Page:Halsbury Laws of England v1 1907.pdf/842

 — Bankers and Banking.

620 Sect.

11.

The Pass-book.

account on proof of error. The question usually arises with reference to cheques to which the customer's signature has been forged, or the amount of which has been fraudulently raised. The estoppel depends mainly on whether there is or is not a duty on the part of the customer to examine the pass-book and paid cheques, if returned with it, and to communicate to the banker within reasonable time all debits which he does not admit, on which point the authorities are conflicting®. It might further be contended that means of knowledge was equivalent to knowledge or reasonable grounds of belief, so as to fix the customer with adoption or ratification of the cheques {m), or that, the customer's claim not to be debited being in effect one for money had and received, it is not ex cequo et bono that he should not bear a loss occasioned by his neglect of ordinary business precautions Sect. 12.

Banker's lien.

1253. The general

lien of

TJie

Banker's Lien.

bankers

is

part of the law merchant

as judicially recognised (o), and attaches to all securities deposited with them as bankers by a customer, or by a third person on a customer's account, and to money paid in by, or to the account of, a customer (/>), unless there be a contract, express or implied, (l) The existence of the duty is recognised in Spencer v. Wakefield (1887), 4 T. L. R. 194 (where the customer's acquiescence in charges and commission was deduced from the return of the pass-book without comment) ; Bank of England V. Vagliano, [1891] A. C. 107, yer Lord Halsbury, at p. 116: "Was not the customer hound to know the contents of his own pass-book ?" See also pp. 115, 128 and on appeal (1889), 23 Q. B. D. 243. at p. 263, where it was treated as a question of evidence. "There was no evidence to show that, having regard . to the ordinary course of dealing between a banker and his customers, the plaintiff had done anything which can be considered a neglect of his duty to the bank or negligence on his part." The highest American Court has fully recognised the duty {Leather Manufacturers^ Bank v. Morgan (1886), 117 U. S. 96 (Supreme Court of United States) ; Gritten v. Chemical National Bank (1902), N. Y. Reports, 171 (Supreme Court of New York). For the contrary view, see Ghatterton v. London and Gounty Bank, reported only in the Miller newspaper November 3, 1890, p. 394, where Lord Esher distinctly denied the existence of any obligation on the customer to look at the pass-book, though he had sent for it weekly. is not bound to look at it. You must not put a burden on people the law never placed on them you are putting on them the burden of saying, Look through the pass-book.' " No formal judgment was delivered, the appeal of the bank being dismissed. At the new trial, reported in the Times newspajter January 1, 1891, the Miller February 2, 1891, Mathew, J., in summing up, said that there was no contract between the bank and its customer with regard to the pass-book. Plaintiif was entitled to conduct his business his own way, and might have deputed the examination of the pass-book and comparison with returned cheques to the clerk who was supposed to have forged the cheques. Verdict and judgment for plaintiff. (m) See M'Kenzie v. British Linen Co. (1881), 6 App. Cas. 82 (particularly at p. 92), and p. 616, ante ; Jacobs v. Morris, [1902] 1 Ch. 816, at pp. 830, 831. {n) See Jacobs v. Morris, supra, per Vaughan Williams, L.J., at p. 831 ; per Stirling, L.J., at p. 833. Qucere, however, whether the omission is sufficiently

.

.

"He



'

the primarv cause. (o) Brandao v. Barnett (1846), 12 App. Cas. 554, per Lord Hatherley,

CI.

&

F. 787



Misa

v.

Currie (1876),

1

at p. 569.

Money is, {p) Eoxburghe v. Cox (1880), 17 Cii. D. 52; Misa v. Currie, supra. however, not usually the subject of lien, not being capable of being earmarked, and the banker's claim in such cases is probably more rightly referred to set-off. See Roxburghe v. Cox, supra.