perate damages as they may judge to be a reasonable compensation for the injury the plaintiff must have sustained from the dishonour of his check (w). But if the funds in the bankers' hands have been applied to the payment of the customer's acceptance, made payable at the bankers, though without any further authority, that is a defence to an action for dishonouring the check (x). CHAPTER ment. We have already observed, that checks are in legal effect Time of presentinland bills of exchange, payable to bearer on demand; and ment for paywe shall hereafter see, that an ordinary bill of exchange, payable on demand, must be presented for payment, or if the parties live at a distance, forwarded for presentment within a reasonable time, which is generally held to comprehend the day after it is issued. Such also is the general rule as to the presentment of checks. The result of the cases," says Tindal, C. J., "from Rickford v. Ridge to Boddington v. Schlencker, is, that the party receiving a check has till the following day to present it, where there are the ordinary means of doing so" (y). Formerly, it was held, that the check must be presented on the morning of the next day; it is now, however, firmly established, that the holder has the whole of the banking hours of the next day within which to present it (z). Government checks are not payable at the Bank of England after three o'clock (a). But there is one material difference between the liability Liability of of the drawer of a check and the drawer of a bill payable of presentment. drawer on delay on demand. The drawer of a check is not discharged by the holder's failure to present in due time, unless the drawer have sus (r) Rollin v. Steward, 14 C. B. 595. In this case, tried at Norwich, the plaintiff recovered a verdict for 500Z., which was, however, reduced at the recommendation of the Court. And a banker having securities in his hands, though the cash balance in his pass-book was against the customer, has been held liable, where in a previous course of similar dealing checks had been paid. Cumming v. Shand, 29 L. J., Exch. 129. (x) Keymer v. Laurie, 18 L. J., Q. B. 218. (y) Moule v. Brown, 4 Bing. N. Ca. 268; 5 Scott, 694, S. C.; Bailey v. Bodenham, 16 C. B., N. S. 288; 33 L. J., C. P. 252, S. C. Presentment to the bankers' London agent is not sufficient, though named in the printed form of the check (ibid.) It is doubtful whether sending a check in a letter to the drawees is a sufficient presentment (ibid.) (z) Pocklington v. Sylvester, 817; Chitty, 385; Robson v. Bennett, 2 Taunt. 388; Rickford v. Ridge, 2 Camp. 537. (a) 4 & 5 Will. 4, c. 15, s. 21. CHAPTER III. As between the Where the parties same place. tained from the delay actual prejudice, as by the failure of the banker (b). The check is an absolute appropriation of a sum of money in the banker's hands to lie till called for; but by delay the holder takes the risk of the bank's failure (c), or revocation of their authority to pay by death of drawer (d). If the payee of the check pay it into his bankers living in the same place that they may present it, the bankers may be, as between their customer and the drawer, still bound to present it on the day after it was originally issued. But as between their customer and themselves they may be bound to present it earlier, or justified in postponing the presentment later (e). If the party receiving the check from the drawer do not do not live in the live in the same place with the drawee, he should send it to his banker or other agent by the next day's post, and they should present it on the day after they have received it (ƒ). The banker should send it direct to the drawee, and cannot postpone the time of presentment by circulating it through agents or branches of the bank (g). He must not keep it till the third day, and then present it, though by such a course it reach the drawee as soon as it would have done had it been dispatched by post in the regular course (h). As between the But where a check, instead of being presented for payment in due course, is transferred and circulates through is not the drawer. several hands, it is conceived that there is a distinction between the time of presentment necessary as against the original drawer, in the event of the banker's insolvency, and the time necessary to charge the person from whom the (b) Serle v. Norton, 2 Mood. & Rob. 401; Alexander v. Burchfield, 3 Scott, N. R. 555; 7 M. & G. 1067, S. C.; Robinson v. Hawksford, 9 Q. B. 52; Laws v. Rand, 27 L. J., C. P. 76; 3 C. B., N. S. 442, S. C. (c) See the observations of Chancellor Kent, 3 Com. 104. These views have, in America, as well as in England, been confirmed by judicial decision; Daniels v. Kyle, 1 Kelly, 304. See Byles on Bills, 5th American edition, p. 93X (d) See Bromley v. Brunton, L. R., 5 Eq. 275; Hewet v. Kaye, 5 Eq. 198; and Chap. XI., Do NATIO MORTIS CAUSA, and post, p. 24. (e) Boddington v. Schlencker, 4 B. & Ad. 752; 1 N. & M. 540, S. C.; Alexander v. Burchfield, 1 Car. & M. 75; 3 Scott, N. R. 555; 7 M. & G. 1067, S. C.; Hare v. Henty, 30 L. J., C. P. 302. (f) Rickford v. Ridge, 2 Camp. 537; Bond v. Warden, 1 Collyer, 583; Hare v. Henty, 30 L. J., C. P. 302. This rule applies also prima facie between banker and customer (ibid.) (g) Moule v. Brown, 4 Bing. N. Ca. 266; 5 Scott, 694, S. C. (h) Beaching v. Gower, Holt's N. P. Ca. 315. check was immediately received. The liability of the drawer cannot, it is apprehended, be enlarged, by circulating the check, and, therefore, in order to charge him, if the banker fail, the check, in whose hands soever it be, must be presented within the period within which the payee or first holder must have presented it, but as against the party transferring the check to the holder, it is sufficient, whatever be the date of the check, to present it or forward it for presentment on the day next after the transfer. As to the consequences of non-presentment, the circumstances which will be evidence of presentment, or which will excuse or waive non-presentment, the reader is referred to the Chapter on PRESENTMENT FOR PAYMENT. Checks, being intended for immediate payment on being presented, are not usually accepted. It has been said, however, that the custom of London bankers to mark checks as good is equivalent to acceptance, and binds the banker to pay the checks so marked (i). And no doubt, before the recent statute, the mark was an acceptance of which any holder of the check might have availed himself, provided the mark amounted to a writing within the 1 & 2 Geo. 4, c. 78, s. 2. But now, by the 19 & 20 Vict. c. 97, s. 6, an acceptance must be signed. If it so happen that the drawee of the check is the banker of the holder, as well as of the drawer, no promise by the banker to pay the check will be implied by his receiving the check from the holder without observation, and keeping it till the following day (j), for primâ facie he will be taken to have received it as the holder's agent (k). The CHAPTER What amounts to an engagement by the drawee to pay a check. It is now and has long been a common practice, not only Crossed checks. in the city of London but throughout England, to write across the face of a check the name of a banker. meaning of this crossing was to direct the drawees to pay the check only to the banker whose name was written across; and the object was to invalidate the payment to a wrongful holder in case of loss: but it has been held that at common law the effect is to direct the drawees to pay the check not to any particular banker, but only to some banker, and not to restrict its negotiability. Therefore, as between the banker and his customer, the circumstance of the banker paying a crossed check, otherwise than through another banker, is at common law strong evidence of negligence on (i) Robson v. Bennett, 2 Taunt. 388; and see 2 M. & Rob. 454, note. (j) Boyd v. Emmerson, 2 A. & E. 184. (k) And see Kilsby v. Williams, 5 B. & Ald. 816; 1 D. & R. 476, S. C. CHAPTER Statute 19 & 20 Vict. as to crossed checks. the part of the banker, rendering him responsible to his customer (7). The holder may at common law erase the name of the banker and either substitute that of another banker, or leave the words and Co. remaining alone (m) It is also not unusual to write the words and Co., only, in the first instance, leaving the particular banker's name to be filled up afterwards or not, so as to insure the presentment by some banker or other (n). But the 19 & 20 Vict. c. 25 recently enacted, that in every case where a draft on any banker made payable to bearer or to order on demand bears across its face an addition of the name of any banker, or of the words "and Company," in full or abbreviated, either of such additions. shall have the force of a direction to the bankers, that it is to be paid only to or through some banker, and the same shall be payable only to, or through, some banker. The legal effect of this statute on crossed checks payable to bearer should appear to have been very inconsiderable. Before the statute payment otherwise than through some banker was strong evidence of negligence, and therefore practically an invalid payment. Since the statute a payment otherwise than through some banker is invalid as matter of law. The negotiability of crossed checks, which has been found extremely convenient in business, seems to have been left as it was before the act. On the construction of this statute, it was held by the Court of Common Pleas, though not without much hesitation, that the crossing was no part of the check, that its unauthorized and fraudulent obliteration was no forgery of the check, and therefore that the payment, without negligence, of a check, the crossing whereof had been fraudulently obliterated, to a holder, not being a banker, was, as between the banker the drawee and his customer the drawer, a good payment (o). (1) Bellamy v. Majoribanks, 7 (m) Stewart v. Lee, 1 M. & M. (n) Boddington v. Schlencker, 4 B. & Ad. 752; 1 N. & M. 540, S. C.; Carlon v. Ireland, supra. C. drew a check on his banker, payable to A. and B., assignees of C., or bearer, and wrote the name of their banker across it. B., who had another private account with the banker, paid the check into that account; it was held, that the bankers were justified in applying it to that account, the drawer's writing the name of the bankers of the payees of the check across it not being, according to the custom of trade, information to the bankers that the money was the money of the payees. (0) Simmons v. Taylor, 27 L. J. 45; 4 C. B., N. S. 463. This decision introduced a further legislative alteration in the law of crossed checks. CHAPTER Vict. c. 79. The statute 21 & 22 Vict. c. 79, ss. 1, 3, makes the cross- Statute 21 & 22 ing a part of the check, and the fraudulent obliteration or alteration of the crossing, felony. But the statute recognizes the right of a lawful holder to cross a check, and on a check already crossed with the words "& Co." to prefix the name of any banker. It introduces, however, this alteration of the law, that if a check be once crossed with the name of a particular banker, it is thenceforth payable only through that banker. It recognizes the decision of the Court of Common Pleas in favour of the banker, by enacting that where a crossing has been so altered or obliterated as not plainly to appear, there a wrong payment in consequence, if without the fraud or negligence of the banker, shall not be questioned. The legislation on this subject still seems to leave the result of the judicial application of the common law to crossed checks much as it stood originally, except that the crossing is made part of the check; that the payment of a crossed check otherwise than through a banker is not merely strong evidence of negligence, but is a void payment; and that where a particular banker is named in the crossing, his name must not be erased, and the payment must be through that banker. evidence of. A check presented and paid is no evidence of money lent What a check is or advanced by the banker to the customer (p). On the contrary, it is prima facie evidence of the repayment, to the amount of the check by the banker to the customer, of money previously lodged by the customer in the banker's hands. A check, not presented, is not evidence of money previously lent by the drawer to the payee (q). In other words, the mere circumstance of one man drawing a check in favour of another is no evidence of a debt due from the drawer. amounts to pay ment. A check, unless dishonoured, is payment (r). But upon When a check a question whether a debt have been paid, the mere production of a check drawn by the debtor in favour of the creditor and paid by the banker, is no evidence of payment (s). It (p) Fletcher v. Manning, 12 M. & W. 571. (g) Pearce v. Davis, 1 M. & Rob. 365; and see Aubert v. Walsh, 4 Taunt. 293; Cary v. Gerrish, 4 Esp. 9. (r) Pearce v. Davis, 1 M. & Rob. 363; see Moore v. Barthrop, See Bridges 1 B. & C. 5; 2 D. & R. 25, S. C. |