, compared with debt, 217, 
 
 218. 
 bills of exchange, as, 331, 333. 
 guarantee, 233. 
 post obit bond, 599, n. 
 mortgage of reversionary interest, 
 
 599, n. 
 SERVANT, 
 
 sent with pass-book, &c, 608. 
 taking country bank notes, in pay- 
 ment, &c, 412. 
 SET-OFF, 
 In Bankruptcy. 
 right of, when not to be defeated, 318, 
 319, 333, 334, 336, 343, 419. 
 
 as to country bank notes, 336, 419. 
 
 money paid for bankrupt, 323. 
 
 when excluded in bankruptcy, 
 323, 384, 386, 468. 
 
 not in bankruptcy, 337, 338, 343, 
 384. 
 
 in action, for shares, 337, 478. 
 SETTLEMENT, 
 of accounts, 237. 
 voluntary, 197, 199. 
 
 See Marriage Settlement. — Deed 
 of Settlement. 
 SHAREHOLDERS, 
 In Banking Copartnership. 
 who are, 484, 489, 492, 497, 499. 
 when liable in bankruptcy, 314. 
 who is owner of shares, 484, 485. 
 buying out, 512. 
 
 as to books of copartnership, 547. 
 binding, the, 528, 538, 539. 
 executor of, 483, 484, 488, 491-493. 
 
 notice, &c, 573. 
 husband, 483, 492. 
 infant, 493. 
 liabilities of, 556-575. 
 
 after dissolution, 575. 
 
 former shareholder, 577. 
 
 criminal, 577. 
 how to retire, 556, 557-559. 
 when contributory, &c, 560-574. 
 In Joint Slock Bank. 
 who are, 579. 
 
 judgment against, 579, 580. 
 returns of, &c, 581. 
 retiring, 586, 587. 
 joint, 588. 
 death, &c, 588. 
 larceny by, 602. 
 lunatic, minor, &c, 588. 
 liability, 589, 590, 591 and n. 
 receipt of, 589. 
 executors, 589. 
 register, 592. 
 dividends, 594. 
 duties of, 596. 
 SHARES, 185, 186, 188, 189, 214, 490. 
 In Banking copartnership. 
 what are, 495, 496, 497. 
 in various copartnerships, 496. 
 not essential, 485. 
 register book of, 485, n., 497, 541. 
 
 See Books. 
 lien on, 186, 284, 286, 494-496. 
 power of sale of, 370, 486. 
 suing for price of, 471, 478. 
 buyer of, 483, 484. 
 suing strangers, &c, for pri 
 
 471, 478. 
 transfer of, 286, 486, 487, 491, 492, 
 
 541, 542, 544, 570, 572. 
 re-transfer of, 544, n. 
 amount of each, 487, n. 
 charging, 486, 487, 488. 
 second incumbrancer on, 488. 
 bequeathing, 488-490, 493. 
 pledging, 491. 
 mortgaging, 493, 494.
 
 452 
 
 GRANT ON THE LAW OF BANKING. 
 
 SHARES, contimted, 
 
 ling up'' in market, 547. 
 
 forfeiting, 641, 553, 563. 
 
 cancelling, 5 12, 531. 
 
 specific performance respecting, 494, 
 n., 571. 
 
 trustee of, investing funds in pur- 
 chase, 495. 
 
 statutory. 496. 
 
 stamp, 491. 
 
 not interests in land, 490, 496. 
 goods, wares, &c, 491. 
 
 are trading property, &c, 521. 
 
 when "in order and disposition," &c, 
 491, n., 287. 
 held in trust, 286, n. 
 
 sci. fa. against owner of, 499, see 485. 
 
 appropriation of, 528. 
 
 " credit shares," 531-535. 
 
 bankruptcy as to, 314, 521. 
 
 executors, 489, 491. 
 
 legatees, 488, 489. 
 
 husband, 492. 
 In Joint stock Bunk, 487, n. 
 
 transfer of, 582, 587, 591. 
 
 numbers, &c, 586. 
 
 lien as to, 286. 
 
 buying up, 586. 
 
 register, 588. 
 
 death, marriage, bankruptcy, &c, 
 
 sale of, 592. n. 
 
 calls, 582, .>7, 591, 592, n., C07. 
 forfeiture, 592 and n. 
 railway, 185, n., 188. 
 SHIP, 213, 214, n., 324. 
 mortgage of, 514. 
 shares in a, 21 1. n. 
 " SHORT BILLS." See Bills of Ex- 
 change. 
 what hills presumed to be, 153, n. 
 SOLICITOR. See Attorney. 
 ST A. MI'S. 
 
 on receipts of hankers, 4, n. 
 cheques and exemptions, 13, 14, 15, 
 
 10, 27, 38, 97-99, 461. 
 cancelling, 1 1, 99. 
 on order on hanker, 20, 24, 116, 117. 
 adhesive, on cheques, 99, 103. 
 as to acknowledgment, &c, 129, 451. 
 
 exemption abolished, 451. 
 guarantee, 221, n. 
 bond to replace stock, 357, n. 
 promissory note by way of guarantee 
 may require agreement stamp, 
 256, 259. 
 letter of attorney to sell, &c, stock, 
 
 371, n. 
 transfer of bank stock, 376, n. 
 on security for transfer, &c, of 
 stock, 356, n. 
 
 on altered promissory note, 404. 
 allowance of useless, 452. 
 
 hank notes, 400. I 17, I I-. 
 on assignment of policy, 186, n. 
 transfer of shares, 491. 
 notes of copartnerships, &c, 509. 
 bond for payment of, 509, 510. 
 savings' hanks, &c, exempt from, 
 623, n. 
 STOCK, 
 
 re-investing, 124, 125, 351. 
 keeping account of, 126. 
 sale of) 292, 296, 351. 
 nature of public, 353 and n. 
 offences as to, 35 1, 355. 
 transfer of, 354, 359, 363. 
 crimes respecting, 177, 355. 
 by joint tenant, 358. 
 trustees, 351, 367. 
 executors, 360. 
 one partner, 177. 
 dividends, 355, 356, 363, 367, 376. 
 
 unclaimed, 374. 
 purchase of, through banker, 438. 
 transfer of, into court, 367, n. 
 
 out of court, 367, n. 
 bequest of, 377. 
 replacing, 296, 297, 351. 
 joint owners of, 364, 369. 
 infant, 369. 
 lunatic, 368. 
 feme covert, 369. 
 distringas, 365. 
 sale of, 351, 370, 371. 
 restraining order, 355, 365, 367. 
 judge's order, 366 and n. 
 stop order, 366 and n. 
 vesting order, 368, 369. 
 STOP ORDER, 366. 
 STOPPING PAYMENT, 177, 412. 
 415, 417,433. 
 effect as to hank notes, 317, 336, 
 399, 400, 408,412,413,420. 
 hills discounted, 386. 
 compromise on, 508. 
 evidence of dishonesty, 315. 
 notice of, 317. 
 
 manager indorsing, Arc, 575. 
 receiving deposits on eve of, 170- 
 172. ' 
 of colonial hank, 538, 539. 
 SUB-MORTGAGE, 
 
 of poliev of insurance, 1S2, 193, n. 
 SURETY, 77, 216, n., 226, 227, n., 
 228, 230, 237, 240, 241, 245, 246, 
 252, 257, 266, 275, 295, u. 
 
 TIME, 
 given to principal under guarantee, 
 
 230. 
 caution as to giving, 231, 232.
 
 INDEX. 
 
 453 
 
 TIME, continued. 
 
 when not a discharge, 236. 
 when is, 238. 
 properly given, 238. 
 TITHES, 201. 
 TITLE DEEDS, 
 
 deposit of. See Securities and 
 
 Mortgage. 
 caution as to taking, 190. 
 of a partnership, 309. 
 of one partner, 191. 
 TRANSFER, 
 of stock, 349, 354, 355, 356, 358, 
 371. 
 credit to new firm, 305. 
 assets to same, 307, 310. 
 TREASURER, 
 
 of Poor Law Union, 275. 
 
 friendly society, 321, 340, 343, 
 
 620. 
 commissioners, &c, 341, 342. 
 corporations, 346. 
 savings' banks, 345, n., 620. 
 TRUST DEEDS, lien as to, 284. 
 
 TRUST FUNDS, 124, 287, 317, 347, 
 495, 2 K. & J. 560. 
 
 TRUSTEES, 
 
 transfer of stock by, 367, 368. 
 depositing trust funds in bank, &c, 
 
 346-352, 364. 
 receipt by, 368. 
 investing in bank stock, 375. 
 
 shares, 495. 
 warrant of attorney, 472. 
 affidavit, 492. 
 notice to one, 179, 180. 
 when contributories, 568. 
 corporation, 374. 
 cheques of, 41, 42, 43. 
 payment to one, 349. 
 promissory note to, 133. 
 of voluntary settlement, 107. 
 of marriage settlement, 209. 
 
 infant, 133, 134. 
 accounts of, 281, n., 282, 317, 342, 
 
 346-348, 564. 
 forging signature of, 358. 
 of savings' banks, 345. 
 
 personally liable, 617, 618. 
 
 investing, 618. 
 
 duties of, 618. 
 TRUSTS, 
 
 prevail over security, 250, 252. 
 
 lien, 284, 287. 
 Bank of England does not notice, 
 
 363-365. 
 bankers generally do not notice, 
 
 492. 
 affidavit as to, 492. 
 
 joint stock banks do not notice, 
 589. 
 
 USAGE, 
 
 of bankers, 361, 397. 
 in Devonshire, 266. 
 of Liverpool. See Liverpool. 
 Lancashire. See Lancaster. 
 London. See London Bankers. 
 Bristol, 288, n. 
 Bank of England, 360, n. 
 
 WARRANT OF ATTORNEY AND 
 POWER OF ATTORNEY, 233- 
 
 237. 
 to transfer stock, 356, 357, 362, 370. 
 
 confess judgment, 233, 237. 
 forging, 358. 
 filing, 234. 
 
 giving to trustees of bank, 472. 
 notice of deposit of, 206. 
 setting aside, 479. 
 to sell shares, 491. 
 
 give receipts, 186, n. 
 merger, 236. 
 WILL, 
 
 cheque as a, 102. 
 entry of probate of, 589. 
 not to be registered, &c, 360. 
 bequests of notes, &c, in, 405. 
 WINDING-UP, 
 Banking Copartnerships, 484, 490, 
 
 506. 
 when to be wound up, 523, see 613, n. 
 executor, when contributory, 530, 
 
 531, 563, 567, 574. 
 seller of shares, when not contribu- 
 tory, 541. 
 allottee of shares, 541. 
 expenses of directors, when allowed, 
 
 313. 
 retiring director, 542. 
 shareholders, 549, 550, 551. 
 relief under Winding-up Acts, 549, 
 
 550, 551, n., see 613, n. 
 liabilities of contributories, 560, 
 
 561. 
 official manager, 551. 
 who are contributories, 560-562, 565, 
 571, 566. 
 
 executor, 563, 564, 567. 
 
 infant, 566. 
 
 trustee, 568. 
 
 purchaser of shares, 571. 
 
 husband, 493, n., 571, n., 572. 
 
 wife, 572. 
 
 ne exeat regno against, 573, n. 
 
 not necessarily one who is liable 
 inter socios, 564. 
 who not, 574, 541, 573. 
 effect of, 574.
 
 454 
 
 GRANT ON THE LAW OF BANKING. 
 
 WINDING-UP, continued. 
 
 as to creditors, .'>7_. 574. 
 Joint Stock Banks, 
 when to be wound up, 599. 
 bankruptcy and winding-up of, 613, 
 note. 
 
 Colonial Banks, 
 when applied to, 608-613. 
 
 WITNESS, 
 
 duty of banker as, 3, n. 
 cashier as, 608.
 
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