Page:Halsbury Laws of England v1 1907.pdf/849

 —— Part to recover the

Business of Banking.

III.

aroount paid from the banker

who

627

issued the note

(Z).

The liabiUty of the issuing bank to reimburse the correspondent must rest on the request to cash the draft of the bearer. As drawer or payee

of

such

Sect. 14.

Circular

Notes.

draft, the bearer of the circular note could

not sue the issuing bank on it, or convey the right to do so. If the holder's name has been forged to a circular note, the correspondent cannot recover from the issuing bank any money paid thereon, notwithstanding that the letter of indication, genuinely signed by the holder, was produced to him (m).

1266. Circular notes are not negotiable in themselves. When the draft on the back is filled in and signed, the whole document then becomes a bill or cheque (n). Sect. 15.

Safe Custody of Valuables.

1267. Unless undertaking the care of valuable property (o), when required, be made a condition of opening an account or offered as an inducement to do so, the position of the banker as regards any property deposited with

Negotiability,

him

Banker's position,

for custody is that of a gratuitous

to take the same care of the Degree as a reasonably prudent and careful man care, may fairly be expected to take of his own property of the like description (g). It is submitted that this involves the employment and in view of of all the facilities at the banker's command (r) the facilities usually existing, the question whether the banker is a gratuitous bailee or a bailee for value does not seem material (s). The banker's knowledge or ignorance of the nature of the goods intrusted to him does not appear to affect the question of his liability {t). If, however, the customer mislead the banker as to the nature or value of the goods, he would presumably not be entitled to hold the banker to a greater degree of care or to a

As such he property intrusted to him bailee (^).

is

bound



{I)

Gonfians Quarry Co. v. Parker (1867), L. R. 3 C. P.

1,

at p. 12.

Ihicl.

{n) Ibid., at p. 13. (o) For form of request to bank to take charge of valuables and of banker's acknowledgment of deposit, see Eneyclopsedia of Forms, Vol. II., p. 471. Be United Services Co., {p) Giblin v. McMuUen (1868), L. R. 2 P. C. 317 Johnston's Glaim (1871), 6 Ch. App. 212 Leesev. Martin {1873), L. P. 17 Eq. 222, 235. The dictum of Lord Campbell in Brandaov. Barnett (1846), 12 CI. & F. 787, at p. 809, " A charge might be made by the bankers, if they were not otherwise remunerated for their trouble," is somewhat to the contrary, but too indirect. The view expressed above in the text is that adopted by the Central Association of Bankers (Journal of Institute of Bankers, Vol. XVII., p. 455). For a full discussion of the position of a gratuitous bailee, see title Bailment. (g) Giblin v. McMullen, supra, at p. 339. (r) The utilisation of available means of securing safety must be part of the care a reasonable man would take. (s) A bailee for value is bound to adopt at his own expense all reasonable safeguards. A gratuitous bailee is bound to do his best w^ith what he has got, using the best facilities at his command, but not more. A banker invariably lias safes, strong-rooms etc. See title Bailment. [t] The rule as above stated was laid down in Giblin y. McMullen, supra, without



qualification as to knowledge. The facts in that case appear to point to ignorance on the part of the banker as to the n£j,ture of the goods. The presumption is that they are valuable.

S S 2

of