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6. Time to present a cheque when a banker is
It has been decided that the holder of a London cheque cannot gain an extra day for presentation by paying the cheque into his bankers, instead of presenting it himself: Alexander v. Birchfield (3 Scott, 555).
This case is hardly to be relied upon now, for since the time when it was decided, the practice of employing a banker has become much more general, and the crossing of cheques has been recognised by the Legislature. It may, therefore, be contended that there is now a custom authorizing the employment of a banker with its attendant consequences. At all events, the Court in that case said: "The party who receives the cheque may always protect himself against any danger "from the insolvency of the drawee, where he "intends the cheque to pass through his bankers, "by stipulating that the bankers' names should "be crossed upon the cheque." If the drawer should himself cross the cheque, that would certainly amount to an agreement on his part that it should be presented through a banker.
In Bodington v. Schlencker (4 Barnewall and Adolphus, 752), an attempt was made to limit the time allowed to present a cheque through a banker, but it did not succeed.
See also Hare v. Henty (30 L. J. (C.P.) 302), Prideaux v. Criddle (20 L. T., 695); and see the subsequent chapter on "The Banker."
7. Holder will not discharge the drawer by delaying the presentation for any period within six
years, unless the drawer has sustained loss by the delay.
The drawer of a cheque is liable to the holder at any distance of time within six years from the date, unless he sustain a loss from the non-presentment of the cheque.
Serle v. Norton (2 Moody and Robinson's Reports, 401), Robinson v. Hawksford (15 L. J. (Q.B.) 377), Hopkins v. Wace (Law Rep., 4 Ex. 264), Law v. Rand (27 L. J. (C.P.) 76). If the cheque should not be presented for six years from the date, the Statute of Limitations would be a bar to any claim against the drawer.
8. Indorsers and transferrors of cheques.
The indorser of a cheque will be liable to the holder, provided the cheque be duly presented, and notice of the dishonour be given. A transferror who does not indorse, will only be liable to the immediate party to whom he transferred.
9. Circumstances under which the holder has been held entitled to receive payment of cheque from the assignees of the banker, after his failure.
Certain parties drew cheques on their bankers, with whom their accounts were already overdrawn, and paid away the cheques, which came to the hands of other bankers. The second
bankers remit to the first the cheques in a printed circular, desiring the amount to be paid to the London correspondent of the second bankers. Notwithstanding this circular, the custom between bankers is to pay one another's cheques by remittances of notes of the bankers sending the cheques direct to those bankers; the understanding being that the cheques should be paid on the day on which they are received, or the day following, either by such remits, or by remits according to the directions of the circular. The first bankers gave the second credit in their books for the amount of the cheques, but became bankrupt three days after receiving them, and without having made any payment or remittances in respect of them, knowing, at the time of receiving the cheques, that bankruptcy was inevitable. The assignees of the first bankers obtained payment from the customers of the full amount of the cheques. Held, that the second bankers were entitled to payment in full of the same amount, out of the bankrupts' estate: Ex parte Cole, Re Wise (3 Montague, Deacon, and De Gex, 189). Where a firm paid a cheque into a branch bank in India, to their current account, after the stoppage of the head bank in England, and before the branch had notice of that stoppage, but on the same day the branch received notice of the stoppage, and they stopped. it was held that payment of the cheque in full could not be made: Re Agra, &c. (36 L. J. (Ch.) 151).
10. Effect of losing a cheque.
If the holder of a cheque lose it, it will be difficult for him to recover the amount. See Lubbock v. Tribe (Horne and Hurlstone's Reports, 160, and supra, page 25).
But it seems that he ought to give immediate notice of the loss to the drawer; and then, in the event of finding the cheque, he may have a remedy against the drawers, although the bankers have failed. In Sebay v. Abithol (4 Maule and Selwyn, 462), a bill payable at a banker's was lost, and the holder gave notice thereof to the drawer, and after great delay the bill was found, and the holder was held entitled to recover, although the bankers had failed in the interval, with funds of the drawer.
Mr. Justice Le Blanc there said-"If we admit the effect of making this acceptance payable at a particular banker's was to make it a draft or cheque upon the banker, and according to this view of the case that the holder would in general be guilty of laches if he did not present it at the banker's within a reasonable time, yet in this case, where the bill was mislaid, and the acceptor had notice of that circumstance as much as fourteen or fifteen months after the time when it ought to have been forthcoming, he was no longer bound to keep funds at his bankers to answer the acceptance. Therefore, it cannot be imputed to the holder that he was the cause of
this loss, or had made the bill his own by laches; and on this view of the case alone I found my opinion. For, admitting that the defendant is to be considered as the holder of a banker's cheque, yet, when he gave notice that it was lost, the plaintiff was at liberty to withdraw his funds if he had pleased; and, therefore, he shall not be allowed to make the loss arising from the insolvency of his own bankers the other's loss."
11. Notice of the dishonour of a cheque.
Notice of the dishonour of a cheque ought to be given in the same manner as in the case of a bill of exchange: Bailey v. Bodenham (10 L. T., 422). When the drawer has no funds at the bankers to meet the cheque, he will not be entitled to any notice: Thomas v. Fenton (5 Dowling and Loundes, 28); Jackson v. Carrington (2 Car. and K., 750). See also ch. 2, par. 2. The holder is not obliged to give notice to the drawer of a dishonoured cheque, in order to charge the party from whom such holder received it. He does enough if he gives due notice of its dishonour to those only against whom he seeks his remedy: Rickford v. Ridge (2 Campbell, 537). The following form of a notice will save all disputes in point of form, if it be adopted :--
"SIR--I hereby give you notice that the cheque