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date (appearing of course upon it) is in the position suggested, is established beyond all doubt; and the reason of the rule is, that, inasmuch as these instruments are usually current only during the period before they become payable, and their negotiation after that period is out of the usual and ordinary course of dealing, that circumstance is sufficient of itself to excite so much suspicion that, as a rule of law, the indorsee must take it on the credit of and can stand in no better position than the indorser: Brown v. Davies. (1) But, with regard to cheques, no such rule has been laid down (the case of Down v. Halling (2), as I shall shew presently, not amounting, I think, to any such decision); and there is more than one case in which that proposition has been denied or doubted.

In Rothschild v. Corney (3) the action was brought by the maker of the cheque to recover the amount from the defendant, who had obtained cash for it. The cheque was dated the 19th of January: it had been obtained from the plaintiff by the fraud of Brady, and Brady on the 24th (five days after date) handed it to the defendant, who cashed it bond fide, and afterwards presented it and received the amount from the plaintiff's bankers. At the trial the learned judge directed the jury, that, if they thought the circumstances of the case were such as ought to have excited the suspicions of prudent men, and that the defendant had not acted with reasonable caution, they should find a verdict for the plaintiff; otherwise, for the defendant. A rule was thereupon obtained for a new trial, on the ground that the judge ought to have directed the jury that the cheque was overdue and so had affected the defendant with the plaintiff's equities against Brady; but, after argument, in which Down v. Halling (1) was cited, the rule was discharged; Lord Tenterden saying that it could not be laid down as a matter of law that a party taking a cheque after any fixed time from its date does so at his peril, and Littledale, J., observing that, although the rule of law was so as to bills and promissory notes, it could not be applied to cheques.

In Serrell v. Derbyshire Railway Company (4) the cheque was dated the 13th of August, 1847, and was not presented until the 6th of October; and the case of Down v. Halling (2) was cited by Cresswell, J., for the proposition of Holroyd, J., viz., that the defendants, having taken the cheque more than five days, took it at their peril; and Byles, Serjt., saying that Down v. Halling (2) was not consistent with Rothschild v. Corney (3), Maule, J., said, "There is no such strict law as to cheques, that they must, as against the maker, under such circumstances be presented promptly;

(1) 3 T. R. 80.
(3) 9 B. & C. 388,

(2) 4 B. & C. 330.
(4) 9 C. B. 811.

but that, where a reasonable time has passed, they stand on the same footing as bills of exchange;" and he thought that the cheque in that particular case might practically be considered in the nature of an overdue bill, and, fraud being shewn in its inception, the onus was thrown upon the plaintiff of shewing how he got it.

Of course, even with regard to cheques, there is no doubt that in the ordinary course of business they are intended almost as cash, and for early if not prompt payment; and it is well known law that, as between the maker and payee, although there is no absolute duty to present a cheque promptly, that duty exists to such an extent that exact rules have been laid down beyond which the payee may not delay presentment, if he wish to avoid the consequence of any damage caused to the maker by the insolvency of the drawee, or otherwise; and, having regard to this duty, I have come to the conclusion that, looking to the peculiar circumstances of Down v. Halling (1), and the manner in which the matter was there treated, there is no such conflict between that case and the case of Rothschild v. Corney (2) as has been supposed. In Down v. Halling (1), the plaintiff sought to recover the amount of a cheque for £50, dated the 16th of November, 1824. He did not shew how the cheque got out of his hands; but it appeared that, on the evening of the 22nd, a woman unknown to the defendant bought at his shop goods worth £6. 10s., and tendered the cheque in payment, he paying her the difference. He presented the cheque on the following day, and received the amount. No evidence having been given by the plaintiff accounting for its having got out of his hands, the defendant claimed a nonsuit on that ground; but Lord Tenterden told the jury to find for the plaintiff, if they thought that the defendant had taken the cheque under circumstances which ought to have excited the suspicions of a prudent man; and, further (on the authority of Gill v. Cubitt (3), which has since been overruled), asked whether the defendant, although not acting fraudulently, had acted negligently in taking the cheque; and upon that direction the jury found a verdict for the plaintiff. Upon a rule having been obtained to set aside the verdict on the ground of misdirection, the Court supported the direction as to negligence, upon the authority of Gill v. Cubitt (3); and as to the rest Bayley, J., is reported to have said that, "if a cheque is taken after due, the party taking it can have no better title than the person from whom he took it;" and it is in this passage that he is supposed to lay that proposition down as a rule of law.

It must be recollected, however, that Lord Tenterden was also a party to the decision in Rothschild v. Corney (2), and could not (2) 9 B. & C. 388,

(1) 4 B. & C. 330.

(3) 3 B. & C. 466,

have intended to hold in that case, contrary to the recent decision in Down v. Halling (1); and if the language of Holyroyd, J., is looked at, where he says that five days ought to have excited the defendant's suspicion, and that in the case before him a reasonable time had elapsed, I think the true result of Down v. Halling (1) is, that the Court decided the case rather upon the peculiar facts of that case than as intending to lay down any strict rule of law. In Serrell v. Derbyshire Railway Company (2), Maule, J., says that perhaps the two cases may be reconciled; and upon my view of the true ground of the decision in Down v. Halling (1), I have been able to come to the same conclusion.

I should, therefore, under ordinary circumstances, have contented myself with giving judgment for the plaintiffs; but I think that, assuming this to be the true view of Down v. Halling (1), it follows from that as well from the other cases that, the real question for the jury being whether the cheque in the present case was taken by the plaintiffs under such circumstances as ought to have excited their suspicion, and the lapse of eight days being, although not conclusive, a circumstance to be taken into consideration by them in coming to a conclusion on that question, I ought to have left it to the jury. I should, indeed, have done it so if I had understood that Mr. Talfourd Salter had wished it; but from what passed on the argument, I think there may have been some misunderstanding on my part in the matter. Undoubtedly, however, that question has not been put to the jury, and the defendant is entitled to have it put if he so wishes. I, therefore, give judgment for the plaintiffs with costs, subject to the condition that, if the defendant elect within ten days after notice of my judgment to have a new trial, he may do so, and in that event the costs of the former trial, and of the further consideration should abide the event of the second trial.

Rule accordingly. (3)

Solicitors for plaintiffs: White, Broughton, & White.
Solicitors for defendant: J. A Hales.

(1) 4 B. & C. 330.

(2) 9 C. B. 811.

J. S.

(3) The defendant not electing to take a new trial within the time spccified, the plaintiff signed judgment.

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