S. 74. Presentment of cheques for holder is entitled to prove against the insolvent banker's estate, or (d) The question of reasonable time may be considered as follows:— Where the person taking the cheque and the banker on whom it is drawn live in the same place, the person taking the cheque has the whole of the banking hours of the next business day within which he may present it, in order to charge the drawer if the bank fails, Boddington v. Schlencker, 4 B. & Ad. at p. 759; Robson v. Bennett, 2 Taunt. 388; Moule v. Brown, 4 Bing. N. C. 266; 5 Scott, 694; 2 Parsons on Bills, 72; Alexander v. Burchfield, 7 M. & G. 1061; 3 Scott, N. R. 555, in which latter case it was decided that the holder of a cheque is bound to present it for payment not later than the day following that on which he receives it, whether the presentment is made through his bankers, or by himself. In Bond v. Warden, 14 L. J. Ch. 154, a cheque was given to the payee in the town where it was drawn and payable, but after banking hours. The payee sent it the same evening to his bankers at a town six miles away, and it was paid into his bank next morning. It was then sent by post on that day to the bank on which it was drawn, and presented on the following day, that is, two days after it was drawn. Held, a presentment in time. The rule, however, is different if the person taking the cheque and the banker on whom it is drawn do not live in the same place, for then the rule laid down in the cases is that the person taking it should send it to his banker or agent by the next business day's post, and he should present it on the next business day in order to charge the Idrawer if the bank fails, Rickford v. Ridge, 2 Camp. 537; Hare v. Henty, 10 C. B. N. S. 65; 30 L. J. C. P. 302; Bailey v. Bodenham, 16 C. B. N. S. 288; 33 L. J. C. P. 252; Prideaux v. Criddle, L. R. 4 Q. B. 455; Heywood v. Pickering, L. R. 9 Q. B. 428, where the cheque was on a foreign bank, and was sent direct to it by post; see also Byles on Bills, 13th Ed.. 21.; Chalmers on Bills, 2nd Ed., 229; Story on Notes, s. 493. As between customer and banker, where the customer sends him a cheque for presentment, the rule is the same unless circumstances exist from which a contract or duty on the part of the banker to present earlier or to defer presentment can be inferred, per Erle, C.J., in Hare v. Henty, supra at p. 88. In Story on Notes, s. 496, it is said that though each party to a cheque is as between himself and the party from whom he received it allowed a day to present it, the drawer and every holder is only liable on due S. 74. Presentment of cheques for payment. presentment and dishonour within the time for which he would be liable if the cheque had been presented by the party immediately claiming from and under him. Where a cheque was drawn on a banker at B., cashed by a branch of the N. W. bank at M., and forwarded to the head office of the N. W. bank at K., all on the same day; but the head office did not present it for three days, the presentment was held too late to charge the drawer, the bank having failed, Moule v. Brown, 4 Bing. N. C. 266; 5 Scott, 694. If the drawer, or other party to the cheque, is discharged by delay in presentment, no action can be brought to recover the consideration given for the cheque; as, in the words of Blackburn, J., in Heywood v. Pickering, L. R. 9 Q. B. p. 431, the holder by his conduct makes the cheque his own; it is then equivalent to absolute payment. It will be noticed that the rules as to what is a reasonable time for presenting a cheque are practically the same as those as to what is reasonable time for giving notice of dishonour. See sub-sects. 12 and 13 of sect. 49 of this Act, and the notes thereto. The subject of cheques may be further considered as follows. OVERDUE CHEQUES. A bill payable on demand is deemed to be overdue when it appears to have been in circulation for an unreasonable length of time; as to which see sub-section (3) of section 36, and notes (w) and (v) thereto. A cheque, however, is very often, especially when crossed, cashed by a tradesman, or paid away in the purchase of goods. It then becomes important to find out what rule, if any, has been laid down as to when a cheque is overdue, and so subject to any defect of title. The law on this point has been lately considered by Field, J., in the London & County Banking Co. v. Groome, 8 Q. B. D. 288. The following are the chief cases:-in Down v. Halling, 4 B. & C. 330; 6 D. & R. 455 (which is not approved of in Bank of Bengal v. Fagan, 7 Moo. P. C. at p. 72), a cheque for £50 was lost, and it was tendered five days after its date at a shop in payment for goods; the shopkeeper took it, and on the next day presented it for payment, when it was cashed; the true owner brought an action against the shopkeeper to recover the money and succeeded, the defendant having taken it when overdue, and under circumstances which ought to have excited the suspicions of a prudent man, and so, as his transferor had no title, he could get no better title. In Rothschild v. Corney, 9 B. & C. 388, two cheques had been fraudulently obtained from the drawer, and the defendants, who took them bonâ fide six days after date, gave cash for them to a third person who had not given value for them, presented them and received the amount; it was held, in an action by the drawer to recover back the money, that it was not true as a matter of law that a party taking a cheque at any fixed time after date does so at his peril, though the taking an overdue cheque is a circumstance which the jury may take into consideration in determining whether the defendants took the cheque under circumstances which ought to have excited the suspicions of prudent men. This last decision was followed in London and County Banking Co. v. Groome, 8 Q. B. D. 288; 51 L. J. Q. B. D. 224; 46 L. T. N. S. 60; 30 W. R. 382, where the question for the jury was considered to be whether the holder took the cheque under such circumstances as ought reasonably to have excited his suspicion, and that the lapse of time between the date of the cheque and the transfer was a circumstance to be taken into their consideration in coming to a conclusion on that question; see also Serrell v. Derbyshire, &c., Railway Co., 9 C. B. at p. 826. A cheque does not take effect till delivery, sect. 21; so the drawer cannot, by ante-dating it, say that it is overdue; Cowing v. Altman, 27 Am. Rep. 70; following Boehm v. Stirling, 7 T. R. 423. In America it is said that a cheque found in the hands of the payee or a third person fourteen months after its date, in the absence of explanation, is discredited, and will be treated as overdue and dishonoured, whether actually presented or not, Cowing v. Altman, 27 Am. Rep. 70. As to the meaning of "good faith," and as to what constitutes negligence in taking a negotiable instrument, see sect. 90. Duties of the Banker arising out of his relation to his Customer. "A banker is bound," says Jessel, M.R., in Hopkinson v. Forster, L. R. 19 Eq. at p. 76, "by his contract with his customer, to honour his cheque when he has sufficient funds in hand." The relation between a banker and his customer is that the banker receives money from his customer on condition of paying it back, when asked or when drawn upon by his customer; the relation is merely one of debtor and creditor, Foley v. Hill, 2 H. L. C. at p. 43. Money in the hands of a banker is merely money lent, with the superadded obligation that it is to be paid back when called for by the draft of the customer, Pott v. Clegg, 16 M. & W. 321. So also per Cockburn, C.J., in Goodwin v. Robarts, L. R. 10 Ex. at p. 351; Atna Bank v. Fourth National Bank, 46 N. Y. Rep. 82. In Whitaker v. The Bank of England, 6 C. & P. 709, Parke, B., told the jury that the real question (in an action for not paying a bill) was, whether the plaintiff had a sufficient balance at the bank at a reasonable hour before the bill was presented and dishonoured. Such then is the ordinary duty that a banker owes to his customer; and if the banker dishonours a customer's cheque without sufficient cause, the banker renders himself liable to an action by the customer, in which the jury may give substantial damages, as the injury thereby caused to the customer's credit, especially if he is a trader, must be very great, Marzetti v. Williams, 1 B. & Ad. 415; per Williams, J., in Rolin v. Stewart, 14 C. B. 595; Hopkinson v. Forster, L. R. 19 Eq. at p. 76. This duty of the banker may be S. 74. Presentment of cheques for payment. S. 74. Presentment of cheques for payment. varied by agreement, or by a course of dealing amounting to an agreement, Kymer v. Laurie, 18 L. J. Q. B. 218 (Patteson and Erle, J.J.); Cumming v. Shand, 5 H. & N. 95; 29 L. J. Ex. 129. But a banker must refuse to honour a cheque when he knows that the customer holds such funds as trustee, and that the cheque was to the knowledge of the banker drawn to pay a debt due from him personally, such a discharge of the debt being a misapplication of the funds, the banker being cognizant of it, Gray v. Johnston, L. R. 3 H. L. 1. But a mere suspicion that the customer meditates a breach of trust would not warrant the banker in dishonouring the cheque, the banker not being interested in the transaction; per Lord Westbury, at p. 14. A bank cannot refuse to cash a cheque for an executor merely on the ground that the estate is insolvent, and that the bank had a supposed claim upon the money in its hands, Ireland v. North of Scotland Banking Co., Court of Sess. Cas. 4th Series, vol. 8, 215. Where a customer has accounts at two branches of the same bank, the customer must be taken to know the state of each account; and where his balance at one branch is just equal to a deficiency at the other, the branch, at which there is a balance, may refuse to honour his cheques on account of his indebtedness at the other branch, Garnett v. McKewan, L. R. 8 Ex. 10. Payment of Cheques. A banker can tender one shilling in bronze coins, forty shillings in silver coins, and for any sum above 40s. and under £5, he must tender in gold, and for £5 and upwards he can tender in gold or (by 3 & 4 Will. 4, c. 98, s. 6) in Bank of England notes, except where the banker is the Bank of England, when, if the person wishes it, the Bank must pay in gold, and not in notes. See 33 & 34 Vict. c. 10, s. 4. A banker, however, usually asks the person presenting the cheque how he will take payment, whether in notes or gold, but of course he may accept payment in other ways, though if he does the drawer is discharged, Smith v. Ferrand, 7 B. & C. 19; for instance, he may take a bill of exchange, which means a good bill, Puckford v. Maxwell, 6 T. R. 52. But it must be remembered that in this latter case the rules as to presentment for acceptance and payment laid down in sects. 39 to 46 of this Act must be complied with in order to retain a remedy against the banker. As to whether a banker would be justified in paying a cheque in part, not having sufficient funds to pay it in full, see Grant's Law of Bankers, 4th Ed., 43; and a contrary opinion in Parsons on Bills, vol. 2, p. 78. Forged and Altered Cheques. See on this subject sect. 24, and the notes thereto. Formerly a banker paying a cheque on a forged signature could not charge his customer with the payment; but now the rule is so far relaxed that S. 74. Presentment of cheques for payment. K |