Ireland (Ireland's Executrix) and Fleming v. The North of Scotland Banking Co.

Subject_1 Deposit Subject_2 Account-Current Subject_3 Title to Sue. Facts: A bank having funds in its possession on account-current belonging to an executry estate, sufficient to meet the sum contained in a cheque signed by the executrix and her agent, in whose name the funds were lodged for behoof of the estate, and who was also her cautioner, held bound to honour the cheque, although the agent and cautioner had executed a trust-deed for behoof of his creditors and the executry estate had subsequently been sequestrated.

“ Note .—As the balance in defenders' hands is upwards of £400, and as their agent admitted at the discussion that their claim against the estate of the deceased was not above £130, there is plainly nothing in their plea of retention, and that plea being out of the way, I fail to see any excuse for their refusal to honour the cheque, or to find any Page: 168 ↓

The defenders appealed to the First Division, and argued—The right of the executrix to demand payment is superseded by the bankruptcy Fleming's right is no higher than hers, and the cause should be sisted till a judicial factor is appointed on the deceased's estate, and intimation ordered to be made to him of the process— Gray v. Johnston , L.R., 3 E. & I. App. 1 —this is the ordinary course in a depending process.

Answered for pursuers—The bank was not entitled to refuse payment; they do not aver any grounds of suspicion; as depositaries they cannot object to the title of the depositor— Lopez v. Stewart , 1871, 9 Macph. 957 .

Lord Deas —I am entirely of the same opinion. The point of time at which the question is to be taken is the date of presentation of the cheque, and I think it was then the duty of the bank to pay it.