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* Both sides reported.
§ Estimated amounts.
QUESTIONS ON POINTS OF PRACTICAL INTEREST.
The Council desire to express their readiness to rcceive at all times questions which are of general interest, and in regard to which it would appear desirable to assimilate the practice of bankers.
The following questions have been received, and answers are appended, which, after careful deliberation, the Council have approved.
QUESTION I. :—" If a banker cannot charge his customer with a bill paid by him on a forged endorsement, whether of the payeo or a subsequent endorsee (where there has been no endorsement in blank), can he at any time after payment, on discovery of the forgery, recover the money from the party to whom he paid the bill? How does a banker protect himself against loss in paying the bill to a stranger presenting it?" In view of the important issues to bankers involved in the foregoing question, it was thought desirable by the Council to obtain the opinion of Mr. Arthur Cohen, Q.O., and Mr. Chalmers on the point. The following is a case submitted to thom with their opinion thereon.
It seems to be well settled that a banker who pays a cheque, the drawer's signature to which is forged, or a bill the acceptance to which, or any endorsement necessary to complete the title to which, is forged, cannot debit his customer's account with the amount of such cheque or bill; and in Cocks v. Masterman (9 B. & C. 902) it was decided that bankers who had paid what proved to be a forged acceptance could not recover the money from the person to whom they had paid it, although on the next day, and immediately the forgery was discovered, they gave him notice and claimed repayment.
The ground given for this decision was that the holder of a bill is entitled to know on the day when it becomes due whether it is an honoured or dishonoured bill.
It is presumed that the same principle would apply to the case of a cheque where the drawer's name is forged.
In Bobbett v. Pinkett (L. R., 1 Ex. D., p. 272) the judgment assumed as a matter of course that a banker who had paid a cheque with a forged endorsement could recover back from a bona fide holder the amount he had received, although in the particular case the latter had, after payment of the cheque by the banker, and upon the faith of that payment, paid away a portion of the amount received and had thus altered his position.
The question of the rights and liabilities of bankers in cases in which they have paid bills or cheques, where the signature of the drawer, acceptor, or endorser is forged, is one of great importance to them. You are requested to advise on the following points :
1. Whether a banker paying a bill can recover the amount from any of the parties thereto, or any other person, and after any and what lapse of time after the payment, (a.) Where the acceptance (that of his own customer) is
forged; (6.) Where an endorsement necessary to complete the title
to the bill is forged. 2. Your opinion is requested upon the same question with regard to a cheque where (c.) The drawer's name (that of the banker's own customer)
and (d.) An endorsement necessary to complete the title to the
cheque is forged. 3. You are requested also to advise how a banker can protect himself, in the case of a bill or cheque presented by a stranger, against loss if the bill or cheque should prove to have been tainted by forgery.
1 & 2. The law on the subject of money paid by mistake is in an unsatisfactory state. It is not possible to reconcile either the decisions themselves or the reasons on which they are founded. We think, however, that the true view now is that negligence on the part of the payer is immaterial, and that in all the four cases put to us the banker could recover the money paid from the person who presented the bill, if he gave notice to the latter, before his position had been altered. Where, however, the position of the party who receives payment has been altered before he is notified of the payment under mistake-as, for instance, when it is too late for him to give a valid notice of dishonour or where he is an agent for collection and has paid over the money to his principal-we are of opinion that the money paid cannot be recovered back from him.
3. Except in the cases where a banker is protected by statute (see the Crossed Cheques Act, 1876, and the 16 & 17 Vict., c. 59, s. 19*) the banker can only protect himself, as against his customer, by special agreement with the latter.
(Signed) ARTHUR COHEN,
(Signed) M. D. CHALMERS. July 8th, 1882.
QUESTION II.:-A cheque was drawn payable to order as follows: -John Jones (drawer). Pay to Thomas Smith, or order, one hundred pounds" in full settlement."
Endorsed by payee “ Thomas Smith" in part settlement.
Had the banker power to return the cheque so endorsed by the payee? The “in part settlement” had been added by the payee, and ought he not to have communicated with the drawer before paying the cheque into his credit ?
ANSWER.—The instrument referred to in the question is, in our opinion, a complete cheque, It is (apart from the words “ in full settlement") drawn in the usual form, is made payable to the order of Thomas Smith, and purports (to use the words of 16 & 17 Vict., c. 59, s. 19) to be endorsed by him. The bankers are, therefore, clearly bound to pay it unless the additions in the body of the cheque and in the endorsement justify them in returning it.
In our view the words "in full settlement” may, as between the bankers and their customer, be considered as merely an addition to an instrument already complete, and as being addressed, not to the banker, but to the payee, in order to show upon what terms that complete instrument is to be received by him. It is no part of the ordinary duty of bankers to settle accounts between their customer and his creditors.
While this is our view, we think the cheque is drawn in a form calculated to embarrass, and that the bankers would, for that reason, have been justified, as between themselves and their customer, to whom alone they are responsible, in returning it.
Question 1II. :—Will a banker be justified in paying cheques of a Limited Liability Company signed by two directors (as ar anged) and countersigned by a well-known confidential clerk of the secretary, who is a solicitor. The clerk appears to have had blank cheques signed by directors, which he converted to his own use.
ANSWER :-A banker would only be justified in paying the cheques of a Limited Company on such signatures as he is duly authorized to honour.
* See now Bills of Exchange Act, 1882, s. 60, and ss. 80, 82.
QUESTION IV.:-A merchant in London sends a crossed cheque to a Berlin firm, who pay it into their bank. The cheque is stamped by the Berlin bank and endorsed by them specially to a private person in London by whom it is presented over the counter of the London bank. What is the duty of the London bank ? Should they refuse payment of the cheque over the counter on the ground of its being crossed, or should the special endorsement of the Berlin bank be held to annul that duty ?
ANSWER :—The endorsements to a cheque in no way alter its nature as to the crossing, and the cheque referred to should be paid only to a banker, such being the indication given by the drawer when crossing the cheque.
QUESTION V. :-Is a per pro endorsenient a sufficient discharge for the drawee when a cheque is made payable to order ?
QUESTION VI. :— And can the drawee legally refuse payment of a cheque on such an endorsement ?
ANSWER: The drawee is quite justified in refusing payment of a cheque with a per pro endorsement if he thinks it necessary to have such endorsement confirmed.