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S. 73.

Cheque de-
Gined.

ledge of its having been post-dated, such cheque only having a penny stamp upon it, it was held that he could sue upon it, and that it was admissible in evidence, the question being, is the stamp sufficient upon the face of the instrument? Bull v. O'Sullivan, L. R. 6 Q. B. 209; 40 L. J. Q. B. 141; Gatty v. Fry, 2 Ex. D. 265; 36 L. T. N. S. 152.

(6) In the decisions prior to this act cheques were always considered as analogous to bills of exchange ;“ a cheque is a bill of exchange payable at a bankers,” per Jessel, M.R., in Hopkinson v. Forster, L. R. 19 Eq. at p. 76; Cruger v. Armstrong, 3 John. Cas. 5 ; see also Keene v. Beard, 8 C. B. N. S. 372; 29 L. J. C. P. 287; Deener v. Brown, 28 Amer. Rep. 602, note; British Linen Co. Bank v. Carruthers, Court of Sess. Cas., 4th Ser., vol. 10, at p. 926. The following are some of the differences between cheques and bills of exchange:

(1.) A banker does not generally accept a cheque, per Erle, C.J., in Keene v.

Beard, supra; the reason being that the banker is the debtor of his customer to the extent of the funds that he holds on his customer's account, with the obligation imposed upon him arising out of the custom of bankers of honouring his customer's drafts, so that he has no option but to pay his customer's cheques to the extent of his customer's funds, Foley v. Hill, 2 H. L. C. 28. The bank only acts as the agent for the depositor, and so under ordinary circumstances owes no duty to the holder of a cheque, and is liable to no action by him for refusing to pay it, although it has sufficient funds for the purpose, as there is no privity between them, Schroeder v. Central Bank of London, 34 L. T. N. S. 735; 24 W. R. 710; unless the bank has, so to speak, accepted it by marking it, and communicated such marking to the holder, Warwick v. Rogers, 5 M. & G. 340; see also observations of Parke, B., in Bellamy v. Marjoribanks, 7 Ex. at p. 404; see also the American cases (which are contradictory, though on the whole they agree with the English cases), collected in Parsons on Notes and Bills, vol. 2, p. 61, note (j). It is said in Parsons, vol. 2, at p. 61, that “while, therefore, we admit that a bank may be liable in a proper action to a holder of a cheque for a wanton or fraudulent refusal to pay the cheque, whereby the holder lost the funds, we should say that only in such cases could any action be maintained against the bank for the refusal.” In Risley v. Phoenix Bank, 83 N. Y. Rep. 318, it was held that a verbal promise to pay a cheque created no cause of action. See also Security Bank v. National Bank, 23 Amer. Rep. 129; 67 N. Y. Rep. 458, where it is said that a bank, by certifying a cheque, undertakes that the signature of the drawer is genuine, and that there are sufficient funds to meet it, and engages that they will not be withdrawn to the prejudice of the holder, but does not warrant the genuineness of the body of the cheque. Such “ marking” occurs frequently between bankers in the case of cheques paid in after clearing time, as to which see sect. 74 note (a), but not as between bankers and private persons.

SS. 73, 74.

Cheque defined.

(2.) The drawer of a cheque is only discharged by the holder making delay in presenting it for payment, when he has thereby suffered damage, and then to the extent of such damage, see next section, and the notes thereto.

(3.) Notice of the death of the drawer of a cheque is a determination of the authority of the banker to pay it. This is dealt with in sect. 75, sub-sect. 2, and note thereto. As to a banker paying a cheque in ignorance of the drawer's death, see note to sect. 75, sub-sect. 2.

(4.) A cheque is supposed to be drawn against funds. It was at one time thought that a cheque was an appropriation of so much money of the drawer's in the hands of the banker upon whom it was drawn for the purpose of discharging a debt or liability of the drawer to the payee. The case of Hopkinson v. Forster, L. R. 19 Eq. 74 ; 23 W. R. 301, however, decided that a cheque was not an equitable assignment of money in the hands of a banker. This was followed and approved in Schroeder v. Central Bank, 34 L. T. N. S. 735; 24 W. R. 710. And sect. 53, sub-sect. 1, of this Act now provides that a cheque is not an appropriation of a particular sum of money, except in Scotland, where, if the drawee has in hand funds available for the payment thereof, the bill operates as an assignment of the sum for which it is drawn in favour of the holder, from the time when the bill is presented to the drawee; sect. 53, sub-sect. 2, and the notes thereto. The law is the same in America ; Lunt v. Bank of North America, 49 Barb. 221.

74.-Subject to the provisions of this Act

Presentment of (1.) Where a cheque is not presented (a) for payment cheque for within a reasonable time of its issue (b), and the drawer Ind. Act, s. 73. or the person on whose account it is drawn had the right at the time of such presentment, as between him and the banker, to have the cheque paid, and suffers actual damage through the delay, he is discharged to the extent Ind. Act, s. 72. of such damage, that is to say, to the extent to which such drawer or person is a creditor of such banker to a larger amount than he would have been had such cheque been paid (c).

(2) In determining what is a reasonable time regard Ind. Act, s. 105. shall be had to the nature of the instrument, the usage of trade and of bankers, and the facts of the particular case (d).

(3) The holder of such cheque as to which such drawer or person is discharged shall be a creditor, in

S. 74. lieu of such drawer or person, of such banker to the Presentment of extent of such discharge, and entitled to recover the cheque for

amount from him. payment.

(a) Banking hours in London are from 9 a.m. to 4 p.m., and on Saturdays from 9 a.m. to 3 p.m., during which hours cheques must be presented. Open, i.e. uncrossed, cheques are paid over the counter in large numbers, but crossed cheques are paid into the holder's bank, and presented by it. Instead of sending round to each bank upon which a cheque is drawn and presenting it there, the London bankers have established the Clearing House, where all cheques are sent, presentment there being a good presentment, Reynolds v. Chettle, 2 Camp. 596; Harris v. Packer, 3 Tyr. 370, n. The following account of the Clearing House has been furnished by the courtesy of a gentleman of high position in one of the leading London Banks. The Clearing House was established by private bankers, and the jointstock banks were afterwards admitted. The banks belonging to it are twenty-eight in number, no banks west of Temple Bar being admitted. Country bankers clear through their London correspondents. The Clearing House is a large room in which each bank using it has a certain number of seats, where its clearing clerks sit. All cheques received by one bank drawn upon other banks are entered at the receiving bank on a sheet against the name of the bank on which they are drawn; and between the hours of 10.30 and 11 a.m., and 2.30 and 3.55 p.m. (in the case of country cheques between 12 and 12.30 p.m.) these cheques are sent on to the Clearing House, and given to the clearing clerks of the banks on which they are drawn. Each clearing clerk enters the cheques drawn on his bank, and sends them on to his bank, when they are cancelled and retained, or returned the same day if there are no funds to meet them. At the close of the day the sheets of the different banks are compared and balances struck. An account is kept at the Bank of England called the Clearing Bankers' account, and if the balance is against any particular bank, that bank gives a cheque for such balance upon its private account at the Bank of England to the Clearing Bankers' account, by which means accounts are adjusted. When cheques are paid into a bank too late for clearing, it is the practice to send such cheques on to the banks on which they are drawn, where as a matter of courtesy between bankers they are “ marked” if intended to be paid. If so marked, the bank marking them is bound to pay them the next day when passed through the Clearing House, and in fact they are entered as paid when they are marked. This custom of marking cheques has, for some time, received judicial sanction; for instance in Robson v. Bennett, 2 Taunt., 388, where such marking was considered equivalent to an acceptance ; again, in Goodwin v. Robarts, L. R. 10 Ex. at p. 351, the Court said that a custom had grown up among bankers of “marking" cheques as good S. 74. for the purpose of clearance by which they became bound to one

Presentment of another (per Cockburn, C.J.). The name of the London agent on a

cheque for country cheque is put on for clearing purposes; and though it has payment. been held that presentment to the London agent is not sufficient (Bailey v. Bodenham, 16 C. B. N. 8. 288; 33 L. J. C. P. at p. 255), still if presented to him through the Clearing House in the customary manner, as is invariably the case, such presentment might now be held sufficient. A presentment must be made by some person authorised to receive the money for the cheque ; see sect. 45, subsect. 3. A presentment by post, however, may be made where authorised by agreement or usage; see sect. 45, sub-sect. 8, and the notes thereto. It would seem that presentment for payment is dispensed with in the case of the notorious stoppage of the bank on which the cheque is drawn, Byles on Bills, 13th Edit., 207; but under such circumstances the holder is only bound to give notice within a reasonable time after he has acquired the knowledge of the stoppage of the bank, and not, necessarily, before the expiration of time for presentment, Robson v. Oliver, 10 Q. B. 704 ; 16 L. J. Q. B. 437; see also Bowes v. Howe, 5 Taunt. 30; Camidge v. Allenby, 6 B. & C. 373; and Sands v. Clarke, 19 L. J. C. P. 84; Story on Notes, ss. 500, 502 ; but notice of such stoppage must be given within a reasonable time after the holder knows of the stoppage of the bank, with an offer to return the cheque; otherwise the holder elects to make the cheque bis own, and releases all parties except the drawer; see Rogers v. Langford, 1 Cr. & M. 637. Sect. 46, sub-sect. 2 (a) enacts that the fact that the holder has reason to believe that the bill will on presentment be dishonoured, does not dispense with the necessity for presentment. That section raises the question whether presentment is now necessary in the case of the notorious stoppage of the bank on which the cheque is drawn, and would seem to override the former law on the subject, as laid down by the cases already cited; but whether it does actually do so or not is doubtful, and in the absence of any judicial decision upon it, it is not necessary to express any definite opinion. As to cases to which that section does apply, see the notes to that section. Like a bill of exchange, presentment of a cheque for payment is excused, as against the drawer, by want of sufficient funds in the banker's hands to meet the cheque at the time when the drawer would expect the cheque to be presented, provided that the drawer had no reason to expect that it would be paid, Wirth v. Austin, L. R. 10 C. P. 689; Brush v. Barrett, 82 N. Y. Rep. 400; but not as against an indorser, Mohawk Bank v. Broderick, 10 Wend. 304; see also sect. 46, sub-sect. 2 (c) of this Act, and the notes thereto. Notice of dishonour to the drawer is dispensed with under similar circumstances, as to which see sect. 50, sub-sect. 2 (c. 4) of this Act, and the notes thereto; Carew v. Duckworth, L. R. 4 Ex. 313; Bickerdike v. Bollman,

S. 74. 2 Sm. L. C. 8th Ed., 51; 1 T. R. 405. The want of funds need not be

a total want of funds; want of sufficient funds to draw against is Presentment of cheques for

enough, the question being whether there were any such funds as the payment.

drawer might reasonably and properly draw against, with an expectation that the draft would be honoured ; Carew v. Duckworth, supra. The law was similarly laid down in 1843 in an elaborate judgment by Story, J., in In the matter of Brown, 2 Story R. at p. 516, cited in Story on Notes, at pp. 657–660; and also in Fletcher v. Pierson, 35 Amer. Rep. 214. Again, if the drawer has funds at his banker's sufficient to meet the cheque, but knows that the bankers will not pay the cheque, he is nevertheless entitled to notice of dishonour, Carew v. Duckworth, L. R. 4 Ex. at p. 319. But the holder must present the cheque under such circumstances, sect. 46, sub-sect. 2 (a) of this Act, and the notes thereto.

(b). As to the meaning of a “ reasonable time see note (d) to subsect. 2 of this section. As to the meaning of “Issue,” see sect. 2 of this Act and note (1) thereto.

(c) The drawer of a cheque is discharged by the fact of the cheque not being duly presented for payment only when he has sustained actual damage by the delay; e.g., by the failure of the bank on which the cheque is drawn, and then to the extent of such damage he is discharged; otherwise the holder does not lose his remedy against the drawer until barred at the end of six years, 2 Parsons on Bills, 74; Robinson v. Hawksford, 9 Q. B. 52; Little v. Phoenix Bank, 2 Hill N. Y. R. 425; Hopkins v. Ware, L. R. 4 Ex. 268, where it was held that a creditor, who, takes from his debtor's agent on account of the debt the cheque of the agent, is bound to present it for payment within a reasonable time; otherwise if the delay alters the debtor's position for the worse, the debtor is discharged, although he was not a party to the cheque; see also Alexander v. Burchfield, 7 M. & G. at p. 1067 ; Laws v. Rand, 3 C. B. N. S. 442; 27 L. J. C. P. 76. In a note to Serle v. Norton, 2 Moo. & Rob. 404, it is said :—" It is difficult to see how a solvent drawer, on a solvent banker, can be prejudiced by delay in the presentment of a cheque... But the refusal to pay by bankers may arise from other causes than their own insolvency. The drawer of the cheque may have become insolvent, or have withdrawn his account. Another reason for the bankers refusing to pay may be the staleness of the cheque, it being understood as a rule of business with regular bankers not to pay old cheques without inquiry;" and the note goes on to add that the holder must give the drawer an opportunity of authorising his bankers to pay it. The latter part of this sub-section is new. Formerly the drawer was absolutely discharged if the banker failed (but the holder could prove for the amount of the cheque against the banker's estate). Now, by the operation of this sub-section and sub-sect. 3, the drawer is discharged only to the extent of the damage he suffers, and the

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