Smith v Commercial Banking Co of Sydney Ltd [1910] HCA 72

| CLR. OF AUSTRALIA.

{HIGH COURT OF AUSTRALIA.)

RED GEORGE SMITH . 7 - APPELLANT ; _ PLAINTIFF,

E COMMERCIAL BANKING CO. OF SYDNEY LTD. DEFENDANTS,

} . RESPONDENTS.

ON APPEAL FROM THE SUPREME COURT OF NEW SOUTH WALES.

ker and customer—Bill payable to order on demand—Forged indorsement— 'Payment in good faith and in the ordinary course of business—Negligence of - banker—Liability of banker—Bills of Exchange Act 1887 (N.S. W.), (51 Vict., No. 2), sec. 60—Bills of Bxchange Act 1909, (No. 27 of 1909), sec. 65.

of Exchange—Acceptance of bill—Signature of officer of bank—Acceptance on behalf of company—Evidence of promise to pay—Communication to payee— Bills of Exchange Act 1887 (N.S.W.) (51 Vict., No. 2), sec. 17—Bills of Exchange Act 1909 (No. 27 of 1909), secs. 17, 22—Companies Act 1899 (¥.S.W.), (No. 40), sec. 244.

'The appellant, who was about to proceed from England to Sydney, obtained 'a draft for £30 issued in two parts, and payable to his order. He retained the first of exchange in his possession, and posted the second of exchange to his own address at the G.P.O., Sydney. On arrival at Sydney he found that the second of exchange had been delivered by the Post Office to some other _ Ferson, to whom, on presenting the first of exchange at the bank, he was informed that the £30 had already been paid by the bank. The appellant sued the bank as acceptors of the draft. The bank denied acceptance, and claimed the benefit of sec. 60 of the Bills of xchange Act 1887, by which a banker is protected where he pays in good faith and in the ordinary course of ; business, on a forged indorsement, in the case of a bill drawn on the banker and payable to order on demand.

It appeared at the trial that the thief had presented the draft at the bank, __ representing himself to be the payee, and that in order to prove his identity