Liston v Munster and Leinster Bank

• Jurisdiction: Ireland
• Court: High Court
• Judgment Date: 03 November 1940
• Date: 03 November 1940

Liston

and

Munster and Leinster Bank

Mode of trial - Right to trial by jury - Whether action founded on contract or tort - Action by customer against Bank -Damages claimed for negligence and breach of duty owed to customer, or, alternatively, for conversion of cheques and pay orders, or as money had and received - Courts of Justice Act, 1924 (No. 10 of1924), s. 94, Courts of Justice Act, 1928 (No. 15 of 1928), s. 20.

For the purpose of determining whether an action is founded on contract or tort, in order to decided whether, under s. 94 of the Courts of Justice Act, 1924, as amended by s. 20 of the Courts of Justice Act, 1928, a party is entitled to a jury, O'Byrne J. accepted as applicable the principle laid down by Greer L.J. in Jarvis v. Moy, Davies, Smith, Vandervell & Co.ELR [1936] 1 K. B. 399, at p. 405, as follows: —"The distinction in the modern view, for this purpose, between contract and tort may be put thus: where the breach of duty alleged arises out of a liability independently of the personal obligation undertaken by contract, it is tort; and it may be tort even though there may happen to be a contract between the parties if the duty in fact arises independently of that contract. Breach of contract occurs where that which is complained of is a breach of duty arising out of the obligations undertaken by the contract." In an action by the plaintiff as administrator on behalf of the estate of the deceased, it appeared that the deceased had prior to his death, three accounts in the defendant bank. During the years 1932 to 1935 one, S., a clerk in the employment of the deceased, negotiated various cheques and pay orders, drawn in favour of the deceased and other persons through the defendant bank. The plaintiff in his statement of claim alleged that these cheques and pay orders were endorsed by S. in the name of the deceased but were not lodged, in the ordinary course, to the credit of the appropriate account, being, in some cases, cashed over the counter without any lodgment to the credit of any of the deceased's accounts, in other cases, part being lodged on deposit receipt in the name of the deceased, and the balance paid in cash to S. In other cases it was alleged that the defendant bank issued bank drafts to S. payable to persons not authorised by the deceased, and that, in several cases, the cheques and orders were placed, not to the credit of the deceased, but to other persons. The plaintiff claimed the sum of £6,081 0s. 11d....