defendant, executrix as aforesaid; that it appears by the plea that the said supposed debt of 4407., if any such there be, is due to the defendant as executrix of the said Charlotte Tucker, who was executrix of the said William Tucker, and is attempted to be set off against a debt due from the said defendant as executrix of the said Charlotte Tucker: and that the said plea attempts to set off against the debt claimed by the plaintiff, a debt which cannot by law be set off against it. Joinder in demurrer.

off;

Erle, in support of the demurrer. A mere equitable interest cannot be set and the attempt here is to set off one equitable interest against another. The defendant in her plea treats the plaintiff as trustee for Sarah Tucker, in respect of the claim advanced in *this action; and she also, in the same *748] pleading, acknowledges the debt which she sets off to be due to herself in trust. Now, in the first place, she has no right to treat Sarah as the real plaintiff on a bond given to George Tucker as trustee for Sarah. Bottomley v. Brook, 1 T. R. 621, and Rudge v. Birch, 1 T. R. 622, will be cited on the other side; but in those cases the interest of the cestui que trust was not merely equitable. In Bottomley v. Brook the bond was given to the plaintiff by the direction of E. Chancellor, to secure to her, Chancellor, a sum of 1007., which she had lent the defendant, the obligor, and for which, therefore, she had a legal cause of action. The trust was founded on a liability known to the courts of law, and capable of being enforced there. The same observations apply to Rudge v. Birch. And the law laid down in those cases has been looked upon with jealousy since. In Wake v. Tinkler, 16 East, 36, Lord Ellenborough said he was "much more inclined to restrain than to extend the doctrine of those cases;" and Bayley, J., said "We have nothing to do in this place with any other than legal rights." In Carpenter v. Thornton, 3 B. & A. 52, it was held that a decree in chancery, founded merely on an equitable obligation and not upon any legal liability, could not be enforced by action at law. Secondly, the claim which is the subject of set-off in this case is not in respect of anything actually due to any supposed cestui que trust. Charlotte was executrix and residuary legatee; if she had got in all the property and discharged the debts, and there had then been a residue, her legatee might have been a cestui que trust for that residue; but this is not shewn to have been *done, either *749] by Charlotte or by the defendant. Under those circumstances the defendant appears only as executrix of an executrix, and, as such, executrix of the original testator. The debt she now sets up is merely a chose in action, demandable originally by William Tucker, and then by Charlotte and the defendant successively, as his personal representatives. When, therefore, the defendant attempts to set off this debt against a claim upon herself as executrix of Charlotte Tucker, it is setting off a debt due in auter droit, which cannot be done. The ultimate interest which the defendant herself might have is but the merest equitable right. Besides, this is not a case in which interest could be claimed; Higgins v. Sargent, 2 B. & C. 348; Page v. Newman, 9 B. & C. 378; and if so, the set-off actually maintainable would at all events be insufficient in

amount.

Follett contrà. At any rate, 1607. is claimable. There is no doubt that the bond declared upon as given to George Tucker was in reality given for Sarah; nor that Sarah is the debtor upon that bond on which the set off arises; and the persons actually interested in the debt so set off, after the death of William Tucker, were, first Charlotte, and then the defendant. The plaintiff has no interest in the bond declared upon, except being the party in whose name the action upon it is brought. Then, when a mere trustee sues a trustee, may not the latter set off a debt due to his cestui que trust? On this point Bottomley v. Brook, 1 T. R. 621, and Rudge v. Birch, 1 T. R. 622, are authorities which *750] have never been overruled. *[PARKE, J. In Scholey v. Mearns, 7 East, 153, a case is referred to by counsel which is said to have overruled them.] It was also said in argument, in Coppin v. Craig, 7 Taunt. 243, that

the decision in Bottomley v. Brook had been much questioned; but both cases are treated as authority in Wake v. Tinkler, 16 East, 36; and Ashhurst, J. so considers them in Winch v. Keeley, 1 T. R. 619, where they are first cited. In the present case as in Bottomley v. Brook and Rudge v. Birch, the plaintiff has the legal interest and no other; the beneficial interest is in the cestui que trust, and that interest was taken notice of by the Court in the two last mentioned cases. The courts of law did not formerly notice trusts, but of late years, when they have come in question, the disposition has been, not to send parties to the other side of the hall if the justice of the case was manifest. Carr v. Hinchliff, 4 B. & C. 547, and other cases of the same class, show that the Court will take notice of the real debtor, where the action is brought in the name of another party, and will allow a defendant to set off a debt due to him from any person who may be identified with the plaintiff; Coppin v. Craig, 7 Taunt. 243, is a similar case. [PARKE, J. The plaintiff in Carr v. Hinchliff had allowed another person to appear as the real contracting party. That is the ground of decision there, and in other similar cases, as George v. Clagett, 7 T. R. 359, Rabone v. Williams, 7 T. R. 360, note (a).] As to the argument that the defendant here is setting off a debt in auter droit, the law on that subject is not disputed; but the defendant does not claim as executrix, *to set off what would be assets of the testator: her case is that she has a beneficial [*751 interest of her own, which entitles her to set off in her own right. DENMAN, C. J. It is enough to say that the set-off contended for in this case goes beyond the authorities of Bottomley v. Brook, 1 T. R. 621, and Rudge v. Birch, 1 T. R. 622. Charlotte Tucker was only an executrix who was residuary legatee and had assented to the bequest: non constat that she or the defendant might have any beneficial interest at all in the debt attempted to be set-off.

LITTLEDALE, J. I think Bottomley v. Brook, 1 T. R. 621, was not properly decided, and that under the statutes of set-off the Court can only notice an interest at law. In George v. Clagett, 7 T. R. 359, the defence was not a setoff under the acts of parliament, but was an answer to the action upon the general issue, that the defendant did not undertake or promise, &c. So it is where the contract has been made with a factor, who was the representative of the party afterwards suing, and who might himself have been the plaintiff in the cause. But in the action upon this bond the defendant could have no benefit of set-off except under the statutes, and the present case is not within them.

PARKE, J. This case must be governed by the statute 2 G. 2, c. 22, s. 13, which enacts, "that where there are mutual debts between the plaintiff and defendant, or if either party sue or be sued as executor or administrator, where there are mutual debts between the *testator or intestate and either party, [*752 one debt may be set against the other, and such matter may be given in evidence upon the general issue, or pleaded in bar," so that in the former case notice be given of the particular sum or debt intended to be insisted on. The object was to prevent cross actions. If the words of the statute had been looked at, Bottomley v. Brook, 1 T. R. 621, and Rudge v. Birch, 1 T. R. 622, would hardly have been decided as they were. At all events the doctrine of those cases is not to be extended; and the present case certainly goes beyond those, for there was no debt due from Charlotte Tucker to Sarah Tucker, before the bond was given to the plaintiff's testator as her trustee.

Judgment for the plaintiff.

BODDINGTON and DAVIS v. SCHLENCKER. May 1.

By the usage in the city of London, a person receiving a check with his banker's name written across it, pays it in at the banker's, and the banker, if he receives it in time,

presents it at the clearing-house, and obtains payment the same day. A debtor paid his creditor by a crossed check, and the latter, on the same day, transmitted it to his banker. The banker negligently (as was alleged) omitted to present it at the clearinghouse in time for that day (when it would have been paid), and on the next it was dishonoured, the firm on which it was drawn having stopped payment:

Held, that the supposed negligence of the banker, though it might render him liable to his customer, did not discharge the drawer; the holder of the check being entitled, by the general law, to present it the day after he receives it; and no custom of the city being proved, as between debtor and creditor, that a crossed check, if received by the latter and sent by him to his banker in sufficient time, must be cleared the same day.

ASSUMPSIT for non-payment of a check, made by the defendant, payable to the plaintiffs or bearer. Plea, non-assumpsit. At the trial before Lord Tenterden, C. J. at the sittings in London after Trinity term 1832, the facts appeared to be as follows:-Messrs. Boddington and Davis sold sugars to the *753] defendant, to be paid for on the 28th of March 1831. On Saturday, *the 26th of that month, between one and half-past one, the defendant gave them in payment a check dated the same day, drawn by him on Messrs. John Bond, Sons and Pattisal, for 8307. Across the face of the check he had written the name of Martin and Co., who were the plaintiffs' bankers. A check so crossed, if presented by any person but the banker whose name is written across, is not paid without further inquiry. On the same 26th of March the plaintiffs paid the check into the hands of Mr. Stone at the house of Martin, Stone, and Co., about seven minutes before four o'clock. Martin and Co. did not present it at the clearing-house in time to be paid that day, but it was presented to Mr. Pattisal, and he put his initials upon it. If it had been presented in time for payment that day, it would have been paid; Bond, Sons and Pattisal never opened their house after the 26th: they stopped payment on the 28th; the check was therefore not presented, and was never paid, of which the defendant had due notice. Bond and Co. afterwards became bankrupt.

The clearing-house at which the bankers' clerks meet to exchange their checks is in Lombard street; Martin's and Co. is in the same street. The practice is, that each banker sends to the clearing-house the checks upon other bankers which he receives in the course of the day; they are there delivered to a clerk of the firm on which they are drawn (each house having a clerk in attendance there for the purpose), and he enters them in a book to the credit of the bankers paying them in. When the clock at the clearing-house strikes four, no more checks are taken; and at the end of the day the clerks settle their balances; if *751] a check comes too late *for the clearing-house, it is usually sent to the bankers' on whom it is drawn, and they mark it with their initials, which is considered an undertaking to pay it the next day; it not being usual for bankers to pay each other after four. The defendant gave evidence for the purpose of shewing that, by an established usage in that business, a banker, receiving a check upon another, was bound to pass it at the clearing-house the same day, if there were time; and that, under the circumstances of this case, Martin, Stone and Co. had time to clear the check in question. On this point it was stated that a check paid in at the banker's, and requiring to be cleared, must be entered in two books at least, before it is sent out; it has then to go to the clearing-house and to be there entered in a third; if Martin and Co. had had only a single check to clear, it would have been in time though paid in as late as seven minutes before four; but Mr. Stone stated that, on the 26th of March, 1831, they had ninety-one checks paid in shortly before, and after, four o'clock, including the check on Bond and Co.; and that all of these were too late to be cleared. The question when a check should be considered as too late, or in time to be cleared, did not appear to be settled by any positive rule; but, under the present circumstances, Campbell, for the defendant, contended that Martin and Co. had been guilty of laches in not passing the check at the clearing-house, and that having, after such default, accepted the undertaking of Bond

[*755

and Co., for payment on the Monday, they had made the check their own and discharged the defendant. Lord Tenterden, in summing up, told the Jury that the plaintiffs must suffer for the neglect of Martin and Co. their agents, if *they had not done their duty; and that the question was, whether or not the check was paid in to Martin's and Co. in time for them to have sent it to the clearing-house. He observed upon the evidence of Mr. Stone, that if that gentleman spoke the truth, there was not time to pass the check, and then there was no laches on the part of Martin and Co., and the defendant was not relieved from liability. The jury found a verdict for the defendant. In the following term Sir James Scarlett obtained a rule to shew cause why there should not be a new trial, on the ground of misdirection; contending, that as the plaintiffs themselves were not obliged to present the check till Monday, their agent could not have been guilty of laches in not procuring payment on Saturday; and this should have been stated to the jury.

The Solicitor-General and Comyn now shewed cause. Martin and Co. were guilty of negligence, and the loss must fall upon them, not the defendant. It is true that, by the general custom, if a party keeps a check in his own hands, he need not present it till the following day; but there is a custom also that if he receives a cross check and hands it to his banker, the banker (if it comes in sufficient time) must present it the same day; the custom, and that only, rules in each case. Its existence is a matter of fact to be determined by the jury. [PARKE, J. Assuming the custom, each way, to be as it is stated, the debtor has no right to presume that one course or the other will be adopted; it is at the option of the party receiving the check.] If a bill of exchange is payable at a day certain, the holder has his option whether he will present it for acceptance or not in the mean time; but if he does, and acceptance is *refused he must give notice to the drawer or indorser, or lose his remedy by [*756 omitting to do so. What is due diligence, in general, may be a mixed question of law and fact; but where this depends upon the custom of trade in a particular place, the jury must decide it. Appleton v. Sweetapple, Bayley on Bills, 239, Hankey v. Trotman, 1 W. Bl. 1. Local customs have been held good with respect to insurances and may at least have equal authority in the case of bills. [LITTLEDALE, J. How far do you say the custom in this case extends?] To all the bankers in the city who use the clearing-house. Robson v. Bennett, 2 Taunt. 388, which may be cited on the other side, it is no authority against the defendant, but rather the contrary; for there the custom of the city bankers was complied with as far as the circumstances allowed; the plaintiffs' bankers did not receive the check till after four, and they sent it that day to be marked for payment by the bankers on whom it was drawn, and presented it on the following day at the clearing-house Lord Tenterden, in the present case, considered the custom as established, and only left it to the jury whether there had been sufficient time to clear the check. [PARKE, J. There may be a custom of the nature contended for, as between the banker and his customer, but whether it prevails between the creditor and debtor is a very different question; and that distinction should have been pointed out to the jury.] The check was a bill of exchange payable on demand; if the bankers received it, and neglected their duty in presenting it, they have their remedy against the drawer; but they are bound to give credit to the customer from whom they took it, and *he, therefore, must be considered as having received payment from the party who drew [*757 and delivered it to him. [PARKE, J. If the customer had given the bankers a bill payable on the same day, with a special direction to present it at ten o'clock, in which case it would have been paid, and they had not presented it till five, would that have discharged the drawer? The question is, whether this sup posed general custom amounts to anything more than such a direction by the customer.] A banker is not a mere porter, he is a holder; he would have a lien. A porter or clerk has no interest in the sum delivered to him; he is to carry the very paper or money-he is the mere conduit. But a banker receives

a bill or check as his own, subject to an account for the proceeds. Martin and Co. were to place the amount of the check to the plaintiffs' credit. If the plaintiffs' account with them had been overdrawn, Martin and Co. would have received the amount of this check for their own benefit. [PARKE, J. You have to make out an exception in the case of bankers receiving a crossed check, to the general rule that a check may be presented the day after it is received.] The question turns entirely on mercantile usage, and that contended for, and which has been recognised by the jury, is not unreasonable. The custom of the clearing-house (and presentment there at all is merely matter of custom) is perfectly understood between the debtor and the creditor; the latter knows, if a check is sent to him crossed, that the earliest payment is to be obtained by presenting it, through his banker, at the clearing-house the same day. If he takes the step authorized by custom for obtaining that early payment, he must abide the consequence as between himself and the debtor, if he fails to do all that the custom requires. *If the banker is in fault, the consequence falls on him *758] and he must seek his remedy against the debtor. Sir James Scarlett (with whom was F. Robinson), contra.

The Lord Chief Justice misdirected the jury, in not telling them that the plaintiffs had a right to present the check at any time during Monday. (Here he was stopped by the Court.)

DENMAN, C. J. I am of that opinion; and I may also say that, in order to support the defendant's case, the custom relied upon ought to be much better established, as between debtor and creditor.

LITTLEDALE, J. The rule in question may exist, as between the banker and his customer, and may be regarded as a convenient practice settled between them, rather than as a custom. I must say, although it is not now the subject for our consideration, that I think seven minutes not a reasonable time for a banker to enter a check and send it to the clearing-house, or else to be liable for the consequences in case of default. But, at all events, the custom contended for is not established as between the creditor and his debtor. Boddington and Co., as holders of the check, had a right to present it at any period of the day after that on which they received it. That has been held a reasonable time; and I do not see upon what principle it can be contended that, under the circumstances of this case, the rule so established ought not to prevail. Boddington and Co., if they had held the check in their own hands, were not bound to present it before Monday; and, if they had not, the defendant would have been in the same situation as he is now.

*PARKE, J. There is no doubt that the receiver of a check has till

*759] the close of the banking hours on the following day to present it. It is said, however, that there is a particular custom qualifying this rule. The question on that point was not distinctly submitted to the jury, inasmuch as the difference between the usage as affecting the relation of creditors and debtors, and that of customer and banker, was not pointed out: if it had been, I should say that the jury had come to a wrong conclusion on the evidence. The custom contended for, if it could be supposed set out on the record, would appear a very complicated one. It would be a custom as between debtor and creditor, that if the creditor receives a crossed check from his debtor, he is not bound to present it till the following day; but that if he hands it to his own banker on the same day, within a reasonable time before four o'clock for the banker to send it to the clearing-house, and the banker neglects to do so, the creditor is answerable for that neglect, as between himself and the debtor, and the debtor is discharged or that the banker becomes a holder in this special situation, that if he does not present the check at the clearing-house before four, the debtor is discharged, and the banker must take the consequences of the non payment. No such custom was established, and it seems to me that the whole of the evidence comes to this point: that if the holder of a crossed check delivers it to his banker on the day he receives it, within a convenient time before the