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not be complied with. It seems to me, that if he had presented the cheque for payment, or had told Reader to put the amount to his credit, and Reader had assented to that, there might be ground for this action; but, according to the facts of this case, the plaintiff took this bill and paid it into his bankers, subject to every rule and liability that other bills are. Instead of notice of dishonour, therefore, coming too late, it came to the plaintiff sooner than there was any occasion for; it having been held, that by usage, a banker receiving a cheque on one day is not bound to present it for payment till the following day, and that the plaintiff's being a customer of the defendants made no difference. [Note. But see as to city bankers, Brooker v. R. B. B. (Bankers' Mag., vol. xi., p. 362).] Kilsby v. Williams (5 Barnewall and Alderson, 815). So that there is no ground of complaint against the defendants in that respect. In that last case much was said, especially by Mr. Justice Bayley, which might appear to be in favour of the argument urged for the plaintiff, that he, being a customer of the defendants, they were bound to acquaint him with the state of Matson's accounts; but it seems to me, that they must be considered as having taken it as a bill paid in by the plaintiff, and received by them as his agents, subject to the same consequences as if it had been drawn on some other banker than themselves." See also Pollard v. Ogden (22 L. J. (Q.B.) 439).
12. Bankers may recover back money paid by them on a cheque given to a party who knew the drawer was insolvent and had no funds in their hands, provided they were ignorant of these facts.
This appears to have been decided in the case of Martin v. Morgan (Gow. 128), where Chief Justice Dallas said "The question then which may alter the case, and which possibly may be involved in some doubt, is whether the defendants, by demanding payment of the cheque, with a full knowledge that the plaintiffs (the bankers) had no funds in their hands, and under a consciousness of the probable insolvency of Burmester & Co., have a right to retain the money paid against the plaintiffs (the bankers) who made the payment under an ignorance of the real circumstances of the case. The strong inclination of my opinion is, that the plaintiffs are entitled to recover." The case afterwards came before the Court of Common Pleas, when the bankers were held to be entitled to recover.
It must be observed, however, that the cheque in question was post-dated, and therefore void; and it is not quite clear whether the Court would have considered the other facts sufficient to entitle the bankers to recover, although the language of the Court appears sufficiently strong to justify such a conclusion.
13. Of cheques cancelled by a banker by mistake.
By the usage of trade in London, a cheque may be retained by the banker on whom it is drawn till five in the afternoon of the day on which it is presented for payment, and then returned, although it has previously been cancelled by mistake. Fernandez v. Glynn (London sittings after M. T., 47 Geo. 3) (1 Campbell, 426). Plaintiff paid into the house of Vere & Co. a cheque upon defendant's house; Vere's clerk took it to the clearing-house to be paid, and put it into defendant's drawer. Each banker has a drawer there for that purpose. The time for putting in the cheques is from three to four. Vere's clerk received it back before five, cancelled, with a memorandum written under it "cancelled by mistake." After five he would not have taken it back. The course was proved to be for the clerks to take the cheques from the drawers, and send them to the respective bankers, and those which they will not pay they send back before five. They are sometimes cancelled when they come. By the custom, they may be returned any time before 5 o'clock. In this case several cheques of the same person had been paid on that day, and when the cheque in question was sent in, the clerk who received it immediately cancelled it, believing it was to be paid; but finding in a few minutes that no more of those cheques were to be paid, he wrote the memorandum under it, and it was returned as above stated. Lord Ellenborough
held that, notwithstanding the cancelling, defendant had till 5 o'clock to return the bill, and having so returned it, this amounted to a refusal to pay.
In a late case A. was the holder of a foreign bill drawn upon B., payable at the banking-house of C.; on the morning when the bill became due, D., as A.'s banker, took the bill to the clearinghouse in London, and put it into C.'s drawer. C. having examined the bill, and having funds of B.'s in his hands at the time, cancelled the acceptance by drawing lines across B.'s name, without rendering the acceptance illegible. In the course of the day, B. finding himself to be insolvent, ordered C. not to pay the bill, whereupon C. wrote thereon "cancelled by mistake-orders not to pay," and the bill was returned in this state to D. at the clearing-house before the settling hour. It is the usage in the trade in London so to cancel bills intended to be paid, and where a cancellation has occurred through mistake, to indicate the same by writing on the bill. Held (by the Court of Common Pleas), that under these circumstances no legal liability was cast upon C., from which a promise could be inferred that he would pay the amount of the bill, or return it without having cancelled or destroyed the acceptance. That the duty cast C. was no more than to take due care of the bill, and if he did not choose to pay it to return it uncancelled, unless it had been cancelled by mistake, and in that case to indicate the same by
writing on the bill. That C did use due care to prevent the acceptance from being defaced. That the acceptance was an acceptance defaced and cancelled in point of fact, but that it was an acceptance cancelled by mistake. Semble, that a banker who omits to return or deface a bill, is not in all cases under an obligation to pay the amount. But, semble, if he do so wrongfully, he becomes liable to an action on the case, if the holder has sustained damage by his breach of duty. Held, also, that under the circumstances above stated, A could not sue C for money had and received: Warwick v. Rogers (5 Manning and Granger, 340).
14. Death of Drawer.
A banker is not justified in paying a cheque which is presented after the banker has received notice that the drawer is dead: Bac., Ab. "Authority, E.;" Blades v. Free (9 B. & C. 167). But, until the banker has received notice of the death, he is entitled to pay and be allowed cheques presented after the death of the drawer: Rogerson v. Ladbroke (7 Moo. 412).
15. Of the coin in which a cheque must be paid.
Copper is a legal tender up to two pence. Silver is a legal tender up to 40s., and gold is a legal tender up to £5, and beyond £5, Bank of England notes are a legal tender, except at the Bank