Page:Halsbury Laws of England v1 1907.pdf/827

 — Part

III.

Business of Banking.

605

Sect. 6. account should be operated on only for the purpose of winding up the partnership, and arrangements should be made for a new Payment of account, carrying over to it any balance remaining {p). The C hequ es, bankruptcy of one partner does not interfere with the other partners or partner drawing on the firm account. In the absence of special arrangement, one of several executors Administra tion and trust or administrators can draw on an account opened with the deceased, accounts. or with them as executors or administrators (q) but one trustee cannot draw on a trust account in which others than he are

named

as trustees

(r).

1230. Subject to questions of statutory protection, estoppel, or Payment adoption, a banker who has paid a cheque drawn without authority or has paid one in contravention of his customer's orders (s), or, probably, negligently (t), cannot debit the customer's account with the amount. 1231. There must be sufficient funds to cover the whole amount Funds cheque presented. For there is in England no obUgation ^^a^l^^l^on the banker to pay any part of a cheque for an amount exceeding the available balance {a), save under instructions. Cheques must be paid in the order in which they are presented, whether by post If two cheques are presented simultaneously, e.g., or otherwise (b). by the same mail or through the same clearing, and there are only funds sufficient to pay one, it is doubtful whether both may be returned (c). The funds must not only be sufficient, but available. Even Time when available, in the case of notes or gold, the banker is entitled to reasonable time between the paying in and drawing against in which to carry out the necessary book-keeping entries (d). In the case of cheques and other documents, he is entitled to a reasonable time for clearing or collection according to their respective nature (e).

of the

•

ip) See the Partnership Act, 1890 (53 & 54 Vict. c. 39); Re Bourne, [1906] The rights intei^ se of partners and the representatives of a deceased 2 Ch. 427. partner do not seem directly to affect the banker, but it is questionable whether he is entitled to ignore them, (q) For administration of a deceased's estate generally, see title Executors

AND Administrators. (r) (s)

See, further, title Trusts and Trustees. Bills of Exchange Act, 1882 (45 & 46 Vict.

c.

61),

s.

75



Twibell v.

London

Suburban Bank, [1869] W. N. 127. {t) See Bills of Exchange Act, 1882 (45 & 46 Vict. c. 61), s. 80, "without negligence" Bellamy v. Marjoribanks (1852), 7 Exch. 389 Carlon v. Ireland (1856),



&

Crompton, J., at p. 770. (a) A cheque is not an assignment of funds in the banker's hands (Bills of Exchange Act, 1882 (45 & 46 Vict. c. 61), s. 53 (1) ). The banker only contracts with the customer to honour cheques wdien he has sufficient " funds iu hand.

5 E.

B. 765, per

Duckworth (1869), L. R. 4 Exch. 313. Williams (1822), 5 B. & Aid. 815. (c) Unnecessary damage would be caused to the customer's credit. {d) Marzetti v. Williams (1830), 1 B. & Ad. 415 Whitaker v. Bank of England Bransbij v. East London Bank (1866), (1835), 1 Cr. M. & R. 744, at pp. 749, 750 14 L. T. 403. (e) Forrnan v. Bank of England (1902), 18 T. L. R. 339, where a city cheque was passed through the country clearing and was not credited in time to meet a cheque drawn against it.

See Garew (6)

v.

Kilsby

V.