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wards, and was thus post-dated, because it was not intended that it should be presented for payment till the 18th, whereupon it was objected, that in effect this was a bill payable four days after date, and therefore ought to have been upon a stamp, otherwise the Stamp Act would be entirely evaded by drawing bills of the date on which they were intended to be payable. A rule for entering a nonsuit was made absolute.
In Whitwell v. Bennett (3 Bosanquet and Puller's Reports, 559), the cheque was post-dated, and it was objected for the defendant, that the draft, being post-dated, was void; and on the case coming before the Court of Queen's Bench, the counsel interested in maintaining the validity of the cheque, admitted that, after the case of Allen v. Keeves, it was impossible to contend that the cheque was valid.
Serle v. Norton (9 Meeson and Welsby, 309), was an action on a banker's cheque, dated March 19th, 1841, made by the defendant, which the plaintiff received from Wright (to whom he gave value for it), some days before the date which it bore. It was contended for the plaintiff that the cheque, though post-dated, was evidence to support a count in the declaration for money paid. The learned Judge thought otherwise, and directed a verdict for the defendant, giving the plaintiff leave to move to enter a verdict for him on the second count for the amount of the cheque. Counsel having moved accordingly—
Lord Abinger, C.B., said: "I think there is no ground for a rule. The case cited rests on a different principle. Suppose the case of a bond which was originally good, but was afterwards destroyed or altered, the party could not declare upon it, because he had made it void, as a security, by his consent: but it would still be evidence to show the nature of the transaction. Here the cheque could not be read at all; it was altogether void."
Alderson, B.-"This was a paper altogether inadmissible as evidence.”
Gurney, B., concurred.
In the case of Regina v. Taylor (1 Carrington and Kirwan's Reports, 213), it was held that a post-dated cheque came within the description of an order for the payment of money.
These cases were all decided before the introduction of the penny stamp. In Whistler v. Forster (32 Law J. (C.P.) 161), it was decided that a post-dated cheque payable to order on demand was not void, although a cheque payable to bearer on demand might be, one of the judges remarking, “Whether the drawer is subject to a penalty or to be sued for the difference of stamp duty, is a question upon which it is unnecessary to offer an opinion." In Emanuel v. Robarts and Others (17 Law Times 646), a post-dated cheque, payable to order, was refused payment by the bankers the day before it was dated and marked "post-dated," and again refused payment by them on the day
on which it was dated, the Court held they were justified and said:
"The finding of the County Court Judge is, that in the city of London there exists a custom amongst bankers not to pay cheques which are post-dated: and as, when such a cheque is presented, they give their reason for nonpayment by marking it as post-dated, so when the cheque afterwards comes again with the notification upon it that it was post-dated, they then have notice of the original defect and refuse payment. Taking the contract to be that cheques which are postdated will not be honoured, it is clear that the contract has not been broken by the defendant, and I am of opinion that the contract itself is not unreasonable."
It seems from this case that, independent of the Stamp Act, there is a valid custom amongst bankers not to pay a cheque which is post-dated, and this is therefore an additional reason against post-dating.
We shall give the clauses of the new Stamp Act on which we base our conclusions when we treat of the subject of the stamp.
4th. The name and address of the banker upon whom the cheque is drawn.
Under the old Stamp laws it was necessary that an unstamped cheque should be drawn upon a banker; Castleman v. Ray (2 Bosanquet and
Puller's Reports, 383), but under the new Stamp Act there is no difference in this respect between cheques and any other bills of exchange payable to bearer or order on demand. It may however be a question, whether it is not still necessary that cheques for less than 20s. should be drawn upon a banker. See 23 & 24 Vict., c. 111, s. 19. A cheque may be drawn upon a bank where the drawer has no account where it is intended to operate as a security for a loan from the banker to the drawer. Cobb v. Snowden (13 Law Times,
5th. As to the person in whose favour the
The person in whose favour the cheque is drawn is called the payee; but it does not appear to be necessary that in a cheque payable to bearer there should be any payee, and in practice such a cheque is often made payable to some particular account, or to a number or a letter. In case the cheque is payable to order, there must be a payee who must also indorse, but we apprehend that the lawful holder of a blank cheque payable to order, may fill in his own name as payee.
6th. The words or bearer," or order."
These words which were formerly necessary (Rex v. Yates, 1 Ryan & M., C.C., 170), are not required any longer, and a cheque may now be payable to a particular person only. 33 & 34 Vict., c. 97.
When the cheque contains the words "or order," the banker is not responsible if he should. pay a forged indorsement. See 16 & 17 Vict., c. 59, s. 19, which is still in force although the greater part of that Act has been repealed; and see the subsequent chapter on the "The Banker" upon whom a cheque is drawn. A cheque although payable to A. B. "or bearer" may be indorsed by A. B., and in the event of its being dishonoured the holder may sue A. B. as indorser. Keene v. Beard, 36 Law Times, 240.
7th. The sum payable.
The 23 & 24 Vict., c. 111, s. 19, provides that notwithstanding anything in any Act of Parliament contained to the contrary, it shall be lawful for any person to draw upon his banker who shall bona fide hold money to or for his use any draft or order for the payment to the bearer or to order on demand of any sum of money less than 20s.
8th. Of the time when the cheque is payable. The words "on demand" are seldom inserted in practice in the cheque. The legal effect of an instrument of this kind, in which no period of payment is named, is that it is payable on demand, and therefore it is unnecessary so to express it. In America where there are no stamp laws, cheques are post-dated, or made payable at a certain time after date, and are still considered to be governed by the rules relating to cheques, and