SUPREME COURT.

Evening Star, Issue 4097, 13 April 1876, Page 2

SUPREME COURT.

CIVIL SESSIONS. Wednesday, April 12. (Before Mr Justice Williams and a Special Jury.) Bird v. the National Bank.— An action to recover LI,OOO damages for dishonoring a cheque. After argument yesterday afternoon, it was decided that the plaintiff should begin, and the case was stated by Mr Barton as follows :—-Mr Bird, who is manager of the Dunedin Club, being indebted to Miss Sproule, schoolmistress here, in the sum of L 5 18a, gave her a cheque for the amount, which she deposited to her credit in the National Bank. A few days afterwards Bird, to his great surprise, he having funds at her banker’s, received notice of the dishonor of the cheque, which became matter of general comment, the result being that Bird, who could get no satisfaction from the defendants, commenced this action. The ordinary banking hours are from 10 a.m. to 3 p.m. daily; but the exchange clerks belonging to the several banks are admitted to each bank from 9 to 10 a.m. and from 3 to 4 p.m., and to this custom, which is a general one, the National Bank had been a party for fourteen years. The circumstances of the present case were, that, for some reason, an official in the National Bank took itintoMs head that he was not bound by the arrangement between the banks before mentioned, which had been carried out for years by the managers of the same Bank—by Mr Bathgate, Mr Lamach, Mr Bartleman, and by Mr Dymock (the present manager). Unfortunately Mr Dymock was temporarily absent on the day in question, and his place was filled by another official. On the day in question the exchange clerk of the National Bank presented himself at the Colonial Bank with a bundle of cheques and bills; but he presented himself considerably after the proper hour for making exchanges. According to Mr Dymock himself, it was ten minutes past two o’clock, and evidence would be given to show that the last exchanges for the day should be made between twelve and one. Having presented himself, the clerk put the cheques down on the counter. The Colonial Bank clerk told him that they would be too late for the day’s exchanges. The exchange clerk said his orders were to leave the cheques there, and he left them on the counter. The Colonial Bank clerk then put a paper weight on them to keep them right, but determined not to recognise the documents as properly in their hands. The National Bank clerk came in later in the day, and asked about the exchanges. He asked Mr Lamach, the teller of the Colonial Bank, if he had treated them as exchanges. Mr lamach replied, “No, there they are.” The exchange clerk then took the cheques, and presented them to the ledger-keeper, and asked him to mark them. He replied that his instructions were to say that they were too late, and he could not mark them. The exchange clerk afterwards saw the accountant of the Colonial Bank, and asked him what was to be done. The accountant replied that as far as he could see, the cheques were all right, hut he would not pay them on principle. The acting manager of the National Bank there upon lost his temper, and sent notice of dishonor to several persons, including Mian Sproule. In consequence of this action, a meeting of bankers was held, which Mr Dymock attended, and intimated that the action in question had not been taken by him. Mr Dymock was informed at that meeting that if he wished to alter the existing practice with regard to exchanges he would have to call a special meeting of all the bankers. It would be proved that four of the very same cheques were presented at the Colonial Bank next day by the National Bank, and were paid. The point the jury had to decide was whether any one bank had a right to upset the clearing system without a moment’s notice, and whether in a dispute of this kind bankers could inflict injury upon a customer.

Thursday, April 13. The first witness examined was Albert Larnach, who deposed that he was teller of the Colonial Bank on October 6th last, Mr Leckie, an exchange clerk in the National Bank, came to him between five and ten minutes past two on that day. Witness said his exchanges were too late and that h© PWat §e§ his account. He' threw down a bundle of vouchers on the end of the counter

where the exchanges 'Heft' ‘walked, away. Witness never touched the vouchers. Shortly before three he returned to the bank and asked if witness had put oh the exchanges. He replied no, that they were too late. There were fixed hours lor file exchanges. Mr Smith objected to evidence of this does. The custom of bank officers of Dunedin could not vary the use of a written instrument— a cheque. ' After a long- discussion (Mr Barton objecting to the jury leaving the box), it was decided not to admit the evidence as to usage. Mr Lamach’a examination was continued : He said Mr Leckie came straight to his counter, and did not present any of the cheques to the ledger-keeper for marking. The practice of all banks was only to pay the cheques after the ledger-keeper had marked them. The cheques were thrown down on the counter unmarked. He did not ask to have any of the cheques presented singly. Witness was the only teller in the bank. He would swear that Mr Leckie never presented the cheques marked for payment before three o’clock. No cheque of Mr Bird’s for L 5 18s was presented for payment that day. Mr was the ledger-keeper, who would mark cheques with the letter B. The v k Bank closes to the public for the presenting of cheques at three o’clock, except on Saturdays, when it closes at twelve o’clock. Witness never left the Bank betweeh banking hours—ten and three—on the 6th, and no cheque of Mr Bird’s was presented for payment. By Mr Smith: Unless some dispute occurred Mr Morrison, the accountant, would not be appealed to. Witness was not aware that Mr Leckie spoke to Mr Morrison when he first came.

_Mr Smith: What is the meaning of putting documents on the exchange ? Witness: To have them presented tb the ledger-keeper in the usual way. (This question was admitted, his Honor taking a note of Mr Barton’s objection.) t Mr Barton said that the greater portion of his case having been excluded, ne would confine himself to the point whether the cheque was presented to the ledger-keeper to be marked, and then handed across the counter to the teller in the usual way. On these points he claimed a verdict. The Court excluding the evidence which he intended to offer as to usage would win him the case to a dead certainty, Mr Smith repeated his question as to the meaning of the term putting documents on the exchange. Mr Barton now said he wished to retract his permission to admit the question. His Honor allowed the question. Witness said the term meant to have the documents sent up to the ledger-keeper if they were bills or cheques, 2 they were correct.

Witness, in re-examination, said the documents left in exchange would be written in an inward exchange-book and transferred to the ledger-keeper. Mr Barton; If a bundle of cheques are brought in from five to ten minutes past two are L hey exchanged that day ? Mr Smith objected to the question as being one which his Honor had already ruled against.

• ® onor decided that it ought to be put in order to afford witness an opporturdty of explaining a previous answer. Mr Smith still urging his objection, Mr Barton asked; Is a presentment for exchange at two o’clock a presentment for payment that day ? Mr Smith again objected. This was a maiter of law, and could not be answered by the witness. J

Witness: If the cheques are presented after two o’clock the bank does not pay them that day. (His Honor took a note of Mr Smith’s objection.) * Heiuy Leschenski deposed that he was ledger-keeper to the Colonial Bank on October 6 last. Mr Cargill was also ledgerkeeper. On that day between ten and three no cheque of Mr Bird’s for L 5 18s was presented to him to be marked. A bundle of cheques from the National Bant- were presented to be marked a few minutes after three o clock. The bank ceases to pay cheques at three o’clock. The bundle was handed to him by Mr Leckie, the National "“"F. ex ®“ an^ e ledger-keeper. Witness toldffimthat his instructions were "too late that day. Mr Leckie then went to Mr Morrison, the accountant. Cross-examined: If there were sufficient funds to meet cheques, he marked the same in the ledger-book as paid on behalf of the customer alter having debited account. If there were not sufficient funds he dishonored it—returned it to the presenting bank with an answer to the cheque. The answer does not necessarily indicate the state of the drawer’s account. Mr Smith : Supposing persons holding cheques on the bank go into the bank while the doom are open to the public, aay five minutes before three, but cannot be attended to because there are a number of persons previously there, is it not the practice of the bank to pay their cheques, though they may be handed up after three? * Witness : When detained by pressure of business it is. By Mr Barton: It is not the practice to mark cheques presented after three. Me did not see Bird’s cheque on that day. He put no mark of dishonor on the cheque. There was no mark by the Colonial Bank on it (looking at the cheque). It bore a mark to show that it had been through the National Bank. On October 6 there was no V“ u ® ual Pressure on the bank. Mr Leckie could have got to the counter before three that day had he gone in a few minutes before that hour. When the National puts a stamp on a cheque it is treated as a crossing between the two banks, and a cheque so marked would not be paid to a private individual. [Left sitting.]