A BANK'S LIABILITY.

Evening Post, Volume LXIV, Issue 141, 11 December 1902, Page 6

A BANK'S LIABILITY.

AN IMPORTANT POINT. Law-points raised in the case of G. W. 'Banks v. Ihe Bank of New Zealand — a Claim of £1000 damages for dishonouring a cheque — were argued before Mr. Justice Edwards to-day. The questions stated, on defendant bank's' motion, were as follows : — (1) Whether, inasmuch as a sum of £137 was inadvertently paid into the defendant bank on 22nd July, 1902, by the plaintiff's agent so that the deposit slip drawn up by the agent expressed such payment to be made to the credit of an account kept by the firm of Howan and How.an with the bank, while the block receipt attached thereto, also drawn up by the plaintifi's »gent> and. given by the bank, acknowledged such payment to have been made, to the credit of the plaintifi's account with ihe bank, the bank having given this Block receipt was -estopped from denying that the £137 was paid to the credit of the plaintiff and from relying upon the deposit slip as evidence that the same was paid to Howan and Howan's account instead ; (2) whether if the bank was not so estopped such payment amounted in law to a payment of the sum to the credit of the plaintifi's account against which he was entitled to draw j and (3), whether the giving of the receipt could in the circumstances ba held to be a proximate cause of damage, if any, to the. plain tiff. Dr. Findlay, for the bank, contended that the mistake was entirely due to the negligence of the plaintiff, who first, by his clerk, made out 'the slip in the name of Howan and Howan and then filled up the receipt in the name of Banks. The receipt was merely incidental to the slip, and it would be noticed that the receipt referred to the slip and said "asr per slip." Thus the bank was bound to follow the slip and would have been liable to an action, at the instance of Howan and Howan if it had not honoured cheques drawn upon the funds so deposited. On the ground, therefore, of contributory negligence the plaintiff should fail. On the second ground of estoppel, Dr. Findlay contended that the receipt was not conclusive, and represented no more than that m6ney had been deposited which the bank might or might not place to the credit of Banks upon enquiry being made as to the honouring of the cheques deposited. The representation complained of was a representation made to the plaintiff in respect of conduct which in law was his own conduct, and estoppel could not apply in such a case at all. The giving- of the receipt was not the proximate cause of damage, if any, but was the failure of the plaintiff to request the placing of the money to the proper account. Mr. Wilford, for plaintiff, submitted that when the officer of the bank received the money with the deposit slip and receipt he should' have seen at a glance that the contents of the slip and receipt did not agree, but as he negligently did not draw attention to the error, but ga\*e the receipt stating that the money stood to the credit of Banks, the latter therefore naturally drew a cheque against it. The cheque, however, was dishonoured, as the money had gone to the credit of Howan and Howan. Counsel contended that the relation between the banker and the customer was that of debtor and. creditor. , There was nothing of a fiduciary character, and the position of trustee and cetui que trust was not applicable. H« submitted, under authorities, that a banker might become liable to the payee or holder of a cheque for money had and received by expressly consenting to hold to the use of a person moneys actually received, and especially in the case where such receipt and holding have been communicated to the, payer-in. Here the negligence- of the teller of the bank was the proximate cause of the damage, and there was sufficient evidence to justify the jury in finding on the wording of the slip that the bank had treated the payment in as cash and the transaction was in effect a credit to the plaintifis account. The negligence of an official of the bank would, in law, constitute a right of action. Mis Honour said he did not think there Tctir^ ?Übt ° n the P° int ' bllt as the ivTfudgmen? U ™ uld

iJt w-,1 i g ♦ V vo and a half y ears of SSrnin? it *?* H <™*°n -street this morning. She bad a light blue dress 2d a &ri t -» bßt - Tie ParentT would I ob [ ISed1 S ed lf »ny one knowing her Mr Eugen Sandow Las signified his School of Physical Culture on Tuesday afternoon next, to witness a repetition of the "Sandow" exercises performed at Mr. Harrison's recent carnival. On dit (says the New Plymouth News) that the "trade" intends setting up a vigilance committee, who will see to the due observance of the licensing law in future. The final meeting in connection with Mr. J. J. Virgo's visit under the auspices of the Wellington You D g Men's Christian Association takes place at Wesley Church this evening. Mr. J. Duthie, M.H.R., is to preside, and the list of speakers announced gives promise of an interesting evening. Mr. Virgo's visit has been very successful, and his send-off this evening is likely to be enthusiastic^.