lently to obtain goods, by giving in payment a cheque upon a banker with whom the party keeps no cash, and which he knows will not be paid."

This case was followed in R. v. Parker (Moody's Crown Cases, vol. ii. p. 44), and there is now no doubt upon the subject.

It is not intended in this work to treat of other criminal offences in regard to cheques.

CHAPTER X.

1. Cheques as tender.

2. 1s donatio mortis causa. 3. As a gift inter vivos. 4. As a will.

5. As an appointment.
6. Exchange of cheques.
7. Receiver's account.

1. Cheques as a tender.

THERE are two cases on the subject of cheques as a tender. The first of them is known by the name of Wilby v. Warren, and occurred at the Court of King's Bench, Middlesex sittings after Michaelmas Term, in the 28th year of the reign of Geo. 3, and is reported in a note to "Tidd's Practice," ninth edition, p. 187. This report is very meagre, and contains no particulars of the facts or reasons; but, after stating that bank notes not objected to were ruled to be a good tender, it is added, per Buller, in Wilby v. Warren, that he "held the same doctrine applied to a draft on a banker." A case decided in 1840 by

Mr. Justice Coleridge, after argument, has confirmed Wilby v. Warren. The case referred to is that of Jones v. Arthur, reported in 8 Dowling's Practice Cases, and 4 Jurist, 859. There the defendant pleaded a tender, and on it issue was joined. The evidence to support the tender was a letter written by the defendant to the plaintiff containing a cheque for £5. It was stated in the letter that £5 was the right amount; and the writer required a receipt in acknowledgment. The plaintiff returned the cheque enclosed in a letter, in which he stated that he would not receive £5; and he requested to have a cheque for £5. 7s. 6d. There was no objection to the tender on the ground of its being in the form of a cheque; and it was proved at the trial only £5 was due. The jury, under the judge's direction, found that no tender had been made; and the defendant applied to the Court for a new trial. The application for the new trial was granted by Mr. Justice Coleridge, who said-"It appears to me that the plaintiff waived all objections to the nature of the tender in this case; he objected, not to the nature of the thing tendered, but to the amount."

The offer of a cheque on a banker at a town where the estate of a bankrupt has no banker, is not a proper tender by a creditor's assignee to the official assignee: Ex parte Cunliffe (1 De Gex, 408).

2.

Cheques as donatio mortis causa.

A gift of a cheque was held not to be donatio mortis causa; and therefore it should be paid in the lifetime of the donor, or before the banker has notice of his death: see Tate v. Hilbert (2 Vesey, jun., 111).

In a recent case, Reddell v. Dobree (10 Simons, 244), the facts were as follows:-A. being in a declining state of health, delivered to B. a locked cash-box, containing money for herself, and entirely at her disposal after he was gone; but that he should want it every three months while he lived.

The box was twice delivered to A., by his desire, and he delivered it again to B.; and it was in her possession at his death. The key had a piece of bone attached to it, with B.'s name written on it; but A.'s son refused to deliver it to B. after A.'s death. B. broke open the box, which contained a cheque for £500, drawn by C. in favour of A., and enclosed in a cover indorsed with B.'s name.

The Vice-Chancellor of England held that this was not a valid donatio mortis causa; and that B. had no right to the cheque.

It will be observed, that in this case the giver did not part with the possession of the key of the box which contained the cheque.

See further: Bouts v. Ellis (22 L. J. (Ch.) 716) ; Veal v. Veal (36 L. T. 229); Williams v. Davies (33 L. J. (Prob. C.) 127).

3. Cheques as a gift inter vivos.

The drawer of a cheque gave it to the payee who presented it to the bankers, but they refused payment on account of some variation from the usual signature. On the next day, and the cheque being still uncashed, the drawer died. It was held that as the donor and donee had done all they could to make the gift complete, and that it did not take effect solely from the act of the banker, that it was an actual gift and must be paid out of the estate of the drawer: Bromley v. Bruntom (37 L. J. (Ch.) 902).

4. Cheques as a will.

In the case of Bartholomew v. Henley (3 Phillim. 317), it was held that a cheque could be proved as a will; but now, if intended so to operate, it must be signed in the presence of and attested by two witnesses: Gladstone v. Tempest (2 Curtis, 650).

5. Cheques as an appointment.

Where the donee of a power exerciseable by any instrument in writing has the fund lying at a banker's, a cheque drawn upon the banker would be a good appointment: Brodrick v. Brown (1 Kay & J. 328).

6. Exchange of Cheques.

The defendant gave a cheque to C., and received from him a counter cheque, on the understanding