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breach of duty by the defendant, and I can conceive many cases of inconvenience that would arise by the conversion of a cheque into money. But here the cheque was considered as money from the commencement": Wilkinson v. Godefroy (3 Perry and Davison's Reports, 413; 9 Adolphus and Ellis, 536).
In another case, in which a somewhat similar question arose, the Court said—" The principle to be extracted from all the cases is, that, where the thing is immediately convertible into money, and has been treated as such, it may be sued for accordingly. In the present case, it was left to the jury to say whether the cheque had been treated as money. They found that it had, and there is no doubt but that their finding was correct": Spratt v. Hobhouse (12 Moore, 402).
2. Of cashing a cheque after bankruptcy or insolvency of drawer.
The holder of a cheque has no right to get it cashed if he has received notice that the drawer has committed an act of bankruptcy; and it has also been held that he has no right to get a cheque cashed by the bankers, when he knows the drawer is insolvent, and has no funds at the bankers, and the bankers can recover from him the amount of a cheque they may have so paid: Martin v. Morgan (1 Gow. 123).
3. Right of holder to obtain payment of cheque from transferror which has not been presented in due time, and banker has failed, and the failure is unknown to the transferror.
A., on Tuesday, the 17th November, applied to B. to change a cheque for £10. 10s., drawn by C. on certain bankers. B. did so, and kept the cheque till the following Saturday, the 21st of November, when he paid it to his bankers for collection. On Monday, the 23rd of November, the bankers upon whom the cheque was drawn stopped payment, and the cheque was not paid by them.
On the evening of that day B. told A. the cheque had been returned, but concealed the fact that the bankers had stopped payment, which A. did not know. A. thereupon gave B. £5, and an I.O.U. for £5. 10s., and took back the cheque. It was proved that C. had funds in the hands of the bankers upon whom the cheque was drawn at the time they stopped payment. It was decided that the suppression by B. of the fact that the bankers had stopped payment, and the statement that the cheque had been returned, amounted to such a fraud upon A., as would entitle him to recover back the £5, in an action for money had and received: Billing v. Ries (Carrington and Marsham's Reports, p. 26). So, if a banker should give an accountable receipt for a cheque which is dishonoured, he cannot be made liable on such receipt: Timmis v. Gibbins (21 L. J. (Q.B.) 403).
4 Time to present a cheque under ordinary
The holder of a cheque should, in general, present it for payment within the day after it is received, if he reside in the same place as the banker upon whom it is drawn; otherwise, if the banker fail with funds of the drawers, the holder will have to bear the loss: Rickford v. Ridge (2 Campbell, 537), Moule v. Brown (Arnold, 79), Beeching v. Gower (Holt, 315), and Alexander v. Birchfield (3 Scott, 555).
5. Time to present, and manner of presenting, cheque when parties live in different places.
A cheque for £4,700, drawn upon the Lutterworth Bank, was given to A., at Lutterworth, on the 20th of April, after banking hours, in payment for an estate. A., who lived three miles from Lutterworth, immediately handed the cheque to B., to be placed to A.'s account at the Rugby Bank. Rugby is six miles from Lutterworth. On the arrival of the cheque the same day at Rugby, the Rugby Bank had closed; but the cheque was deposited with one of the partners of that bank for the night, and in the morning of the 21st of April it was paid into the bank, and on the same day transmitted by post to the Lutterworth bankers, with directions to send the amount to London. The Lutterworth bankers received the
cheque early on the 22nd, and at half-past 1 on that day stopped payment. Held, that A.'s course of proceeding was reasonable, and the presentment of the cheque was in time to prevent it becoming his: Bond v. Warden (1 Coll. C. C. 583).
The case of Moule v. Brown (Arnold, 79) contains much interesting discussion on this point.
It was an action by the public officer of the North Wilts Banking Company, upon a cheque drawn on Moger & Co., bankers at Bath, and cashed by the North Wilts Bank for the defendant. The declaration contained the usual averment that the cheque had been duly presented and dishonoured. The second plea traversed this averment.
At the trial before Patteson, J., at the last Wiltshire assizes, it appeared that the cheque had been cashed on the 28th March, at Malmesbury, where there was a branch office of the North Wilts Bank; that, on the same day, the cheque was forwarded to the chief office at Melksham (about eighteen miles distant from Malmesbury), where it was kept till the 30th, on which night it was sent by a private hand to Bath (about twelve miles distant from Melksham), and that it was presented to Moger & Co. on the 31st, and was dishonoured.
It was also shown that it was the course of business of the North Wilts Bank to transmit cheques which had been paid into the branch bank, to the principal office. The question was, whether there had been any laches on the part
of the North Wilts Bank. Patteson, J., was of opinion that there had been, and consequently directed the jury to find for the defendant upon. that issue; they found, however, a verdict for the plaintiff. On application to the Court, the verdict was set aside, and Tindal, C.J., said: There is no doubt that when a party is bound to give notice of dishonour, and he has not done so within the ordinary time, it is competent to him to show the existence of any particular facts which would take the case out of the general rule; such, for instance, as that he could not find the person to whom the notice was to be given; but it is incumbent on the party who seeks to escape from the rule, clearly to establish the existence of such facts. I do not see anything in this case to take it out of the general rule that has been established by a variety of decisions, viz., that the holder of a cheque ought to present it on the following day from that on which he receives it. That rule was established in Robson v. Bennett (2 Taunt. 388), and has been recently confirmed in Boddington v. Schlencker. On the authority, therefore, of these cases, I am of opinion that there has been laches in this instance on the part of the North Wilts Bank."
The other judges concurred. (Arnold's Reports, 1838, p. 79; N. C. 266; 5 Scott, 694).
Moule v. Browne
C. P. 4 Bing.